STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWORTH ADVERTISING DISPLAYS, )

)

Petitioner, )

)

vs. ) Case No. 99-1660T

) DOT No. 99-0112 DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

) SOUTHWORTH ADVERTISING DISPLAYS, )

)

Petitioner, )

)

vs. ) Case No. 99-1661T

) DOT No. 99-0113 DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on July 9, 1999, a formal hearing was held in these cases. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes.

The hearing location was the offices of the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Timothy D. Padgett, Esquire

Penson & Padgett, P.A.

2810 Remington Green Circle Tallahassee, Florida 32308

For Respondent: Kelly A. Bennett, Esquire

Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32299-0450 STATEMENT OF THE ISSUES

Is Southworth Advertising Displays, Petitioner (Southworth), entitled to a permit for a sign in Madison County, Florida,

1.5 miles west of U.S. 221, on the north side of I-10 facing east, DOAH Case No. 99-1660T, to be issued by the Department of Transportation, Respondent (the Department)? Is Southworth entitled to permits issued by the Department for a sign in Madison County, Florida, 1.31 miles east of County Road 255, on the north side of I-10 facing east and west, DOAH Case

No. 99-1661T?

PRELIMINARY STATEMENT

Southworth applied to the Department for permits for the faces of the signs described. The permits for the sign faces to be located in the vicinity of County Road 255 on I-10 were denied on February 23, 1999. The permit for a sign to face east in the area near U.S. 221 on I-10 was denied on March 10, 1999. On March 23, 1999, separate petitions were filed challenging the Intent to Deny the respective sign permits for the locations on

I-10.

On April 7, 1999, the cases were referred to the Division of Administrative Hearings to conduct a formal hearing in accordance with Section 120.57(1), Florida Statutes. The cases were

assigned to this Administrative Law Judge and a formal hearing ensued.

In reference to DOAH Case No. 99-1660T, the Department had assigned DOT Case No. 99-0113, related to the application for a sign permit at the location on I-10, 1.5 miles west of U.S. 221. DOAH Case No. 99-1661T refers to DOT Case No. 99-0112, in relation to sign permits for the east and west side of the sign that Southworth wishes to install on I-10 in the vicinity of County Road 255.

At hearing Southworth presented the testimony of Claudia Yvonne MacDonald, James Adderley, and Dan Southworth.

Southworth's Exhibits numbered 1 through 4 were admitted as Petitioner's exhibits. The Department presented the testimony of John Garner. Department's Exhibits numbered 2 through 4 were admitted as DOT exhibits. Department's exhibit numbered 4 was a late-filed exhibit that has been accepted.

A hearing transcript was filed on July 26, 1999. The parties timely submitted proposed recommended orders which have been considered in preparing this recommended order.

FINDINGS OF FACT

Permit Denial

1. Southworth applied to the Department for a state sign permit for a location in Madison County, Florida, 1.5 miles west of U.S. 221 on the north side of I-10 facing east.

2. By separate application, Southworth applied for sign permits for a sign in Madison County, Florida, 1.31 miles east of County Road 255 on the north side of I-10 facing east and west.

3. If permitted, all signs would be located within portions of the interstate highway system controlled by the Department for purposes set forth in Chapter 479, Florida Statutes. That law confers regulatory authority on the Department in determining Southworth's ability to construct the signs.

4. Following permit review the Department denied the applications based upon proposed agency action finding that Southworth was out of compliance with the requirements set forth in Section 479.111(2), Florida Statutes (1997). For the sign to be located in the vicinity of U.S. 221, there was an additional concern about the placement of the sign in proximity to the state right-of-way. At hearing the parties expressed a willingness to resolve that issue through the conduct of a survey of the parcel in determining the proper placement of the sign if otherwise permitted.

5. Southworth challenged the denials by petitions filed March 23, 1999.

   Local Comprehensive Plan

   
   

6. Madison County has a comprehensive plan in conformance with requirements in Chapter 163, Florida Statutes, to include a future land use map.

7. Additionally, Chapter 4, entitled Land Development Code, addresses zoning within Madison County as land use development regulations. Section 4.2-2 to that code lists the land use districts within the county, to include A-2, also referred to as Agriculture-2. Section 4.4B specifically describes Agriculture-2 where it states:

   1. Purpose and Intent.

      
      

      These areas are predominantly in agricultural and silvicultural use.

      
      

   2. Allowable Uses.

      
      

      1. Agricultural.

         
         

      2. Residential, subject to the density standards in the code.

         
         

      3. Institutional, excluding residential care facilities and nursing homes, as contained in (i).

         
         

      4. Outdoor Recreational.

         
         

      5. Public Service/Utility, as contained in (i).

         
         

      6. Mining.

         
         

      7. General Commercial; neighborhood scale only; subject to locational requirements.

         
         

      8. Public, as contained in (i).

         
         

      9. Special Exception Uses: (see also Section 4.6-4).

         
         

         1. Borrow Pits intended for use exceeding 60 days;

            
            

         2. Residential care facilities and nursing homes;

         3. Prison/Correctional facilities.

            
            

         4. Public Service/Utility.

            
            

         5. Public.

      
      

8. In association with the description of neighborhood scale, Section 4.5 Development Standards, B. Special Locational, density and intensity requirements, 4. Neighborhood commercial uses shall:

   1. Be located within three-hundred thirty

      (330) feet of the intersection of major roadways (principal arterial, minor arterial, major collector, or minor collector).

      
      

   2. Not exceed 10,000 square feet of gross floor area.

      
      

   3. Not occupy more than five (5) percent of the district in which the neighborhood commercial use is located.

   
   

9. Contrary to Southworth's contention, free-standing signs such as those under consideration do not conform to the Agriculture-2 General Commercial Designation or any other designation in the land use district. The signs standing alone are unassociated with the general neighborhood commercial enterprise described in the land use development regulations. Even should the proposed free-standing signs be considered a general commercial activity, they are not located within 330 feet of the intersection of major roadways, failing which the signs would not be considered a neighborhood commercial activity allowed under terms set forth in the land use development regulations.

   Changes to Chapter 479

   
   

10. After the Department noticed its Intent to Deny the Southworth applications for sign permits, but prior to the formal hearing, amendments were made to Section 479.01(3) and (23), Florida Statutes, as those provisions are implicated in Section 479.111(2), Florida Statutes (1997). The effective date of those amendments was July 1, 1999. The amendments were made in House Bill 591, Section 37. As a result, Section 479.01, Florida Statutes, reads as follows:

    (3). 'Commercial or industrial zone' means a parcel of land an area within 660 feet of the nearest edge of the right of way of the interstate or federal aid primary system designated predominately for commercial or industrial use under both the future land use map of the comprehensive plan and the land use development regulations adopted pursuant to Chapter 163. If a parcel is located in an area designated for multiple uses on the future land use map of a comprehensive plan and the land development regulations do not clearly designate that parcel for a specific use, the area will be considered an unzoned commercial or industrial area if it meets the criteria of subsection (23). Where a local governmental entity has not enacted a comprehensive plan by local ordinance but the zoning regulations governing the area, the zoning of an area shall determine whether the area is designated predominately for commercial or industrial uses.

    (23). 'Unzoned commercial or industrial area' means a parcel of land designated by the an area within 660 feet of the nearest edge of the right of way of the interstate or federal aid primary system where the land use is not covered by a future land use map of the comprehensive plan for multiple uses that include commercial or industrial uses but are not specifically designated for commercial or

    industrial uses under the land development regulations or zoning regulation pursuant to subsection (2), in which there are located three or more separate and distinct conforming industrial or commercial activities are located.

    
    

    1. These activities must satisfy the following criteria:

       
       

       1. At least one of the commercial or industrial activities must be located on the same side of the highway and within 800 feet of the sign location;

          
          

       2. The commercial or industrial activities must be within 660 feet from the nearest edge of the right-of-way; and

          
          

       3. The commercial industrial activities must be within 1,600 feet of each other.

       
       

       Distances specified in this paragraph must be measured from the nearest outer edge of the primary building or primary building complex when the individual units of the complex are connected by covered walkways. Uses located within a 1,600 foot radius of each other and generally recognized as commercial or industrial by zoning authorities in this state.

       
       

    2. Certain activities, including, but not limited to, the following, may not be so recognized as commercial or industrial activities:

    
    

    1.(a) Signs.

    
    

    2.(b) Agricultural, forestry, ranching, grazing, farming, and related activities, including, but not limited to, wayside fresh produce stands.

    
    

    3.(c) Transient or temporary activities.

    
    

    4.(d) Activities not visible from the main-traveled way.

    5.(e) Activities conducted more than 660 feet from the nearest edge of the right-of-way.

    
    

    6.(f) Activities conducted in a building principally used as a residence.

    
    

    7.(g) Railroad tracks and minor sidings.

    
    

    8. Communication towers.

    
    

    Non-compliance

    
    

11. The parcels in question are located in areas designated for multiple uses under the future land use map. The local land development regulations do not clearly designate the areas where the parcels are found for a specific use. Therefore, Southworth must meet the criteria for unzoned commercial or unzoned industrial to qualify for the permits. To that end, three or more separate and distinct conforming industrial or commercial activities are not presently located in the areas where the signs would be placed when examining the criteria set forth in House Bill 591, Section 37, related to Section 479.01(23)(a) and (b), Florida Statutes.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Sections 120.569 and 120.57(1), Florida Statutes.

13. In this case, Southworth must demonstrate compliance with Section 479.111(2), Florida Statutes (1997), by proving that the signs to be erected constitute signs in commercial-zoned,

    industrial-zoned, commercial-unzoned or industrial-unzoned areas, in that the signs to be erected are within controlled portions of the interstate highway system, I-10. The Department has jurisdiction to determine the propriety of granting the permits sought by Southworth without resort to the opinion expressed by the Madison County planning authorities who are familiar with the Madison County Comprehensive Plan, the future land use map of the comprehensive plan and the land use development regulations associated with the comprehensive plan.

14. In determining Southworth's entitlement to the sign permits, resort is made to the definitions set forth in House Bill 591, Section 37, amendments to Section 479.01(3) and (23), Florida Statutes, effective July 1, 1999. See Lavernia v. Dept of Prof Regulation, 616 So. 2d 53 (Fla. 1st DCA 1993).

15. Upon the facts and law found Southworth is not entitled to the issuance of the permits.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered which denies the applications for permits to place signs in Madison County, Florida, 1.5 miles west of U.S. 221 on the north side of I-10 facing east, and

1.31 miles east of County Road 255 on the north side of I-10 facing east and west.

DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1999.

COPIES FURNISHED:

Timothy D. Padgett, Esquire Penson & Padgett, P.A.

2810 Remington Green Circle Tallahassee, Florida 32308

Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas F. Barry, Secretary

Attn: James C. Myers, Agency Clerk Department of Transportation

Haydon Burns Building Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-001660

Orders for Case No: 99-001660