STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, on March 7, 1978, at the District Four, Right of Way Office, Conference Room, 1317 N. E. 4th Avenue, Fort Lauderdale, Florida.

Frank H. King, Esquire, Haydon Burns Building, Tallahassee, Florida, represented Petitioner, and Dominic F. Cianciolo, Esquire, Leeside Building, Suite 98, 16683 Overseas Highway, Key Largo, Florida, represented Respondents.

These cases were consolidated for hearing because they involve a common question of law and fact. Petitioner (hereafter DOT), seeks the removal of advertising signs allegedly in violation of the provisions of Subsection 479.11(6) and 339.301(1), Florida Statutes, by being located within the right- of-way of a State maintained road. While not contesting the physical location of the signs in question, Respondents do contend that the alleged right-of-way was not properly dedicated, that the alleged right-of-way is not part of the State highway system and finally that DOT is estopped to assert that the land upon which the signs are located is a right-of-way of the State maintained road.

FINDINGS OF FACT

1. Respondents are each property owners in a subdivision known as the revised plat of Sunset Cove which was recorded in plat book 2, page 20, of the Public Records of Monroe County, Florida. All of the properties owned by Respondents have front property lines adjacent to a 20-foot wide road which runs parallel to State Road 5, the old Florida East Coast Railroad right-of-way, more commonly known as C. S. 1. This 20-foot wide road was dedicated by the platters of the subdivision using the following language:

   
   

   And that we hereby dedicate to the public for proper uses the roads shown thereon, reserving to ourselves, our heirs, successors or assigns

   the reversion or reversions thereof whenever discontinued by law. (Joint Exhibit 1)

   
   

2. There was no evidence to indicate that the dedicated property was ever used as a road. The evidence did establish that it has not been used as a road for at least sixteen years. In the past, and up to the date of the hearing, adjacent property owners have crossed the dedicated property for ingress and egress purposes, have constructed improvements encroaching upon the dedicated property and Respondents have erected advertising signs on the property.

   
   

3. In 1938, the State of Florida acquired, by deed, the right-of-way of the Florida East Coast Railroad In the Section, Township and Range in question. That right-of-way adjacent to the dedicated property is known as State Road 5 and U.S. 1. The railroad right-of-way did not include the 20-foot road which was dedicated as a part of the revised plat of Sunset Cove.

   
   

4. The right-of-way map issued by the State of Florida, State Road Department (the predecessor of the Department of Transportation), reflects that the 20-foot dedicated road has been included as part of the right-of-way of State Road 5. The map is dated April, 1969. (See Joint Exhibit 2)

   
   

5. At the hearing it was stipulated by counsel that the signs in question are within a strip of land lying within a distance of 50 feet and 70 feet from the center line of State Road 5, U.S. 1, and that the issue in this case is whether such 20-foot strip is part of the right-of-way of State Road 5 and whether the signs are thereby subject to removal.

   
   

   CONCLUSIONS OF LAW

   
   

6. The first question to determine is whether there has been a complete dedication of the lands in question for public purposes. In order for this to be accomplished, there must be a platting of lands and the setting apart of a portion thereof for public use as well as an acceptance of the dedication. The burden of proving an acceptance of a dedication of lands for the general public rests upon the party asserting it and the proof of facts constituting an acceptance must be clear, satisfactory and unequivocal. Robinson v. Town of Riviera, 25 So.2d 277 (Fla. 1946). Acceptance may be made by formal resolution, by public user or by acts clearly indicating acceptance. Sebolt v. State Road Department, 176 So.2d 590 (Fla. 1st DCA 1965). There was no evidence offered by Petitioner to establish a formal resolution of acceptance or public use tantamount to acceptance. The only acts in evidence purporting to indicate acceptance of the dedication are the inclusion of the disputed right-of-way in the right-of-way map prepared by DOT in 1969.

   
   

7. Sebolt v. State Road Department, supra, holds on facts similar to those in the instant case that the State Road Department's employing a surveying team to survey the subject right-of-way and installation of right-of-way markers clearly indicated an acceptance of dedication. In the instant case, we find a clear delineation of the disputed right-of-way upon the right-of-way map. There is no rational distinction between the two different acts of acceptance. Each constitutes a clear acceptance of the dedication by public authority and it is concluded that dedication and acceptance of the disputed right-of-way was effectively made in the case.

   
   

8. Respondents next contend that the right-of-way is not part of the State highway system as defined in Florida Statutes and that therefore Respondents cannot be found in violation of provisions prohibiting advertisement upon a

   right-of-way of any State maintained road. However, the facts of this case belie the assertion. The dedicated land meets the definition of right-of-way contained in Subsection 334.03(9), Florida Statutes, in that it is land in which the State owes the fee by virtue of its dedication to the public use. State Road 5 is a State road as defined in Subsection 334.03(11), Florida Statutes, in that it is open to travel by the public generally and dedicated to the public use and designated as a part of the State highway system.

   
   

9. Finally, Respondents contend that DOT, either due to its acquiescence in the use of the dedicated land by the Respondents or because of the acquisition of a private easement by prescription over the land in question is estopped to deny Respondents' right to erect the signs sought to be removed.

   
   

10. Respondents reliance on St. Petersburg v. Meloche, 92 Fla. 770, 110 So. 341 (1926), in support of the estoppel theory is misplaced. In that case, the disputed land was not included in the plat and, hence, there was not a clear and unmistakable intention to dedicate. The Court's reference to estoppel was made only to illustrate that the City by its conduct recognized that the disputed land was never dedicated but remained the property of the owner.

    
    

11. The essential elements of estoppel are set forth in the case of Greenhut Construction Company, Inc. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971), to be:

    
    

    1. A representation by the party estopped to the party claiming the estoppel as to some material fact, which representation is contrary to the condition of affairs later asserted by the estopped party;

    2. A reliance upon this representation by the party claiming estoppel; and

    3. A change in the position of the party claiming the estoppel to his detriment, caused by the representation and his reliance thereon.

       
       

12. In the instant case, there is no evidence of any representation being made by DOT as to a material fact, no evidence as to a reliance on any representation by Respondents and no evidence indicating that Respondents changed their position to their detriment because of the representation. Accordingly, the doctrine of estoppel is not available to Respondents herein.

    
    

13. Respondents also rely on the case of Winthrop v. Wadsworth, 42 So.2d

    541 (Fla. 1949), for the proposition that after a public highway has ceased to be used as a public way, a private easement may be acquired in it. Respondents argue that since the land in question has not been used as a public way for many years, the adjacent landowners have established private easements over the land and that, therefore, it cannot be a State maintained road. However, for the purposes of DOT, it is not necessary that the land be a State maintained road but only that it be a right-of-way to a State maintained road which the evidence demonstrates it is. The evidence also shows that any private use of the land in question has been in common with the public use which, as stated in Winthrop precludes the acquisition of a private easement by prescription.

    
    

14. It is therefore concluded that the subject signs are located within the right-of-way of a State maintained road in violation of Subsections 479.11(6) and 339.301(1), Florida Statutes. Based on the foregoing, it is

RECOMMENDED that a final order issue requiring the removal of the signs which are the subject of these proceedings.

DONE and ENTERED this 7 day of June, 1978, in Tallahassee, Florida.

MICHAEL R. N. McDONNELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7 day of June, 1978.

COPIES FURNISHED:

Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304

Dominic F. Cianciolo, Esquire 16638-98 Overseas Highway

Key Large, Florida 33037

Docket for Case No: 77-002204

Orders for Case No: 77-002204