09-001560 Carter-Pritchett Advertising, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 22, 2010.

Summary: Zoning does not support approval of sign permit applications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARTER-PRITCHETT ADVERTISING, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 09-1560

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 29, 2009, a formal administrative hearing in

this case was held in Tallahassee, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: E. Bruce Strayhorn, Esquire

Strayhorn & Strayhorn

2125 First Street, Suite 201

Fort Myers, Florida 33901

For Respondent: Kimberly Clark Menchion, Esquire Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in the case is whether Carter-Pritchett

Advertising, Inc.’s (Petitioner), applications for the outdoor

advertising sign permits referenced herein and filed by the

Petitioner should be approved.

PRELIMINARY STATEMENT

By Notice of Denied Application dated February 16, 2009,

the Department of Transportation (Respondent) advised the

Petitioner that the applications for sign permits referenced

herein had been denied. The Petitioner disputed the denial and

requested an administrative hearing. The Respondent forwarded

the request to the Division of Administrative Hearings, which

scheduled the hearing. The hearing was twice continued upon

separate requests of the parties and commenced on October 29,

2009.

On April 27, 2009, the Respondent issued an Amended Notice

of Denied Application, which identifies the basis for the denial

of the application as follows: (1) the location is not

permittable under the land use designation of the site, and

(2) the location does not qualify as an unzoned

commercial/industrial area. The Amended Notice specifically

replaced the initial Notice of Denied Application.

At the hearing, the Petitioner presented the testimony of

two witnesses and had Exhibits 3 through 7 admitted into

evidence. The Respondent presented the testimony of three

witnesses and had Exhibits 1 through 9 admitted into

evidence. Joint Exhibits 1 through 6 were admitted into

evidence.

A pre-hearing stipulation filed by the parties on

October 28, 2009, contained a statement of admitted facts and

was admitted as ALJ Exhibit 1. To the extent necessary, the

stipulated facts have been incorporated into this Recommended

Order.

The Transcript of the hearing was filed on November 16,

2009. Both parties filed Proposed Recommended Orders on

December 16, 2009.

FINDINGS OF FACT

1. The Petitioner has filed two applications for permits

to locate a two-sided outdoor adverting sign on State Road 82

(Immokalee Road), approximately 3,500 feet east of Colonial

Boulevard in Fort Myers, Florida. The applications were

assigned numbers 57413 and 57414 by the Respondent.

2. The Respondent is the state agency charged with

regulation of outdoor advertising signs within controlled

portions of federal-aid primary highways, which include the site

of the proposed signs at issue in this proceeding.

3. The Respondent denied the applications on the grounds

that the proposed location of the sign could not be permitted

under the land use designation relevant to the site and did not

qualify for permitting as an unzoned commercial/industrial area.

4. The Petitioner has conceded that the parcel upon which

the signs would be located does not meet the statutory

definition of an unzoned commercial/industrial area. The issue

in this case is whether the permit can be issued on the basis of

the land use designation applicable to the parcel.

5. The City of Fort Myers Future Land Use Map classifies

the relevant parcel as being within a "Mixed Use" land

development category.

6. Property that is categorized as Mixed Use may be

developed to include low and medium density single-family

residential uses, medium and high density multi-family

residential uses, as well as commercial and professional

offices, industrial uses, and recreation and open space.

7. The City of Fort Myers Comprehensive Plan (Policy 2.16)

requires that development of parcels that are designated as

Mixed Use must be approved through a "Planned Unit Development"

process.

8. In this case, development of the relevant parcel was

approved by adoption of a Planned Unit Development Ordinance

(PUD Ordinance No. 3356) by the City Council for the City of

Fort Myers on November 20, 2006.

9. The Ordinance allows for construction of a 106,722

square foot mini-storage facility on the parcel. The signage at

issue in this proceeding would be located on the parcel with the

mini-storage facility.

10. The effective date of the Ordinance was the date of

adoption, and the Ordinance requires that all construction be

completed within a five-year period, which expires November 20,

2011.

11. Section 6 of the Ordinance provides as follows:

Failure to comply with the terms and

conditions of the planned unit development

will result in cancellation of the

development approval and the planned unit

development approval shall become void and

the underlying land use designation of Mixed

use (MU) shall be restored.

12. The language of the Ordinance clearly indicates that

the planned unit development designation is provisional and

based on compliance by the developer with a number of

conditions. Among the conditions are requirements that the

developer: enter into a development agreement with the city to

address transportation impacts of the project; contribute

$58,500 to the City Art Fund prior to the issuance of building

permits or certificates of occupancy; complete construction

within a five-year period; install new vegetation if required

after removal of exotics to meet code minimums; and obtain a

certificate of occupancy before outdoor storage may be utilized.

13. At the time of the hearing, none of the conditions had

been met. There was no evidence offered to suggest that any of

the conditions would be met by the November 20, 2011, deadline.

14. The designation can be extended by the Fort Myers City

Council; however, at the time of the hearing, no request for an

extension had been approved.

15. Absent compliance with the conditions prior to the

November 20, 2011, deadline, the provisional land use

designation will become "void" and the underlying land use

designation will revert to Mixed Use as specifically stated in

the PUD Ordinance.

16. The signs at issue in this proceeding would not

permittable under a Mixed Use designation by the City of Fort

Myers.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

18. This is a de novo proceeding designed to formulate

final agency action. McDonald v. Department of Banking &

Finance , 346 So. 2d 569 (Fla. 1st DCA 1977). The Petitioner has

the burden of establishing entitlement to the sign permits

sought in this proceeding by a preponderance of the evidence.

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

396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of

Health & Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977). The Petitioner has not met the burden.

19. Section 479.111, Florida Statutes (2009), provides in

relevant part as follows:

479.111 Specified signs allowed within

controlled portions of the interstate and

federal-aid primary highway system.--Only

the following signs shall be allowed within

controlled portions of the interstate

highway system and the federal-aid primary

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

and (2):

* * *

(2) Signs in commercial-zoned and

industrial-zoned areas or commercial-unzoned

and industrial-unzoned areas and within

660 feet of the nearest edge of the right-

of-way, subject to the requirements set

forth in the agreement between the state and

the United States Department of

Transportation.

20. In this case, the evidence fails to establish that the

zoning applicable to the parcel at issue in this proceeding is

either industrial or commercial, because the classification upon

which the application is based is provisional and dependent on

compliance with conditions set forth in the PUD Ordinance.

21. During the hearing, the Respondent presented evidence

regarding the agency's policy of reviewing existing land uses

when considering matters involving temporary or provisional

zoning. In reviewing the applications at issue in this

proceeding, the Respondent performed an analysis of the parcel

(otherwise known as a "use test") to determine, notwithstanding

the land use designation, whether the parcel was commercial or

industrial.

22. The application of the use test was based on "long

standing policy" of the agency. The Respondent is in the

process of codifying the policy by rule, but the rule has not

yet been formally promulgated. Although the Petitioner objected

to the reliance on policy or the unadopted rule, no formal rule

challenge was filed.

23. In this case, it is unnecessary to address the

agency's policy or the unpromulgated rule, because the land use

designation in this case is clearly provisional and based on the

anticipated compliance by the developer with specific conditions

set forth within the Ordinance. The conditions have not been

met, and, in all probability, they will remain unmet when the

five-year construction deadline passes, at which time the

Ordinance will expire, and the land use will revert to Mixed

Use. For all practical purposes, absent evidence that any

attempt is being made to comply with the conditions set forth in

the Ordinance, the relevant land use category for the parcel at

issue in this proceeding is Mixed Use, a designation which would

not support approval of the permits at issue in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

enter a final order denying the Petitioner's applications for

the sign permits referenced herein.

DONE AND ENTERED this 22nd day of January, 2010, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2010.

COPIES FURNISHED :

Kimberly Clark Menchion, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399

E. Bruce Strayhorn, Esquire

Strayhorn & Strayhorn

2125 First Street, Suite 201

Fort Myers, Florida 33901

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

Stephanie C. Kopelousos, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399-0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.