STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILLARY SKLAR, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3734GM

) DEPARTMENT OF COMMUNITY AFFAIRS ) and THE CITY OF COOPER CITY, )

)

Respondents. )

)

SECOND RECOMMENDED ORDER OF DISMISSAL

This case came before the undersigned on Cooper City's Motion to Dismiss for Lack of Standing and Subject-Matter Jurisdiction.

APPEARANCES

For Petitioner: Edward R. Curtis, Esquire

Bruce Botsford, Esquire 1828 Southeast 1st Avenue

Fort Lauderdale, Florida 33316

For Respondent, Suzanne H. Schmith Department of Assistant General Counsel

Community Affairs: Department of Community Affairs

2740 Centerview Drive

Tallahassee, Florida 32399-2100

For Respondent, Silvia Morell Alderman, Esquire City of Cooper City: 106 East College Avenue, Suite 1200

Tallahassee, Florida 32301 STATEMENT OF THE ISSUES

Whether Petitioner has failed to allege sufficient facts to support a finding that she has standing to institute this proceeding.

PRELIMINARY STATEMENT

On or about June 6, 1994, Petitioner, Hillary Sklar, filed an Amended Petition, Petition to Department of Community Affairs Challenging Compliance of the City of Cooper City Comprehensive Plan with the Department of Community Affairs (hereinafter referred to as the "Department"). In the amended petition, Ms. Sklar alleged that an amendment to the City of Cooper City comprehensive plan was not "in compliance."

On July 8, 1994 the amended petition was filed with the Division of Administrative Hearings by the Department. The amended petition was designated case number 94-3734GM and was assigned to the undersigned.

On July 11, 1994 the City of Cooper City (hereinafter referred to as the "City"), served Cooper City's Motion to Dismiss for Lack of Standing and

Subject-Matter Jurisdiction, and Memorandum; or in the Alternative, Motion for a More Definite Statement; or in the Alternative, Motion to Strike; Motion Requesting Oral Arguments. No response to the motion was filed by Ms. Sklar or the Department.

On August 1, 1994, an Order Granting Motion to Dismiss with Leave to File Amended Petition and Continuance was entered. Pursuant to the August 1, 1994 Order Ms. Sklar was informed that she had failed to allege sufficient facts to support a finding that she has standing to institute this proceeding.

Therefore, her petition was dismissed with leave to file an amended petition on or before August 14, 1994. Ms. Sklar was also informed that, if she failed to file an amended petition, a recommended order of dismissal would be entered. No amended petition was filed by Ms. Sklar.

On September 7, 1994, a Recommended Order of Dismissal was entered.

By letter dated September 13, 1994, counsel for Ms. Sklar filed with the Department a Notice of Appearance, a Motion to Set Aside and Reconsideration of Order and Motion for Time to Respond to Cooper City's Motion to Dismiss and an Affidavit from Ms. Sklar indicating that she was not served a copy of the motion to dismiss filed by Cooper City.

On September 28, 1994, the Department filed a copy of an Order entered September 27, 1994, by the Secretary of the Department. Pursuant to the Order, Secretary Shelley remanded this matter for consideration of the Motion to Set Aside and Reconsideration of Order and Motion for Time to Respond to Cooper City's Motion.

On October 27, 1994, an Order Accepting Remand, Reopening File and Establishing Time to Respond to Petitioner's Motion to Set Aside was entered. Pursuant to this Order, this case was reopened for the limited purpose of considering the Motion to Set Aside and Reconsideration of Order and Motion for Time to Respond to Cooper City's Motion. Respondents were given until November 14, 1994 to respond to the motion.

On November 7, 1994, the Department filed Department of Community Affairs' Response to Petitioner's Motion to Set Aside. The Department, taking Ms.

Sklar's allegations to be true, agreed that Ms. Sklar should be given a reasonable time to respond to the City's motion to dismiss.

On November 8, 1994, the City filed Respondent Cooper City's Response to Order Accepting Remand, Reopening File and Establishing Time to Respond to Petitioner's Motion to Set Aside. The City opposed Ms. Sklar's motion for reconsideration. The City pointed out the following additional facts concerning this matter:

1. Ms. Sklar's original petition was filed with the Department on or about June 8, 1994.

   
   

2. The Department dismissed Ms. Sklar's petition pursuant to Rule 9J- 11.012(7)(a), Florida Administrative Code, by order entered June 22, 1994. Ms. Sklar was granted leave to file an amended petition. Ms. Sklar did timely file an amended petition.

3. On July 29, 1994, after the City's motion to dismiss had been filed and before the Order granting the motion had been entered, counsel for Ms. Sklar was informed during a telephone conversation that the City had filed the motion to dismiss.

   
   

4. Counsel for Ms. Sklar was aware of the fact that the Order of dismissal gave Ms. Sklar until August 14, 1994, to file an amended petition. Rather than doing so and rather than filing a motion for reconsideration with the Division of Administrative Hearings, Ms. Sklar filed the motion for reconsideration with the Department.

   
   

   On November 15, 1994, before a ruling was entered on the motion for reconsideration, Ms. Sklar filed Petitioner's Response to the City of Cooper City's Motion to Dismiss. On November 17, 1994, the City filed Respondent, City of Cooper City's Reply to Petitioner's Response to Respondent's Motion to Dismiss and to Petitioner's Motion to Set Aside and Reconsideration of Order on Cooper city's Motion to Dismiss.

   
   

   On February 2, 1995, a motion hearing was conducted by telephone by the undersigned. The parties were informed during the conference that the Motion to Set Aside and Reconsideration of Order and Motion for Time to Respond to Cooper City's Motion were granted to the extent that Ms. Sklar had requested an opportunity to respond to the City's motion to dismiss.

   
   

   The parties were also informed that the undersigned, after consideration of Ms. Sklar's response, which had already been filed, was not convinced that Ms.

   Sklar had alleged sufficient facts, which if proved, would support a finding that she had standing to institute this proceeding. The City was also informed that, in light of the amount of time that had expired since the adoption of the City's plan amendment, the undersigned would consider proceeding to final hearing and then enter a recommended order recommending dismissal for lack of standing, and, in light of the fact that the Department would decide as a matter of law whether Ms. Sklar has standing, addressing the substantive issues raised by Ms. Sklar in the event that the Department disagreed with the recommendation that this matter be dismissed for lack of standing.

   
   

   During the telephone hearing, counsel for Ms. Sklar indicated that leave to file an amended petition might be sought. By letter dated February 6, 1995, counsel for Ms. Sklar indicated they intended to file a motion to amend petition. On February 13, 1995, Ms. Sklar filed Petitioner's Motion to Amend Petition. The City filed a response in opposition to the motion on February 14, 1995. Despite the fact that Ms. Sklar did not raise the possibility of filing an amended petition until 6 months after the first Order dismissing Ms. Sklar's petition with leave to amend was entered, it was concluded that there would be no prejudice to the Department or the City to grant Petitioner's Motion to Amend Petition.

   
   

   Finally, on February 14, 1995, the City filed a letter indicating the City's preference that a recommended order of dismissal be entered rather than proceeding to final hearing. On February 17, 1995, the Department filed a letter deferring to the City's request.

   
   

   FINDINGS OF FACT

   
   

   1. On or about February 13, 1995, Petitioner, Hillary Sklar, filed Petitioner's Second Amended Petition.

   2. Ms. Sklar has challenged the Department's determination that an amendment to the City's comprehensive plan adopted by Ordinance No. 94-2-2 was "in compliance."

      
      

   3. In the second amended petition Ms. Sklar made the following allegations concerning her standing to institute this proceeding:

      
      

      * * *

      2. The Petitioner's address is 11321 Southwest 49th Place, Fort Lauderdale, 33330, in the County of Broward, Florida.

      * * *

      4. On February 8, 1994, the Respondent passed Ordinance NO. 94 -2 -2 authorizing the implement- ation of Land Use Plan Amendment 94 - S - 1.

      The Land Use Plan Amendment affects property located at 11791 Southwest 49th Street, Cooper City, in the County of Broward. . . .

      * * *

      1. Petitioner's property is located in a section of unincorporated Broward County which abuts and adjoins the property in question. Petitioner's property has been defined by Respondent as an "enclave."

      2. Petitioner's property is similarly situated to those of property owners in Cooper City and will be affected more than those property owners

         located in Cooper City; including, but not limited to, the allegations contained in Paragraphs 10 through 17, inclusive.

      3. Petitioner made objections to the ordinance at the February 8, 1994 City Council meeting discussing adoption of the ordinance. . . .

      * * *

      
      

   4. Ms. Sklar has still failed to allege that she resides, owns property or operates a business located with a City of Cooper City address or which otherwise is subject to the jurisdiction of the City of Cooper City.

      
      

   5. The oral objections made by Ms. Sklar were made at a public hearing of the City of Cooper City Council held on February 8, 1994. According to the minutes of that meeting, Ms. Sklar "said the zoning is a done deal and the annexation and sale was a done deal. Why should it be a done deal before the Public Hearing was held, she asked."

      
      

   6. The factual information contained in the Preliminary Statement of this Recommended Order is hereby incorporated by reference.

      
      

      CONCLUSIONS OF LAW

      
      

      1. Jurisdiction.

         
         

   7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

      
      

      1. Standing.

   8. Section 163.3184(9), Florida Statutes, provides that any "affected person" may file a petition pursuant to Section 120.57, Florida Statutes, challenging a decision by the Department to find a plan or plan amendment "in compliance."

      
      

   9. Section 163.3184(1)(a), defines an "affected person" as, in part, the following:

      
      

      1. "Affected person" includes . . . persons owning property, residing, or owning or operating a business within the boundaries of the local government whose plan is the subject of the review . . . . Each person, other than an adjoining local government, in order to qualify under this definition, shall also have submitted oral or written comments, recommendations, or objections the local government during the period

         of time beginning with the transmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.

         
         

   10. Based upon the allegations contained in the amended petition, Ms. Sklar does not reside, own property or operate a business in the City of Cooper City.

       
       

   11. Ms. Sklar owns property and resides in an enclave of property that is located outside the City of Cooper City. The property is, however, surrounded by the City of Cooper City's boundary.

       
       

   12. In support of Ms. Sklar's argument that she has alleged sufficient facts, which if proved, would support her standing to institute this proceeding, Ms. Sklar has cited Pope v. City of Cocoa Beach, 12 FALR 4758 (ER FALR 90:198)(Department of Community Affairs, 1990). Pope involved the owner of property which was contiguous to, and abutted on, the property which was the subject of the City of Cocoa Beach's plan amendment at issue in Pope. In interpreting Section 163.3184(1)(a), Florida Statutes, the Department stated the following:

       
       

       The definition expresses a list of interests that will bring a person into the "affected person" category. Clearly a person who lives

       within the local government, or who owns property within the local government, or who owns or operates a business within the local government will meet requirements of the definition. This does not mean, however, that a person who is not specifically designated within the definition cannot be considered an "affected person." . . . .

       
       

       . . . . By using the word "includes" followed by an itemization of interests that meet the "affected person" criteria, the Legislature clearly intended that other interests similar

       to those enumerated would also meet the criteria.

       
       

       Pope at 4760.

   13. The facts of the Pope case are distinguishable from the facts in this case. In Pope the petitioner's property was contiguous to, and abutted on, the property at issue. While Ms. Sklar has alleged that the "section of unincorporated Broward County" or the enclave "abuts and adjoins the property .

       . . " which is the subject of the amendment at issue in this case, she has not alleged that the property which she owns abuts or adjoins the subject property.

       
       

   14. Additionally, the conclusions reached by the Department in Pope concerning the expansive reading of the definition of "affected person" is not persuasive. If the Legislature had intended the more expansive interpretation give by the Department to the terms "affected person" then why did it list the types of affected persons and entities, which are obviously affected persons, in the definition? Additionally, the Legislature usually includes the phrase "but not limited to" in conjunction with the term "including" when it intends a broader interpretation.

       
       

   15. The apparent intent of the Legislature in requiring that persons reside, own property or operate a business "within the boundaries of the local government whose plan is the subject of the review" was to limit the persons who could challenge a local government's plan to those persons subject to the jurisdiction of the local government who will be subject to the provisions of the local governments plan.

       
       

   16. The Legislature recognized that there would be instances where the action of one local government in adopting a plan or plan amendment would impact other local governments. The Legislature, therefore, made it clear in defining an "affected person" that certain local governments would be an "affected person" if certain conditions were met:

       
       

       adjoining local governments that can demonstrate that the plan or plan amendment will produce substantial impacts on the increased need for publicly funded infrastructure or substantial impacts on areas designated for protection or special treatment within their jurisdiction.

       
       

   17. The Legislature did not include similar language in Section 163.3184(1)(a), Florida Statutes, that makes it clear that individuals who may be located in enclaves not under the jurisdiction of the local government or who own or reside in property or operate a business that adjoins the local government should also be considered "affected persons."

       
       

   18. Although the question of whether Ms. Sklar's objections to the City of Cooper City were sufficient to bring Ms. Sklar within the other requirement to be considered an "affected person" is a factual question, the comments that Ms. Sklar made should be considered sufficient to find her to be an affected person, if she otherwise had met the definition. See Falk v. City of Miami Beach, 12 FALR 4548 (ER FALR 90:193)(Department of Community Affairs 1990).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Community Affairs enter a Final Order

dismissing the Petitioner's Second Amended Petition, filed by Hillary Sklar.

DONE AND ENTERED this 24th day of March, 1995, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1995.

COPIES FURNISHED:

Edward R. Curtis, Esquire Bruce Botsford, Esquire 1828 S.E. 1st Avenue

Fort Lauderdale, Florida 33316

Suzanne H. Schmith Certified Legal Intern

Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Silvia Morell Alderman, Esquire Suite 1200

106 East College Avenue Tallahassee, Florida 32301

Linda Loomis Shelley, Secretary Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

Dan Stengle, General Counsel Department of Community Affairs 2740 Centerview Drive

Tallahassee, Florida 32399-2100

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order of Dismissal. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order of Dismissal should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-003734GM

Orders for Case No: 94-003734GM