STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CLEAR CHANNEL OUTDOOR, INC.,
Petitioner,
vs.
DEPARTMENT OF TRANSPORTATION,
Respondent.
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) Case No. 06-0365
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RECOMMENDED ORDER
Notice was provided and on October 26, 2006, a formal hearing was held in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006). The hearing location was the Office of the Division of Administrative Hearings, DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. The hearing commenced at 9:30 a.m. Charles C. Adams, Administrative Law Judge, conducted the hearing.
APPEARANCES
For Petitioner: Paul Sexton, Esquire
Williams Wilson & Sexton, P.A.
215 South Monroe Street, Suite 600-A Tallahassee, Florida 32302
For Respondent: Robert M. Burdick, Esquire
Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUE
Should Petitioner, Clear Channel Outdoor, Inc. (Clear Channel) be permitted to remove, cut, or trim trees located in the view zone related to outdoor advertising signs, FDOT Permit Tag Nos. BL-017 and BL-018, issued by Department of Transportation (DOT) to Clear Channel, for a location at the intersection of Northeast Eighth Avenue and State Road 24 (Waldo Road), in Gainesville, Alachua County, Florida?
PRELIMINARY STATEMENT
On February 1, 2002, Clear Channel completed separate applications for Permit Tag Nos. BL-017 and BL-018, requesting that DOT grant vegetation management permits for the signs.
The applications referred the signs at an approximate distance of 300 feet from the intersection of Northeast Eighth Avenue and State Road 24. The sign for BL-017 faces south. The sign for BL-018 faces north. Both are on the right side of State Road 24 proceeding north. Clear Channel sought approval for a five-year vegetation management plan and the permission to remove designated trees described in the application. More specifically, the signs at issue are near the northeast corner of the intersection at Northeast Eighth Avenue and Waldo Road.
On April 25, 2002, DOT denied the Clear Channel applications for vegetation management permits.
On May 15, 2002, the DOT received a request from Clear Channel for a formal hearing to consider the denial of the vegetation management permit applications.
On January 27, 2006, the Division of Administrative Hearings (DOAH) in the person of Robert S. Cohen, Director and Chief Judge, received a request from DOT to conduct a hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2005), concerning the applications by Clear Channel to obtain vegetation management permits. Don W. Davis, Administrative Law Judge, was assigned to conduct the administrative hearing in association with DOAH Case No. 06-0365. The hearing was conducted by the undersigned in substitution for ALJ Davis. The hearing was held after several continuances were granted.
An Order of Prehearing Instructions was entered requiring the parties to consult and file a prehearing stipulation. The parties complied with the order. In accordance with the prehearing order, the parties acknowledge certain facts described as admitted facts. These facts will be reported in the findings of fact in this Recommended Order.
At hearing, Clear Channel presented Arthur Cyrus Adams, Jr., Reid Whisonant, Richard Bush, and John Garner as its witnesses. Clear Channel Exhibits numbered 1 through 17 were admitted. DOT presented Jordan Green and John Garner as its witnesses. DOT Exhibits numbered 1 through 4 were admitted. A
request to officially recognize Florida Administrative Code Rule 14-40.040(1), was granted.
Clear Channel tried to establish that DOT proceeded with its review of the applications for the vegetation management permits by resort to an unadopted rule. § 120.57(1)(e)1., Fla. Stat. (2006). When the hearing commenced, Clear Channel argued that DOT in its interpretation of the language "public right-of- way" found at Section 479.106(1), Florida Statutes (2006), also found in Section 479.106(1), Florida Statutes (2001), when the applications were made, constituted an unadopted rule subject to de novo review by the administrative law judge, when limited in its meaning to the interstate highway system, expressways, federal-aid primary highways and the State Highway System.
Clear Channel was allowed to present evidence to support its assertion that its substantial interest had been determined by resort to the alleged unadopted rule, as a threshold requirement to any de novo review, in which DOT must demonstrate compliance with criteria set forth in Section 120.57(1)(e)2., Florida Statutes (2006). Clear Channel presented John Garner, the DOT Manager of Production and Program Operations for the Office of Right-of-Way to support its argument. No additional evidence was presented on the issue. Counsel for the parties were offered the opportunity for oral argument on the subject.
Following the argument, a ruling was made rejecting the argument
by Clear Channel. DOT in its response to the applications was not deemed to have pursued an unadopted rule. The testimony by the witness Garner, oral argument by counsel, and the ruling are set forth in the hearing transcript that has been filed.
On November 7, 2006, the hearing transcript was filed. On November 28, 2006, the parties timely filed proposed recommended orders. The proposed recommended orders have been considered in preparing the Recommended Order.
FINDINGS OF FACT
Facts by Stipulation
DOT issued a notice of denial of Clear Channel's application for vegetation management on April 25, 2002.
Clear Channel filed its petition for formal administrative hearing on May 15, 2002.
Clear Channel maintains two outdoor advertising signs on the eastern side of Waldo Road, constructed in 1978 and bearing DOT Permit Nos. 99771 and 99761 and Tag Nos. BL-017 and BL-018.
Waldo Road is a Federal aid primary highway.
For decades, CSX Transportation, Inc., and its predecessors owned railroad right-of-way along Waldo Road.
Waldo Road overlaps the western side of the railroad right-of-way pursuant to a 1927 agreement with Seaboard Airline Railway Company. CSX and its predecessors maintained a railroad
line on the eastern side of that railroad right-of-way, between the edge of Waldo Road and the property on which Clear Channel's signs are located.
In 1987 CSX abandoned its rail line and deeded the rail right-of-way to DOT.
In the early 1990s, the City of Gainesville planted trees between Clear Channel's signs and the edge of Waldo Road pursuant to a highway beautification grant agreement with DOT.
In the late 1990s, the City of Gainesville planted additional trees between Clear Channel's signs and the edge of Waldo Road pursuant to a highway beautification grant with DOT.
The trees located between Clear Channel's signs and the edge of Waldo Road that Clear Channel seeks to remove or trim partially or completely screen the signs from the view of drivers on Waldo Road.
Additional Facts
The Clear Channel signs bearing DOT permit numbers 99771 and 99761 have been annually renewed and maintained since constructed in 1978. Clear Channel is the successor in ownership of the signs to prior outdoor advertising firms. Clear Channel has a lease with the landowner at the site that allows the signs to be used for advertising purposes.
The signs are intended to advertise to the north and south when viewed from State Road 24.
The sign facing south is obscured by vegetation when viewed from State Road 24. This has reduced the revenue earned from marketing the sign by two-thirds. The north-facing sign has shown a 50% reduction in revenue for the same reason. The more the vegetation grows, the greater the prospect that the signs will be unmarketable to any extent for advertising purposes. Should the signs be unmarketable for advertising proposes, they would constitute a burden to Clear Channel, in their maintenance, to meet OSHA standards and the necessity to make lease payments to the landowner.
The signs screened by the vegetation limit the opportunity for the motoring public to see the advertising displayed on the sign faces when passing, in part due to the planting of trees by the City of Gainesville under the beautification grants issued in the early and late 1990s.
The signs cannot be elevated above the screening vegetation to allow them to be seen, due to local permit limitations imposed by the City of Gainesville.
Petitioner's Exhibit numbered 10 illustrates the nature of the beautification project in the early 1990s, as submitted to DOT by the City of Gainesville. Petitioner's Exhibit numbered 8 shows a map detail of the approximate location of trees in the late 1990s beautification project.
More significantly, the aerial photographs, Petitioner's Exhibit numbered 1 depicting the year 1988 prior to beautification and Petitioner's Exhibit numbered 3 depicting the year 2004 after beautification, illustrate the significant influence of the beautification projects of the City of Gainesville in relation to the signs and the ability to view the sign faces from State Road 24. Petitioner's Exhibit numbered 2 depicts the year 1988 with the view zones for the signs outlined in red, as contrasted with Petitioner's Exhibit numbered 4 the year 2004 with the view zones for the signs outlined in red.
Petitioner's Exhibit numbered 11 is a series of photographs recently made depicting the ability to see the sign faces from State Road 24 at various distances from the sign locations traveling along the road. These photographs address the north-facing and south-facing signs in relation to State Road 24. The photographs portray the difficulty in observing the signs from State Road 24, depending on how close one is to the sign itself. It is necessary to be in close proximity to see a sign clearly.
The vegetation planted near the location of the two signs is low-growth in contrast to other vegetation planted under the beautification grants in more remote locations, which tends to display more of a canopy effect.
Most of the trees in the vicinity of the signs which obstruct the ability for the motoring public to see their display were planted by the City of Gainesville. The exception is a group of sabal palms near the center or apex of the two signs. All trees are depicted in Petitioner's Exhibit numbered 11, referred to as the "apex of structure looking to row."
Petitioner's Exhibit numbered 4 outlines those locations where Clear Channel would anticipate removing vegetation.
The applications made on February 1, 2002, in relation to the signs are found in Petitioner's Exhibit numbered 5. The applications describe the removal of "two trees shown in view from 500 feet. I could not identify for lack of foliage. Three cabbage palms shown in view from 300 feet."
Petitioner's Exhibit numbered 6 is a more expansive diagram, showing the request to remove a considerable number of trees, while trimming other trees to allow better visibility of the signs from State Road 24. The diagram also corrects the impression of color-coding indicating that the trees would stay in certain locations. The diagram has been altered to reflect that certain trees that initially were marked as being kept are now marked with the letter "R" and circled as being removed. The same pertains to trees that were marked with the letter "R" and circled, that had initially been identified for trimming and
not removal. With this modification, the trees to be trimmed or removed under the Clear Channel continue to be those located between the signs and State Road 24.
Before the signs were permitted in 1978, the DOT right-of-way map in the vicinity of State Road 24 and Northeast Eighth Avenue, approved on December 2, 1966, Respondent's Exhibit numbered 3, reflected the dimensions of State Road 24, to include the existing easement line associated with the easement for State Road 24 and the Seaboard Airline Railroad corridor on the opposite side of that easement line. DOT had acquired the State Road 24 easement from the railroad to extend State Road 24. The easement took in a portion of the railroad right-of-way.
On June 17, 1987, CSX Transportation deeded to DOT, pertaining to the former Seaboard Airline Railroad, the rail right-of-way in the vicinity of the State Road 24 and Northeast Eighth Avenue and other locations in Gainesville, Alachua County, Florida. This is reflected in Respondent's Exhibit numbered 1. This meant that the easement for State Road 24 obtained from CSX Transportation, Inc., associated with State Road 24 was now owned by DOT, together with the balance of the railroad right-of-way. The balance of the tract or parcel previously owned by CSX Transportation no longer served as an active rail corridor.
Respondent's Exhibit numbered 4 is a right-of-way map drawn July 29, 1988. It depicts the existing easement line separating State Road 24 from the other property that had been obtained from CSX Transportation. In the more recent map, the railroad is not reflected as it had been in the 1966 map. The 1988 right-of-way map in other respects is comparable as to the locale depicted, that is the vicinity of State Road 24 and Northeast Eighth Avenue.
On October 3, 1989, DOT entered into an agreement with Alachua County and the City of Gainesville to allow the abandoned railroad right-of-way corridor, to include the vicinity of State Road 24 and Northeast Eighth Avenue, to be used for pedestrian and bicycle traffic, upon condition that the maintenance of the corridor be the responsibility of the county and city. Respondent's Exhibit numbered 2.
In February 1990, the City of Gainesville applied for the highway beautification grant from DOT along State Road 24, where the railroad had been, to include the area where the Clear Channel signs were located. Information concerning the application for the highway beautification grant is set out in Petitioner's Exhibit numbered 9. It called for the planting of 715 trees and 4,133 shrubs associated with an 8-foot wide asphalt path to be used by joggers, bicyclists, and pedestrians. The installation of the trees and shrubs would be in accordance
with the establishment of landscaping to be maintained over time. DOT and the City of Gainesville entered into a Highway Landscape Grant Agreement and Landscape Construction and Maintenance Memorandum Agreement. The details of that agreement are not precisely known, in that the agreement is no longer available, but it is similar in its terms to a subsequent agreement made in 1999 between the same parties.
The City of Gainesville applied the second time for a beautification grant. That grant was approved pursuant to an agreement entered on January 22, 1999. The terms of that agreement are reflected in Petitioner's Exhibit numbered 7, which is a copy of the Highway Landscape Grant Agreement and Landscape Grant Agreement and Landscape Construction and Maintenance Memorandum of Agreement. The January 22, 1999, agreement encompasses the area which is found in the vicinity of "the unpaved areas within the right-of-way of State Road 24", and its intersection with Northeast Eighth Avenue. This arrangement also led to the planting of trees.
Charles R. Bush is employed by DOT in the district office that serves Alachua County. He works in District 2 located in Lake City, Florida. His duties include vegetation management overseen by the district maintenance section.
Mr. Bush also serves in the capacity of DOT coordinator for highway beautification grants in District 2. He is familiar
with both beautification grants issued to the City of Gainesville in the area in question and testified about them from the agency perspective.
However, when the 1990 application was made by the City of Gainesville for a beautification grant, it was handled through the right-of-way office of District 2. That was a separate function within District 2. At that time there was no concern for any problems with the viewing zones to allow the motoring public to see the Clear Channel signs that were previously installed and the influence that vegetation might have if the City of Gainesville were allowed to plant vegetation that would obscure the view.
When the 1999 agreement was entered into between DOT and the City of Gainesville to allow activities associated with the beautification grant, the unit within District 2, the maintenance office where Mr. Bush worked, was responsible for application review. That unit was cognizant of the relationship between the beautification grant application and the existence of outdoor advertising signs. The owners of the signs in question did not approach DOT at the time the beautification grant application was being considered that was subsequently issued to the City of Gainesville in 1999. The City of Gainesville made no mention of the signs in its application. While the grant application was under review, someone in a
meeting about the subject, indicated in Mr. Bush's presence that the other person understood the signs in question were not going to be maintained. As a consequence, the DOT employees decided that they would not concern themselves with the issue of the effect of the beautification grant on the signs being seen by the motoring public and proceeded with the grant application as if the signs had been abandoned. The signs were not considered by DOT as being in a good state of repair. Mr. Bush recalled that some time during the pendency of the grant review process, Clear Channel took steps to refurbish the signs and had advertising material displayed, but as Mr. Bush described it, "the grant had been processed, and the Gainesville people started planting trees and that's when the conflict started." Throughout this process leading to the establishment of the grant for the City of Gainesville, DOT did not contact Clear Channel about the status of the two signs in question.
According to Arthur Cyrus Adams, Jr., president of Clear Channel North Central Florida operations, the signs have been actively maintained and available for advertising since permitted by DOT. At times in the late 1990s, while the signs were being regularly leased to advertisers, the north-facing sign had paper copy utilizing 28-day cycles that would begin to deteriorate if kept in place more than six weeks. That representation by the company official does not conflict with
what Mr. Bush had to say about the circumstances out at the location in the instance where DOT thought the signs were not being utilized.
The permission provided the City of Gainesville under both grants allowed planting in the railroad corridor that has been described, as well as the right-of-way associated with State Road 24.
As shown in Petitioner's Exhibit numbered 6, seven trees that Clear Channel wishes to remove are within the Waldo Road or State Road 24 right-of-way. DOT does not contest the right to obtain a permit to remove those trees. The majority of the trees sought for trimming and removal, as reflected in that exhibit, are located in the rail corridor now owned by DOT. Among those trees are numerous trees planted by the City of Gainesville pursuant to the beautification grants. This group of trees and the palm trees previously described that were in place before beautification, are trees that DOT would deny Clear Channel a vegetation management permit to allow trimming and removal. The denial is based upon the DOT view that the rail corridor property is not public right-of-way as mentioned within Section 479.106, Florida Statutes, and tree removal and trimming in that area cannot be authorized.
As Charles Garner, DOT Manager of Production and Program Operations for the Office of Right-of-Way explains, DOT
denied a vegetation management permit to Clear Channel because it interpreted Section 479.106, Florida Statutes, in its reference to a "public right-of-way" as being synonymous with highway rights-of-way, while excluding railroad corridors. Part of a number of tree sought for removal or trimming fall within what DOT considers a railroad corridor. DOT has interpreted Section 479.106, Florida Statutes, pertaining to vegetation management permits as creating a view zone "for properly permitted outdoor advertising signs from the highway." Again, Mr. Garner in stating the DOT position refers to a "view zone," as to the highway rights-of-way, that does not extend outside the right-of-way across another property zone used for other purposes. As Mr. Garner explains, "We do not take a position as to whether a sign owner has the right to remove vegetation on privatively-owned property or areas of that nature. I believe the statute as it was enacted this past year in 479.106 makes it clear that that view zone does not extend to other publicly- owned lands, only on highway rights-of-way." When quoting from Mr. Garner, his reference to the statute enacted this past year is perceived as a reference to Section 479.106(6)(a), Florida Statutes (2006), describing view zones in relation to public rights-of-way of interstate highways, expressways, federal-aid primary highways, and the State Highway System in Florida, excluding other privately or other publicly-owned property.
Jordan Green is the area transportation development engineer for DOT District 2. He explained that DOT has no plans to expand the paved surface of State Road 24 in the vicinity of that road and Northeast Eighth Avenue. It is inferred that this form of expansion could involve the rail corridor property in the vicinity of the signs if undertaken.
The sidewalk and bike path in the rail corridor at issue constitute transportation facilities according to
Mr. Green, whose testimony is accepted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).
Clear Channel seeks permission from DOT to manage vegetation that obstructs the view zones associated with its signs near Northeast Eighth Avenue and State Road 24 in Gainesville, Florida. This began in accordance with Section 479.106(1), Florida Statutes (2006) which states:
The removal, cutting, or trimming of trees or vegetation on public right-of-way to make visible or to ensure future visibility of the facing of a proposed sign or previously permitted sign shall be performed only with the written permission of the department in accordance with the provisions of this section.
Clear Channel has the burden to establish its entitlement to permission, DOT having denied the applications for vegetation management. In addition, Clear Channel had the burden to proceed with the proof and it did. See Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
The facts found in resolving this case were based upon a preponderance of the evidence. §§ 120.57(1)(j), Fla. Stat. (2006).
By way of history, Clear Channel was required to obtain permits from DOT for the signs it constructed in 1978. Beyond that point, the permits have been renewed as required by law. Based upon the facts, it is inferred that the most recent annual renewal took place as called for in Section 479.07(8)(a), Florida Statutes (2005).
The erection, operation, use and maintenance of the signs in accordance with the permits is recognized pursuant to Section 479.07(1), Florida Statutes (2006), which states:
Except as provided in ss. 479.105(1)(e) and 479.16, a person may not erect, operate, use, or maintain, or cause to be erected, operated, used, or maintained, any sign on the State Highway System outside an incorporated area or on any portion of the interstate or federal-aid primary highway system without first obtaining a permit for the sign from the department and paying the annual fee as provided in this section. For purposes of this section, "on any portion of
the State Highway System, interstate, or federal-aid primary system" shall mean a sign located within the controlled area which is visible from any portion of the main-traveled way of such system.
Terms used in Chapter 479, Florida Statutes (2006), the Outdoor Advertising law, are defined at Section 479.01, Florida Statutes (2006), where it states:
479.01 Definitions.--As used in this chapter, the term:
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"Controlled area" shall mean 660 feet or less from the nearest edge of the right- of-way of any portion of the State Highway System, interstate, or federal-aid primary system and beyond 660 feet of the nearest edge of the right-of-way of any portion of the State Highway System, interstate, or federal-aid primary system outside an urban area.
"Department" means the Department of Transportation.
"Erect" means to construct, build, raise, assemble, place, affix, attach, create, paint, draw, or in any other way bring into being or establish; but it does not include any of the foregoing activities when performed as an incident to the change of advertising message or customary maintenance or repair of a sign.
"Federal-aid primary highway system" means the existing, unbuilt, or unopened system of highways or portions thereof, which shall include the National Highway System, designated as the federal-aid primary highway system by the department.
"Highway" means any road, street, or other way open or intended to be opened to the public for travel by motor vehicles.
"Interstate highway system" means the existing, unbuilt, or unopened system of highways or portions thereof designated as the national system of interstate and defense highways by the department.
"Main-traveled way" means the traveled way of a highway on which through traffic is carried. In the case of a divided highway, the traveled way of each of the separate roadways for traffic in opposite directions is a main-traveled way. It does not include such facilities as frontage roads, turning roadways, or parking areas.
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(17) "Sign" means any combination of structure and message in the form of an outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, advertising structure, advertisement, logo, symbol, or other form, whether placed individually or on a V-type, back-to-back, side-to-side, stacked, or double-faced display or automatic changeable facing, designed, intended, or used to advertise or inform, any part of the advertising message or informative contents of which is visible from any place on the main-traveled way. The term does not include an official traffic control sign, official marker, or specific information panel erected, caused to be erected, or approved by the department.
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(22) "State Highway System" means the existing, unbuilt, or unopened system of highways or portions thereof designated as the State Highway System by the department.
Clear Channel and its predecessors in ownership, routinely operated and maintained the signs from the time permitted. They did so with the expectation, according to law, that the signs be visible from the main-traveled way which is State Road 24.
Between State Road 24 and its right-of-way and the location where the signs were erected, there existed a railroad corridor with its right-of-way paralleling State Road 24 in that vicinity. Eventually CSX became the owner of the railroad that utilized the railroad corridor. The railroad operation had provided and easement to DOT as part of the State Road 24 right- of-way. On June 17, 1987, CSX by deed, gave title to DOT to the land upon which the railroad corridor and the easement previously provided for State Road 24 was found, to include the area at issue where the vegetation creating the obstruction is found.
According to Section 337.242(3), Florida Statutes (2006), DOT has control of ingress and egress to the railroad corridor. DOT may prohibit ingress and egress to the railroad corridor. The same legal authority pertained when DOT entered into a memorandum of agreement with Alachua County and the City of Gainesville in the area, to include the vicinity where the signs are found. On October 3, 1989, DOT agreed with the local governments that they be allowed to use the railroad corridor
for pedestrian and bicycle traffic and maintenance of vegetation and litter removal. The arrangement between DOT and the local governments, pursuant to the memorandum of agreement, could not interfere with the operation, use, or maintenance of the signs, whose owner had an established property interest.
In the year 1990, the City of Gainesville applied for and was eventually given a highway beautification grant from DOT. The grant was provided consistent with Section 339.2405(11), Florida Statutes (1991), which states:
State highway beautification grants may be requested only for projects to beautify through landscaping roads on the State Highway System. The grant request shall identify all costs associated with the project, including sprinkler systems, plant materials, equipment, and labor. A grant shall provide for the costs of purchase and installation of a sprinkler system, the cost of plant material and fertilizer, and may provide for the costs for labor associated with the installation of the plantings.
Each local government that receives a grant shall be responsible for any costs for water, for the maintenance of the sprinkler system, for the maintenance of the landscaped areas in accordance with a maintenance agreement with the department, and, except as otherwise provided in the grant, for any costs for the labor associated with the installation of the plantings. The department may provide, by contract, services to maintain such landscaping at a level not to exceed the cost of routine maintenance of an equivalent unlandscaped area.
The 1990s agreement between the City of Gainesville and DOT was essentially the same as a subsequent agreement between those parties entered on January 22, 1999, which allowed further beautification. Both grant projects, the early 1990s project and the January 22, 1999, project, led to the City of Gainesville landscaping in the area where the Clear Channel signs are located by placing trees and shrubs. Some of the trees planted under the beautification grants are within the State Road 24 right-of-way, others are in the railroad corridor.
The January 22, 1999, grant was provided under authority set forth in Section 339.2405(11), Florida Statutes (1998). The language in that provision was the same as quoted above in reference to Section 339.2405(11), Florida Statutes (1991). That same language is found in Section 339.2405(11), Florida Statutes (2006). The 1999 agreement pertaining to State Road 24 described the installation and maintenance of landscaping within unpaved areas within the right-of-way of State Road 24. Nothing in the 1999 agreement and by comparison the 1990s agreement, similar in its terms, to allow landscaping for beautification purposes, addressed the railroad corridor as such.
However Exhibit "B" to the 1999 agreement reflecting the landscape plan, Petitioner's Exhibit numbered 8, portrayed planning within the right-of-way of State Road 24 and the
railroad corridor as it pertains to the January 22, 1999, beautification grant. Thus DOT recognized planting within the railroad corridor as part of the beautification grant, as it had in the early 1990s grant.
Notwithstanding the opportunity created to plant in the railroad corridor, the railroad corridor at the site is not a road on the State Highway System as referenced in Section 339.2405(11), Florida Statutes (2006).
Once planted, the shrubs and trees grew to the point that they obstructed the view zone of motorists when approaching the signs owned by Clear Channel.
When the January 22, 1999, agreement was entered into between DOT and the City of Gainesville for beautification, pursuant to the grant, it was an arrangement that was contrary to Section 479.106(6), Florida Statutes (1998), associated with the process by which DOT permits removal, cutting or trimming of trees or vegetation on public right-of-ways for visibility of the sign faces, such as the signs at issue. Section 479.106(6), Florida Statutes (1998), states:
Beautification projects shall not be located in an area which will screen from view legally-erected and permitted outdoor advertising signs which have been permitted prior to the date of the beautification project.
Here the outdoor advertising signs had been permitted in 1978 and remained in operation when the beautification grant was provided.1/ The beautification project described in Section 479.106(6), Florida Statutes (1998) is that contemplated in Section 339.2405(11), Florida Statutes (1998). In placing the shrubs and trees in the State Road 24 right-of-way, the law was violated. Clear Channel's rights were compromised. Relief available to Clear Channel and redress from the decision that violated its rights is not available here, unless one concludes that beautification projects that tend to interfere with the view would have the landscaping subject to removal, cutting or trimming as part of a vegetation management permit issued pursuant to Section 479.106(1), Florida Statutes (2006).2/ Without resort to the opportunities identified in Section 479.106(6), Florida Statutes (2006), vegetation management opportunities for Clear Channel still exists in relation to a portion of the planting for beautification.
The application by Clear Channel calling for the removal, trimming and maintenance of any trees or other vegetation from the right-of-way associated with State Road 24, part of the City of Gainesville beautification projects, and otherwise, is allowed under Section 479.106(1), Florida Statutes (2006).
The 1990s beautification grant could not interfere with the public view of Clear Channel signs permitted in 1978, by planting vegetation. The 1999 beautification grant violated Section 479.106(6), Florida Statutes (1998), in addition to the general problem with the 1990s grant. Both grants interfered with established property interests held by the sign owner.
The argument by Clear Channel that the term "public right-of-way" found within Section 479.106(1), Florida Statutes (2006), extends not just the right-of-way for State Road 24, but also to the railroad corridor, where shrubs and trees had been planted under terms set forth in the 1990s and 1999 beautification grants is unpersuasive. Chapter 479, Florida Statutes, as it existed at the time that the applications for vegetation management permits were made, continuing until this time, did not concern itself with railroad corridors. Instead the meaning of "public right-of-way" in Section 479.106(1), Florida Statutes (2006), is associated with the "federal-aid primary highway system," a "highway," the "interstate highway system," and the "State Highway System," whose definitions have been previously stated under Section 479.01, Florida Statutes (2006). Opportunities in association with the sign permits most recently issued in accordance with Section 479.07, Florida Statutes (2005), concern themselves with visibility from the
main-traveled way of those highway systems, not railroad corridors.
Section 337.405(1), Florida Statutes (2006), has also been cited in this case. That provision states:
The removal, cutting, marring, defacing, or destruction of any trees or other vegetation, either by direct personal action or by causing any other person to take such action, within the rights-of-way of roads located on the State Highway System or within publicly owned rail corridors is prohibited unless prior written permission to remove or cut such trees or other vegetation has been granted by the department, except where normal tree trimming is required to ensure the safe operation of utility facilities and such tree trimming is performed in accordance with the provisions of its utility accommodations guide, and any subsequent amendments thereto. The department shall adopt rules for the implementation of this section to achieve protection of vegetation while at the same time assuring safe utility operations. (Emphasis added)
According to this law, ordinarily removal or cutting of trees or other vegetation within a publicly-owned rail corridor would not be allowed without written permission from DOT. The exception is that operation of utility facilities to address normal tree- trimming does not require written permission.
Otherwise Section 337.405(1), Florida Statutes (2006), creates an opportunity for DOT to exercise its discretion in granting the permission to remove the trees and vegetation within the publicly-owned railroad corridor, in the vicinity of the signs. Under these circumstances the permission should be given consistent with Florida Administrative Code Rule 14-
40.040.
Upon the consideration of the facts found and the conclusions of law reached, it is
RECOMMENDED:
That DOT, in its capacity, enter a final order granting Clear Channel permission to remove, trim and manage the vegetation set out in its applications, as amended at hearing.
DONE AND ENTERED this 22nd day of January, 2007, in
Tallahassee, Leon County, Florida.
S
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 22nd day of January, 2007.
ENDNOTES
1/ Section 479.106, Florida Statutes, was enacted as Chapter 96-201, Laws of Florida, after the beautification grant was provided in the 1990s project.
2/ The language within the overall section 479.106 remained consistent from its inception when enacted, Chapter 96-201, Laws of Florida, through the version found in Section 479.106, Florida Statutes (2005). When considering beautification projects that came after Chapter 2006-249, Laws of Florida became effective, the legislature has created a distinct process for dispute resolution, beyond the timeline for this case. This change was substitutive in nature, not procedural. Now Section 479.106(6), Florida Statutes (2006) states:
Beautification projects, trees, or other vegetation shall not be planted or located in the view zone of legally erected and permitted outdoor advertising signs which have been permitted prior to the date of the beautification project or other planting, where such planting will, at the time of planting or after future growth, screen such sign from view.
View zones are established along the public rights-of-way of interstate highways, expressways, federal-aid primary highways, and the State Highway System in the state, excluding privately or other publicly owned property, as follows:
A view zone of 350 feet for posted speed limits of 35 miles per hour or less.
A view zone of 500 feet for posted speed limits of over 35 miles per hour.
The established view zone shall be within the first 1,000 feet measured along the edge of the pavement in the direction of approaching traffic from a point on the edge of the pavement perpendicular to the edge of the sign facing nearest the highway and shall be continuous unless interrupted by existing, naturally occurring vegetation.
The department and the sign owner may enter into an agreement identifying the specific location of the view zone for each sign facing. In the absence of such agreement, the established view zone shall be measured from the sign along the edge of the pavement in the direction of approaching traffic as provided in this subsection.
If a sign owner alleges any governmental entity or other party has violated this subsection, the sign owner must provide 90 days' written notice to the governmental entity or other party allegedly violating this subsection. If the alleged violation is not cured by the governmental entity or other party within the 90-day period, the sign owner may file a claim in the circuit court where the sign is located. A copy of such complaint shall be served contemporaneously upon the governmental entity or other party. If the circuit court determines a violation of this subsection has occurred, the court shall award a claim for compensation equal to the lesser of the revenue from the sign lost during the time of screening or the fair market value of the sign, and the governmental entity or other party shall pay the award of compensation subject to available appeal. Any modification or removal of material within a beautification project or other planting by the governmental entity or other party to cure an alleged violation shall not require the issuance of a permit from the Department of Transportation provided not less than 48 hours' notice is provided to the department of the modification or removal of the material. A natural person, private corporation, or private partnership licensed under part II of chapter 481 providing design services for beautification or other projects shall not be subject to a claim of compensation under this section when the initial project design meets the requirements of this section.
This subsection shall not apply to the provisions of any existing written agreement executed before July 1, 2006, between any local government and the owner of an outdoor advertising sign.
Because that amendment to the law is substantive in nature, it does not pertain to the beautification project under the January 22, 1999, agreement between the City of Gainesville and DOT.
COPIES FURNISHED:
Robert M. Burdick, Esquire Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Paul Sexton, Esquire
Williams Wilson & Sexton, P.A.
215 South Monroe Street, Suite 600-A Tallahassee, Florida 32302
James C. Myers, Agency Clerk Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Denver Stutler, Secretary Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
Pamela Leslie, General Counsel Department of Transportation
Haydon Burns Building, Mail Station 58 605 Suwannee Street
Tallahassee, Florida 32399-0458
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.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 08, 2007 | Agency Final Order | |
| Jan. 22, 2007 | Recommended Order | Respondent should grant a vegetation management permit. |
