06-000365 Clear Channel Outdoor, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Monday, January 22, 2007.

Summary: Respondent should grant a vegetation management permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEAR CHANNEL OUTDOOR, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 0365

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on October 26 , 2006, a formal

hearing was held in this case pursuant to Sections 120.569 and

1 20.57(1), Florida Statutes (2006 ). The hearing location was

the Office of the Division of Administrative Hearings, DeSoto

Building, 1230 Apalac hee Parkway, Tallahassee , Florida. The

hearing commenced at 9:30 a.m. Charles C. Ad ams, Administrative

Law Judge , conducted t he hearing .

APPEARANCES

Fo r Petitioner: Paul Sexton, Esquire

Williams Wilson & Sexton, P.A.

215 South Monroe Street, Suite 600 - A

Tallahassee, Florida 32302

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mai l Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

Should Petitioner , Clear Channel Outdoor, Inc. (Clear

Channel) be permitted to remove, cut , or trim trees located in

t he view zone related to outdoor advertising signs, FDOT Permit

Tag Nos. BL - 017 and BL - 018, issued by Department of

Transportation ( DOT ) to Clear Channel , for a location at the

intersection of Northeast Eighth Avenue and Stat e Road 24 (Waldo

Road), in Gaine sville, Alachua County, Florida?

PRELIMINARY STATEMENT

On February 1 , 200 2 , Clear Channel completed separate

applications for Permit Tag Nos. BL - 017 and BL - 018 , requesting

that DOT grant vegetation management permits for the signs.

The applications referred the signs at an approximate

distance of 300 feet from the intersection of Northeast Eighth

Avenue and State Road 24. The sign for BL - 017 faces south. The

sign for BL - 018 face s north. Both are on the right side of

State Road 24 proceeding north. Clear Channel sought approval

for a five - year vegetation management plan and the permission to

remove designated trees described in the application. More

specifically, t he signs at issue are near the northeast corner

of the intersection a t Northeast Eig hth Avenue and Waldo Road .

On April 25, 2002 , DOT denied the Clear Channel applications for

vegetation management permits.

On May 15, 2002, the DOT received a request from Clear

Channel for a formal hearing to consider the denial of the

vegetation managem ent permit applications.

On January 27, 2006, the Division of Administrative

Hearings (DOAH) in the person of Robert S. Cohen, Director and

Chief Judge, received a request from DOT to conduct a hearing

pursuant to Sections 12 0.569 and 120.57(1) , Florida Statutes

( 2005 ) , concerning the applications by Clear Channel to obtain

vegetation management permits. Don W. Davis, Administrative Law

Judge, was assigned to conduct the administrative hearing in

association with DOAH Case No. 06 - 0365. The hearing was

conducted by the undersigned in substitution for ALJ Davis . The

hearing was held after several continuances were granted.

An Order of Prehearing Instructions was entered requiring

the parties to consult and file a prehearing stipulation. The

parties c omplied with the order. In accordance with the

prehearing order , the parties acknowledge certain facts

described as admitted facts. These facts will be reported in

the findings of fact in this Recommended Order.

At hearing , Clear Channel presented Art hur Cyrus Adams,

Jr., Reid Whisonant, Richard Bush, and John Garner as its

witnesses. Clear Channel Exhibits numbered 1 through 17 were

admitted. DOT presented Jordan Green and John Garner as its

witnesses. DOT Exhibits numbered 1 through 4 were admitte d. A

request to officially recognize Florida Administrative Code Rule

14 - 40.040(1), was granted.

Clear Channel tried to establish that DOT proceeded with

its review of the applications for the vegetation management

permits by resort to an unadopted rul e . § 120.57(1)(e)1 . , Fl a .

Stat . (2006 ). When the hearing commenced , Clear Channel argued

that DOT in its interpretation of the language "public right - of -

way" found at Section 479.10 6(1), Florida Statutes (2006), also

found in Section 479.106( 1), Florida Statutes (2001), when the

applications were made, constituted an unadopted rule subject to

de novo review by the administrative law judge, when limited in

its meaning to the interstate highway s ystem , expressways,

federal - aid primary highways and the State Highway S ystem.

Clear Channel was allowed to present evidence to support its

assertion that its substantial interest had been determined by

resort to the alleged unadopted rule , as a threshold requi rement

to any de novo review , in which DOT must demonstr ate compliance

with criteria set forth in Section 120.57(1)(e)2 . , Florida

Statutes (2006). Clear Channel presented John Garner, the DOT

M anager of P roduction and P rogram O perations for the O ffice of

Right - of - W ay to support its argument. No additional evi dence

was presented on the issue. Counsel for the parties were

offered the opportunity for oral argument on the subject.

Following the argument , a ruling was made rejecting the argument

by Clear Channel . DOT in it s response to the applications was

not d eemed to have pursued an unadopted rule. The testimony by

the witness Garner, oral argument by counsel, and the ruling are

set forth in the hearing transcript that has been filed.

On November 7, 2006, the hearing transcript was filed. On

November 28, 2006, the parties timely filed proposed recommended

orders. The proposed recommended orders have been considered in

preparing the Recommended Order.

FINDINGS OF FACT

Facts by Stipulation

1. D OT issued a notice of denial of Clear Channel 's

applicatio n for vegetation management on April 25, 2002.

2. Cle ar Channel filed its petition for formal

administrative hearing on May 15, 2002.

3. Clear Channel maintains two outdoor advertising signs

on the eastern side of Waldo Road , constructed in 1978 and

bearing D OT Permit Nos. 99771 and 99761 and Tag Nos. BL - 017 and

BL - 018.

4. Waldo Road is a Fe de ral a id primary highway.

5. For decades, CSX Transportation, Inc., and its

predecessors owned railroad right - of - way along Waldo Road .

6. Waldo Road overlaps the western side of the railroad

right - of - way pursuant to a 1927 agreement with Seaboard Airline

Railway Company. CSX and its predecessors maintained a railroad

line on the eastern side of that railroad right - of - way , between

the edge of Waldo Roa d and the property on which Clear Channel 's

signs are located.

7. In 1987 CSX abandoned its rail line and deeded the rail

right - of - way to D OT .

8. In the early 1990 s, the City of Gainesville planted

trees between Clear Channel 's signs and the edge of Waldo Road

pursuant to a highway beautification grant agreement with D OT .

9. In the late 1990 s, the City of Gainesville planted

additional trees between Clear Channel 's signs and the edge of

Waldo Road pursuant to a highway beautification grant with DOT .

10. The trees located between Clear Channel 's signs and

the edge of Waldo Road that Clear Channel seeks to remove or

trim partially or completely screen the signs from the view of

drivers on Waldo Road .

Additional Facts

1 1 . The Clear Channel sign s bearing DOT permit numbers

99771 and 99761 have been annually renewed and maintained since

constructed in 1978. Clear Chann el is the successor i n

ownership of the signs to prior outdoor advertising firms .

Clear Channel has a lease with the landowner at the site that

allows the signs to be used for advertising purposes.

1 2 . The signs are intended to advertise to the north and

south when viewed from State Road 24.

13 . The sign facing south is obscured by vegetation when

viewed from State Road 24. This has reduced the revenue earned

from marketing the sign by two - thirds. The north - facing sign

has shown a 50% reduction in revenue for the same reason. The

more the vegetation grows, the greater the prospect that the

signs will be unmarketable to any extent for a dvertising

purposes. Should the signs be unmarketable for advertising

proposes, they would constitute a burden to Clear Channel , i n

their maintenance , to meet OSHA standards and the necessity to

make lease payments to the landowner.

1 4 . The signs screened by the vegetation limit the

opportunity for the motoring public to see the advertising

displayed on the sign faces when passing, in part due to the

plan t ing of trees by the City of Gainesville under the

b eautification g rant s issued in the e arly and late 1990s.

15. The signs can not be elevated above the screening

vegetation to allow them to be seen, due to local permit

limitations imposed by the City of Gainesville.

16 . Petitioner's Exhibit numbered 10 illustrates the

nature of the be autification project in the early 1990s, as

submitted to DOT by the City of Gainesville . Petitioner's

Exhibit number ed 8 shows a map detail of the approximate

location of trees in the late 1990s beautificat ion project.

More significantly , the aerial ph otographs, Petitioner's Exhibit

numbered 1 depicting the year 1988 prior to beautification and

Petitioner's Exhibit numbered 3 depicting the year 2004 after

beautification , illustrate the significant influence of the

beautification projects of the City of Gainesville in relation

to the signs and the ability to view the sign faces from State

Road 24. Petitioner's Exhibit numbered 2 depicts th e year 1988

with the view zones for the signs outlined in red , as

contrasted with Petitioner's Exhibit numbered 4 th e year 2004

with the view zones for the signs outlined in red .

17. Petitioner's Exhibit numbered 11 is a series of

photographs recently made depicting the ability to see the sign

faces from State Road 24 at various distances from the sign

locations tra veling along the road . Thes e photographs address

the north - facing and south - facing signs in relation to State

Road 24. The photographs portray the difficulty in observing

the signs from State Road 24 , depending on how close one is to

the sign itself . I t is necessary to be in close proximity to

see a sign clearly .

18. The vegetation planted near the location of the two

signs is low - growth in contrast to other vegetation planted

under the beautification grants in more remote locations, which

tends to di splay more of a canopy effect.

19 . Most of the trees in the vicinity of the signs which

obstruct the ability for the motoring public to see their

display were planted by the City of Gainesville. The exception

is a group of sabal palms near the center or apex of the two

signs. All trees are depicted in Petitioner's Exhibit numbered

11, referr ed to as the "apex of structure looking to row."

20 . Petitioner's Exhibit numbered 4 outlines those

locations where Clear Channel would anticipate removing

vegetat ion.

21. The applications made on February 1, 2002, in relation

to the signs are found in Petitioner 's Exhibit numbered 5. Th e

application s describe the removal of "two trees shown in view

from 500 feet. I could not identify for lack of foliage. Three

cabbage palms shown in view from 300 feet . "

2 2 . Petitioner's Exhibit numbered 6 is a more expansive

diagram , showing the request to remove a considerable number of

trees , while trimming other trees to allow better visibility of

the signs from State Roa d 24. The diagram also corrects the

impression of color - coding indicating that the trees would stay

in certain locations . T he diagram has been altered to reflect

that certain trees that initially were marked as being kept are

now marked with the letter " R" and circled as being removed.

The same pertains to trees that were marked with the letter "R"

and circled , that had initially been identified for trimming and

not removal. With this modification , t he trees to be trimmed or

remo ved under the Clear Chan nel continue to be those located

between the signs and State Road 24.

2 3 . Before the signs were permitted in 1978, the DOT

right - of - way map in the vicinity of State Road 24 and Northeast

Eighth Avenue, approved on December 2, 1966, Respondent 's

Exhibit numbered 3, reflected the dimensions of State Road 24,

to include the existing easement line associated with the

easement for State Road 24 and the Seaboard Airline Railroad

corridor on the opposite side of that easement line. DOT had

acquired the State Road 24 easement from the railroad to extend

State Road 24. The easement took in a portion of the railroad

right - of - way.

24 . On June 17, 1987, CSX Transportation deeded to DOT ,

pertaining to the former Seaboard Airline Railroad , the rail

right - of - way in the vicinity of the State Road 24 and Northeast

Eighth Avenue and other locations in Gainesville, Alachua

County, Florida . This is reflected in Respondent's Exhibit

numbered 1. This meant that the easement for State Road 24

obtained from CSX Transport ation, Inc. , associated with State

Road 24 was now owned by DOT , together with the balance of the

railroad right - of - way . The balance of the tract or parcel

previously owned by CSX Transportation no longer served as an

active rail corridor.

2 5 . Responden t's E xhibit numbered 4 is a right - of - way map

drawn July 29, 1988 . It depicts the existing easement line

separating State Road 24 from the other property that had been

obtained from CSX Transportation. In the more recent map , the

railroad is not reflected as it had been in the 1966 map. The

1988 right - of - way map in other respects is compar able as to the

locale depicted , that is the vicinity of State Road 24 and

Northeast Eighth Avenue.

2 6 . On October 3, 1989, DOT entered into an agreement with

Alachua County and the City of Gainesville to allow the

abandoned railroad right - of - way corridor, to include the

vicinity of State Road 24 and Northeast Eighth Avenue , to be

used for pedestrian and bicycle traffic , upon condition that the

maintenance of the corrid or be the responsibility of the county

and city. Respondent's Exhibit numbered 2.

2 7 . In Fe bruary 1990 , the City of Gainesville applied for

the highway beautification grant from DOT along State Road 24 ,

where the railroad had been , to include the area where the Clear

Channel signs were located. Inf ormation concerning the

application for the highway beautification grant is set out in

Petitioner's Exhibit numbered 9. It called for the plant ing of

715 trees and 4 , 133 shrubs associated with an 8 - foot wid e

asphalt path to be used by joggers, bicyclists, and pedestrians.

The installation of the trees and shrubs would be in accordance

with the establishment of la ndscaping to be maintained over

time. DOT and the City of Gainesville entered into a H ighway

L a ndscape G rant A greement and L andscape Cons truction and

Maintenance M emorandum A greement. The details of that agreement

are not precisely known, in that the agreement is no longer

available , but it is similar in its terms to a subsequent

agreement made in 1999 between the same parties.

2 8 . The C ity of Gainesville applied the second time for a

beautification grant. That grant was approved pursuant to an

agreement entered on January 22, 1999. The terms of that

agreement are reflected in Petitioner's Ex hibit numbered 7,

which is a copy of the Highway Landscape Grant A greement and

L andscape G rant A greement and L andscape C onstruction and

M aintenance M emorandum of A greement. The January 22, 1999 ,

agreement encompass es the area which is found in the vicinit y of

"the unpaved areas within the right - of - way of State Road 24 " ,

and its intersection with Northeast Eighth Avenue. This

arr angement also led to the plant ing of trees.

29. Charles R. Bush is employed by DOT in the district

office that serves Alachua County. He works in District 2

located in Lake City, Florida. His duties include vegetation

management overseen by the district maintenance section .

Mr. Bush also serves in the capacity of DOT c oordinator for

highway beautification grant s in District 2 . He is familiar

with both beautification grants iss ued to the City of

Gainesville in the area in question and testified about them

from the agency perspective .

30. However, w hen the 1990 application was made by the

City of Gainesville for a beautif ication grant, it was handled

through the right - of - way office of District 2 . T hat was a

separate function within District 2. At that time there was no

concern for any problems with the viewing zones to allow the

motoring public to see the Clear Channel s igns that w ere

previously installed and the influence that vegetation might

have if the City of Gainesville were allowed to plan t vegetation

that would obscure the view.

31 . When the 1999 agreement was entered into between DOT

and the City of Gainesv ille to allow activities associated with

the beautification grant, the unit within District 2, the

maintenance office where Mr. Bush worked , was responsible for

application review. That unit was cognizant of the relationship

between the beautification gra nt ap pl ication and the existence

of outdoor advertising signs. The owners of the signs in

question did not approach DOT at th e time the beautification

grant application was being considered that was subsequently

issued to the City of Gainesville in 1999. The City of

Gainesville made no mention of the signs in its application.

While the grant application w as under review, someone in a

meeting about the subject , indicated in Mr. Bush's presence that

th e other person understood the signs in question were no t go ing

to be maintained . As a consequence, the DOT employees decided

that they would not concern themselves with the issue of the

effect of the beautification grant on the signs being seen by

the motoring public and proceeded with the grant application a s

if the signs had been abandoned. The signs were not considered

by DOT as being in a good state of repair. Mr. Bush recalled

that some time during the pendency of the grant review process ,

Clear Channel took steps to refurbish the sign s and had

advertis ing material displayed , but as Mr. Bush described it,

"the grant had been processed, and the Gainesville people

start ed planting trees and that's when the conflict started."

Throughout this process leading to the est a blish ment of the

grant for the City of Gainesville , DOT did not contact Clear

Channel about the status of the two signs in question.

32. According to Arthur Cyrus Adams, Jr., p resident of

Clear Channel North Central Florida operations, the signs have

been actively maintained and available for advertising since

permitted by DOT. At times in the late 19 90s, while the signs

were being regularly leased to advertisers , the north - facing

sign had paper copy utilizing 28 - day cycles that would begin to

deteriorate if kept in place more than six wee ks. That

representation by the company official does not conflict with

what M r . Bush had to say about the circumstances out at the

location in the instance where DOT thought the signs were not

being utilized.

33 . The permission provided th e City of Gainesville under

bo th grants allowed plant ing in the railroad cor ridor that has

been described, as well as the right - of - way associated with

State Road 24.

3 4 . As shown in Petitioner's Exhibit numbered 6 , seven

trees that Clear Channel wishe s to remove are within the Waldo

Road or State Road 24 right - of - way. DOT does not contest the

right to obtain a permit to rem ove those trees. T he majority of

th e trees sought for trimming and removal, as reflected in that

exhibit , are located in the rail corridor now owned by DOT.

Among those trees are numerous trees planted by the City of

Gainesville pursuant to the beautification grants . This group

of trees and the p a lm t rees previously described that were in

place before beautification , are trees tha t DOT would deny Clear

Channel a vegetation management permit t o allow trimming and

removal . T he denia l is b ased upon t he DOT view that the rail

corridor property is not public right - of - way as m en t ioned within

Section 479.106, Florida Statutes , and tree r emoval and trimming

in that area cannot be authorized.

35. As Charles Garner, DOT Manager of Production and

Program Operations for the Office of R ight - of - W ay explains, DOT

denied a vegetation management permit to Clear Channel because

it interpreted Sec tion 479.106, Florida Statutes , in its

reference to a "public right - of - way " as being synonymous with

highway right s - of - way , while excluding railroad corridors. Part

of a number of tree sought for removal or trimming fall within

what DOT considers a railro ad corridor . DOT has interpreted

Section 479.106, Florida Statutes , pertaining to vegetation

management permit s as creating a view zone "for properly

permitted outdoor advertising signs from the highway." Again ,

Mr. Garner in stating the DOT position ref ers to a "view zone , "

as to the highway right s - of - way, that does not extend outside

the right - of - way across another property zone used for other

purposes. As Mr. Garner explains, "We do not take a position as

to whether a sign owner has the right to remov e vegetation on

privatively - owned property or areas of that nature. I believe

the statute as it was enacted this past year in 479.106 makes it

clear that that view zone does not extend to other publicly -

owned lands, only on highway right s - of - way ." When q uoting from

Mr. Garner , his reference to the statute enacted this past year

is perceived as a reference to Section 479.106(6)(a), Florida

Statutes ( 2006 ), describing view zone s in relation to public

right s - of - way of interstate highways, expressways, federa l - aid

primary highways, and the S tate H ighway S ystem in Florida ,

excluding other privately or other publicly - owned property.

3 6 . Jordan Green is the area transportation development

engineer for DOT District 2. He explained that DOT has no plans

to e xpand the paved surface of State Road 24 in the vicinity of

that road and Northeast Eighth Avenue. It is inferred that th is

form of expansion could involve the rail corridor property in

the vicinity of the signs if undertaken .

3 7 . The sidewalk and bike path in the rail corridor at

issue constitute transportation facilities according to

Mr. Green , whose testimony is accepted.

CONCLUSIONS OF LAW

38 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties p ursuant to

Sections 120.569 and 120.57(1), Florida Statutes (200 6 ).

3 9 . Clear Channel seeks permission from DOT to manage

vegetation that obstructs the view zone s associated with its

signs near Northeast Eighth Avenue and State Road 24 in

Gainesville , Florida . This began in a ccordance with Section

479.106(1 ), Florida Statutes ( 2006 ) which states:

T he removal, cutting, or trimming of trees

or vegetation on public right - of - way to make

visible or to ensure future visibility of

the facing of a proposed s ign or previously

permitted sign shall be performed only with

the written permission of the department in

accordance with the provisions of this

section.

Clear Channel has the burden to establish its entitlement to

permission, DOT having denied the appli cations for vegetation

management. In addition, Clear Channel had the burden to

proceed with the proof and it did. See Florida Department of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

40 . The facts found in resolving this case were based upon

a preponderance of the evidence. § § 120.57(1)( j ), Fla. Stat.

( 2006 ).

41 . By way of history, Clear Channel was required to

obtain permits from DOT for the signs it constructed in 1978.

B eyond that point , the permits have been renew ed as require d by

law. B ased upon the facts, it is inferred that the most recent

annual renewal took place as called for in Section 479.07(8)(a),

Florida Statutes (2005).

42 . The erection, operation, use and maintenance of the

signs in accordance with the permits is recognized pursuant to

Section 479.07(1), Florida Statutes ( 2006 ) , which states:

(1) Except as provided in ss. 479.105 (1)(e)

and 479.16 , a person may not erect, operate,

use, or maintain, or cause to be erected,

operated, used, or mai ntained, any sign on

the State Highway System outside an

incorporated area or on any portion of the

interstate or federal - aid primary highway

system without first obtaining a permit for

the sign from the department and paying the

annual fee as provided in this section. For

purposes of this section, "on any portion of

the State Highway System, interstate, or

federal - aid primary system" shall mean a

sign located within the controlled area

which is visible from any portion of the

main - traveled way of such syst em.

43 . Terms u se d in Chapter 479, Florida Statutes ( 2006 ) ,

the Outdoor Advertising law, are defined at Section 479.01,

Florida Statutes ( 2006 ) , where it states:

479.01 Definitions . -- As used in this

chapter, the term:

* * *

(4) "Controlled area" shall mean 660 feet

or less from the nearest edge of the right -

of - way of any portion of the State Highway

System, interstate, or federal - aid primary

system and beyond 660 feet of the nearest

edge of the right - of - way of any port ion of

the State Highway System, interstate, or

federal - aid primary system outside an urban

area.

(5) "Department" means the Department of

Transportation.

(6) "Erect" means to construct, build,

raise, assemble, place, affix, attach,

create, paint, dr aw, or in any other way

bring into being or establish; but it does

not include any of the foregoing activities

when performed as an incident to the change

of advertising message or customary

maintenance or repair of a sign.

(7) "Federal - aid primary high way system"

means the existing, unbuilt, or unopened

system of highways or portions thereof,

which shall include the National Highway

System, designated as the federal - aid

primary highway system by the department.

(8) "Highway" means any road, street, o r

other way open or intended to be opened to

the public for travel by motor vehicles.

(9) "Interstate highway system" means the

existing, unbuilt, or unopened system of

highways or portions thereof designated as

the national system of interstate and

def ense highways by the department.

(10) "Main - traveled way" means the traveled

way of a highway on which through traffic is

carried. In the case of a divided highway,

the traveled way of each of the separate

roadways for traffic in opposite directions

is a main - traveled way. It does not include

such facilities as frontage roads, turning

roadways, or parking areas.

* * *

(17) "Sign" means any combination of

structure and message in the form of an

outdoor sign, display, device, f igure,

painting, drawing, message, placard, poster,

billboard, advertising structure,

advertisement, logo, symbol, or other form,

whether placed individually or on a V - type,

back - to - back, side - to - side, stacked, or

double - faced display or automatic changeab le

facing, designed, intended, or used to

advertise or inform, any part of the

advertising message or informative contents

of which is visible from any place on the

main - traveled way. The term does not

include an official traffic control sign,

official ma rker, or specific information

panel erected, caused to be erected, or

approved by the department.

* * *

(22) "State Highway System" means the

existing, unbuilt, or unopened system of

highways or portions thereof designated a s

the State Highway System by the department.

44 . Clear Channel and its predecessors in ownership ,

routinely operated and maintained the signs from the time

permitted. They did so with the expectation, according to law,

that the signs be visible from the main - traveled way which is

State Road 24 .

4 5 . Between State Road 24 and its right - of - way and the

location where the signs were erected, there existed a railroad

corridor with its right - of - way paralleling State Road 24 in that

vicinity. Eventually CSX became the owner of the railroad that

utilized the railroad corridor . The railroad operation had

provided and easement to DOT as part of the State Road 24 right -

of - way . On June 17, 1987, CSX by deed , gave title to DOT to the

land upon which the railr oad corridor and the easement

previously provided for State Road 24 was found, to include the

area at issue where the vegetation creating the obstruction is

found .

46. According to Section 337.242(3), Florida Statutes

( 2006 ), DOT has control of ingress an d egress to the railroad

corridor . DOT may prohibit ingress and egress to the railroad

corridor . The same legal authority pertained when DOT entered

into a memorandum of agreement with Alachua County and the City

of Gainesville in the area , to include th e vicinity where the

signs are found. On October 3, 1989, DOT agreed with the local

governments that the y be allow ed t o use the railroad corridor

for pedestrian and bicycle traffic and maintenance of vegetation

and litter removal. The arrangement between DOT and the local

governments, pursuant to the memorandum of agreement , coul d not

interfere with the operation , use , or maintenance of the signs ,

who se owner had an established property interest .

4 7 . In the year 1990 , the City of Gainesville applied for

and was eventually given a highway beautification grant from

DOT . The grant was provided consistent with Section

339.240 5(11), Florida Statutes (1991), which states:

State highway beautification grants may be

requested only for projects to beautify

thro ugh landscaping roads on the State

Highway System. The grant request shall

identify all costs associated with the

project, including sprinkler systems, plant

materials, equipment, and labor. A grant

shall provide for the costs of purchase and

installatio n of a sprinkler system, the cost

of plant material and fertilizer, and may

provide for the costs for labor associated

with the installation of the plantings.

Each local government that receives a grant

shall be responsible for any co s ts for

water, for th e maintenance of the sprinkler

system, for the maintenance of the

landscaped areas in accordance with a

maintenance agreement with the department,

and, except as otherwise provided in the

grant, for any costs for the labor

associated with the installation of the

plantings. The department may provide, by

contract, services to maintain such

landscaping at a level not to exceed the

cost of routine maintenance of an equivalent

unlandscaped area.

48. The 1990 s agreement between the City of Gainesville

and D OT was essentially the same as a subsequent agreement

between those parties entered on January 22, 1999, which allowed

further beautification . Both grant projects, the early 1990s

project and the January 22, 1999 , project , led to the City of

Gainesville l andscaping in the area where the Clear Channel

signs are located by placing trees and shrubs. Some of the

trees planted under the beautification grant s are within the

State Road 24 right - of - way , others are in the railroad corridor .

4 9 . The January 22, 1999 , grant was provided under

authority set forth in Section 339.2405(11), Florida Statutes

(1998). The language in that provision was the same as quoted

above in reference to Section 339.2405(11), Florida Statutes

(1991). That same language is found in Section 339.2405(11),

Florida Statutes (2006). The 1999 agreement pertaining to State

Road 24 described the installation and maintenance of

landscaping within unpaved areas within the right - of - way of

State Road 24 . Nothing in the 1999 agreement and by c omparison

the 1990 s agreement , similar in its terms, to allow landscaping

for beautification purposes , addressed the railroad corridor as

such.

50. However Exhibit " B " to the 1999 agreement reflecting

the landscape plan , Petitioner's Exhibit numbered 8, portrayed

planning within the right - of - way of State Road 24 and the

railroad corridor as it pertains to the January 22, 1999 ,

beautification grant . Thus DOT recognized plan t ing within the

railroad corridor as part of the beautification grant , as it had

i n the early 1990s grant.

5 1 . Notwithstanding the opportunity created to plant in

the railroad corridor, t he railroad corridor at the site is not

a road on the S tate H ighway S ystem as referenced in Section

339.2405(11), Florida Statutes ( 2006 ).

52. On ce planted , the shrubs and trees grew to the point

that they obstruct ed the view zone of motori st s when approaching

the sig n s owned by Clear Channel .

53 . When the January 22, 1999 , agreement was entered into

between DOT and the City of Gainesville for b eautification ,

pursuant to the grant , it was an arrangement that was contrary

to Section 479.106 (6) , Florida Statutes (1998), associated with

the process by which DOT permit s removal, cutting or trimming of

trees or vegetation on public right - of - way s for v isibility of

the sign faces, such as the signs at issue. Section 479.106 (6) ,

Florida Statutes (1998), states :

B eautification projects shall not be

located in an area which will screen from

view legally - erected and permitted outdoor

advertising signs wh ich have been permitted

prior to the date of the beautification

project.

Here the outdoor advertising signs had been permitted in 1978

and remained in operation when the beautification grant was

provided. 1/ The beautification project described in Sec tion

479.106(6), Florida Statutes (1998) is that contemplated in

Section 339.2405(11), Florida Statutes (199 8 ) . In placing the

shrubs and trees in the State Road 24 right - of - way , the law was

violated. Clear Channel 's rights were compromised. Relief

avai lable to Clear Channel and redress f rom the decision that

violated its rights is not available here, unless one concludes

that beautification projects that te n d t o interfere with the

view would have the landscaping subject to removal, cutting or

trimming a s part of a vegetation management permit issued

pursuant to Section 479.106 (1) , Florida Statutes ( 2006 ) . 2/

Without resort to the opportunities identified in Section

479.106(6), Florida Statutes ( 2006 ), vegetation management

opportunities for Clear Channel still exists in relation to a

portion of the plan t ing for beautification .

5 4 . The application by Clear Channel calling for the

removal, trimming and maintenance of any trees or other

vegetation from the right - of - way associated with State Road 24 ,

part of the City of Gainesville beautification projects, and

otherwise , is allowed under Section 479.106(1), Florida Statutes

( 2006 ).

55. The 1990s beautification grant could not interfere

with the public view of Clear Channel signs permitted in 19 7 8,

by pla nting vegetation. The 199 9 beautification grant violated

Section 479.106(6), Florida Statutes (1998), in addition to the

general problem with the 1990s grant. Both grants interfered

with established property interests held by th e sign owner.

5 6 . The a rgument by Clear Channel that the term "public

right - of - way " found within Section 479.106(1), Florida Statutes

( 2006 ) , extends not just the right - of - way for State Road 24, but

also to the railroad corridor , where shrubs and trees had been

planted under ter ms set forth in the 1990 s and 1999

beautification grant s is unpersuasive. Chapter 479, Florida

Statutes , as it existed at the time that the applicat ion s for

vegetation management permit s were made, continuing until this

time , did not concern itself with r ailroad corridor s. Instead

the meaning of "public right - of - way " in Section 479.106(1),

Florida Statutes ( 2006 ) , i s associated with the "federal - aid

primary highway system , " a "highway ," the " interstate highway

system , " and the "S tate H ighway S ystem , " whos e definitions have

been previously stated under Section 479.01, Florida Statutes

( 2006 ). Oppor t un ities in association with the sign per mits most

recently issued in accordance with Section 479.07, Florida

Statutes ( 2005 ) , concern themselves with visibility from the

main - traveled way of those highway systems, not railroad

corridor s.

57 . Section 337.405(1), Florida Statutes ( 2006 ) , has also

been cited in this case. That provision states:

Trees or other vegetation within rights - of -

way of State Highway Sys tem or publicly

owned rail corridors; removal or damage;

penalty. --

(1) The removal, cutting, marring,

defacing, or destruction of any trees or

other vegetation, either by direct personal

action or by causing any other person to

take such action, withi n the rights - of - way

of roads located on the State Highway System

or within publicly owned rail corridors is

prohibited unless prior written permission

to remove or cut such trees or other

vegetation has been granted by the

department, except where normal t ree

trimming is required to ensure the safe

operation of utility facilities and such

tree trimming is performed in accordance

with the provisions of its utility

accommodations guide, and any subsequent

amendments thereto. The department shall

adopt rules f or the implementation of this

section to achieve protection of vegetation

while at the same time assuring safe utility

operations. (Emphasis added)

According to this law, ordinarily removal or cutting of trees or

other vegetation within a publicly - owne d rail corridor would not

be allowed without written permission from DOT . The exception

is that operation of utility facilities to address normal tree -

trimming does not require written permission.

5 8 . Otherwise Section 337.405(1), Florida Statutes ( 200 6 ) ,

creates an opportunity for DOT to exercise its discretion in

granting the permission to remove the trees and vegetation

within the publicly - owned railroad corridor , i n the vicinity of

the signs . Under these circumstances th e permission should be

given consistent with Florida Administrative Code Rule 14 -

40.040.

RECOMMENDATION

Upon the consideration of the facts found and the

conclusions of law reached, it is

RECOMMENDED:

That DOT , in its capacity, enter a final order granting

Clear Channe l permission to remove, trim and manage the

vegetation set out in its applications, as amended at hearing.

DONE AND ENTERED this 22nd day of January , 200 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C. ADAMS

A dministrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January , 200 7 .

ENDNOTES

1/ Section 479.106, Florida Statutes , was enacted as Chapter

96 - 201, Laws of Florida , after the beautification grant was

provided in the 1990 s project.

2/ The language within the overall section 479.106 remained

consistent from its inception when enacted, Chapter 96 - 201, Laws

of Florida, through the version found in Section 479.106,

Florida Statutes ( 2005 ). When considering beautification

projects that came after Chapter 20 0 6 - 249, Law s o f Florida

became effective, the legislature has created a distinct process

for dispute resolution , beyond the timeline for this case . This

change was substitutive in nature, not procedural. Now Section

479.106(6), Florida Statutes (2006) states:

(6) Beautification projects, trees, or

other vegetation shall not be planted or

located in the view zone of legally erected

and permitted outdoor advertising signs

which have been permitted prior to the date

of the beautification project or other

planting, whe re such planting will, at the

time of planting or after future growth,

screen such sign from view.

(a) View zones are established along the

public rights - of - way of interstate highways,

expressways, federal - aid primary highways,

and the State Highway Sy stem in the state,

excluding privately or other publicly owned

property, as follows:

1. A view zone of 350 feet for posted speed

limits of 35 miles per hour or less.

2. A view zone of 500 feet for posted speed

limits of over 35 miles per hour.

(b) The established view zone shall be

within the first 1,000 feet measured along

the edge of the pavement in the direction of

approaching traffic from a point on the edge

of the pavement perpendicular to the edge of

the sign facing nearest the highway and

sh all be continuous unless interrupted by

existing, naturally occurring vegetation.

The department and the sign owner may enter

into an agreement identifying the specific

location of the view zone for each sign

facing. In the absence of such agreement,

the e stablished view zone shall be measured

from the sign along the edge of the pavement

in the direction of approaching traffic as

provided in this subsection.

(c) If a sign owner alleges any

governmental entity or other party has

violated this subsection, the sign owner

must provide 90 days' written notice to the

governmental entity or other party allegedly

violating this subsection. If the alleged

violation is not cured by the governmental

entity or other party within the 90 - day

period, the sign owner may file a claim in

the circuit court where the sign is located.

A copy of such complaint shall be served

contemporaneously upon the governmental

entity or other party. If the circuit court

determines a violation of this subsection

has occurred, the court sh all award a claim

for compensation equal to the lesser of the

revenue from the sign lost during the time

of screening or the fair market value of the

sign, and the governmental entity or other

party shall pay the award of compensation

subject to available appeal. Any

modification or removal of material within a

beautification project or other planting by

the governmental entity or other party to

cure an alleged violation shall not require

the issuance of a permit from the Department

of Transportation provi ded not less than 48

hours' notice is provided to the department

of the modification or removal of the

material. A natural person, private

corporation, or private partnership licensed

under part II of chapter 481 providing

design services for beautificati on or other

projects shall not be subject to a claim of

compensation under this section when the

initial project design meets the

requirements of this section.

(d) This subsection shall not apply to the

provisions of any existing written agreement

execu ted before July 1, 2006, between any

local government and the owner of an outdoor

advertising sign.

Because that amendment to the law is substantive in nature,

it does not pertain to the beautification project under the

January 22, 1999 , agreement bet ween the City of Gainesville

and DOT .

COPIES FURNISHED :

Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Paul Sexton, Esquire

Williams Wilson & Sex ton, P.A.

215 South Monroe Street, Suite 600 - A

Tallahassee, Florida 32302

James C. Myers, Agency Clerk

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Denver Stutler, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 5 8

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order shoul d be filed with the agency that

will issue the final order in this case.