Judges: J. LAWRENCE JOHNSTON
Agency: Department of Transportation
Latest Update: May 21, 1990
Summary: Sign permit application did prove sign in unauthorized commerical or industrial area.
84-3367STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HEADRICK OUTDOOR, INC. )
)
Petitioner, )
)
vs. ) CASE NO. 84-3367T
) DEPARTMENT OF TRANSPORTATION, )
)
Respondent. )
)
RECOMMENDED ORDER
For Petitioner: James K. Baughman, Sr.
Pensacola, Florida
For Respondent: Vernon L. Whittier, Jr., Esquire
Tallahassee, Florida
A final hearing was held in this case in Pensacola on January 14, 1985.
This issue is whether respondent Department of Transportation (DOT) should grant the application of petitioner Headrick Outdoor, Inc. (Headrick) for four outdoor advertising signs to be located in Escambia County on the north side of Interstate 10, approximately one mile east of Pine Forest Road, two facing east and two facing west. Specifically, by stipulation of the parties, the sole issue is whether the location is an unzoned commercial or industrial area under Section 479.02, Florida Statutes, and under Rule 14-10.09, Florida Administrative Code.
FINDINGS OF FACT 1/
Petitioner Headrick Outdoor, Inc. (Headrick), through its field vice- president James K. Baughman, applied for state sign permits by applications dated June 22 and received by respondent Department of Transportation (DOT) on June 26, 1984. The signs applied for would be located in an unzoned area on the north side of Interstate 10, one mile east of the Pine Forest Road (SR 297) exit outside the city limits of Pensacola in Escambia County, Florida. The signs would be stacked, facing east and west. They would be within 660 feet of the nearest edge of the right of way of Interstate 10.
Within 660 feet of the nearest edge of the right of way of Interstate
10 (i.e., also on the north side of Interstate 10) and the proposed sign location, stand two portable, prefabricated metal buildings approximately rectangular in shape and eight feet in height. The buildings are set on skids or boards. Each is surrounded by chain link fence with a padlocked gate. Next to each building, inside the fence, stands a metal electronic transmitting tower approximately 100 or more feet high.
The two buildings and towers are owned by, and are part of the business of, Communications Engineering Company, Incorporated. The company sells paging and community repeater services out of an office on Yonge Street in downtown
Pensacola. In addition, the company leases space on its electronic towers to lessees operating their own radio systems. The company's personnel are located at the Yonge Street office, and all business activities take place at or out of the Yonge Street office.
The two buildings and towers near Interstate 10 and Pine Forest Road are used to generate and transmit electronic signals for the paging and community repeater service. In addition, the towers are used to generate and transmit electronic signals for the radio systems of the tower space lessees. Company personnel rarely are at the two buildings and towers; other than maintenance and installations, the facilities operate automatically.
The two buildings and towers stand at locations 10 to 15 feet deep in an old clay pit 10 to 30 feet deep. Directly south of the clay pit is a clearing of low shrubs and brush which is strewn with garbage and rubbish. Directly south of the clearing, elevated a few feet is the dirt roadbed of Ashland Road. Ashland Road does not access Interstate 10; it runs parallel to Interstate 10 within a few feet of the right of way. The right of way slopes down towards Interstate 10, which is 12 to 14 feet below Ashland Road. Trees, mostly pine, and underbrush stand on the right of way and the little bit of area between Ashland Road and the right of way. As Ashland Road passes to the west of the clearing, it turns north and passes to the west of the clearing and then the clay pit.
The top portion of the towers are visible from Interstate 10 and Ashland Road where it parallels Interstate 10; neither the lower part of the towers nor the buildings are visible from those locations. All of the towers and buildings are visible from Ashland Road directly west of the clay pit.
Other than the clay pit, the two buildings and towers and the clearing with the garbage and refuse, the area consists exclusively of pine-forested woodlands and, approximately one-quarter mile east of the site down Ashland Road, a residential area called Lincoln Park.
The zoning authority of Jacksonville and Duval County, Florida allows radio or television transmitters, antennae and line of sight devices as permitted accessory uses and structures in its Open Rural District zoning classification. The zoning authority for Tallahassee and Leon County, Florida, allows broadcasting towers, radio and television transmission stations and studios as a principal unrestricted use in its Agricultural District A-1 and A-2 and as customary uses and structures clearly incidental to the principal unrestricted use of broadcasting studios in its Commercial Parkway District, General Commercial District, Automotive Commercial District, Limited Industrial District and General Industrial District. In the latter two districts, they also are allowed as customary uses and structures clearly incidental to the principal unrestricted use of communication activities.
CONCLUSIONS OF LAW
Chapter 84-227, Laws of Florida (1984), to the extent that it amends Section 479.07, Florida Statutes (1983), became effective on July 1, 1984. The amendments to 479.07 do not, however, apply to any permit or license which was valid and applicable as of June 30, 1984 until January 15, 1985 or until the permit or license expires or is revoked, whichever first occurs. Otherwise, Chapter 84-227 became effective on October 1, 1984. See Section 27, Chapter 84-
227. Therefore, the entirety of Chapter 84-227 governs the issue whether
Headrick's application should be granted. See Bruner v. Board of Real Estate,
399 So.2d 4 (Fla. 5th DCA 1981); Department of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA 1980).
As amended by Section 7 of Chapter 84-227, Section 479.07(1), Florida Statutes, now provides:
Except as provided in s. 479.16, no
person shall erect, operate, use, maintain, or cause to be erected, operated, used, or maintained, any sign on the state highway system outside incorporated areas or any portion of the interstate or federal-aid primary highway systems without first obtain- ing a permit therefor from the department and paying the annual fee as provided herein.
None of the exemptions provided in Section 479.16 apply to this case.
As amended by Section 12 of Chapter 84-227, Section 479.11, Florida Statutes, now reads in pertinent part:
479.11 Certain signs prohibited. --No sign shall be erected, used, operated or maintained.
Within 660 feet of the nearest edge of the right-of-way of all portions of the interstate highway system, or the federal-aid primary highway system except as provided in ss. 479.111 and 479.16.
As previously stated, none of the exemptions provided in Section 479.16 apply in this case.
As amended by Section 13 of Chapter 84-227, Section 479.111, Florida Statutes, now reads in pertinent part:
479.111 Certain signs allowed. --Only the following signs shall be allowed within controlled portions of the interstate and federal-aid primary systems as set forth in s. 479.11(1) and (2):
(2) Signs in commercial and industrial zoned or commercial and industrial unzoned areas and within 660 feet of the nearest edge of the right-of-way, subject to the require- ments set forth in the agreement between the state and the United States Department of Transportation.
As amended by Section 1 of Chapter 84-227, Section 479.01(8), Florida Statutes, now provides that, as used in Chapter 479, Florida Statutes:
"Unzoned commercial or industrial area" means an area within 660 feet of the nearest edge of the right-of-way of the interstate, or federal-aid primary system not zoned by state or local law,
regulation, or ordinance, in which there is located three or more separate and distinct industrial
or commercial uses located within a 1600 foot radius of each other and generally recognized as commercial or industrial by zoning authorities in this state. Certain activities, including, but not limited to, the following, may not be so recognized:
Signs.
Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.
Transient or temporary activities.
Activities not visible from the main- traveled way.
Activities conducted more than 660 feet from the nearest edge of the right-of-way.
Activities conducted in a building principally used as a residence.
Railroad tracks and minor sidings.
As amended by Section 3 of Chapter 84-227, Section 479.02, Florida Statutes, now provides in pertinent part:
It shall be the duty of the department to:
Administer and enforce the provisions of this chapter and the agreement between the state and the United States Department of Transportation relating to the size, lighting, and spacing of signs in accordance with Title I of the Highway Beautification Act of 1965 and Title 23, United States Code, and federal regulations in effect as of the effective date of this act;
Regulate size, height, lighting, and spacing of signs permitted in zoned and unzoned commercial areas and zoned and unzoned industrial areas on the interstate highway system and the federal-aid primary highway system;
Determine unzoned commercial areas and unzoned industrial areas; . . . .
In pertinent part, Rule 14-10.09, Florida Administrative Code, which adopted the agreement between the State of Florida and the United States Department of Transportation, sets out the following definition:
B. 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 activities generally recognized as commercial or industrial
by zoning authorities in this State except that the following activities may not be so recognized:
Outdoor advertising structures.
Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.
Transient or temporary activities.
Activities not visible from the main- traveled way.
Activities more than six-hundred sixty (660) feet from the nearest edge of the right of way.
Activities conducted in a building principally used as a residence.
Railroad tracks and minor sidings.
The unzoned commercial or industrial area shall only include those lands on the same side of the highway which are within eight hundred (800) feet of such commercial or industrial activity. All measurements shall be made from the outer edges of the regularly used buildings, parking lots, storage
or processing and landscaped areas of the commercial or industrial activities and such measurements shall be along or parallel to the edge of the pavement of the highway.
Assuming that Rule 14-10.09, Florida Administrative Code, continues to be valid even after the effective date of Chapter 84-227, whether DOT must follow the language of the amendment to Section 479.01(8) which is contrary to the rule will depend upon the proper effect to be given to Section 120.68 (12)(b), Florida Statutes, as amended by Section 4, Chapter 84-173, Laws of Florida (1984). This question need not be determined in this case. As will become apparent below, Headrick's application must be denied regardless how the rule and statute are interpreted.
As an applicant, Headrick has the burden to prove all the elements of his entitlement to the permit for which he has applied. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).
With respect to Section 479.01(8), Florida Statutes, Headrick did not prove that the use of the two buildings and towers of the Communications Engineering Company, Incorporated, is "generally recognized as commercial or industrial by zoning authorities in this state. An activity generally recognized as commercial or industrial by zoning authorities in this state is an activity which is allowed only in commercial or industrial zoning districts.
The evidence shows that the two buildings and towers would be allowed in Duval County's Open Rural District and in Leon County's Agricultural Districts A-1 and A-2, as well as in several of Leon County's commercial and industrial zoning districts.
Headrick therefore did not prove that there is an "unzoned commercial or industrial area" within 660 feet of the nearest edge of the right of way of Interstate 10.
In addition, assuming for purposes of argument that those uses are generally recognized as commercial or industrial by zoning authorities in this state, Headrick did not prove the existence of "three or more separate and distinct industrial or commercial uses located within a 1600 foot radius of each other" as also required by the statute.
It is not necessary to decide whether the tops of the towers qualify as "[a]ctivities . . . visible from the main-traveled way," under subparagraph
(d) of the statute.
With respect to Rule 14-10.09, Florida Administrative Code, again Headrick did not prove that the use of the two buildings and towers of the Communication Engineering Company, Incorporated, is activity "generally recognized as commercial or industrial by zoning authorities in this State." Therefore, Headrick did not prove that there is an "[u]nzoned commercial or industrial area" within 660 feet of the nearest edge of the right of way of Interstate 10 as defined by Rule 14-10.09, either. Again, it is not necessary to decide whether the tops of the towers qualify as "[a]ctivities . . . visible from the main-traveled way," under subparagraph 4 of the rule. Cf. Final Order, Tri-State Systems, Inc. v. Dept. of Transportation, DOAH Case No. 84-3046T, entered August 31, 1984.
RECOMMENDATION
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that:
Respondent Department of Transportation enter a final order denying the applications of petitioner Headrick Outdoor, Inc. for sign permits.
RECOMMENDED this 20th day of March, 1985, in Tallahassee, Florida.
J.LAWRENCE JOHNSTON
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 20th day of March, 1985.
ENDNOTE
1/ Respondent submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
COPIES FURNISHED:
Paul A. Pappas, Secretary Department of Transportation
562 Haydon Burns Building Tallahassee, Florida 32301
Headrick Outdoor, Inc. c/o James Baughman
Olde Townhouse Office Square Suite 204A
15 West Strong Street Pensacola, Florida 32501
Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301
Docket for Case No: 84-003367
Orders for Case No: 84-003367
| Issue Date |
Document |
Summary |
|
Apr. 22, 1985 |
Agency Final Order
|
|
|
Mar. 20, 1985 |
Recommended Order
|
Sign permit application did prove sign in unauthorized commerical or industrial area.
|
