STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TAMPA NORTH AERO PARK, INC., )

)

Petitioner, )

)

vs. ) Case No. 97-3899

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

)

Respondents. )

)

RECOMMENDED ORDER

On August 5, 1998, a formal administrative hearing in this case was held in Tampa, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles W. Brammer, pro se

General Manager

Tampa North Aero Park 4241 Birdsong Avenue

Lutz, Florida 33549

For Respondent

Warner: Albert E. Warner, pro se Post Office Box 7084

Wesley Chapel, Florida 33543-7084

For Respondent Department of

Transportation: Kelly A. Bennett, Assistant General Counsel Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0458 STATEMENT OF THE ISSUE

The issue in the case is whether Albert E. Warner's

application for an Airspace Obstruction Permit should be granted.

PRELIMINARY STATEMENT

Albert E. Warner intends to construct a residence and attached hangar on a lot adjoining the airstrip owned by Charles

W. Brammer. Due to the size and location of the proposed construction, Mr. Warner is required to obtain an Airspace Obstruction Permit from the Department of Transportation (DOT).

Petitioner challenges the DOT’s intended award of the permit to Mr. Warner. Mr. Brammer’s Petition for Hearing was forwarded by the DOT to the Division of Administrative Hearings, which conducted the proceeding.

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

witness and had exhibits numbered 1-8, 10-15, and 17-19 admitted.

A hearing transcript was filed. All parties filed proposed recommended orders.

The Department filed a Motion for Attorney’s Fees and Costs.

In the motion, the Department asserts that Mr. Brammer participated in this proceeding for an improper purpose. Mr. Brammer filed a response to the motion. As discussed herein, the Motion for Fees and Costs is denied.

FINDINGS OF FACT

1. Charles W. Brammer owns the Tampa North Aero Park, Inc., a Florida-licensed public use landing strip located in Pasco

   County.

2. The Tampa North Aero Park is surrounded by platted lots intended for use as private homesites.

3. Albert E. Warner owns one of the lots, (Lot 123, Quail Hollow Village Subdivision) which adjoins the Tampa North Aero Park, Inc.

4. Mr. Warner intends to construct and live in a single family home on his lot.

5. Because the location of the proposed Warner construction exceeds certain standards, regulatory review is required and Mr. Warner’s proposed structure must be obtain a permit from the DOT.

6. On June 18, 1997, the Mr. Warner filed his application for an Airspace Obstruction Permit with the DOT.

7. According to Mr. Warner, the proposed structure will be concrete block with a wood frame roof, with a roof peak no more than 98 feet above mean sea level

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. The FAA has issued a "Determination of No Hazard to Air Navigation."

10. Because the initial FAA document included incorrect site information, the FAA subsequently issued a "Correction to the Determination of No Hazard to Air Navigation."

11. 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.

    
    

12. The FAA’s document of 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.

13. The Petitioner challenges the reliability of the FAA’s review of the Warner project and the determination that the proposed construction will create no hazard to airspace navigation. The Petitioner offered no credible evidence to support the assertion that the FAA study was incomplete or unreliable. Given the minor change in the relative location of the runway to the proposed Warner construction, the FAA’s correction of the initial determination without conducting an entirely new review is inconsequential.

14. As set forth in the FAA determination, a condition of the permit requires the structure to be marked as an obstruction and lighted with a red beacon. There is no evidence that Mr. Warner is unwilling or unable to comply with this requirement.

15. The Department reviewed the FAA determination and subsequent correction. The Department determined that the corrected location information was correct and that the FAA

    review included a valid aeronautical evaluation.

    
    

16. The evidence establishes that the Department considered the required factors set forth in the applicable statute. The

    evidence establishes that the DOT completed the review and made the determination within the appropriate timeframes.

17. The Department considered the nature of the terrain and height of existing structures. The land surrounding the airfield is relatively flat. Existing structures include houses across the residential street from the Warner lot, and other houses to be constructed along the airfield. Numerous trees, some located closer to the airstrip than the proposed Warner house, are as tall or taller than the proposed Warner home, except where such trees were recently cut by Mr. Brammer for reasons unknown.

18. The Department considered public and private interests and investments in the area of the proposed construction. No public investments will be impacted. There is no credible evidence that public aviation interests will be impacted.

19. Private investments, specifically that of the Petitioner and his airport, will not be adversely impacted by construction of the home.

20. One witness asserted that the private investments of the other homeowners would be adversely impacted by the Warner construction, but offered no credible evidence to support the assertion.

21. The Department considered the character of flying operations and planned development of airports. The proposed construction will have no adverse impact on the character of flying operations and planned development of airports.

22. The Department considered federal airways as designated by the FAA and determined there would be no adverse impact because the proposed structure is below the airspace height of the federal aviation system.

23. The Department considered whether the construction of the proposed structure would cause an increase in the minimum descent altitude or the decision height at the affected airport, and determined there would be no increase.

24. The Department considered technological advances and determined that there are none which would be adversely impacted by issuance of this permit.

25. The Department reviewed concerns related to the safety of persons on the ground and in the air and determined that there would be no adverse impact created by issuance of the permit.

26. The Department considered land use density. There is no adverse impact to land use density related to this permit.

27. The Department considered the safe and efficient use of navigable airspace. There is no adverse impact created by issuance of the subject permit. Existing objects of similar height and distance have posed no hazard to operation of the airport. Considering the airport’s characteristics, runway capability, and the types of aircraft using the facility, the proposed structure will not adversely impact the facility or any aircraft using the facility.

28. 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. There is no adverse impact caused by the cumulative effects of this structure, and other proposed or existing structures.

29. The evidence establishes that Mr. Warner has met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.

    CONCLUSIONS OF LAW

    
    

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

31. 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.

32. 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.

33. As the applicant for the Airspace Obstruction Permit, Mr. Warner has 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 been met.

34. 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 statute 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, 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.

35. The evidence establishes that the Department considered the criteria set forth at Section 333.025(6), Florida Statutes, during the processing of the Warner application.

36. The evidence establishes that the Warner application for an Airspace Obstruction Permit should be granted.

37. At the hearing, Mr. Brammer directed substantial effort

    to his assertion that the FAA review was unreliable and invalid. The applicable statute requires that the DOT must receive a "valid" aeronautical evaluation from the FAA. The statute does

    not provide a definition of what constitutes a "valid" FAA determination.

38. According to the DOT, the FAA "no hazard determination" is considered to be "valid" after the determination is deemed to be "final." A determination is "final" when the time for appeal of the determination has passed without objection or when such objections have been resolved through a federal administrative proceeding.

39. Mr. Brammer argues that an FAA determination based on incorrect coordinates is invalid. Although it appears that Mr. Brammer initially attempted to appeal the FAA action, subsequent events are unclear and his appeal was not pursued. The FAA determination became final.

40. For purposes of this case, the DOT’s definition of a "valid" FAA evaluation is reasonable and is accepted. The evidence establishes that although the FAA determination reflected incorrect siting for both the structure and the airstrip, correction of the coordinates resulted in little change in the relative position of both.

41. As stated previously, the Department filed a Motion for Attorney’s Fees and Costs, asserting that Mr. Brammer participated in this proceeding for an improper purpose. Mr. Brammer filed a response to the motion.

42. Section 120.595, Florida Statutes, provides for an award of attorney’s fees and costs to a prevailing party under

    some circumstances, including when a nonprevailing party participates in a proceeding for an improper purpose. As defined at Section 120.595(1), Florida Statutes, "improper purpose" means to participate primarily to harass or cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.

43. The Motion for Attorney’s Fees and Costs is denied.

    
    

44. The Department asserts that Mr. Brammer challenged the DOT primarily to attack the FAA’s "no hazard determination" which is outside the jurisdiction of this proceeding, and which was the focus of a previous administrative hearing involving the same parties.

45. Although Mr. Brammer directed much of his presentation to the matter of the FAA determination, the issue of whether the determination is "valid" for purposes of the relevant statute was a reasonable subject for this litigation. The statute provides no definition of the term "valid." Mr. Brammer asserts that an FAA determination using incorrect coordinates can not be accepted by the DOT as valid. The DOT asserts that once the FAA determination is final, it is valid.

46. Under the facts of this case, the FAA determination is deemed to be "valid." Had the facts indicated that an FAA error resulted in a substantial difference in the relative positions of the airstrip and the house, the fact that the FAA determination was "final" would not be sufficient to establish its validity.

    It was not improper for Mr. Brammer to litigate the issue of whether the FAA determination was "valid."

47. Further, it is inappropriate in this case to regard the DOT as the "prevailing party." As the applicant, the burden was on Mr. Warner to establish his entitlement to the permit sought. Mr. Warner was unrepresented by counsel, as was Mr. Brammer.

48. It is reasonable for an agency to offer assistance to an applicant attempting to meet technical requirements in a permitting application. In this case, where a private citizen seeks a state permit to conduct a regulated activity, the regulatory agency must conduct an appropriate review of the application and to render a reasoned determination based on relevant facts and applicable law. After the review and a preliminary determination, the purpose of a Section 120.57 hearing is to formulate final agency action, not to review action taken earlier and preliminarily. McDonald v. Dept. of Banking and Finance, 346 So 2d 569, 584 (Fla. 1st DCA 1977). Under the circumstances of this case, the successful applicant, not the state agency, is the prevailing party.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order granting the Warner application for Airspace Obstruction Permit. The permit shall include the requirements related to lighting as set forth by the FAA.

DONE AND ENTERED this 19th day of October, 1998, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1998.

COPIES FURNISHED:

Kelly A. Bennett, Assistant General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Albert E. Warner, III Post Office Box 7084

Wesley Chapel, Florida 33543-7084

Charles W. Brammer, General Manager Tampa North Aero Park, Inc.

4241 Birdsong Boulevard

Lutz, Florida 33549

Pamela Leslie, General Counsel Department of Transportation

Haydon Burns Building, Mail Station 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas F. Barry, Secretary Attention: James C. Myers, Clerk Agency Proceedings

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-003899

Orders for Case No: 97-003899