The Issue The issue is whether Respondent properly issued Site Approval Order No. 3-99-01 for Ochlockonee Bay Seaplane Base pursuant to Chapter 330, Florida Statutes, and Chapter 14-60, Florida Administrative Code.
Findings Of Fact On July 8, 1997, Walt Dickson, the applicant, filed an Airport Site Approval and License Application with Respondent for a seaplane base located two (2) miles south of Panacea, Florida, in Ochlockonee Bay, Wakulla County, Florida, at Latitude N29 degrees, 59'35" N, Longitude W 84 degrees, 23'73" W. The application gives the following legal description of the proposed facility: Lot lying between Williams Brothers Lumber Co. lot and Troy Fain lot on river in SW 1/4 of Section 1. A map of the proposed seaplane base was attached to the application. The map shows a sea lane 1/ toward the middle of Ochlockonee Bay. The sea lane has an east/west heading. It is three (3) miles long with a primary width of one (1) mile and a usable width of one-half (1/2) mile. The application does not indicate the exact position of the sea lane. The application's map indicates that a bridge for U.S. Highway 98 is located east of the proposed sea lane and shoreline facilities. The bridge crosses the bay, connecting the bay's northern and southern shores. The bridge has an approximate height of 42 feet above sea level. East of the bridge, the mouth of the Ochlockonee Bay opens into the Apalachee Bay and the Gulf of Mexico. The application's map indicates that the shoreline facilities of the proposed seaplane base are located on the northern shore of the Ochlockonee Bay, west of the bridge and east of Bayside Marina. A plot of the proposed shoreline facility shows a dock or pier, of undetermined length and width extending into the bay. Ms. Ann Tiller, Respondent's aviation licensing specialist for district three, performed the initial review of the subject application. She considered Chapter 330, Florida Statutes, Chapter 14-60, Florida Administrative Code, and FAA Advisory Circular No. 150/5395 in conducting her review of the application. First, Ms. Tiller reviewed the application to ensure that it was complete. She determined that the application contained, among other things, the following information: FAA air space determination, zoning approval from the appropriate governmental agency, copy of the deed, lease or easement, legal description that indicates section, township, range and geographical coordinates, general location maps showing nearby roads, towns and landmarks, U.S. Geological Survey quadrangle maps . . . [o]r equivalent with facility plotted. Ms. Tiller testified that the application "in itself probably would not show that [the site] is adequate." She stated that "[w]hen [the applicant] sends me the application, he is telling me that he thinks it is adequate." The application did not address the following factors outlined in FAA Advisory Circular No. 150/5395: performance characteristics of the proposed seaplane, water currents or wave action, shifting channels, ship or boating activity on the water, prevailing winds, wind data during daylight hours, adequacy of the water depth for a seaplane, or information about the taxi channel dimensions for the take-out and launch ramp. On May 8, 1998, Ms. Tiller conducted a site inspection to determine the adequacy of the site. She did not go out into the bay on a boat. During the inspection, Ms. Tiller advised the applicant's representative that the required approach ratio for the takeoff and landing area was 20 to 1 and that the applicant would need to install a windsock before receiving a license. She made a general observation of the proposed site, finding no obvious reason to deny site approval. After making the inspection, Ms. Tiller completed an Airport Site Inspection report. The report states that the site "is feasible for the proposed use and can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60." Ms. Tiller did not consider the factors listed in the FAA Advisory Circular in making this determination. According to Ms. Tiller, the standards in the FAA Advisory Circular apply after the applicant receives site approval. She considers them as guidelines during the licensing phase of the application review, showing "what possibly could be done." By letter dated May 22, 1998, the FAA informed the applicant as follows: . . . it has been determined that the subject seaplane base will not adversely affect the safe and efficient use of airspace by aircraft provided the following requirements are complied with: All operations are conducted in VFR weather conditions. The landing area is limited to private use. You execute and maintain an operational letter of agreement with the Wakulla County Airport that would insure operation at this proposed seaplane base will not disrupt or conflict with operations at the existing public use airport. We recommend you reference FAR [Federal Aviation Regulations] 91.69, Right of Way Rules; Water Operations and comply with FAA Advisory Circular, AC 150/5395-1, Seaplane Bases. On April 19, 1999, the Wakulla County Board of County Commissioners executed an Operational Letter of Agreement between the Ochlockonee Bay Seaplane Base and the Wakulla County Airport. Prior to the hearing, Bobby Grice, Respondent's Public Transportation Manager, made a site inspection. He did not go out into the bay on a boat. Mr. Grice determined that the proposed takeoff and landing area met the required approach ratio of 20 to 1. He also concluded that the proposed sea lane, which is west of the bridge with a heading of 927, did not require a pilot to takeoff and land in close proximity to the bridge. Mr. Grice reached this conclusion without knowing the precise location of the takeoff and landing area. Mr. Grice's observation of the site did not reveal anything that "[p]rohibited [him] from saying that . . . somewhere in the bay that's 3 miles long and a mile wide, that somewhere in there we cannot find an area that is at least 1800 feet long, that's at least deep enough for a plane, and without obstruction." Mr. Grice testified as follows when questioned regarding the possible placement of crab traps in the area that serves as the proposed takeoff and landing area: I would not know if someone had gone in there and put [a crab trap] out, no more than I would know if one was out there with a motorboat running over it. But with the low tide, not the lowest, that's when we would go out and look with the applicant. And at that time if we saw some areas [where crab traps could not be seen] at low tide, then we would certainly assume that . . . at higher tide that [the crab traps] would not be in the way. The greater weight of the evidence indicates that crab traps, twelve (12) to eighteen (18) inches in height, are exposed in the proposed seaplane runway during tides which are low but not the lowest. When the tide is higher, the crab traps are submerged, leaving no indication as to how deep they are in the water. In addition to crab traps, other debris such as picnic tables and pieces of destroyed docks are submerged or floating at unknown locations in the bay. Mr. Grice saw channel markers in the bay. He did not know whether there were any markers in the area of the proposed sea lane. He assumed that the proposed sea lane area was large enough for the applicant to find at least some place where channel markers would not interfere with the required minimum length and approaches. The greater weight of the evidence indicates that channel markers are located directly in the proposed flight path of the seaplane. However, there is no persuasive evidence that these channel markers create a hazard in the approach and departure path of the proposed sea lane. The evidence also shows that the largest concentration of channel markers is located near the seaplane base's taxi and launch areas along the north shore of the bay. The seaplane will have to taxi across the channel and over the mudflats, areas of the bay with soft bottoms, to reach the proposed sea lane. Mr. Grice did not consider the depth of the water in the proposed launch area, taxi area, and sea lane. Therefore, he did not know whether the water depth was adequate for a seaplane. He did not know what type of seaplane(s) would use the seaplane base. According to Mr. Grice, Respondent can place restrictions on the site before licensing to prohibit the use of the seaplane base when the water is at a depth that Respondent determines is unsafe. The depth of the water at mean lower low water levels ranges between one (1) and four (4) feet in the proposed sea lane area. The four (4) foot soundings are located at the eastern tip of the proposed sea lane area, closet to the bridge. The depth of the water at mean lower low water levels ranges between one-half (1/2) foot and three (3) feet along the bay's northern shore in the vicinity of the seaplane base's launch area. Respondent asserts that its primary concern is safety. Therefore, Respondent makes a judgement call about boats and people swimming in the landing area. There is no evidence that Respondent considered the effect of boat traffic before approving the site at issue here. The channel of the bay is within 100 feet of the place where the proposed seaplane will be taken in and out of the water. The greater weight of the evidence indicates that many grouper boats and sport fishing boats use the channel on weekday mornings. On the weekends, boat and jet ski traffic in the channel increases substantially. The weekend boat traffic in the channel is fairly constant. The prevailing wind on the bay is out of the southeast or southwest during most of the day. The prevailing wind runs perpendicular to the proposed sea lane area. A crosswind takeoff and landing is dangerous, especially over a certain speed. The proposed seaplane base is located 80 feet from a dock referred to as the Williams dock. A channel marker is only a few feet from the end of the dock. The greater weight of the evidence indicates that taking a seaplane in and out of the water at the proposed seaplane base launch area is dangerous due to the following conditions: (a) swift channel current of six to ten knots that runs horizontal to the bay's northern shore and perpendicular to the dock; (b) heavy boat traffic in the channel; (c) the concentration of channel markers near the launch area; (d) prevailing winds which run almost perpendicular to the proposed launch area; and (e) the close proximity of the Williams dock. Respondent considers site approval as permission to build the proposed airport. According to Mr. Grice, "[i]t gives the applicant[s] some kind of assurance that they don't go out and spend a lot of money and then DOT comes back and goes through this hearing process after they have spent a lot." Respondent uses the FAA Advisory Circular as a guideline primarily during the licensing phase of application review. Respondent acknowledges that the language in each provision of the circular determines whether a provision is advisory or mandatory. Respondent admits that provisions of the circular containing the words "should" or "shall" relate to mandatory safety issues. Approximately two weeks before the hearing, the FAA requested clarification concerning the coordinates of the seaplane base because its proposed latitude and longitude as provided by the applicant may be incorrect. If the FAA does not issue an approval after receiving clarification, Respondent will deny the application due to the lack of an FAA air space determination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether Respondent violated Sections 112.313(2), (4), (6) and (7)(a), 112.3143(3), and 112.3145, Florida Statutes, and if so, what penalty should be recommended.
Findings Of Fact Respondent, Dennis Wardlow (Wardlow), served as mayor of the City of Key West from 1991 until 1997. In that public position, Wardlow was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees. In March 1991 Lisa Macy began operating a business at Smathers Beach in Key West. The business was known as Jammin' Jim's Wave Runners. John Bigler (Bigler), a lawyer in Key West and boyfriend of Ms. Macy, went into the jet ski rental business with Ms. Macy during the early fall of 1992. The new business was named Warren Watersports, Inc., d/b/a Ridley Turtle Watersports. In addition to being a lawyer, Bigler was a retired Navy Captain and JAG officer. He was involved in a partnership that owned a mini-warehouse in the Keys and was in the business of leasing an airplane to law firms under the name of Legal Eagles. On or about October 13, 1992, Wardlow entered into a letter of agreement with Bigler to provide consulting services to Warren Watersports. The written agreement stated that Wardlow was being retained as a public relations consultant under the following terms: You will be provided a weekly expense account of $100.00 per week commencing Friday, October 16, 1992, for a minimum period of six (6) months from the date hereof. You will be paid a success fee of $5,000 each, payable at the rate of $100.00 per week upon the award of an exclusive wave runner concession for a period of not less than three (3) years by the Hyatt Hotel at Key West, by the Holiday Inn Beachside, and/or the Galleon Marina, or any of them. You will not compete with and/or divulge any trade secrets and/or plans of the company for a period of six (6) months should this relationship be terminated for any reason. According to Wardlow, he was supposed to solicit the hotels and the marina for a concession for Warren Watersports. After signing the agreement and thinking about it, he decided that, as mayor, it would be a conflict for him to solicit the hotels because it might be considered that he was trying to use his official position as mayor to influence the businesses to grant a concession to Warren Watersports. However, Wardlow did not terminate his contract with Bigler nor did he amend the written agreement. As a result of his association with Bigler and Warren Watersports, Wardlow was paid $100 per week from October 1992 until April 22, 1994. The total amount received from Bigler and Warren Watersports was $7,900. Ms. Macy was upset when she learned that Bigler had agreed to pay Wardlow $100 a week. She felt that it was an unnecessary expense for the business. Bigler personally delivered the checks to Wardlow each week. Ms. Robin Downing worked as a bookkeeper for Bigler from April 1993 to September 1994. She handled the books for Bigler's businesses, including Warren Watersports. Over the period of time that Ms. Downey worked for Bigler, the business at Warren Watersports declined, and there were times when Warren Watersports had difficulty making payroll. However, it was Bigler's policy that payment to Wardlow would be made first. At times when Warren Watersports could not make payroll, Wardlow was the only person who received a check. Ms. Downing did not know what Wardlow did as a consultant for Warren Watersports. Ms. Judy McGill worked full time as a legal secretary for Bigler from July 1992 to September 1994. In April 1993, Ms. McGill became signatory on Bigler's office accounts, including Warren Watersports. She signed only three checks to Wardlow during her employment and refused to sign the other checks to Wardlow even though she was aware that it was Bigler's desire that Wardlow's check go out each week without fail. Ms. McGill did not know what work Wardlow did for Warren Watersports. In approximately March or April of 1994, Ms. McGill spoke with Wardlow on the telephone concerning the weekly checks, and Wardlow stated that he "wished that John would quit doing this." Dan Bosco, the manager for Warren Watersports, never saw Wardlow at any of the places where Warren Watersports was operating. Mr. Bosco was not aware of anything that Wardlow did for the business except make a short speech at the company's Christmas party. Soon after Wardlow began working for Warren Watersports, Wardlow was approached by Bigler who said that he had been cited by Code Enforcement for a violation and he wanted Wardlow to get it "straightened out." Wardlow contacted Gene Favors, a Key West Enforcement Officer, and helped resolve the problem. On several occasions Bigler approached Felix Cooper, the Key West City Manager, to discuss Bigler's desire to have a franchise from the City of Key West for a sales booth for his jet ski rental business on the beach at Smathers Beach and to erect a sign on the beach with the name of the jet ski business on the sign. Mr. Cooper had not taken action on the discussions, hoping that Bigler would go away and drop the subject. However, Mr. Cooper received a letter dated October 6, 1992, from Bigler, stating Warren Watersports wanted to be a franchisee or concessionaire of the City of Key West at the eastern end of Smathers Beach. In exchange for allowing Warren Watersports to operate its jet ski rental business on Smathers Beach, to erect a sign on the beach, and to store wetsuits on the beach, Warren Watersports was willing to erect and maintain a buoy system at Smathers Beach and name the city as an additional insured on Warren Watersports' liability insurance policy. The letter was copied to Wardlow and to the Director of Parks and Recreation for the City. Mr. Cooper asked Ron Herron, Assistant City Manager for Key West, to review the letter and to make a recommendation concerning the request. Mr. Herron's responsibilities included leases, franchises and rentals of city property. Mr. Herron responded to Mr. Cooper's assignment with a memorandum dated October 14, 1992. Basically, the memorandum recommended against a franchise to Warren Watersports, stating that the city had been trying to remove the wave runner business operation from Smathers Beach since 1991, that the City Commission had previously indicated that it did not want further commercialization of Smathers Beach, and that the City would need to seek approval from the Department of Natural Resources before allowing further commercial use of the beach. Some time after October 14, 1992, Wardlow called Ron Herron to his office regarding Bigler's request to place a sign on Smathers Beach. Wardlow wanted to know the reasons why Mr. Herron had turned down the request from Warren Watersports. Wardlow's tone seemed a little hostile and a little aggressive to Mr. Herron. After Mr. Herron explained his reasoning for recommending that the request be denied, Wardlow asked Mr. Herron to contact the Department of Natural Resources to see if Warren Watersports' request could be approved. As a result of that meeting, Mr. Herron drafted a letter for Wardlow's signature to the Florida Department of Natural Resources. Wardlow signed the letter, dated December 7, 1992, and sent it to the Department of Natural Resources. The letter specifically referred to the signs that Warren Watersports wanted erected and included photographs of the signs. Mr. Herron was not aware of any other businesses for which Wardlow, as mayor, wrote a letter to the Department of Natural Resources seeking approval for a sign to be erected on the beach. At the time that he signed the letter, Wardlow was a paid consultant of Warren Watersports and John Bigler. Wardlow did not discuss the request from Bigler concerning the franchise and the sign with the City Manager. Section 3.04 of the City of Key West Charter discusses the duties of the City Commission regarding administrative officers and employees of the city and provides: (b) Except for the purpose of inquiries and investigations, the commission or its members shall deal with the city manager and employees who are subject to the direction and supervision of the city manager solely through the manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately. In Key West the watersports business is very competitive. Warren Watersports operated from a barge 300 feet off the shoreline of Smathers Beach, a tourist area in Key West. Other watersports businesses operated out of a public boat ramp, while another competitor, Steve Kocis, pulled his barge up to the seawall. By Kocis' business being up against the seawall, Mr. Kocis' customers were able to step directly onto his barge without wading into the water. The customers of Warren Watersports had to wade 300 feet into the water in order to rent a jet ski. Mr. Kocis' operation had a serious negative effect on Warren Watersports' business. Bigler, as well as other Key West residents, were upset that Mr. Kocis was operating his jet ski business next to the seawall. The City received numerous complaints about the operation of jet skis at Smathers Beach. On April 5, 1994, Wardlow voted in favor of an ordinance restricting the operation of jet ski rental companies to an area at least 600 feet beyond the Key West shoreline. On April 19, 1994, Wardlow sponsored and voted for an amended ordinance that restricted the operation of jet ski rental companies to an area at least 300 feet beyond the Key West shoreline. The amendment to the ordinance passed by a four to three vote of the City Commission. Between April 5 and 19, 1994, Bigler called Wardlow to discuss the 600-feet restriction. Lisa Macy placed at least two telephone calls to Wardlow for Bigler on Bigler's car telephone after the April 5 meeting. One of the conversations was on speaker telephone, and Wardlow said that he had spoken to several people on the commission about the 600-feet restriction and that they were going to have to go back and make some changes. Prior to the April 19, 1994, vote, three Warren Watersports employees, including Bigler, addressed the Key West City Commission and requested the Commission to reduce the restriction for operation of jet ski rentals from 600 to 300 feet beyond the shoreline, stating that the 600 feet restriction would be detrimental to Warren Watersports' business. Wardlow never publicly announced at the City Commission meetings on April 5, 1994, and April 19, 1994, that he had financial ties to Warren Watersports and Bigler. Sara Sally Lewis, Charles Percy Curry, Jimmy Weekly, Harry Bethel, and Joseph Pais were Key West City Commissioners at the time of the April 5 and April 19 votes on the watersports ordinances. At no time prior to the votes did Wardlow disclose to them that he was being paid $100 per week by Warren Watersports. At the time Wardlow voted to amend the proposed ordinance to a 300-feet restriction, there were approximately twenty jet ski operators in Key West. The total amount Wardlow received from Bigler and Warren Watersports in 1992 was $1,000. Wardlow earned $8,717.17 as Mayor of Key West for 1992. He also received $5,009.00 in taxable interest and had a capital gain of $441.00. On his income tax return, he reported gross income from Aqua Clean Pool and Spa Service as $4,739.00, which included $700.00 for consulting. His total gross income for 1992 was $18,906.17. The total amount Wardlow received from Bigler and Warren Watersports in 1993 was $5,300. The parties stipulated that Wardlow earned $16,347.00 in total income from his public employment. Wardlow's income tax return filed for 1993, indicated that he received $16,047.63 from his public employment in 1993. The 1993 income tax return also stated that Wardlow received $4,071.00 as taxable interest. Wardlow's income tax return listed $5,200.00 as consulting income associated with Aqua Clean Pool and Spa Service. His total gross income for 1993 was $25,318.63. Wardlow sold his business, Aqua Clean Pool and Spa Service, in November 1991. The consulting fees listed on Wardlow's income tax return attributed to Aqua Clean Pool and Spa Service were apparently those received from Bigler. However, the contract was between Warren Watersports and Wardlow and not between Warren Watersports and Aqua Clean Pool and Spa Services Wardlow did not disclose Warren Watersports or Bigler as a source of income on his 1992 Form 1 Statement of Financial Interests. Wardlow did not disclose Warren Watersports or Bigler as a source of income on his 1993 Form 1 Statement of Financial Interests. The total amount that Wardlow received from Bigler and Warren Watersports in 1994 was $1,600. Wardlow did not file a Form 1 Statement of Financial Interests for 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dennis Wardlow did violate Sections 112.313(2),(4), (6), and (7)(a), 112.3143(3) and 112.3145, Florida Statutes; imposing a civil penalty of $5,000; issuing a public censure and reprimand; and ordering restitution to the State of Florida of the $7,900 that Dennis Wardlow received from Warren Watersports and John Bigler. DONE AND ENTERED this 26th day of June, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 26th day of June, 1998. COPIES FURNISHED: Eric S. Scott, Advocate Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza 01 Tallahassee, Florida 32399-1050 Michael Halpern, Esquire Michael Halpern, P.A. 209 Duval Street Key West, Florida 33040 Mel Black, Esquire 2937 Southwest 27th Avenue Miami, Florida 33133 Bonnie Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue is whether the Department of Transportation (the "Department") properly issued an Airport Site Approval Order to Monroe Airport, a private airport in Putnam County, in accordance with section 330.30, Florida Statutes, and Florida Administrative Code Rule 14-60.005.
Findings Of Fact The Department is the agency of the State of Florida granted authority to issue Airport Site Approval Orders, license public airports, and register private airports. § 330.30, Fla. Stat. A "public airport" is an airport, publicly or privately owned, that is open for use by the public. A "private airport" is an airport, publicly or privately owned, that is not open for use by the public but may be made available to others by invitation of the owner or manager. § 330.27(5)&(6), Fla. Stat. With some exceptions not relevant to this case, the owner or lessee of any proposed airport must obtain site approval from the Department "prior to site acquisition or construction or establishment of the proposed airport." § 330.30(1), Fla. Stat. Section 330.30(1) provides that applications for approval of a site "shall be made in a form and manner prescribed by the department." The statute requires the Department to grant the site approval if it is satisfied: that the site has adequate area for the proposed airport; that the proposed airport will conform to licensing or registration requirements and will comply with local land development regulations or zoning requirements; that all affected airports, local governments, and property owners have been notified and any comments submitted by them have been given adequate consideration; and that safe air-traffic patterns can be established for the proposed airport with all existing airports and approved airport sites in its vicinity. § 330.30(1)(a), Fla. Stat. Michael Monroe is the owner of property in Crescent City on which he proposes to place a private airport. Mr. Monroe has in fact constructed an airstrip on the property. In constructing his airstrip in 2008, Mr. Monroe caused the dredging and filling of jurisdictional wetlands without a permit. An enforcement action by the Department of Environmental Protection led to a consent order dated October 28, 2009. The consent order required payment of a civil penalty and required Mr. Monroe to undertake various actions in mitigation of his unpermitted wetlands activities. The Department's Aviation Office sent a cease and desist letter to Mr. Monroe, dated April 27, 2010, and signed by Micki Liddell, then the Department's Private Airport Registration Manager. The letter stated as follows, in relevant part: This letter is follow-up to our telephone conversation of this date regarding a citizen complaint received by the Florida Department of Transportation (FDOT) April 27, 2010, concerning allegations of flight operations to and from your property. The law (section 330.30, F.S.) states that the owner or lessee of any proposed airport shall obtain approval of the airport site by the Department and subsequently shall have either a public airport license or private airport registration "prior to the operation of aircraft to or from the facility." Our records show that neither an Airport Site Approval Order nor airport license or private airport registration have been issued by the Department for your residence. Flight operations to and from your residence would confirm that your residence is being used as an "airport" and being unauthorized by the Department would constitute a violation of Florida law and could put a site approval request in jeopardy. In that regard, the Department hereby advises you to cease all flight operations to and from your residence until such time as you have followed the appropriate procedures to obtain airspace approval from the Federal Aviation Administration (FAA), local zoning approval, airport site approval and private airport registration from the Department, provided your site meets the criteria of chapter 330, Florida Statutes. At the final hearing, Mr. Monroe testified that he had flown planes in and out of his property on four occasions prior to the issuance of the cease and desist letter. He stated that he has only flown a plane out of his property on one occasion since receiving the cease and desist letter, and that he had received verbal approval from the Department for the flight. On July 30, 2010, Mr. Monroe received airspace approval from the FAA for a private use landing area, with the following provisos: a) all operations will be conducted in VFR weather conditions; b) the landing area will be limited to private use; and c) an operational letter of agreement ("LOA") will be entered between Mr. Monroe, and the owners of nearby airfields Eagle's Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport, and Thunderbird Airpark, to provide for compatible traffic pattern operations, considering common radio frequencies, traffic pattern altitudes, and other items as appropriate. The FAA also recommended certain approach slope ratios and centerline separation from roads and other objects. On November 15, 2010, the FAA issued an amended determination providing a fourth condition to its approval: that all arrivals, departures and traffic pattern operations remain clear of a nearby military restricted area. In August 2010, Mr. Monroe applied to the Putnam County Zoning Board of Adjustment for a special use permit ("SUP") to allow a private airport on his property, which was zoned Agricultural. At its public meeting on October 20, 2010, the Zoning Board unanimously denied the SUP after hearing Petitioner and a representative of the U.S. Navy speak in opposition. The Navy had initially contended that the airport would be located within the restricted airspace of the Lake George bombing range. Further review confirmed that the airport was outside that particular restricted airspace, but the Navy continued to assert that the airport was within the generally restricted airspace of its military operating area. After clarifying that the airport property was not in restricted airspace, Mr. Monroe reapplied for the SUP in September 2011. By Final Order dated November 16, 2011, the Zoning Board issued SUP-11-009 to Mr. Monroe and his wife, finding that the Putnam County Land Development Code allowed for a private aircraft landing facility by SUP in an Agricultural zoning district and that the proposed special use "will not adversely affect the general public health, safety and welfare of the residents of Putnam County." Appended to the Final Order were minutes of the public hearings, schematics of Mr. Monroe's property, and a Department of Environmental Protection closure request form stating that the conditions of the October 28, 2009, consent order had been satisfactorily completed. On January 27, 2012, Mr. Monroe submitted a site approval application to the Department, using the interactive internet-based system established under rule 14-60.005(3)(b). Rule 14-60.005(4) sets forth the following as conditions for site approval: The Department shall grant site approval for a proposed airport that complies with all the requirements of section 330.30, Florida Statutes, subject to any reasonable conditions necessary to protect the public health, safety, or welfare. Such conditions shall include operations limited to VFR flight conditions,[2/] restricted approach or takeoff direction from only one end of a runway, specified air-traffic pattern layouts to help prevent mid-air collision conflict with aircraft flying at another nearby airport, airport noise abatement procedures in order to satisfy community standards, or other environmental compatibility measures. Rule 14-60.005(5)(a)-(m) sets forth the supporting documentation that an applicant for a public airport site approval must submit to allow the Department to make its site approval determination and "to ensure the applicant's satisfaction of conditions" set forth in subsection (4) above. The supporting documentation is as follows: Property Rights. Provide a copy of written legal confirmation of ownership, option to buy, or lease agreement for the real property that comprises the site on which the proposed airport would be located. Although adequate safety areas surrounding an airport site are important and a factor in the Department’s approval determination, the applicant is not required to hold property rights over those real property areas that would constitute runway approach surfaces. Facility Diagram. Provide a scale drawing showing the size and dimensions of the proposed facility; property rights of way and easements; lighting, power, and telephone poles; location of building(s) on property and surrounding areas; and direction, distance, and height of all structures over 25 feet within 1,000 feet of the site perimeter. Geodetic Position. Provide a copy of a U.S. Geological Survey quadrangle map or equivalent with the proposed site plotted to the nearest second of latitude and longitude. Location Map. Provide a copy of a map or sketch, at least 8.5 x 11 inches in size, showing the location of the proposed site, with respect to recognizable landmarks and access roads to the site clearly marked. Aviation Facilities. Provide a list of names and mailing addresses for adjacent airports, including a sample copy of the letter submitted as proposal notification to these airports, and attach a copy of all airport reply correspondence. For a proposed airport or seaplane landing facility, list all VFR airports and heliports within five nautical miles and all IFR airports within 20 nautical miles. For a proposed heliport, list all VFR airports and heliports within three nautical miles and all IFR airports within 10 nautical miles. Local Government. Provide a copy of each of the letters of notification, showing the recipient's name and mailing address, that have been submitted to each zoning authority having jurisdiction, for the municipality and county in which the site lies or which is located within five nautical miles of the proposed airport site. The applicant shall also include a copy of all related correspondence from each city or county authority, including a statement that the proposed airport site is in compliance with local zoning requirements or that such requirements are not applicable. Adjacent Property. Provide a list of the names and mailing addresses of all real property owners within 1,000 feet of the airport site perimeter, or within 300 feet of the heliport or helistop site perimeter, including a single copy of the letter of notification submitted as notification to these adjacent real property owners, and include a copy of all real property owner correspondence in reply. If notification was provided by a local government as part of its review and approval process for the airport, provide written confirmation of the fact, in lieu of the above required submittal by the applicant. Public Notice. Provide a copy of the notice and of the letter, showing the recipient's name and mailing address, requesting publication of notification of the proposed airport site in a newspaper of general circulation in the county in which the proposed airport site is located and counties within five nautical miles of the proposed airport site. If this condition has been accomplished by a local government as part of its review and approval process for the airport, provide written confirmation of the fact, in lieu of the above required submittal by the applicant. Waste Sites. Provide written confirmation that the runway(s) on the proposed airport would not be located within 5,000 feet of any solid waste management facility for a proposed airport serving only non-turbine aircraft, or within 10,000 feet of any solid waste management facility for a proposed airport serving turbine-driven aircraft. Air Traffic Pattern. Provide written confirmation, including a graphical depiction, demonstrating that safe air traffic patterns can be established for the proposed airport with all existing and approved airport sites within three miles of the proposed airport site. Provide a copy of written memorandum(s) of understanding or letter(s) of agreement, signed by each respective party, regarding air traffic pattern separation procedures between the parties representing the proposed airport and any existing airport(s) or approved airport site(s) located within three miles of the proposed site. Safety Factors. Provide written confirmation that the runway and taxiway design criteria and airport design layout of the proposed airport have appropriately taken into account consideration of the manufacturer's performance characteristics for the type(s) of aircraft planned to be operated; the frequency and type(s) of flight operations to be anticipated; planned aviation-related or non-aviation activities on the airport; and any other safety considerations, as necessary, to help ensure the general public health, safety, and welfare of persons located on or near the airport. Security Factors. Provide written confirmation that the proposed airport site owner or lessee will take appropriate steps to help protect the general public health, safety, and welfare through secure airport operations and that they will develop and implement adequate airport security measures to safeguard airport and aviation-related assets from misappropriation or misuse in order to prevent potential loss or public endangerment. FAA Approval. Provide a copy of the notification to the FAA regarding the proposed airport site and a copy of the FAA's airspace approval correspondence given in response. Rule 14-60.005(6) provides that an applicant for private airport site approval is subject to the same requirements as stated for a public airport site approval applicant. However, private airport applicants are not required to submit a hard copy, written site approval application nor the supporting documentation set forth in the preceding paragraph. Private airport site approval applicants are required to "retain for their records all of the required documentation related to the site approval application, in order to be able to respond to any possible future local, state, or federal inquiry." The private airport site approval applicant submits his application through a Department website. Once the applicant obtains a user ID and password to the site, he proceeds to an interactive site approval screen that requires him to provide the following data: type of facility (airport, heliport, or ultralight); personal information (name, address, phone number, fax number, and email address); facility data (facility name, physical location, geographical information -- latitude, longitude, and elevation -- and primary type of facility use); and landing area data (runway/helipad magnetic bearing, length, width, and type of surface -- paved/unpaved). The applicant is also required to certify that he has completed all the conditions set forth in rule 14-60.005(5)(a)- (m). The applicant must check a certification box next to each and every requirement of the rule. For example, as to the requirement of rule 14-60.005(5)(c), the applicant checks a box next to the following statement: Geodetic Position -- I certify that I have a copy of a U.S. Geological Survey quadrangle map or equivalent with the proposed site plotted to the nearest second of latitude and longitude. In other words, as a private airport applicant, Mr. Monroe was not required under the rule to submit the supporting documentation demonstrating his satisfaction of the conditions set forth in rule 14-60.005(5), but he was required to certify that at the time of his application he possessed all such documentation and was capable of submitting it in response to a governmental inquiry. On March 1, 2012, the Department issued an Airport Site Approval Order to Mr. Monroe, to be effective April 15, 2012. On April 6, 2012, Petitioner timely filed a challenge to the site approval order. Petitioner is the owner of property directly abutting the southeast corner of Mr. Monroe's property. Petitioner raises goats on her property, and contends that low- flying planes frighten her animals, causing them to stampede and injure themselves. Petitioner's challenge has stayed the effective date of the site approval order. David Roberts, the Department's aviation operations administrator, testified that in preparation for this proceeding he asked Mr. Monroe to produce all the documentation which he had certified to meet the requirements of rule 14-60.005(5)(a)- (m). The Department introduced into evidence all of the documents that Mr. Monroe provided in response to Mr. Roberts' request. As to rule 14-60.005(5)(a), Mr. Monroe provided copies of his deed for and mortgage on the Crescent City property sufficient to establish his property rights to the site on which the proposed airport is to be located. As to rule 14-60.005(5)(b), Mr. Monroe provided a hand drawing of the property indicating the configuration of the airstrip and showing the general locations of the entrance gate, barn, pond, bridge, and trailer on the property. The map is not drawn to scale and does not show property rights of way and easements or lighting, power and telephone poles. The map does not indicate the "direction, distance, and height of all structures over 25 feet within 1,000 feet of the site perimeter," but Mr. Monroe's testimony that there are no such structures is credited. As to rule 14-60.005(5)(c), Mr. Monroe provided a personally commissioned survey map of the property that the Department accepted as the "equivalent" of a U.S. Geological Survey quadrangle map. As to rule 14-60.005(5)(d), Mr. Monroe provided a map, but not one that showed "recognizable landmarks and access roads." As to rule 14-60.005(5)(e), Mr. Monroe submitted a list of five airports that met the notification requirement: Eagle's Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport, Thunderbird Airpark, and Palatka Municipal Airport, also known as Kay Larkin Field. Mr. Monroe also included a sample copy of the letter providing proposal notification to these airports. The only direct reply correspondence that Mr. Monroe submitted was an emailed letter of congratulations from the manager of Palatka Municipal Airport, dated May 15, 2012. Mr. Monroe also submitted a June 10, 2012, email from Jim Manus of Royal Park Airport in support of Mr. Monroe's intent to align his common traffic advisory frequency ("CTAF") with that of Mount Royal and Eagle's Nest. The tone of Mr. Manus' correspondence indicates approval of Mr. Monroe's airport. No response was provided from Jim Finlay, Thunderbird, or Eagle's Nest.3/ As to rule 14-60.005(5)(f), Mr. Monroe provided copies of his letters of notification to the Marion County director of growth management and the Volusia County growth and resource management office. Volusia County responded by stating that it took no issue with the proposed airport and that the FAA had informed the county that it needed to take no action on the matter. Mr. Monroe provided no response from Marion County. As to the notice requirements of rule 14- 60.005(5)(g)&(h), Mr. Monroe provided a list of names and addresses of nearby property owners along with a letter of notification dated August 30, 2004, stating Mr. Monroe's intention to establish an airstrip on his property. He included no reply correspondence. Petitioner rightly argues that an eight-year-old letter cannot be held to meet the notice requirement of the rule. Though the rule does not state a temporal limitation as to the notice, the context of the notice requirement clearly requires the applicant to provide his neighbors with notice of the pending site approval. However, Mr. Monroe also provided the receipt from a newspaper notice that he ran in 2010 regarding his SUP application and he credibly testified that the county notified his neighbors prior to issuance of the SUP. Thus, the requirements of rule 14- 60.005(5)(g)&(h) were met. As to rule 14-60.005(5)(i), Mr. Monroe submitted documentation that demonstrated there are no active solid waste management facilities within the prescribed distances. As to rule 14-60.005(5)(j), Mr. Monroe provided a graphical depiction of the traffic pattern and approaches to his own proposed airport. The depiction also lists radio frequencies for Mr. Monroe's airport, Mount Royal, and Eagle's Nest. Mr. Monroe did not submit any documentation to demonstrate that safe traffic patterns can be established for the proposed airport with all existing airport sites within three miles of the proposed airport. Mr. Monroe also did not submit written memoranda of understanding or letters of agreement with the other airports as regards air traffic pattern separation procedures. As to rule 14-60.005(5)(k)&(l), Mr. Monroe submitted an opinion letter from aviation consultant Robert E. Babis, dated April 19, 2012, addressing safety and security factors at the proposed airport. Mr. Babis stated that he was a retired Department public transportation manager, a flight instructor, airport inspector, and aviation planner. Mr. Babis further stated that he has inspected and landed at over 200 private airports in Florida. Mr. Babis concluded that Mr. Monroe's airport "is a safe and secure facility with a very low risk for operational accidents or illegal activities." The Department reasonably accepted this letter as satisfying the criteria of rule 14-60.005(5)(k)&(l). As to rule 14-60.005(5)(m), Mr. Monroe submitted a copy of his amended FAA approval determination, dated November 15, 2010. Petitioner noted that Mr. Monroe has yet to fulfill one of the conditions of the FAA determination: he has yet to produce an operational LOA with the owners of Eagle's Nest, Mount Royal, Jim Finlay, and Thunderbird to provide for compatible traffic pattern operations, common radio frequencies, traffic pattern altitudes, and other items as appropriate. In summary, the evidence presented at the hearing demonstrated that, despite his certification otherwise, Mr. Monroe did not possess all the documentation required by rule 14-60.005(5)(a)-(m). Mr. Monroe did not meet the requirement of paragraph (b) that he provide a scale drawing showing property rights of way or easements, lighting, power and telephone poles. He did not meet the requirement of paragraph (d) that his map show recognizable landmarks and access roads. Most importantly, Mr. Monroe did not meet the requirement of paragraph (j) that he submit documentation demonstrating that safe traffic patterns can be established for the proposed airport with all existing airports within three miles. This failure, coupled with Mr. Monroe's failure to fulfill his commitment to the FAA that he would enter an LOA with the owners of four nearby airports, not to mention Mr. Monroe's history of building his airstrip and flying in and out of his property before obtaining legal permission to do so, indicates a casual approach to regulatory compliance that should give the Department pause in granting site approval. At the final hearing, Mr. Roberts of the Department testified that because a private applicant such as Mr. Monroe is not required to submit his supporting documentation to the Department to demonstrate compliance with rule 14-60.005(5)(a)- (m), the Department may not deny the site approval to Mr. Monroe once he has certified that he has all the documentation. Mr. Roberts testified that the Department's only recourse upon learning that Mr. Monroe in fact does not have the documentation would be to revoke the site approval order. The Department's rule sets forth the criteria for revocation of a site approval order. One of the grounds for revocation is a Department determination that "aircraft have operated on the site prior to airport licensing or registration, except as required for an in-flight emergency." Fla. Admin. Code R. 14-60.005(8)(b)3. By his own admission, Mr. Monroe flew into and out of his property prior to registration.4/ However, Mr. Roberts testified that the Department could not base a revocation action on those flights because they occurred prior to the date on which Mr. Monroe applied for site approval. Mr. Roberts could cite to no language in the rule that supported his restrictive view of the revocation provision. The Department does not persist in supporting Mr. Roberts' reasoning in its Proposed Recommended Order. The Department concedes that Mr. Monroe has failed to meet all the documentation criteria set forth in the rule and that it has the authority to deny the site approval order. The Department does not concede that the maps submitted in response to paragraphs (b) and (d) of rule 14-60.005(5) are deficient, but it does concede that Mr. Monroe failed to comply with paragraph (j) regarding the LOA setting forth jointly agreed-upon departure and arrival routes and common radio frequencies with the other nearby airports. The Department argues that Mr. Monroe should nonetheless be granted a Site Approval Order, subject to the condition that Mr. Monroe enter into an LOA establishing safe traffic patterns and radio frequencies with all airfields within three miles of his facility. The Department notes that if Mr. Monroe's application were denied in this proceeding, he could immediately procure the LOA and reapply. Granting the site approval in this proceeding would merely obviate the need for Mr. Monroe to take that largely redundant step. As authority for its contention that it may issue a site approval order prior to an applicant's compliance with all provisions of rule 14-60.005(5), the Department cites section 330.30(1)(d), which states: "Site approval may be granted subject to any reasonable conditions the department deems necessary to protect the public health, safety, or welfare."5/
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 site approval application of Michael D. Monroe and withdrawing the Airport Site Approval Order issued to Mr. Monroe on March 1, 2012, Site Approval Number SW2012-FLA-0117-AP. DONE AND ENTERED this 21st day of February, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2013.
The Issue The issue in this case is whether the Petitioner, Geraldine Maguire, has demonstrated, pursuant to the Vested Rights Review Process of Clay County, Florida, that a vested rights certificate to develop certain real property located in Clay County should be issued by Clay County, notwithstanding the fact that such development will not be in accordance with the requirements of the Clay County 2001 Comprehensive Plan.
Findings Of Fact The Subject Property. The property at issue in this proceeding consists of approximately 28 acres of land located in Clay County, Florida. The subject property is known as “Elmwood Subdivision”. Elmwood was acquired in the early 1960s by Elliott Maguire and his spouse at that time. Elliott Maguire became sole owner of the Elmwood in 1964. Elmwood is bordered on the north by Shedd Road, on the east and part of the south by Brown’s Barn Road and on the west by Duval Avenue. All of the roads that surround Elmwood are unpaved Clay County roads. Clay County has maintained these roads before and after Mr. Maguire began to develop Elmwood. In 1978 Elliott Maguire and Geraldine Maguire deeded a sixty foot right of way on Barnes Barn Road to Clay County. Clay County accepted the right of way at a meeting of the County Commission on October 10,1978. The evidence failed to prove, however, that the right of way was given in reliance upon any promise or representation from Clay County concerning development of Elmwood. The easement was for right of way already used for Barnes Barn Road. The evidence failed to prove that the easement had anything to do with the development of Elmwood. Mr. Maguire decided to develop Elmwood during the 1970s. He created an unplotted subdivision with 23 lots, all over an acre in size. Mr. Maguire intended to sell the lots as single- family home sites. Mr. Maguire had the property cleared, swales and easements were graded and storm drainage structures were cleared and installed. Mr. Maguire hired a surveyor and an engineer for the project. Mr. Maguire, the surveyor and the engineer discussed the project with Mr. Bowles, Clay County Public Works Director at the time. The evidence failed to prove that John Bowles made any representations concerning the development of Elmwood. Easement and drainage work on Elmwood was completed in 1979. The first lots were sold in 1981. A total of 8 lots were sold between 1981 and 1984. A copy of the engineering plans for Elmwood were provided to Clay County in 1978. Government Action Relied Upon by Petitioner. Prior to September of 1985 Clay County did not require platting of subdivisions such as Elmwood. The only specific restriction on the development of Elmwood when Mr. Maguire began development was that the density was limited to one unit per acre. This restriction was part of the zoning category of the property. Detrimental Reliance. Mr. Maguire incurred costs in his development of Elmwood. Among other things, Mr. Maguire incurred expenses of approximately $20,000.00. Due to he adoption of the Clay County 2001 Comprehensive Plan in 1992, the remaining unsold 15 lots of Elmwood may be used for only 3 additional residences. The approximate fair market value of the 15 lots is approximately $12,000 to $15,000 per lot. The fair market value of the 3 allowable lots is $20,000 to $25,000. The evidence, however, failed to prove that any of the expenses incurred in developmenting Elmwood or the loss in value of the remaining lots is attributable to any representation of Clay County that Elmwood could be developed as an unplatted subdivision indefinitely into the future.
The Issue The issue is whether ten applications filed by Petitioner, Normandy Shores, LLC, for an exemption from Environmental Resource Permit (ERP) requirements to construct and install ten docks to serve eighteen private boat slips and a letter of consent to use sovereign submerged lands in Indian Creek, within the Biscayne Bay Aquatic Preserve (Preserve), Miami Beach, Florida, should be approved.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: Background The Department is the agency responsible for administering the provisions of Part IV, Chapter 373, Florida Statutes,2 regarding activities in surface waters of the State that may or may not require an ERP. Florida Administrative Code Rule 40E-4.051(3) authorizes the Department to approve exemptions from ERP requirements for the construction of certain docking facilities and boat ramps. In addition, the Department has authority from the Board of Trustees of the Internal Improvement Trust Fund to review and take final agency action on Petitioner's requests for proprietary authorizations. Petitioner is a developer of residential and commercial properties. It owns waterfront land on the eastern side of Normandy Isle at 25-135 North Shore Drive, Miami Beach, Florida. Normandy Isle is surrounded by water, lies just west of Miami Beach, and is accessed by the John F. Kennedy Causeway (also known as 71st Street or State Road 934), which runs between the Cities of Miami and Miami Beach. Normandy Waterway runs in an east-west direction through the center of Normandy Isle, while Indian Creek appears to generally run in a northwest-southeast direction between Normandy Isle and Miami Beach. (Petitioner's property is on the northern half of the island.) Both of these waterbodies are in the northern portion of the Preserve, a Class III and Outstanding Florida Water. The Preserve is a body of water that stretches the length of Miami-Dade County, essentially from Broward County to Monroe County. The property adjoins Indian Creek to the east (the long side of the parcel) and Normandy Waterway to the south (the short side of the parcel) and is situated at the intersection of those two waterways. Petitioner is currently developing the property as Privata Townhomes (Privata), a luxury townhome community. Petitioner holds title to the property and a portion of submerged lands of Indian Creek and Normandy Waterway. The boundaries of the privately-owned submerged lands are accurately depicted in Petitioner's Exhibit 12. The Privata development comprises a total of forty- three, single-family townhomes in seven buildings. Eighteen townhomes are being constructed as waterfront homes along Indian Creek (buildings 1, 2, and 3). Seven are being constructed as waterfront homes along Normandy Waterway (building 4), while the remaining eighteen townhomes (buildings 5, 6, and 7) are not situated on waterfront property. Each waterfront parcel is approximately eighteen linear feet wide and consists of both upland and private submerged lands. The private submerged lands facing Indian Creek run the entire length of the property and extend approximately ten feet from the shoreline. On October 1, 2007, Petitioner filed with the Department ten applications for an exemption and letter of consent to construct ten docks (docks 1 through 10) and eighteen boat slips. The proposed docks will be located on the shoreline extending into Indian Creek and the Preserve. Docks 1, 2, 4, 5, 6, 8, 9, and 10 will serve two slips each, or a total of sixteen slips, while docks 3 and 7 will project outward from one single- family parcel each and will be wholly-owned by that respective single-family parcel owner. All of the docks will be spaced less than sixty-five feet from one another. According to Petitioner, the Department has already given Petitioner authorization to construct three docks for the units in Building 4 facing Normandy Waterway to the south, and they are not in issue here. The basis for that authorization, and the distinction between those docks and the ones in dispute here, are not of record. Each of the docks will be built using four pilings with forty square feet of decking. Therefore, each dock will be less than five hundred square feet of surface area over the surface waters. Associated with the docks are eighteen boat slips that will include an additional pile installed approximately thirty feet from the shoreline. The slips and docks are exclusively for the private use of, and will be owned by, the waterfront townhome owners. The eighteen non-water townhome parcel owners will not have any rights to submerged lands owned in fee simple by the purchasers of the waterfront townhomes or the right to use any slip or dock. This is confirmed by Article II, Section 1 of the Declaration of Covenants, Restrictions and Easements for Privata Town Homes at Miami Beach (Declaration of Covenants). There have been docks and vessel moorings at the project site for at least forty years. However, the docks do not qualify for automatic grandfathering because a grandfather structure application was never submitted to the Department, as required by Florida Administrative Code Rule 18-21.0081. After reviewing the applications, the Department issued its Notice of Intent on December 13, 2007, as later amended on September 13, 2008, denying all ten applications. Citing Florida Administrative Code Rule 40E-4.051(3)(b), the Department asserted that "the proposed docks are part of a multi-family living complex and therefore must be a minimum of 65-ft. apart in order to qualify for the exemption." As to the letter of consent, the Department asserted that based upon the upland development at the site, the proposed docks constituted a private residential multi-family dock or pier, as defined by Florida Administrative Code Rule 18-21.003(44). In addition, the Notice of Intent stated that the proposed docks fell within the definition of a "commercial/industrial dock," as defined in Florida Administrative Code Rule 18-18.004(7), and therefore they required a lease (rather than a letter of consent) in accordance with Florida Administrative Code Rule 18- 18.006(3)(c). Thus, the Department takes the position that an ERP and a lease are required before the docks may be constructed. The parties have raised no issues regarding riparian rights. By an amendment to its Notice of Intent issued on September 13, 2008, the Department added as a reason for denying the letter of consent that the docks will cause unacceptable cumulative impacts on the Preserve within the meaning of Florida Administrative Code Rule 18-18.008. The Development Each townhome occupies three stories of vertical, independent space. No unit is situated over any other unit. Each townhome has a separate entrance through its own front door, and each has its own garage. The townhomes in each building share a single wall. Petitioner stated that this was done because if the units were constructed with a narrow space between them, it would create safety, fire, water moisture, and mold issues. However, there is no cross-access between the units, and there is no penetration (such as common plumbing, fire sprinklers, or electrical conduits) through the load-bearing walls. Even so, the units have various common structural elements such as bearings, bearing walls, columns or walls necessary to support the roof structure, and siding, finish, trim, exterior sheatings (coverings), and other exterior materials. There is a common area that runs the entire length of shoreline between the buildings and the water. Within the common area there is a seawall, sidewalk, pool, and grassy area that are accessible by any member of the Privata Homeowners' Association (Association). According to the Declaration of Covenants, the Association is responsible for painting the exteriors of the buildings, including the walls, doors, and windows; maintaining and repairing the docks and seawalls; and maintaining the common areas. Members who own docks will pay a higher fee to the Association than non-waterfront owners to offset the additional costs associated with maintaining and repairing the docks. Eighteen of the waterfront townhome parcels are currently under purchase and sale agreements. The boat slips were one of the main selling features of the waterfront townhomes. In fact, the sales are contingent on the docks being constructed, and Petitioner concedes that if the docks are not built, the buyers will not be required to close on their contracts. In its Privata marketing brochures, Petitioner refers to "private boat docks" and owners having "a private boat slip right in their own backyard" that is "[a]ble to accommodate vessels up to 40 feet." It is fair to infer from the evidence that the docks were used as a major inducement for customers to purchase the waterfront parcels. Exemption from an ERP Florida Administrative Code Rule 40E-4.051(3)(b)4. provides in relevant part that no permit shall be required for (b) The construction of private docks of . . . 500 square feet or less of surface area over wetlands or other surface waters for docks which are located in Outstanding Florida Waters. . . . To qualify for this exemption, any such structure: * * * 4. Shall be the sole dock constructed pursuant to this exemption as measured along the shoreline for a minimum distance of 65 feet, unless the parcel of land or individual lot as platted is less than 65 feet in length along the shoreline, in which case there may be one exempt dock per parcel or lot. For the purposes of this paragraph, multi-family living complexes and other types of complexes or facilities associated with the proposed private dock shall be treated as one parcel of property regardless of the legal division of ownership or control of the associated property. . . . (Emphasis added) Under the rule, an applicant will not qualify for an exemption from permitting requirements if the upland structure of a project site is a multi-family complex or facility. In those cases, the owner of the project site is allowed to construct one dock per sixty-five feet of shoreline (assuming the size of the dock comports with the rule). The rule specifically provides that the legal division of ownership or control of the property is not relevant in making this determination. The underscored language in the rule is at the heart of this dispute. The parties sharply disagree over whether the Privata development consists of single-family units or whether it is a multi-family living complex. Although the term "multi- family living complexes and other types of complexes or facilities" is not further defined by the rule, the Department has consistently (with one exception cited below) interpreted this provision to include buildings with so-called "attached townhomes." Because the Privata townhomes share a wall with a neighbor, as well as other common facilities, the Department considers each building on the uplands to "house multiple families." Put another way, multiple families will live in each structure (building). On the other hand, if the units were detached and free-standing, even by a few inches, the Department agrees they would probably fall within the category of "individual, detached, single-family homes." The greater weight of evidence supports a finding that the upland project is a multi-family living complex. This is because the project has the attributes of a multi-family complex, such as units sharing a common wall, multiple families living in each building, and common areas accessible for each member of the project. While Petitioner points out that each townhome owner has fee simple title to his or her upland parcel and the ten feet of adjoining submerged lands, the rule specifically provides that the division of ownership and control of the property is immaterial to the ultimate determination of whether the property qualifies for an exemption. Given these considerations, it is found that the project does not meet the requirements for an exemption from ERP requirements under Florida Administrative Code Rule 40E-4.051(3)(b)4.3 Letter of Consent A letter of consent is a form of authorization, but does not by itself determine whether a project is approvable or not.4 In order to qualify for a letter of consent, the docks would first have to be exempt from ERP requirements. As noted in finding of fact 20, they are not. The "18 series rules [in the Florida Administrative Code] are proprietary, essentially, real estate rules" that apply to the use of state owned, submerged lands. (Transcript, page 370). General guidance or "overarching" submerged lands rules are found in Florida Administrative Code Rule Chapter 18-21, while rules specific to the Preserve are found in Florida Administrative Code Rule Chapter 18-18. Both sets of rules apply here. The dispute over the letter of consent centers on whether the dock is a "private dock" or a "commercial/industrial dock," as those terms are defined by the rules. The former does not require a lease, while the latter does. See Fla. Admin. Code R. 18-18.006 (3)(c)("A commercial/industrial dock on sovereignty lands shall require a lease. Private docks to be constructed and operated on sovereignty lands shall not require a lease of those lands.") A private dock is defined in Florida Administrative Code Rule 18-18.004(18) as a dock located on or over submerged lands, which is used for private leisure purposes for a single family dwelling unit and does not produce income. On the other hand, a commercial/industrial dock is defined in subsection (7) of the same rule as a dock which is located on or over submerged lands and which is used to produce income, or which serves as an inducement to renting, purchasing, or using accompanying facilities including without limitation multi-family residential facilities. This term shall be construed to include any dock not a private dock. Therefore, a dock may constitute a commercial/ industrial dock if it is associated with a multi-family facility; if it is used as an inducement to rent, purchase, or use accompanying facilities; or if the dock does not constitute a private dock, which is used for a single-family upland facility. The more persuasive evidence here shows that the docks are associated with a multi-family facility; they are used as an inducement to purchase the units; and they are not used for a single-family upland facility. For any one of these reasons, then, the docks must be categorized as commercial/ industrial docks. Although the term "multi-family residential facilities" is not specifically defined in Chapter 18-18, another proprietary rule provides clarification of that term. See Fla. Admin. Code R. 18-21.003(44). That rule defines the term "private residential multi-family dock or pier" as a dock or pier on a common riparian parcel or area that is intended to be used for private recreational or leisure purposes by persons or groups of persons with real property interest in a multi-family residential dwelling such as a duplex, a condominium, or attached single-family residences or a residential development such as a residential or mobile home subdivision. (emphasis added) As noted earlier, both Chapters 18-18 and 18-21 should be read in conjunction with each other. When doing so, it is found that the proposed docks are associated with "attached single-family residences" (by virtue of sharing a common wall) and fall within the definition of a commercial/industrial dock. Therefore, they do not qualify for a letter of consent. Cumulative Impacts The waterbody in issue here is an Aquatic Preserve, that is, "an exceptional area of submerged lands and its associated waters set aside for being maintained essentially in its natural or existing condition." § 258.37(1), Fla. Stat. The Legislature intended for the submerged lands and associated waters to be maintained "in an essentially natural condition so that its biological and aesthetic values may endure for the enjoyment of future generations." § 258.397(1), Fla. Stat. See also Fla. Admin. Code R. 18-18.001(1). "Essentially natural condition" is defined as "those conditions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve." Fla. Admin. Code R. 18-18.004(10). In determining whether a letter of consent for new docks and piers in the Preserve should be approved, Florida Administrative Code Rule 18-18.008 requires that the Department consider the cumulative impacts of those projects. The burden rests on the applicant to provide reasonable assurances that the project will not cause adverse cumulative impacts upon the natural systems. In meeting this stringent test, the rule recognizes that "while a particular alteration of the preserve may constitute a minor change, the cumulative effect of numerous such changes often results in major impairments to the resources of the preserve." The rule goes on to identify five factors that the Department must consider as a part of its cumulative impact evaluation. In this case, the Department considered "the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve"; the "similar activities within the preserve which are currently under consideration by the Department"; and the "[d]irect and indirect effects upon the preserve which may reasonably be expected to result from the activity." See Fla. Admin. Code R. 18-18.008(1), (2), and (3). The fact that the Department discussed only the first three considerations, rather than all five, in its Amended Notice of Intent does not render its evaluation improper or incomplete, as suggested by Petitioner.5 If authorized, the project will allow eighteen boats to dock at Privata along Indian Creek. Although the marketing brochures indicate that boats up to forty feet in length will use the slips, the evidence at hearing indicates that they will be no more than twenty-five feet in length. The project adheres to best management practices. Also, the number of docks was limited by means of dock-sharing for eight of the ten docks. The docks are designed so that boats will be moored parallel to the shoreline rather than horizontal to the seawall; the docks will be over six feet above mean high water; and the docks will be constructed from materials designed to minimize environmental impacts. As noted above, the Preserve extends from Broward County to Monroe County. Within the Preserve, there are literally thousands of docks, including single docks, multifamily docks, and commercial and industrial marinas. Closer to the Privata project, there are docks, boat lifts, cranes, davits (small cranes used for boats, anchors, or cargo), and marinas located on both sides of Indian Creek. The development along Indian Creek and Normandy Waterway includes commercial, multifamily, and single-family docks. Due to heavy boat traffic and extensive development around Indian Creek, it is fair to say that the project is in a high turbidity area. Besides the applications here, there are "several" other applications now pending before the Department for docks, piers, and slips within the Preserve. Two in-water environmental resource surveys by the Department revealed that resources such as paddle grass, Johnson's grass (a threatened species), shoal grass, turtle grass, manatee grass, soft coral, sponge, oysters, and sea urchins are present in the immediate area. However, it is fair to infer that these marine resources have adapted to the existing conditions and are able to withstand the stress created by the heavy usage. The evidence is sharply in dispute over whether the project is reasonably expected to have direct or indirect adverse impacts on the natural systems of the Preserve. Petitioner contends that because a small number of docks and slips are being proposed, best management practices will be used in constructing the docks and slips, the area around Indian Creek is already heavily developed, and the natural resources in Indian Creek appear to have adapted to the stress created by the other activities, the effect on the Preserve's natural systems will be de minimus. There are literally thousands of similar activities and human actions that have already affected the Preserve and are reasonably expected to continue in the future. Other applications to engage in similar activities are now pending, and it is reasonable to assume that others will be filed. The natural resources in the immediate area are diverse, as described by the Department witnesses, including at least one threatened species. There will be direct and indirect impacts that are reasonably expected to occur from the docks and mooring areas such as increased shading and decreased water quality. When the impacts of the Privata project are viewed in isolation, they can be considered "a minor change." However, the cumulative effect of this and other changes can result in adverse impacts to the natural systems. Fla. Admin. Code R. 18- 18.008. The more credible evidence supports a finding that the proposed activities will cause direct and indirect adverse impacts on the Preserve's natural systems, so that the submerged lands and associated waters will not be maintained "essentially in [their] natural or existing condition." Fla. Admin. Code R. 18-18.001(1). Therefore, in this respect, the requirement of the rule has not been met. Other Projects in the Preserve Petitioner points out that in June 2001, as later modified in April 2002, another project in the Preserve known as Aqua at Allison Island was given an exemption to construct fifteen single-family docks, nine of which were intended for private use and six to serve as shared structures for adjacent property owners. See Petitioner's Exhibits 28 and 29. The project site lies just south of Normandy Isle on Allison Island, which adjoins Indian Creek and involved a similar upland development of attached townhomes. While the Department concedes that this action occurred, no other project of this nature has ever been granted an exemption or letter of consent to construct docks and use state-owned submerged lands within the Preserve. The Department further explained that it "made an error" when it granted an exemption for the project at Aqua at Allison Island, and that with this single exception, it has consistently denied all similar applications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's ten applications for an exemption from ERP requirements and a letter of consent to use sovereign submerged lands to construct ten docks and associated slips on Indian Creek in Miami Beach, Florida. DONE AND ENTERED this 2nd day of March, 2009, in Tallahassee, Leon County, Florida. S DONALD 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 2nd day of March, 2009.
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 is whether Florida Administrative Code Rule 61G14-22.012 is an invalid exercise of legislatively delegated authority in violation of section 120.52(8), Florida Statutes (2014).
Findings Of Fact Petitioner BBP is an association of harbor pilots that performs the pilotage services at PortMiami. BBP consists of pilots licensed by the State of Florida in accordance with chapter 310, Florida Statutes. Petitioner PEPA is an association of harbor pilots that performs the pilotage services at Port Everglades. PEPA consists of pilots licensed by the State of Florida in accordance with chapter 310. FHPA is a statewide organization representing the interests of Florida’s approximately 100 state-licensed harbor pilots, the membership of which is comprised of the eleven local pilot associations that serve each of Florida’s 14 deep-water ports. BBP and PEPA are members of FHPA. Chapter 310 governs pilots, piloting, and pilotage in the waters, harbors, and ports of Florida. Section 310.141, Florida Statutes, requires that, except in certain narrow circumstances, all vessels shall have a licensed state pilot or deputy pilot on board to direct the movements of the vessel when entering or leaving ports of the state or when underway on the navigable waters of the state’s bays, rivers, harbors, and ports. Section 310.011 creates the 10-member Board of Pilot Commissioners (“BOPC” or “Board”); each member is appointed by the Governor “to perform such duties and possess and exercise such powers relative to the protection of the waters, harbors, and ports of this state as are prescribed and conferred on it in this chapter.” In addition to other responsibilities, the Board determines the number of pilots in each port (section 310.061) and disciplines licensed pilots when appropriate (section 310.101). Although the BOPC has numerous statutory responsibilities, setting the rates of pilotage in each port is not one of them. Florida Administrative Code Rule 61G14-22.012 (“challenged rule” or “rule”) is entitled “Determination of Disputed Issues of Material Fact; Formal or Informal Hearings.” 5. Rule 61G14-22.012 cites section 310.151(1)(c) as specific authority. The challenged rule lists as “Law Implemented” sections 310.151 and 120.57. The former Pilotage Rate Review Board originally adopted the rule in 1995. When the Legislature amended chapter 310 in 2010, the former Pilotage Rate Review Board’s name was changed to the Pilotage Rate Review Committee (“PRRC” or “Committee”). The Committee consists of seven members, all of whom are also members of the BOPC. The PRRC is responsible for setting rates of pilotage in each port. On November 5, 2014, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” PRRC members voted at that meeting to repeal rule 61G14-22.012, but determined they did not have enough information to know if a Statement of Estimated Regulatory Costs was required. On December 11, 2014, the BOPC/PRRC published a second notice in the Florida Administrative Register announcing a telephone conference call meeting for consideration of “Rate Review Committee Rules.” At that meeting, the PRRC voted to reconsider its original vote to repeal rule 61G14-22.012, but because the issue of potential reconsideration had not been properly noticed, no official vote on reconsideration was taken. On January 7, 2015, the BOPC/PRRC published a notice in the Florida Administrative Register announcing a meeting on January 22, 2015, and January 23, 2015. Among the subjects noticed for consideration was “Reconsideration of Repeal of Rule 61G14-22.012, F.A.C.” This matter was considered by the PRRC on January 23, 2015. By a 5-2 vote, the Committee voted against repealing rule 61G14-22.012. FCCA is a trade association representing cruise lines that are subject to pilotage fees pursuant to chapter 310, Florida Statutes. FCCA has filed petitions to reduce the rates of pilotage in both PortMiami and in Port Everglades.
