STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

QUALITY SIGNS OF PORT ST. LUCIE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7787T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on March 15, 1991, in Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Chester B. Griffin, Esquire

Neill, Griffin, Jeffries & Lloyd, Chartered Post Office Box 1270

Fort Pierce, Florida 34954

For Respondent: Vernon Whittier, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner's application for a sign permit should be denied.

PRELIMINARY STATEMENT

Petitioner requested a formal hearing of Respondent's denial of Petitioner's application for a sign permit, and Respondent referred the matter to the Division of Administrative Hearings for assignment of a hearing officer on December 7, 1990. The matter was assigned to Hearing Officer Menton on December 14, 1990, scheduled for formal hearing on March 15, 1991, and transferred to the undersigned prior to the date of the formal hearing.

At the formal hearing, Petitioner testified in his own behalf and presented two exhibits for admission in evidence. Petitioner's exhibits were admitted in evidence pursuant to the stipulation of the parties. Respondent presented the testimony of one witness and offered three exhibits for admission in evidence.

Respondent's exhibits were admitted in evidence pursuant to the stipulation of the parties.

A transcript of the record of the formal hearing was not requested by either party. Proposed findings of fact and conclusions of law were due no later than March 25, 1991. Neither party has filed proposed findings of fact and conclusions of law as of the date of this Recommended Order.

FINDINGS OF FACT

1. Petitioner owns land adjacent to, west of, and within 600 feet of Interstate 95 in Port St. Lucie County, Florida. The land comprises approximately 17.7 acres and is not within the city limits of a municipality. The land is designated commercial in the Comprehensive Plan adopted by the County.

   
   

2. The zoning designation was changed on March 27, 1990, for one half acre of the land approximately 2000 feet north of Okeechobee Road. The zoning designation for that half acre was changed from Commercial to Commercial General pursuant to Resolution 90-80. The purpose of the change in zoning designation, as stated in Petitioner's Petition for Change to the Official Zoning Atlas of St. Lucie County, was to permit the construction of an advertising billboard.

   
   

3. The change in zoning designation obtained by Petitioner was necessary to permit the location of a sign on Petitioner's half acre. No ordinance or other local regulation defines the uses permitted for land designated in the County's Comprehensive Plan as Commercial. 1/ The Chairman of the Board of County Commissioners for St. Lucie County explained in a letter dated February 6, 1991, that the zoning designation of Commercial allows and encourages the application of the Commercial General zoning designation. The letter did not state that a change in zoning designation from Commercial to Commercial General was unnecessary in order to permit the location of a sign on Petitioner's half acre. Petitioner elected to apply to the County for a change in zoning designation from Commercial to Commercial General, and the County approved Petitioner's application.

   
   

4. Petitioner applied for a sign permit on July 3, 1990. Respondent denied Petitioner's Application For Outdoor Advertising Sign Permit on July 26, 1990, on the ground that the change in zoning designation for one half acre of the land was enacted specifically for billboards in violation of Section 479.07(10), Florida Statutes. 2/ The Chairman of the Board of County Commissioners determined in his letter dated February 6, 1991, that Respondent's determination of "spot zoning" is invalid.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

6. Petitioner has the burden of proof in this proceeding. Petitioner is the party attempting to show the affirmative of the issue in this proceeding. Petitioner must show by a preponderance of the evidence that Respondent's denial of its application for a sign permit was improper.

   
   

7. Petitioner failed to satisfy its burden of proof. Section 479.07(10), Florida Statutes, prohibits the issuance of sign permits for signs located in areas zoned primarily to permit signs ("spot zoning"). Petitioner presented no competent and substantial evidence that the zoning change for one half acre of the land did not constitute "spot zoning".

8. Section 479.11(1), Florida Statutes, prohibits any sign within 660 feet of the nearest edge of the right-of-way of any portion of the interstate highway system except as provided in either Sections 479.111 or 479.16. Section 479.111(2) authorizes signs in commercial-zoned areas. Section 479.07(10), however, prohibits local zoning commercial and industrial designations from being recognized by Respondent as commercial or industrial zoning if the local zoning is either not comprehensively enacted or is enacted primarily to permit signs. Cf. Best Western Tivoli Inn v. Department of Transportation, 435 So.2d

   321 (Fla. 1st DCA 1983). The sign contemplated in Petitioner's application to Respondent does not qualify for any exception in Section 479.16.

   
   

9. A determination of whether the change in zoning designation for Petitioner's half acre constitutes "spot zoning" within the meaning of Section 479.07(10), Florida Statutes, is solely within the province of Respondent and is based upon the facts and circumstances evidenced at the formal hearing. Any determination by the local zoning agency that the change in zoning did not constitute "spot zoning", therefore, is immaterial. Petitioner presented no competent and substantial evidence to support a finding that Respondent's determination of "spot zoning" is an impermissible determination.

   
   

10. Respondent's determination of "spot zoning" does not conflict with Sections 479.15 and 479.155, Florida Statutes. Those sections contain provisions for the coordination of state and local regulations and ordinances. Petitioner presented no competent and substantial evidence that Respondent's determination of "spot zoning" violated either statutory section.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for a sign permit be DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of April, 1991.

DANIEL MANRY

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 Administrative Hearings this 5th day of April, 1991.

ENDNOTES

1/ No evidence of any local ordinances or regulations defining the zoning designation of Commercial was presented by Petitioner.

2/ All statutory references are to Florida Statutes (1989) as amended by Florida Statutes (Supp. 1990).

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire General Counsel

Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0458

Vernon Whittier, Jr., Esquire Department of Transportation 605 Suwannee St.

Tallahassee, Florida 32399-0458

Chester B. Griffin, Esquire Neill Griffin Jeffries

& Lloyd, Chartered

311 South Second Street Fort Pierce, Florida 34950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. 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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007787

Orders for Case No: 90-007787