STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VENETIAN SHORES HOMEOWNERS )

ASSOCIATION, )

)

Petitioners, )

)

vs. ) CASE NO. 84-0692

) DEPARTMENT OF TRANSPORTATION and ) HENRY C. RUZAKOWSKI, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Key Largo, Florida on December 12 and 13, 1984, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

APPEARANCES

For Petitioners: Joe Miklas, Esquire

Post Office Box 366 Islamorada, Florida 33036

For Respondent, James Baccus, Esquire Henry C. Post Office Box 38-1086 Ruzakowski: Little River Station

Miami, Florida 33138

For Respondent, Judy Rice, Esquire Department of 605 Suwannee Street Transportation: Tallahassee, Florida 32301

At the conclusion of the hearing it was stipulated (due to various scheduling complications of counsel for the parties) that the parties' post- hearing submissions would be filed by February 15, 1985, and that the Hearing Officer would have 30 days from that date within which to prepare the Recommended Order. Subsequently, due to the serious illness of counsel for one of the parties, the date for filing post-hearing submissions was extended to April 15, 1985. All parties filed Proposed Findings of Fact, Conclusions of Law and Recommendations. These post- hearing submissions have been given careful consideration in the formulation of this Recommended Order. To the extent findings of fact proposed by the parties have not been incorporated into this Recommended Order the proposed findings are rejected. The most frequent basis

for rejection of proposed findings in this case is that many of such proposed findings are "subordinate, cumulative, immaterial or unnecessary." See Wong v. Career Service Commission, 371 So. 2d 530, 531 (Fla. 1st DCA 1979). Proposed findings to the effect that the proposed seaplane base does not comply with the statutory and rule requirements for site approval are contrary to the greater weight of the evidence.

INTRODUCTION

This case arises from the petition of the Venetian Shores Homeowners Association (hereinafter "the Association") in opposition to the issuance of Site Approval Order No. 83-34 by the Department of Transportation (hereinafter "the Department" or "DOT"). Site Approval Order No. 83-34 relates to an application for a private seaplane base to be known as Plantation Keys seaplane base. The applicant for the seaplane base is Mr. Henry C. Ruzakowski.

Membership in the association is comprised of residents in the development adjacent to the proposed location of the seaplane base.

ISSUES

Under the standards established by Section 330.30, Florida Statutes, and Rule Chapter 14-60.05, Florida Administrative Code, the issues presented for resolution are:

1. Whether the site is adequate for the proposed private seaplane base.

   
   

2. Whether the proposed seaplane base will conform to minimum standards of safety.

   
   

3. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.

BACKGROUND

In 1976 Respondent Ruzakowski applied for a similar seaplane license. That application was for permission to dock the plane at the applicant's waterfront home and to land and take off in Snake Creek, which is adjacent to Respondent's property and leads into Florida Bay. Site approval was granted by the Department and contested by the same Venetian Shores Homeowners Association.

The Department modified the hearing officer's findings of fact regarding the landing and takeoff site in Snake Creek which the Property Owner's Association then successfully appealed, as reported in Venetian Shores Home and Property Owners v. Ruzakowski 336 So. 2d 399 (Fla. 3d DCA 1976). In 1981, at the instigation of the Association, the Department obtained a circuit court injunction against Mr. Ruzakowski from operating his airplane from his home without first obtaining a license from the Department. In the instant case Mr. Ruzakowski has again applied to the Department for a private seaplane base. The proposed location of the landing and takeoff area in the instant application is different from that which was proposed in the 1976 application.

FINDINGS OF FACT

Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted in evidence at the hearing, I make the following findings of fact.

1. On August 24, 1983, Mr. Ruzakowski of 159 San Remo Drive, Venetian Shores Subdivision, Islamorada, Florida, filed an application with attachments with the Department for a private seaplane base license. The application of the proposed private seaplane base to be known as Plantation Key seaplane base proposes that landing and taking off would be in the open water area known as Florida Bay or Cotton Key Basin and that the seaplane would be parked on a ramp at the applicant's home. In order to reach the applicant's waterfront home, the application proposes a taxi route along Snake Creek which connects Florida Bay to the applicant's home.

   
   

2. The application had attached to it a letter of zoning approval from the Building and Zoning Department of Monroe County signed by Mr. Joseph E. Bizjak, Assistant Building Official, which letter stated that the ramp on the applicant's property ". . . has never been and is not now in violation of any Monroe County zoning codes." The Department of Transportation has never been notified by the Monroe County Zoning and Building Department of any withdrawal of this zoning approval. Also attached to the application was a letter from Robert Billingsley supervisor of the program development section of the Federal Aviation Administration which stated that the FAA airspace approval for applicant's seaplane was still current and in effect.

   
   

3. Mr. Ruzakowski's 1976 application for a seaplane base proposed using Snake Creek as a take-off and landing area. The instant application only proposes to use Snake Creek as a taxi area to and from Mr. Ruzakowski's residence (where he proposes to park the airplane) and the take-off and landing area in Florida Bay. The distance from Mr. Ruzakowski's residence to the take- off and landing area is approximately one mile.

   
   

4. Upon receipt by DOT of Mr. Ruzakowski's 1983 application, an on-site feasibility inspection of the site was made by Mr. Steve Gordon of the DOT's Sixth District in Miami, Florida. Mr. Gordon, a District Aviation Engineer, has extensive experience as an airplane pilot and as an airport site inspector. Mr. Gordon conducted an adequate on-site inspection and concluded that the proposed seaplane base appeared to be in compliance with the applicable statutory and rule provisions. Specifically, Mr. Gordon concluded that the take-off and landing operations would be away from the area of the homes in the development, that the ramp on Mr. Ruzakowski's property was adequate for safe approach upon his lot, that his lot was a safe place to park his seaplane, that Snake Creek was wide enough for taxiing the airplane, that the take-off and landing area contained no obstructions or hazards, and that there was no hazard to other airports in the area. Following the inspection, Mr. Gordon wrote to Mr. Ruzakowski and to the DOT officials and advised them that the proposed site was feasible for a private seaplane base under the applicable licensing requirements.

   
   

5. Thereafter, the DOT sent notice to approximately 200 addressees advising them of the proposed private seaplane base application, the inspection results, the DOT's intent to issue site approval and advising of a public meeting on the matter. The notice was also published in The Florida Keys Keynoter newspaper on October 13, 1983. Among the addressees notified by mail were adjacent property owners, the Monroe County Building and Zoning Department, the Monroe County Board of County Commissioners, and the FAA. The Marine Patrol and the Coast Guard were also notified of the public hearing. Neither the

   Monroe County Board of County Commissioners nor the Monroe County Building and Zoning Department sent a representative to attend the public hearing. Following the public hearing and consideration of all of the objections stated at the public hearing, Mr. Gordon recommended that site approval be granted for the proposed seaplane base.

   
   

6. There are other licensed seaplane bases in Florida in which the take- off and landing areas are in open water such as bays and in which seaplanes using the base taxi to and from the parking area in channels used by boats.

   
   

7. The airplane owned by Mr. Ruzakowski which he proposes to use at the subject seaplane base is a modified Republic Seabee. The modifications include modifications which make the airplane more maneuverable, quieter, and dependable. When taxiing on the water the pilot of the Seabee has excellent visibility of everything from very close to the airplane to infinity. The airplane is very maneuverable on the water, due in part to the fact that it has both water and air rudders. The airplane can be stopped very quickly on the water because the direction of the propeller thrust can be reversed. The propeller reversal also makes it possible for the airplane to back up while on the water. The airplane can taxi on the water as slowly as 5 miles per hour. Once it reaches the take-off area, the actual take-off run lasts only about 18 or 20 seconds. The airplane is approximately 40 feet wide from wingtip to wingtip. The tip of the airplane propeller is at least four feet above the water. As a result of the excellent visibility from the airplane and the high degree of maneuverability of the airplane, it is easy for the pilot of the airplane to observe and avoid any boats or other objects in the vicinity of the airplane. While operating on the water the airplane is subject to the same navigation rules which apply to boats and ships.

   
   

8. The applicant, Mr. Ruzakowski is a 73 year old retired airline pilot. He has between 20,000 and 22,000 hours of flying experience, approximately 75 percent of which was as pilot in command. He has flown a large number of different types of airplanes, including land based airplanes, seaplanes, and amphibians. He has had extensive experience in both single- engine and multi- engine aircraft. In 54 years of flying he has never had an accident. Safety is the main factor in all of his flying. Mr. Ruzakowski is an FAA consultant engineer and does all of the maintenance and repairs on his own airplane. He has invented an improved control system for the Republic Seabee aircraft and has received FAA approval for his invention to he installed on other Republic Seabees. Mr. Ruzakowski appears to be in excellent physical and mental condition; at the hearing he appeared to be strong, agile, and alert. These appearances are confirmed by the fact that he currently holds a valid FAA pilot's license and medical certificate. He has never been denied an FAA medical certificate. His vision is excellent and is perhaps getting better because several years ago his FAA medical certificate required him to keep reading glasses in the aircraft, but his current medical certificate contains no such restriction.

   
   

9. Snake Creek is used by a variety of large and small commercial and pleasure boats. The volume of boat traffic varies from day to day and also by time of day. At times there are also swimmers and divers in Snake Creek and in the designated take-off and landing area. However, none of the boat traffic is incompatible with the operation of the applicant's airplane because the visibility from the airplane and the maneuverability of the airplane are such that the pilot of the airplane has as much or more ability to avoid or prevent a collision as does the operator of any of the boats and ships using the waterway.

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. (See, generally, Section 120.57, Florida Statutes.)

    
    

11. Section 330.30, Florida Statutes (1984 Supp.) reads as follows in pertinent part:

    
    

    1. Except as provided in subsection (4), the owner or lessee of any proposed airport shall, prior to the acquisition of the site or prior to the construction or establishment of the proposed airport, obtain approval of the airport site from the department. Application for site approval and an original license shall be jointly made on a form prescribed by the department and shall be accompanied by a site approval fee of

       $100.00. The department, after inspection of the airport site, shall grant site approval 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 will comply with any applicable county and municipal zoning requirements;

       3. That all nearby airports, municipalities, and property owners have been notified and that any comments submitted by them have been given adequate consideration; and

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

          
          

12. Section 14-60.06(1), Florida Administrative Code, provides:

    
    

    1. The licensing of airports is not a mere ministerial duty. The following must be ascertained prior to site approval and actual licensing of a new airport:

       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.

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

13. Section 14-60.07, Florida Administrative Code, establishes the following minimum relevant airport standards:

    
    

    EFFECTIVE	PRIMARY	USABLE
    LANDING LENGTH	SURFACE WIDTH	WIDTH

    
    

    PRIVATE 1,800 Feet 100 Feet 50 Feet and provides in part:

    (3) The effective landing length of a runway shall commence at 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 centerline 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, . . . .

    * * *

    (8)(h) No seaplane base shall be approved which requires aircraft to operate in close proximity to a bridge, public beach, powerline, boat dock or other area which would constitute a danger to persons or property.

    * * *

    (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.

    
    

14. Section 14-60.05(3), Florida Administrative Code, provides in part:

    
    

    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.

    4. 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.

    
    

15. Section 14-60.04, Florida Administrative Code, Notice of Intent, provides in part:

    
    

    A notice of intent shall state the name of the applicant . . . ; . . . . location of the airport . . . ; . . . type of license applied for; . . . earliest date on which the site approval may be issued . . . owners of property within 1,000 feet will be mailed notifications of the proposed airport.

    Interested persons may submit comments within

    20 days of such notification . . . comments will be considered by the division (Public Transportation Operations) prior to final action on the request.

    A public "meeting" may be conducted by the Department prior to the issuance of an airport site approval order . . . .

    
    

16. Section 330.30, Florida Statutes, and Rule 14-60.05, Florida Administrative Code, require that a proposed airport site be "adequate." This standard is met by the applicant's existing site. This standard does not require an airport site to be ideal or perfectly suited for the intended purpose. It only requires that it be "adequate," and the adequacy of the proposed airport is determined with regard to whether it will meet the minimum airport standards established by statute and rule. The proposed airport site in this case meets all of the statutory and regulatory requirements. There is no competent substantial evidence that aircraft operations at the proposed airport would create any safety hazards. Further, because the proposed airport is a private airport it will generate very little aircraft traffic. In this regard it should also be noted that the site approval order limits all operations to "VFR weather conditions." This limitation avoids any hazard which might arise from aircraft operations in poor visibility conditions.

    
    

17. Snake Creek is an intercoastal waterway within the public domain. The public has the right to the free use of all navigable or public waters. 78 Am. Jur. 2d Waters s. 86 et. seq. Navigable waters include all coastal and intercoastal waters of the state. 56 Fla. Jur. 2d Waters ss. 115, 120. Navigable waters are ". . . open to all persons for the business of floatage to which it is adapted, whatever the character of products, or the kind of floatage

    suited to their conditions," Bucki v. Cone, 6 So. 160 (Fla. 1889). The applicant is as equally entitled to travel upon Snake Creek in a seaplane as in a boat. All traffic is obliged to exercise care and caution in the care and use of such waterways. Seaplanes will have taxi use of Snake Creek regardless of the disposition of this case.

    
    

18. When one takes into account the nature of the existing boat traffic in Snake Creek, there is no rational basis for discriminating against seaplane taxi traffic in Snake Creek. The existing traffic certainly poses a greater hazard for potential collision than any collision hazard which would be caused by seaplane taxi traffic. The evidence clearly establishes that the applicant's aircraft is more maneuverable and can stop quicker than a great deal of the boat traffic currently using Snake Creek. Any aircraft using Snake Creek would also be safer than many of the boats because all aircraft must be operated by licensed pilots, whereas many boats may be operated by unlicensed, unskilled, incompetents. Aircraft are also subject to strict safety regulations which require annual inspection and certification to verify the aircraft's airworthiness.

    
    

19. The instant application is not barred by the doctrine of res judicata even though the applicant has previously had a similar application denied. Changed circumstances warrant a changed disposition. The principal change between the prior application and the current application is the change in the location of the take-off and landing area, which results in a change in the type of aircraft operations in Snake Creek. The earlier application provided for take-off and landing operations in Snake Creek which, of course, involves high speed operations. Under the current application all take-off and landing operations will be in Florida Bay and only low speed taxi operations will take place in Snake Creek.

    
    

20. With regard to the zoning issue, the application contained documentation evidencing local zoning approval by the appropriate Monroe County agency. The zoning documentation was dated less than a week prior to the date of the application. Under Monroe County Ordinance 19-294, a private airport district license may provide for limited service if authorized by the Monroe County Zoning Department. The Monroe County Zoning Department authorized the applicant's seaplane base by the issuance of its zoning approval letter (Dept. Exhibit #1- attached letter). As there is no physical development or construction involved in the instant application the zoning department does not consider the private seaplane base application to involve any "development" which would bring it under the County's "major development" criteria. Although aware of residents' objections, neither County officials nor the Venetian Shores Homeowners Association have made any efforts over the years to enact zoning provisions specifically prohibiting seaplane bases. Further, there is no persuasive evidence that Mr. Ruzakowski's ramp is in violation of the Monroe County RU-1 regulations; it was built in compliance with same and approved by the County at the time of construction.

    
    

21. Airspace approval determination for the proposed site was obtained from the FAA. The Department also determined that safe air traffic patterns can be worked out. The site of the proposed private seaplane base was personally inspected by a representative of the Department of Transportation and found to be adequate.

22. The proposed seaplane base, if operated subject to the conditions included in Site Approval Order No. 83-34, will conform to minimum standards of safety. Accordingly, applicant has satisfied all of the requirements for obtaining site approval for a private seaplane base.

RECOMMENDATION

Based on all of the foregoing it is recommended that the Department of Transportation issue a Final Order approving the issuance of Site Approval Order No. 83-34.

DONE and ORDERED this 15th day of May, 1985, at Tallahassee, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 15th day of May, 1985.

COPIES FURNISHED:

Joe Miklas Esquire Post Office Box 366

Islamorada, Florida 33036

James Baccus, Esquire Post Office Box 38-1086 Little River Station Miami, Florida 33138

Judy Rice, Esquire Department of Transportation Haydon Burns Building

605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064

Honorable Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street, MS-58 Tallahassee, Florida 32301-8064

Docket for Case No: 84-000692

Orders for Case No: 84-000692