STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAMAR ADVERTISING COMPANY )

)

Petitioner, )

)

vs. ) CASE NO. 84-0246T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, William B. Thomas, held a formal hearing in this case on May 8, 1984, in Pensacola, Florida. The transcript was received on May 15, 1984, and the parties were allowed fifteen days thereafter to submit proposed findings of fact and conclusions of law or a proposed recommended order. These were filed and have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial or not supported by the weight of the credible evidence, and have been rejected.

APPEARANCES

For Petitioner: Robert P. Gaines, Esquire

Post Office Box 12950 Pensacola, Florida 32576

For Respondent: Vernon L. Whittier, Jr., Esquire

Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32301-8064

Lamar Advertising Company applied for permits to erect outdoor advertising signs on the north side of I-10 in Escambia County, Florida, 4.8 miles west of the intersection of I-10 and U.S. 90A facing east, and 5.08 miles west of the intersection of I-10 and U.S. 90A facing east. The Department returned the applications not approved on the ground that the locations are "in unpermittable zoning." Thus, the issue to be resolved is whether the area where the signs are proposed to be located meets the requirements of Chapter 479, Florida Statutes, and Chapter 14-10, Florida Administrative Code in order to qualify as an unzoned commercial or industrial in order that outdoor advertising signs may be permitted. The Petitioner has the burden of proof to demonstrate that it meets all the requirements of of these statutes and rules.

FINDINGS OF FACT

On November 16, 1983, Lamar Advertising Company submitted it's applications for permits for outdoor advertising signs to be located on the north side of Interstate Highway 10 in Escambia County Florida, 4.8 miles west of the intersection of I-10 and U.S. Highway 90A facing east, and the other to be located on the west side of I-10, 5.08 miles west of its intersection and U. S. 90A facing east. By letter dated November 28, 1983, the Department rejected these applications, stating:

In unpermitable zoning. No commercial business visible.

Escambia County, Florida, owns the land where the proposed signs would be located. This parcel contains approximately

• from the Perdido River, the state bounds

• almost to County Road 99 on the east, with frontage

• of I-10 for a distance of approximately one mile *

• Station is located on the south side of I-10 opposite

• center of this parcel.

  
  

  In January of 1981, the construction of a sanitary landfill

• this property, known as the Perdido Landfill.

• permanent buildings located there, one of which

• house which includes computer equipment and

• two commercial scales. Another houses p*

• equipment. Another is used for employee loc*

• of supplies. Another is the main office.

• all office facilities and a major garage

• automotive and heavy equipment.

• sanitary landfill is used for disposal of solid waste through escavation and burial. Excavation removes soil which is later used to cover waste placed into the hole created by the

  
  

• NOTE: Page 2 of the Recommended Order on file with DOAH has missing or unreadable text and is therefore not available in this ACCESS document.

  
  

  excavation. When a filling operation has been completed in a particular area, there will be built up heights exceeding the existing grade by as much as 50 feet.

  
  

  1. Before the landfill activity began, the parcel in question was rolling landscape, mostly in pasture land with some timber. It sloped to the west to the Perdido River. It also sloped from north to south towards the north edge of Interstate 10.

     
     

  2. Escambia County has approximately thirty pieces of equipment on the Perdido Landfill. This equipment consists of two landfill compactors, two bulldozers, three self-elevating scrapers, a frontend loader, a number of dump trucks, a road grader, a hydraulic backhoe, three tractor trailer rigs, a rented dragline, and numerous cars and pickup trucks. Normally there are five pieces of this equipment in operation on any given day.

  3. In addition to the equipment operated by Escambia County, approximately

     500 vehicles per day visit the landfill to dump solid waste Monday through Friday, of which about 300 are commercial and 200 are private vehicles. On Saturday approximately 800 to 1,000 vehicles visit the landfill to dump waste.

     
     

  4. These dumping operations on the Perdido Landfill are taking place about 800 to 1,000 feet from the north right-of-way of I-10. In addition, the County has leased 10 acres on the north boundary of this property to a private company which operates a treatment facility for the processing of septic waste material to produce fertilizer. This facility is located between 2,000 and 3,000 feet from the south boundary of the County property.

     
     

  5. The County has constructed and maintains an earth barrier approximately

     100 feet wide along the south boundary of this property on I-10 to hide the landfill operation from traffic on the interstate. This earth barrier also places the private septic waste facility beyond the line of sight from the interstate. In addition, there are trees and other natural growth along the south boundary of the County property which obscures the site from view.

     
     

  6. Photographs admitted into evidence show that the activities taking place on the landfill are not clearly visible to traffic moving on I-10. None of the vehicles can be seen except the top portion or boom of a crane. The area is hidden by trees and by the earth barrier except for one or two small openings which reveal the crane's boom. A motorist traveling east on I-10 can see through these openings for approximately one second, and traveling west for only a couple of seconds. Nevertheless, some portion of the equipment being used on the landfill property is visible from the interstate.

     
     

  7. Most of the area of Escambia County outside of the City of Pensacola is not zoned. There are some areas in the vicinity of the University of West Florida in the northwestern part of the county and on Perdido Key in the southwestern part of the county that are zoned. The area in which the Perdido Landfill is located is not zoned.

     
     

  8. The Petitioner presented the former County Attorney for Escambia County who testified that the activities conducted at the landfill are compatible with an industrial zoning classification. No further evidence on this point was presented by the Petitioner.

     
     

  9. The Department presented the Administrator Director for zoning and inspection in Okaloosa County, Florida, who testified that there are four sanitary landfills in Okaloosa County, two located on federal land and two located on county property. Okaloosa County is located about 39 miles east of Escambia County, and the four landfills there are operated and maintained by the County. Okaloosa County has county-wide zoning, and sanitary landfills are classified as public service facilities in agricultural areas predominantly. Under the existing Okaloosa County ordinance,, a landfill would be classified as Agricultural or Agricultural Restricted, regardless of the type of landfill it is. The Department also presented a letter from the Land Use Administrator of the Tallahassee-Leon County Planning Department which indicates that Leon County considers sanitary landfills as "resource development activities" which are permitted as a restricted use only in agricultural zoned areas. This hearsay evidence is not of sufficient quality to support a finding of fact, but it corroborates the evidence presented by the Okaloosa County zoning director, and was admitted for this purpose.

     CONCLUSIONS OF LAW

     
     

  10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case, pursuant to Section 120.57(1), Florida Statutes. The Department of Transportation has authority to regulate outdoor advertising signs and issue permits therefor, pursuant to Chapter 479, Florida Statutes.

      
      

  11. Section 479.11, Florida Statutes, provides in part:

      
      

      No advertisement, advertising sign or advertising structure shall be constructed, erected, used, operated or maintained:

      
      

      1. within 660 feet of the nearest edge of the right-of-way of all portions of the interstate system or the federal-aid primary system except as provided in s. 479.111....

  12. Section 479.111, Florida Statutes, provides in part: only the following signs shall be permitted

      within controlled positions of the interstate and federal-aid primary systems:

      
      

      (2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas subject to agreement established by s. 479.02.

      
      

  13. Section 479.02, Florida Statutes provides in part:

      
      

      1. It shall be the function and duty of the department, subject to current federal regu- lations, to:

         
         

         1. 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.

            
            

            (c) Determine unzoned commercial and indus- trial areas;...

            
            

  14. Section 14-10.09(2), Florida Administrative Code, adopts the agreement between the United States and the State of Florida. Section I, 1., B., provides:

      
      

      1. Unzoned commercial or industrial area means an area within six hundred sixty (660) feet of the nearest edge of the right-of-way of the Interstate, Federal-Aid Primary System, or State Highway Systems not zoned by State or local law,

         regulation or ordinance in which there is located one (1) or more industrial or commercial acti- vities generally recognized as commercial or

         industrial by zoning authorities in this State except that the following activities may not be so recognized:

         1. Outdoor advertising structures.

         2. Agricultural, forestry, ranching, grazing, farming, and related activities, including,

            but not limited to, wayside fresh produce stands.

         3. Transient or temporary activities.

         4. Activities not visible from the main- traveled way.

         5. Activities more than six-hundred sixty (660) feet from the nearest edge of the right- of-way.

      
      

  15. Pursuant to the above Rule, in order for an unzoned area to be considered industrial or commercial, there must be located thereon one or more activities generally recognized as industrial or commercial by zoning authorities in this state. Further, this Rule provides that activities not visible from the main-traveled way may not be recognized as industrial or commercial. The Petitioner has presented sufficient evidence to support a finding that the activities conducted on the Perdido Landfill are visible from I-10, although this visibility is minimal at best. However, the Petitioner having the burden of proof that these activities are generally recognized as industrial or commercial by zoning authorities in this state, has not carried this burden by proof that one authority in this state so recognizes them. The evidence presented by the Department that Okaloosa County would place these activities in an agricultural or an agricultural restricted zoning classification, corroborated by the Leon County zoning classification which

would place these activities in agricultural areas in a restricted use category, is more substantial than the evidence presented by the Petitioner on this point. In summary, there is not sufficient evidence to support a finding that the activities conducted on the Perdido Landfill are generally recognized as industrial or commercial by zoning authorities in this state.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order

denying the application of Lamar Advertising Company for permits to erect two signs on the north side of I-10 in Escambia County, at points 4.80 miles and

5.08 miles west of U.S. 90A, facing east.

THIS Recommended Order entered this 8th day of June, 1984, in Tallahassee, Florida.

WILLIAM B. THOMAS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1984.

COPIES FURNISHED:

ROBERT P. GAINES, ESQUIRE

P. O. BOX 12950 PENSACOLA, FLORIDA 32576

VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064

Docket for Case No: 84-000246

Orders for Case No: 84-000246