STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEAR CHANNEL OUTDOOR-ATLANTIC ) COAST DIVISION, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

Case No. 06-2233

03-143

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings (DOAH), on October 4, 2006, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Paul Sexton, Esquire

Williams Wilson & Sexton, P.A.

215 South Monroe Street, Suite 600-A Tallahassee, Florida 32302

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 14 applications (application numbers 54481 through 54494) for the eight sign structures (six double-sided and two single-sided) adjacent to Interstate Route 95 and the

Florida Turnpike within the City of Port St. Lucie should be granted or denied by Respondent.

PRELIMINARY STATEMENT

On August 21, 2003, Petitioner filed a Petition for Formal Administrative Hearing with Respondent relating to the denial of

14 applications for sign structures. On December 2, 2003, Respondent issued amended notices of denied application on each of the 14 applications. Following a delay in referral, requested by Petitioner, this matter was referred to the DOAH on June 22, 2006. Following discovery and a continuance granted at the request of Respondent, the parties submitted their Joint Pre-hearing Stipulation on September 27, 2006.

At the hearing, Petitioner called one witness, Edward Williams, who testified as an expert witness, and Respondent called one witness, John Garner, manager of Production and Program Operations for Respondent. One Joint Exhibit, with

12 tabs, was offered by the parties and accepted into evidence.

The Joint Exhibit is comprised of Clear Channel’s applications (Tab 1a-1h); the Department’s Notices of Denied Application (Tab 2a-2h); an excerpt from the City of Port St. Lucie’s Comprehensive Plan (Tab 3); an excerpt from the City’s Land Development Regulations (Tab 5); a comparison of the sign sites

with parcels shown in the City’s Zoning Book (Tab 5a-5h); photos and other materials from site visits by Garner (Tab 6a-6h);

Florida Administrative Code Chapter 14-10 (Tab 7); Chapter 479, Florida Statutes (Tab 8); an excerpt from FHWA regulations,

23 C.F.R., Subpart G (Tab 9); a copy of Florida Administrative Code Rule 9J-5.003 (Tab 10); selected definitions from the American Heritage Dictionary (Tab 11); and Mr. Williams’ Curriculum Vitae (Tab 12).

The Transcript of the hearing was filed on October 18, 2006. Following the granting of a request for extension of time for the filing of post-hearing submittals, each party timely filed their Proposed Recommended Orders on November 17, 2006.

Both proposals have been given careful consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

Petitioner’s Applications

1. Petitioner’s applications are for sign structures at eight different locations within the City of Port St. Lucie (the City). Six of the structures are two-sided sign structures and two are single-sided sign structures.

2. Petitioner’s 14 applications were received by Respondent on July 1, 2003. The applications were completed in accordance with Respondent's Rules.

3. Respondent’s original Notices of Denied Application were dated and mailed out July 29, 2003, and were received by Petitioner on August 1, 2003. Petitioner filed its Petition for Formal Administrative Hearing on August 21, 2003. On

   December 2, 2003, Respondent issued amended notices of denied application on each of the 14 applications. Referral of the Petitions to the DOAH was delayed at the request of Petitioner. All Sign Sites are Located in a Commercial or Industrial Zone.

4. The sites upon which the proposed sign structures will be erected are located on parcels that have been zoned commercial or industrial. The parcels where the proposed sign structures will be erected have been designated “Utility” by the City’s Future Land Use Map and have been designated “Utility” under its Land Development Regulations. The City’s Comprehensive Plan includes the “Utility” land use as a category of Industrial land use. The City’s Land Development Regulations include the “Utility” land use category under Article IX, Industrial Districts.

5. The sign sites are designed to correspond to the parcels of land designated in the City’s Zoning Book, as follows:

   • Application No. 54487 is located at site 7-1, on Parcel 7.

   • Application Nos. 404708 & 404710 are

     located at site 35-2, on Parcel 35.

   • Application Nos. 404701 & 404702 are located at site 35-5, on Parcel 35.

   • Application Nos. 404697 & 404699 are

     located at site 35-6, on Parcel 35.

   • Application Nos. 404705 & 404706 are located at site 35-7, on Parcel 35.

   • Application No. 404698 is located at site

     41-2 on Parcel No. 41.

   • Application Nos. 404704 & 404704 are located at site 46-1, on Parcel 46.

   • Application Nos. 404707 & 404709 are

     located at site 48-1, on Parcel 48.

     
     

6. The certified statements of the City’s zoning official establish that the sign sites are each located in a commercial or industrial zone. All applications submitted by Petitioner were submitted on Respondent's forms, which have been incorporated into Respondent’s rules by reference.

7. Page 2 of 2 of each application submitted by Petitioner included a section to be completed by a City zoning official, and each provided as follows:

   To be completed by appropriate zoning official:

   
   

   Designation of parcel on the Future Land Use Map: UTILITY, WHICH IS AN INDUSTRIAL LAND USE CATEGORY.

   
   

   The primary land uses under this designation are: DEVELOPMENT ACCOMMODATING MAJOR PUBLIC AND PRIVATE UTILITIES, INCLUDING BUT NOT LIMITED TO PUBLIC AND PRIVATE STORM WATER SYSTEMS, WATER AND WASTEWATER PLANTS, ELECTRICAL SUBSTATION AND TRANSMISSION AND STORM WATER RIGHTS-OF-WAY, TELEPHONE SWITCHING STATIONS.

   Current Zoning of parcel (from Land Development Regulations): UTILITY, WHICH IS AN INDUSTRIAL LAND USE CATEGORY.

   
   

   The primary land uses under this designation are: UTILITIES FACILITIES, STORM WATER SYSTEMS, WATER AND WASTEWATER PLANTS, ELECTRICAL SUBSTATION AND TRANSMISSION FACILITIES, TELEPHONE, CABLE TELEVISION AND SIMILAR COMMUNICATIONS FACILITIES.

   
   

   Sign located within city limits?

   _X_ Yes No

   
   

   Please provide the name and telephone number of the person the Department may contact if additional information is

   required:

   
   

   I certify that the above information reflects the designation of the parcel as it is shown on the current comprehensive plan adopted pursuant to Chapter 163, Florida Statutes, and with all local governmental requirements, and that I am authorized to sign this form on behalf of the county/municipality named above:

   
   

   Cheryl S. Friend ________

   Signature of Local Government Official

   
   

   Cheryl S. Friend, Asst. Director of P&Z Printed Name and Title

   
   

   5/22/03

   Date

   
   

8. The testimony of Petitioner’s expert witness established that the proposed sign sites are each located in a commercial or industrial zone. Edward Williams was accepted in this case as an expert in planning and zoning, and he has over

28 years' experience in applying planning and zoning principles.

He has been a[0]ccepted as an expert in planning and zoning in Florida courts in over 30 counties. Williams [0]testified that he reviewed the issue of whether the parcels where signs are to be located are within commercial or industrial zones and concluded that they were[0]. [0] Williams reviewed the Future Land Use Element of the City’s Comprehensive Plan, which plainly defines "Utility" as an industrial land use. [0]The City’s zoning code also shows Utility zoning as an industrial use. [0]The City decided it was appropriate, considering all factors, to adopt a utility zoning category as a part of the industrial use classification because of the nature of the community.

Williams concluded that, based on the actual uses identified under the various land use categories designated by the City, the City correctly placed the "Utility" category under the industrial land use category.

[0]9. The Utility category under the City's Future Land Use

Element and Land Development Regulations is intended for facilities that are larger than those that serve residential areas. They are more significant than just service lines.

10. Long-established land use classification systems utilized by planners to classify land use, and which are based on the activities performed and their impact on other properties and other uses, show that the proposed sign sites are located in

commercial or industrial zones. These long-established land use classification systems have been used by local governments in Florida[0] to prepare comprehensive plans, land development regulations, and zoning maps. An evaluation of all of these classification systems shows that utilities are listed in the heavy commercial and in the industrial type categories. By their nature, by their use, and by their compatibility issues, they are commercial and industrial uses.[0][0]

[0]11. The utility uses described under the City’s Future Land Use Element and its Land Development Regulations do meet the definition of industrial uses in Florida Administrative Code Rule 9J-5.003(58). The public considers those utility uses to be industrial uses.

1. The unchallenged statements of the City’s “zoning official” and Williams’ expert testimony establish that each sign site is located on a parcel of land designated for commercial or industrial use under both the Future Land Use Map of the City’s Comprehensive Plan and the City’s Land Development Regulations adopted pursuant to Chapter 163, Florida Statutes (2003).1

2. John Garner’s contention that the uses authorized under the “Utility” designation are not commercial or industrial uses is not consistent with the land use planning principles or land use classification systems used as the basis for

   comprehensive planning in Florida. Garner has misapprehended the nature and patterns of industrial development in Florida. His description of industrial development is incorrect, to the extent that Florida's industrial uses are of a less heavy and dirty type typical of heavy industrial states and are more easily integrated with commercial and residential areas.

   Security is an issue for industrial uses in some areas of the state, and they are fenced in, but this is not common in the current development of industrial parks, where security is provided at the building, not the roads or perimeter. Though providing a general description of the nature of industrial uses in Florida that emphasized controlled access, heavy traffic, and the like, Garner acknowledged that industrial uses can be stand alone locations on a single lot.

3. Comprehensive planning in Florida is accomplished under Chapter 163, Florida Statutes. The general purpose of the future land use element of a comprehensive plan is to reflect the local government’s long-range vision of how a community should develop and where certain uses are going to develop. From a planning standpoint, it is inappropriate to direct Respondent to review comprehensive plans and land development regulations to identify permitted uses on a parcel, but ignore technical planning and zoning principles in favor of lay definitions. Respondent works closely with the Department of

   Community Affairs and should be consistent in how it applies planning principles.

   Respondent’s Uniform Interpretation of Subsection 479.01(3), Florida Statutes

4. According to Garner, Respondent interprets the terms “commercial or industrial use” found in Subsection 479.01(3), Florida Statutes, as those words are “commonly understood,” rather than as applied in land development regulations. Garner uses the layman’s everyday interpretation of the term "industrial" when applying the term. Respondent has a uniform interpretation of Subsection 479.01(3), Florida Statutes, under which it utilizes an everyday lay definition of commercial or industrial zone, rather than a technical planning and zoning approach. Garner’s opinion that the sign sites were not designated as industrial uses was based on this uniform interpretation. That interpretation is not reflected in Florida Administrative Code Chapter 14-10.

   Commercial or Industrial Zoning Not Enacted Primarily to Permit

   
   

   Signs

   
   

5. The testimony of Petitioner’s expert witness is persuasive that the commercial or industrial zoning of the proposed sign sites was not enacted primarily to permit signs. According to Garner, Florida Administrative Code Rule 14- 10.0052(2)(a) is not triggered if commercial or industrial uses

   are the primary permitted uses. There is no problem under that portion of the rule if the allowed uses for a parcel are commercial or industrial in nature. Similarly, Florida Administrative Code Rule 14-10.0052(2)(b) is not triggered if commercial or industrial uses are the primary permitted uses.

6. The industrial uses authorized under the City’s Future Land Use Map and its Land Development Regulations are primary permitted uses and not incidental to other primary uses or permitted only by variance or special exception. Such uses are expressly permitted under the City’s Comprehensive Plan and Land Development Regulations.

7. As applied by Respondent, in order for zoning of a parcel to run afoul of Florida Administrative Code Rule 14- 10.0052(2)(c), both factors in that portion of the rule must exist; that is, both the physical dimensions or other attributes of the affected parcel would not reasonably accommodate traditional commercial or industrial uses and the area surrounding the affected parcel is not predominantly commercial or industrial.

8. Williams e[0]valuated whether the dimensions or other attributes of the parcels would accommodate traditional industrial uses and [0]concluded that traditional commercial and industrial uses could be accommodated on the parcels. His conclusions are persuasive. There are many possible commercial

   or industrial uses that can be accommodated on all of the parcels at issue in this case, including warehousing, equipment storage yards, material storage yards, and small manufacturing facilities. The utility uses designated for these parcels are one of the types of industrial uses that could be accommodated on these parcels. However, regardless of that fact, a full range of industrial uses, including warehousing, manufacturing facilities, and storage facilities, can be accommodated on these parcels.

9. The sizes or configurations of these parcels do not preclude their development for commercial and industrial uses in the traditional sense. Lots in the 50 to 60-foot range can accommodate traditional commercial and industrial uses, including regular warehouses, fabrication yards, contractor yards, equipment yards, and material yards. A review of the City's Land Development Regulations shows that there are no restrictions that would prevent industrial uses on these parcels.

10. It is not unusual to see industrial development on parcels the size and shape of those on which the signs are proposed to be located. Many of these parcels are actually quite large in size. They are oddly configured as a result of platting and construction of roads, but not so oddly configured

    that they couldn't be developed for commercial or industrial uses.

11. Garner offered the opinion that none of the parcels upon which the sign sites were located would accommodate traditional industrial uses. However, Garner has had no direct experience in the ownership, proposal, permitting, development or operation of any commercial or industrial development in Florida.

12. Garner was of the opinion that three of the parcels had size or shape problems, but admitted that the other parcels were large enough to physically accommodate industrial development. Garner admitted that essentially all of the parcels could be fenced for security and access control.

13. Ultimately, the principal basis for Garner’s position that the parcels would not accommodate traditional industrial development was that it is not “appropriate” for industrial uses to obtain their access through residential streets. He testified that all but one parcel (containing Site No. 48-1) currently obtains access exclusively through residential streets. However, Garner did not know how much industrial development in Florida actually uses access through residential streets and was not personally familiar with actions of local zoning officials on requests by industrial developers to have access through residential streets.

14. In order to determine whether these parcels can accommodate traditional commercial or industrial uses, it is necessary to consider the development history of Port St. Lucie, and platting by General Development Corporation, in the 1960's, that restricted the size and location of lots within the City. There are differences in typical commercial and industrial development in a rural versus urban/city setting. In a city, 2,000 square-foot lots are developable and are highly desirable. Commercial and industrial development can be found on lots as small as 30 feet wide, due to past platting, but commercial or industrial development on 50-foot lots is fairly standard.

15. A review of the City’s Future Land Use Map shows that many existing commercial and industrial areas in the City have their access through residential areas. Preexisting plats prohibit access in any other way. [0]The reason that the City does not restrict access for industrial uses through residential areas is that the prior plats by General Development limited how the community could grow.

16. Garner was not aware of any restriction under City codes that would restrict industrial development from using residential streets for access. He was not aware of any restriction that would prevent access for an industrial use from using residential streets, or whether the City has any problem

    with a developer bringing industrial traffic through a residential area.

17. In fact, there are no restrictions under the City’s Land Development Regulations against industrial uses having their access through residential areas. The reason that there are no such restrictions is revealed through the City’s Future Land Use Element. The City’s Future Land Use Element shows that the City is trying to increase its commercial/industrial acreage, provide jobs and employment opportunities and deal with the plats and roads its been given. The General Development plat and the extension of the interstate and turnpike system have seriously constrained how the community can develop. The City’s Future Land Use Element recognizes that there is insufficient commercial and industrial development in the City and attempts to increase that through the planning process.

18. The commercial or industrial zoning of the parcels was not enacted primarily to permit signs.

    CONCLUSIONS OF LAW

    
    

    Standing, Jurisdiction, and Parties

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties hereto, pursuant to the provisions of Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).

20. Petitioner’s applications are governed by the provisions of Chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10. The issues in this case are whether Petitioner’s applications comply with the requirements of Section 479.111, Florida Statutes, and Florida Administrative Code Rule 14-10.0052(2).

21. With the exception of compliance with Section 479.111, Florida Statutes, and Florida Administrative Code Rule 14- 10.0052(2), which are the contested issues in this case, the applications submitted by Petitioner comply with the requirements of Chapter 479, Florida Statutes, and Florida Administrative Code Chapter 14-10.

    Sign Sites Within Commercial or Industrial Zone

    
    

22. Section 479.111, Florida Statutes, provides that signs in commercial-zoned and industrial-zoned areas or commercial- unzoned and industrial-unzoned areas may be permitted within certain areas along the interstate and federal-aid primary highway system.

23. Section 479.111, Florida Statutes, entitled “Specified signs allowed within controlled portions of the interstate and federal-aid primary highway system,” provides:

    Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal-aid primary highway system as set forth in s. 479.11(1) and (2):

    1. Directional or other official signs and notices which conform to 23 C.F.R. ss. 750.151-750.155.

       
       

    2. Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas and within 660 feet of the nearest edge of the right-of- way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation.

       
       

    3. Signs for which permits are not required under s. 479.16.

       
       

24. As the proposed signs are neither directional or other official signs, and the record does not show them to be exempt, the relevant language of the above statute is found in subsection (2).

25. Subsection 479.01(3), Florida Statutes, defines "commercial or industrial zone" as a parcel of land designated for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to chapter 163.

26. Subsection 479.01(3), Florida Statutes, provides:

    
    

    “Commercial or industrial zone" means a parcel of land designated for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to chapter 163. If a parcel is located in an area designated for multiple uses on the future land use map of a comprehensive plan and the land development regulations do not clearly designate that parcel for a specific use, the area will be considered an unzoned commercial or

    industrial area if it meets the criteria of subsection (23).

    
    

27. Based on the facts established above, it is determined that the sites upon which the proposed sign structures will be erected are all located in commercial or industrial zoned areas within the meaning of Subsection 479.01(3) and Section 479.111, Florida Statutes. The unchallenged and uncontroverted statements of the City’s “zoning official” and Williams’ expert testimony establish that each sign site is located on a parcel of land designated for commercial or industrial use under both the Future Land Use Map of the City’s Comprehensive Plan and the City’s Land Use Development Regulations adopted pursuant to Chapter 163, Florida Statutes.

    The Department’s Unadopted Rule

    
    

28. The facts establish that Respondent’s decision in this case relies on an interpretation of the terms found in Subsection 479.01(3), Florida Statutes, as those words are “commonly understood,” rather than as they are understood under the planning and zoning concepts used for comprehensive planning in Florida. Respondent has a uniform interpretation of Subsection 479.01(3), Florida Statutes, under which it utilizes an everyday lay definition of commercial or industrial zone, rather than a technical planning and zoning approach. That interpretation is not reflected in Florida Administrative Code

    Chapter 14-10. This uniform interpretation of Subsection 479.01(3), Florida Statutes, meets the definition of a “rule” within the meaning of Subsection 120.52(15), Florida Statutes, in that it is a statement of general applicability that interprets law.

29. Subsection 120.52(15), Florida Statutes, defines the term “rule” as meaning:

    [E]ach agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statutes or by an existing rule. The term also includes the amendment or repeal of a rule.

    
    

30. Because this interpretation is not reflected in the provisions of any rule of Respondent, it is an “unadopted rule” within the meaning of Subsection 120.57(1)(e), Florida Statutes.

31. Subsection 120.57(1)(e), Florida Statutes, states:

    
    

    (e)1. Any agency action that determines the substantial interests of a party and that is based on an unadopted rule is subject to de novo review by an administrative law judge.

    
    

    1. The agency action shall not be presumed valid or invalid. The agency must demonstrate that the unadopted rule:

       
       

       1. Is within the powers, functions, and duties delegated by the Legislature or, if the agency is operating pursuant to authority derived from the State Constitution, is within that authority;

       2. Does not enlarge, modify, or contravene the specific provisions of law implemented;

          
          

       3. Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency;

          
          

       4. Is not arbitrary or capricious. A rule is arbitrary if it is not supported by logic or the necessary facts; a rule is capricious if it is adopted without thought or reason or is irrational;

          
          

       5. Is not being applied to the substantially affected party without due notice; and

          
          

       6. Does not impose excessive regulatory costs on the regulated person, county, or city.

          
          

    2. The recommended and final orders in any proceeding shall be governed by the provisions of paragraphs (k) and (l), except that the administrative law judge's determination regarding the unadopted rule shall not be rejected by the agency unless the agency first determines from a review of the complete record, and states with particularity in the order, that such determination is clearly erroneous or does not comply with essential requirements of law. In any proceeding for review under s. 120.68, if the court finds that the agency's rejection of the determination regarding the unadopted rule does not comport with the provisions of this subparagraph, the agency action shall be set aside and the court shall award to the prevailing party the reasonable costs and a reasonable attorney's fee for the initial proceeding and the proceeding for review.

    
    

32. The burden rests on Respondent to demonstrate, among other things, that the unadopted rule does not enlarge, modify,

    or contravene the specific provisions of law implemented; is not vague; establishes adequate standards for agency decisions; or does not vest unbridled discretion in the agency. Respondent has not met its burden.

33. Respondent’s interpretation of Subsection 479.01(3), Florida Statutes, which applies an everyday layman’s or “common” understanding to the statutory language “designated for commercial or industrial use,” is inconsistent both with the express language of the statute, with the definition of “commercial or industrial zones” in 23 C.F.R. Section 750.703(a), and with the Federal acceptance of State zoning, reflected in 23 C.F.R. Section 750.708.

34. In Subsection 479.01(3), Florida Statutes, the Florida Legislature has directed Respondent to look directly to land use designations under the local government comprehensive plans and land use development regulations adopted pursuant to

    Chapter 163, Florida Statutes. The highly technical and specialized process of designating land uses under comprehensive plans and land use development regulations relies on long- accepted planning and zoning principles, not lay interpretations.

35. Chapter 163, Florida Statutes, has been described as “set[ting] forth a comprehensive and complex process for the adoption and amendment of comprehensive plans.” Seminole County

    v. City of Winter Springs, 935 So. 2d 521, 527 (Fla. 5th DCA 2006). Some aspects of the analysis are so complex that the Department of Community Affairs can’t even adopt rules addressing them. See Florida East Coast Industries Inc. v. State, Dept. of Community Affairs, 677 So. 2d 357, 361 (Fla. 1st DCA 1996). See also Home Builders & Contractors Assoc. v.

    Department of Community Affairs, 585 So. 2d 965, 969 (Fla. 1st DCA 1991).

36. Florida Administrative Code Chapter 9J-5 illustrates the highly technical and complex nature of comprehensive planning in Florida. Florida Administrative Code Rule 9J-5.003 sets forth 142 definitions, some very technical in nature, reflecting the complex and highly specialized process of comprehensive planning in Florida. Florida Administrative Code Rule 9J-5.005 alone sets forth numerous technical requirements for the formulation of a comprehensive plan.

37. It makes no sense for the Legislature, having directed Respondent to look to the land use designations resulting from this complex technical process, to also intend that Respondent use a layman’s approach to those land uses, and ignore the planning and zoning principles that underlay those very designations. To the contrary, it would be inconsistent with the legislative charge under Subsection 479.01(3), Florida Statutes, to do so.

38. Similarly, 23 C.F.R. Section 750.703(a) defines “commercial and industrial zones” as "districts established by the zoning authorities as being most appropriate for commerce, industry or trade, no matter how labeled.” 23 C.F.R. Section 750.708(a) recites Congress’ acceptance of state zoning by reciting, “'[t]he States shall have full authority under their own zoning laws to zones areas for commercial or industrial purposes, and the actions of the States in this regard will be accepted for the purposes of this Act.'” Twenty-three C.F.R. Section 750.708(b) requires that zoning action be taken pursuant to and in accordance with the State’s enabling statute. The use of a layman’s understanding of commercial or industrial uses, in lieu of the planning and zoning principles used to designate such uses, defies this mandate of the Federal regulations.

39. Respondent has failed to establish that its interpretation of Subsection 479.01(3), Florida Statutes, does not contravene that statute. The most appropriate and logical interpretation of that statute looks to accepted planning and zoning concepts when evaluating whether a parcel of land has been designated for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to Chapter 163, Florida Statutes. Similarly, Respondent has not established that its “common understanding” or "layman’s understanding” does not

    result in a vague interpretation of the statute, as one man’s view of commercial or industrial use is not necessarily another’s, and the record does not show that there is a unanimity of agreement among the general population as to what those terms mean. At best, the record provides one man’s belief as to what that agreement is, but without evidence to show that belief to be justified in fact.

    Commercial or Industrial Zoning Not Enacted Primarily to Permit Signs

40. Subsection 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 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.

    
    

41. Respondent adopted Florida Administrative Code

    
    

    Rule 14-10.0052, pursuant to the foregoing statutory provisions. That rule, entitled “Zoning Enacted Primarily to Permit Outdoor Advertising Signs,” provides:

    1. “Comprehensively Enacted Zoning” means ordinances or other laws adopted by the county or municipal government pertaining to and designating the currently

       allowable uses of property within its jurisdiction, pursuant to and consistent with a comprehensive plan enacted in accordance with Chapter 163, Florida Statutes.

    2. Even if comprehensively enacted, the following criteria, including public records related thereto, shall be considered in determining whether such zoning is enacted primarily to permit signs:

       1. The land use or zoning designation provides for limited commercial or industrial activity only as an incident to other primary land uses.

          
          

       2. The commercial and industrial activities, separately or together, are permitted only by variance or special exceptions.

       3. The physical dimensions or other attributes of the affected parcel would not reasonably accommodate traditional commercial or industrial uses and the area surrounding the affected parcel is not predominantly commercial or industrial.

          
          

42. As a rule adopted pursuant to Section 120.54, Florida Statutes, to implement Subsection 479.07(10), Florida Statutes, Florida Administrative Code Rule 14-10.0052 is binding on Respondent. Parrot Heads v. Dep’t. of Bus. Reg., 741 So. 2d 1231 (Fla. 5th DCA 1999); Marrero v. Dep’t. of Professional Reg., 622 So. 2d 1109, 1112 (Fla. 1st DCA 1993).

43. The parties have stipulated that the zoning of the parcels upon which the proposed sign structures will be erected was comprehensively enacted zoning within the meaning of Florida Administrative Code Rule 14-10.0052(1). The zoning of those

    parcels will therefore be recognized as commercial or industrial zoning for purposes of Subsections 479.01(3) and 479.111(2), Florida Statutes, and permits may be issued for signs in such areas, unless the zoning was enacted primarily to permit signs.

44. The facts establish that the zoning of the parcels upon which the proposed sign structures will be erected was not enacted primarily to permit signs. The criteria of Florida Administrative Code Rule 14-10.0052(2)(a) and (2)(b) are not triggered, because the commercial or industrial activity authorized on these parcels are permitted uses under the City’s Comprehensive Plan and Land Development Regulations. Accordingly, the land use and zoning of the parcels does not provide for limited commercial or industrial activity only as an incident to other primary land uses and are not permitted only by variance or special exceptions.

45. As stipulated by the parties and as testified to by Garner, when applying Florida Administrative Code Rule 14- 10.0052(2)(c), zoning is enacted primarily to permit signs only when both of the stated conditions exist; that is, both the physical dimensions or other attributes of the affected parcel would not reasonably accommodate traditional commercial or industrial uses and the area surrounding the affected parcel is not predominantly commercial or industrial.

46. The facts establish that one of the two conditions of Florida Administrative Code Rule 14-10.0052(2)(c) does not exist, in that the physical dimensions or other attributes of the affected parcels would reasonably accommodate traditional commercial or industrial uses. Therefore, the criteria of Florida Administrative Code Rule 14-10.0052(2)(c) are not triggered and that portion of the rule will not support a determination that the zoning of the parcels upon which the proposed sign structures will be erected was enacted primarily to permit signs.

47. None of the criteria of Florida Administrative Code Rule 14-10.0052 having been triggered, the zoning of the parcels where the signs are to be erected was not enacted primarily to permit signs and, thus, is recognized as commercial or industrial zoning for purposes of Subsections 479.07(10) and 479.111(2), Florida Statutes, and permits may be issued for signs in such areas.

48. Based on the foregoing, it is concluded that Petitioner’s applications comply with the requirements of Section 479.111, Florida Statutes, and Florida Administrative Code Rule 14-10.0052(2) and should be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that Respondent enter a final order granting the 14 applications (application numbers 54481 through 54494) for outdoor advertising sign permits submitted by Petitioner.

DONE AND ENTERED this 3rd day of January, 2007, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 3rd day of January, 2007.

ENDNOTE

1/ All references to Florida Statutes are to Florida Statutes (2003), unless otherwise indicated.

COPIES FURNISHED:

Robert M. Burdick, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Paul Sexton, Esquire

Williams Wilson & Sexton, P.A.

215 South Monroe Street, Suite 600-A Tallahassee, Florida 32302

James C. Myers, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Denver Stutler, Secretary Department of Transportation Haydon Burns Building

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: 06-002233

Orders for Case No: 06-002233