STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD L. HENSCH )

)

Petitioner, )

)

vs. ) CASE NO. 89-6714

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on April 12, 1990 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Brian D. Stokes, Esquire

Traska, Grower, Unger & Ketcham, P.A. Post Office Box 538065

Orlando, Florida 32853-8065

For Respondent: Vernon L. Whittier, Jr., Esquire

Department of Transportation Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUES

Whether Petitioner's application for a private seaplane base on Lake Fairview in Orange County, Florida, complies with the Orange County Zoning Resolution, as required by Section 330.30(1)(a)2, Florida Statutes (1989).

PRELIMINARY STATEMENT

Petitioner submitted to the Respondent an Airport Site Approval and License Application, dated December 8, 1987, for a private seaplane base in Orange County. The DOT issued its Notice of Intent to grant the application on June 21, 1989. A public meeting in connection with the application was held on August 28, 1989. On November 1, 1989, the DOT denied Petitioner's application for site approval. Petitioner timely filed his petition for formal administrative hearing, dated November 17, 1989. This matter was referred to the Division of Administrative Hearings on November 29, 1989 for formal hearing. Pursuant to notice, this hearing followed.

At the formal hearing, the parties stipulated to certain facts. Petitioner presented the testimony of two witnesses and offered nine exhibits in evidence. Respondent presented the testimony of three witnesses and offered four exhibits in evidence. In addition, seven members of the public were permitted to testify, under oath, and be subject to examination by counsel for the parties.

The transcript of the proceedings was filed with the clerk of the Division on April 30, 1990. Petitioner filed his proposed findings of fact, conclusions of law and recommendation on May 15, 1990; Respondent filed its proposals on May 10, 1990. Both have been carefully evaluated and incorporated in this recommended order where appropriate. My specific rulings on each proposed findings of fact are contained in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner Richard L. Hensch submitted to the Department of Transportation (DOT) an Airport Site Approval and License Application dated December 8, 1987, for a private seaplane base on Lake Fairview in Orange County. On the application, Mr. Hensch indicated that flight activities that would be conducted from the proposed site could be sight-seeing flights, seaplane rides and tours and occasional seaplane instruction. Mr. Hensch plans to offer these activities to the public and charge fees for them.

   
   

2. Attached to the Application was a letter dated December 17, 1987, from Ms. Sharon Smith, the Orange County Zoning Director, in which she states:

   
   

   Please be advised that insofar as Orange County Zoning requirements are concerned, our department has no jurisdiction over the use of water bodies of lakes; rather such use falls

   under the jurisdiction of the State of Florida. This letter was written at the request of the Petitioner.

3. While the above-referenced application was under consideration by DOT, Petitioner applied for and received from the County tentative approval for an occupational license for his proposed operation.

   
   

4. F.A.A. airspace determination approval letter for the proposed site was dated June 1, 1989.

   
   

5. A Notice of Intent about the "proposed Private Seaplane Base" was issued by the Department of Transportation on June 21, 1989. A public meeting in connection therewith was conducted on August 28, 1989. Bronson Monteith, working for the DOT in Orange County, conducted the public meeting and recommended site approval relying on the letter by Orange County, dated December 17, 1987, as to the zoning.

   
   

6. The Orange County Commission at its meeting held on August 14, 1989, objected to the placement of a seaplane base at Lake Fairview based on a determination by the zoning director and the county attorney's office that the proposed seaplane base did not comply with the zoning ordinance.

7. The Lake Fairview area property is zoned predominantly residential, R- 1A, R-1AA with some C-2, R-T and R-3 zoning within the lake. Included within the commercial-type operations along and on the lake are jet-ski, sailboat and other watercraft rentals. Airports can be located only by special exception in A1 and A-2, agricultural zoning districts, and are permitted outright in I-5, Industrial Airport Zoning District. None of the lake area or shoreline areas are zoned A-1, Z-2 or I-5.

   
   

8. During August of 1989, the Assistant Zoning Director, Joanne McMurray, who as Acting Zoning Director, received a memorandum from Mr. Hartman, Acting Director of the County's Administrative Services Office, about the seaplane base proposal whereby she researched the zoning regulations as to airport facilities and zoning districts and permitted uses. She determined the proposed seaplane site would not comply with the Orange County zoning requirements. Ms. McMurray had received information from the county legal department that Zoning had jurisdiction to govern the use of lakes.

   
   

9. Lacy Moore, DOT's Chief of Airport Inspection, indicated that licensing followed site approval and was subject to annual renewal. Licensing was subject to revocation or denial of renewal if zoning changes occurred that made the airport out of compliance with zoning.

   
   

10. DOT sought clarification from the County as to whether the proposed site was in compliance with the Orange County zoning regulations. Phillip N. Brown, Orange County Administrator, sent a letter to Mr. Moore dated October 30, 1989, advising that the proposed seaplane site was not a permitted use in the County zoning district for Lake Fairview. As a result of Mr. Brown's letter, Petitioner's application was denied on November 1, 1989, based on failure to comply with local zoning requirements.

    
    

11. An "airport" is defined by the Orange County Zoning Ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." No amendments to the zoning ordinance or zoning district map have been enacted since the filing of Petitioner's Application of December 8, 1987.

    
    

12. On or about November 11, 1988, Ms. Smith, Orange County Zoning Director, by letter, stated that there were no zoning regulations in force in connection with another unrelated application for site approval and licensure of a private seaplane base on Big Sand Lake in Orange County, Florida.

    
    

13. Licensed private airports have been authorized by DOT to provide services to the public such as airplane rides and flight instruction and charge fees.

    
    

14. At the formal hearing held on this matter, several residents of the Lake Fairview area expressed opposition to the proposed seaplane site and indicated their concerns as to noise and safety because of extensive activity on the lake. Some people spoke in favor of the seaplane base indicating operational safety. Members of the public, including lake residents and others who spoke at the hearing, were not under subpoena by either party.

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 330.30(1)(a), Florida Statutes (1989), authorizes DOT to issue site approvals for new airport sites in Florida. Section 330.30(1)(a), Florida Statutes (1989), provides the following pertinent requirements:

    
    

    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.

    
    

17. Section 330.30(3), Florida Statutes (1989), defines airport, as follows:

    
    

    (3) "Airport" means any area of land of water or any man-made object or facility located thereon, which is used or intended for use, for the landing and takeoff of aircraft, and any appurtenant areas which are used, or intended for use, for aircraft buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon.

    
    

18. Sections 330.30(10)and (11) define private and public airport, as follows:

    
    

    1. "Private airport" means an airport, publicly or privately owned, which is used primarily by the licensee but which is available for use by invitation of the licensee. Services may be provided if authorized by the department.

    2. "Public airport" means an airport, publicly or privately owned, which meets minimum safety and service standards and is open for use by the public.

       
       

19. Counties are authorized by Section 330.36(1), Florida Statutes, to control the location of airports only by zoning requirements. In addition, Chapter 87-392, Laws of Florida, amended Section 330.36, Florida Statutes, by adding "regulation of seaplane landings," which is codified in subsection 330.36(3), Florida Statutes, and reads as follows:

    
    

    (2) A municipality may prohibit or otherwise regulate the landing of seaplanes in, over, and upon any public waters of the state which waters are located within the limits or jurisdiction of, or bordering on, the municipality.

    This amendment became effective October 1, 1987, which gave municipalities statutory authority to regulate the landing of seaplanes on public waters within their jurisdictional limits.

    
    

20. Orange County became a Charter County on January 1, 1987, which gave it the authority to exercise municipal powers in the unincorporated areas. Charter counties may exercise all the powers granted municipalities by general law in the unincorporated areas of the county as held in State ex rel. Volusia County v. Dickinson, 369 So.2d 9, 10, 11 (Fla. 1972). See also: Hudson Pulp and Paper Corporation v. County of Volusia, 348 So.2d 45 (Fla. 1st DCA 1977); and State v. Broward County, 468 So.2d 969 (Fla. 1985).

    
    

21. Therefore, Orange County has the statutory authority to regulate seaplane landings on Lake Fairview. Apparently, the Orange County Zoning Office was unaware of the amendment to Section 330.36, Florida Statutes, when it issued the December 12, 1987 letter, and did not know it had jurisdiction over the lake area proper to regulate seaplane landings.

    
    

22. The lake area proper of Lake Fairview is zoned predominantly residential with R-1A, R-1AA, and some C-2, R-T and R-3. The Orange County Zoning Ordinance provides that airports may only be located in areas zoned I-5, industrial airport zoning, and by special exception in A-1 and A-2, agricultural districts. An airport is defined by the zoning ordinance as "any area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose." Neither the zoning ordinance nor the zoning district map have been amended in regard to the Lake Fairview area. However, by defining "airport" to include "(a)ny area of land or water designated and set aside for the landing and taking off of aircraft and utilized or to be utilized in the interest of the public for such purpose," the County expressed its intent to regulate seaplanes, if it had jurisdiction to do so.

    
    

23. Although the proposed seaplane is to be a private facility, Mr. Hensch's application indicates he plans to offer seaplane rides and flight instruction to the public for which fees will be charged. The Department has licensed other private airports and authorized them to provide rides and flight instruction to the public and charge fees. Thus, public interest would be involved in Mr. Hensch's proposed private seaplane base.

    
    

24. Further, Section 330.27(3), Florida Statutes, defines an airport as ".

. . any area of land or water, or any man-made object or facility located thereon, which is used, or intended for use, for the landing and taking off of aircraft, . . ." Proposed sites, on land or water, for the landing and takeoff of aircraft must be in an area appropriately zoned. Because of the zoning at Lake Fairview, the proposed seaplane base does not comply with applicable county zoning requirements, and the site approval should be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered by the agency head denying site approval for a private seaplane base on Lake Fairview in Orange County, Florida, because it does not comply with applicable county zoning as required by law.

DONE AND ENTERED this 14th day of June, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 14th day of June, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6714

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact:

Accepted in substance: Paragraphs 1,2,3,4,5,6,7,9,10 (discussed in Preliminary Statement).

Rejected as argument: 8,11.

Respondent's Proposed Findings of Fact: Accepted in substance: 1,2,3,4,5

COPIES FURNISHED:

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

605 Suwannee Street, MS 58

Tallahassee, Florida 32399-0458

Brian D. Stokes, Esquire Post Office Box 538065 Orlando, Florida 32853-8065

Ben G. Watts Secretary

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 Attn: Eleanor F. Turner, MS 58

Thornton J. Williams General Counsel

Department of Transportation

562 Haydon Burns Building Tallahassee, Florida 32399-0450

Docket for Case No: 89-006714

Orders for Case No: 89-006714