15-001321 Wilton Manors Street Systems, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, January 22, 2016.

Summary: Applicant for outdoor advertising sign established that parcel is located in an industrial or commercial zone and that criteria set forth in statute have been met. Recommended that Department grant permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILTON MANORS STREET SYSTEMS,

INC.,

Petitioner,

vs. Case No. 15 - 1321

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on October 29, 2015, in Tallahassee, Florida.

APPEARANCES

For Petitioner: J. Stephen Menton, Esquire

Rutledge Ecen ia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

For Respondent: Susan Schwartz, Esquire

Florida Department of Transportation

H aydon Burns Building

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

STATEMENT OF THE ISSUE

Whether the State of Florida, Department of Transportation

(ÐDepartmentÑ) , properly denied Wil t on Manors Street System s ,

Inc.Ós (ÐWilton ManorsÑ) , applications for outdoor advertising

sign permits.

PRELIMINARY STATEMENT

On September 6, 2012, the Department issued Wilton Manors a

Notice of Denied Outdoor Advertising Permit Application, advising

tha t Wilton ManorsÓ applications for double - faced outdoor

advertising sign permits were not approved because of the

following reasons:

Location is not permittable under land use

designations of sit e. [s.479.111(2), FS]

Location does not qualify as unzoned

commercial/industrial area. [ s. 479.01(26),

FS]

On December 14, 2012, Wilton Manor s filed a Petition for

Formal Administrative Hearing to challenge the DepartmentÓs

denial of its applications. By agreement of the parties,

referral of the petition to the Division of Administrative

Hearings (ÐDOAHÑ) was deferred.

In 2014, while the petition remained pending before the

Department , statutory changes were made to c hapter 479, Florida

Statutes, to include a new section 479.024 , effective July 1,

2014 . After t he new law became effective, Wilton Manors

supplemented its permit applications to include additional

information. The Department re - examined the applications , but

did not amend its initial denial of the applications.

On March 13, 2015, the matter was r eferred by the

Department to DOAH to assign an Administrative Law Judge to

conduct the final hearing. This matter was initially set for

final hearing on May 13 and 14, 2015, but was continued twice .

On July 2, 2015, the undersigned entered an Order grant ing the

second request for a continuance, and rescheduled the final

hearing for October 28 and 29 , 2015.

On October 16, 2015, the parties filed an Agreed Motion

Regarding Presentation of Evidence , requesting that the

undersigned allow the presentation of testimony of two

out - of - town witnesses, Andre Parks and Michael Rumpf, via

deposition transcript following the scheduled hearing date. On

October 23, 2015, the undersigned entered an Order granting the

motion.

On October 19, 2015, the parties filed the ir Joint

Pre - hearing Stipulation, in which they stipulated to certain

facts, issues of law, and the admissibility of certain joint

exhibits . The partiesÓ stipulations are incorporated in this

Recommended Order as indicated below.

The final hearing took place on October 29, 2015, as

scheduled, with both parties present. Five joint exhibits were

received into evidence prior to the introduction of testimony.

At hearing, Wilton Manors presented the testimony of Daniel

Hardin . Wilton ManorsÓ Exhibits 1 , 2 A through 2D , 3A and 3B, and

4A through 4E were received into evidence. At hearing, the

Department presented the testimony of Ken Pye and David Depew.

The DepartmentÓs Exhibits 1 through 5 were received into

evidence.

At the conclusion of the final hea ring, the parties agreed

that proposed recommended orders would be due ten days after the

date of filing of the last transcript. The two - volume hearing

Transcript was filed at DOAH on November 30, 2015.

Pursuant to the partiesÓ agreement and the undersig nedÓs

Order dated October 23, 2015, the deposition testimony transcript

of Wilto n ManorsÓ witness Michael Rumpf was filed at DOAH on

December 21, 2015. In the Notice of Filing Deposition of Michael

Rumpf dated December 21, 2015, Wilton Manors advised it n o longer

intended to take or submit the deposition of Andre Parks.

The parties timely filed their proposed recommended orders,

which have been considered in the preparation of this Recommended

Order.

All reference s to the Florida Statutes are to the 201 4

version , unless otherwise indicated.

FINDING S OF FACT

1. Wilton Manors is a for - profit corporation authorized to

engage in the business of outdoor advertising in the state of

Florida.

2. The Department is the agency vested with the

responsib ility to administer and enforce the provisions of

chapter 479 , Florida Statutes, including the approval and denial

of applications for permits for outdoor advertising signs that

are located within 660 feet of the State Highway system,

interstate, or federa l - aid primary system.

3. In July 2012, Wilton Manors entered into a lease

agreement with the City of Boynton Beach (ÐCityÑ) for the

construction of a two - sided billboard on a portion of real estate

owned by the City on the east side of Interstate 95, located at

510 Northwest 14th Court, Boynton Beach, Florida. The site is

located in a n area commonly known as the City of Boynton Beach

Public Works Site.

4. The Public Works Site consists of two parcels bordered

by Interstate 95 to its west. The nort h and south portions of

the property totals approximately nine acres. The two parcels

are contiguous and have the same zoning and fu ture land use

classification. Each parcel consist s of approximately four and

one - half acres. The subject sign is proposed to be placed on t he

far northwest section of the south ern parcel near the border of

the northern and southern parcels .

5 . On August 9, 2012, Wilton Mano rs submitted two

applications ( application numbers 58994 and 58995) to the

Department for a doubl e - faced outdoor advertising s ign to be

located on the east side of Interstate 95, 0 .75 miles north of

Boynton Beach Boulevard. The applications were assigned file

numbers 58994 and 58995.

6 . The applications were complete and the appropriate fee

was prov ided.

7 . The proposed sign structures met the size, height , and

spacing requirements of section 479.07, Florida Statutes.

8 . The proposed sign would be visible and within 660 feet

of an interstate.

9 . On September 6, 2012, the Department issued Wilt on

Manors a Notice of Denied Outdoor Advertising Permit Application,

advising that Wilton ManorsÓ applications for double - faced

outdoor advertising sign permits were not approved because of the

following reasons:

Location is not permittable under land use

designations of site. [s.479.111(2), FS]

Location does not qualify as unzoned

commercial/industrial area. [ s. 479.01(26),

FS]

10 . On December 14, 2012, Wilton Manors filed a Petition

for Formal Administrative Hearing to challenge the DepartmentÓs

de nial of its applications. By agreement of the parties,

referral of the petition to the DOAH was deferred.

1 1 . In 2014, while the petition remained pending before the

Department, statutory changes were made to c hapter 479, to

include a new section 479.02 4, effective July 1, 2014. After the

new law became effective, Wilton Manors supplemented its permit

applications and submitted additional information to the

Department .

1 2 . The supplemental information provided by Wilton Manors

to the Department in re sponse to the statutory c hanges included a

certification from Michael Rumpf, the CityÓs Planning and Zoning

Director since 1999 . Mr. Rumpf completed the portion of the

DepartmentÓs application regarding land use, certifying the

designation of the Future L and Use Map for the parcel as Public,

Private Governmental and Institutional (ÐP, PG & IÑ) , and the

current zoning of the parcel as Public Usage (ÐPUÑ) .

1 3 . Mr. Rumpf confirmed that the parcel is in an industrial

zone or commercial zone in accordance wit h the new statute.

Mr. Rumpf certified and checked the box ÐyesÑ under the question:

ÐDoes the referenced property qualify as a commercial or

industrial parcel as defined in section 479.024, F.S. and section

14 - 10.0052, F.A.C.Ñ Prior to executing the v erification form,

Mr. Rumpf reviewed the new statute and definitions of in dustrial

use and commercial use in the statute.

1 4 . The Department requested that its expert in the area of

land use and comprehensive zoning, David Depew, review the

supplemental application and information submitted by Wilton

Manors to the Department and determine whether the proposed

parcel is in an industrial zone or commercial zone as defined in

the new section 479.024. Mr. Depew concluded that it is not, and

therefore, the De partment did not alter its initial decision to

deny Wilton ManorsÓ permit application based on the changes to

chapter 479 .

1 5 . The central factual issue to be determined in this case

by the undersigned is whether the sub ject parcel is located

within a co mmercial or industrial zone as defined in section

479.024 .

1 6 . The City determined that the parcel is located within a

commercial or industrial zone, in compliance with chapter 163,

Florida Statutes.

1 7 . The parcel is appropriate for commerce, industry, or

trade.

18 . The parcel is comprehensively zoned PU , and the CityÓs

land development regulations include commercial or industrial

uses as allowable uses.

19 . The parcel s w ere previously used by the City for its

wastewater treatment plant. The parcel s continue to be actively

used by the City for industrial uses and as an industrial site

for the staging of waste collection , vegetative debris , recycling

activities , and the storage of equipment, materials, and supplies

in connection wi th the CityÓs solid waste management system and

public works .

2 0 . Many l arge industrial waste - type dumpsters and

recycling bins are located on the parcel s . The storage of the

recycling bins is part of the CityÓs recycling service which

generates revenu e for the City. Large trucks access the property

on a regular basis. An existing cell tower on the northern

parcel servic es both public and private users .

2 1 . The parcel can reasonably accommodate a commercial or

industrial use under the future land u se map of the CityÓs

comprehensive plan and land development regulations.

22 . Sufficient utilities are available to support

commercial or industrial development .

2 3 . The publ ic access to the parcel is sufficient to

accommodate a commercial or industria l use . Currently, the City

utilizes large commercial trucks in its conduct of the

aforementioned industrial operations.

24 . The parcel is not being used exclusively for

noncommercial or nonindustrial uses.

25 . In sum, the persuasive evidence est ablishes that the

parcel is located within a commercial or industrial zone.

CONCLUSIONS OF LAW

26 . DOAH has jurisdiction over the subject matter and the

parties pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2015) .

27 . As the applicant for the permits, Wilton Manors bears

the burden of proving, by a preponderance of the evidence, that

it should be granted the permits. Fla. DepÓt of Transp. v .

J.W.C. Co., Inc. , 369 So. 2d 778, 788 (Fla. 1st DCA 1981).

28 . The DepartmentÓs denial o f Wilton ManorsÓ applications

is based on section 479.024, Florida Statutes (2014). Section

479.024 was enacted in 2014. This case is the first formal

administrative proceeding involving the application of the new

section 479.024 . Section 479.024 provid es as follows:

479.024 Commercial and industrial parcels. - -

Signs shall be permitted by the department

only in commercial or industrial zones, as

determined by the local government, in

compliance with chapter 163, unless otherwise

provided in this chapter. Commercial and

industrial zones are those areas appropriate

for commerce, industry, or trade, regardless

of how those areas are labeled.

(1) As used in this section, the term:

(a) ÐParcelÑ means the property where the

sign is located or is proposed to b e located.

(b) ÐUtilitiesÑ includes all privately,

publicly, or cooperatively owned lines,

facilities, and systems for producing,

transmitting, or distributing communications,

power, electricity, light, heat, gas, oil,

crude products, water, steam, waste, and

stormwater not connected with the highway

drainage, and other similar commodities.

(2) The determination as to zoning by the

local government for the parcel must meet all

of the following criteria:

(a) The parcel is comprehensively zoned and

includes commercial or industrial uses as

allowable uses.

(b) The parcel can reasonably accommodate a

commercial or industrial use under the future

land use map of the comprehensive plan and

land use development regulations, as follows:

1. Sufficient utilities are available to

support commercial or industrial development;

and

2. The size, configuration, and public

access of the parcel are sufficient to

accommodate a commercial or industrial use,

given the requirements in the comprehensive

plan and land development regulations for

vehicular access, onsite circulation,

building setbacks, buffering, parking, and

other applicable standards or the parcel

consists of railroad tracks or minor sidings

abutting commercial or industrial property

that meets the criteria of th is subsection.

(c) The parcel is not being used exclusively

for noncommercial or nonindustrial uses.

29 . Section 479.01(4) defines Ð C ommercial useÑ as follows:

( 4) ÐCommercial useÑ m eans activities

associated with the sale, rental, or

distribution of products or the performance

of services. The term includes, but is not

limited to, such uses or activities as retail

sales; wholesale sales; rentals of equipment,

goods, or products; offices; restaurants;

food service vendors; sports arenas;

theaters; and tourist attractions .

30 . Section 479.01( 10) defines ÐIndustrial useÑ as follows:

(10) ÐIndustrial useÑ means activities

associated with the manufacture, assembly,

processing, or storage of products or the

performance of related services. The term

in cludes, but is not limited to, such uses or

activities as automobile manufacturing or

repair, boat manufacturing or repair, junk

yards, meat packing facilities, citrus

processing and packing facilities, produce

processing and packing facilities, electrical

generating plants, water treatment plants,

sewage treatment plants, and solid waste

disposal sites.

3 1 . Section 479.01(1) defines ÐAllowable usesÑ as follows:

(1) ÐAllowable usesÑ means the intended uses

identified in a local governmentÓs land

dev elopment regulations which are authorized

within a zoning category as a use by right,

without the requirement to obtain a variance

or waiver. The term includes conditional

uses and those allowed by special exception

if such uses are a present and actual u se,

but does not include uses that are accessory,

ancillary, incidental to the allowable uses,

or allo wed only on a temporary basis.

32 . Certain uses and activities, such as cell towers, Ðmay

not be independently recognized as commercial or industria l . Ñ

§ 479.024(4)(h) , Fla. Stat.

3 3 . When the language of a statute is plain and

unambiguous, there is no reason to resort to rules of statutory

interpretation and construction , and the plain and unambiguous

language of the statute controls. Levey v. Detzner , 146 So. 3d

1224, 1225 (Fla. 1st DCA 2014).

3 4 . There is no distinction in the statute between public

and private industrial uses.

3 5 . In the present case, under the plain meaning of the

opening paragraph of section 479.024, deference is accorded to a

local government in its determination of whether a parcel where a

sign is to be located is within a commercial or industrial zone

(Ðin commercial or industrial zones, as determined by the local

governmentÑ ) § 479.024 , Fla. Stat. Such determination is t o be

made by the local government based on the criteria and

definitions set forth in the statute. The only exception is if

the criteria in section 479.024(2) are not met.

3 6 . As d iscussed above, the persuasive evidence establishes

t hat the parcel i s located within a commercial or industrial zone

and that the cri teria in sections 479.024(2)(a) through (c) have

been satisfied .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Tran sportation

enter a final order granting Wilton ManorsÓ applications for

outdoor advertising sign permits (application numbers 58994 and

58995) and issue the requested outdoor advertising permits.

DONE AND ENTERED this 22nd day of January , 2016 , in

Tallaha ssee, Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January , 2016 .

COPIES FURNISHED:

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Andrea Shulthiess, Clerk of Agency Proceedings

D epartment of Transportation

Haydon Burns Bui lding

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

D epartment of Transportation

Haydon Burns Building

Mail Stop 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

James C. Boxold, Secretary

D epartment of Transportation

Haydon Burns Building

Mail Stop 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days f rom 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.