STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN J. BURTON and THOMAS G. ) WRIGHT, JR., )

)

Petitioners, )

)

vs. ) CASE NO. 83-3279

)

SONOMA INTERNATIONAL and ) CLAUDETTE BRUCK and STATE OF ) FLORIDA, DEPARTMENT OF )

TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter by Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Bearings on May 17, July 12, and 13, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Gerald K. Burton, Esquire

Mark A. Seff, Esquire 2740 Hollywood Boulevard

Hollywood, Florida 33020

Florida National Thomas G. Wright, Jr., Esquire Properties, Inc. Gregory S. Sollitto, Esquire

3300 University Drive

Coral Springs, Florida 33065

For Respondents: Leslie T. Ahrenholz, Esquire Sonoma Interna- Post Office Box 2656

tional and Fort Myers, Florida 33921 Claudette Bruck

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

605 Suwannee Street

Tallahassee, Florida 32301 ISSUES AND BACKGROUND

This case concerns the issue of whether the Respondents, Sonoma International and Claudette Bruck, should be granted a site approval by the Department of Transportation for the establishment of a private use airport in an unincorporated area of Palm Beach County. At the formal hearing, the Petitioner, Burton, called as witnesses John J. Burton, Burkett Neely, Jr., and Andrew Daniluk. Petitioner Florida National Properties called as its only

witness, Harold R. Sanders. The Respondent Sonoma International called as witnesses Claudette Bruck and Roth Inglefried. The Department of Transportation called as witnesses Thomas Boswell, Herbert L. Brown, and William H. Stockton.

Petitioner Burton offered and had admitted 11 exhibits. Burton's Exhibits 4 and

5 were admitted for the limited purpose of showing the relative locations of the Petitioner's property and the proposed site and Burton's Exhibit 10 was admitted for demonstrative purposes only. Petitioner Florida National Properties offered and had admitted one exhibit. The applicant, Sonoma International and Claudette Bruck, offered and had admitted seven exhibits and the Department of Transportation offered and had admitted eight exhibits.

Counsel for each of the Petitioners and each of the Respondents submitted proposed findings of fact and conclusions of law for consideration by the Bearing Officer. To the extent that those proposed findings and conclusions are inconsistent with the findings and conclusions in this order, they were considered by the Hearing Officer and rejected as not supported by the evidence or as unnecessary to the resolution of this cause.

FINDINGS OF FACT

1. On September 22, 1981, the Respondent, Sonoma International (hereafter Sonoma) , through its vice president, Claudette Bruck, filed an application with the Florida Department of Transportation (hereafter D.O.T.) for a license to construct and operate a private airport to be known as Greener Pastures Private Airport.

   
   

2. The proposed airport site is located on Loxahatchee Road (SR 827) in an unincorporated area of southwest Palm Beach County. The parcel on which the proposed airport is to be located consists of approximately 63.42 acres and is owned by Sonoma. The property is approximately 800 feet east to west and 3900 feet north to south. The proposed landing strip would be located on the

   western-most portion of the property and will run the entire length of the property except for any applicable setback requirements.

   
   

3. Petitioner, John J. Burton, (hereafter Burton) owns approximately 15 to

   20 acres of undeveloped land in the area of the proposed site. The eastern portion of Burton's property is directly north of the location of the proposed landing strip. The Burton property is approximately 300 feet north of the Hillsborough Canal and approximately 600 to 800 feet north of the proposed airport site.

   
   

4. The Petitioner, Florida National Properties, Inc., owns the land contiguous to the southern boundary of the proposed site. This property is also undeveloped.

   
   

5. The Loxahatchee National Wildlife Refuge is located approximately 3/4 of a mile north of the proposed site.

   
   

6. The area where the proposed site is located remains undeveloped.

   Sonoma proposes to sell subdivided five (5) acre parcels with the landing strip located on the western portion of each lot. The landing strip is for the use of the owners of these parcels and their guests. The proposed landing strip will be a grass strip and will run the full length of the property.

   
   

7. D.O.T. reviewed Sonoma's application, performed site inspections and found the proposed site was adequate to meet the site approval requirements set forth in Rule 14-60.05, Florida Administrative Code. The site inspections were

   performed by Mr. Boswell and Mr. Brown of D.O.T., who submitted reports of their findings. On October 20, 1982, D.O.T. entered a site approval order which contained the following conditions:

   
   

   1. All operations are to be conducted in VFR weather conditions.

   2. Use of the airstrip is limited to property owners and their invited guests.

   3. Left traffic patterns will be established for Runway 18 and Right traffic patterns will be established for Runway 36.

   4. Aircraft arriving or departing the airport will avoid overflying the Loxachatchee National Wildlife Refuge below 2000 feet AGL.

   5. Users of the airport and invited guests will be informed of possible bird activity in the vicinity of the site.

   6. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or re-licensing.

      
      

8. The landing strip surface for private airports must be a minimum of 1800 feet in length with a primary surface width of 100 feet and a usable width of 50 feet. The proposed site is more than adequate for a landing strip with these dimensions.

   
   

9. A private airport must have and maintain approach zones which are a trapezoidal area increasing in width from 50 feet either side of the runway centerline at a distance of 3000 feet outward from the ends of each runway. Rule 14-60.07(5), Florida Administrative Code. These approach zones must be clear of obstructions above a glide path of 20:1 from the ends of each usable runway. Rule 14-60.07(6). It is not necessary for the applicant to own or control the ground area beneath the approach zones.

   
   

10. The approach zones for the proposed airport will extend over property owned by the Petitioner Burton on the north and Petitioner Florida National on the south. Neither of the Petitioners has granted an easement or other right of use of the airspace above their property.

    
    

11. There are presently no obstructions which will prevent Sonoma from obtaining the necessary approach zones at the time of licensing. There are Australian Pines located on the northern tip of Sonoma's property and along the right-of-way of Loxahatchee Road where it abuts Sonoma's property on the north. These trees are 80 to 90 feet in height. By constructing the landing strip the full length of Sonoma's property, the threshold for landing may be displaced to the south of these trees. The 90 foot height will require a displacement of 1800 feet in order to obtain the 20:1 glide path clear zone. With a runway length of 3700 feet (3900 feet minus 2 x 100 feet set back) leaves a usable runway length of 1900 feet. This exceeds the minimum 1800 feet requirement. The trees may be topped or removed prior to final inspection.

    
    

12. Although there are bird-nesting areas within the Loxahatchee National Wildlife Refuge from which regular flights of birds occur, these flights are fairly predictable as to time and location and will not create an abnormal safety hazard for the proposed site.

13. There are also microwave towers in the general area of the proposed site, but these towers do not constitute a hazard to planes landing or taking off from the proposed airport.

    
    

14. Safe air traffic patterns can be developed on the site for takeoff and landing. Herbert L. Brown, an Aviation Specialist with D.O.T., flew low approaches over the proposed site on two different occasions on December 2, 1982, and April 22, 1983. Mr. Brown flew right-hand traffic patterns and approaches to Runway 36 and left-hand patterns and approaches to Runway 18. On each occasion, he could have landed safely on the proposed site but made a go- around. Mr. Brown did not detect any potential hazards on either of these flights and determined that safe air traffic can be developed on the proposed site.

    
    

15. On April 29, 1982, the Board of County Commissioners of Palm Beach County approved Sonoma's petition for a Special Exception to the Palm Beach County zoning ordinance. This approval permits Sonoma to construct a private use airport on the proposed site with the following conditions:

    
    

    1. The developer shall convey to Palm Beach County within ninety (90) days of Special Exception approval 80 feet south of the south right-of-way line of the Hillsboro Canal for the ultimate right-of-way for State Road #827.

    2. The developer shall contribute Three Thousand Dollars ($3,000) toward the oust of meeting this project's direct and identifiable traffic impact, to be paid on a pro-rata basis at the time of issuance of the building permit(s).

    3. A 100 ft. setback shall be required between the runway edge and any property line.

    4. No structure or navigation aids shall be closer than 50 ft. from any property line.

    5. Use of this airstrip shall be limited to owners of this property and their guests.

    6. The developer has agreed, and shall limit the County's liability for any future condemnation to exclude any improvements

       constructed as a result of this Special Exception.

       
       

16. Airspace approval for the proposed site was obtained from the FAA on February 24, 1982.

    
    

17. A private use airport constructed on this site will conform to the minimum standards of safety for a private use airport if constructed in accordance with D.O.T. requirements. The determination of such conformity is made by D.O.T. in a final inspection prior to licensing. The procedure for obtaining a private use license is a two-step procedure. The first determination is site approval and basically addresses the question of whether it is feasible to establish a private use airport on the proposed site which will meet D.O.T. requirements. In this phase, no detailed construction plans or site plans are required. After site approval, the proposed licensee prepares the site and constructs the airport. Upon completion, D.O.T. makes a final

    inspection to determine if all D.O.T. requirements have been met. If the airport fails to meet any D.O.T. requirement, the license will not be issued.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

    
    

19. Pursuant to Section 330.30(1), Florida Statutes (1981), the Division of Public Transportation Operations of the Department of Transportation is authorized to issue site approvals for new airport sites in Florida. Section 330.30(1), Florida Statutes (1981), provides in part:

    
    

    The division shall grant approval of the site if it is satisfied:

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

    2. That such proposed airport, if constructed or established, will conform to minimum standards of safety; and

    3. That safe traffic patterns could be worked out for such proposed airport and for all existing airports and approved airport sites in its vicinity.

    
    

20. Rule 14-60.07, Florida Administrative Code, provides that a private airport shall have an effective landing length of eighteen hundred (1800) feet, a primary surface width of one hundred (100) feet, and a usable width of fifty

    (50) feet. That rule also provides in relevant part:

    
    

    (3) The effective landing length of a runway shall also be the published length, which must never be considered to commence before the interception of the landing surface by the approach zone glide path.

    * * *

    1. The approach zone for private and limited airports is a trapezoidal area increasing gradually in width from 50 feet either side of the runway centerline, at the ends of each usable runway, to a width of 350 feet either side of the runway center-line at a distance of 3,000 feet outward from the ends of each runway.

    2. Approach zones shall be clear of obstructions above a glide path of 20:1 from the ends of each usable runway. When the approach zone to any runway crosses a road .

    . . , the glide path must pass at least 15 feet above the edge of the nearest traffic lane, . . . .

    (10) Owners and operators of private and limited licensed airports shall take whatever action necessary to prohibit the use of their facility by aircraft of such horsepower, weight and/or performance characteristics that would result in dangerous landing or

    takeoff condition to either the occupants of the aircraft or to persons or property in the vicinity of the airport.

    
    

21. A "private airport" is defined by Rule 14-60.02, Florida Administrative Code, as an airport used primarily by the licensee, but available for use by invitation of the licensee. That rule also provides that limited services may be provided if authorized by the division. Rule 14-60.02, Florida Administrative Code.

    
    

22. In addition to those requirements set forth above, Rule 14-60.05(2), Florida Administrative Code, provides:

    
    

    1. An applicant must be the owner or lessee of the proposed airport . . . .

    2. An applicant must show that the minimum airport standards herein enumerated are attainable on the site.

    3. All airport sites must be personally inspected and a written report containing a recommendation must be filed with the Department by a representative of the Department.

    * * *

    (f) Each application for site approval shall include documentation evidencing local zoning approval by the appropriate agency. Where there is no local zoning, a statement of that fact from an official of the appropriate governmental agency of the jurisdiction shall be submitted with the application.

    
    

23. An applicant for a license or permit carries the ultimate burden of persuasion of entitlement throughout all proceedings. Astral Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, 432 So. 2d 93 (Fla. 3d DCA 1983); Florida Department of Transportation v. J.W.C. Co. Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 432 So. 2d 93 (Fla. 1st DCA 1977).

    
    

24. In the instant case, Sonoma International has met its burden of proving entitlement to a site approval order for the proposed Greener Pastures Airport. The site where the airport is to be located is owned by Sonoma. The site was personally inspected by Mr. Boswell of D.O.T. and Mr. Brown of D.O.T., on three different occasions. Neither of these individuals found any hazard or condition which would preclude the requirements set forth above from being met on the site and both recommended site approval for the proposed airport.

    
    

25. The proposed site is more than adequate for constructing a runway with an effective landing length of 1800 feet and a primary surface width of 100 feet. Even with the 100 foot setback requirement, Sonoma will have enough space for an effective landing length of 3700 feet. By constructing the runway the full available length of the property, there will be ample length for a displaced threshold needed to establish an approach zone over the Australian Pines at the north end of the proposed site. If prior to licensing Respondent is able to top or remove these trees, it will be unnecessary to use such a

    displaced threshold and the full length of the landing strip would then be available for landing.

    
    

26. The airport will be used only by owners of lots adjacent to the airport and their guests. Only single engine and light twin engine aircraft will be allowed to use the airport. All operations at the airport are to be conducted in VFR weather conditions only.

    
    

27. Safe traffic patterns can be established for a private airport on this site. A condition of the site approval order is that left band traffic patterns will be established for Runway 18 and right traffic patterns will be established for Runway 36. Herbert L. Brown, an Aviation Specialist with D.O.T., on December 2, 1982, and April 22, 1983, flew low approaches over the site and actually flew the traffic patterns specified above. On these flights, Mr. Brown did not encounter any hazards which interfered with these traffic patterns. The primary attack by the Petitioners upon the proposed site was the fact that the approach zones will extend over land which is not owned or controlled by the Respondent Sonoma. Petitioners argued that Rule 14-60.07, Florida Administrative Code, should be used to require that the approach zones be attainable on the land actually owned or controlled by the applicant. D.O.T. interprets its rule to require only that the approach zones and clear zones as required by the rule exist at all times and that it is not necessary that the applicant own or control the land over which the approach zones are located. It is only required that Respondent have clear approach zones free of obstructions above the 20:1 glide path. Petitioner Burton's expert, Andrew Daniluk, testified that if the approach zones were not required to be owned or controlled by Sonoma them the minimum requirements of the D.O.T. rules could be met on this site.

    
    

28. Great weight will be given to rules which have been in effect over an extended period and the meaning assigned to them by officials charged with their administration unless such construction is clearly erroneous. State Department of Commerce, Division of Labor v. Mathews Corporation, 358 So. 2d 256 (Fla. 1st DCA 1978); City of Miami Beach v. Miller, 122 So. 2d 578 (Fla. 3d DCA 1960).

    The D.O.T.'s interpretation of its rules relating to site approval is not clearly erroneous, but is reasonable and consistent with Section 330.30(1), Florida Statutes (1981). The rule relating to site approval was first adopted in 1965 and last amended in 1981.

    
    

29. Petitioners contended that the location of the proposed airport on the Sonoma property will have an adverse effect upon the value of their property. However, the granting or denying of the site approval order must be based upon solely on compliance with applicable standards and rules for airport site approval. See Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d

67 (Fla. 3d DCA 1983). Impact upon property values in the area is mot a criteria under Section 330.30(1), Florida Statutes (1981), or Rule 14-60.05, Florida Administrative Code, relating to site approval. This does not relieve Sonoma from the duty of complying with applicable local requirements. Sonoma provided the necessary documentation and proved that it had obtained the necessary zoning approval from the Palm Beach Board of County Commissioners for the proposed private airport.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED:

That the Department of Transportation issue its site approval order to Sonoma International for the proposed private airport, subject to those specific conditions set forth in the Notice of Intent and proposed Site Approval Order.

DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 18th day of January 1984.

COPIES FURNISHED:

Gerald K. Burton, Esquire Mark A. Seff, Esquire 2740 Hollywood Boulevard

Hollywood, Florida 33020

Paul A. Pappas, Secretary Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32301

Thomas G. Wright, Jr., Esquire Gregory S. Sollitto, Esquire 3300 University Drive

Coral Springs, Florida 33065

Leslie T. Ahrenholz, Esquire Post Office Box 2656

Fort Myers, Florida 33921

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

605 Suwannee Street

Tallahassee, Florida 32301

Docket for Case No: 83-003279

Orders for Case No: 83-003279