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Chancellor Media Whiteco Outdoor7/30/2001
Administrative Appeal from the Department of Transportation.
ON MOTION FOR REHEARING EN BANC
We have elected to consider this matter en banc. We withdraw the prior panel opinion and substitute the following in its stead.
Appellants, Chancellor Media Whiteco Outdoor Corporation, Lamar East Florida, and Universal Outdoor Atlantic Coast, appeal the Final Orders of appellee, the Department of Transportation ["DOT"], revoking certain sign permits. These signs were "nonconforming" to regulations that had become effective after the original placement of the signs. The signs were destroyed in the wildfires of June and July 1998. The question presented is whether the appellants were entitled to reerect the signs. Appellants challenge the hearing officers' findings that: (1) the reerection of the signs was prohibited by federal law; (2) the signs were not destroyed by tortious conduct; and (3) the signs were nonconforming.
The key legal issue is the application of House Bill 1535, which became effective during the litigation of this case. The bill provides:
Notwithstanding any other law, regulation, or local ordinance to the contrary, the owners of any nonconforming buildings, houses, businesses, or other appurtenances to real property which were damaged or destroyed during the wildfires that occurred during June and July of 1998, may elect to repair or rebuild such nonconforming structures in like-kind, unless prohibited by Federal law or regulation.
23 C.F.R. section 750.707(d)(6) (1999), also in effect at the time, provides:
ยง 750.707 Nonconforming signs.
(d) Maintenance and continuance. In order to maintain and continue a nonconforming sign, the following conditions apply:
(6) The sign may continue as long as it is not destroyed, abandoned, or discontinued. If permitted by State law and reerected in kind, exception may be made for signs destroyed due to vandalism and other criminal or tortious acts.
In each case, the hearing officer found, as a matter of law, that federal law prohibited the reerection of appellants' destroyed signs. In Lamar, the hearing officer reasoned as follows:
25. On July 1, 1998, the signs were "destroyed" within the meaning of Rule 14- 10.007(1)(d), Florida Administrative Code, effective June 28, 1998. Under Rule 14-10.007(1)(f), Florida Administrative Code, effective June 28, 1998, the nonconforming signs could have been re-erected if destroyed by vandalism, or other criminal, or tortious act. The nature of that re-erection could be in kind.
26. Florida, in creating the exception for the re-erection in kind of the nonconforming signs destroyed in relation to vandalism or other criminal or tortious acts has acted consistent with 23 C.F.R. Section 750.707(6), a federal enactment dealing with nonconforming signs, as contemplated by the agreement between the State of Florida and the Federal government concerning the Highway Beautification Act of 1965. The federal law at 23 C.F.R. Section 750.707(6), allows states to permit reerection in kind for signs destroyed due to vandalism and other criminal and tortious acts.
27. As was its burden, the Department proved the nonconforming nature of the signs in question based upon spacing requirements and their destruction by the wildfire. In turn, Lamar has failed to prove that the nature of the destruction was an act of vandalism or other criminal act or by commission of a tort. The failure of property owners to conduct controlled burning prior to the wildfire and the setting of backfires by the Timber Company and the California fire crew were not acts of vandalism or other for
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