STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLYNNSTONE OUTDOOR ADVERTISING, INC.,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent.

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) Case No. 02-2545

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RECOMMENDED ORDER

A formal hearing was held pursuant to notice in the above- styled case by Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, on August 20, 2002, in Ocala, Florida.

APPEARANCES

For Petitioner: Frank Flynn, III, pro se

Flynnstone Outdoor Advertising 6605 Spicewood Lane

Tallahassee, Florida 32312

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

Whether the Florida Department of Transportation properly denied sign permits to the Petitioner on the basis that the commercial zoning on the property was not comprehensive zoning

within the scope of that phrase as it is used under the applicable federal sign regulations and on the basis that the parcel was not of sufficient size to support commercial activities other than a sign.

PRELIMINARY STATEMENT

On April 30, 2002, the State of Florida, Department of Transportation (Department) issued a Notice of Denied Application with regard to Applications for Outdoor Sign Permit numbers 53758 and 53579. The Notice of Denied Application advised the Petitioner that these application were not approved for the following reasons:

Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes. The parcel on which you want to place a sign is not of sufficient size to support commercial activities other than an outdoor advertising sign.

By letter dated May 15, 2002, the Petitioner filed a Petition for Administrative Hearing on the Department's denial of the subject application. The Department referred this matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge and the conduct of a formal hearing.

At the hearing both the Petitioner and Respondent presented testimony and introduced documentary evidence. The Petitioner's president testified on behalf of the Petitioner and the

Petitioner also presented the testimony of James A. Stiles and Roosevelt Morris. The Department presented the testimony of John Garner. The Petitioner's exhibits one through five were received in evidence. The Respondent's exhibits one and two were received in evidence and judicial notice was taken relative to Section 479.02, Florida Statutes, and relative to Title 23, Code of Federal Regulations Section 750.708.

A Transcript of the proceeding was filed with the Division of Administrative Hearings on September 5, 2002. Both Petitioner and Respondent timely filed Proposed Recommended Orders containing Findings of Facts and Conclusions of Law that were read and considered.

FINDINGS OF FACT

1. The Petitioner Flynnstone Outdoor Advertising Inc., is a Florida Corporation in Tallahassee, Florida.

2. The Department is the agency charged with the responsibility to administer and enforce the provisions of Chapter 479, Florida Statutes, and Title 23, United States Code of Federal Regulations concerning the signs on the federal highway system. See Section 479.02, Florida Statutes.

3. The Petitioner's Applications for Outdoor Sign Permit numbers 53758 and 53579, were duly received by the Department and were duly denied on April 30, 2002.

4. The subject sign permit applications sought authority to located a v-shaped, bi-directional sign on a three-foot diameter post twenty-two fee above the ground with overall dimensions of eighteen feet in width and 30 feet in length.

5. The location sought for the sign was on a .33 acre parcel of land approximately 3,128 feet east of Brickyard Road in Gadsden County, Florida. The parcel of land is within the city limits of the City of Midway, Florida. The parcel is irregular in shape and has 75 feet of frontage along the CSX railroad right-of-way adjacent and parallel to U.S. 90 West on the east side, a south side dimension of 234.32 feet, a western dimension of 200 feet and an overall area of approximately 14,838.32 square feet. The parcel has a viable access road onto

   U.S. Highway 90.

   
   

6. The Comprehensive Plan for the City of Midway designates all of the property along both sides of U.S. Highway

   90 West from the subject property to the Interstate Highway 10 interchange, approximately 3/4 of a mile to the north of the site.

7. The City of Midway's city building inspector, Roosevelt Morris, testified. The area in the vicinity of the subject parcel was originally annexed into the City of Midway as agricultural land. Once annexed, the subject parcel was zoned

   commercial and the adjacent 9.9 acres to the north was re-zoned high-density residential.

8. The area along U.S. Highway 90 North of the high- density residential parcel all the way to Brickyard Road near the Interstate 10 interchange is zoned commercial. On the east side of U.S. Highway 90 directly across from the subject property, the land is zoned commercial and is used for a large commercial modular home sales facility. North of the mobile home center on the East side of U.S. Highway 90 West, a large commercial car/truck travel is located.

9. City of Midway building inspector Roosevelt Morris testified regarding the zoning plans of the City of Midway. The plan is to have commercial zoning for the entire area along U.S. Highway 90, from the subject parcel north to Interstate 10.

10. The Petitioner leases the subject parcel with an option to purchase it from the owner. The owner/developer of the subject parcel and the adjacent multi-family residential parcel, James A. Stiles, testified. These parcels were originally purchased and were zoned as agricultural. The adjacent 9.9 acre parcels were re-zoned multi-family so that a prospective purchaser, Tampa-based Citizens Realty Corporation, could put approximately one hundred government-subsidized residential apartment units on the parcel. The subject .33 acre parcel was re-zoned commercial in order to place a commercial

    Laundromat, convenience store or mini-storage facility adjacent to the apartments to serve the residents of the complex. The federal grant application for the multi-family project was denied, and there is litigation pending regarding the development. If the development fails, the owner will re-zone the parcel commercial.

11. City of Midway building inspector Roosevelt Morris testified regarding the City of Midway Land Development Code. It provides that the minimum lot size for a commercial lot is

    75 feet by 100 feet in depth for a total square footage of 7,500 square feet. According to those standards, the subject parcel meets the minimum requirements.

12. The applicable state and federal authorities require that for a parcel to be eligible for a sign permit, among other requirements, it must be zoned commercial or industrial as a part of comprehensive zoning. More specifically, Code of Federal Regulations, Title 23 "Highways" provides as follows in Section 750.708 "Acceptance of State Zoning":

    1. 23 U.S.C. 131 (D) provide that signs 'may be erected and maintained within 660 feet of the nearest edge of the right-of-way within areas . . . which are zoned industrial or commercial under authority State law.' Section 131 (d) further provides, 'The States shall have full authority under their own zoning laws to zone areas for commercial or industrial

       purposes, and the actions of the States in this regard will be accepted for the purpose of this act.'

       
       

    2. State and local zoning actions must be taken pursuant to the State's zoning, enabling statute or constitutional authority and in accordance therewith. Action which is not a part of comprehensive zoning and is created primarily to permit outdoor advertising structures, is not recognized as zoning for outdoor advertising control purposes.

       
       

13. The Department does not dispute that the first part of the zoning test is met. See T.9, Line 20. The future land use in this area is commercial.

14. The Department denied the applications because the zoning, agricultural, was changed to commercial on this parcel (1/3 of an acre) upon which the sign is to be placed.

15. The future land use would be industrial and commercial under the comprehensive development plan, and the city has opted out of industrial.

16. Mr. Morris testified regarding the housing project.

    
    

    It had been annexed into the City of Midway and had to be zoned agricultural when it was brought into the city. Once in the city, it was re-zoned commercial and high-density residential. The plan for future development calls for the area along Highway

    90 to be commercial.

    
    

17. All of the property in this area would be re-zoned commercial under the future land use plan. The property on the

    other side of the highway is commercial and being developed as such.

18. The subject parcel and the ten-acre residential tract are separated from the highway by an active railroad track. The track will also impact the future land use of the ten-acre residential parcel, which the owners indicate they will seek to re-zone.

19. Roosevelt Morris, the local zoning and building official, testified that the small parcel in question meets the requirements for a commercial lot.

20. The only current access to the subject parcel is through a larger parcel. There is no indication of utilities on the subject parcel. However, there is nothing to preclude access or utilities being provided to the parcel.

21. The Department points to the required set backs of 20 feet from each boundary as the strongest argument for concluding this parcel was zoned to accommodate the sign, and not other development. It was the Department's view the setback precluded any development.

22. If there had been a commercial activity on the property, the Department's administrator would have still denied the application.

23. The administrator did not consider commercial uses immediately across the highway because it was "separated" by the rights-of-way from the highway and railroad.

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case.

25. The Petitioner applied for an outdoor advertising permit from the Department of Transportation. It was denied by the Department of Transportation because the current zoning was changed to commercial on a very small parcel.

26. The Petitioner presented the testimony of the property owner and the city building official regarding the re-zoning. The official established that the parcel, in question, is zoned in accordance with the comprehensive plan.

27. The Petitioner introduced facts supportive of its position. The area across the highway is zoned commercial is being developed as such.1

28. The developer's plan to use this parcel for a small strip mall to serve an isolated residential development is not strange or unique. Further, the existing road access is no indication of how roads would be constructed for this area with development. Suffice it to say, the development of the ten-acre tract as residential may never occur now that funding has been lost.

29. Section 479.07(10), Florida Statutes, provides as follows:

    (10) Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for the purposes of this provision, and permits shall not be issued for signs in such areas. The department shall adopt rules within 180 days after this act takes effect which shall provide criteria to determine whether such zoning is comprehensively enacted or enacted primarily to permit signs.

    
    

30. This statute was last amended in 1999. The Department cites no rule for criteria in determining whether the zoning in question is comprehensively enacted or enacted primarily to permit signs.

31. The Department's administrator testified regarding his decision. He did not mention any criteria adopted by rule to determine if the zoning was comprehensively adopted or enacted primarily to permit signs.

32. It was clear from his testimony that he did not consider that the city's comprehensive plan called for this area to be zoned commercial and that the zoning across the highway was commercial was persuasive. It was clearly his personal opinion that the tract in question could not be developed because the set back lines were determinative together with the

    adjoining multi-family zoning. He did not cite any rules adopted by the Department as authority for either position.

33. The only cite in the Department's post-hearing pleadings was to the Code of Federal Regulations, 23 CFR 750.708. The cited provision does not provide any criteria for determining whether such zoning is comprehensively enacted or enacted primarily to permit signs.

34. Therefore, there are no rules to guide the consideration of the facts. The statutory requirement to adopt rules is important because the rule adoption process requires public input and public consent prior to adoption, as well as an opportunity to challenge the proposed rules.

35. By failing to adopt rules, the Department is attempting to make rules through discrete individual decisions in cases such as the one at bar. This is contrary to the legislative directive. The decision-maker is not clothed with a presumption of correctness. The Department has ignored the fact that the local jurisdiction has enacted a comprehensive plan, and that the subject tract and much of the adjoining property is zoned commercial. It buttresses its decision on the fact that an adjoining tract is zoned multi-family residential contrary to the comprehensive plan, and the administrator's personal determination that a commercial building cannot be built on the property due to set-back requirements. Both of these

    determinations are highly personal applications of the statutory concepts.

36. The Department's view of this should not prevail merely because it is entitled to some weight and the burden of persuasion is on the Petitioner. The Petitioner has made a prima facie showing for granting the permit on the basis of the zoning. Because the Department has failed to adopt rules, the Department must show, at this point, that the zoning is not comprehensive, which it cannot; or show that it was primarily for the purpose of permitting outdoor advertising signs, which

it has not done.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

The Department should grant the pending permits for the outdoor advertising signs.

DONE AND ENTERED this 24th day of October, 2002, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 2002.

ENDNOTE

1/ Contrary to the Department's position, the zoning across the highway is contiguous if not connected, and indicative of the area being developed consistent with the plan which in turn tends to prove the zoning of the subject parcel was not spot zoning.

COPIES FURNISHED:

Frank Flynn, III, President Flynnstone Outdoor Advertising 6605 Spicewood Lane

Tallahassee, Florida 32312

Robert M. Burdick, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

James C. Myers, Agency Clerk Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 02-002545

Orders for Case No: 02-002545