The Issue The issue in these causes is whether denial of Petitioners' outdoor advertising sign site permit applications by Respondent were correctly determined under Subsection 479.111(2), Florida Statutes (2003), on the basis that the sign sites were unzoned commercial/industrial areas; and on the basis that within attending factual circumstances, the sign site did not qualify as unzoned commercial/industrial areas as defined in Subsection 479.01(23), Florida Statutes (2003).
Findings Of Fact Based upon the observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Sections 120.569 and 120.57, Florida Statutes (2003); and the entire record of this proceeding, the following relevant and material findings of fact are determined: Petitioner, Tropical Landholdings, a Florida Corporation, was created in 1998 and purchased approximately 700 to 800 acres of land comprised of residential multi-family and commercial properties along Interstate 75 (I-75) in Punta Gorda, Florida. On September 8, 2003, Petitioner, Crown Advertising, Inc., of Belleview, Florida, submitted three outdoor advertising sign site permit applications to the Department for review. On September 23, 2003, the Department denied the three outdoor advertising sign site permit applications for the following reasons: (1) the sign sites were not permitted under the local land use designation of site (§ 479.111(2), Fla. Stat. (2003)); and (2) the sign sites did not qualify as unzoned commercial/industrial area. § 479.01, Fla. Stat. (2003). The sign site permit application forms used by Petitioners in these causes were composed and authorized by the Department. The form required the applicant to obtain and provide information regarding the proposed sign site, what is proposed to be constructed on the site, and where the proposed construction is to occur. The sign site permit applications also required the applicant to secure information from the appropriate local zoning official of the future land use designation and the current zoning of the proposed sites enacted by the local government's Comprehensive Plan and land use development regulations. This form required information from the local government as to whether the applicant is or is not in compliance with all adopted local ordinances. Permission to erect an outdoor sign structure on the identified sign site is subject to approval by the City. Petitioners complied with the requested information. The local government, the City of North Port, approved the three sign site permit applications in question and granted Petitioners permission to erect three outdoor billboard signs. This local grant of approval was then subjected to concurring approval by the Department. After receiving the sign site permits that were approved by the City, the Department engaged the services of a consultant to conduct on-site review and identification of: (1) the local government's designation for each proposed sign site; (2) the permitted uses of each proposed sign site (local drainage facilities, pipeline corridors, underground communication cables, electric transmission lines, and outdoor advertising signs); and (3) a review of adjacent and surrounding parcels. The consultant reported to the Department the factual circumstances attendant the three locally approved sign sites. It should be noted that the consultant did not render an opinion regarding the Department's approval or denial of the sign site permit applications. The sign sites in question were zoned under the local "land use designation" of the City of North Port's Ordinance 02-46, Section 53.146 (Ordinance 02-46), as a "utility industrial corridor." The zoned land was composed of strips of land measuring 25 to 70 feet in width on the west side and 160 to 170 feet in width on the east side. The "permitted governmental uses" of a parcel zoned as a "utility industrial corridor," included such uses as underground communication cables, electric transmission lines, and outdoor advertising signs. Ordinance 02-46, under the title "Prohibited Uses and Structures," specifically prohibits "all commercial and industrial uses." Based upon a review of all information provided by Petitioners, the local government, and its consultant, the Department first determined the three sign sites on which the subject signs were to be erected and located, prohibited commercial or industrial uses. The Department then determined, based upon an analysis of the materials provided by its consultant and the City of North Port, the three sign sites in question had not been zoned for commercial or industrial uses as a part of the local government's comprehensive zoning plan. Based upon (1) the prohibition of commercial or industrial uses and (2) no commercial or industrial zoning of the sign sites, the Department concluded these three sign sites were zoned "primarily to permit outdoor advertising," a prohibited function. The denials were required. Under the local land use designation of Ordinance 02-46, the City of North Port's permitted uses included local drainage facilities and a pipeline corridor. Under governmental uses designation of Ordinance 02-46, the City of North Port's permitted uses included underground communication cables, electric transmission lines, and outdoor advertising. However, Ordinance 02-46 specifically prohibits all commercial and industrial uses under the governmental uses designation. When questioned by Petitioners, Ms. Holschuh testified "that the Department's intent was to allow [sign] permits whenever possible and never prohibit the installation of billboards." From this specific statement of testimony, Petitioners argued that "implementing the intent the Department must look beyond the labels of the zoning and look at the actual primary uses allowed under those designations." (Emphasis added.) Ms. Holschuh disagreed with Petitioners' characterization of the Department's procedures and convincingly maintained that the Department based its denials on "sign site zoning" and factors considered for determining an "unzoned commercial/industrial area" as defined by statute. Continuing with its argument, Petitioners conclude "[T]he department . . . appears to be in conflict with Judge Barbara Staros' decision of February 16, 2004, in a rule challenge proceeding, where she analyzed the Sign Permit procedure under Section 479.07, Florida Statutes." In her Final Order, Administrative Law Judge Barbara Staros made a Finding of Fact in paragraph 30, stating: Once the local government zoning official certifies that the proposed sign identified in the application is in compliance with the comprehensive plan adopted pursuant to Chapter 163, the Department does not go behind that certification to look factually at whether the zoning action was consistent with the comprehensive plan. Page 13. The procedures followed by the Department in this proceeding complied with Judge Staros Finding of Fact in paragraph 31, where she wrote: The Department uses the application and the information contained therein to determine whether a proposed sign location falls within the definition of a "commercial or industrial zone." If it does, [fall within] then the Department determines whether those designations were adopted as part of the local government's comprehensive planning efforts or were "primarily" adopted to permit outdoor advertising signs on that location. Page 30. Based upon it's receipt, review, and analysis of the specific facts provided by all parties of interest, the Department determined the sites where the signs were to be erected prohibited commercial or industrial use. The Department factually determined that no local zoning identified the sites as commercial or industrial. The Department concluded correctly and in accord with Florida Administrative Code Rule 14-10.0052 that these three sign sites were zoned by the City of North Port, the local governmental entity, "primarily to permit outdoor advertising" contrary to sign site permit procedures under Section 479.07, Florida Statutes (2003). Based upon the evidence of record and considering the size of the sign site, the local government's zoning of the site, designated uses of the site, and prohibited uses on the site, denial of the sign applications was correctly determined pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052. Based on the testimonies of Ms. Holschuh and James Duff, who testified regarding his ownership, property taxes paid, and the investors' inability to use the property in question to their economic advantage, Petitioners failed to carry the burden of producing a preponderance of credible evidence to establish that the Department incorrectly and/or wrongfully denied Petitioners' applications for three sign site permits pursuant to Subsection 479.111(2), Florida Statutes (2003), and Florida Administrative Code Rule 14-10.0052.
The Issue The issues in this case are whether six outdoor advertising sign permits previously issued to Petitioner should be reinstated; or, if not, whether new permits should be issued for the six advertising facings (two on each of three sign structures) in Clearwater, Florida.
Findings Of Fact In June 1982, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.5 mile east of U.S. 19, pursuant to permit number 6868 issued by the City of Clearwater (the City), on October 22, 1981, and pursuant to state sign permit numbers AF604 and AF605 issued by DOT on November 18, 1981. In January 1983, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.4 mile east of U.S. 19, pursuant to permit number 10406 issued by the City on October 15, 1982, and pursuant to state sign permit numbers A1288 and A1289 issued by DOT on December 20, 1982. On or about July 1, 1984, National lawfully erected an outdoor advertising billboard structure with two advertising facings located adjacent to State Road 60, 0.3 mile east of U.S. 19, pursuant to permit number SN - 24060117 issued by the City on June 6, 1984, and pursuant to state sign permit numbers AM631 and AM632 issued by DOT on January 12, 1984. National maintained the three outdoor advertising billboard structures, containing six advertising faces, as identified in Findings of Fact numbers 1, 2 and 3, above (the "subject sign structures"), in the same condition as they were when erected. Following the lawful erection of the subject sign structures, National paid DOT the required annual permit fees through the year 1995, which allowed National to maintain and operate the subject sign structures through December 31, 1995. In March of 1995, DOT notified National that it was dropping state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory because DOT had no jurisdiction over the segment of State Road 60, east of U.S. 19, adjacent to which the subject sign structures were located. The evidence was that DOT did so by serving on National a "Notice of Violation," citing DOT's lack of jurisdiction. The "Notice of Violation" gave National the opportunity to request an administrative hearing to contest DOT's action. National had no reason to question DOT's position on the jurisdictional issue but rather relied upon DOT's determination that DOT did not have jurisdiction in March of 1995. National chose not to request a hearing. The evidence was not clear as to when the DOT lost, or believed it lost, jurisdiction; the evidence also was not clear whether the DOT ever had, or believed it ever had, jurisdiction. At the time DOT dropped state sign permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 from its inventory, DOT did not refund any permit fees to National, including the permit fees which National had paid for the 1995 calendar year. Consequently, permit numbers AF604, AF605, A1288, A1289, AM631, and AM632 were fully paid through December 31, 1995. On November 2, 1995, the section of State Road 60, east of U.S. 19, along which the subject sign structures are located became part of the National Highway System (NHS), and became jurisdictional for the purpose of permitting outdoor advertising billboard structures. On August 26, 1996, Kenneth M. Towcimak, as Director of DOT's Office of Right of Way, issued a memorandum to all District Outdoor Advertising Administrators addressing implementation of outdoor advertising control over roadways which were previously uncontrolled by DOT, and which became designated as part of the NHS on November 28, 1995. The Towcimak memorandum of August 26, 1996, required notification by registered mail, with return receipt requested, to all owners of such outdoor advertising billboard structures, that they must obtain state permits by January 1, 1997. There was no evidence as to whether DOT ever notified National by registered mail, with return receipt requested, that National was required to obtain state permits by January 1, 1997, for the subject sign structures. National filed six applications for the subject sign structures on or about December 29, 1997 (one for each of the two sign facings on each sign structure). On the part of the forms asking for the location of the sign, the six applications described the location of the signs, respectively, as: "Reinstated State Tag # AF 604-10"; "Reinstated State Tag # AF 605-10"; "Reinstated State Tag # AM 631-10"; "Reinstated State Tag # AM 632-10"; "Reinstated State Tag # AI 288-10"; and "Reinstated State Tag # AI 289-10." The applications contained copies of the permits previously issued by DOT for the operation and maintenance of the subject sign structures, copies of Landowner's permission and copies of City building permits for the original construction of the sign structures. Although the applications included copies of the City building permits for the original construction of the sign structures, DOT knew that the City no longer considered the sign structures to be legal under the City's code. In 1989, the City amended its code to place limitations on the size (height and area) and concentration (one per lot) of signs in the locations of the subject sign structures. The subject sign structures exceeded at least some of the new limitations; however, the code amendment provided for a seven-year "amortization" period, until January 19, 1996, during which the signs would be permitted as legal, non-conforming signs. At the end of the "amortization" period, the signs no longer were legal under the City code. Some of the information on National's six applications was incorrect or incomplete. But all of the incorrect or incomplete information could easily have been remedied, and "incorrect information" is not the real basis upon which DOT gave notice of intent to deny the applications. The real basis for the notice of intent was the illegality of the sign structures under the City code. On or about November 22, 1999, National filed with DOT a Petition for Reinstatement for each of the three signs (each petition seeking reinstatement of the two permits for the two advertising facings for each sign structure) under Section 479.07(8)(b)1-3, Florida Statutes (1999). On January 31, 2000, DOT issued a Notice of Intent to Deny Petition for Reinstatement as to each of the three such petitions filed by National.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Department of Transportation enter a final order denying National's petitions for reinstatement and National's applications for new sign permits. DONE AND ENTERED this 3rd day of April, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 April, 2000. COPIES FURNISHED: Gerald S. Livingston, Esquire Aileen Reilly, Esquire Livingston & Reilly, P.A. Post Office Box 2151 Orlando, Florida 32802 Kelly A. Bennett, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thomas F. Barry, Secretary Attention: James C. Myers Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The outdoor advertising sign that is the subject of the instant proceeding (hereinafter referred to as the "Sign") is a billboard with steel "I" beams and iron stringers which sits perpendicular to U.S. Highway 1 approximately 1,800 feet south of Hypoluxo Road and approximately 1,000 feet north of Neptune Drive in Palm Beach County. Petitioner has owned the Sign since about 1978 or 1979, when it purchased the assets of the Sign's previous owner, Outdoor Media. The Sign was originally erected in 1963 by Ferrin Signs, Inc., pursuant to a permit issued by Palm Beach County. In 1967, Ferrin Signs, Inc., obtained a permit from Palm Beach County to perform further work on the sign. Shortly thereafter, Ferrin Signs, Inc., sold the Sign to Outdoor Media. Prior to March of 1970, the land on which the Sign is located was in the unincorporated area of Palm Beach County. In March of 1970, the land was annexed by the Town of Hypoluxo and has been within the Town's jurisdictional boundaries ever since. The Town of Hypoluxo has an ordinance currently in effect that regulates signs within the Town. The ordinance, like its predecessors dating back to 1961, prohibits "off premises signs." It also contains a section dealing with "nonconforming signs," which provides as follows: Signs or sign structures made nonconforming by this sign and signage code shall be governed by the following regulations: A sign existing within the town on or before November 30, 1992, which, because of its height, square foot area, location or other characteristics, does not conform to this article is hereby declared to be a nonconforming sign. A nonconforming sign under this subsection may be allowed to remain in existence, but if destroyed or allowed to deteriorate in excess of 50 percent of the depreciated value of the structure, it may not be replaced. The status afforded signs under this section shall not be applicable to any sign for which no sign permit was ever issued; such signs are deemed illegal signs and are subject to the provisions of this article governing illegal signs. No conforming sign or sign structure shall be permitted to be erected for the same property containing an existing nonconforming sign until the nonconforming sign has been removed or made conforming. An "off premises sign" that does not qualify for "nonconforming sign" status is subject to removal under the ordinance. The Town also has a building code. Under the code, a building permit is required before a sign within the Town may be altered or repaired. No building permit has ever been issued by the Town for any work to be performed on the Sign. On December 27, 1990, the Department issued a Notice of Violation alleging that Petitioner was maintaining the Sign without a state-issued outdoor advertising sign permit, as required by Section 497.07, Florida Statutes. In response to the Notice of Violation, Petitioner advised the Department that it would be filing an application for such a permit. Petitioner filed its application on January 12, 1993. The application was accompanied by, among other things, a copy of the 1963 Palm Beach County permit referred to in Finding of Fact 3 above. The application package, however, contained neither a permit for the Sign issued by the Town of Hypoluxo, nor a statement from any Hypoluxo official indicating that the Sign was eligible for such a permit or was otherwise allowable under the Town's sign ordinance. Accordingly, after receiving the application package, the Department contacted the Mayor of the Town, the Honorable Al Merion, to ascertain the Town's position on the matter. In conjunction therewith, it provided Mayor Merion with a copy of the 1963 Palm Beach County permit that had accompanied Petitioner's application. By letter dated January 25, 1993, Mayor Merion responded to the Department's inquiry. In his letter, he wrote: Receipt is hereby acknowledged of your fax transmittal containing a permit issued by Palm Beach County to the Ferrin Signs, Inc. on January 24, 1963. The permit issued by Palm Beach County is not valid because it is not within their [sic] jurisdiction to issue sign permits for property lying within the territorial boundaries of the Town of Hypoluxo. To the best of our knowledge, the Town of Hypoluxo has no record of a permit being issued to Ferrin Signs Inc. It should be noted that, in the past years, on numerous occasions, the billboard in question has been illegally constructionally altered by virtue of no permit having been obtained from the Town. On or about February 2, 1993, the Department returned Petitioner's application to Petitioner. In the Memorandum of Returned Application that it sent to Petitioner, the Department gave the following reason for denying the application: "local permit not provided for Town of Hypoluxo." Although the Town no longer contends that Palm Beach County was without authority to issue the 1963 pre-annexation permit for construction of the Sign, the Town still takes the position that, because of unpermitted post- annexation repairs and alterations, the Sign is prohibited and subject to removal under the Town's current sign ordinance. 1/
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Transportation enter a final order denying Petitioner's application for a state outdoor advertising sign permit. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of January, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1994.
The Issue What final agency action should the Department of Transportation take on Petitioner's Application for Outdoor Advertising Permit.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The proposed sign that is the subject of the instant controversy (Proposed Sign) is located off of I-95 in the City of Miami (City) at 328-334 Flagler Street on a parcel of land leased by Petitioner from CanPartners Realty (CanPartners Parcel). Section 10.4.5 of the City's Zoning Ordinance (Section 10.4.5), which has been in effect since 2002, prohibits "new signs of outdoor advertising," except in limited circumstances. It provides, in pertinent part, as follows: For the purposes of this section, "Outdoor advertising signs" are signs used in the conduct of the outdoor advertising business; an outdoor advertising business, for the purpose of this section, is defined as the business of receiving or paying money for displaying signs where the sign copy does not pertain to the use of the property, a product sold, or the sale or lease of the property on which the sign is displayed and which does not identify the place of business as purveyor of the merchandise or services advertised on the sign. Except as otherwise provided in Articles 4 and 10 and/or the City Code, or, pursuant to this subsection, no new freestanding "Outdoor advertising signs," as defined above shall be allowed. * * * Notwithstanding any provision of this Zoning Ordinance to the contrary, permits for outdoor advertising signs may be issued pursuant to a Settlement Agreement authorized by Resolution passed by the City Commission, in conjunction with the settlement of related litigation, which expressly authorizes issuance of such permits for said outdoor advertising signs, and then only under the terms and conditions of settlement agreements that result in a net reduction in the party to the settlement's number of outdoor advertising signs located in the City of Miami. . . . The City has entered into "Settlement Agreements" of the type described in the last paragraph of Section 10.4.5 with three sign owners: Carter Pritchett Hodges, Inc., d/b/a Carter Outdoor Advertising, Inc.; Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor; and Intervenor. The City does not have a such a "Settlement Agreement" with Petitioner. The City entered into its Settlement Agreement with Intervenor (City/CBS Settlement Agreement) on July 18, 2008. The City/CBS Settlement Agreement contains the following provisions, among others: 4. Amended Permits. In recognition of CBS's [Intervenor's] removal of the numerous Sign structures and Sign faces described in this Agreement and waiver of just compensation thereof, the City will amend a maximum of 15 existing sign permits (the "Amended Permits") to allow CBS to transfer the permit rights associated with such Signs to new locations with a maximum of two (2) Sign faces each on the terms and conditions set forth below: The City will amend up to a maximum of 15 permits for Signs based on CBS's removal of Signs on a two for one basis: for every two bulletin faces removed, one bulletin face may be erected with an Amended Permit. . . . * * * c. Upon application by CBS showing compliance with the provisions of this paragraph, the City will amend existing Sign permits to allow the transfer of permit rights associated with such Sign or Signs to locations within the same or a less restrictive Zoning District. For all Initial Amended Permits and Amended Permits, CBS will submit FDOT Form 575-010-04 to the City, which will be stamped on the date received. The City's signature on the FDOT Form 575-010-04 shall constitute approval of the location of the sign, and no further approvals from the City shall be required. All Sign permits will be processed "first in, first out," such that no other FDOT Forms may be signed or authorized for a subsequent application which would interfere with the location secured by a previously approved FDOT Form 575-010-04. If an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application. * * * 19. Miscellaneous. * * * f. Assignments/Binding Nature. This Agreement will be binding upon and will inure to the benefit of the any successor or permitted assigns of the parties hereto. CBS shall have the right of assignment of rights and obligations under this Agreement. However, no attempted assignment by CBS will be valid unless: (1) the assignee shall execute an Agreement to be bound by the terms and conditions of this Agreement and to accept all of the rights and obligations of CBS under this Agreement; and (2) the assignment is approved in writing by the City Commission, which approval shall not be unreasonably withheld, delayed or conditioned. The parties acknowledge that the City Commission shall have the right to reject proposed assignment if the assignee does not fully adopt the terms of this Agreement. Any such assignment shall not relieve CBS of its obligations under this Agreement . . . . Any attempted assignment in violation of this Section shall be void. In anticipation of the finalization of the City/CBS Settlement Agreement, Intervenor (through Joseph Little) and Petitioner (through Harkley Thorton) had signed, on May 1, 2008, a Letter of Understanding (LOU) "set[ting] forth the understanding between [Intervenor] and [Petitioner] concerning new sign locations to be utilized in conjunction with the Settlement Agreement between [Intervenor] and the City of Miami." The first numbered paragraph of the LOU explained: CBS is negotiating and attempting to finalize a Settlement Agreement with the City whereby the City will issue 15 amended permits for the construction of new monopole signs with double faces, on expressways located within the City, in return for which CBS will remove 2 existing (or previously removed) sign faces for each new sign face constructed pursuant to an Amended Permit, subject to the terms and conditions of the Settlement Agreement between CBS and the City. Paragraph 2 of the LOU read, in pertinent part, as follows: With respect to the Settlement Agreement with the City, CBS and OM [Petitioner] agree as follows: * * * Under the Settlement Agreement, CBS seeks to obtain 7 Initial Amended Permits (as defined in the Settlement Agreement) one of which is tentatively agreed to be located in Jose Marti Park. Provided there is no term in the Settlement Agreement and the City does not otherwise require CBS to develop a site in the Jose Marti Park, CBS will abandon its proposed Jose Marti Park site and instead accept a site owned by Brickell Land Development Company, located at approximately 300 SW 8th Street (the "Brickell Site"), which is or will be subject to a lease with OM that allows construction and operation of a sign in accordance with the terms of paragraph (2c) below. . . . Provided OM obtains four (4) additional sites for placement of signs pursuant to Amended Permits under the Settlement Agreement, CBS agrees to accept said four sites provided CBS deems each site to be commercially viable. . . . For each of the sites accepted by CBS, CBS will enter into a sub-lease agreement with OM, whereby OM will be the sub-lessor and CBS will be the sub-lessee. . . . Provided that OM produces the Brickell Partners Site and four (4) additionally Commercially Viable Locations, CBS will assign the rights to one (1) of its amended permits under the Settlement Agreement with the City. CBS will assign to OM, and OM will assume, CBS's rights and obligations under the Settlement Agreement to said amended permit except for CBS'[s] obligations pursuant to paragraphs (7a-7d), (8a), and (12a). CBS will provide for the removal of two (2) of its existing sign structures to allow the City to issue the said Amended Permit to OM under the Settlement Agreement. * * * h. CBS'[s] acceptance of the four (4) Commercially Viable Locations referenced in 2c above is expressly conditioned upon the City's approving all locations on Exhibits B and B-1, as amended from time to time, as appropriate removals for Amended Permits in the Settlement Agreement. The penultimate paragraph of the LOU (Paragraph 6) provided as follows: This letter is a Letter of Understanding and binding between the parties and establishes the major business points and conditions of the Parties' agreement for this transaction. However, it is not all inclusive in that it does not contain all the deal points. The Parties agree to expand upon this Letter of Understanding in good faith to prepare a full agreement that can be executed within thirty (30) days of the date of this Letter of Understanding. Such agreement shall be consistent with the terms of this Letter of Understanding and contain such further terms and conditions as are mutually acceptable to the Parties. However, the failure of the Parties to complete a full agreement shall not invalidate the terms of this Letter of Understanding or excuse either Party from performing its obligations and responsibilities as set forth herein. The record is devoid of evidence that Intervenor and Petitioner ever executed a "full agreement," as contemplated by paragraph 6 of the LOU. Intervenor has not executed (pursuant to Paragraph 2e. of the LOU), nor has the City Commission approved (pursuant to Paragraph 19f. of the City/CBS Settlement Agreement), any assignment to Petitioner of Intervenor's rights under the City/CBS Settlement Agreement (although Petitioner believes that it is entitled to such an assignment and has so argued in circuit court litigation in which it is currently involved with Intervenor). On May 2, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. [Intervenor] and Outlook Media of South Florida, LLC [Petitioner] have signed a letter of understanding dated May 1, 2008 (The "Agreement"). Please accept this letter as confirmation that in accordance with the terms of the Agreement, CBS Outdoors, Inc. consents to Outlook Media of South Florida, LLC filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on our behalf. Thereafter, Petitioner submitted to the City's Zoning Administrator, Lourdes Slazyk, (on the version of FDOT Form 575- 010-04 then in effect) Petitioner's Application, requesting that Ms. Slazyk complete and sign the "Local Government Permission" section of the form. Obtaining such "Local Government Permission" is among the prerequisites for receiving an outdoor advertising sign permit from the Department. To erect an outdoor advertising sign in the City after the Department issues a permit, a City building permit (which is "something other than" the "Local Government Permission" referred to above) is required. Ms. Slazyk completed and signed the "Local Government Permission" section of the form, as requested, on May 22, 2008. It was not until almost a year later that Petitioner's Application was submitted to the Department. In completing the form, Ms. Slazyk checked the box indicating that the "outdoor advertising sign identified in this application: [was] in compliance with all duly adopted local ordinances and has been or will be issued the necessary permits." She did so based upon her understanding that the application (which named Petitioner as the applicant) was actually being filed by Petitioner on behalf and with the consent of Intervenor (in accordance with Mr. Little's May 2, 2008, letter) and that Petitioner was "traveling under" the City/CBS Settlement Agreement. Had Intervenor not notified the City that Petitioner was, with Intervenor's consent, "filing Applications for Outdoor Advertising Permits with the Florida Department of Transportation on [Intervenor's] behalf," Ms. Slazyk would not have checked the "compliance" box on the form, given the requirement of Section 10.4.5 of the City's Zoning Ordinance that "permits for outdoor advertising signs" may be issued only "pursuant to a Settlement Agreement" of the type described in Section 10.4.5 (to which Petitioner, unlike Intervenor, was not a party). On August 28, 2008, Intervenor (through Mr. Little) sent a letter to the City, which read as follows: CBS Outdoor, Inc. herewith withdraws its blanket letter of consent dated May 2, 2008 authorizing the City to approve FDOT application forms by Outlook Media of South Florida, LLC on our behalf. A copy of that letter is attached. Henceforth, any FDOT outdoor advertising application form submitted to the City by Outlook must include a specific authorization from CBS Outdoor indicating our approval and authorizing the City to process the FDOT form pursuant to our Settlement Agreement with the City. Please feel free to contact me if you have any questions. By letter dated October 24, 2008, Intervenor (through its attorney, Glenn Smith, Esquire), advised the City, among other things, that it was "withdraw[ing]" certain applications for outdoor advertising sign permits from the Department, including Petitioner's Application, that either it or Petitioner, on Intervenor's behalf, had previously submitted to the City to obtain the "Local Government Permission" required for such a Department permit. On February 13, 2009, Petitioner (through its attorney, Amanda Quirke, Esquire) sent a letter to Ms. Slazyk, which read, in pertinent part, as follows: As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped received copies for our files. Thank you for your assistance. Intervenor had not authorized Petitioner to make such a request on Intervenor's behalf. Accordingly, (through Mr. Smith) it sent Ms. Quirke the following letter, dated February 18, 2009: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is submitted in response to your February 13, 2009, letter to Lourdes Slazyk at the City of Miami ("City") seeking the approval of the City of the Renewal Applications. CBS has issued no authorization to OM [Petitioner] to submit the Renewal Applications to the City. Therefore, the February 13, 2009 Letter is ultra vires, and OM is directed to withdraw same. If OM desires to obtain CBS's authorization to process the Renewal Applications to the City, OM is directed to submit to CBS a written request for authorization to do so. OM's written request for authorization should address, among other things, the following: CBS's original authorization to OM to submit the FDOT Application to the City was to authorize OM to make submissions on behalf of CBS. Please confirm that any submission of Renewal Application by OM to the City will likewise be on behalf of CBS. Many questions remain relative as the various locations identified in the February 13, 2009, Letter as to whether the locations are "commercially viable." See Attachment A hereto. Please contact the undersigned to schedule a meeting to discuss resolution of these remaining questions. Can Partners Realty: As you know, the City has agreed to approve the Lummis Site. Therefore, the CanPartners Realty site is no longer under consideration and is not to be renewed. OM is hereby specifically directed to take no action to renew the FDOT Application for this site. CBS and its representative are available to discuss the February 13, 2009 Letter, the Renewal Applications and the contents of this letter. If OM desires to discuss same, please contact the undersigned for that purpose. That same day (February 18, 2009), Intervenor (through Mr. Smith) also sent a letter to Ms. Slazyk, in which it stated the following: As you are aware, this firm represents CBS Outdoor, Inc. ("CBS"). This letter is being sent to you on behalf of CBS in response to the February 13, 2009 Letter to you from counsel for OM. In the February 13, 2009 Letter, counsel for OM requests approval by the City of Miami (the "City") of the Renewal Applications under the CBS Settlement Agreement with the City. Please be advised that CBS has not authorized OM to present the Renewal Applications to the City. Therefore, CBS requests that the City take no action on the Renewal Application until the City receives further communications regarding same from CBS. Notwithstanding Intervenor's directive (communicated in its February 18, 2009, letter to Ms. Quirke) that "the CanPartners Realty site . . . not . . . be renewed," on that same date (February 18, 2009), Petitioner (through Ms. Quirke) sent a follow-up letter to Ms. Slazyk, which read, in pertinent part, as follows: In accordance with the request of CBS, please accept this revised request for the renewal of the outdoor advertising applications, originally submitted on February 13, 2009. This revised request is a clarification that Outlook is requesting the renewal of the approval of the following applications on behalf of CBS. As you are aware, under Section 4(c) of the CBS Settlement agreement with the City of Miami, the City's approval of a location becomes null and void if an FDOT permit is not issued within 280 days of the City's signature on FDOT Form 575-070-04. In addition, FDOT requires local government approval within 6 months of the application to FDOT. Therefore, Outlook Media of South Florida, on behalf of CBS, is requesting the renewal of the approval of the City of Miami for the following locations: * * * CanPartners Realty * * * Applications are attached for each one of the aforementioned locations. Please stamp the attached applications received today, and advise when we can pick up the stamped, received copies for our files. Thank you for your assistance. The following day, February 19, 2009, Ms. Slazyk wrote back to Ms. Quirke, stating the following: I am in receipt of a faxed letter with back up from your office dated February 13, 2009 and faxed again, as modified, dated February 18, 2009 requesting renewal of certain outdoor advertising signs. I am informing you that, per the attached letters from CBS, and their representatives, the request is not authorized. Petitioner appealed Ms. Slazyk's denial of its renewal request to the City Zoning Board, which upheld the denial. Petitioner thereafter took a further appeal to the City Commission, but Petitioner subsequently withdrew this appeal. It is the City's position "today" (as expressed by Ms. Slazyk at hearing) that Petitioner does not have "Local Government Permission" from the City for the Proposed Sign. On May 4, 2009, almost a year after Ms. Slazyk had signed the "Local Government Permission" section of Petitioner's Application, Petitioner's Application was submitted to the Department.5 The Department contracts with Cardno TBE "to do physical inspections of potential advertising sites" that are the subject of permit applications. For the past 11 years, Matt Barnes has been employed by Cardno TBE as an outdoor advertising inspector responsible for conducting such inspections for the Department. Mr. Barnes was assigned the task of inspecting the CanPartners Parcel (the site where, according to Petitioner's Application, the Proposed Sign would be located). Using two different distance measuring devices,6 Mr. Barnes measured the distance "along the highway [I-95]" from a point directly above the Proposed Sign location (as indicated by a "wooden stake [sticking] about two feet out of the ground" that had been placed there by Petitioner) to the "nearest permitted sign" on the same side of the "highway" (which was to the south and bore tag numbers 412 and 413).7 He "came up with 970 feet both times." On May 19, 2009, the Department issued its Notice of Denied Outdoor Advertising Permit Application, announcing its intention to deny Petitioner's Application because, in pertinent part, the "[Proposed] [S]ign [did] not meet spacing requirements" and the "Local Government Permission" was given "more than six (6) months prior to [the Department's] receipt [of the application]." Petitioner subsequently requested a "formal administrative hearing" on the matter. On May 21, 2009, Intervenor filed an Application for Outdoor Advertising Permit for a sign to be located at 350 Northwest Second Street in the City on a parcel leased to Intervenor by Lummus Park Associates, LLC (Lummus Sign). Because of its proximity to the location of the Proposed Sign, the Lummus Sign would violate minimum spacing requirements and thus not be permittable were Petitioner's Application to be granted. Accordingly, Intervenor's application is being held in "pending status" by the Department until final action is taken on Petitioner's Application.8 On June 17, 2009, Petitioner (through one of its principals, Santiago Echemendia, Esquire) sent a letter to the City, which read, in pertinent part, as follows: This law firm represents Outlook Media of South Florida, LLC ("Outlook"). As you may be aware, Section 14 of SB 360 provides that any local government issued development order or building permit that has an expiration date of September 1, 2008 through January 1, 2012, is extended and renewed for a period of two years following its date of expiration. In accordance with Section 4(c) of the Settlement Agreement between CBS Outdoor, Inc. and the City of Miami (attached), "[i]f an FDOT permit is not issued within 280 days of the City's signature, the City's approval will become null and void for that particular application." FDOT also takes the position that the local government permission on FDOT Form 575-070-04 must be issued within 180 days of application to FDOT for an FDOT tag for a sign location. On behalf of Outlook, pursuant to Section 14 of Senate Bill 360, please accept this letter as notification that Outlook is extending the local government permission provided on FDOT Form 575-070-04 for the following locations: * * * Site: CanPartners Folio Number: 01-4137-036-0020 Local Government Permission: 05/22/08 FDOT 180 Day Expiration: 11/18/08 2 Year Extension of FDOT 180 Day Expiration: 11/18/10 Original 280 Day Expiration: 02/26/09 2 Year Extension of City of Miami Expiration: 02/26/11 * * * This 2 year extension notification applies to extend both the FDOT 180 Day Expiration, as well as the 280 Day Expiration set forth in the CBS Settlement Agreement. Therefore, the expiration date for the aforementioned sign locations is extended until the dates listed in the columns entitled "2 Year Extension of FDOT 180 Day Expiration" and "2 Year Extension of City of Miami Expiration." A copy of the FDOT Form 575-070-04 for each of the sign locations is attached for your convenience. . . . On October 5, 2009 (approximately five months after the filing of Petitioner's Application with the Department), the City Commission, on second reading, adopted a resolution (Resolution File Number 09-01061) to enable it to participate in the "pilot program" established by Section 479.07(9)(c), Florida Statutes, "under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if [certain] requirements . . . are met." The resolution, which is still in effect, provides as follows: A RESOLUTION OF THE MIAMI CITY COMMISSION EXPRESSING ITS INTENTION TO PARTICIPATE IN A PILOT PROGRAM ALLOWING 1,000 FOOT SPACING OF OUTDOOR ADVERTISING SIGNS ALONG EXPRESSWAYS IN THE CITY OF MIAMI ("CITY"), SUBJECT TO CONDITIONS; FURTHER AUTHORIZING THE CITY MANAGER TO NOTIFY THE FLORIDA DEPARTMENT OF TRANSPORTATION OF THE CITY'S INTENTION TO PARTICIPATE IN SUCH PILOT PROGRAM. WHEREAS, Section 10.4.5 of the Miami Zoning Ordinance prohibits new freestanding "Outdoor advertising signs" as defined therein, except for Outdoor advertising signs permitted pursuant to a Settlement Agreement that results in a net reduction in the number of Outdoor advertising signs located in the City of Miami (hereinafter "qualified settlement agreement"); and WHEREAS, by separate Resolutions, the City Commission has authorized the City Manager on behalf of the City of Miami ("City") to enter into qualified settlement agreements with the following sign owners: Carter Pritchett Hodges, Inc. d/b/a Carter Outdoor Advertising, Inc. ("Carter"), Clear Channel Outdoor, Inc. d/b/a/ Clear Channel Outdoor ("Clear Channel"), and CBS Outdoor, Inc. (hereinafter "CBS"); and WHEREAS, at the time the qualified settlement agreements were approved by the City Commission, Section 479.07(9)(a), F.S. (2008), required new Outdoor advertising signs to be located at least one thousand five hundred feet from any other permitted sign on the same side on an interstate highway (hereinafter "1,500 foot spacing"); and WHEREAS, by House Bill 1021, the Florida Legislature recently amended s. 479.07(9)(c), F.S., in the 2009 Legislative Session, to include the City within a pilot program permitting new Outdoor advertising signs on an interstate highway to be located within one thousand feet from any other permitted sign on the same side of the interstate highway (hereinafter "1,000 foot spacing") under certain enumerated conditions, to wit: "(c) Notwithstanding paragraph (a)(1), there is established a pilot program in Orange, Hillsborough, and Osceola Counties, and within the boundaries of the City of Miami, under which the distance between permitted signs on the same side of an interstate highway may be reduced to 1,000 feet if all other requirements of this chapter are met and if: The local government has adopted a plan, program, resolution, ordinance, or other policy encouraging the voluntary removal of signs in a downtown, historic, redevelopment, infill, or other designated area which also provides for a new or replacement sign to be erected on an interstate highway within that jurisdiction if a sign in the designated area is removed; The sign owner and the local government mutually agree to the terms of the removal and replacement; and The local government notifies the department of its intention to allow such removal and replacement as agreed upon pursuant to subparagraph 2." and WHEREAS, the City Commission deems it in the best interest of the City to participate in the pilot program authorized by s. 479.07(9)(c), F.S. (2009), which would permit 1,000 foot spacing for Outdoor advertising signs under the guidelines provided in this Resolution; NOW, THEREFORE BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. 2. Pursuant to s. 479.07(9)(c)(2), F.S. (2009), the City hereby adopts a pilot program encouraging the voluntary removal of signs within the boundaries of the City, which provides, subject to the conditions stated below, for a new or replacement sign to be erected on an interstate highway, with 1,000 foot spacing, if other Outdoor advertising signs within the boundaries of the City are removed. Section 3. Any sign owner seeking permission to erect an Outdoor advertising sign with 1,000 foot spacing under this pilot program shall meet the following conditions: The sign owner must have a qualified settlement agreement with the City; Any application for a new sign under the pilot program must be in accordance with all terms and conditions of the qualified settlement agreement unless otherwise specified in these conditions; In no event may an application for a new sign under the pilot program exceed the limitation on the number of signs otherwise permitted under the qualified settlement agreement; The duration of the pilot program will not exceed the term of the qualified settlement agreement; No LED Sign may be erected with 1,000 foot spacing unless allowed by an amendment to the sign owner's qualified settlement agreement pursuant to applicable provisions of the Miami Zoning Ordinance; Sign owners must specify in advance of applying for a 1,000 foot spacing application the locations of the signs proposed to be removed or already removed; Sign owners may not be delinquent on any financial obligation to the City as per their qualified settlement agreement; All Outdoor advertising signs erected with 1,000 foot spacing shall be designed with aluminum plating (example attached) or be subject to design review per Manager's designee or designees. Section 4. Should s. 479.07(9)(c), F. S. (2009) be repealed by the Florida Legislature, this pilot program shall automatically expire. Section 5. The City Manager is authorized (1) to notify the Florida Department of Transportation of the City's intention to allow removal and replacement of Outdoor advertising signs under 1,000 foot spacing as provided in this Resolution. Section 6. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. Petitioner has not entered into "a qualified settlement agreement with the City" providing for the removal and replacement of outdoor advertising signs (as required by Section 3(a) of Resolution File Number 09-01061), nor has it at any time, much less "in advance" of having submitted its application (as required by Section 3(f) of Resolution File Number 09-01061), "specif[ied]" what sign(s) would be removed and replaced if the Proposed Sign were to be permitted. In or around November 2009, Petitioner retained the services of Mario Prats, a Florida-licensed surveyor since 1982, to measure how far the Proposed Sign location was to the nearest existing sign directly to the south of this location. When Mr. Prats went to the CanPartners Parcel, he did not see the stake that had been there in May 2009, when Mr. Barnes had done his measurements; nor did he see any other object marking the location of the Proposed Sign. He relied on a "drawing" to "approximate" where the sign would be. Using a "Topcon [measurement] device" and measuring, not along I-95, but the ramp to I-95, Mr. Prats determined that the distance between the Proposed Sign location and the closest sign south of this location was 1,032 feet. The only measurements offered and received into evidence to establish the distance between the Proposed Sign location and the nearest permitted sign (on the same side of the highway) were those taken by Mr. Barnes and Mr. Prats (as discussed above). Neither Mr. Barnes, nor Prats, determined that this distance was 1,500 feet or more.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order denying Petitioner's Application for the reasons set forth above. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 11th day of August, 2010.
Findings Of Fact Petitioner's predecessor in interest leased property along the I-275 in October 1973 (Exhibit 3) and erected an outdoor advertising sign thereon. One witness testified that at the time this sign was erected in 1973 there was no other sign within 500 feet of this sign. The sign was erected within the city limits of Tampa, Florida and no permit other than a city building permit was required for this sign. In 1974 DOT required permits for all signs including those located within city limits, but no fee was collected for the permits issued for signs within the city limits. This regulation was not enforced by DOT until 1976- 1978, although in 1974 DOT had advised sign owners that permits were required for all signs and how they were to apply for permits for those signs located within the city limits (Exhibit 4). In 1975 National Advertising Company, in accordance with DOT instructions for obtaining permits for signs located in incorporated areas, submitted a renewal application in which it listed the sign located within 500 feet of Petitioner's sign (Exhibit 5). When no permit was issued by DOT, National Advertising Company, by letter dated September 1, 1977 (Exhibit 6), called to DOT's attention that they had not been issued permits for signs within city limits for which they had applied. Application for a sign permit for their sign along the I-275 located within 500 feet of Petitioner's sign was submitted by National Advertising Company on 31 March 1980 (Exhibit 7) and approved by DOT. This application showed the sign to have been erected prior to 1972. At this hearing Petitioner introduced as Exhibit 1 a copy of an Advertising Sign Permit application dated 9-1-76 executed by its predecessor in title, Martin Outdoor Advertising Company. The only indication on this application that it was received by Respondent is a received stamp dated April 15, 1980. During the period 1976-1979 considerable confusion existed in the outdoor sign industry respecting permits for signs and particularly for those signs located within city limits despite notification to sign companies (Exhibit 4). In an effort to clarify the situation, Respondent sent out circulars with the annual renewal notices advising all sign owners that signs along Interstate and Federal Aid Primary Highways within incorporated towns and cities required permits. In the circular dated December 18, 1978 (Exhibit 8), sign owners were told to submit applications for all unpermitted signs prior to February 17, 1979, and that failure to do so could result in the removal of the unpermitted signs. This was followed up by another circular dated October 31, 1979 (Exhibit 9) in which the deadline for applying for permits for those unpermitted signs was extended to January 1, 1980. Neither of these circulars which were enclosed with renewal notices were delivered by Petitioner's mail room to Petitioner's real estate section. Instead, they were forwarded to accounting with renewal notices. Upon an inspection of signs along the I-275 in March 1980, Petitioner's sign was observed without a permit and in violation of the spacing requirements. Notice of alleged violation dated 3 April 1980 was forwarded to Petitioner (Exhibit 10). Petitioner then applied for a permit for the sign which was disapproved and request for this hearing followed.
The Issue The issue in this case is whether Petitioner is entitled to an outdoor advertising sign permit to be located in an unzoned commercial/industrial area and whether the sign site qualified as an unzoned commercial/industrial area.
Findings Of Fact Lamar is in the business of erecting, operating and maintaining outdoor advertising signs in Northwest Florida. The proposed sign’s location was in Walton County along US Highway 331, .1 mile south of Bay Grove Road, a collector road. U.S. Highway 331 is a federal aid primary highway and therefore, a state permit is required for signs placed along its path. According to a Walton County zoning plan, the proposed sign’s location was in an area zoned Rural Village on both the Future Land Use Map and Land Development Regulations. The June 2006 version of the Walton County Land Development Code provides: F. Rural Village (RV): This district is a mixed use district which permits predominately residential development up to a maximum of two units per acre. Residential uses shall account for approximately 95 percent of the total land area within any area designated on the FLUM for this District. The remaining area may be utilized for related and compatible commercial uses. Commercial uses may occupy up to five percent of the total land area designated on the FLUM for this District. Commercial land uses shall be limited to collector and arterial road intersections, intersections of subdivision collectors and arterial or collector road, and areas that are specifically designated Commercial on the FLUM. Not more than 15 percent of the total frontage on both sides of a collector or arterial road shall be occupied by commercial uses within this district. The Walton County Land Development Code also defined general commercial activity as including inventory storage. The proposed sign’s location met the requirements for commercial use under the RV designation. Walton County certified to the Department that the designated parcel for the proposed outdoor advertising sign was Rural Village and that the primary use of the area under the current comprehensive plan was agriculture, general agriculture, residential, civic uses, and residential subdivision. Walton County also confirmed that the proposed outdoor advertising sign would be in compliance with all duly adopted local ordinances and would be issued the necessary County permit for such sign. The Walton County Property Appraiser’s website listed the usage of the proposed outdoor advertising sign location as a “service station.” The service station building was still on the property, but had not been used as such for a number of years. Billy Wayne Strickland, the state outdoor advertising administrator of the Department, processed the outdoor advertising permit applications submitted by Lamar. Mr. Strickland determined after a review of Lamar’s applications that the site, being designated as Rural Village with mixed uses allowed, met the need for evaluation under the use test for unzoned commercial or industrial areas contained in Chapter 479, Florida Statutes. The use test is set forth in Florida Statutes 479.02. Under the test, the Department examines a proposed sign’s location under the applicable current land use designation and future land use designation to determine if the outdoor advertising site meets the use criteria set forth in the statute for unzoned commercial and industrial areas. The use criteria for such unzoned property require that three commercial or industrial activities be located within 1600 feet of each other, with one of those activities located on the same side of the road and within 800 feet of the proposed sign’s location. Distances are measured from building to building. Additionally, the commercial or industrial activity must be visible from the highway. Mr. Strickland visited the property in order to determine if the proposed sign location met the requirements of the use test. He observed that the proposed sign’s site holds an abandoned-looking gas station and a house with a large fenced in area. Leaking fuel tanks made it unlikely the service station would be restored. There were several small, boarded-up, “fishing style cabins” associated with the fenced property. The fenced area had a sign posted for North Florida Development, Inc., a construction company. There was a number for the company listed on the sign. On a tree to the right of the fence was a sign that read “Private Road Keep Out.” In general, the area behind the fence appeared to be used for storage of building materials and equipment such as trucks and trailers. Except for the area behind the fence, the North Florida Development property was clearly visible from the highway. Mr. Strickland called the phone number on the sign and was informed that North Florida Development, Inc., that he was calling, was in Miramar Beach, Florida, and that North Florida Development was storing equipment and trucks at the U.S. Highway 331 location for a job they were doing in Destin. There was no one present at the house or the adjacent buildings. The North Florida Development buildings and fenced area were within 800 feet of the proposed sign’s location and were on the same side of the road as the proposed sign’s location. Because of the lack of activity, Mr. Strickland concluded that the North Florida Development property was not a commercial activity which was visible from the highway. On the opposite side of the Highway, Mr. Strickland observed two businesses within a 1600-foot zone that met the criteria of the use test. Additionally, while at the site, Mr. Strickland issued a Notice of Violation for the on-premises sign of North Florida Development. The Notice required the sign to be removed. Later, after the hearing in this matter, this action was dismissed by the Department. On November 29, 2006, the Department issued a written denial of the outdoor advertising sign site permit applications for the following reasons: (1) the sign site was not permitted under the local land use designation of site per Section 479.111(2), Florida Statutes, and (2) the sign site did not qualify as an unzoned commercial/industrial area per Section 479.01(23), Florida Statutes. On the morning of April 5, 2007, Mr. Strickland, again visited the proposed sign’s site. He observed essentially the same things he observed during his first visit to the location, except the large North Florida Development sign that had been on the entrance to the fenced area had been removed. Andrew White, a regional inspector with the Department, inspected the North Florida Development site on May 17, 2007, and photographed the area. The sign for North Florida Development had been removed, but the keep-out signs were still in place. Photographs taken from the street revealed a partial view of a storage trailer through the open fence. On the morning of June 6, 2007, just prior to the hearing, Mr. Strickland again visited the proposed sign’s location and observed no activity at the location. He could only see a trailer partially visible beyond the privacy fence. Larry Wayne Adkinson, vice president of North Florida Development and a general contractor licensed in Mississippi, lives and works on the property of the proposed sign’s location. Mr. Adkinson testified that the property totaled five and a-half or six acres and consisted of his home, his office, the service station and five fishing cabins. He and his business have been at this location for at least 12 years. Work has been delayed on repairing the service station based, in part, upon the fact that the state was seeking to condemn a portion of the property where the service station was located for the expansion of U.S. Highway 331. Mr. Adkinson uses the property as an inventory site, storing construction materials, heavy equipment, landscaping materials, and other bulk material related to his business. The site contained three semi-tractor trailers that were utilized to store construction materials, including doors, windows, and heavy equipment and equipment and materials for a landscape business owned by Mr. Adkinson. The landscape business stored tractor-trailers, small-equipment trailers, plants, brick pavers, scaffolding and rock molds. The site’s storage of inventory and business activity was very visible to people who lived in the neighborhood around the North Florida Development property. The visibility was such that, in 2006, the neighbors complained about the view to the County. The County, in turn, asked Mr. Adkinson to place a fence around the area to block the view of people passing through the area. Mr. Adkinson complied with the County’s request and built the privacy fence that Mr. Strickland observed. Mr. Adkinson also placed the company’s business sign on the fence to identify the property as North Florida Development’s business property. Most of the loading and unloading of material and equipment occurs in the early morning and evening hours. At those times, there is considerable activity at the site with trucks and equipment entering and leaving the property. Mr. Adkinson’s testimony was confirmed by the testimony of Chad Pickens, who routinely drives by the site during those hours. Mr. Strickland never visited the property during those busy hours, and therefore, did not observe the business activity associated with the site. Mr. Adkinson uses two of the fishing cabins as machine shops for his company’s equipment and tools. The shops contain drill presses, welding and repair equipment. Entry is gained through the rear doors of the cabins. He left the front of the cabins boarded up to prevent theft and storm damage. Mr. Adkinson also receives business mail at the U.S. Highway 331 location and has employees and job applicants report to that location. Clearly, the North Florida Development property is a viable and on-going business that conducts one of its business activities on the property on which the proposed sign is to be located. The activity is visible from the highway, although such activity ebbs and flows through the day. The property, therefore, meets the land use test requirements of Florida Statutes, and the Petitioner’s applications should be granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Department of Transportation enter a Final Order granting the applications for outdoor advertising sign permits filed by Lamar Advertising of Fort Walton Beach. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 13th day of December, 2007. COMPLETE COPIES FURNISHED: Susan Schwartz, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 James E. Moore, Esquire Post Office Box 1622 Crestview, Florida 32536 David M. Littlejohn, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Meyers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Petitioner’s Outdoor Advertising Permit Applications should be denied due to application deficiencies, and because the signs are located adjacent to a designated scenic highway.
Findings Of Fact The Department of Transportation regulates outdoor advertising signs located in proximity to the state highway system, interstate highway system, and federal-aid primary highway system. U.S. Highway 1 is a federal-aid primary highway that runs in a generally north/south direction along the east coast of Florida. In April l995, the Department issued outdoor advertising sign permit tag number BK459 to Town & Country Realty for an outdoor advertising sign (the “original sign”). The original sign was constructed adjacent to and on the west side of U.S. Highway 1 in Sebastian, Florida (the “property”). Records maintained by the Department during the period of the original sign’s existence, i.e., the Department’s outdoor advertising database from July 31, 2002, indicate that the original sign was located at U.S. Highway 1 milepost 18.496. That evidence, created contemporaneously with the sign’s existence, and before any controversy regarding the sign arose, is accepted as the most persuasive evidence of the precise location of the original sign. Mr. Pye testified that outdoor advertising sign permits are issued for a specific location, rather than for any location on a parcel of property. Given the precise spacing requirements for signs (see, e.g., section 479.07(9) and section 479.11), and the permitting of signs to the thousandths of a mile, Mr. Pye’s testimony is accepted. The original sign was located against a backdrop of vegetation. The original sign was single-sided with a north- facing sign face. As such, the original sign could normally be seen only from vehicles traveling southbound on U.S. Highway 1. On June 13, 2000, U.S. Highway 1, from milepost 14.267 to milepost 22.269 was designated as the Indian River Lagoon State Scenic Highway. The scenic highway designation included the stretch of U.S. Highway 1 on which the property fronts. On March 18, 2004, Henry Fischer & Sons, Inc./Town & Country Realty sold the property and the original sign to Petitioner. Daniel Taylor, a licensed real estate broker, worked on the transaction that led to Petitioner’s ownership of the property. He indicated that the property was desirable because it was clean, cleared, and demucked, and because it had the permitted original sign as an attractive asset, since the sign provided an income stream that could be used to pay property taxes. Eric Fischer, who was a director of Town & Country Realty, testified that, when the property was sold to Petitioner, the original sign was intended “to go with the property.” Upon the sale of the property and the original sign, Petitioner believed that Town & Country Realty would notify the state of the sale of the sign, and that he would thereafter be contacted by the state. Mr. Taylor testified that he and Petitioner called the Department and determined that Petitioner “could just step into the Fischer's shoes.” Based on the testimony of Petitioner and Mr. Taylor, Petitioner knew, or should have known, that the Department had regulatory oversight over the sign. An Outdoor Advertising Permit Transfer Request form is required to be submitted to the Department in order to transfer a sign permit from one person to another. No Outdoor Advertising Permit Transfer Request form was submitted for permit tag number BK459. Petitioner was never contacted by the state regarding the sale of the sign. Nonetheless, Petitioner continued to lease the sign and, as detailed herein, to replace and move the sign after the hurricanes of 2004. In September and October 2004, Hurricanes Frances and Jeanne struck Sebastian, Florida, very badly damaging the original sign. The wooden supports were flattened and no longer usable, and the sign was “pretty demolished.” Petitioner testified that he was told by an official of Indian River County to relocate the original sign to keep it from proximity of trees that could, in the event of a recurrence of the 2004 storms, topple and destroy the sign. The testimony, which was intended to prove the truth of the matter asserted, i.e., that Petitioner was directed by a governmental representative to relocate the sign, was uncorroborated by evidence that would be admissible over objection in a civil trial. Petitioner hired a person to rebuild a sign on the property. When the sign was rebuilt, it was not replaced at its original location at milepost 18.496. Rather, the “rebuilt sign”1/ was moved to the cleared center of the property at milepost 18.535. Instead of a single-faced sign normally visible to northbound traffic, the rebuilt sign was a double-faced sign, with sides facing north and south. As such, the rebuilt sign could be seen by vehicles traveling U.S. Highway 1 in either direction. The original sign had four equally-spaced square support posts. The rebuilt sign has three equally-spaced round, and more substantial, support poles. The rebuilt sign has 11 horizontal stringers on each face, with each stringer secured to the three support posts. The stringers are uniform in appearance. The photographs of the rebuilt sign clearly show all of the stringers on one side, and some of the stringers on the other. The stringers show no evidence of having undergone storm damage, or of having been secured to support posts at different points along the stringers. The preponderance of the evidence supports a finding that the stringers were -- as were the posts -- new, stronger, intact materials when the rebuilt sign was constructed, and were not materials salvaged from the remains of the original sign. The original plywood facing on the original sign was replaced with vinyl facings on the rebuilt sign. As a result of the foregoing, a preponderance of the evidence indicates that the rebuilt sign was a new sign erected of entirely new materials, and was not established as a result of maintenance or repair of the original sign. After the March 18, 2004, sale of the property and the post-hurricane erection of the rebuilt sign, Town & Country Realty continued to receive renewal billing from the Department for the original sign, along with several other signs owned by Town & Country Realty. Town & Country Realty, having sold the property on which the original sign was located and having no apparent interest in maintaining its other signs, did not pay the renewal bills. On January 31, 2005, the Department issued a Notice of Violation and Order to Show Cause Non-Payment (“NOV”) to Town & Country Realty. The NOV provided a grace period of 30 days within which the license and permits could be renewed, subject to a penalty. Town & Country Realty did not renew the license or permits. On March 7, 2005, the Department issued a Final Notice of Sign Removal, noting that Town & Country Realty had not made payment for renewal or request an administrative hearing to contest the NOV. As a result, Town & Country Realty was given the option of either petitioning for reinstatement of the license and permits, or removing the signs, including the sign bearing permit tag number BK459. Failure to exercise one of the options within 90 days was to result in the removal and disposal of the sign by the Department. On March 22, 2005, as a result of the continued requests for payment, Town & Country Realty submitted an Outdoor Advertising Permit Cancellation Certification form (“Cancellation Certification”) to the Department for permit tag number BK459. The Cancellation Certification was received by the Department on March 24, 2005. The Cancellation Certification was signed by Carl Fischer, president of the permit holder, Town & Country Realty. Mr. Fischer indicated that it was the permit holder’s intent “that the above-referenced Permit(s) be cancelled,” and that “all entities with a right to advertise on the referenced sign have been notified of the permit cancellation.” In the “Date Sign Removed” field of the form, Mr. Fisher wrote “see below.” In the bottom margin of the form, Mr. Fischer noted that the sign had been destroyed by one of the 2004 hurricanes, and that “new owner rebuilt sign and I removed BK459 tag and enclosed it.” The Cancellation Certification did not provide any information regarding the rebuilt sign or whether it was a sign that required a permit from the Department,2/ nor did it provide the name, address, or other identifying information regarding the “new owner.” It was not clear when Mr. Fischer removed permit tag number BK459, but it was nonetheless removed and returned to the Department with the Cancellation Certification. The Cancellation Certification was not intended by Mr. Fischer to affect Petitioner’s rights or interest in the rebuilt sign, but was a means of stopping renewal bills from being sent to Town & Country Realty. A Cancellation Certification may be conditioned upon issuance of a new sign permit, provided the Cancellation Certification is submitted along with an outdoor advertising permit application. The Cancellation Certification gave no indication that permit tag number BK459 was being conditionally canceled as a requirement for issuance of a new permit, and was not accompanied by an outdoor advertising permit application. On March 24, 2005, permit tag number BK459 was cancelled. From 2005 until June 2014, the rebuilt sign remained in place without inquiry from the Department, during which time Petitioner continued to lease and receive income from the sign. No transfer of or application for a sign permit for the rebuilt sign was filed, and no payment of annual fees was made. No explanation was provided as to why the March 7, 2005, Final Notice of Sign Removal was not enforced, or why the rebuilt sign, which has at all times been clearly visible from U.S. Highway 1, was allowed to remain in place for nearly a decade despite having no affixed permit tag. On or about May 28, 2014, Mr. Johnson, who was on patrol in the area, noticed that the advertising on the rebuilt sign had been changed. The change caught his attention, so he reviewed the Department’s outdoor advertising sign database to determine whether the sign was permitted. He confirmed that the rebuilt sign was not permitted. On June 5, 2014, Mr. Johnson affixed a “30-day green notice” to the rebuilt sign, which provided notice of the Department’s determination that the sign was illegal, and was to be removed within 30 days. Failure to remove the sign was to result in the removal of the sign by the Department. On June 9, 2014, the Department issued a Notice of Violation - Illegally Erected Sign (NOV) to Petitioner for the rebuilt sign. Petitioner did not submit a hearing request regarding the NOV. Rather, Petitioner called the telephone number that was listed on the NOV. He spoke with someone at the Department, though he could not remember who he spoke with. Petitioner was advised to file an application for the sign, a remedy that is described in the NOV. On December 1, 2014, Petitioner submitted Outdoor Advertising Permit Application Nos. 61203 and 61204 for the northward and southward faces of the Current Sign at milepost 18.535. Petitioner subsequently submitted additional information, including local government approval, in support of the application. On December 18, 2014, the Department issued a Notice of Denied Outdoor Advertising Permit Application for application Nos. 61203 and 61204 (“notice of denial”) to Petitioner. The bases for the notice of denial were that the property’s tax identification numbers submitted in various parts of the application did not match, thus constituting “incorrect information” in the application, and that the rebuilt sign is located on a designated scenic highway, thus prohibiting issuance of the permit. In the Pre-hearing Stipulation filed by the parties, the Department, though referencing “incorrect information” as a basis for the December 18, 2014, notice of denial, concluded its statement of position by stating that “[i]n sum, the Department properly denied [Petitioner’s application] as the sign is located on a scenic highway.” That focus on the scenic highway issue in the Pre-hearing Stipulation could, of itself, constitute a waiver and elimination of other issues, including that of incorrect information. See Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So. 3d 1037 (Fla. 4th DCA 2015). However, looking beyond the Pre-hearing Stipulation, the issue of incorrect information was not the subject of testimony at the final hearing, finds no substantial support in the documentary evidence, and made no appearance in the Department’s Proposed Recommended Order. The record in this proceeding does not support a finding that Petitioner provided “incorrect information” in his application, or that such “incorrect information” supports a denial of the application. On February 12, 2015, Petitioner filed a request for an informal administrative hearing with the Department to contest the notice of denial. The request for hearing included affidavits from Petitioner and Henry A. Fischer, a vice-president of Town & Country Realty, each of which provided that Town & Country Realty “submitted to the governmental authorities included but not limited to the Florida Department of Transportation notice of the transfer of the property and the sign permit to Mr. Daddano as well as his correct mailing address of 15 Lakeside Lane, N. Barrington, IL 60010.” It is not known whether the N. Barrington, Illinois, address was that of Mr. Fischer or that of Petitioner. Regardless, no such notice of transfer, or any other document bearing the referenced address, was introduced in evidence or discussed at the final hearing. The preponderance of the evidence indicates that the March 22, 2005, Outdoor Advertising Permit Cancellation Certification, with the notation described in paragraph 30 above, was the only notice provided to the Department regarding the disposition of permit tag number BK459. By June 4, 2015, the advertising copy that caught Mr. Johnson’s attention had been removed and replaced with a “This Sign For Rent” covering. By no later than November 17, 2015, well after the Department issued the notice of denial, and without any other form of approval or authorization from the Department, Petitioner had the rebuilt sign “pivoted” in roughly its existing location, so that it is now parallel to U.S. Highway 1. As such, only the side of the sign facing U.S. Highway 1 is visible from the highway, making it a “one-way reader” as opposed to a two-sided sign. Nonetheless, unlike the original one-sided sign, which was perpendicular to the highway against a backdrop of vegetation, the pivoted rebuilt sign can be seen by traffic traveling in either direction on U.S. Highway 1.3/
Recommendation Upon consideration of the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Transportation enter a final order denying Outdoor Advertising Permit Application Nos. 61203 and 61204. DONE AND ENTERED this 27th day of April, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 27th day of April, 2016.
