STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURICE UCHITEL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7541

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above-styled case was held by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on June 22, 1992, at Tallahassee, Florida. At the suggestion of the parties, the hearing was held by telephonic conference call.

APPEARANCES

For Petitioner: Jeffrey J. Pardo, Esquire

8323 N.W. 12th Street Miami, FL 33126

For Respondent: Paul Sexton, Esquire

Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458 PRELIMINARY STATEMENT

This case arose from an application for site certification of an airport filed with the Department of Transportation by Robert Sarra. The application sought site approval of a private airport for ultralight aircraft, to be located in Lake County, pursuant to Section 330.30, Florida Statutes, and Chapter 14-60, Florida Administrative Code. A public hearing was held by the Department in Lake County, in accordance with Rule 14-60.005(8) and written comments were received by the Department. Site Approval Order No. 91-35 was issued October 3, 1991, subject to a request for a proceeding pursuant to Section 120.57, Florida Statutes. Maurice Uchitel, owner of adjoining land, filed a request for a hearing and this matter was referred to the Division of Administrative Hearings for hearing. Mr. Uchitel's concerns were that the airport would be a noisy nuisance and create a danger to his property because of the experimental nature of ultralight aircraft. The DOT and Mr. Uchitel jointly presented proposed findings of fact which were read and adopted.

FINDINGS OF FACT

1. Sworn testimony was presented on behalf of the Department by Bronson Monteith, an Aviation Specialist employed by the Department. Mr. Monteith testified as to the application process, the document received by the Department

   (DOT Exhibit No. 1) and his analysis and conclusions regarding the application. According to Mr. Monteith's testimony, the application was complete and met all Department requirements for issuance of site approval.

   
   

2. An application for site certification was filed with the Department on February 19, 1990 (DOT Exhibit No. 1, page 1). The application was revised to "ultralight private" on March 3, 1990 (DOT Exhibit No. 1, page 7). A landing area proposal was filed with the Federal Aviation Administration on February 19, 1990 by Mr. Sarra (DOT Exhibit No. 1, page 13). FAA approval of the application was issued April 10, 1990 and contained the following finding:

   
   

   the subject airport will not adversely affect the safe and efficient use of airspace by air craft provided the landing area is limited to private use.

   (DOT Exhibit No. 1, page 15)

   
   

   The FAA approval also stated:

   
   

   In making this determination, the FAA has considered matters such as the effects the proposal would have on existing or planned traffic patterns of neighboring airports or heliports, the effect 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 effect that existing or proposed manmade objects (on file with the FAA) and known natural objects within the affected areas would have on the airport proposal.

   (DOT Exhibit No. 1, page 15)

   
   

3. Conditional Use Permit No. 89/4/5/2 was issued for the construction and operation of an airport at the proposed site by the County Commission of Lake County on August 10, 1989 (DOT Exhibit No. 1, Page 20). The property in question is owned by Romar Agricultural Development Corporation, which is owned by Mr. Sarra (DOT Exhibit No. 1, page 26). The site was inspected and certified by Mr. Monteith as suitable for a private ultralight airpark site under Chapter 14-60 on August 21, 1990 (DOT Exhibit No. 1, page 30-33). Mr. Monteith conferred with the FAA and pilots at a nearby glider port and determined that the application should sign an agreement governing the operation of the proposed airport to ensure that safe air traffic patterns can be maintained (DOT Exhibit No. 1, page 34). The agreement was signed by the applicant (DOT Exhibit No. 1, page 36).

   
   

4. During the hearing, Mr. Uchitel's attorney proposed that an additional condition be placed on site approval: that the applicant indemnify nearby landowners for all injury and liability associated with the operation of the airport and post a bond or other guarantee to support the indemnification. The rationale for this condition was that ultralight aircraft were not as well- regulated as other aircraft and posed a particular danger to nearby landowners.

   
   

5. Mr. Uchitel's counsel expressed Mr. Uchitel's concern that the local zoning may have been obtained without due notice to him.

6. The FAA regulations for operation of ultralight aircraft were introduced. These regulations prohibit flight below 1500 feet except when landing and taking off.

   
   

7. The sketch accompanying the application reveals that the proposed airport will have a grass runway 500 feet wide and 1500 feet long, running north and south.

   
   

8. A diagram of the proposed airstrip shows that the first 500 feet of the north and south ends of the airport are for approaching the primary landing zone.

   
   

9. Ultralight aircraft landing at the airport would commence their descent flying parallel to the airstrip, make a 90 degree turn towards the airstrip at the end of the approach area, fly toward the airstrip centerline and execute another 90 degree turn towards the landing zone. Because of the flight characteristics of ultralights, their descent from their approach altitude of 1500 feet generally would be over the airport itself. The aircraft's flight over the property of adjoining property owners would be at the required minimum altitude of 1500 feet.

   
   

10. Although ultralight aircraft are licensed in a manner similar to experimental aircraft, and are not subject to all of the inspections which certified non-experimental aircraft must have, they are generally flown by their owner-builders, who want to avoid any accidents for obvious reasons. Further, these aircraft, as their classification indicates, are very light, kite like aircraft with light aluminum bracing. It is inconceivable that one would cause major damage to property on the ground if it did crash.

    
    

11. Power plants for these aircraft are typically small engines similar to those used in snow mobiles. Although they are noisy, they do not generate as much noise as standards aircraft engines. Flying at their assigned altitudes, they will not be a major source of noise for adjoining property owners.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. The criteria for site certification under Section 330.30(1)(a), Florida Statutes, and Rule 14-60.005, Florida Administrative Code are as follows:

    
    

    1. The site is adequate for the proposed airport;

       
       

    2. 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. Safe air traffic patterns can (and have been worked out for the proposed airport and all existing airports and approved airport sites in the vicinity.

       
       

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

       
       

14. The site is adequate for the proposed airport. The airport must conform to the minimum safety standards set forth in Department regulations. Local zoning authorities have approved the site for use as an airport. Safe air traffic patterns have been worked out for the proposed airport pursuant to an agreement between the applicant and another airport for gliders some miles away. The site has been inspected and certified as feasible. Appropriate notice of DOT's consideration of the application was issued to nearby landowners, airports and municipalities and a public hearing was held. The application filed in this case is complete and in compliance with the minimum requirements of the rules and statute. A site approval order was issued, which set forth the appropriate information and conditions as required by the rule.

    
    

15. The record does not support the imposition of any additional conditions on site approval. Persuasive evidence was presented that the airport meets all of the requirements of the Department's rules, which include safe operation. The FAA has approved the airport after specifically considering the safety of persons and property on the ground.

    
    

16. Mr. Uchitel's concern about proper notice of the proposed change in zoning is outside the scope of this hearing which is limited to issues addressed pursuant Section 330.30, Florida Statutes. Further, no competent evidence was presented to support the condition proposed by Mr. Uchitel that a bond be posted for potential damages. Such a condition is neither necessary nor authorized under the Department's rules or Section 330.30, Florida Statutes.

    
    

17. Accordingly, the application satisfies the provisions of Section 330.30(1)(a), Florida Statutes, and Rule 14-60.005, Florida Administrative Code, and a site approval permit should be issued for the airport, as proposed by the Department.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

That a Final Order be entered granting site approval for the proposed airport, under the terms and conditions provided in Site Approval Order No. 91- 36.

DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this day of July, 1992.

COPIES FURNISHED:

Ben G. Watts, Secretary ATTN: Eleanor F. Turner Department of Transportation

Haydon Burns Building, M.S.-58 605 Suwannee Street

Tallahassee, FL 32399-0458

Jeffrey J. Pardo, Esquire 8323 N.W. 12th Street Miami, FL 33126

Paul Sexton, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 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. 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: 91-007541

Orders for Case No: 91-007541