STATE OF FLORIDA

DIVISION OF ADMIN)STATIVE HEARINGS

BONIFAY ENTERPRISES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-6317T

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this Matter came on for hearing in Bonifay, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on April 24, 1989.

APPEARANCES

The parties were represented as follows:

For Petitioner: Gerald Holley

Post Office Box 268 Chipley, Florida 32428

For Respondent: Charles G. Gardner

Department of Transpotation 605 Suwanee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

STATEMENT OF THE ISSUES

The issue at the hearing was whether proposed sign locations located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate

10 and 7500 feet East of State Road 79 on the North side of Iterstate 10 should be permitted. 1/

PRELIMINARY STATEMENT

On October 27, 1988 Petitioner applied for permits for two proposed signs located in Holmes County 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. By Memorandum of Returned Application, dated November 7, 1988, the Department notified Petitioner that it would not issue permits for the proposed sign locations. The denial of the two permits was based on the proposed sites being located in an area the Department alleged was zoned primarily to permit outdoor advertising signs. Petitioner requested a formal hearing to contest the Department's denial.

At the hearing, Petitioner presented three witnesses and offered into evidence six exhibits. Respondent presented one witness and offered ten exhibits into evidence. Additionally the parties stipulated that Petitioner's Exhibit Number 2 is a certified copy of the current zoning ordinance for Holmes County, Florida, that said ordinance zones the entire unincorporated area of Holmes County, Florida, that both of the proposed sign locations are in areas which are zoned commercial, and that Interstate 10 is an improved federal and state roadway.

Petitioner filed its Proposed Recommended Order on May 30, 1989.

Respondent did not file a Proposed Recommended Order. Petitioner's proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cummulative or subordinate. Specific rulings on Petitioner's proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner applied to Respondent for permits on two proposed sign locations in Holmes County, Florida. The locations were 5,000 feet West of State Road 79 on the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10. Both locations are in areas which are zoned commercial and otherwise meet the Department's requirements for spacing, etc.

   
   

2. The area in question was zoned commercial in 1988 when the County adopted Ordinance Number 88-02 as a comprehensive zoning plan. The relevant commercial area parallels Interstate 10, Highway 90 and State Road 79 in which many commercial activities are presently located. The portions paralleling Interstate 10 West of State Road 79 are located on the North side of I-10 and run west, terminating at County Road 173. The portions paralleling I-10 East of State Road 79 are located on the North and South sides of I-10 and run east for over two miles. While some may disagree that the areas designated for commercial or industrial use will develop those uses in the future, it is clear that commercial or industrial development is a reasonable use of this land for comprehensive zoning purposes and neither the physical dimensions nor configurations of the area prevent or prohibit such use.

   
   

3. Prior to the enactment of Ordinance 88-02, Holmes County held several public hearings and worked with a company which is an expert in land use planning in developing this ordinance. The ordinance considers all reasonable land uses and encompasses all unincorporated areas of the County. The ordinance is consistent with the County's comprehensive plan and with the purposes of the ordinance stated therein. The Ordinance does not permit lesser uses of the commercial or industrial areas. Commercial or industrial use is the only use allowed in the commercial and industrial areas. Neither variance or special exceptions are required for a commercial or industrial use of those areas. The ordinance is clearly comprehensive zoning and was not adopted by the County for the primary purpose to permit signs.

   
   

4. Numerous other signs within this same area have been permitted by DOT since the adoption of Ordinance 88-02.

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sect. 120.57(1), Florida Statutes.

   
   

6. The Department has the authority to regulate outdoor advertising along State and federally maintained roadways under the provisions of Chapter 479, Florida Statutes. One of the requirements for issuance of a sign permit is that the sign's proposed location be in an area zoned commercial or industrial. Section 479.07(10) states in pertinent part:

   
   

   (10) Commercial or industrial zoning which is not comprehensively enacted or which is enacted primarily to permit signs shall not be recognized as commercial or industrial zoning for purposes of this provision, and permits shall not be issued for signs in such areas. . . .

   
   

7. Rule 14-10.0051, Florida Administrative Code, is the Rule which establishes the Department's criteria for determining whether an ordinance is comprehensively enacted or whether an ordinance was enacted primarily for the purpose to permit signs. Rule 14-10.0051, Florida Administrative Code, states in pertinent part:

   
   

   1. The following definitions shall apply:

      1. "Comprehensively enacted zoning" means a method of control which directs the use and development of property in a municipality or political subdivision by dividing it into districts according to the present and potential use of the property, pursuant to a comprehensive plan.

      2. "Comprehensive plan" means a development plan which is to serve as a guide for future decisions relating to zoning and the growth and development of the area.

   2. Criteria for Signs in Zoned Commercial and Industrial Areas.

      1. Where a local jurisdiction has commercial and industrial zoning, the following criteria will be applied by the Department to determine for outdoor advertising control purposes whether such zoning is comprehensively enacted:

         The zoning considers all reasonable land uses.

         1. The zoning designates or

            reserves for future designation all areas of the jurisdiction.

         2. The zoning is consistent with the purposes of the ordinance.

      2. Even if comprehensively enacted, the following criteria shall be considered in determining whether such zoning is

         enacted primarily to permit signs:

         1. The zoning classification provides for limited commercial or industrial activity only as an incident to other primary land uses.

         2. The commercial and industrial activities, separately or together, are permitted only by variance or special exceptions.

         3. The zoning is not consistent with the comprehensive plan.

         4. The physical dimensions or configurations of affected parcels would not reasonably accommodate typical commercial or industrial uses.

         5. Areas which constitute spot zoning.

         
         

8. The evidence clearly demonstrated that Ordinance Number 88-02 of Holmes County was comprehensively enacted and was not enacted for the purposes of permitting signs. The Department's reasons for denying the sign permits were based on the fact that the Department's inspector did not believe the specific proposed sign locations to be areas subject to commercial or industrial use.

   The Rule does not permit the Department to pick specific areas out of an otherwise properly zoned commercial or industrial area and deny sign permits based on the Department's belief that the specified locale is not conducive to commercial or industrial use. Such an application of the Rule is spot zoning and is not permitted by the Rule. The Department's characterization of an area as zoned primarily to permit signs must be based on the whole commercially or industrially zoned area. 2/ The Department has no monitoring powers over a local government's comprehensive zoning authority even if that authority may be incomplete or faulty, unless those deficiencies demonstrate that the local government's land use designation was to primarily permit outdoor advertising. Best Western Tivoli Inn v. Department of Transportation, 435 So.2d 321 (Fla.

   1983).

   
   

9. Petitioner's two proposed sign locations are located within an area commercially or industrially zoned. The area was not zoned for the purpose of permitting signs. The proposed sign locations and signs meet all the other requirements of the Department's statutes and Rules. The proposed signs should, therefore, be permitted.

RECOMMENDATION

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

permitting signs located in Holmes County 5,000 feet West of State Road 79 on

the South side of Interstate 10 and 7500 feet East of State Road 79 on the North side of Interstate 10.

DONE and ENTERED this 18th day of July, 1989, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989.

ENDNOTES

1/ The request for hearing referred to the Division of Administrative Hearings only covered the proposed sign location on the East side of State Road 79.

However, Respondent agreed to allow Petitioner to amend his request to include the proposed sign location on the West side of State Road 79 and to have both permits for both locations addressed by this Recommended Order.

2/ The foregoing statement does not preclude the Department from attempting to demonstrate the intent of an enacting authority in passing its zoning ordinance was to primarily permit signs. However, such an intent is not supported by the facts of this case.

APPENDIX TO RECOMMENDED ORDER CASE NO. 88-6317T

1. The facts contained in paragraphs 1, 2 and 5 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

2. The facts contained in paragraphs 3, 4 and 6 of Petitioner's Proposed Findings of Facts are subordinate.

COPIES FURNISHED:

Gerald Holley

P.O. Box 268

Chipley, Florida 32428

Charles G. Gardner Department of Transpotation 605 Suwanee Street

Haydon Burns Building Tallahassee, Florida 32399-0450

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwanee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 88-006317

Orders for Case No: 88-006317