STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMPA NORTH AERO PARK INC., )

)

Petitioner, )

)

vs. ) CASE NO. 96-4721

) ALBERT E. WARNER, RENEE WARNER and ) DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

On January 7, 1997, a formal administrative hearing in this case was held by video conference in Tampa and Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles W. Brammer, Pro Se

Tampa North Aero Park 4241 Birdsong Avenue

Tampa, Florida 33549

For Respondents Albert E. Warner, Pro Se Warner: Post Office Box 7084

Wesley Chapel, Florida 33543

For Respondent Francine M. Ffolkes, Esquire Department of Department of Transportation Transportation: Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

The issue in the case is whether Albert E. and Renee Warner's application for an Airspace Obstruction Permit should be granted.

PRELIMINARY STATEMENT

By letter dated July 12, 1996, Petitioner Charles W. Brammer was notified that the Department of Transportation intended to grant the application filed by Albert E. and Renee Warner for an Airspace Obstruction Permit. Mr. Brammer, who owns the airstrip on which the Warners want to build, filed a request for hearing. The request was forwarded to the Division of Administrative Hearings which scheduled the formal proceeding.

At the hearing, Mr. Brammer presented the testimony of one witness, testified on his own behalf and had exhibits numbered A- D admitted. Respondents Warner presented the testimony of one witness and Albert Warner testified on his own behalf. The Department of Transportation presented the testimony of one witness and had one exhibit admitted.

A hearing transcript was filed. The Department filed a proposed recommended order. The Petitioner filed an "Order Sustaining Objection To And Revoking Airspace Obstruction Permit Issued To Albert E. Warner III And Renee Warner," which has been regarded as a proposed recommended order, as has the Warners' memorandum filed in support of the permit issuance.

FINDINGS OF FACT

1. Charles W. Brammer owns the Tampa North Aero Park, Inc., which is a Florida-licensed public use landing strip surrounded by private home sites. The landing strip is located in Pasco County.

2. Albert E. Warner and Renee Warner own a lot adjoining the Tampa North Aero Park, Inc. The Warners desire to construct and live in a single family home on the lot identified as Lot 123, Quail Hollow Village Subdivision.

3. According to the Warners, the structure will be concrete block with a wood frame roof. The highest peak of the roof will be no more than 30 feet above ground level (98 feet above mean sea level.)

4. Mr. Brammer is essentially concerned that his airport remain licensed for public use, and is wary of encroachments which may alter its licensing status in the future.

5. The location of the proposed construction exceeds certain federally-established standards and triggers regulatory review of the Warner project.

6. In November of 1995, the Warners began the process of obtaining the permits required for construction of the home at the airstrip.

7. The evidence establishes that the Warners have been cooperative and forthcoming in their attempts to meet regulatory

   requirements related to their proposed construction. The Warners provided all information as requested by the Department.

8. One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation."

9. On March 27, 1996, the FAA issued the "Determination of No Hazard to Air Navigation." The document states that an aeronautical study has been completed (study #96-ASO-286_OE) and identifies the location of the proposed residence as approximately 0.14 nautical miles northeast of the Tampa North Aero Park Airport. The FAA determination contained an incorrect latitude and longitude for the location of the proposed construction.

10. The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows:

    Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation.

    
    

11. By letter of July 12, 1996, the Department issued notice of its intent to grant the Warner application for an Airspace Obstruction Permit. The letter states as follows:

    We have review results of the Federal Aviation Administration Aeronautical Study of your proposed construction. They have issued a determination your construction can be accommodated without a significant adverse impact on the safe and

    efficient use of navigable airspace for Tampa North Aero Park and is thus not a hazard to air navigation.

    
    

    We have been unable to identify any aviation activity not addressed by the Aeronautical Study that would necessitate altering flight operations to accommodate your proposed construction or be otherwise adversely impacted by its height at the location proposed....

    
    

12. The Department's permit contained the same incorrect latitude and longitude for the location of the proposed construction as had been set forth in the FAA determination.

13. A condition of the permit requires the structure to be lighted with a red beacon and marked as an obstruction.

14. At some point after issuing the initial determination, the FAA issued a correction to the determination. There is no date on the correction which identifies the date of issuance. Other than the location, the FAA's correction made no changes to the initial determination. The correction states as follows:

    This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination.

15. The Department has not issued a corrected notice of its intent to issue the Warner permit.

16. Although the permit applicants have provided the information requested by the Department, the evidence fails to

    establish that the applicants have met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.

17. The evidence fails to establish that the Department gave adequate consideration to the requirements of Section 333.025, Florida Statutes, in reviewing the permit application filed by the Warners.

    CONCLUSIONS OF LAW

    
    

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

19. The Department of Transportation is the agency charged with responsibility for review of certain proposed construction within the airspace of Florida-licensed airports. Section 333.025, Florida Statutes.

20. The location of the proposed construction in this case falls within the area which requires that the Department review and evaluate the project, and either issue or deny a permit.

21. As the applicant for the Airspace Obstruction Permit, the Warners have the ultimate burden of proof in demonstrating entitlement to the permit sought. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met. The evidence produced at hearing is insufficient to

    support a de novo determination that an Airspace Obstruction Permit should be issued to the Warners.

22. Section 333.025, Florida Statutes, establishes the obligation of the Florida Department of Transportation to review certain proposed construction which exceeds federal standards adopted by the FAA. In relevant part, the statutes provides as follows:

    Permit required for structures exceeding federal obstruction standards.--

    1. In order to prevent the erection of structures dangerous to air navigation...each person shall secure from the Department of Transportation a permit for the erection, alteration, or modification of any structure the result of which would exceed the federal obstruction standard as contained in 14. C.F.R. ss. 77.21, 77.23, 77.25, 77.28, and 77.29. However, permits from the Department of Transportation will be required only within an airport hazard area where federal obstruction standards are exceeded and if the proposed construction is within a 10-nautical-mile radius of the geographical center of a publicly owned or operated airport, a military airport, or an airport licensed by the state for public use.

       * * *

       1. The Department of Transportation shall, within 30 days of the receipt of an application for a permit, issue or deny a permit for the erection, alteration, or modification of any structure the result of which would exceed the federal obstruction standard as contained in 14. C.F.R. ss. 77.21, 77.23, 77.25, 77.28, and 77.29.

       2. In determining whether to issue or deny a permit, the department shall consider:

          1. The nature of the terrain and height of existing structures.

          2. Public and private interests and investments.

          3. The character of flying operations and planned development of airports.

          4. Federal airways as designated by the Federal Aviation Administration.

          5. Whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport.

          6. Technological advances.

          7. The safety of persons on the ground and in the air.

          8. Land use density.

          9. The safe and efficient use of navigable airspace.

          10. The cumulative effects on navigable airspace of all existing structures, The proposed structures identified in the applicable jurisdictions comprehensive plans, and all other known proposed structures in the area.

       3. When issuing a permit under this section, the Department of Transportation shall, as a specific condition of such permit, require the obstruction marking and lighting of the permitted structure as provided in 333.07(3)(b).

       4. The Department of Transportation shall not approve a permit for the erection of a structure unless the applicant submits both documentation showing compliance with the federal requirement for notification of proposed construction and a valid aeronautical evaluation, and no permit shall be approved solely on the basis that such proposed structure will not exceed federal obstruction standard as contained in 14. C.F.R. ss. 77.21, 77.23, 77.25, 77.28, and 77.29, or any other federal aviation regulation.

23. Although this is a de novo proceeding and not a review of the Department's proposed action in this case, the Department essentially guided the applicant in the filing of the application and supporting information.

24. The evidence produced at hearing is insufficient to establish that the Department applied all of the specific criteria set forth at Section 333.025(6), Florida Statutes, during the processing of the Warner application. The Department's failure to apply all the criteria resulted in the

    applicants' failure to provide sufficient information to support the award of the permit.

25. The sole witness for the Department testified that he determined that the location of the proposed structure identified in the Warner application for the state permit was the same as identified in the FAA determination. Once he was convinced the locations were the same, he reviewed the results of the FAA study to insure that the FAA did not omit any aeronautical activity known to him. After determining the FAA study was complete, he prepared the necessary documents for approval of the Warner permit.

26. The evidence is insufficient to establish that the Department considered the nature of the terrain and height of existing structures, the character of flying operations and planned development of airports, or land use density.

27. The evidence fails to establish that the Department considered the impact of the proposed construction on public and private interests and investments. To the contrary, the Department witness asserted that beyond safety considerations, "business" factors did not enter into his analysis.

28. The evidence fails to establish that the Department considered whether the construction of the proposed structure would cause an increase in the minimum descent altitude or in the decision height at the affected airport.

29. The evidence fails to establish that the Department

    considered any possible technological advances.

    
    

30. The evidence fails to establish that the Department specifically considered the safety of persons on the ground and in the air, other than reliance on the FAA determination of "no hazard."

31. The evidence fails to establish that the Department considered the cumulative effects on navigable airspace of all existing structures, proposed structures identified in the applicable jurisdictions comprehensive plans, and all other known proposed structures in the area.

32. Section 333.025(6)(i), Florida Statutes, requires the Department consider the impact of a proposed structure on the safe and efficient use of navigable airspace. The credible evidence establishes only that the Department determined that the FAA's "Determination of No Hazard to Air Navigation" was not incorrect.

33. Although the Department's witness asserted that he had undertaken an independent analysis of the project location, his analysis appears to be directed towards assuring that the location of the project was the same location as was reviewed by the FAA. Differing methods of determining location and the lack of specificity regarding the actual location of the yet-tentative plans on the property, result in a lack of sufficient evidence to determine whether or not all parties were in accord regarding where the house would be, once construction commenced.

34. However, it is clear that the Department made no independent determination as to whether the proposed structure will affect the safe and efficient use of the navigable airspace. The Department sole witness specifically stated that he relies on the FAA to make such determination, and clearly said it was within their jurisdiction. While such reliance may not be unreasonable, the statute clearly mandates that the Department do more than review an FAA determination. Had the Legislature intended for the Department to defer to the FAA in making the determination, there would be no requirement that the Department conduct its own review.

35. At hearing, much attention was focused on whether the FAA review was reasonable, and whether the corrected location required the FAA to review the proposal again. The FAA is outside the jurisdiction of this forum. Other than as set forth by Florida Statutes or the Florida Administrative Code, the actions of the FAA are not determinative in this proceeding.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying the Warner application for Airspace Obstruction Permit.

RECOMMENDED this 4th day of March, 1997, in Tallahassee, Florida.

_

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997.

COPIES FURNISHED:

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation

562 Haydon Burns Building 605 Suwannee Street

Tallahassee, Florida 32399-0450

Charles W. Brammer, Pro Se Tampa North Aero Park 4241 Birdsong Avenue

Tampa, Florida 33549

Albert E. Warner, Pro Se Post Office Box 7084

Wesley Chapel, Florida 33543

Francine M. Ffolkes, Esquire Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-004721

Orders for Case No: 96-004721