STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRI-STATE SYSTEMS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 83-3050T

) CASE NO. 83-3051T DEPARTMENT OF TRANSPORTATION, )

STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cases on March 27, 1984, at Lake City, Florida.

APPEARANCES

For Petitioner: James J. Richardson, Esquire

Post Office Box 12669 Tallahassee, Florida 32317

For Respondent: Charles G. Gardner, Esquire

Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

By letter dated September 9, 1983, Tri-State Systems, Inc., Petitioner, appeals the denial of its application for outdoor advertising signs along I-10,

1. miles and 0.4 miles east of U.S. 41. These applications were defied on grounds the area was not properly zoned for such signs.

   
   

   At the hearing Petitioner called two witnesses, Respondent called two witnesses and nine exhibits were admitted into evidence, with permission granted to Respondent to submit late filed exhibits of zoning regulations of Jacksonville and Tallahassee. Those zoning regulations have been received and marked as Exhibits 10 and 11, respectively.

   
   

   There is no dispute as to the operative facts in these cases. Proposed findings due from the parties on or before April 20, 1984, have not been received.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner proposes to erect outdoor advertising signs along the south side of I-10, 0.2 miles and 0.4 miles, respectively, east of U.S. 41. The Petitioner has acquired a lease on the sites proposed for these signs.

   2. The sites in issue are in Columbia County and Columbia County is unzoned. These sites are outside any incorporated town or city and the area is rural in nature. A radio transmitting or relay tower is located between the proposed sites and a small concrete block building is located near the base of the tower. These are the only structures in the area.

      
      

   3. Each of the two sites for which a permit is sought is within 800 feet of this small building. The building is unoccupied and is reported to contain materials used in the maintenance of the tower. The tower is owned by B & B Communications located in Lake City, Florida. Opinion testimony was offered by Petitioner that the highest and best use of small tracts of this land would be for outdoor advertising signs.

      
      

   4. Exhibit 10, Building and Zoning Code for the City of Jacksonville, Florida, which is coterminous with Duval County, establishes a category of Open Rural Districts (OR) in which permissible uses by exception include radio or television transmitters, antenna and line-of-site relay devices. The zoning code for Tallahassee shows one of the principal uses for land zoned A-1 Agricultural District is for "(8) Broadcasting towers, radio and television transmission stations and studios."

      
      

   5. There are six or seven signs located in the general area along the I-10 between U.S. 41 and U.S. 441, most on the north side of I-10. Those permitted signs were "grandfathered in" and no permit has been issued for any sign erected in this area since 1979.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

      
      

   7. Section 499.111, Florida Statutes, provides in pertinent part:

      
      

      Only the following signs shall be permitted within controlled posi- tions of the interstate and federal- aid primary systems:

      (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s.479.02.

      
      

   8. Rule 14-10.09(2) adopts the Agreement between the United States and the State of Florida. Section I 1 B thereof provides:

      
      

      B. Unzoned commercial or industrial

      area means an area within six hundred sixty (660) feet of the nearest edge of the right of way of the Interstate, Federal-Aid Primary System, or State Highway Systems not zoned

      by State or local law, regulation or ordi- nance in which there is located one (1) or more industrial or commercial activities generally recognized as commercial or indus- trial by zoning authorities in this State except that the following activities may

      not be so recognized:

      1. Outdoor advertising structures.

      2. Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.

      3. Transient or temporary activities.

      4. Activities not visible from the main-traveled way.

      5. Activities more than six-hundred sixty (660) feet from the nearest edge of the right of way.

      6. Activities conducted in a building principally used as a residence.

      7. Railroad tracks and minor sidings.

      
      

      The unzoned commercial or industrial area shall only include those lands on the same side of the highway which are within eight hundred (800) feet of such commercial or industrial activity. All measurements shall be made from the outer edges of the regularly used buildings, parking lots, storage or processing and landscaped areas of the commercial or industrial activities and such measurements shall be along or parallel to the edge of the pavement of the highway.

      
      

   9. The sole issue for determination here is whether the installation of a transmitting tower, with an accompanying structure for supplies, creates an industrial or commercial area in an otherwise unzoned rural setting. Simply stating the question suggests the answer.

      
      

   10. As defined in the rule above-quoted, the requirement for unzoned commercial or industrial area means an area in which there is located one or more activities generally recognized as commercial or industrial by zoning authorities. In the zoning regulation for Jacksonville radio or television towers are included with the type activity associated with an Open Rural District; and in the Tallahassee zoning regulations radio and television towers and antenna are included with the type activities associated with an agricultural usage. It is thus clear that neither of these zoning authorities recognized radio or television communication towers as either commercial or industrial.

       
       

   11. Petitioner's witness who was not allowed to testify as an expert on zoning but was accepted as an expert on land appraisal understood a commercial activity to be geared to a retail-type business and an industrial activity to be geared to manufacturing. The tower here proposed to classify the area as unzoned commercial or industrial meets neither of those definitions.

       
       

   12. From the foregoing it is concluded the sites on which Petitioner proposes to locate the two outdoor advertising signs here considered, i.e. along the I-10, 0.2 miles and 0.4 mile east of U.S. 41, are not commercial or industrial in usage and do not meet the definition of commercial or industrial unzoned areas in which outdoor signs may be erected. It is therefore

RECOMMENDED that the applications of Tri-State Systems, Inc, to erect outdoor advertising signs along the south side of I-10, 0.2 miles and 0.4 miles east of U.S. 41 be denied.

ENTERED this 3rd day of May, 1984, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1984.

COPIES FURNISHED:

James J. Richardson, Esquire Post Office Box 12669 Tallahassee, Florida 32317

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301-8064

Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

Patrick Galvin, Administrator Outdoor Advertising Department of Transportation Haydon Burns Building

Tallahassee, Florida 32301-8064

Docket for Case No: 83-003050

Orders for Case No: 83-003050