The Issue The issue is whether certain revisions to the City of Venice's (City's) Comprehensive Plan (Plan) adopted by Ordinance No. 2012-15 on August 14, 2012, are in compliance.
Findings Of Fact The Parties The City is a municipality located in Sarasota County. The City adopted the challenged amendments under the expedited state review process codified in section 163.3184(3), Florida Statutes. Petitioner owns property and resides at 340 Shore Road, Venice. She submitted oral or written comments to the City at the transmittal hearing for the plan amendments. VGA is a for-profit corporation which operates a 27- hole golf course adjacent to the Airport on land leased from the City. Through its counsel, VGA submitted comments in support of the amendments at the various public hearings. The Airport All of Petitioner's concerns center around the Airport. The property was previously owned by the federal government for use as an airfield during World War II. The City acquired the Airport property from the federal government in 1947 through a Quit Claim Deed. The Airport is located 1.7 miles south of the downtown area and is bounded on the southeast by the Intracoastal Waterway, on the west by the Gulf of Mexico, and on the north by residential development. There are two active runways: 13/31, the primary runway with a northwest/southeast alignment, and 04/22, with a northeast/southwest alignment. Petitioner's property is located in the Gulf Shores subdivision, part of which lies in the path of aircraft landing on, and taking off from, runway 13/31. The Airport property comprises 835 acres, most of which are used for aviation purposes. One of the non-aviation uses is the Lake Venice Golf Course, which is leased to VGA. The Amendments Ordinance No. 2012-15 adopts amendments to three elements of the City Plan: the Transportation Element; the Capital Improvements Element (CIE); and the Parks and Public Space Element (PPSE). Among other things, the Transportation Element contains the objectives and policies that govern the operations and facilities of the Airport. Petitioner disputes only the following changes to the Transportation Element: revisions to Objective 4, the deletion of former Policies 4.1, 4.4, and 4.7, and revisions to renumbered Policy 4.2. Objective 4 has been revised to read as follows: Airport Operations and Facilities. Operate and Mmaintain the Venice Municipal Airport as a general aviation facility in accordance with FAA and FDOT standards and requirements. Former Policies 4.1, 4.4., and 4.7 were deleted by Plan Amendment 11-2CP as follows: Policy 4.1 Airport Safety. Continually inspect airport infrastructure for operational safety. Review and update safety procedures for airport operations in order to address current and future needs and demands. As conditions change with the airport and surrounding community determine the needs for system improvements. 4.4 Involuntary Property Condemnation Related to Airport Activities. As a policy, the City will not condemn property adjacent or proximate to the airport for airport- related activities if such condemnation would force the property owner to surrender his/her property involuntarily. Such policy shall not be in conflict with the provisions of Chapter 333.03, F.S. 4.7 Airport Economic Sustainability. Promote the economic sustainability of the airport by identifying business opportunities which are compatible with surrounding neighborhoods. Such efforts should be coordinated with the City's planning efforts including: A. Venice Municipal Airport Master Plan, B. Envision Venice: Strategic Plan 2020. Former Policy 4.5 was renumbered and revised as Policy 4.2 as follows: Policy 4.52 Airport Area Land Use Compatibility. Until compatibility criteria are adopted pursuant to Policy 4.1 of this element, As part of the site and development review process, the City shall consider the compatibility of the airport and surrounding land uses. in accordance with Policy 8.2 of the Future Land Use & Design Element. Issues to be considered when evaluating compatibility include health and safety, noise, natural habitat, wetlands, character of the City and neighborhoods, natural environment, property values, views, traffic and odor. Finally, although not challenged by Petitioner, the amendments deleted PPSE Policy 1.9, which affects the Lake Venice Golf Course. Procedural Issues The transmittal hearing for the proposed amendments was conducted by the City Council on April 24, 2012. The amendments were adopted by the City Council at a public hearing held on August 14, 2012. Petitioner contends the published notices for the transmittal and adoption hearings did not comply with state law. The published notice for the first hearing states that the proposed amendments will "include New, Revised and/or Updated Goals, Objectives and Policies in the [Transportation Element], [PPSE], and [CIE]." Petitioner's Ex. 24. It further states that the text amendments "are intended to accomplish the following: 1) revise policies to reflect current/practices/ processes; 2) amend/remove policies that conflict with state and federal regulations and guidelines; 3) facilitate a comprehensive plan amendment as previously agreed upon in former General Manager of Development Services September 9, 2010 letter to VASI [Venice Aviation Society, Inc.] and VABA [Venice Airport Business Association]." Id. The published notice for the second hearing simply stated that the proposed ordinance is "amending the City's Comprehensive Plan, Volume I to include new, revised and/or updated goals, objectives and policies in the [Transportation Element], [PPSE], & [CIE]; and providing an effective date." Petitioner's Ex. 35. Each notice also includes a citywide map. The applicable notice requirements are contained in section 166.041, which are made applicable to notices regarding comprehensive plan amendments through section 163.3184(11)(a). The only statutory notice required is by publication; no direct notice is required to be given to anyone. See § 166.041(3), Fla. Stat. Therefore, Petitioner's objection that separate notice was not given to residents in the Airport area, the president of her subdivision, or the West Coast Inland Navigational District is not well taken.2 Under section 166.041(3), the notice must "contain a geographic location map which clearly indicates the area covered by the ordinance. Such notice shall include major street names as a means of identification of the general areas." There is no requirement for an airport to be depicted on a notice's map. The notice statutes do not require the inclusion of the proposed text changes or their summaries. There is also no statutory requirement that each discrete policy change receive separate treatment in the notice. A single notice can provide notice of multiple proposed text changes, provided that its breadth covers the range of changes. Petitioner's expert, Brian Lichterman, addressed the notice issue but did not offer opinions on the substantive compliance issues. Mr. Lichterman opined that the published notices should have included information that specifically described the plan amendments or provided a more detailed map that depicted the Airport and surrounding lands. He also opined that the notices should have included a telephone number so that a reader could have called the City to inquire about the scope of the amendments. Mr. Lichterman further opined that the published notice for the transmittal hearing should have spelled out the acronyms "VASI" and "VABA" because some readers may not be aware of which organizations they are. Had the notices included their full spellings, he believed that readers would be placed on notice that the amendments would address Airport issues. Finally, he was especially concerned with the deletion of Policy 4.4, which relates to the City's inverse condemnation authority of "property adjacent to or proximate to the airport." Mr. Lichterman acknowledged that there is no requirement in chapter 163 to describe the amendments in the notices or to provide a telephone number. When asked how far from the Airport the notice maps should depict the affected properties, he admitted that the delineation would be subjective and suggested a radius of one mile from the Airport. Testimony by the City established that the amendments could be of interest to persons outside the vicinity of the Airport. Persons who live throughout the City use the Airport's aviation facilities and golf course. Most of the amendments address Airport safety and operations. Aircraft owners, pilots, and passengers are interested in Airport safety and operations. Also, the deletion of PPSE Policy 1.9 could be of interest to golfers who live beyond the vicinity of the Airport. Given the range of Airport related issues in the amendments, as well as the golf course referenced in PPSE Policy 1.9, it is reasonable for the notice maps to depict the entire municipality. Petitioner did not testify at the final hearing. Therefore, the record does not show whether she was confused about any aspects of the notices. Regardless of whether there was an error in either of the notices, Petitioner did not demonstrate how they caused her prejudice. She attended the transmittal hearing and participated, enabling her to gain standing as an affected person under section 163.3184(1)(a). She also timely filed her petition to initiate this proceeding within 30 days after the adoption hearing. During the final hearing, Petitioner submitted into evidence documents from City records related to the amendments, and she did not demonstrate that she was unable to obtain copies of any relevant documents. In her Statement, Petitioner also raised a concern that the transmittal public hearing was not properly conducted. She took issue with the time of day that the City Council considered the amendments. Each of the two notices stated that the public hearing would begin "at 9:00 a.m. or shortly thereafter." Petitioner contended that the City should have started at or shortly after 9:00 a.m., not later in the day. She also contended that the City should have strictly followed the agenda, and not take items out of order. Testimony by the City established that it is not uncommon for a City Council's agenda to include many items or for agenda items to be moved during the course of the hearing, resulting in a noticed item commencing later than the timeframe stated in the notice. There is no evidence that this practice is prohibited, or that DOAH or the Department of Economic Opportunity (DEO) has jurisdiction over the local governing body's conduct of its public hearings. Compatibility Section 163.3177(6)(b)2.d. requires the Transportation Element to address "land use compatibility around airports." Revised and renumbered Policy 4.2 (formerly Policy 4.5) is intended to satisfy this requirement. Petitioner contends that unless former Policy 4.5 is retained in the Plan, her property will not be protected against incursions by Airport operations. The revisions include the deletion of a list of compatibility criteria for consideration and a substituted reference to Future Land Use & Design Element Policy 8.2, which addresses land use compatibility throughout the City. The former version of Policy 4.2 addressed compatibility of the Airport and surrounding uses but provided less detail for evaluating compatibility between the Airport and surrounding land uses than is provided in Policy 8.2. The different compatibility criteria in the two policies also created confusion as to which set of criteria to apply to land use decisions in the vicinity of the Airport. Revised Policy 4.2 resolves this conflict by incorporating by reference the compatibility criteria in Policy 8.2. The new compatibility criteria satisfy the statutory requirement that the City address "land use compatibility around airports." Data and Analysis Petitioner also alleges that the amendments are not supported by relevant and appropriate data and analysis. See § 163.3177(1)(f), Fla. Stat. The Plan is not required to address airport operations, as they are regulated by the Federal Aviation Administration (FAA) and the Florida Department of Transportation (FDOT). Although the City takes the position that the deletion of discretionary planning policies requires little, if any, supporting data and analysis, it compiled data and analysis regarding all of the plan amendments. Additional data and analysis were submitted at the final hearing. The City submitted various documents to the DEO with the transmittal package. See City Ex. 15. They include an underline-strike-through format of the proposed changes, each of which is accompanied by an explanation for the revision or deletion; a memorandum from the City Planning Director to the City Council; a license issued by the FDOT; two memoranda from its outside counsel; a 1947 Quit Claim Deed from the federal government to the City which transfers rights to the Airport's real property; Terms and Conditions of Accepting Airport Improvement Program Grants (Grant Assurances); a letter from the FDOT planner, Sergey Kireyev, dated September 29, 2009; the Department of Community Affairs (DCA's) Objections, Comments, and Recommendations (ORC) report; and a lease between the City and the VGA. The FDOT letter and the ORC report contain the agencies' reviews of Evaluation and Appraisal Report based amendments, including Airport issues, before their adoption in 2010. At the hearing, an FDOT letter dated June 4, 2012, from Mr. Kireyev, which addressed the amendments, was received in evidence. See City Ex. 5. Throughout the amendment process, the Airport Administrator coordinated with Mr. Kireyev to ensure that FDOT's concerns were addressed. The letter confirms that these concerns were satisfied. The revisions to Objective 4 are supported by the Airport's FDOT license and the Grant Assurances. The license and the Grant Assurances section entitled "Operations and Maintenance" demonstrate that the Airport must operate in accordance with FDOT, as well as the FAA. The deletion of Policy 4.1, entitled "Airport Safety," is supported by data and analysis. Requirements for the Airport to operate safely are included in the FDOT license, the Quit Claim Deed, and the Grant Assurances. The FDOT license and the Grant Assurances demonstrate that the Airport is subject to various requirements to operate safely, which are not mandated in chapter 163. The deletion of this policy will have no adverse impact on airport safety. The deletion of Policy 4.4 was suggested by FDOT in order to preserve the City's ability to protect aerial approaches to the Airport through its eminent domain powers under chapter 333. Among its various authorizations, section 333.12 grants the City the power to acquire land through eminent domain for airport approach protection. The Grant Assurances require the Airport to operate safely and support deletion of the policy, which limited the City's ability to address safety issues. The two FDOT letters reiterate that the City should not surrender its eminent domain powers and also support a safety basis for the policy's deletion. The deletion of Policy 4.4 will have no negative impact on airport safety and may enhance safety because it removes an obstruction to one of the City's methods of protecting airport approaches. The deletion of Policy 4.7, titled "Airport Economic Sustainability," is supported by data and analysis. Its requirement to promote airport business opportunities with surrounding neighborhoods is inconsistent with the Grant Assurances, which do not require airport businesses to be compatible with surrounding neighborhoods. Sections 22 and 24 of the Grant Assurances require the Airport to be accessible to all types of aeronautical opportunities and to be financially self-secure as possible. Retention of this policy could lead to results that conflict with the Grant Assurances, such as the example of a proposed helicopter training facility to which neighbors may raise objections under this policy on the basis of noise. During the final hearing, Petitioner expressed concerns about the Airport Layout Plan (ALP) and the accuracy of its depictions of the Airport's Runway Protection Zones (RPZs).3 The ALP was most recently updated and approved in 2011. The ALP approved in 2000 contained an error in its graphic depiction of the RPZ in the northwest corner of the Airport, but the current ALP accurately depicts all four of the RPZs. The ALP was not part of the data and analysis submitted by the City to DEO, and Petitioner failed to demonstrate its relevance to the plan amendments, especially in light of the expert testimony of the Airport Administrator that the RPZs are correctly shown. Internal Consistency In her unilateral Statement, Petitioner alleges that the amendments are inconsistent with the Housing and Neighborhood Development Element. That element is contained in the Plan's Land Use and Development Chapter, which includes the Future Land Use & Design Element. Neither her Statement nor her Amended Petition identifies any specific goal, objective, or policy with which she alleges an inconsistency. During the hearing, Petitioner asked the City Planner, Mr. Minor, about Future Land Use & Design Policy 1.11, which is entitled "Neighborhood Character Preservation." Mr. Minor testified that there is no conflict. This was not refuted. She also asked Mr. Minor about Future Land Use & Design Policy 8.2, which is entitled "Land Use Compatibility Review Procedures." Mr. Minor opined that the plan amendments do not conflict with that policy. This testimony was not refuted. Other Issues Throughout this proceeding, Petitioner has expressed concerns about a wide range of matters related to the Airport, such as the expansion of the RPZs into her neighborhood when the ALP was adopted in 2011, alleged errors in the ALP when it was approved by the FAA, inconsistencies between the Plan and the ALP and Airport Master Plan, and her belief that at some point in the future the City intends to use its eminent domain powers to condemn her property and other homes in Gulf Shores for expansion of the Airport. No judgment one way or the other is made on the merits of these claims because none of these issues are within the scope of this proceeding. I. Summary Petitioner failed to establish beyond fair debate that the challenged plan amendments are not in compliance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Economic Opportunity enter a Final Order determining that Plan Amendment 11-2CP adopted by Ordinance No. 2012-15 on August 14, 2012, is in compliance. DONE AND ENTERED this 1st day of July, 2013, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2013.
Findings Of Fact The following findings are based upon the stipulation of the parties filed on July 25, 1986: The Sarasota-Manatee Airport Authority (Authority) was created by the Sarasota-Manatee Airport Authority Act, Chapter 31263, Laws of Florida (1955), as amended by Chapter 77-651, Laws of Florida. The members of the Authority are elected--by the voters of Manatee and Sarasota Counties. Two members are from Manatee County and two members are from Sarasota County. The Authority owns and operates the "Sarasota-Bradenton Airport" on approximately 1,095 acres of land, portions of which are located within the jurisdictions of the City of Sarasota, Manatee County, and Sarasota County. The Sarasota-Bradenton Airport has been in its present location since 1941. Jet service was initiated in the 1960's. The Authority has proposed what was agreed to be a development of regional impact on a portion of its property. The project includes replacement of existing terminal buildings, automobile parking facilities, rental car agency service facilities, air freight facilities, the relocation of the airport entrance and exit roadways, the placement (sic) of the internal roadway network and construction of a new aircraft parking apron. No runway construction or expansion is proposed. The proposed project involves 173 acres. Improvements are proposed on 89 acres in Sarasota County, 72 acres within the corporate limits of the City of Sarasota, and 12 acres in Manatee County. The project is designed in two phases. Phase One involves demolition of existing structures and construction of new terminal facilities, including air sides A and B, construction of portions of the parking apron, the airport entrance, internal roadways, drainage and wastewater collection improvements on the airfield. Drainage improvements have been permitted and construction completed. Phase Two construction includes air side C and adjacent aircraft parking apron, relocation of the air freight facility, and development of non- aviation commercial lease plots. The present terminal building consists of approximately 83,700 square feet of space (including canopies and land area), about 900 parking spaces and an 18 acre aircraft apron. Since July 1, 1973, several additions to the terminal have been constructed. These include: 1978--Eastern baggage claim (5,250 square feet); 1979--Wood terminal (15,840 square feet); 1983--Peoples Express Departure Lounge (1,800 square feet); 1983--Commuter terminal (6,000 square feet); and 1984--Main terminal renovations (2,150 square feet). In Binding Letters of Interpretation Nos. 874-046, 874-030 and 975-030, the Department of Community Affairs determined that the construction of a parking lot, the strengthening of existing runways, the extension of taxiways, the addition of blast pads and the construction of a service road in and of themselves were not subject to the provisions of Chapter 380, Florida Statutes. The replacement terminal building will be 200,000 square feet with 1,200 parking spaces and 12 air carrier gates. The airport property zoning in the Manatee County area is "M-1-LI". The property is not zoned in Sarasota County or in the City of Sarasota. In early 1985, the Authority submitted an Application for Development Approval (ADA) to each local government having jurisdiction pursuant to Section 380.06(6), Florida Statutes, which local governments included Manatee County, the City of Sarasota and Sarasota County. In addition, the Authority submitted an application for a "special permit" (5P 85-80) to Manatee County pursuant to the Manatee County Land Development Code. By pre-application agreement, the ADA was limited to questions about general project description, wastewater management, drainage, water supply, solid waste and specific information about public transportation facilities and airports. Copies of the ADA were sent to all appropriate parties. The City of Sarasota and Sarasota County did, after publication and notice, hold joint public hearings on July 24, 1985, (Sarasota Planning Commission/City of Sarasota Planning Board) and September 12, 1985, (City of Sarasota Commission and Sarasota Board of County Commissioners). Pursuant to the requirements of Chapter 380, Florida Statutes, and the Manatee County Land Development Code, public hearings were held on September 11, October 2, 9 and 11, 1985, before the Manatee County Planning Commission and on October 13 and 17, 1985, before the Board of County Commissioners of Manatee County. The Southwest Florida Regional Planning Council, on July 18, 1985, adopted its "Assessment for the Sarasota-Bradenton Airport" DRI #28485-52 which constituted its Regional Report and Recommendations. The Tampa Bay Regional Planning Council met August 12, 1985, and adopted its Final Report and Recommendations for "DRI #124," Agenda Item #6B. The City of Sarasota and Sarasota County issued timely development orders approving the ADA with conditions. The Department of Community Affairs appealed those Orders regarding traffic impact mitigation required in the Orders. The appeal of the Orders by the Department of Community Affairs has been settled and dismissed. The Manatee County Board of County Commissioners denied both the "special permit" and also the Application of Development Approval. The following findings of fact are based upon the evidence presented, after considering the credibility and demeanor of witnesses who testified, as well as stipulations entered after the hearing commenced: The Authority and Southwest Florida Planning Council (SWFRPC) timely appealed Manatee County's denials of the "special permit" and ADA. On November 19, 1984, the Department of Community Affairs (Department) issued Binding Letter of Interpretation No. 984-035, which evaluated Phase One of the proposed airport expansion and concluded that Phase One was a development of regional impact. In its binding letter, the Department found that Phase One would allow an increase in the number of flights, and would thus impact on noise levels near the airport. Further, it was found that "potentially this project will have a substantial impact on noise levels within residential areas located in both Manatee and Sarasota Counties." Binding Letter of Interpretation No. 984-035 was not appealed and remains the Department's final agency action. The Department's Binding Letter of Interpretation No. 984-035 did not determine the extent of regional noise impact that would result from Phase One, nor did it determine or recommend noise mitigation conditions that might be imposed upon the proposed airport expansion at the conclusion of the development of regional impact process. An increase or decrease in airport operations is primarily a function of market demand and airfield capacity. Allen K. Eckle, who was accepted as an expert in civil engineering with expertise in airport planning, noise and transportation, testified that terminal improvements and an expansion of the airport terminal could potentially increase airport noise by increasing market demand, but such an increase resulting solely from terminal improvements or expansion would be imperceptible and unquantifiable. While market demand will be primarily responsible for a projected increase in aircraft volume of as much as 20 percent over the next five years, the portion of this increased volume attributable to this terminal project has not been established, and therefore it cannot be determined what, if any, increase in noise resulting from this increase in aircraft volume will be directly attributable to the terminal project. The terminal project will facilitate the use of the Sarasota-Bradenton Airport by larger, wide-body aircraft due to improved aircraft parking gate configuration, direct terminal access and larger departure lounge accommodations. The newer, larger, wide-body aircraft are quieter than smaller aircraft, and therefore the use of the airport by these larger aircraft will lower the average single event noise levels, and thereby lessen, and potentially eliminate, any increase in noise levels which would otherwise occur due to the projected increase in aircraft volume. Aircraft volume is projected to increase whether or not the terminal is replaced or improved. However, the terminal project will allow larger, quieter aircraft to use the airport and thereby have a positive impact on noise levels which would otherwise result from such increased volume. The Authority prepared an Airport Noise Control and Land Use Compatibility Study (ANCLUC), a document entitled "A Discussion of the Potential Noise Impacts Associated With the New Terminal Complex at the Sarasota-Bradenton Airport," as well as a Part 150 Study. A Part 150 Study evaluates noise impacts from airport operations by estimating areas of noise exposure expressed as 65 Ldn, 70 Ldn and 75 Ldn. The Ldn measurement of noise represents the average noise level during an entire day, weighted so as to double the measured values of nighttime noise. Outdoor speech interference occurs within the 65 Ldn contour and residential uses within the 70 Ldn and 75 Ldn contours are strongly discouraged. Based on the original Part 150 Study, as well as revised analyses of current conditions, there are between 4,250 and 5,127 residents within the 65 Ldn contour, which is an area that is generally accepted to be incompatible with residential use. Based upon the Part 150 Study, as well as the additional analyses completed by the Authority, the Department determined that the ADA provides adequate mitigation for any project related noise impacts when conditioned with the recommendations of the Tampa Bay Regional Planning Council (TBRPC) made on August 12, 1985, agenda item 6B, Recommended Regional Conditions Numbered 2-A through I. TBRPC Condition 2 is hereby incorporated by reference in its entirety. It is also found to be reasonable and provides effective mitigation of project impact. With the approval of the Federal Aviation Administration (FAA), the Authority has already implemented a noise abatement turn for jet aircraft taking off from runway 31 which allows aircraft to depart over water by making a left turn to 270 degrees as soon as practicable after take off. In this way, noise sensitive residential areas in Manatee County are avoided to the maximum extent feasible, although different residential areas west of the airport, including Longboat Key, are now impacted. Nevertheless, this noise abatement turn has been effective in reducing the overall impact of airport noise. While the noise abatement turn clearly does not result from the terminal project which has yet to be completed, it is relevant to this proceeding since TBRPC conditioned its approval of this project upon the institution of such a noise abatement turn on runway 31. The Authority has already voluntarily implemented a noise compatibility program substantially incorporating the short-term and long-term elements in TBRPC Condition 2-A. Short-term elements include: noise abatement turn on runway 13, as well as runway 31; between 10:00 PM and 7:00 AM, required use of ground power units, elimination of the use of external public address system, and prohibition of non-emergency maintenance runups; formation of a noise abatement advisory committee; hiring of a noise abatement officer; noise monitoring and complaint response programs; plan review and evaluation; and public information. Long-term elements include, in addition to continuation of short-term elements: purchase of aviation easements or fee simple interests in properties involved in a joint stipulation; purchase of aviation easements over residential properties in the 75 Ldn contour which were purchased by present owners prior to January 1, 1980; and purchase of fee-simple interest in residential properties in the 75 Ldn contour which were purchased by present owners prior to January 1, 1980. An apparent difference between the TBRPC conditions and the voluntary noise compatibility program implemented by the Authority is the fact that the Authority has specifically conditioned the purchase of fee-simple interests on the availability of federal funds, which TBRPC has not. Additionally, TBRPC Conditions Numbered 2-B through I (relating to periodic reporting, coordination with adjacent local governments, reduction of areas within the 70 to 75 Ldn and 75+ Ldn contours, review and comment by the Authority on rezonings and land use amendments, noise exposure disclosure in all deeds and real estate transactions, ongoing noise monitoring program, compliance with Federal Aviation Regulation Part 36 Stage Two noise limits, and requiring a demonstration of substantial compliance with the foregoing before commencing Phase Two of the project) are not specifically included in the Authority's voluntary program. The FAA expressed concerns about the Authority's Part 150 Study because 1983 airport operations data were used for existing (1985) conditions without any showing that 1983 data were valid for 1985. In response to the FAA's concerns, the Authority compiled supplemental information and an additional analysis. Laddie E. Irion, who was accepted as an expert in airport noise compatibility planning and was formerly the noise abatement officer at the Sarasota-Bradenton Airport, prepared the additional analysis which concluded there was little, if any, direct relationship between this terminal project and increased airport noise levels. Manatee County's expert in aircraft noise analysis and abatement, Edward M. Baldwin, agreed with the FAA's concerns about the Part 150 Study, but also agreed with Irion's approach in addressing those concerns and his conclusion that the terminal project itself is unlikely to have any positive or negative impact on noise exposure. The airport, including the specific location of the terminal project, is not within any area of critical state concern. The State Comprehensive Plan is found at Chapter 187, Florida Statutes, and includes among its goals and policies "insur(ing) that existing port facilities and airports are being used to the maximum extent possible before encouraging the expansion or development of new port facilities and airports to support economic growth." The project is consistent with this policy of the State Comprehensive Plan since it has been established that the existing terminal is permanently being used to the maximum extent possible. In its denial of the ADA, Manatee County failed to make a finding as to whether the ADA is compatible with the State Comprehensive Plan. The project is compatible with the reports and recommendations of TBRPC and SWFRPC, the applicable regional planning councils, if conditions recommended by those councils are included in any development order-. The parties have stipulated to the transportation conditions proposed by TBRPC which were filed at the hearing on August 13, 1986, as amended, which are hereby incorporated by reference. The parties also stipulated to conditions concerning wastewater management, drainage, water supply, solid waste and other conditions which were recommended by TBRPC, SWFRPC or other parties hereto, and said stipulation is hereby incorporated by reference. The City of Sarasota and Sarasota County have both issued development orders approving this development of regional impact after having found that the project is consistent with their local comprehensive plans. The Department has concurred with this finding of consistency. Manatee County determined that the proposed terminal project is inconsistent with its local comprehensive plan and accordingly denied the ADA, as well as the application for special permit SP-85-80. The Manatee County Comprehensive Plan was adopted pursuant to the Local Government Comprehensive Planning Act, Chapter 163, Part II, Florida Statutes. Elements of the Plan include plan administration, future land use, aviation and related elements. The aviation element was cited by Manatee County in its denial of development approval, even though the future land use element allows the airport as a primary use in the South County Industrial Area. The goal of the aviation element of the Manatee County Comprehensive Plan is as follows: Develop airport facilities that adequately provide for the services and needs of passengers, commercial airlines, and general aviation users, and that are compatible with adjacent land uses, high environmental standards and public safety. This goal is supported by the following objectives: Facilities--Construct support facilities (including terminal and parking facilities) that are functional, convenient, aesthetic- ally pleasing, and adequate for all levels-- passenger airline and general aviation. Service--Strive to attract increased avail- ability and quality of commercial air service. The terminal project is consistent with the above-quoted goal and objectives of the Manatee County Comprehensive Plan aviation element. It will provide a modern terminal and parking facilities which will allow passengers to enplane and deplane out of the weather, and will be able to handle present and projected passenger traffic more safely and comfortably. The present terminal facility is undersized and inadequate. The project is also compatible with adjacent land uses since it is within the South County Industrial Area where the airport is a primary use. There appears to be an internal conflict within the aviation element of the Manatee Plan concerning the subject of airport relocation. Objective I-D provides: Relocation--Continue to investigate the needs and opportunities for either expansion or relocation of Sarasota-Bradenton Airport. (Emphasis Supplied.) Policy 11-1A concerning airport development provides: Airport relocation--Airport facilities designed to handle major air carriers should be relocated east of the existing site. The new site should be closely coordinated with other governmental activities, such as the possible joint use of the site with sewage effluent spray irrigation, to ensure long term service ability of the new facility. (Emphasis Supplied.) The plan administration element of the Manatee Plan addresses the interpretation of the Plan when provisions are in conflict, as above, and states: . . . where two or more such provisions are inconsistent with each other they shall not be given effect nor considered as part of the Plan in the situation which causes the inconsistency. However, rather than recognizing this conflicting direction regarding airport relocation in its Plan, and therefore disregarding the conflicting provisions in its consistency determination, Manatee County determined that policy 11-1A, airport relocation, takes precedence over all other policies in the Plan in that it is the most specific policy, and further determined that the terminal project was inconsistent with this policy since it would preclude relocation in the future. No evidence was presented, however, that would support a finding that this project would, in fact, preclude relocation in the future. Additionally, Manatee County's determination of inconsistency itself appears to be inconsistent with the plan administration element wherein the use of the word "should" is specifically interpreted to be discretionary and not mandatory. Therefore, by using the discretionary "should" in policy 11-1A, airport relocation is discretionary by the very terms of the Manatee Plan. Furthermore, the capital projects necessary for airport relocation, such as site acquisition and construction, are also couched with discretionary language in the Plan. No site for relocation of the airport east of the existing airport has been designated in the Manatee Plan and no sites of sufficient acreage are currently zoned for airport use. The Manatee County Planning Commission is the designated local planning agency which actually prepared the Manatee Plan, and is responsible for reviewing proposed developments for consistency with the Plan. The Planning Commission recommended to the Manatee Board of County Commissioners that the terminal project be found to be consistent with the Manatee Plan. The Chief of Comprehensive Planning for Manatee County, Carole Clark, presented three possible interpretations of the Plan to the County Commission as follows, but offered no recommendation as to which was the correct interpretation: Conflicting Direction. The Board may determine that Policy 11-1A Airport Reloca- tion is in direct conflict with the policies of the Land Use Element, which makes airports a primary use in the South County Industrial Area. In accordance with principle A-6, those two provisions would not be considered part of The Plan in this instance. The determination would then be based on the remaining policies of the Aviation Element, and the proposal could be consistent with The Manatee Plan. Long Term Direction. The Commission may determine the policy of airport relocation to be long term and not necessarily precluded by the proposed improvements. This interpre- tation reflects the Implementation section of the Aviation Element which places reloca- tion between 1985-2000. Aviation Precedence. Finally, the Commission may find that Policy 11-1A, Airports Relocation, takes precedence over all other policies in that it is the most specific policy. If it was determined that the proposed expansion would preclude relocation, the proposal would then be found to be inconsistent wit the Plan. As previously stated, the Manatee Board of County Commissioners determined that the "aviation precedence" interpretation was correct and accordingly denied both the ADA and special permit. In making its recommendation of consistency, the Planning Commission had found that the "long term direction" interpretation was correct. During her review of this matter, Carole Clark testified she did not consider provisions of the State Comprehensive Plan found at Section 187.201(17), Florida Statutes. The Manatee Planning Commission's recommendation of consistency is supported by the testimony of Blain Oliver, who was accepted as an expert in land use planning, and Mark Woerner, who was accepted as an expert in comprehensive planning. Based upon findings of fact 33 through 41, it is found that the terminal project as proposed herein is consistent with the Manatee Plan. Because the airport is in an area zoned M-1, which treats airports as a "conditional use," the Authority was required to obtain a "special permit" from Manatee County. Factors in reviewing an application for a special permit include a determination of consistency with the Manatee Plan, and also a determination of compatibility with surrounding land uses. A finding of consistency with the Plan has been made above. Although there are residential areas in close proximity to the airport, the airport is located in the South County Industrial Area in which airports are a primary use. The proposed project to replace and improve the terminal facilities is clearly compatible with the primary use within the South County Industrial Area--the airport. Conditions recommended by TBRPC would reasonably address the concerns of residents in surrounding neighborhoods.
Recommendation Based upon the foregoing, it is, RECOMMENDED: That the Florida Land and Water Adjudicatory Commission enter a Final Order granting the Application for Development Approval and special permit sought by the Sarasota-Manatee Airport Authority, thereby reversing prior decisions of the Board of County Commissioners of Manatee County, and condition such approval upon the Authority's compliance with the terms of the stipulations entered into by the parties regarding transportation, drainage, wastewater supply, solid waste and other conditions, as well as the Tampa Bay Regional Planning Council Conditions Numbered 2-A through I referenced in Finding of Fact 24. DONE AND ENTERED this 15th day of October 1986, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 15th day of October 1986. APPENDIX Rulings on Proposed Findings of Fact filed on behalf of the Sarasota- Manatee Airport Authority: 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10, 11. 11. Adopted in Finding of Fact 12. 12. Adopted in Finding of Fact 13. 13. Adopted in Finding of Fact 14. 14. Adopted in Finding of Fact 15. 15. Adopted in Finding of Fact 16. 16. Adopted in Finding of Fact 17. 17. Adopted in Findings of Fact 21, 22, 24. 18. Adopted in Findings of Fact 21, 22, 24. 18. Adopted in Findings of Fact 21, 22, 24. 19. Adopted in Findings of Fact 21, 22, 24. 20. Adopted in Findings of Fact 21, 22, 24. 21. Adopted in Findings of Fact 23, 24, 28. 22. Adopted in Finding of Fact 26. 23. Adopted in Finding of Fact 24. 24. Adopted in Finding of Fact 28. 25. Adopted in Finding of Fact 28. 26. Adopted in Finding of Fact 28. 27. Adopted in Findings of Fact 25, 26. 28. Adopted in Finding of Fact 23. 29. Adopted in Finding of Fact 23. 30. Adopted in Finding of Fact 23. 31. Adopted in Finding of Fact 23. 32. Adopted in Findings of Fact 25, 26. 33. Adopted in Findings of Fact 25, 26. 34. Adopted in Findings of Fact 25, 26. Adopted in Findings of Fact 25, 26. Adopted in Findings of Fact 25, 26. Adopted in Finding of Fact 28. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 30. Adopted in Finding of Fact 30. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 29. Adopted in Finding of Fact 31. Adopted in Finding of Fact 31. Adopted in Finding of Fact 32. Adopted in Finding of Fact 32. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42,,but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Findings of Fact 33-42, but otherwise rejected as unnecessary, irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 43. Rulings on Proposed Findings of Fact filed on behalf of Manatee County: Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 6, 7. Adopted and rejected in part in Findings of Fact 21 and 22, but otherwise rejected as not based on competent substantial evidence. Adopted and rejected in part in Findings of Fact 21 and 22, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in part in Finding of Fact 24, but otherwise rejected as unnecessary. Adopted in part in Finding of Fact 28, but otherwise rejected as unnecessary. Rejected as irrelevant and not based on competent substantial evidence. Adopted in part in Finding of Fact 34. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in part in Findings of Fact 33-42, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 43. Rejected as irrelevant and unnecessary based on Findings of Fact 24- 26. 26. 26. 26. 26. Rejected as irrelevant and unnecessary based on Findings of fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Rejected as irrelevant and unnecessary based on Findings of Fact 24- Adopted in part in Finding of Fact 26. Rejected as cumulative, irrelevant and contrary to Finding of Fact 28. Rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Ruling on proposed Finding of Fact filed on behalf of the Department of Community Affairs: Introductory material. Adopted in Findings of Fact 19, 20. Adopted in Finding of Fact 22. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. Conclusion of law. COPIES FURNISHED: Ross A. McVoy, Esquire Post Office Box 669 Tallahassee, Florida 32302 David Bruner, Esquire 983 1/2 North Collier Boulevard Marco Island, Florida 33937 Philip Parsons, Esquire Post Office Box 271 Tallahassee, Florida 32302 Charles D. Bailey, Jr., Esquire Post Office Box 3258 Sarasota, Florida 33578 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Silvia Alderman, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 David Jordan, Esquire Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32399 Roger S. Tucker, Esquire 9455 Koger Boulevard Suite 209 St. Petersburg, Florida 33702 Luis Figuerdo, Esquire Governor's Legal Office The Capitol Tallahassee, Florida 32301 Glen W. Robertson, Esquire Florida Land and Water Adjudicatory Commission Office of the Governor The Capitol Tallahassee, Florida 32301
Findings Of Fact 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. 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. 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. The Petitioner, Florida National Properties, Inc., owns the land contiguous to the southern boundary of the proposed site. This property is also undeveloped. The Loxahatchee National Wildlife Refuge is located approximately 3/4 of a mile north of the proposed site. 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. 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: All operations are to be conducted in VFR weather conditions. Use of the airstrip is limited to property owners and their invited guests. Left traffic patterns will be established for Runway 18 and Right traffic patterns will be established for Runway 36. Aircraft arriving or departing the airport will avoid overflying the Loxachatchee National Wildlife Refuge below 2000 feet AGL. Users of the airport and invited guests will be informed of possible bird activity in the vicinity of the site. Traffic patterns and operational procedures are subject to review by this Department prior to licensing or re-licensing. 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. 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. 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. 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. 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. 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. 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. 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: 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. 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). A 100 ft. setback shall be required between the runway edge and any property line. No structure or navigation aids shall be closer than 50 ft. from any property line. Use of this airstrip shall be limited to owners of this property and their guests. 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. Airspace approval for the proposed site was obtained from the FAA on February 24, 1982. 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.
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
The Issue The issue in this case is whether the Homeowner’s Association of Eagle Creek, Inc., (Respondent) discriminated against Stanley Byrdsell (Petitioner) based on race or disability.
Findings Of Fact At all times material to this case, the Petitioner was a homeowner at, and resident of, a residential community identified as “Eagle Creek” in Orlando, Florida. The Petitioner is an African-American male. On occasions during his residency at Eagle Creek, the Petitioner relied on a wheelchair for mobility following surgeries related to injuries sustained in automobile accidents. The Respondent is the legal entity created, in relevant part, to manage common areas at Eagle Creek, to enforce various Eagle Creek property restrictions, and to collect assessments from Eagle Creek homeowners. The Petitioner’s complaint of discrimination by the Respondent was essentially focused on his interactions with Maria Loffredo, the Respondent’s manager during the time the Petitioner resided at Eagle Creek. Ms. Loffredo is no longer employed by the Respondent. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, discriminated against the Petitioner in any manner based on his race or disability. The evidence is insufficient to establish that the Respondent, or any person employed by the Respondent, treated the Petitioner in any manner differently than any other resident of Eagle Creek. UNPAID ASSESSMENTS Collection of assessments from Eagle Creek homeowners appears to have been a substantial issue for the Respondent. At one point during the relevant period, approximately 60 percent of Eagle Creek homeowners, including the Petitioner, were delinquent in paying assessments to the Respondent. The Respondent routinely provided delinquent homeowners with an opportunity to become current on unpaid assessments by making periodic installment payments of the funds due. The periodic payment plans were documented by written agreements executed between the Respondent and the participating homeowners. The Petitioner was offered the opportunity to enter into such an installment payment plan to satisfy the unpaid assessments, but did not do so. The evidence fails to establish that the Respondent’s efforts to collect the unpaid assessments from the Petitioner were in any manner different from the collection efforts routinely applied to all Eagle Creek homeowners who were in arrears on assessment payments. The Petitioner testified that he and Ms. Loffredo entered into a verbal agreement whereby he would provide web design services to the Respondent in an amount equal to his unpaid assessments. The Petitioner offered no documentation to support the assertion. Ms. Loffredo denied entering into such an agreement and testified that she had no authority to enter into a contract with the Petitioner without approval by the Respondent’s board of directors. There is no evidence that the board of directors ever considered any such agreement between the Petitioner and the Respondent. The evidence fails to establish the existence of any agreement between the Petitioner and the Respondent regarding web design services. THE PLYWOOD RAMP As previously stated, the Petitioner occasionally relied on a wheelchair for mobility. During those times, the Petitioner placed a sheet of plywood across an entry step at the front of his house to facilitate his entry into the home. On more than one occasion, Ms. Loffredo contacted the Petitioner to inquire about his use of the plywood ramp. The Petitioner has asserted that Ms. Loffredo harassed him about the ramp, and that her inquiries were discriminatory. At the hearing, the Petitioner’s former girlfriend testified that she believed Ms. Loffredo was rude or disrespectful during the inquiries. The evidence fails to establish that Ms. Loffredo’s inquiries were discriminatory in any manner. The Respondent took no action whatsoever to prohibit or restrict the Petitioner’s use of the ramp. COMMUNITY INSPECTIONS The Petitioner has asserted that Ms. Loffredo targeted his home for various inspections in order to harass or intimidate him because of his race or disability. The evidence fails to establish that the Petitioner’s residence was inspected more frequently than that of other homeowners in Eagle Creek, or that the Petitioner was subjected to property restrictions different from those applied to other homeowners. RACIAL SLUR The Petitioner has asserted that, on one occasion, he observed Ms. Loffredo parked in front of his house, and alleged that when he approached her to ask about her presence, she responded by directing a racial slur towards him and then driving off. Ms. Loffredo testified that she routinely went through the Eagle Creek community to monitor homeowner compliance with property restrictions, but denied making the statement attributed to her by the Petitioner. The evidence is insufficient to establish that the alleged racial statement occurred. ENTRY GATE REMOTE CONTROLS Eagle Creek is a private community. Entry into Eagle Creek is through gated and guarded access points. Residents entering the community use coded electronic devices to open the gate. Residents, as well as non-residents, can also gain entry into the community by stopping at a guardhouse, where security personnel are present on a 24-hour basis. The Respondent’s governing documents provide that a resident’s electronic gate access can be suspended for non- payment of assessments. At some point after the Petitioner became delinquent in payment of assessments, the Respondent disabled the Petitioner’s entry codes, thereby suspending the Petitioner’s ability to enter the development through the electronic gate. The Respondent suspended electronic gate access for numerous residents who were delinquent in paying assessments. The evidence fails to establish that the suspension of the Petitioner’s electronic access codes was related to the Petitioner’s race or disability. Notwithstanding the Petitioner’s non-payment of assessments, the Petitioner’s ability to enter through the electronic gate system was restored after he provided a letter to the Respondent asserting that one of the Petitioner’s children had a medical condition. GATE INCIDENT At some point as the Petitioner drove a vehicle through an open electronic entry gate, the wooden gate came down onto the Petitioner’s vehicle before it had cleared the entry point. The gate was damaged as the Petitioner continued to drive as the gate came down. Ms. Loffredo became aware of the incident when witnesses who observed the Petitioner driving through the entry reported it to her. The gates are common property owned by the Respondent. Ms. Loffredo thereafter contacted law enforcement authorities to document the incident, and she went to the gate to observe the damaged gate. The evidence fails to explain why the gate closed while the Petitioner’s vehicle was proceeding through it. Although the Petitioner generally asserted that Ms. Loffredo committed some type of discriminatory act towards him in relation to these events, there is no evidence to support the assertion. VANDALISM On one occasion, a group of juveniles accompanied by an adult drove through a part of Eagle Creek while tossing raw eggs at presumably random houses and cars. The Petitioner’s residence and vehicle were hit and damaged by the eggs. Before the vandals managed to escape from Eagle Creek, the Petitioner and a neighbor managed to stop and detain them, and then contacted local law enforcement authorities. Ms. Loffredo became aware of the incident, and came to the scene while the law enforcement authorities were present. Ms. Loffredo determined that there was no damage to the Respondent’s property and apparently so advised the law enforcement authorities. The Petitioner has asserted that Ms. Loffredo also told law enforcement officers to refrain from prosecuting the vandals for the apparent damage to private property caused by the event, and that her actions in this regard were discriminatory towards him. There is no evidence that the Petitioner filed any complaint with local law enforcement or pursued any legal action against the vandals. Ms. Loffredo denied telling the law enforcement authorities not to prosecute the vandals for damage to private property. There is no evidence that Ms. Loffredo had any authority to prevent the prosecution of the vandals. Even presuming that Ms. Loffredo somehow had the authority to prevent prosecution of neighborhood vandals, the Petitioner’s claim that Ms. Loffredo discriminated against him based on race or disability would suggest that the vandals were prosecuted for damage to houses or vehicles owned by other residents of Eagle Creek. There was no evidence presented that the vandals were prosecuted on behalf of any Eagle Creek homeowner. The evidence fails to establish that Ms. Loffredo had any authority or took any action to prevent criminal prosecution of the vandals for damage to the Petitioner’s private property, or to that of any other Eagle Creek resident. LOCAL GOVERNMENT CODE ENFORCEMENT The Petitioner has asserted that the Respondent targeted his residence by frequently filing various complaints with the local housing code enforcement agency. While local housing code enforcement inspectors apparently received a number of complaints about the condition of the Petitioner’s residence, the evidence fails to establish that the Respondent was the source of the complaints. Further, there is no evidence that such complaints were related to the Petitioner’s race or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Stanley Byrdsell. DONE AND ENTERED this 15th day of December, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2014. COPIES FURNISHED: Karen Wonsetler, Esquire Suite 135 860 North Orange Avenue Orlando, Florida 32601 (eServed) Stanley Byrdsell Post Office Box 1645 Windermere, Florida 34786 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 (eServed) Sarah Elizabeth Gammon, Esquire Law Office of Karen Wonsetler, P.A. Suite 135 860 North Orange Avenue Orlando, Florida 32801-1011 (eServed)
Findings Of Fact 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. 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) 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). 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. Mr. Uchitel's counsel expressed Mr. Uchitel's concern that the local zoning may have been obtained without due notice to him. The FAA regulations for operation of ultralight aircraft were introduced. These regulations prohibit flight below 1500 feet except when landing and taking off. 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. 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. 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. 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. 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.
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 .
Findings Of Fact Selwin Coleman is the record holder of land located near Maytown Road three miles west of Oak Hill, Florida, at latitude 28o51'25" North, longitude 80o54'26" West in Sections F and G, Township 19 South, Range 34 East in Volusia County (the proposed site). He has authorized his son-in-law, Ron Biritz, to seek DOT site approval and a license for a private airport as the proposed site. Petitioners and intervenors own land in the general vicinity, and Robert L. Hart owns extensive mineral rights, including rights to any minerals underlying the proposed site. Other land owners, including Warren J. Brull, who owns part of the land over which the existing air strip runs, C.R. "Dick" Powell, and Vaughn L. Grasso, who owns a crop duster he stores in a building he characterizes as agricultural, also made Mr. Biritz their agent for purposes of the pending application. Known as "Blue Ridge Flightpark," a 4,000-foot grass air strip at the proposed site had been used by light planes for some time, until recently. The air strip has been significantly improved within the last two years; at one time watermelons were grown on the property. Originally, scrub hickory and gopher tortoise holes made its use as an air field impractical. When John Bronson Monteith, the aviation specialist for DOT's District Five, learned the grass strip at the proposed site was "operational," he contacted the owners and instructed them to close down operations until site approval was granted; and told them how to apply for site approval. As one result, they caused a large "X" to be placed on the strip, indicating the field was closed to operation. When Mr. Monteith visited the proposed site on November 21, 1991, he saw rust on a brake disc on Mr. Biritz's airplane, suggesting disuse. After DOT received the application, Mr. Monteith determined that it was complete and seemed to meet all rule and statutory criteria, so he prepared a notice to grant the application for Nancy Houston's signature. He caused copies of the notice of intent to be sent by certified mail to all airports and municipalities within 15 miles and to all landowners within 1,000 feet of the proposed site. The notice of intent was published in the News Journal, and a public hearing was held on July 18, 1991. There is some question regarding the true nature of several largish buildings along the air strip. Treated as "agricultural" for purposes of construction without building permits, the buildings look to some more like hangars than barns. But, as to the air strip itself, Volusia County zoning officials have recognized a nonconforming use antedating adoption of County zoning ordinances, a use which the ordinances allow to continue, as long as it does not entail construction of any new structures. Respondent's Exhibit Nos. 4 and 7. As experience has demonstrated, the proposed site is "feasible" and "adequate." Despite military air traffic in the general vicinity, the Federal Aviation Authority concluded that, if limited to private use, the "airport will not adversely affect the safe and efficient use of airspace by aircraft." Respondent's Exhibit No. 3. Only a windsock and markings, including threshold markings, are needed to meet licensing requirements.
Recommendation It is, accordingly, RECOMMENDED: That DOT grant site approval on the conditions stated in Order No. 91-34; and, after the requirements of Section 330.30(2), Florida Statutes (1991) have been satisfied, issue a private airport license to Ron Biritz. DONE and ENTERED this 28 day of May, 1992, in Tallahassee, Florida. own. ROBERT T. BENTON, II 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 28 day of May, 1992. APPENDIX Both intervenors adopted petitioner's proposed findings of fact as their Petitioner's proposed findings of fact Nos. 1, 2 and 4 have been adopted in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, the legal status was not clear. With respect to petitioner's proposed finding of fact No. 5, a preponderance of the evidence established that flights had stopped recently. Respondent's proposed findings of fact Nos. 1 through 6 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is properly a conclusion of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Dan R. Warren, Esquire 315 Silver Beach Avenue Daytona Beach, FL 32118 Bruce Best Post Office Box 2793 New Smyrna Beach, FL 32170 Cheryl M. Sanders Post Office Box 2793 New Smyrna Beach, FL 32170 James S. Morris, Esquire Storch, Hansen & Morris, P.A. 1620 South Clyde Morris Blvd., #300 Daytona Beach, FL 32219 Vernon L. Whittier, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458
The Issue The issue in the case is whether Albert E. and Renee Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., which is a Florida-licensed public use landing strip surrounded by private home sites. The landing strip is located in Pasco County. Albert E. Warner and Renee Warner own a lot adjoining the Tampa North Aero Park, Inc. The Warners desire to construct and live in a single family home on the lot identified as Lot 123, Quail Hollow Village Subdivision. According to the Warners, the structure will be concrete block with a wood frame roof. The highest peak of the roof will be no more than 30 feet above ground level (98 feet above mean sea level.) Mr. Brammer is essentially concerned that his airport remain licensed for public use, and is wary of encroachments which may alter its licensing status in the future. The location of the proposed construction exceeds certain federally-established standards and triggers regulatory review of the Warner project. In November of 1995, the Warners began the process of obtaining the permits required for construction of the home at the airstrip. The evidence establishes that the Warners have been cooperative and forthcoming in their attempts to meet regulatory requirements related to their proposed construction. The Warners provided all information as requested by the Department. One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." On March 27, 1996, the FAA issued the "Determination of No Hazard to Air Navigation." The document states that an aeronautical study has been completed (study #96-ASO-286_OE) and identifies the location of the proposed residence as approximately 0.14 nautical miles northeast of the Tampa North Aero Park Airport. The FAA determination contained an incorrect latitude and longitude for the location of the proposed construction. 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. By letter of July 12, 1996, the Department issued notice of its intent to grant the Warner application for an Airspace Obstruction Permit. The letter states as follows: We have review results of the Federal Aviation Administration Aeronautical Study of your proposed construction. They have issued a determination your construction can be accommodated without a significant adverse impact on the safe and efficient use of navigable airspace for Tampa North Aero Park and is thus not a hazard to air navigation. We have been unable to identify any aviation activity not addressed by the Aeronautical Study that would necessitate altering flight operations to accommodate your proposed construction or be otherwise adversely impacted by its height at the location proposed.... The Department's permit contained the same incorrect latitude and longitude for the location of the proposed construction as had been set forth in the FAA determination. A condition of the permit requires the structure to be lighted with a red beacon and marked as an obstruction. At some point after issuing the initial determination, the FAA issued a correction to the determination. There is no date on the correction which identifies the date of issuance. Other than the location, the FAA's correction made no changes to the initial determination. The 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. The Department has not issued a corrected notice of its intent to issue the Warner permit. Although the permit applicants have provided the information requested by the Department, the evidence fails to establish that the applicants have met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit. The evidence fails to establish that the Department gave adequate consideration to the requirements of Section 333.025, Florida Statutes, in reviewing the permit application filed by the Warners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying the Warner application for Airspace Obstruction Permit. RECOMMENDED this 4th day of March, 1997, in Tallahassee, Florida. _ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles W. Brammer, Pro Se Tampa North Aero Park 4241 Birdsong Avenue Tampa, Florida 33549 Albert E. Warner, Pro Se Post Office Box 7084 Wesley Chapel, Florida 33543 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue 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: Whether the site is adequate for the proposed private seaplane base. Whether the proposed seaplane base will conform to minimum standards of safety. Whether safe air traffic patterns can be worked out for the proposed airport and for all existing airports and approved sites in the vicinity.
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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
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
The Issue The issue in the case is whether Albert E. Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., a Florida-licensed public use landing strip located in Pasco County. The Tampa North Aero Park is surrounded by platted lots intended for use as private homesites. Albert E. Warner owns one of the lots, (Lot 123, Quail Hollow Village Subdivision) which adjoins the Tampa North Aero Park, Inc. Mr. Warner intends to construct and live in a single family home on his lot. 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. On June 18, 1997, the Mr. Warner filed his application for an Airspace Obstruction Permit with the DOT. 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 One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." The FAA has issued a "Determination of No Hazard to Air Navigation." Because the initial FAA document included incorrect site information, the FAA subsequently issued a "Correction to the Determination of No Hazard to Air Navigation." 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. 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. 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. 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. 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. 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. 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. 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. Private investments, specifically that of the Petitioner and his airport, will not be adversely impacted by construction of the home. 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. 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. 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. 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. The Department considered technological advances and determined that there are none which would be adversely impacted by issuance of this permit. 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. The Department considered land use density. There is no adverse impact to land use density related to this permit. 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. 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. The evidence establishes that Mr. Warner has met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit.
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
The Issue The issue is whether the Department of State has sufficient grounds to take disciplinary action against the licenses issued to Mr. White pursuant to Chapter 493, Florida Statutes.
Findings Of Fact Mr. White held a Class "D" Security Officer License, number D90-03408, issued by the Department of State. Between November 27 and December 1, 1991, Mr. White was employed as a licensed security officer by the Quality Shawnee Hotel in Miami Beach, Florida. The hotel has also been known as the Colony Shawnee Miami Beach Resort and the Quality Resort. Thomas Sanon-Jules, Director of Security for the hotel, was Mr. White's supervisor, and personally trained him on the procedures for logging in and securing lost property found on the hotel property. Mr. Sanon-Jules developed a manual on the procedures for the disposition of lost property and reviewed it with Mr. White prior to November 28, 1991. Mr. White knew that lost property must be taken to the lost and found room and logged in prior to notifying the owner that it has been found. The item must be tagged with a number and, in the case of a wallet, placed in a safe deposit box. Under the hotel's internal policies, after logging an item in, the employee must notify the owner. If the owner wants it returned by mail, the employee must turn it over to the hotel's executive office during working hours to have it mailed. The employee should get a receipt from the executive office at that time. On November 27, 1991, John Herning, an American Airlines pilot, checked into the Quality Shawnee Hotel for one night. Before going out that evening, Mr. Herning placed his wallet behind a ceiling tile for safe keeping. He forgot the wallet when he left the next morning at approximately 5:00 a.m. On the evening of November 29, Mr. Herning called the hotel from his home in Fort Worth, Texas, stating where he had left the wallet, and asking to have the wallet retrieved. He talked to security officer Danny Jones, who indicated that the room was occupied and that Mr. Herning should call back at 7:00 a.m. the next day and ask for Mr. White. The next morning, Mr. Herning called and talked to Mr. White who said he would look for the wallet. He found it and told Mr. Herning that he would mail it that day, a Saturday. Mr. Herning told Mr. White that he could split the forty dollars in the wallet with security officer Danny Jones who had also assisted Mr. Herning. That evening, November 30, the J.C. Penney Department store called Mr. Herning in Fort Worth to tell him that a black male was attempting to use his credit card at their store at the Omni complex at 600 Biscayne Boulevard in downtown Miami. After talking to J.C. Penney, Mr. Herning notified the hotel of the call and also called his credit card companies to cancel his other credit card accounts. Mr. Herning did not authorize anyone to use his credit cards after leaving Miami on November 28, 1991. All of his credit cards were in the wallet when it was eventually returned. After Mr. Herning called the hotel to report the unauthorized use of his credit card, one of the security officers notified Mr. Sanon-Jules of the complaint. Mr. Sanon-Jules directed security officer Jones to look for the wallet at lost and found and in the safe deposit box. He was told that the wallet was not there. Later that night, Mr. Sanon-Jules had the night supervisor check lost and found for the wallet again, without result. The next morning, Mr. Sanon-Jules arrived at the hotel at 5:00 a.m. and waited for Mr. White to check in at 7:00 a.m. When Mr. White arrived, Mr. Sanon-Jules asked him about the wallet and Mr. White told him he had placed it in the safe deposit box. They went to the safe deposit box where Mr. White used his key to open it. There was no wallet in the box or in any of the drawers in the lost and found room. Mr. Sanon-Jules then asked Mr. White to empty his pockets, whereupon Mr. White produced Mr. Herning's wallet. At the time, Mr. White had no explanation for why he was carrying the wallet. Mr. Sanon-Jules checked the contents of the wallet and found a number of credit cards. Mr. Sanon-Jules subsequently went to the J.C. Penney department store at 600 Biscayne Boulevard and viewed a video tape recorded on the department store's security camera on November 30, 1991. The video showed Mr. White at the counter with two other adult males and a very young male child. (Tr. 20-21, 46-49; Pet. Ex. 3). One of the adult males in Mr. White's company attempted to use Mr. Herning's J.C. Penney credit card. The department store employee became suspicious when ringing up the sale. The tape shows that they left the store without completing the purchase. The young boy on the tape had accompanied Mr. White to work at the hotel on several occasions.
Recommendation It is RECOMMENDED that the Department revoke or deny renewal of all licenses held or applied for by Respondent pursuant to Section 493.6118(2), Florida Statutes. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 31st day of March 1993. COPIES FURNISHED: Henri C. Cawthon, Esquire Assistant General Counsel Department of State/ Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Dewight Whiley White 2845 Northwest 163rd Street Opa Locka, Florida 33054 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL 02 Tallahassee, Florida 32399-0250
