STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CANAVERAL, et al, )

)

Petitioners, )

)

vs. ) CASE NO. 91-4797

) DOWNTOWN HELIPORT CORPORATION, INC., ) and DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 9, 1991, in the City of Cape Canaveral, Florida.

APPEARANCES

For Petitioners: Edward Spenik, City Manager

City of Cape Canaveral

105 Polk Avenue

P.O. Box 326

Cape Canaveral, FL 32920

Norma E. Townsend

P.O. Box 883

Cape Canaveral, FL 32920-0883

For Respondents: Robert Uttal

Downtown Heliport Corporation, Inc.

P.O. Box 621148 Orlando, FL 32862-1148

Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street

Tallahassee, FL 32399-0458 STATEMENT OF THE ISSUES

The issue for determination is whether the Department of Transportation's (DOT) site approval number 91-17, to Downtown Heliport Corporation for a heliport at Port Canaveral, Florida, should become final agency action.

PRELIMINARY STATEMENT

In response to the issuance of the above-referenced site approval, several parties requested a formal hearing. Those parties included Joy C. Salamone,

Mayor, City of Cape Canaveral; Karen Andreas, Commissioner, District 2, Brevard County; and Norma E. Townsend, a citizen and resident of the City of Cape Canaveral.

Prior to the hearing, City of Cape Canaveral City Manager Edward Spenik sent a letter explaining that no city officials would be in attendance to present new data. Mr. Spenik appeared at the hearing but did not participate, and he stated that the city was satisfied with the conditions placed on the site approval.

No one, including Commissioner Andreas, appeared on behalf of Brevard County, and any objections by that party are deemed waived.

Ms. Townsend appeared and actively participated through cross-examination and her own testimony. Her exhibits #1-3 and 6-7 were received in evidence.

Exhibits #4 and 5 were marked for identification, but were rejected as irrelevant to the proceeding.

The Department of Transportation presented testimony of two witnesses and exhibits #1-9, all received in evidence without objection.

Downtown Heliport Corporation, Inc. presented the testimony of three witnesses and four exhibits, received without objection.

Each party filed post-hearing recommended orders or written argument. The findings of fact proposed by the Department of Transportation are substantially adopted herein.

The transcript of proceeding was filed in error at the Department of Transportation and was furnished to the Hearing Officer on November 11, 1991, by counsel for that agency.

FINDINGS OF FACT

1. The applicant for site approval is Downtown Heliport Corporation, Inc., a corporation with headquarters in Orlando, Florida, engaged in operating heliport facilities throughout Florida and other states. Its related company is Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is President of both companies.

   
   

2. On January 4, 1990, Downtown Heliport Corporation filed its application for site approval by the Department of Transportation (DOT), proposing to establish a .23 acre (10,000 square feet) helicopter pad within the jurisdictional territory of the Canaveral Port Authority.

   
   

   The Port Authority had already approved a land use permit and lease for the applicant on July 19, 1989 and November 14, 1989.

   
   

3. The Federal Aviation Authority (FAA) also gave its approval. In a letter dated January 10, 1991, addressed to McDonald Smith, Director of Operations, Downtown Heliport Corporation, the FAA granted approval of the subject heliport under the following conditions:

   
   

   1. All operations are conducted in VFR weather conditions.

      
      

   2. The landing area is limited to private use.

   3. All approach/departure route helicopter operations are conducted in an area from 090 degrees clockwise to 160 degrees and from 250

      degrees clockwise to 330 degrees using the touchdown pad as the center of a compass rose.

      
      

   4. The takeoff/landing area is appropriately marked.

      
      

   5. A nonobstructing wind indicator is maintained adjacent to the takeoff/landing area.

      
      

      The approval letter provides, in pertinent part:

      
      

      This determination does not mean FAA approval or disapproval of the physical development involved in the proposal nor is it based on any environmental or land-use compatibility issue. It is a determination with respect to the safe and efficient use of airspace by aircraft and

      with respect to the safety of persons and property on the ground.

      
      

      In making this determination, the FAA has considered matters such as the effect the proposal would have

      on existing or planned traffic patterns of neighboring airports or heliports, the effects it would have on the existing airspace structure and projects or programs of the FAA, the effects it would have on

      the safety of persons and property on the ground, and the effects that existing or proposed man-made objects (on file with the FAA) and known natural objects within the affected area would have on the heliport proposal.

      
      

      The FAA cannot prevent the construction of structures near a heliport. The heliport environs can only be protected through such means as local zoning ordinances or acquisitions of property rights.

      
      

      (DOT Exhibit #4)

      
      

4. On January 30, 1990, Bronson Monteith, DOT District Aviation Specialist, inspected the proposed site and found it feasible for the proposed use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C.

   
   

   More specifically, he reviewed the facility diagram provided by the applicant and determined that the size of the pad, the location of the pad and the air corridor were appropriate. He considered that the Port Canaveral and FAA approval established compliance with ground and air safety standards. He determined from his inspection that existing structures would not interfere with an 8:1 glide slope to and from the pad. Once cleared from the pad the helicopters will use an existing ships' channel as the flight path.

   
   

   Mr. Monteith considered the distance of the streets from the heliport and the objects around it, including trees, the parking area and any major buildings that would be occupied. There are no schools close to the site.

5. A Notice of Intent to issue a site approval for the proposed heliport was issued by the Department and advertised in an area newspaper; notices were sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public meeting, received comments and submitted a report to the DOT Aviation Bureau in Tallahassee recommending site approval. The heliport application, documentation and comments from the public meeting were reviewed by the Department's Licensing Coordinator and the Aviation Office Manager, and they determined that the application met all requirements under Chapter 330, Florida Statutes, and Chapter 14-60, F.A.C. for site approval.

   
   

6. Site approval order no. 91-17 imposes the following conditions:

   
   

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

      
      

   2. Operations are limited to private use.

      
      

   3. There are to be no flights over the City of Cape Canaveral.

      
      

   4. That the provisions in FAA Airspace Approval letter dated January 10, 1991, be complied with.

      
      

   5. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or relicensing.

      
      

      (DOT Exhibit #9)

      
      

7. Bulldog Airlines and Downtown Heliport Corporation intend to comply with, and enforce the conditions imposed by DOT.

   
   

   The flight path will be at 800 feet elevation along the corridor until the final approach for landing or takeoff, and that final approach will only be over the port itself. It will not include any flights over the Trident nuclear submarine or over storage tanks.

   
   

   The heliport will be private, primarily for the use of Bulldog Airlines, who flies for NASA, for the Port Authority, for various governmental agencies, including environmental monitoring agencies, and for other private hire. The heliport is open only to commercial pilots, will be used during daylight hours and only under conditions which allow for visual, noninstrument flying.

   
   

8. Bulldog Airlines commenced operation in 1985 and has never experienced an incident, accident, or any notice of violation from the FAA, DOT or local law enforcement agencies. Because of its safety record it is able to maintain $100 million liability insurance.

   
   

   McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with approximately 10,000 hours of flight time. He also inspected the site and is aware of existing structures. In his opinion the flight corridor is wide enough to fly a helicopter, even if it is necessary to avoid unforeseen obstacles.

   
   

9. Norma Townsend is a resident of the City of Cape Canaveral, approximately one-half mile south of the proposed site. She has attended the series of public meetings which preceded the DOT's proposed decision. She has

   amassed an impressive array of letters, maps, tapes and other documents related to the proposed site.

   
   

   She describes herself as a citizen and is neither a pilot nor trained in safety.

   
   

   Ms. Townsend is concerned about the existence of the nuclear submarine base, fuel storage tanks and other hazardous materials in the proximity of the proposed site. She feels that no amount of care by the pilots will insure that a helicopter in an emergency might not collide with an existing structure, with disastrous results. She has heard that used parts are sold for new, causing a helicopter to drop from the sky.

   
   

   She believes that ultra-light airplanes, low flying airplanes and weather balloons will provide extraordinary flying hazards in the Port Canaveral area.

   
   

   She suspects that no meaningful study was done by any agency prior to approving the site.

   
   

   Ms. Townsend presented no witnesses to substantiate these concerns and relies on her own common sense. In many instances this would be sufficient, but here the agency and applicant presented knowledgeable, competent expertise in support of a finding that the site is appropriate.

   
   

10. Anything is possible, but instances of helicopters dropping out of the sky are virtually unheard of. Pilots are conscious of ultra-light planes and other possible obstacles to flying. Even large birds are a hazard. Heliports are routinely sited near or on top of buildings, in downtown areas or other places where traffic and population are congested. Helicopters are highly maneuverable, and for that reason are relied on in providing transportation and observation in circumstances where planes or ground vehicles are prohibited, for example after a hurricane or after a fire or other calamity.

    
    

11. The substantial weight of evidence establishes that the proposed heliport at Port Canaveral can and will be safely operated.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.57(1), F.S.

    
    

13. Section 330.30(1)(a), F.S. gives DOT the responsibility to approve airport sites and license airports. Site approval is required if the department is satisfied:

    
    

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

    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;

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

    4. That safe air-traffic patterns can be worked out for the proposed airport and for all existing

       airports and approved airport sites in its vicinity. Section 330.30(1)(a), F.S.

14. DOT Rule 14-60.007(6), F.A.C. establishes minimum standards for helistops and heliports, in pertinent part:

    
    

    1. A minimum primary surface area shall be provided with length and width dimensions equal to at least 1.5 times the overall length of the largest helicopter intended to use the facility; however, a primary surface with 300 foot length

       and width or larger shall be accepted as sufficient to accommodate all helicopters.

    2. Centered within the primary surface shall be a minimum touchdown area with length and width dimensions equal to the rotor diameter of the largest helicopter intended to use the facility, however, a touchdown

       area with 100 foot length and width dimensions or larger centered within a 200 foot primary surface, shall be sufficient to accommodate all helicopters. Smaller touchdown area, not less than 20 feet in diameter, may be approved for heliports/helistops located on man-made structures.

    3. There shall be a minimum of two (one for limited or emergency helistops) 500 foot wide approach/departure corridors with floor and side planes as follows: the floor plane shall provide an 8:1 obstruction clearance and shall coincide in width with the required primary surface width at the boundary and proceed outward, flaring

       horizontally at a 10:1 rate on both sides until it reaches 500 feet wide. Where the floor plane is less than 500 feet wide, the side planes extending

       out from the floor plane or the primary surface shall provide a 2:1 obstruction clearance out to the required 500 foot corridor width. The two approach/departure corridors shall be at least 90 degrees apart in direction. Curved approach/departure corridors with a minimum radius of 700 feet are permissible but the curved path shall not commence closer than 300 feet from the primary surface.

    4. There shall be markings consisting of any FAA approved design and shall include touchdown area border lines whose dimensions coincide with and, therefore, indicate the rotor diameter of the largest helicopter intended to use the facility. When the load bearing capacity of the touchdown area located on a structure is limited to less than 20,000 pounds per landing gear, a number shall be displayed in the center of the touchdown area indicating the maximum allowable gross weight of a landing helicopter in thousands of pounds.

    5. A wind indicator shall be located so as to be clearly visible to landing helicopters but not within

       the primary surface and not a hazard to flight.

    6. Fire protection of at least two 30 pound dry chemical extinguishers (foam compatible) or equivalent (not required for limited or emergency helistops) shall be available. In addition, public heliports/helistops shall provide an effective safety barrier to protect the public from entering the primary surface and when the public heliport/helistop is located on top of a building, egress shall be provided at two separate locations.

       
       

15. DOT's Rule 14-60.005(8)(b), F.A.C. requires that notice of the agency's intent to approve an airport site be published in a newspaper of general circulation in the county in which the proposed site is located and also that the notice be sent by certified mail to airports and municipalities within

15 miles and property owners within 1,000 feet of the proposed site.

That Ms. Townsend does not own property within 1,000 feet does not prohibit her participation in the public hearing or this administrative proceeding. The case cited by agency counsel for Ms. Townsend's lack of standing, Peterson v.

Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA 1980), relates to Section 380.06, F.S., regarding binding letters informing developers whether a proposed project is a development of regional impact (DRI). The legislative scheme is substantially different there; only the agency and a developer participate in issuance of a binding letter. In contrast, the statute and rules governing airport site approval invite public participation.

Ms. Townsend did not, however, prove that she would be substantially affected by the site approval. Her concerns were largely speculative and unsubstantiated.

The Downtown Heliport Corporation presented competent evidence that its facility will meet the requirements of Section 330.30, F.S. and Rule 14-60.007, F.A.C.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED:

That the agency enter its final order finding that site approval order no.

91-17 is valid and appropriate.

DONE AND RECOMMENDED this 18th day of December, 1991, in Tallahassee, Leon County, Florida.

MARY CLARK

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 18th day of December, 1991.

Copies furnished:

Robert R. Uttal

Downtown Heliport Corporation, Inc.

P.O. Box 621148 Orlando, FL 32862-1148

Joy C. Salamone, Mayor City of Cape Canaveral

P.O. Box 326

Cape Canaveral, FL 32920

Karen S. Andreas, Commissioner

Brevard County Board of County Commissioners 900 E. Merritt Island Cswy.

Merritt Island, FL 32952

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

605 Suwannee Street

Tallahassee, FL 32399-0450

Norma E. Townsend

P.O. Box 883

Cape Canaveral, FL 32920-0883

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. 58 Dept. of Transportation

Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams General Counsel

Dept. of Transportation Haydon Burns Building 605 Suwannee Street

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to 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: 91-004797

Orders for Case No: 91-004797