STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD NUDTSEN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4117

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for formal administrative hearing, pursuant to notice, on November 3, 1988, in Chipley, Florida, before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bonnie K. Roberts, Esquire

Post Office Box 667 Bonifay, Florida, 32425

For Respondent: Vernon L. Whittier, Esquire

Department of Transportation Hayden Burns Building

605 Suwanee Street, Mail Station 58

Tallahassee, Florida 32399-0458 BACKGROUND

By letter dated July 27, 1988, the Department of Transportation (hereinafter "Department") informed Richard Nudtsen (hereinafter "Petitioner") that his request for approval of a seaplane base site was denied. The Petitioner timely requested a formal administrative hearing. The Department forwarded the request to the Division of Administrative Hearings which scheduled the proceeding.

At the hearing, the Petitioner presented the testimony of Raymond Joseph Vosika and Al Cooper, and had thirteen exhibits admitted into evidence. A fourteenth exhibit, consisting of a magazine editorial and related information, was rejected. The Department presented the testimony of Katherine Masciello, Katherine Harcus, Michael Coker, Samuel Coker, and Bobby Grice, and had three exhibits admitted into evidence.

A transcript was filed. Both parties submitted proposed recommended orders which were considered in the preparation of the Recommended Order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Order.

The issue presented for consideration is whether the proposed seaplane base site meets the statutory requirements for approval and licensure.

FINDINGS OF FACT

1. By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot.

   
   

2. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport.

   
   

3. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years.

   
   

4. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot.

   The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced.

   
   

5. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant.

   
   

6. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4).

   
   

7. By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County.

   
   

8. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6).

9. On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application.

   
   

10. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal.

    
    

11. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake.

    
    

12. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety."

    
    

13. The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation.

    
    

14. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base.

    
    

15. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation.

    
    

16. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum

    safe altitude regulations. He has not otherwise viewed the seaplane in operation.

    
    

17. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach.

    
    

18. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake.

    
    

19. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

21. The Petitioner has the burden to establish by a preponderance of the evidence that his application for licensure of a seaplane base at Pate Lake meets the requirements far site approval pursuant to Chapter 330, Florida Statutes, and applicable rules. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this case the burden has not been met.

    
    

22. The Department of Transportation is responsible for the establishment of minimum standards for airport sites and airports under its licensing jurisdiction, Section 330.29, Florida Statutes, including water landing sites, Section 330.27(3), Florida Statutes.

    
    

23. Section 330.30(1)(a) , Florida Statutes, in relevant part provides that:

    
    

    "[t]he department, after inspection of the airport site, shall grant the site approval if it is satisfied:

    1. That the site is adequate for the proposed airport;

    2. That the proposed airport, if constructed or established, will conform to minimum standards of safety and will comply with applicable county or municipal zoning requirements;

    3. That all nearby airports, municipalities, and property owners have

       been notified and any comments submitted by them have been given adequate consideration. "

       
       

24. Rule 14-60.005(8), Florida Administrative Code, provides that "prior to receiving site approval, an applicant shall:

    
    

    1. Demonstrate that the site is adequate for the proposed airport.

    2. Demonstrate that the proposed airport, if constructed or established, will conform to minimum standards of safety.

    3. Include documentation evidencing local zoning approval by the appropriate governmental agency. Where there is no local zoning, a statement of that fact from an official of the appropriate governmental agency shall be submitted.

    4. Provide the Department a list of all airports and municipalities within 15 miles of the proposed airport and all property owners within 1000 feet of the proposed airport.

    5. Demonstrate that safe air traffic patterns could be worked out for the proposed airport.

       
       

25. Rule 14-60.007(5), Florida Administrative Code, provides, "[n]o seaplane base shall be approved which requires aircraft to land or take off in close proximity to a bridge, public beach, power line, boat dock or other area which could constitute a danger to persons or property" (emphasis supplied).

    
    

26. The Department's 7/27/88 letter to the Petitioner, stating the intention to deny the application, identifies the basis for the decision as noise and safety objections voiced by nearby property owners, section 330.30(1)(a)3, Florida Statutes, and the "resolution equivalent to zoning refusal by the Washington County Commission," referencing section 330.30(1)(a)2, Florida Statutes. However the reference to zoning in the statute provides that the proposed airport must "comply with the applicable county or municipal zoning requirements." No provision is made for the acceptance and use of such a resolution from a commission in an unzoned county to establish that zoning requirements are not met. Rule 14-60.005(8)(a)3, Florida Administrative Code, provides "[w]here there is no local zoning, a statement of that fact from an official of the appropriate governmental agency shall be submitted." The Petitioner's submission of the 12/30/87 letter from the administrator of the commission fulfilled his responsibility in this regard. Further the commission's resolution is specifically grounded in the unproven assumption that the proposed airport would be a commercial facility. Accordingly, the resolution has been considered solely as a statement of sentiment expressed to the commission by local property owners.

    
    

27. The property owners are clearly opposed to the Petitioner's proposal. Although some of their objections, including complaints regarding the maintenance of the Petitioner's property, were irrelevant to the application, significant concerns related to safety issues were expressed by the owners, as well as by and on behalf of recreational users of the lake. The Petitioner's

    response was to assert that flight patterns could be altered to avoid low altitude flight over residences. However, the safety issue related to lake users was not resolved.

    
    

28. Although it may be that a pilot could see and avoid persons boating or otherwise using the lake, the close proximity of an operating seaplane to persons in lightweight, low-powered boats could constitute a danger to the lake users. Further the location of the public boat ramp to the area in which the Petitioner's airplane would depart and return presents a substantial potential hazard to ramp users and others nearby.

    
    

29. According to the site inspection performed by Mr. Parker, the site is capable of meeting the safety requirements of Chapter 14-60, Florida Administrative Code. Although there was testimony from Mr. Parker's supervisor, Mr. Grice, indicating that Mr. Parker meant that the proposed length, width, and approach slope of the airport were acceptable, the Parker memo of 7/11/88 states that the proposal can meet "the safety standards of Rule 14-60." However, after considering safety issues and public comment, and with personal knowledge of the Pate Lake area, Mr. Grice recommended that the application be denied.

    
    

30. Utilization of Pate Lake as a seaplane base clearly requires an aircraft to operate in close proximity to a public boat ramp and to persons utilizing the lake, which could constitute a danger to persons or property. Rule 14-60.007(5), Florida Administrative Code, states that where such aircraft landing or taking off could constitute a danger to persons or property, no seaplane base shall be approved.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED.

DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1988.

ENDNOTE

1/ Although no one identified the seaplane involved in any of the alleged incidents by the registration number, the descriptions of the seaplane indicated that it was the Petitioner's aircraft. There was no evidence which would lead to the conclusion that any seaplane, other than the Petitioner's, operates from Pate Lake. Further, there was no evidence to indicate that the Petitioner's seaplane had been piloted by anyone other than the Petitioner.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4117

The following are rulings on the proposed findings of fact submitted by the parties:

Petitioner:

1. Accepted.

2. Accepted.

3. Accepted as modified.

4. Accepted as modified.

5. Rejected, not supported by credible evidence.

6. Rejected, not supported by credible evidence.

7. Accepted.

8. Rejected, immaterial.

9. Accepted.

10. Accepted.

11. Rejected, immaterial.

12. Accepted, not a issue.

13. Rejected, immaterial.

Respondent:

1. Accepted.

2. Accepted as modified; except reference to decibel level of seaplane, rejected, not supported by credible evidence.

3. Accepted as modified.

4. Accepted as modified; except as to reference to meaning of Parker memorandum, rejected, not supported by credible evidence; and as to reference to County Commission resolutions use as stated in Recommended Order.

COPIES FURNISHED:

Bonnie K. Roberts, Esquire Post Office Box 667 Bonifay, Florida 32425

Vernon L. Whittier, Jr., Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 46

Tallahassee, Florida 32399-0458

Kaye N. Henderson, P.E., Secretary

ATTEN: Eleanor F. Turner, Mail Station 58 Department of Transportation

Haydon Burns Building 605 Suwannee Street, 46

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III General Counsel

Department of Transportation Haydon Burns Building

605 Suwannee Street,

Tallahassee, Florida 32399-0458

Docket for Case No: 88-004117

Orders for Case No: 88-004117