STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-782T

) CURT MILLER OIL COMPANY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on October 23, 1979, in Chipley, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose upon a Notice of Violation served by the Department of Transportation on Curt Miller Oil Company, Inc. citing two (2) signs for violation of Section 479.07, Florida Statutes, in that said signs lacked permits required by Chapter 479.

APPEARANCES

For Petitioner: Charles G. Gardner, Esquire

Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

For Respondent: James E. Moore, Esquire

102 Bayshore Drive Post Office Box 746

Niceville, Florida 32578

Through admissions and stipulations the parties have limited narrowly the issue presented in this case. The signs in question are located within a strip of land immediately adjoining the interchange of Interstate 10 and State Road 79 in an area designated by the comprehensive land use plan adopted by Holmes County as commercial. The parties stipulated that except for the nature of the zoning of the property upon which the signs are located the signs meet the existing requirements for permitting. Because of the Department's policy of issuing permits to signs which meet the requirements of law, but which were initially erected contrary to the statutes, the issue presented in this case is the nature of the zoning of the area in which the signs are located. The owner of the signs asserts that the signs are located in a tract zoned commercial, while the Department asserts that the action of Holmes County is insufficient to create a commercially zoned area because it is an attempt by Holmes County to circumvent the provisions of Chapter 473.

FINDINGS OF FACT

1. The signs in question are located on Interstate 10, an interstate highway. One sign is located one-half mile west of the intersection of

   Interstate 10 and State Road 79, and the other sign is located one mile east of said intersection. The first sign is located 120 feet and the second sign located 130 feet from the nearest edge of pavement of Interstate 10. Neither sign is located within an incorporated city or town, and neither has been issued a permit as required by Section 479.07, Florida Statutes. The owner of the signs holds leases from the owners of the land upon which the signs are located. The signs were constructed in the first week of December, 1978, after Interstate

   10 was opened to public use and accepted as part of the interstate system.

   
   

2. On July 2, 1979, Holmes County duly adopted a comprehensive land use plan, which provides in pertinent part as follows:

   
   

   It is the intent of this plan that a strip

   of land 50 feet wide, lying on either side of I-10 and extending east and west one mile from S.R. 79 interchange and one mile from

   S.R. 81 interchange, be considered commercial, for the express purpose of allowing the business of Holmes County to place signs along the side interstate highway, and be in conformance with the provisions of Chapter 479, Florida Statutes.

   
   

3. Both signs in question are located in the area described above in the comprehensive land use plan.

   
   

4. Having adopted the comprehensive land use plan, Holmes County is now developing its zoning plan in the manner outlined in Chapter 163, Florida Statutes. However, the zoning ordinance has not yet been adopted by Holmes County.

   
   

   CONCLUSIONS OF LAW

   
   

5. The signs in question are outdoor advertising signs subject to regulation by the Department of Transportation pursuant to Chapter 473, Florida Statutes. The signs currently lack permits as required by Chapter 473 and are in violation of Section 479.07, Florida Statutes. Because of the Department's policy of allowing such signs to be permitted upon a demonstration that they meet the existing requirements of law, the issue presented in this case is whether the signs meet the requirements of Chapter 473, Florida Statutes. The parties stipulate that except for the zoning of the area in which the signs are located, the signs meet the existing legal requirements for permitting. The sole issue presented in this case is the nature of the zoning of the area in which the signs are located.

   
   

6. The answer to this issue is dependent upon the legal effect of the comprehensive land use plan adopted by Holmes County. The legal effect of comprehensive plans has not been extensively litigated; however, the Third District Court of Appeal considered the effect of comprehensive plans in the case of Dade County vs. Yumbo S.A., 348 So.2d 392, and the trial courts have considered the effect of comprehensive plans in the cases of Dade County Association et al. vs. Dade County, 45 Fla.Supp. 193; Castellano vs. Dade County, 45 Fla.Supp. 106; and Diplast, S.A. vs. Dade County, 47 Fla.Supp. 89. Summarizing these cases, the courts have consistently held that a comprehensive land use plan is not a zoning ordinance. A comprehensive plan must be implemented through the adoption of appropriate zoning ordinances, although a comprehensive plan is the exercise of the police power for essentially the same

   purposes as a zoning ordinance. The adoption of a comprehensive plan represents an affirmative commitment to the public by the body adopting the plan to implement the planning goals and policies as enumerated in the plan whenever applicable. In attempting to have property zoned contrary to the recommendations of an existing plan, the applicant bears the burden to show that the plan's recommendations are unreasonable or inapplicable to the land and to the proposed use. The courts look at the comprehensive plan as a general statement of policy binding on the authority which adopted the plan and land owners in the area covered by the plan, and zoning actions must conform to the recommendations of the comprehensive plan.

   
   

7. Applying these principles to the facts at hand, the land in question is not zoned commercial because Holmes County is still in the process of adopting its zoning ordinance. No departure from the commercial use recommended in the Holmes County plan would be permitted except upon a showing that the plan was unreasonable or inapplicable to the property and the use proposed.

   
   

8. While not zoned commercial currently, the parcel is "unzoned commercial in the most literal sense; however, it is not "unzoned commercial" as defined by Florida Administrative Code Rule 14-10.09(2)1B. This rule defines unzoned commercial areas in terms of existing use of the property, recognizing that such land would be zoned commercial or the use grandfathered in any future zoning action. This case presents an anomaly because the rules recognize an existing use as a basis for an exception, but did not recognize a current legally binding commitment to a future commercial use. The rules fail to take into account the modern approach to land use planning and zoning mandated by Florida law, Chapter 163, Florida Statutes. However, the existing rules of the Department must be enforced, and these rules do not recognize the designation of land as commercial in a comprehensive land use plan as an "unzoned commercial" area. Therefore, until the area in question has been zoned commercial, the signs which are the subject of the Notice of Violation do not meet the existing requirements of the statutes and rules.

   
   

9. Concerning the designation of the area as commercial to circumvent Chapter 479, Florida Statutes, the comprehensive plan adopted by Holmes County has the full force and effect of law until challenged in a court of competent jurisdiction. The validity of this ordinance or any zoning ordinance cannot be considered in this forum.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, tee Hearing Officer recommends that the Department of Transportation net grant permits to the subject signs and, having been found in violation of Section 479.07, Florida Statutes, said signs be removed.

DONE and ORDERED this 13th day of November, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301

James E. Moore, Esquire

102 Bayshore Drive Post Office Box 746

Niceville, Florida 32578

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF TRANSPORTATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-782T

) CURT MILLER OIL COMPANY, INC., )

)

Respondent. )

)

ORDER CORRECTING RECOMMENDED ORDER

Reference was made to Chapter 473, Florida Statutes, in the first paragraphs on pages two and three of the Recommended Order in this case issued November 13, 1979. This reference is corrected to Chapter 479, Florida Statutes, rather than Chapter 473.

DONE and ORDERED this 13th day of December, 1979, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301

James E. Moore, Esquire

102 Bayshore Drive Post Office Box 746

Niceville, Florida 32578

Docket for Case No: 79-000782

Orders for Case No: 79-000782