STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On October 29, 2009, a formal administrative hearing in this case was held in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: E. Bruce Strayhorn, Esquire

Strayhorn & Strayhorn

2125 First Street, Suite 201 Fort Myers, Florida 33901

For Respondent: Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue in the case is whether Carter-Pritchett Advertising, Inc.’s (Petitioner), applications for the outdoor

advertising sign permits referenced herein and filed by the Petitioner should be approved.

PRELIMINARY STATEMENT

By Notice of Denied Application dated February 16, 2009, the Department of Transportation (Respondent) advised the Petitioner that the applications for sign permits referenced herein had been denied. The Petitioner disputed the denial and requested an administrative hearing. The Respondent forwarded the request to the Division of Administrative Hearings, which scheduled the hearing. The hearing was twice continued upon separate requests of the parties and commenced on October 29, 2009.

On April 27, 2009, the Respondent issued an Amended Notice of Denied Application, which identifies the basis for the denial of the application as follows: (1) the location is not permittable under the land use designation of the site, and

(2) the location does not qualify as an unzoned commercial/industrial area. The Amended Notice specifically replaced the initial Notice of Denied Application.

At the hearing, the Petitioner presented the testimony of two witnesses and had Exhibits 3 through 7 admitted into evidence. The Respondent presented the testimony of three witnesses and had Exhibits 1 through 9 admitted into

evidence. Joint Exhibits 1 through 6 were admitted into evidence.

A pre-hearing stipulation filed by the parties on October 28, 2009, contained a statement of admitted facts and was admitted as ALJ Exhibit 1. To the extent necessary, the stipulated facts have been incorporated into this Recommended Order.

The Transcript of the hearing was filed on November 16, 2009. Both parties filed Proposed Recommended Orders on December 16, 2009.

FINDINGS OF FACT

1. The Petitioner has filed two applications for permits to locate a two-sided outdoor adverting sign on State Road 82 (Immokalee Road), approximately 3,500 feet east of Colonial Boulevard in Fort Myers, Florida. The applications were assigned numbers 57413 and 57414 by the Respondent.

2. The Respondent is the state agency charged with regulation of outdoor advertising signs within controlled portions of federal-aid primary highways, which include the site of the proposed signs at issue in this proceeding.

3. The Respondent denied the applications on the grounds that the proposed location of the sign could not be permitted under the land use designation relevant to the site and did not qualify for permitting as an unzoned commercial/industrial area.

4. The Petitioner has conceded that the parcel upon which the signs would be located does not meet the statutory definition of an unzoned commercial/industrial area. The issue in this case is whether the permit can be issued on the basis of the land use designation applicable to the parcel.

5. The City of Fort Myers Future Land Use Map classifies the relevant parcel as being within a "Mixed Use" land development category.

6. Property that is categorized as Mixed Use may be developed to include low and medium density single-family residential uses, medium and high density multi-family residential uses, as well as commercial and professional offices, industrial uses, and recreation and open space.

7. The City of Fort Myers Comprehensive Plan (Policy 2.16) requires that development of parcels that are designated as Mixed Use must be approved through a "Planned Unit Development" process.

8. In this case, development of the relevant parcel was approved by adoption of a Planned Unit Development Ordinance (PUD Ordinance No. 3356) by the City Council for the City of Fort Myers on November 20, 2006.

9. The Ordinance allows for construction of a 106,722 square foot mini-storage facility on the parcel. The signage at

   issue in this proceeding would be located on the parcel with the mini-storage facility.

10. The effective date of the Ordinance was the date of adoption, and the Ordinance requires that all construction be completed within a five-year period, which expires November 20, 2011.

11. Section 6 of the Ordinance provides as follows:

    
    

    Failure to comply with the terms and conditions of the planned unit development will result in cancellation of the development approval and the planned unit development approval shall become void and the underlying land use designation of Mixed use (MU) shall be restored.

    
    

12. The language of the Ordinance clearly indicates that the planned unit development designation is provisional and based on compliance by the developer with a number of conditions. Among the conditions are requirements that the developer: enter into a development agreement with the city to address transportation impacts of the project; contribute

    $58,500 to the City Art Fund prior to the issuance of building permits or certificates of occupancy; complete construction within a five-year period; install new vegetation if required after removal of exotics to meet code minimums; and obtain a certificate of occupancy before outdoor storage may be utilized.

13. At the time of the hearing, none of the conditions had been met. There was no evidence offered to suggest that any of the conditions would be met by the November 20, 2011, deadline.

14. The designation can be extended by the Fort Myers City Council; however, at the time of the hearing, no request for an extension had been approved.

15. Absent compliance with the conditions prior to the November 20, 2011, deadline, the provisional land use designation will become "void" and the underlying land use designation will revert to Mixed Use as specifically stated in the PUD Ordinance.

16. The signs at issue in this proceeding would not permittable under a Mixed Use designation by the City of Fort Myers.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

18. This is a de novo proceeding designed to formulate final agency action. McDonald v. Department of Banking &

    Finance, 346 So. 2d 569 (Fla. 1st DCA 1977). The Petitioner has the burden of establishing entitlement to the sign permits sought in this proceeding by a preponderance of the evidence.

    Florida Department of Transportation v. J. W. C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health & Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The Petitioner has not met the burden.

19. Section 479.111, Florida Statutes (2009), provides in relevant part as follows:

    479.111 Specified signs allowed within controlled portions of the interstate and federal-aid primary highway system.--Only the following signs shall be allowed within controlled portions of the interstate highway system and the federal-aid primary highway system as set forth in s. 479.11(1) and (2):

    
    

    * * *

    
    

    (2) Signs in commercial-zoned and industrial-zoned areas or commercial-unzoned and industrial-unzoned areas and within

    660 feet of the nearest edge of the right- of-way, subject to the requirements set forth in the agreement between the state and the United States Department of Transportation.

    
    

20. In this case, the evidence fails to establish that the zoning applicable to the parcel at issue in this proceeding is either industrial or commercial, because the classification upon which the application is based is provisional and dependent on compliance with conditions set forth in the PUD Ordinance.

21. During the hearing, the Respondent presented evidence regarding the agency's policy of reviewing existing land uses when considering matters involving temporary or provisional zoning. In reviewing the applications at issue in this

    proceeding, the Respondent performed an analysis of the parcel (otherwise known as a "use test") to determine, notwithstanding the land use designation, whether the parcel was commercial or industrial.

22. The application of the use test was based on "long standing policy" of the agency. The Respondent is in the process of codifying the policy by rule, but the rule has not yet been formally promulgated. Although the Petitioner objected to the reliance on policy or the unadopted rule, no formal rule challenge was filed.

23. In this case, it is unnecessary to address the agency's policy or the unpromulgated rule, because the land use designation in this case is clearly provisional and based on the anticipated compliance by the developer with specific conditions set forth within the Ordinance. The conditions have not been met, and, in all probability, they will remain unmet when the five-year construction deadline passes, at which time the Ordinance will expire, and the land use will revert to Mixed Use. For all practical purposes, absent evidence that any attempt is being made to comply with the conditions set forth in the Ordinance, the relevant land use category for the parcel at issue in this proceeding is Mixed Use, a designation which would not support approval of the permits at issue in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order denying the Petitioner's applications for the sign permits referenced herein.

DONE AND ENTERED this 22nd day of January, 2010, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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, 2010.

COPIES FURNISHED:

Kimberly Clark Menchion, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

E. Bruce Strayhorn, Esquire Strayhorn & Strayhorn

2125 First Street, Suite 201 Fort Myers, Florida 33901

Deanna Hurt, Clerk of Agency Proceedings Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie C. Kopelousos, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 57

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: 09-001560

Orders for Case No: 09-001560