Whether the subject parcel of land can be zoned by the Leon County Commission so that outdoor advertising structures can be permitted by the Florida Department of Transportation and erected within 660 feet of an interstate highway.
Respondent, Jack M. Wainwright conditionally leased 1.16 acres of land, approximately 113.88 feet on the south right-of-way line of Interstate 10 in Leon County, Florida. The effectiveness of the lease was on the condition that the land be rezoned by the Leon County Board of County Commissioners. If the parcel were so rezoned the lessee promised to pay the lessor $250.00 per year for each side of a billboard to be erected on the parcel and further, the lessee would pay to the lessor any increase in taxes attributable to rezoning. The leasing and application for rezoning was primarily for the purpose of placing outdoor advertising on the property to be rezoned along the interstate highway.
The lessor owns a small automotive facility which he had been operating for years on his agricultural-zoned five (5) acres. The rezoning encompassed the portion of his acreage farthest from the highway. He hopes to gain more business from the rezoning effort although there is no access to Interstate-l0 less than a mile from his property. The leased land surrounded by land zoned agriculture-2 as is the remainder of the lessor's acreage. The closest business by way of the Interstate is a truck stop about a mile west of the property on State Road 59 near an interchange on 1-10. The interstate is mostly through agricultural lands in this area as well as through most of Leon County, Florida.
The application for rezoning was denied upon the first application to the Leon County Board of County Commissioners. Upon second application to the Board the property was rezoned from "agriculture-2" to "rural-commercial" by ordinance 77-26. Neither the rezoning application or ordinance mentions outdoor advertising.
After the rezoning of subject land in July, 1977, Respondent applied to Petitioner, Florida Department of Transportation for a permit to erect two outdoor advertising signs on the subject property to be not less than 15 feet but within 660 feet of the right-of-way of Interstate-10. The authority for his claim that billboards could be permitted on the rezoned property was derived from the 3.977 rezoning ordinance together with a 1972 and a 1973 ordinance, infra.
Leon County Ordinance 72-114, dated November 21, 1972 allows, inter alia, outdoor advertising signs in designated districts as follows:
"1. CT Commercial Tourist District CR Commercial Rural District
C-2 General Commercial
C-4 Automobile Commercial M-2 General Industrial"
There is no "Rural-Commercial" designation as subject property was rezoned by ordinance 77-26 and there are no definitions in the billboard ordinance to describe what type of development was intended to be allowed in such districts. A portion of a 1973 ordinance entitled "Section 6.19 CR Rural Commercial District" states in the "District Intent":
"The provisions of the CR district are intended to apply to rural areas with direct access to a major street or roadway located within convenient travelling distance to rural residential and agricultural areas, wherein small groups of commercial establishments,
cultural and institutional activities and certain uses for processing or selling agricultural products are permitted. A large variety of commercial activities are permitted in recognition of the rural character and
long travel distances from rural areas to urban commercial centers."
The Zoning Director for the City of Tallahassee and County of Leon stated that a "commercial-rural" district is a broad commercial classification and is more closely associated with the Leon County Commercial Zone C-4, an Automotive-Commercial zoning of the most intensive of all units located along major thoroughfares in the urban areas.
The Petitioner through its state administrator for outdoor advertising, disapproved and returned the application to Respondent stating, "it is felt that the rezoning classification does not meet the requirements imposed by State and Federal regulations for permitting of a sign" it cited various state and federal laws and warned that the lack of "effective control" of outdoor advertising signs, displays and devices subject any state to the loss of 10 percent of the amounts which would be otherwise apportioned to such state under Section 104 of Title 23, United States Code, until such time as such state shall provide "effective control".
Respondent applied for an administrative hearing.
Pursuant to its powers and duties under Section 125.01(g), the Board of County Commissioners adopted a comprehensive plan known as the "Interim Land Use Plan" in 1971, to be effective until 1995. The comprehensive master plan is basically a map of Leon County but it is also a plan or guideline of goals and policies adopted by the Board of County Commissioners. There is a separate planning commission in Leon County whose duties include public hearings and making recommendations as to land use to the Board of County Commissioners.
The Planning Commission recommended to the Board that the 200 feet from the southern boundary of Interstate-10, a part of the subject property, remain agriculture-2 so that outdoor advertising in the area along the interstate would be discouraged. Concern was indicated by the Planning Commission in its April 7, 1977 meeting that if the subject property were rezoned to rural-commercial that the planning commission might be asked to create spot commercial zones along the interstate to accommodate billboards.
The Comprehensive Land Use Plan itself was not modified by the subject rezoning and the area remains agriculture-2 on the plan. The Board of County Commissioners itself has the authority to amend the plan but an amendment to the Comprehensive Plan requires a separate and different procedure than the procedure used to rezone property as was done in the subject rezoning.
The Hearing Officer further finds:
The Leon County Board of County Commissioners followed correct legal procedures in rezoning the subject parcel of land to "rural-commercial".
The Respondent has a county permit for the construction of his proposed signs.
The Board denied the rezoning of the property in 1974 but granted rezoning on July 12, 1977. The billboard ordinance of 1972 was considered by the Board at the time thee area was rezoned.
The rezoning of the area is in fact "spot zoning" or "strip zoning".
Respondent contends:
That the only authority permitted to zone subject property is the Board of County Commissioners and once zoning is completed by the county it is final state action;
That the Board followed the proper procedures when it rezoned the subject property;
That once the property was rezoned "commercial" the previously existing ordinance allowing billboards in commercial zones could be used to permit billboards in that area;
That "spot zoning" or "strip zoning" is within the discretion of the Board of County Commissioners;
That the zoning of property by the Board of County Commissioners renders inapplicable the Highway Beautification Act of 1965, as amended as well as the State's control of outdoor advertising including the Governor's contract with the Federal Highway Administrator;
That the Highway Beautification Act and Chapter 479, Florida Statutes, Outdoor Advertisers, allows billboards on any property zoned "Commercial" including lands along interstate and federal aid highways.
Petitioner contends:
That the Leon County Board of County Commissioners has authority to zone lands in Leon County but the subject zoning is "spot zoning" which is universally condemned and the acre plus of land was rezoned from agriculture in the midst of agriculture zoned land for the primary purpose of erecting billboards on the interstate highway.
That the rezoning for the purpose of erecting outdoor advertising by the Board of County Commissioners was a usurpation of state government authority under Chapter 479, Florida Statutes.
That the rezoning ordinance of 1977, no. 77-26, is silent on the subject of outdoor advertising and the "rural-commercial" zoning of the ordinance only allows "limited commercial or industrial activities. . . and is not considered to be commercial for outdoor advertising control.
That the outdoor advertising ordinance of 1972, which allows billboards in "commercial-rural" is inapplicable to the subject rezoned land because it lies in an area zoned agriculture for at least one mile in any direction.
That neither ordinance 72-114 or any comprehensive zoning plan has been submitted to or accepted by the Federal Highway Administrator as " effective control" of outdoor advertising as required by federal law and the
Contract of the Governor and the Federal Highway Administrator dated January 27, 1972.
The main contention of the Respondent is that the Board of County Commissioners has the authority to regulate outdoor advertising through its zoning powers under Chapter 125, County Government.
The main contention of the Petitioner is that the State Department of Transportation is required to regulate the outdoor advertising under Chapter 479, Outdoor Advertisers.
CONCLUSIONS OF LAW
Section 479.111(2) provides:
"479.111 Certain advertising signs permitted.
-Only the following signs shall be permitted within controlled positions of the interstate and federal-aid primary systems:
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(2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02."
The agreement referred to in Section 479.02 was executed by Governor Askew and Federal Highway Administrator F.C. Turner on January 27, 1972 and ratified by the State Legislature and filed March 2, 1972. In Brazil v. Div. of Admin., State Dept. of Transp. Fla. App., 347 So.2d 755 the court stated:
"In 1965, the United States Congress enacted the Highway Beautification Act as part of Title XXIII, United States Code. To further the national policy relating to control of outdoor advertising along interstate and primary federal aid highways, Section 131(d) authorized the Secretary of Transportation to enter into agreements with the several states to determine the size, lighting, and spacing of signs, consistent with customary use and the intent of the Highway Beautification Act of 1965. Section 479.02, Florida Statutes (1971), authorized the governor to execute
an agreement with the appropriate agents of the United States to carry out the purposes of the Highway Beautification Act. Such an agreement was entered into by the State of Florida, through its governor, and the United States by the Secretary of the Department of Transportation on January 27, 1972. The agreement applies to all commercial and industrial areas within 660 feet of the right of way of all interstate and federal aid primary systems within the state."
Thus, the subject area zoned "rural-commercial" is subject to the agreement.
The agreement was drawn "for the purposes of carrying out national policy relative to control of outdoor advertising in areas adjacent to the National System of Interstate and Defense Highways and the Federal Aid Primary System, as authorized by Chapter 479, F.S., and title 23, Section 131, United States Code." Section 570.708, Code of Federal Regulations, which appears in Federal Register, Volume 40, Number 180, pages 42846-42847, provides:
"(b) 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.
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A zone in which limited commercial or industrial activities are permitted as an incident to other primary land uses is not considered to be a commercial or industrial zone for outdoor advertising control purposes."
The Federal Highway Administration's policy considerations behind the promulgation of the above quoted rule is stated on Page 42843, Acceptance of State Zoning, Volume 40, Number 180, of the Federal Register:
"The law provides signs may be allowed in commercial and industrial zones. Sections 750.708(b) and (d) are essential to assure the recognition of only bonafide commercial and industrial zones, rather than rural or residential zoning classifications or attempts to circumvent the intent of Congress."
Section III STATE CONTROL, Page 6 of the Agreement, supra, States: "The state hereby agrees that, in all areas
within the scope of this agreement, the State
shall effectively control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays, and devices erected subsequent to the effective date of this agreement, other than those advertising signs permitted under the terms and provisions of Florida Statutes 479.16 as of the date of this agreement, in accordance with the following criteria:
A. In zoned commercial and industrial areas, the State may notify the Administrator as notice of effective control that there has been established within such areas regulations which are enforced with respect to the size, lighting, and spacing of outdoor advertising signs consistent with the intent of the
Highway Beautification Act of 1965 and with customary use."
Thus, local units of government, including Leon County, must submit their zoning regulations to the Florida Department of Transportation which is charged with the enforcement of all laws and rules involving outdoor advertising for its review so that it in turn may notify the Federal Highway Administrator that there has been established within the zoned areas enforceable regulations consistent with the state laws and the Highway Beautification Act.
No evidence was submitted to this Hearing Officer that Leon County has comprehensive zoning regulations pertaining to outdoor advertising which are consistent with the intent of the Highway Beautification Act and customary use. Leon County has not submitted such regulations to the Petitioner so that it could notify the federal administrator that there has been established in Leon County enforcement and effective control of outdoor advertising signs.
Effective control is that control of outdoor advertising the legislature requires of the Department of Transportation in Chapter 479 and specifically required by Section 479.02 and the agreement promulgated thereunder, Section
479.11 and Section 479.111, C.F. 23 USCS 131 (c).
"Section 479.02 Enforcement of provisions by department. It shall be the function and duty of the department to:
Administer and enforce the provisions of this chapter including, but not limited to, executing agreements in conjunction with the governor in accordance with title I of the Highway Beautification Act of 1965 and Title 23, U.S. Code;
Regulate size, lighting, and spacing of signs permitted in the zoned and unzoned commercial and zoned and unzoned industrial area;
Determine unzoned commercial and industrial areas; and
Regulate signs relating to food, lodging, camping, vehicle service, and attractions, subject to current federal regulations."
The foregoing statute gives the Department of Transportation ample enforcement powers and the duty to regulate outdoor advertising aside from the agreement.
"Section 479.03 Territory to which act applies; entries, examinations and surveys. The territory under the jurisdiction of the department for the purpose of this chapter shall include all the state."
Thus, the powers to regulate signs encompasses all of the counties including the subject 1.16 acres in Leon County.
"Section 125.01 Powers and duties.-
The legislative and governing body of a county shall have the power to carry on county government. To the extent not
inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to:
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Prepare and enforce comprehensive plans for the development of the county.
Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public."
