06-002233 Clear Channel Outdoor-Atlantic Coast Division vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, January 3, 2007.

Summary: Fourteen applications for signs comply with the requirements of Florida Statutes and Florida Administrative Code. The signs are to be written industrial or commercial. Zoning is not enacted primarily to permit signs. Recommend that the permits be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLEAR CHANNEL OUTDOOR - ATLANTIC )

COAST DIVISION , )

)

Petitioner , )

)

vs. ) Case No. 06 - 2233

) 03 - 143

DEPARTMENT OF TRANSPORTATION , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

before Daniel M. Kilbride, Administrative Law Judge of the

Division of Administrative Hearings (DOAH) , on October 4, 2006,

in Tallahassee, Florida.

APPEARANCES

For Pe titioner: Paul Sexton, Esquire

Williams Wilson & Sexton, P.A.

215 South Monroe Street, Suite 600 - A

Tallahassee, Florida 32302

For Respondent: Robert M. Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

Whether the 14 applications (application numbers 54481

through 54494) for the eight sign structures (six double - sided

and two single - sided) adjacent to Interstate Route 95 and the

Florida Turnpike within the City of Port St. Lucie should be

granted or denied by Respondent.

PRELIMINARY STATEMENT

On August 21, 2003, Petitioner filed a Petition for Formal

Administrative Hearing with Respondent relating to the denial of

14 applications for sign structures. On December 2, 2003,

Respondent issued amended notices of denied application on each

of the 14 applications. Following a delay in referral,

requested by Petitioner, this matter was referred to the DOAH on

June 22, 2006. Following discovery and a continuance granted at

the request of Respondent, the parties submitted their Joint

Pre - hearing Stipul ation on September 27, 2006.

At the hearing, Petitioner called one witness, Edward

Williams, who testified as an expert witness, and Respondent

called one witness, John Garner, m anager of Production and

Program Operations for Respondent. One Joint Exhibit , with

12 tabs, w as offered by the parties and accepted into evidence.

The Joint Exhibit is comprised of Clear Channel’s applications

( Tab 1a - 1h) ; the Department’s Notices of Denied Application

( Tab 2a - 2h) ; an excerpt from the City of Port St. Lucie’s

C omprehensive Plan ( Tab 3) ; an excerpt from the City’s Land

Development Regulations ( Tab 5) ; a comparison of the sign sites

with parcels shown in the City’s Zoning Book ( Tab 5a - 5h) ; photos

and other materials from site visits by Garner ( Tab 6a - 6h) ;

Florida Administrative Code Chapter 14 - 10 ( Tab 7) ; Chapter 479,

Florida Statutes ( Tab 8) ; an excerpt from FHWA regulations,

23 C.F.R., Subpart G ( Tab 9) ; a copy of Florida Administrative

Code Rule 9J - 5.003 (Tab 10); selected definitions from the

American Heritage Dictionary ( Tab 11) ; and Mr. Williams’

Curriculum Vitae ( Tab 12).

The Transcript of the hearing was filed on October 18,

2006. Following the granting of a request for extension of time

for the filing of post - hearing submittals, each party timely

filed th eir Proposed R ecommended O rders on November 17, 2006.

Both proposals have been given careful consideration in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following fi ndings of fact are made:

Petitioner’s Applications

1. Petitioner’s applications are for sign structures at

eight different locations within the City of Port St. Lucie (the

City). Six of the structures are two - sided sign structures and

two are single - side d sign structures.

2. Petitioner’s 14 applications were received by

Respondent on July 1, 2003. The applications were completed in

accordance with Respondent's Rules.

3. Respondent’s original Notices of Denied Application

were dated and mailed out July 29, 2003, and were received by

Petitioner on August 1, 2003. Petitioner filed its Petition for

Formal Administrative Hearing on August 21, 2003. On

December 2, 2003, Respondent issued amended notices of denied

application on each of the 14 applications. Referral of the

Petitions to the D OAH w as delayed at the request of Petitioner.

All Sign Sites are Located in a Commercial or Industrial Zone.

4. The sites upon which the proposed sign structures will

be erected are located on parcels that have been zo ned

commercial or industrial. The parcels where the proposed sign

structures will be erected have been designated “Utility” by the

City’s Future Land Use Map and have been designated “Utility”

under its Land Development Regulations. The City’s

Comprehens ive Plan includes the “Utility” land use as a category

of Industrial land use. The City’s Land Development Regulations

include the “Utility” land use category under Article IX,

Industrial Districts.

5. The sign sites are designed to correspond to the

par cels of land designated in the City’s Zoning Book, as

follows:

· Application No. 54487 is located at site

7 - 1, on Parcel 7.

· Application Nos. 404708 & 404710 are

located at site 35 - 2, on Parcel 35.

· Application Nos. 404701 & 404702 are

located at site 35 - 5, on Parcel 35.

· Application Nos. 404697 & 404699 are

located at site 35 - 6, on Parcel 35.

· Application Nos. 404705 & 404706 are

located at site 35 - 7, on Parcel 35.

· Application No. 404698 is located at site

41 - 2 on Parcel No. 41.

· Application Nos. 404704 & 404704 are

located at site 46 - 1, on Parcel 46.

· Application Nos. 404707 & 404709 are

located at site 48 - 1, on Parcel 48.

6. The certified statements of the City’s zoning official

establish that the sign sites are each located in a commercial

or industrial zone. All applications submitted by Petitioner

were submitted on Respondent's forms, which have been

incorporated into Respondent’s rules by reference.

7. Page 2 of 2 of each application submitted by Petitioner

included a section to be completed by a City zoni ng official,

and each provided as follows:

To be completed by appropriate zoning

official:

Designation of parcel on the Future Land Use

Map: UTILITY, WHICH IS AN INDUSTRIAL LAND

USE CATEGORY.

The primary land uses under this designation

are: DEVELOPMEN T ACCOMMODATING MAJOR PUBLIC

AND PRIVATE UTILITIES, INCLUDING BUT NOT

LIMITED TO PUBLIC AN D PRIVATE STORM WATER

SYSTEMS, WATER AND WASTEWATER PLANTS,

ELECTRICAL SUBSTATION AND TRANSMISSION AND

STORM W ATER RIGHTS - OF - WAY, TELEPHONE

SWITCHING STATIONS.

Curren t Zoning of parcel (from Land

Development Regulations): UTILITY, WHICH IS

AN INDUSTRIAL LAND USE CATEGORY.

The primary land uses under this designation

are: UTILITIES FACILITIES, STORM WATER

SYSTEMS, WATER AND WASTEWATER PLANTS,

ELECTRICAL SUBSTATION AN D TRANSMISSION

FACILITIES, TELEPHONE, CABLE TELEVISION AND

SIMILAR COMMUNICATIONS FACILITIES.

Sign located within city limits ?

_ X _ Y es ___ N o

Please provide the name and telephone number

of the person the Department may contact if

additional information is

required :__________________________________

I certify that the above information

reflects the designation of the parcel as it

is shown on the current comprehensive plan

adopted pursuant to Chapter 163, Florida

Statutes, and with all local governmental

requirements, and that I am authorized to

sign this form on behalf of the

county/municipality named above:

Cheryl S . Friend ________

Signature of Local Government Official

Cheryl S. Friend, Asst. Director of P&Z

Printed Name and Title

5/22/03

Date

8 . The testimony of Petitioner’s expert witness

established that the proposed sign sites are each located in a

commercial or industrial zone. Edward Williams was accepted in

this case as an expert in planning and zoning , and he has over

28 years ' experien ce in applying planning and zoning principles.

He has been a [0] ccepted as an expert in planning and zoning in

Florida c ourts in over 30 counties. Williams [0] testified that

he reviewed the issue of whether the parcels where signs are to

be located are within commercial or industrial zones and

concluded that they were [0] . [0] Williams reviewed the Future

Land Use Element of the City’s Comprehensive Plan, which plainly

defines "Utility" as an industrial land use. [0] The City’s

zoning code also shows Utility zoning a s an industrial use.

[0] The City decided it was appropriate, considering all factors,

to adopt a utility zoning category as a part of the industrial

use classification because of the nature of the community.

Williams concluded that, based on the actual use s identified

under the various land use categories designated by the City,

the City correctly placed the "Utility" category under the

industrial land use category.

[0] 9. The Utility category under the City's Future Land

Use

Element and Land Development Reg ulations is intended for

facilities that are larger than those that serve residential

areas. They are more significant than just service lines.

10. Long - established land use classification systems

utilized by planners to classify land use, and which ar e based

on the activities performed and their impact on other properties

and other uses, show that the proposed sign sites are located in

commercial or industrial zones. These long - established land use

classification systems have been used by local govern ments in

Florida [0] to prepare comprehensive plans, land development

regulations , and zoning maps. An evaluation of all of these

classification systems shows that utilities are listed in the

heavy commercial and in the industrial type categories. By

their nature, by their use , and by their compatibility issues,

they are commercial and industrial uses. [0] [0]

[0] 11. The utility uses described under the City’s Future

Land Use Element and its Land Development Regulations do meet

the definition of industrial uses in Florida Administrative Code

Rule 9J - 5.003(58). The public considers those utility uses to

be industrial uses.

12. The unchallenged statements of the City’s “zoning

official” and Williams’ expert testimony establish that each

sign site is located on a p arcel of land designated for

commercial or industrial use under both the Future Land Use Map

of the City’s Comprehensive Plan and the City’s Land Development

Regulations adopted pursuant to Chapter 163, Florida Statutes

(200 3 ) . 1

13. John Garner’s contenti on that the uses authorized

under the “Utility” designation are not commercial or industrial

uses is not consistent with the land use planning principles or

land use classification systems used as the basis for

comprehensive planning in Florida. Garner ha s misapprehended

the nature and patterns of industrial development in Florida.

His description of industrial development is incorrect, to the

extent that Florida's industrial uses are of a less heavy and

dirty type typical of heavy industrial states and a re more

easily integrated with commercial and residential areas.

Security is an issue for industrial uses in some areas of the

state, and they are fenced in, but this is not common in the

current development of industrial parks, where security is

provided at the building, not the roads or perimeter. Though

providing a general description of the nature of industrial uses

in Florida that emphasized controlled access, heavy traffic , and

the like, Garner acknowledged that industrial uses can be stand

alone lo cations on a single lot.

14. Comprehensive planning in Florida is accomplished

under Chapter 163, Florida Statutes. The general purpose of the

future land use element of a comprehensive plan is to reflect

the local government’s long - range vision of how a community

should develop and where certain uses are going to develop.

From a planning standpoint, it is inappropriate to direct

Respondent to review comprehensive plans and land development

regulations to identify permitted uses on a parcel, but ignore

technical planning and zoning principles in favor of lay

definitions. Respondent works closely with the Department of

Community Affairs and should be consistent in how it applies

planning principles.

Respondent’s Uniform Interpretation of S ubs ection 479.0 1(3),

Florida Statutes

15. According to Garner, Respondent interprets the terms

“commercial or industrial use” found in S ubs ection 479.01(3),

Florida Statutes, as those words are “commonly understood,”

rather than as applied in land development regulation s. Garner

uses the layman’s everyday interpretation of the term

"industrial" when applying the term. Respondent has a uniform

interpretation of S ubs ection 479.01(3), Florida Statutes, under

which it utilizes an everyday lay definition of commercial or

in dustrial zone, rather than a technical planning and zoning

approach. Garner’s opinion that the sign sites were not

designated as industrial uses was based on this uniform

interpretation. That interpretation is not reflected in Florida

Administrative Code Chapter 14 - 10.

Commercial or Industrial Zoning Not Enacted Primarily to Permit

Signs

16. The testimony of Petitioner’s expert witness is

persuasive that the commercial or industrial zoning of the

proposed sign sites was not enacted primarily to permit si gns.

According to Garner, Fl orid a Admin istrative Code Rule 14 -

10.0052(2)(a) is not triggered if commercial or industrial uses

are the primary permitted uses. There is no problem under that

portion of the rule if the allowed uses for a parcel are

commerci al or industrial in nature. Similarly, Fl orida

Admin istrative Code Rule 14 - 10.0052(2)(b) is not triggered if

commercial or industrial uses are the primary permitted uses.

17. T he industrial uses authorized under the City’s Future

Land Use Map and its Lan d Development Regulations are primary

permitted uses and not incidental to other primary uses or

permitted only by variance or special exception. S uch uses are

expressly permitted under the City’s Comprehensive Plan and Land

Development Regulations.

18. As applied by Respondent, in order for zoning of a

parcel to run afoul of Fl orid a Admin istrative Code Rule 14 -

10.0052(2)(c) , both factors in that portion of the rule must

exist; that is, both the physical dimensions or other attributes

of the affected parc el would not reasonably accommodate

traditional commercial or industrial uses and the area

surrounding the affected parcel is not predominantly commercial

or industrial.

1 9 . Williams e [0] valuated whether the dimensions or other

attributes of the parcels wou ld accommodate traditional

industrial uses and [0] concluded that traditional commercial and

industrial uses could be accommodated on the parcels. His

conclusions are persuasive. There are many possible commercial

or industrial uses that can be accommodated on all of the

parcels at issue in this case, including warehousing, equipment

storage yards, material storage yards , and small manufacturing

facilities. The utility uses designated for these parcels are

one of the types of industrial uses that could be a ccommodated

on these parcels. However, regardless of that fact, a full

range of industrial uses, including warehousing, manufacturing

facilities , and storage facilities, can be accommodated on these

parcels.

20 . The sizes or configurations of these parce ls do not

preclude their development for commercial and industrial uses in

the traditional sense. Lots in the 50 to 60 - foot range can

accommodate traditional commercial and industrial uses,

including regular warehouses, fabrication yards, contractor

yards , equipment yards , and material yards. A review of the

City's L and D evelopment R egulations shows that there are no

restrictions that would prevent industrial uses on these

parcels.

21 . It is not unusual to see industrial development on

parcels the size a nd shape of those on which the signs are

proposed to be located. Many of these parcels are actually

quite large in size. They are oddly configured as a result of

platting and construction of roads, but not so oddly configured

that they couldn't be develo ped for commercial or industrial

uses.

22 . Garner offered the opinion that none of the parcels

upon which the sign sites were located would accommodate

traditional industrial uses. However, Garner has had no direct

experience in the ownership, proposal, permitting, development

or operation of any commercial or industrial development in

Florida.

23 . Garner was of the opinion that three of the parcels

had size or shape problems, but admitted that the other parcels

were large enough to physically accommodat e industrial

development. Garner admitted that essentially all of the

parcels could be fenced for security and access control.

24 . Ultimately, the princip al basis for Garner’s position

that the parcels would not accommodate traditional industrial

devel opment was that it is not “appropriate” for industrial uses

to obtain their access through residential streets. He

testified that all but one parcel (containing Site No. 48 - 1)

currently obtains access exclusively through residential

streets. However, Gar ner did not know how much industrial

development in Florida actually uses access through residential

streets and was not personally familiar with actions of local

zoning officials on requests by industrial developers to have

access through residential stre ets.

25 . In order to determine whether these parcels can

accommodate traditional commercial or industrial uses, it is

necessary to consider the development history of Port St. Lucie,

and platting by General Development Corporation, in the 1960's,

that res t ricted the size and location of lots within the City.

There are differences in typical commercial and industrial

development in a rural versus urban/city setting. In a city,

2,000 square - f oo t lots are developable and are highly desirable.

Commercial an d industrial development can be found on lots as

small as 30 feet wide, due to past platting, but commercial or

industrial development on 50 - foot lots is fairly standard.

26 . A review of the City’s Future Land Use Map shows that

many existing commercial a nd industrial areas in the City have

their access through residential areas. Preexisting plats

prohibit access in any other way. [0] The reason that the City

does not restrict access for industrial uses through residential

areas is that the prior plats by G eneral Development limited how

the community could grow.

27 . Garner was not aware of any restriction under City

codes that would restrict industrial development from using

residential streets for access. He was not aware of any

restriction that would pre vent access for an industrial use from

using residential streets, or whether the City has any problem

with a developer bringing industrial traffic through a

residential area.

28 . In fact, there are no restrictions under the City’s

Land Development Regulat ions against industrial uses having

their access through residential areas. The reason that there

are no such restrictions is revealed through the City’s Future

Land Use Element. The City’s Future Land Use Element shows that

the City is trying to increas e its commercial/industrial

acreage, provide jobs and employment opportunities and deal with

the plats and roads its been given. The General Development

plat and the extension of the interstate and turnpike system

have seriously constrained how the commun ity can develop. The

City’s Future Land Use Element recognizes that there is

insufficient commercial and industrial development in the City

and attempts to increase that through the planning process.

29 . The commercial or industrial zoning of the parce ls was

not enacted primarily to permit signs.

CONCLUSIONS OF LAW

Standing, Jurisdiction , and Parties

30 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties hereto,

pursuant to the provisions of S ection 120. 569 and S ubsection

120.57(1), Florida Statutes (2006 ) .

31. P etitioner’s applications are governed by the

provisions of Chapter 479, Florida Statutes, and Florida

Administrative Code Chapter 14 - 10. The issues in this case are

whether Petitioner’s applica tions comply with the requirements

of Section 479.111, Florida Statutes, and Florida Administrative

Code Rule 14 - 10.0052(2).

32. With the exception of compliance with Section 479.111,

Florida Statutes, and Florida Administrative Code Rule 14 -

10.0052(2), which are the contested issues in this case, the

applications submitted by Petitioner comply with the

requirements of Chapter 479, Florida Statutes, and Florida

Administrative Code Chapter 14 - 10.

Sign Sites Within Commercial or Industrial Zone

33. Section 479.111, Florida Statutes, provides that signs

in commercial - zoned and industrial - zoned areas or commercial -

unzoned and industrial - unzoned areas may be permitted within

certain areas along the interstate and federal - aid primary

highway system .

34. Sectio n 479.111, Florida Statutes, entitled “Specified

signs allowed within controlled portions of the interstate and

federal - aid primary highway system,” provides:

Only the following signs shall be allowed

within controlled portions of the interstate

highway sy stem and the federal - aid primary

highway system as set forth in s. 479.11(1)

and (2):

(1) Directional or other official signs

and notices which conform to 23 C.F.R. ss.

750.151 - 750.155.

(2) Signs in commercial - zoned and

industrial - zoned areas or co mmercial - unzoned

and industrial - unzoned areas and within 660

feet of the nearest edge of the right - of -

way, subject to the requirements set forth

in the agreement between the state and the

United States Department of Transportation.

(3) Signs for which permits are not

required under s. 479.16.

3 5 . As the proposed signs are neither directional or other

official signs, and the record does not show them to be exempt,

the relevant language of the above statute is found in

subsection (2).

3 6 . S ubs ection 479 .01(3), Florida Statutes, defines

"commercial or industrial zone" as a parcel of land designated

for commercial or industrial use under both the future land use

map of the comprehensive plan and the land use development

regulations adopted pursuant to chap ter 163.

3 7 . S ubs ection 479.01(3), Florida Statutes, provides:

“Commercial or industrial zone" means a

parcel of land designated for commercial or

industrial use under both the future land

use map of the comprehensive plan and the

land use development reg ulations adopted

pursuant to chapter 163. If a parcel is

located in an area designated for multiple

uses on the future land use map of a

comprehensive plan and the land development

regulations do not clearly designate that

parcel for a specific use, the a rea will be

considered an unzoned commercial or

industrial area if it meets the criteria of

subsection (23).

3 8 . Based on the facts established above, it is determined

that the sites upon which the proposed sign structures will be

erected are all located in commercial or industrial zoned areas

within the meaning of S ubs ection 479.01(3) and Section 479.111,

Florida Statutes. The unchallenged and uncontroverted

statements of the City’s “zoning official” and Williams’ expert

testimony establish that each sig n site is located on a parcel

of land designated for commercial or industrial use under both

the Future Land Use Map of the City’s Comprehensive Plan and the

City’s Land Use Development Regulations adopted pursuant to

Chapter 163, Florida Statutes.

The Dep artment’s Unadopted Rule

3 9 . The facts establish that Respondent’s decision in this

case relies on an interpretation of the terms found in

S ubs ection 479.01(3), Florida Statutes, as those words are

“commonly understood,” rather than as they are understood under

the planning and zoning concepts used for comprehensive planning

in Florida. Respondent has a uniform interpretation of

S ubs ection 479.01(3), Florida Statutes, under which it utilizes

an everyday lay definition of commercial or industrial zone,

rat her than a technical planning and zoning approach. That

interpretation is not reflected in Florida Administrative Code

Chapter 14 - 10. This uniform interpretation of S ubs ection

479.01(3), Florida Statutes, meets the definition of a “rule”

within the mean ing of S ubs ection 120.52(15), Florida Statutes,

in that it is a statement of general applicability that

interprets law.

40 . S ubs ection 120.52(15), Florida Statutes, defines the

term “rule” as meaning:

[E] ach agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes the

procedure or practice requirements of a n

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statutes or by

an existing rul e. The term also includes

the amendment or repeal of a rule.

4 1 . Because this interpretation is not reflected in the

provisions of any rule of Respondent, it is an “unadopted rule”

within the meaning of S ubs ection 120.57(1)(e), Florida Statutes.

4 2 . S u bs ection 120.57(1)(e), Florida Statutes, states:

(e)1. Any agency action that determines

the substantial interests of a party and

that is based on an unadopted rule is

subject to de novo review by an

administrative law judge.

2. The agency action shall not be

presumed valid or invalid. The agency must

demonstrate that the unadopted rule:

a. Is within the powers, functions, and

duties delegated by the Legislature or, if

the agency is operating pursuant to

authority derived from the State

Cons titution, is within that authority;

b. Does not enlarge, modify, or

contravene the specific provisions of law

implemented;

c. Is not vague, establishes adequate

standards for agency decisions, or does not

vest unbridled discretion in the agency ;

d. Is not arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational;

e. Is not being applied to the

substantially aff ected party without due

notice; and

f. Does not impose excessive regulatory

costs on the regulated person, county, or

city.

3. The recommended and final orders in

any proceeding shall be governed by the

provisions of paragraphs (k) and (l), exc ept

that the administrative law judge's

determination regarding the unadopted rule

shall not be rejected by the agency unless

the agency first determines from a review of

the complete record, and states with

particularity in the order, that such

determinat ion is clearly erroneous or does

not comply with essential requirements of

law. In any proceeding for review under s.

120.68, if the court finds that the agency's

rejection of the determination regarding the

unadopted rule does not comport with the

provis ions of this subparagraph, the agency

action shall be set aside and the court

shall award to the prevailing party the

reasonable costs and a reasonable attorney's

fee for the initial proceeding and the

proceeding for review.

4 3 . The burden rests on Respo ndent to demonstrate, among

other things, that the unadopted rule does not enlarge, modify,

or contravene the specific provisions of law implemented ; is not

vague ; establishes adequate standards for agency decisions ; or

does not vest unbridled discretion i n the agency. Respondent

has not met its burden.

4 4 . Respondent’s interpretation of S ubs ection 479.01(3),

Florida Statutes, which applies an everyday layman’s or “common”

understanding to the statutory language “designated for

commercial or industrial us e,” is inconsistent both with the

express language of the statute, with the definition of

“commercial or industrial zones” in 23 C.F.R. Section

750.703(a), and with the Federal acceptance of State zoning,

reflected in 23 C.F.R. Section 750.708.

4 5 . In S ub s ection 479.01(3), Florida Statutes, the Florida

L egislature has directed Respondent to look directly to land use

designations under the local government comprehensive plans and

land use development regulations adopted pursuant to

Chapter 163, Florida Sta tutes. The highly technical and

specialized process of designating land uses under comprehensive

plans and land use development regulations relies on long -

accepted planning and zoning principles, not lay

interpretations.

4 6 . Chapter 163, Florida Statutes , has been described as

“set[ting] forth a comprehensive and complex process for the

adoption and amendment of comprehensive plans.” Seminole County

v. City of Winter Springs , 935 So. 2d 521, 527 (Fla. 5th DCA

2006). Some aspects of the analysis are so c omplex that the

Department of Community Affairs can’t even adopt rules

addressing them. See Florida East Coast Industries Inc. v.

State, Dept. of Community Affairs , 677 So. 2d 35 7 , 361 (Fla. 1st

DCA 1996). See also Home Builders & Contractors Assoc. v.

D epartment of Community Affairs , 585 So. 2d 965, 969 (Fla. 1st

DCA 1991).

4 7 . Florida Administrative Code Chapter 9J - 5 illustrates

the highly technical and complex nature of comprehensive

planning in Florida. Florida Administrative Code Rule 9J - 5.003

sets forth 142 definitions, some very technical in nature,

reflecting the complex and highly specialized process of

comprehensive planning in Florida. Florida Administrative Code

Rule 9J - 5.005 alone sets forth numerous technical requirements

for the formulati on of a comprehensive plan.

48 . It makes no sense for the Legislature, having directed

Respondent to look to the land use designations resulting from

this complex technical process, to also intend that Respondent

use a layman’s approach to those land uses , and ignore the

planning and zoning principles that underlay those very

designations. To the contrary, it would be inconsistent with

the legislative charge under S ubs ection 479.01(3), Florida

Statutes, to do so.

4 9 . Similarly, 23 C.F.R. Section 750.703( a) defines

“commercial and industrial zones” as " districts established by

the zoning authorities as being most appropriate for commerce,

industry or trade, no matter how labeled . ” 23 C.F.R. Section

750.708(a) recites Congress’ acceptance of state zoning b y

reciting, “ '[ t ] he States shall have full authority under their

own zoning laws to zones areas for commercial or industrial

purposes, and the actions of the States in this regard will be

accepted for the purposes of this Act. ' ” Twenty - three C.F.R.

Sectio n 750.708(b) requires that zoning action be taken pursuant

to and in accordance with the State’s enabling statute. The use

of a layman’s understanding of commercial or industrial uses, in

lieu of the planning and zoning principles used to designate

such u ses, defies this mandate of the Federal r egulations.

50 . Respondent has failed to establish that its

interpretation of S ubs ection 479.01(3), Florida Statutes, does

not contravene that statute. The most appropriate and logical

interpretation of that statu te looks to accepted planning and

zoning concepts when evaluating whether a parcel of land has

been designated for commercial or industrial use under both the

future land use map of the comprehensive plan and the land use

development regulations adopted pu rsuant to Chapter 163, Florida

Statutes. Similarly, Respondent has not established that its

“common understanding” or " layman’s understanding” does not

result in a vague interpretation of the statute, as one man’s

view of commercial or industrial use is n ot necessarily

another’s, and the record does not show that there is a

unanimity of agreement among the general population as to what

those terms mean. At best, the record provides one man’s belief

as to what that agreement is, but without evidence t o sho w that

belief to be justified in fact.

Commercial or Industrial Zoning Not Enacted Primarily to Permit

Signs

5 1 . S ubs ection 479.07(10), Florida Statutes, provides as

follows:

(10) Commercial or industrial zoning

which is not comprehensively enacted or

which is enacted primarily to permit signs

shall not be recognized as commercial or

industrial zoning for purposes of this

provision, and permits shall not be issued

for signs in such areas. The department

shall adopt rules within 180 days after this

act takes effect which shall provide

criteria to determine whether such zoning is

comprehensively enacted or enacted primarily

to permit signs.

5 2 . Respondent adopted Florida Administrative Code

Rule 14 - 10.0052, pursuant to the foregoing statutory provisions .

That rule, entitled “ Zoning Enacted Primarily to Permit Outdoor

Advertising Signs ,” provides:

(1) “Comprehensively Enacted Zoning”

means ordinances or other laws adopted by

the county or municipal government

pertaining to and designating the currentl y

allowable uses of property within its

jurisdiction, pursuant to and consistent

with a comprehensive plan enacted in

accordance with Chapter 163, Florida

Statutes.

(2) Even if comprehensively enacted, the

following criteria, including public records

re lated thereto, shall be considered in

determining whether such zoning is enacted

primarily to permit signs:

(a) The land use or zoning designation

provides for limited commercial or

industrial activity only as an incident to

other primary land uses.

( b) The commercial and industrial

activities, separately or together, are

permitted only by variance or special

exceptions.

(c) The physical dimensions or other

attributes of the affected parcel would not

reasonably accommodate traditional

commercial or industrial uses and the area

surrounding the affected parcel is not

predominantly commercial or industrial.

5 3 . As a rule adopted pursuant to Section 120.54, Florida

Statutes, to implement S ubs ection 479.07(10), Florida Statutes,

F lorida Administrative C ode Rule 14 - 10.0052 is binding on

Respondent. Parrot Heads v. Dep’t. of Bus. Reg . , 741 So. 2d

1231 (Fla. 5th DCA 1999 ) ; Marrero v. Dep’t. of Professional

Reg . , 622 So. 2d 1109, 1 112 (Fla. 1st DCA 1993).

5 4 . The parties have stipulated that the zoning of the

parcels upon which the proposed sign structures will be erected

was comprehensively enacted zoning within the meaning of Florida

Administrative Code Rule 14 - 10.0052(1). The zoning of those

parcels will therefore be recognized as commercial or industri al

zoning for purposes of S ubs ections 479.01(3) and 479.111(2),

Florida Statutes, and permits may be issued for signs in such

areas, unless the zoning was enacted primarily to permit signs.

5 5 . The facts establish that the zoning of the parcels

upon whi ch the proposed sign structures will be erected was not

enacted primarily to permit signs. The criteria of F lorida

Administrative Code Rule 14 - 10.0052(2)(a) and (2)(b) are not

triggered, because the commercial or industrial activity

authorized on these p arcels are permitted uses under the City’s

Comprehensive Plan and Land Development Regulations.

Accordingly, the land use and zoning of the parcels does not

provide for limited commercial or industrial activity only as an

incident to other primary land us es and are not permitted only

by variance or special exceptions.

5 6 . As stipulated by the parties and as testified to by

Garner, when applying F lorida Administrative Code Rule 14 -

10.0052(2)(c), zoning is enacted primarily to permit signs only

when both of the stated conditions exist ; that is, both the

physical dimensions or other attributes of the affected parcel

would not reasonably accommodate traditional commercial or

industrial uses and the area surrounding the affected parcel is

not predominantly comm ercial or industrial.

5 7 . The facts establish that one of the two conditions of

F lorida Administrative Code Rule 14 - 10.0052(2)(c) does not

exist, in that the physical dimensions or other attributes of

the affected parcels would reasonably accommodate trad itional

commercial or industrial uses. Therefore, the criteria of

F lorida Administrative Code Rule 14 - 10.0052(2)(c) are not

triggered and that portion of the rule will not support a

determination that the zoning of the parcels upon which the

proposed sign structures will be erected was enacted primarily

to permit signs.

5 8 . None of the criteria of F lorida Administrative Code

Rule 14 - 10.0052 having been triggered, the zoning of the parcels

where the signs are to be erected was not enacted primarily to

perm it signs and, thus, is recognized as commercial or

industrial zoning for purposes of S ubs ections 479.07(10) and

479.111(2), Florida Statutes, and permits may be i ssued for

signs in such areas.

5 9 . Based on the foregoing, it is concluded that

Petitioner’s applications comply with the requirements of

Section 479.111, Florida Statutes, and F lorida Administrative

Code Rule 14 - 10.0052(2) and should be granted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMEN DED that Respondent enter a final order granting

the 14 applications (application numbers 54481 through 54494)

for outdoor advertising sign permits submitted by Petitioner.

DONE AND ENTERED this 3rd day of January , 2007 , in

Tallahassee, Leon County, Florid a.

S

DANIEL M. KILBRIDE

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 January , 2007 .

ENDNOTE

1/ All references to Florida Statutes are to Florida

Statutes (2003), unless otherwise indicated.

COPIES FURNISHED :

Robert M . Burdick, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

Paul Sexton, Esquire

Williams Wilson & Sexton, P.A.

215 South Monroe Street, Suite 600 - A

Tallahassee, Florida 3230 2

James C. Myers, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building

605 S uwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

Denver Stutler, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issu e the final order in this case.