STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE LUCERNE CIVIC ASSOCIATION, INC., ) CRESTVIEW HOMEOWNER'S ASSOCIATION, INC. ) ROLLING OAKS HOMEOWNER'S ASSOCIATION, INC.)

)

Petitioners, )

vs. ) CASE NO. 88-6208

)

DEPARTMENT OF TRANSPORTATION and )

ROBBIE STADIUM CORPORATION, )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

This matter was considered by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings. Prehearing conferences were conducted by telephone conference call on January 24, 1989, March 16, 1989,

and August 16, 1989.

APPEARANCES

For Lake Lucerne George F. Knox, Esquire Civic Association, 4770 Biscayne Boulevard Inc.; Crestview Suite 1460

Homeowner's Miami, Florida 33137 Association, Inc.;

Rolling Oaks Homeowner's Association, Inc.

For Department of Vernon L. Whittier, Jr. Transportation: Office of the General Counsel

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

For Robbie Stadium Robert L. Shevin, Esquire Corporation: Stroock, Stroock & Lavan

200 South Biscayne Boulevard 33rd Floor

Miami, Florida 33131-2385 STATEMENT OF THE ISSUES

The issue is whether the application for airport site approval made by Robbie Stadium Corporation satisfies the requirements of Section 330.30(1)(a), Florida Statutes and Chapter 14-60.007(6), Florida Administrative Code.

I. PROCEDURAL BACKGROUND

1. On November 15, 1988, the Florida Department of Transportation issued its Site Approval No. 88-31 which authorized the location of a helistop at Joe Robbie Stadium in the City of Opa Locka, Dade County, Florida. The application by Robbie Stadium Corporation for the helistop had been filed on October 20, 1987. The Petitioners are civic groups of owners of property who oppose the development of Joe Robbie Stadium near their residential property, including the helistop which is part of the development.

   
   

2. The application file includes a letter from T. E. Lunn, P.E., the Chief of the Permit Control Division of the Building and Zoning Department of Metropolitan Dade County, dated July 11, 1988. In that letter, Mr. Lunn states that resolutions of the Dade County Commission, including Resolution Z-211-85, as amended by Resolutions Z-147-86 and Z-342-87, all make reference to the heliport pad at the stadium and recommend its location and use. Further, Mr. Lunn confirmed that the heliport pad at the stadium "is not in conflict with our zoning code or with the resolutions that established the use of the stadium, which included the heliport pad".

   
   

3. The file also demonstrates that Robbie Stadium Corporation received approval for the helistop from the United States Department of Transportation, Federal Aviation Administration [FAA], Orlando Airport District Office on February 9, 1988. The FAA determined that the submission made by Robbie Stadium Corporation for the helistop landing area would permit safe and efficient use of the air space by aircraft and provide for the safety of persons and property on the ground. This approval was based upon certain specific requirements, viz., that all operations would be conducted pursuant to letter agreements, and aircraft crews would be briefed on procedures, as well as the hazards which could be presented by unlit power lines to the east of the helistop.

   
   

4. The application file for Robbie Stadium Corp. also contains site sketches, including airspace approach and descent paths, a location plan, sketches of the FAA air traffic control area and a helistop layout and obstruction drawings prepared by Howard, Needles, Tammen, Bergendoff, engineers and planners.

   
   

   A.

   
   

   Department Action Preceding The Approval

   
   

5. The Department of Transportation inspected the proposed helistop site on August 13, 1987. Based on that inspection it issued a Notice of Intent to grant approval for the helistop site unless before October 8, 1988 opponents filed a written statement with the Department of Transportation District 6 Planning and Programs Office in Miami demonstrating why the approval should not be granted. The Notice of Intent to grant the proposed helistop was published in the Miami Review, a legal newspaper in Dade County, Florida on September 16, 1988. In addition, a notice of the intent to grant the helistop application was mailed by certified mail to those persons who owned property within 1,000 feet of the proposed helistop. A list of those who received notice and copies of the return receipts for those mailings have been filed by Joe Robbie Stadium Corporation in this proceeding.

6. The Department of Transportation then conducted a public meeting on October 18, 1988 to hear from persons who objected to the site approval. This was not a formal hearing under Section 120.57(1), Florida Statutes. The November 3, 1988 report of the District Aviation Specialist who conducted the meeting, Lenwell Bivins, has been filed by Robbie Stadium Corporation. Mr. Bivins recommended approval of the application for site approval.

   
   

   B.

   
   

   Homeowners' Request for Chapter 120 Hearing

   
   

7. After the Department of Transportation issued its site approval order number 88-31 on November 15, 1988, Homeowners residing near the helistop site filed with the Clerk of the Department of Transportation a request for formal administrative hearing under Section 120.57(1), Florida Statutes (1987). That request contains eight "Grounds for Hearing". In it, the Homeowners contend:

   
   

   1. That the zoning resolution of Dade County approving the helistop was passed without first conducting a quasi-judicial administrative hearing, which renders the resolution void;

      
      

   2. That Dade County Code Section 33-27 requires that a permit for a landing field not be granted unless the director of the port authority finds that all federal, state and county requirements have been met, which was not done;

      
      

   3. There has been no certification that noise generated by air traffic would fall within the limits promulgated by the state, federal and local governments, as required by Dade County Code Section 25-10.13(h);

      
      

   4. That no unusual use of land, such as a helistop, may be permitted if the use conflicts with the normal and expected use of nearby residential areas under Dade County Code Section 33-13, and no variance should be created to permit a landing field without certification by the zoning director that the variance would not interfere with the adjoining property owners' rights, see Dade County Code Section 33-36, but neither of these findings had been made;

      
      

   5. That location of the helistop within 400 feet of residential homes constitutes a taking of land without due process;

      
      

   6. That the private helistop does not meet minimum standards of safety because air traffic patterns cannot be worked out for takeoffs and landings which do not create noise, nuisances and safety hazards in

      violation of Section 330.30(1)(a), Florida Statutes;

      
      

   7. That approval of the site of the

      helistop near single family homes is contrary to the public interest and endangers the health, safety and welfare of adjoining residential property owners in violation of Section 320.30(2)(b), Florida Statutes;

      
      

   8. That the Department of Transportation and Dade County should deny the permit or await the outcome of appeal pending in the

      U.S. Court of Appeals of the Eleventh Circuit, Case 88-5383, where the zoning for the stadium (including the helistop) was challenged as substantively illegal and violative of civil rights of minority citizens.

      
      

      C.

      
      

      U.S. Court of Appeals Decision in Lake Lucerne Civic Association v. Dolphin Stadium Corp.

      
      

8. The decision referenced in paragraph 8 of the Petitioner's November 30, 1988 Grounds for Hearing was entered by the U.S. Court of Appeals for the Eleventh Circuit on August 3, 1989. Lake Lucerne Civic Association v. Dolphin Stadium Corporation, F.2d ,3 FLW Fed. C 1008 (11th Cir. 1989). The Homeowners have been resolute in their opposition to the location of the sport complex in their vicinity, and the decision of the Court of Appeals chronicles the numerous proceedings which they have filed over the years in state and federal courts opposing the sport complex. The Eleventh Circuit's decision holds that prior state court litigation has established bars to many of the contentions the Homeowners advanced in this site approval proceeding. According to the Eleventh Circuit's decision, the Dade County Board of County Commissioners adopted resolutions on September 26, 1985 which changed the zoning for the land the stadium complex occupies from residential to commercial or industrial use, and also established a development order on the stadium's application for a development of regional impact which would guide the development of the complex. The Homeowners appealed these zoning changes to the circuit court, which upheld the rezoning. The Homeowners appealed that decision to the Florida District Court of Appeal, Third District in Norwood-Norland Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009 (Fla. 3rd DCA 1987), review denied, 520 So.2d 585 (Fla. 1988). The state appellate court upheld the circuit court decision that the county's rezoning was appropriate under the "fairly debatable" test, and that the rezoning also was consistent with the Dade County Master Plan.

   
   

9. The Lake Lucerne Civic Association thereafter filed another suit in circuit court in Dade County, alleging five grounds for relief, including, in Count Four, the substantiative unconstitutionality of the county's zoning resolutions. Approximately two months later, the Association filed suit in the

   U.S. District Court for the Southern District of Florida also alleging the substantiative unconstitutionality of the zoning resolutions as well as violations of other civil or contract rights of the Homeowners. The U.S. District Court granted summary judgment on March 22, 1988, against the

   Homeowners on the count raising the substantiative unconstitutionality of the rezoning. The U.S. Circuit Court of Appeals affirmed the dismissal of the count challenging the rezoning and held the issue of rezoning had been adjudicated in the Florida circuit court and the district court of appeal, and could not be relitigated in Federal court. 3 FLW Fed C 1012.

   
   

10. The Lake Lucerne Civic Association was permitted, however, to proceed to trial in U.S. District Court on its claim under 42 U.S.C. Section 1983 that the rezoning had caused such a diminution of the Homeowners property rights as to entitle them to compensation for a taking of property under the Fifth Amendment to the U.S. Constitution. The Eleventh Circuit also reinstated the Homeowners' claim the rezoning was part of a history of unconstitutional discriminatory community development. 3 FLW Fed. at C 1013-14.

    
    

    D.

    
    

    Prior Proceedings in this Permit Application Case.

    
    

11. After a prehearing conference held on January 24, 1989, the Department of Transportation and Robbie Stadium Corporation were ordered to file a statement setting out in detail how the helistop application submitted meets the requirements of Section 330.30(1)(a), Florida Statutes and Rule Chapter 14- 60.007(6), Florida Administrative Code. The Homeowners were granted an additional period of ten days in which to identify facts the Homeowners disputed, and to describe the nature of any dispute. Robbie Stadium Corporation and the Department of Transportation complied with the order and filed a Statement of Satisfaction of Requirements on February 22, 1989. The Statement shows that the application meets each of the requirements of Section 330.30(1)(a), Florida Statutes. It attached:

    
    

    1. The application,

       
       

    2. The engineering drawings for the helistop,

       
       

    3. An affidavit from the employee of the Department of Transportation who conducted the public hearing on the application on October 18, 1988, along with a sworn statement that appropriate notice had been sent by certified mail, returned receipt requested, to all airports and municipalities within fifteen miles of proposed site and to all owners of property within 1,000 of the proposed site, along with copies of the return receipts,

       
       

    4. A copy of the letter from the Federal Aviation Administration finding that the proposed helistop met the requirements of part 157 of the Federal Aviation Regulations,

       
       

    5. A letter from T. E. Lunn, P.E., the Chief of the Permit Control Division of the Metropolitan Dade County Building and Zoning Department stating that the heliport pad at the stadium was not in conflict with the Dade County Zoning Code and resolutions establishing the use of the stadium (which included the heliport pad), the affidavit of Mr. Lenwell Bivins who conducted the October 18, 1988 public meeting, and of Mr. Lacey Moore of the Florida Department of Transportation to show that adequate consideration was given to comments submitted by nearby airports, municipalities and property owners, and

       
       

    6. The letter agreement with the Opa Locka and North Perry Air Traffic Control Authority which demonstrates that safe air traffic patterns

    already have been worked out with existing airports and approved airports in the vicinity of the stadium.

    
    

12. The Homeowners' Response to the Applicant's Statement of Satisfaction of Requirements filed March 17, 1989, again focused on provisions of the Dade County Zoning Code. As in their earlier statement of their grounds for hearing, the homeowners contended that the engine noises from aircraft using the helistop would be greater than permitted under the code, that the use of the helistop would conflict with the normal and expected use of the Homeowners' residential property, that the applicant had failed to show that the helistop poses no danger to the health, safety and welfare of the residents, and argued that the helicopter traffic generated by the Superbowl which took place at the Stadium in early 1989 presented hazards to health and safety. The Homeowners' Response also generally denigrates the filing made by Robbie Stadium as self- serving.

    
    

13. Thereafter, a second prehearing conference was held in this case. The Order on Prehearing Conference entered after that hearing found that the Statement of Satisfaction of Requirements which Robbie Stadium Corporation had filed constituted prima facie proof that Robbie Stadium was entitled to site approval for the helistop under Section 330.30, Florida Statutes (1987) and Rule 14-6.007(6), Florida Administrative Code. The Homeowners were instructed to file a statement of whatever evidence they may have to show that there was a disputed issue of material fact with respect to the statement by the Chief of the Permit Control Division of the Building and Zoning Department that the helistop was permissible under the existing zoning for the stadium. On the issue of safety, the Homeowners were granted the opportunity to provide specific citations to any safety standard they believed the proposed helistop violated, and a summary of the evidence they intended to adduce in support of their contention that the proposed helistop design failed to meet those standards. On the issue of notice to persons owning property within 1,000 feet of the helistop, the Homeowners were given 14 days in which to provide a summary of any evidence that they had which indicated that any persons entitled to notice had not received it, and that the fairness of the proceeding before the Department had been substantially impaired by any lack of required notice.

    
    

    E.

    
    

    The Homeowners' Second Response

    
    

14. No summary of evidence was ever filed on behalf of the Homeowners. Instead, on April 18, 1989, they filed exceptions to the March 27, 1989, Order on Prehearing Conference. They argued that it was constitutionally unfair to require them to submit evidence to rebut Robbie Stadium Corporation's prima facie proof. They continued to argue

    
    

    1. That the noise generated by helicopter landings was so loud that the permit should not be granted,

       
       

    2. That no enforceable air traffic patterns could be worked out to minimize noise and eliminate danger to their homes, that

       there was no mechanism to limit the number of takeoffs and landings at the stadium, that the permit violated the Dade County Code Section 25-10.13(h) and 33-13, and

    3. That there was no public purpose to be furthered in permitting a helistop within

    400 feet of residential homes.

    
    

15. A third prehearing conference was held on August 16, 1989. Counsel for the Homeowners acknowledged that the decision of the U.S. Court of Appeals in the Lake Lucerne case appears to bar the Homeowners' challenges to the county's zoning approval for the sports complex, including the helistop, under principles of res judicata and collateral estoppel. Counsel also declined the opportunity to amend the Homeowners' response to specify the safety standards the Homeowners believe the helistop would violate. The Homeowners are fearful of the use of the helistop near their homes, but can point to no specific safety standards violated by the helistop design.

    
    

    II. CONCLUSIONS OF LAW

16. The Homeowners have misconceived the purpose of the two orders on prehearing conference entered February 6, 1989 and March 27, 1989. Those orders required Robbie Stadium Corporation to make out a prima facie case demonstrating its entitlement to an order of site approval, and then provided the Homeowners the opportunity to be specific about the factual disputes to be determined in a final hearing under Section 120.57(1), Florida Statutes. The reason for this pre-hearing procedure is found in the opinion of the First District Court of Appeal in Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778, 788- 789 (Fla. 1st DCA 1981):

    
    

    Not every request for a formal Section 120.57(1) hearing may properly be granted, for it is a clear that the petitioner must first demonstrate by appropriate pleading that there are disputed issues of fact requiring such a hearing. We totally agree with the sentiments expressed by amicus curiae Agrico that no third party "merely by filing a petition" should be permitted to require the applicant to "completely prove anew" all items in the permit application down to the last detail.

    The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the .

    burden cast upon the applicant. 39 So.2d at 789. (Citations omitted)

    
    

    The Homeowners are third parties here. They have been given two opportunities to demonstrate, with specificity, that the prima facie case made in the Statement of Satisfaction of Requirements which Robbie Stadium and the Department of Transportation filed on February 22, 1989, is somehow deficient, or the facts the applicant relies on are untrue. They have not done so. They were offered a third opportunity to do so but declined it. The inference drawn from this failure is that they have no such evidence, and that to conduct a formal hearing under Section 120.57(1), Florida Statutes, would serve no purpose, for there are no disputed relevant facts to be determined.

17. The two prior Orders on Prehearing Conference have required the Homeowners to demonstrate there are factual disputes to be heard, in much the same manner as litigants in circuit courts are required to come forward with proof of disputed issues of material fact to avoid a summary judgement. See Rule 1.510(c) Fla. R. Civ. P. Hearing Officers also have the authority to issue orders "to prevent delay, and to promote the just, speedy, and inexpensive determination of all aspects of the case". Rule 221-6.024, Florida Administrative Code. Under Rule 221-6.015(2)(1), Florida Administrative Code, the parties may be required to state their positions on each issue of fact, law, and policy at issue. The Homeowners' were given the opportunity to demonstrate a factual dispute on the issues of safety and notice, but have been unable to show any facts to be determined at a final hearing.

    
    

18. The grounds for opposing the site approval stated in the Homeowners' original November 30, 1988, filing at paragraphs 1-4, are all challenges to the propriety of the zoning granted by the Dade County for the helistop. As the

    U.S. Court of Appeals has determined, the Homeowners now are foreclosed from maintaining substantive challenges to the rezoning. Those issues were conclusively determined against them in the state circuit court and in the Third District Court of Appeal. This proceeding for site approval for the helistop under Section 300.30, Florida Statutes does not permit the Florida Secretary of Transportation to entertain an appeal from actions of a County Commission granting zoning for a helistop. Because necessary zoning has been granted, Section 330.30(1)(a)2. has been satisfied, i.e. the proposed helistop complies "with applicable county or municipal zoning requirements". Whether that zoning should have been granted has been litigated and resolved against the Homeowners. With respect to the fifth ground stated in the November 30, 1988, request for a hearing, (complaining that location of the helistop within 400 feet of residential homes constitutes a taking) such a claim is not cognizable under Section 330.30, Florida Statutes. Under Florida law, "inverse condemnation actions cannot be adjudicated by administrative boards or agencies". Bowen v. Florida Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2nd DCA 1984). Whether the Homeowners are entitled to compensation for the proximity of the helistop to their property will be litigated in their Section 1983 action pending in the U.S. District Court for the Southern District of Florida. Lake Lucerne Civic Association v. Dolphin Stadium Corp., F.2d 3 FLW Fed C 1008, 1014 (11th Cir. 1989). The allegation in paragraph 7 of the Homeowners' November 30, 1988 Grounds for Hearing, (that the use of the private helistop is not in the public interest and endangers the health, safety and welfare of adjoining residential property owners) has never been made specific by the identification of any safety standards which they contend would be violated, or any specification of how those standards would be violated. The Homeowners were required to provide that information in the Order entered on March 27, 1989. They did not do so. On August 16, 1989, they declined the opportunity to identify any safety standards they believe the proposed helistop design violates. Similarly, the allegations of paragraph 6 of the November 30, 1988, Grounds for Hearing (that the private helistop "cannot be made to conform to minimum standards of safety" due to the proximity of homes, and that "air- traffic patterns cannot be worked out for landings and takeoffs which do not create noise, nuisance and safety hazards") create no disputed issue of material fact. The letter from the FAA filed by Robbie Stadium Corporation and the Department of Transportation in their Statement of Satisfaction of Requirements, coupled with the January 15, 1989 letter agreement between the Opa Locka Air Traffic Area, North Perry Traffic Area and Robbie Stadium Corporation show that safe traffic patterns have been worked out. Despite two opportunities given to the Homeowners to demonstrate some factual disputes on the question of safety, they have been unable to do so. They rely instead on subjective fears about

    safety. The Homeowners may harbor those fears, but undifferentiated fears do not create a dispute of material fact for formal hearing under Section 120.57(1), Florida Statutes.

    
    

19. The last ground asserted in the Homeowners' November 30, 1988 Grounds for Hearing are that the outcome of this proceeding should await the outcome of the appeal pending in the U.S. Court of Appeals for the Eleventh Circuit. The opinion entered by the Eleventh Circuit provides no basis for denial of the helistop permit; in fact, that opinion precludes relitigation of the zoning claims the Homeowners raised. The opinion shows that all zoning issues with respect to the development order and rezoning of the stadium property have been conclusively determined adversely to the Homeowners' position by the County Commission, the circuit court in its appellate capacity, and by the Third District Court of Appeal.

    
    

20. No disputed fact issues remain to be determined at a Section 120.57(1) final hearing.

RECOMMENDATION

It is RECOMMENDED that the Homeowners' objection to the issuance of the final site approval order permitting the helistop at Joe Robbie Stadium as requested in the Airport Site Approval and License Application filed on October 20, 1987 by Joe Robbie Stadium Corporation be dismissed.

DONE and ENTERED this 29th day of August, 1989, at Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1989.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

Robert L. Shevin, Esquire

200 South Biscayne Boulevard Suite 3300

Miami, Florida 33131-2385

George F. Knox, Esquire 4770 Biscayne Boulevard

Suite 1460

Miami, Florida 33137

Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 88-006208

Orders for Case No: 88-006208