STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BILL SALTER OUTDOOR ADVERTISING, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4188T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter Came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on June 8, 1987. Petitioner filed a proposed recommended order on July 21, 1987, and respondent filed proposed findings of fact, conclusions of law and recommendation on July 24, 1987. The attached appendix addresses proposed findings of fact by number.

The parties are represented by counsel:

For Respondent: Mark Proctor, Esquire

Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell

226 South Palafox Street Post Office Box 12308 Pensacola, Florida 32581

For Petitioner: Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

When respondent Department of Transportation (DOT) proposed to deny petitioner's applications for permits to construct signs beside a highway, petitioner requested an administrative proceeding, and DOT referred the matter to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1986 Supp.).

ISSUE

Whether land Santa Rosa County has zoned "Planned Business District" lies in a commercial or industrial zone within the meaning of Section 479.01(2), Florida Statutes (1985) and Rule 14-10.0051(2), Florida Administrative Code?

FINDINGS OF FACT

1. By applications dated July 18, 1986, petitioner Bill Salter Outdoor Advertising (Salter) sought permits to mount back to back signs, ten feet high

   and 36 feet wide, on a metal "unipole" 40 feet above the ground, Petitioner's Exhibit No. 1, on the south side of U.S. Highway 98 in Santa Rosa County, 11.5 miles east of State Road 399. The site proposed for the signs lies outside any incorporated municipality, about halfway between Gulf Breeze and the Okaloosa County line. The proposed site is near the northeast corner of a parcel with 1,300 feet fronting U.S. Highway 98. The signs would stand 50 feet from the highway right of way, some 1,066 feet east of the nearest building, which is part of a privately owned zoo, forthrightly named "The Zoo." Whether The Zoo will ever expand, as Pat Finn, the proprietor, reportedly hopes, is not clear from the evidence.

   
   

2. Mr. Finn gave Salter written permission to apply for the permits, and executed a lease in Salter's favor. Petitioner's Exhibit No. 3. Salter applied for and obtained written approval from Santa Rosa County's planning department to erect the signs for which it now seeks permits.

   
   

3. No other highway signs have been permitted in the immediate vicinity since October 1, 1984. Across the street, mechanics repair automobiles and motorcycles at a commercial garage. Also on the north side of the highway is a lumber company, about a quarter of a mile from the site, and an establishment selling campers, maybe half a mile from the site. For several miles in either direction, much of the property along this four-lane divided highway is undeveloped, but there are occasional shopping centers, Convenience stores, restaurants and other commercial establishments, including a boat dealer and tent merchant. For several miles in either direction, with the exception of one or two residences, all residential development is more than 300 feet back from

   U.S. Highway 98, and most of it is more than 500 feet back.

   
   

4. In response to recent legislation, Santa Rosa County hired Robert Eugene Arn, Jr., in the spring of 1986, to head its planning department and to review zoning in the county, including in the area in question. According to Mr. Arn, erection of the proposed signs is permissible under Santa Rosa County's present zoning.

   
   

5. Before his arrival, an ad hoc committee had examined aerial photographs, considered present and potential land uses in the area, and otherwise informed itself on the circumstances over a period of about a year. The county adopted a zoning ordinance, effective June 24, 1986, covering south Santa Rosa County. Consistently with the purposes of the ordinance, and with the comprehensive plan, the proposed site has been zoned "Planned Business District" (PBD), allowing commercial activity on parcels of adequate size, without requiring variances or special exceptions for commercial uses, which uses need not be incidental to other, primary land uses. In pertinent part, the ordinance provides:

   
   

   1. PLANNED BUSINESS DISTRICT Within this district as shown on the

      zoning map of the South Santa Rosa County Planning Area, Florida, the following regula- tions shall apply:

   2. INTENT AND PURPOSE, PERMITTED USES:

      1. Intent and Purpose:

         It is the purpose of this article

         to permit Planned Business Developments along major arterials and to encourage the development of this land with highway

         frontage as planned communities, and business

         and commercial centers; encourage flexible and creative concepts of site planning; preserve the natural amenities of the land by encouraging functional open areas; accomplish a more desirable environment that would not be possible through the strict application

         of the minimum requirements of these regulations; provide for an efficient use of land resulting in smaller networks of streets and utilities where access to regional systems is impractical and thereby lowering development and housing costs; and provide a stable environmental character compatible with surrounding areas; limit access on to major arterials to central locations in order to reduce safety hazards posed by unlimited or uncontrolled access.

      2. Permitted Uses:

         
         

         The uses permitted within this district shall include the following:

         
         

         1. Residential units, including single- family attached and detached dwellings, two-family dwellings and multiple-family dwellings.

         2. Churches, schools, community or club buildings and similar public and semi-public facilities.

         3. Non-residential uses, including commercial or retail uses, offices, clinics and professional uses.

         4. Mobile homes (as defined in Section 1.1.) are prohibited in Area #1 (as defined in Section 1.1.). The basis for this restric- tion is found in the already developed nature of Area #1 and the need to protect

         established property values from uses that could potentially adversely affect

         such values.

   3. DEFINITIONS:

      In addition to the definitions contained in Section 1 of this ordinance, the following terms, phrases, words and derivations shall have the following meaning:

      1. Planned Business Development:

         An area of land of at least fifteen (15) acres devoted by its owner to development as a single entity for a number of dwelling units, and/or commercial uses in accordance

         with a plan which does not necessarily comply with the provisions of Sections 3 through 6 of this ordinance with respect to lot size, lot coverage, setbacks, off-street parking, bulk or type of dwelling, density and other regulations.

      2. Plan:

      The proposal for development of a Planned

      Business Development, including a plat of subdivision, all covenants, grants of

      easements and other conditions relating to use, location and bulk of buildings, density of development, common open space and public facilities. The plan shall include such information as required by Article D of this Section.

   4. PROCEDURE FOR APPROVAL OF A PLANNED BUSINESS DEVELOPMENT:

      When a parcel of land is zoned for Planned Business District (PBD), such parcel

      shall not be subdivided into smaller parcels less than fifteen (15) acres in size without first complying with the provisions of this Section for Master Planning.

      
      

      The procedure for obtaining approval for

      the purpose of undertaking a Planned Business Development shall be as follows:

      1. Preliminary Planned Business Development and Master Plan Approval: The applicant shall submit to the Planning Director, his application for the approval of the Planned Business Development and shall submit the following exhibits at the same time:

         (a) A statement of objectives describing:

         1. The general purpose of the proposed development.

         2. The general character of the proposed development.

         1. A Master Plan. A Master Plan, drawn

            at a scale suitable for presentation, showing and/or describing the following:

            1. Proposed Land Uses.

         1. Final Development Plan:

            If approval for the Planned Business Development is granted, the applicant shall submit a Final Planned Business Development Plan covering all or

            part of the approved Master Plan within twelve (12) months, to the Planning Director. The Final Development Plan shall include the following exhibits.

            1. A statement of objectives:

         1. The general purpose of the proposed development.

         2. The general character of the proposed development.

         (5) Revision of a Planned Unit Development:

         Any proposed major and substantial

         change in the approval Preliminary Planned Business Development Master Plan which affects the intent and character of the development, the density or land use pattern, proposed buffers, the location or dimensions

         or arterial or collector streets, or similar substantial changes, shall be reviewed by the Planning Department in the same manner of the initial site plan approval. A request for a revision of the Preliminary Planned Business Development Master Plan, shall be supported by a written statement and by revised plans demonstrating the reasons the revisions are necessary or desirable...

         
         

         By use of the master plan mechanism, the ordinance reserves many areas for future designations. But, at the same time that it adopted its zoning ordinance, Santa Rosa County adopted maps showing a corridor in which commercial development is contemplated, extending 300 to 500 feet either side of the highway. Single family residences would normally be 300 to 500 feet back from the highway, although nothing in the ordinance precludes single family residences adjacent to the highway.

         
         

6. The property across the road from the proposed site has been zoned PBD and "HCD", or highway commercial development. Land zoned HCD can be developed commercially, but multiple family housing is also allowed. DOT has granted permit applications for sites zoned HCD. DOT has never denied such an application, as far as the record reveals, but DOT's Mr. Culpepper testified that DOT would deny an application for a site zoned HCD if it were located in a (multi-family) residential area.

   
   

7. DOT's stated reason for proposing to deny Salter's most recent applications is "unpermittable zoning": "PBD is not acceptable zoning for a state sign permit." Petitioner's Exhibit No. 2. At hearing, Mr. Culpepper explicated the Department's position, testifying that, if the area in question were the subject of a master plan specifying commercial uses, the signs could be permitted; but that, because PBD zoning allows both residential and commercial uses, and the ultimate fate of the property is not yet legally specified, no permit can issue.

   
   

8. Of course, as much of the property as has been developed is now given over to a commercial use, The Zoo, with its parking lot and gift store. Santa Rosa County's current policy is to allow land uses antedating adoption of zoning ordinances to persist, even if they are non-conforming. No master plan covering the area in question has been filed.

   
   

   CONCLUSIONS OF LAW

   
   

9. After DOT proposed to deny Salter's applications, on grounds "PBD is not acceptable zoning," Salter initiated the present proceedings, which are properly before the Division of Administrative Hearings, in accordance with Section 120.157(1)(b)3., Florida Statutes (1986 Supp.).

   
   

10. The parties are in agreement that the proposed site lies "within controlled portions of...the federal-aid primary highway system," Section 479.111, Florida Statutes (1985), and that, as a consequence, DOT can grant Salter's applications only if the site is in a "commercial-zoned...or commercial Unzoned area[]...." Section 479.111(2), Florida Statutes (1985). By rule, a commercial zone is defined as an area "zoned commercial ...under authority of State law." Rule 14- 10.009(2)(1)(c), Florida Administrative Code.

11. The record is clear that the zoning has been comprehensive, and that it was not "enacted primarily to permit signs." Rule 14-10.0051(2)(b), Florida Administrative Code. The parties' dispute boils down to whether Santa Rosa County has zoned this site commercial. This is partly a question of fact and partly a question of interpretation or policy. Under the rule laid down in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), DOT's "non-rule policy is fair game for a party's challenge both in the public and in his private interest." 346 So.2d at 583. DOT's views enjoy no presumption of correctness in formal administrative proceedings, if not embodied in rule or precedent.

    
    

12. DOT takes the position that a zoning classification that allows residential as well as commercial land uses does not qualify as "commercial." But PBD zoning does not prohibit residential development (just as HCD zoning does not); it creates important disincentives to residential development; and it makes further commercial development along the highway almost certain. Without reaching the question whether some mixed-use classifications should be excluded from the "commercial" category the statute and rules create, it is clear that Santa Rosa County's PBD zoning, accompanied by a map contemplating commercial strip development at the site in question, does properly qualify as "commercial," at least in an area in which there is no residential development, and for which there is no master land use plan calling for residential development.

It is, accordingly, RECOMMENDED:

That DOT grant Salter's applications to erect signs back to back on the south side of U.S. Highway 98 in Santa Rosa County, 11.5 miles east of State Road 399.

DONE and ENTERED this 14th day of August, 1987, at Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4188T

Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 7, 10 and 11, have been adopted, in substance, insofar as material.

Petitioner's proposed finding of fact No. 5 has been adopted, in substance, insofar as material, except that there would be no legal requirement of a 500- foot commercial barrier.

With respect to Petitioner's proposed finding of fact No. 6, outdoor advertising signs are not specified on page 78 of Petitioner's Exhibit No. 5, but Mr. Arn testified that signs are permitted in PBD zones.

Petitioner's proposed finding of fact No. 8 has been adopted in substance except for "maybe one or two long-time residences."

With respect to petitioner's proposed finding of fact No. 9, the testimony Was that HCD would be acceptable, except in the case of residential development.

Respondent's proposed findings of fact Nos. 1, 3, 4 and 5 have been adopted in substance, insofar as material.

Respondent's proposed finding of fact No. 2 has been adopted, in substance, insofar as material, except for the third sentence. The nearest buildings, structures and activities are commercial.

COPIES FURNISHED:

Kaye N. Henderson, P.E., Secretary Florida Department of Transportation Haydon Burns Building

605 Suwannee

Tallahassee, Florida 32399-0450

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Mark Proctor, Esquire

Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell

226 South Palafox Street Post Office Box 12308 Pensacola, Florida 32581

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION

BILL SALTER OUTDOOR ADVERTISING,

Petitioner,

vs. CASE NO. 86-4188T

DEPARTMENT OF TRANSPORTATION,

Respondent.

/

FINAL ORDER

The record in this proceeding and the Recommended Order of the Hearing Officer have been reviewed. Respondent, DEPARTMENT OF TRANSPORTATION (hereinafter referred to as "Department") has filed Exceptions to Recommended Order which are considered and addressed in this order.

The Findings of Facts in the Recommended Order are adopted except as modified or supplemented herein. The Conclusions of Law in the Recommended Order are' rejected. The Hearing Officer's interpretation of the outdoor advertising law is rejected. The Department has the principal responsibility of interpreting the statutory Provisions consistent with the legislature's intent and objectives. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985). References to the transcripts will be made by the use of the abbreviation "T" followed by the appropriate page number.

FINDINGS OF FACT

1. Finding of Fact No. 5 is supplemented to reflect that the map adopted by Santa Rosa County is not binding on the subject property and a master plan could be submitted and approved which allowed residences immediately adjacent to the highway. (T: 60-61)

   
   

2. Finding of Fact No. 7 is supplemented to reflect that Mr. Culpepper's concern regarding the PBD zoning was that he was unable to determine whether the PBD area was going to be developed as commercial or residential. If, in fact, a residential area were developed then the proposed sign would be in a noncommercial area in violation of Chapter 479, Fla. Stat. (1985). (T: 110)

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Chapter 479, Fla. Stat. (1955) charges the Department with the responsibility for regulation of outdoor advertising signs adjacent to federal-aid primary highways. Signs within these areas are prohibited unless located within a commercially or industrially zoned area or within an unzoned commercial and industrial area subject to restrictions set forth in the Agreement between the Governor of the State of Florida and the United States Department of Transportation (hereinafter referred to as the "Agreement"). The Agreement was executed to carry out the purposes of the Highway Beautification Act of 1965 (Title 23 U.S.C.).

The purposes of the Agreement, which is the foundation of Chapter 479, are set forth in Fla. Admin. Code Rule 14-10.009(2) as follows:

WHEREAS, Congress has declared that outdoor advertising in areas adjacent to the Interstate and Federal-aid Primary Systems should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel, and to preserve natural beauty; and

WHEREAS, the purpose of said agreement

is to promote the reasonable, orderly, and effective display of outdoor advertising while remaining consistent with the national policy to protect the public investment in the Interstate and Federal-Aid Primary Highways, to promote the safety and recreational value of public travel and to preserve natural beauty.

The underlying rationale for allowing outdoor advertising signs in zoned areas only when the zoning is commercial or industrial is that the natural scenic beauty of the area is already disrupted (or, with certainty, planned to be disrupted) by the commercial activity, and therefore, no preservation purposes would be advanced by banning billboards in those locations.

The Department's interpretation of Chapter 479 does not equate the hybrid PBD zoning designation utilized by Santa Rosa County as being commercial or industrial zoning. Under the ordinance, permitted uses within a PBD zoned area include residential units, churches, schools, public facilities, mobile homes and commercial facilities. Until such time as a master plan is submitted and approved, the actual use of land zoned PBD is open for speculation. Should the Department grant a permit in a PBD zoned area and subsequently, the subject site become residential in nature, the sign would be in violation of Chapter 479 and should never have been permitted initially. It is only when a master plan calling for commercial development has been approved that-the department considers the area to be commercially zoned. Any other action by `the Department would be speculative and contrary to the intent of Chapter 479.

Since the proposed sign site is zoned PBD and no master plan has been submitted for the subject area, for purposes of Chapter 479 the proposed site is not located within a commercially or industrially zoned area.

ACCORDINGLY, IT IS ORDERED, that the Petitioner's application to erect a back to back sign, on the south side of U.S. Highway 98 in Santa Rosa County,

11.5 miles east of State Road 399 is DENIED.

DONE AND ENTERED this 12th day of November, 1987, at Tallahassee, Florida.

KAYE N. HENDERSON, P.E.

Secretary

Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399

Copies furnished to:

ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

MARK J. PROCTOR, ESQUIRE

226 South Palafox Street Pensacola, Florida 32581

VERNON L. WHITTIER, JR., ESQUIRE

Department of Transportation Haydon Burns Building, HS 58 605 Suwannee Street

Tallahassee, Florida 32399-045B

NOTICE OF RIGHT TO JUDICIAL REVIEW

Judicial review of agency final order may be pursued in accordance with Section 120.68, Florida Statutes, and Florida Rules of Appellate Procedure 9.030(b)(1)(c) and 9.110. To initiate an appeal, a Notice of Appeal must be filed with the Department's Clerk of Agency Proceedings, Haydon Burns Building, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, and with the appropriate District Court of Appeal within 30 days of the filing of this Final Order with the Department's Clerk of Agency Proceedings. The Notice of Appeal filed with the District Court of Appeal should be accompanied by the filing fee specified in Section 35.22(3), Florida Statutes.

Docket for Case No: 86-004188

Orders for Case No: 86-004188