DCA ORDER OF REMAND CLARIFIES CITIZEN STANDING IN COMPREHENSIVE PLAN
AMENDMENT CHALLENGE IN LIGHT OF STARR V. DEPARTMENT OF COMMUNITY AFFAIRS AND
CHARLOTTE COUNTY CASE.

Schember v. City of Bradenton and DCA, DOAH Case No: 002066GM (October 2000)

     Eight individual petitioners challenged an amendment to the City of Bradenton's Comprehensive Plan, which the Department of Community Affairs (DCA) found to be in compliance. The City of Bradenton filed a Motion to Dismiss the Petitioners for Lack of Standing. The City argued that each of the eight petitioners failed to meet the criteria of an affected person under Section 163.3184(1)(a), F.S. Counsel for the DCA filed a response indicating that the Department concurred with the Motion. In response, the Petitioners focused attention on the standing of Petitioner, Doris Schember. The Administrative Law Judge filed a Recommended Order dismissing all eight Petitioners.

     Section 163.3184(1)(a), F.S. defines an affected person who is entitled to challenge a compliance determination of a comprehensive plan amendment, and states in relevant part the following:

(a) "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 to the local government during the period of time beginning with thetransmittal hearing for the plan or plan amendment and ending with the adoption of the plan or plan amendment.

     The Petitioners asserted that there are two sub-issues when determining whether a person is indeed an affected person under Section 163.3184(1)(a), F.S. The first is whether that person lives, owns property or operates a business within the boundaries of the local government. It was undisputed that Schember was a resident of The City of Bradenton.

     The second sub-issue is whether that person submitted oral or written comments. It was also undisputed that Schember submitted oral comments to the City of Bradenton in a timely manner.

     As such, the Recommended Order dealt with the sole issue of whether Schembers oral comments rose to the level of comments, recommendations or objections which are sufficient to confer standing under Section 163.3184(1)(a), F.S. The recommendation to dismiss Schember was based on the ALJs finding that she failed to submit comments within the meaning of the statute because her comments did not address the contents of the comprehensive plan amendment, rather, the ALJ construed her comments as being directed at future hearings and suggestions that additional notice be provided.

     The Petitioners filed exceptions to the Recommended Order asserting that Schembers comments fulfilled the requirements of Section 163.3184(1)(a), F.S., and further noted that under Falk v. City of Miami Beach, 12 FALR 4548 (Department of Community Affairs, 1990); and Benson v. City of Miami Beach, 12 FALR 4581 (Department of Community Affairs, 1990); revd on other grounds 591 So. 2d 942 (Fla. 3d DCA 1991), based on an in pari materia reading of Sections 163.3184(1)(a), 163.3181(1) and 163.3184(8),F.S., there is no requirement that a petitioners qualifying comments under Section 163.3184(1)(a), F.S., mirror the issues later raised in the petition. The Department agreed with the Petitioners arguments and granted the Exception.

     The ALJ relied heavily upon the Final Order in the case of Starr v. Department of Community Affairs and Charlotte County, DOAH Case No. 98-0449GM (Department of Community Affairs, Final Order dated May 16, 2000); however, the Department agreed with the Petitioners that the sufficiency analysis conducted in the Starr case was distinguishable to the facts presented with Schember.

    In Starr, one of the petitioners (Plummer) had his standing challenged on the basis that he failed to meet at least two elements (timeliness of comments and sufficiency) of the affected person test. In regards to the sufficiency analysis, Plummer had failed to submit comments to the proper local governing body, instead he submitted remarks to a code enforcement board during consideration of whether to demolish a structure as unsafe.

     The Department's emphasis on a direct nexus between the plan amendment under review and the local governing body was targeting the unique factual circumstance of Plummer. The Starr case ruled that comments cannot be made to just any governmental body. Rather, in taking the statute as a whole, the comments would necessarily have to be submitted to the local government that was considering the comprehensive plan or plan amendment. Otherwise, "[A] statutory interpretation that would allow persons to make comments, recommendations or objections to any arm or instrumentality of the local government (even if not involved in the comprehensive planning process) and would further allow such comments, recommendations or objections to suffice even if only tangentially related to the plan or plan amendment under review plainly violates the language and spirit of the Act."

     The Petitioners asserted that had Schembers comments been made to the inappropriate government agency and were further only tangentially related to the plan amendment, then the application based upon the Starr case would be appropriate. The Department's Order of Remand agreed, ruling that Schembers comments were directed to the appropriate arm of the local government. The Department stated that, "by addressing the notice procedure used for the amendment, Schember made comments that relate directly to the challenged amendment." Accordingly, her comments meet the direct nexus test discussed in Starr.


Jane M. Gordon is a litigation attorney practicing in the West Palm Beach law of Jonas & LaSorte. She specializes in environmental and land use law, growth management, real estate litigation, and complex commercial litigation. She represents numerous non-profit organizations throughout the state in zoning and comprehensive plan amendment challenges. Jane Gordfirm on is the Chairperson for the Public Interest Committee of the Environmental and Land Use Law Section of the Florida Bar since 1999 and was a moderator on March 2000 Urban Sprawl Panel at Public Interest Environmental Conference. She is also a member of the Palm Beach County Bar Association's Environmental Law Section and is actively involved in organizing that Section's Continuing Legal Education courses.