Hammond v. Department of Transp.
| Decision Date | 11 August 1986 |
| Docket Number | No. BG-195,BG-195 |
| Parties | 11 Fla. L. Weekly 1748 James E. HAMMOND, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee. |
| Court | Florida District Court of Appeals |
Gerald Holley, Chipley, for appellant.
Franz E. Dorn, Dept. of Transp., for appellee.
Appellant seeks review of an administrative order by which the Department of Transportation (DOT) determined that a commercial zoned area was created primarily to permit outdoor advertising structures. DOT refused to recognize such zoning and ordered removal of appellant's unpermitted signs. We affirm the order appealed.
Appellant owns two outdoor advertising signs located along Interstate 10 (I-10) in Holmes County, Florida. DOT issued notices of violation, alleging "no state sign permit" and "an unpermittable zoning." Appellant requested an administrative hearing and asserted that the signs are located within a commercial zoned area of an incorporated municipality. DOT responded that the involved commercial zone was created with the primary intent of allowing outdoor advertising structures, and that pursuant to Florida Administrative Code Rule 14-10.05(6) it could thus refuse to recognize such zoning action.
The City of Ponce de Leon annexed the area in question by an ordinance which specified that a 100 foot wide strip of land along either side of I-10 be zoned commercial, with the remainder of the annexed parcel being zoned agricultural. 1 This commercial strip is largely without utility service or significant highway access, other than in the immediate vicinity of the I-10 and State Road 81 interchange. 2
Appellant's expert witness suggested that comprehensive zoning plans may encompass anticipated future use, but admitted that at present "one of the highest and best uses" for the I-10 commercial strip would be outdoor advertising. DOT's expert witness expressed his opinion that the commercial strip was zoned for the primary purpose of permitting outdoor advertising structures. This witness explained that he had considered the configuration and location of, as well as the lack of any other reasonable use for, the commercial strip.
The hearing officer determined that Ponce de Leon's annexation and zoning ordinance was duly and properly adopted, without detriment to adjoining properties. 3 Characterizing DOT's position as "speculative," the hearing officer found the contested area to be "properly zoned pursuant to properly enacted zoning ordinances." However, DOT rejected the hearing officer's recommendation to the contrary, and concluded that the area was zoned commercial for the primary purpose of permitting outdoor advertising structures. Declining to recognize such zoning, DOT ordered that appellant's signs be removed.
Appellant now asserts that DOT lacks regulatory authority within municipal Appellant further asserts that DOT improperly rejected the findings contained in the hearing officer's recommended order. While it is generally indicated that a hearing officer's factual findings should not be rejected unless lacking adequate evidentiary support, such findings are entitled to less deference insofar as they address issues which are not susceptible of ordinary proof or which are dependent upon matters of opinion infused by policy considerations within the ambit of the agency's expertise. See Holden v. Florida Department of Corrections, 400 So.2d 142 (Fla. 1st DCA 1981); McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Florida Administrative Code Rule 14-10.05(6) provides that:
boundaries. But section 479.02(2), Florida Statutes, expressly directs DOT to regulate advertising signs along the interstate highway system without limitation as to the location of such highways. And Florida Administrative Code Rules 14-10.01 and 14-10.02 also address DOT's authority to control advertising signs and structures along the interstate highway system; such authority is not constrained by municipal boundaries. See Florida Department of Transportation v. E.T. Legg & Co., 472 So.2d 1336 (Fla. 4th DCA 1985).
... Action which is ... created primarily to permit outdoor advertising structures is not recognized as zoning for outdoor advertising control purposes and permits will not be issued for signs in those areas.
The record evidence overwhelmingly establishes that the only reasonable use of the contested commercial zone in the present case is for outdoor advertising. We conclude that DOT was entitled to reject any contrary recommended findings in determining that the area was zoned with the primary intent that it be used for the erection of such advertising structures.
Appellant having presented no other point of reversible error, 4 we affirm the order appealed.
BOOTH, C.J., dissents with written opinion.
We should reverse the order...
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