The Issue The issue is whether Plan Amendment 07-08 adopted by the City of Tampa (City) by Ordinance No. 2008-145 on August 21, 2008, is in compliance.
Findings Of Fact Based upon all of the evidence, the following facts are determined: The Parties The City is a municipality in Hillsborough County and has adopted a Plan that it amends from time to time. Its current Plan, as amended, was adopted in 1998 and has been determined to be in compliance. Since 2007, the City has participated in the Pilot Program for adoption of plan amendments, a process described in Section 163.32465, Florida Statutes. Under the Pilot Program, municipalities have "reduced state oversight of local comprehensive planning," and plan amendments may be enacted in "an alternative, expedited plan amendment adoption and review process." Id. The amendment being challenged here was adopted under the Pilot Program. The Department is the state land planning agency and is statutorily charged with the duty of reviewing plan amendments. Pursuant to the Pilot Program, the City must send a plan amendment transmittal package to the Department (and other designated agencies and entities) for its preliminary review. However, the Department does not issue an Objections, Recommendations, and Comments Report or a notice of intent. Instead, it "may provide comments regarding the amendment or amendments to the local government." § 163.32465(4)(b), Fla. Stat. The Department may also initiate an administrative proceeding for the purpose of determining whether an amendment is in compliance. See § 163.32465(6)(b), Fla. Stat. Florida Rock owns property and operates a business within the City and submitted oral and written comments in support of the proposed amendment. The facts establish that it is an affected person and has standing to participate in this proceeding. The Air Force owns property abutting Florida Rock's property and on which MacDill is located. The Air Force submitted written and oral comments to the City in opposition to the plan amendment. As such, it is an affected person and has standing to participate in this proceeding. Background A part of the City extends down a peninsula known as Interbay Peninsula with Hillsborough Bay to the east, Tampa Bay to the south, and Old Tampa Bay to the west. MacDill is located at the southern tip of the peninsula and consists of 5,767 acres. The facility was established in 1941. Its primary runway (Runway 4/22) is 11,421 feet long, exclusive of the 995- foot overrun, and runs in a southwest-northeast direction. Because of prevailing winds and its proximity to other airports in the St. Petersburg area to the west, the majority of the takeoffs are to the northeast. Around ninety percent of the landings are from the southwest (over Tampa Bay on the approach) to the northeast. Florida Rock owns two adjoining parcels of land on Interbay Peninsula, totaling 25.51 acres, located at 6604 South Dale Mabry Highway, which is a commercial corridor. The property lies just south of InterBay Boulevard, a few hundred feet west of Himes Avenue, and directly north of MacDill. At its closest, the site is less than three thousand feet from the edge of the overrun portion of the active runway. To the north and east of the property are residential properties, many of which were developed between 1940 and 1959. Another surge of development occurred in the 1980s. The properties to the north have residential land use designations. Future residential development of parcels to the north and east are capped at ten units per acre because of their location near MacDill. Directly to the south of the property is a vacant parcel with a Light Industrial land use. To the east of that property is land used as a park and includes baseball and soccer fields. MacDill lies south of the vacant parcel. The existing uses west of the property (and to the west of Dale Mabry Highway) are commercial, industrial, apartment, and office. The subject property has been classified as Light Industrial under the City's Plan. As the name implies, that land use category allows for light industrial uses that have only minimal offsite impacts such as noise and odor, along with offices, manufacturing, warehousing, and other general commercial uses. Residential uses are prohibited under this category. Development is subject to a maximum floor area ratio of 1.5. (Floor area ratio measures the intensity of non- residential land uses.) Currently, a warehouse distribution facility (truck terminal) owned by Florida Rock is located on the northern end of the property. Approximately one-half of the parcel is vacant. A small part of the property (between eight and nine acres) on the southern end is wetlands and has been designated as an environmentally sensitive area by the Planning Commission. On March 8, 2007, Florida Rock filed an application with the Planning Commission to change the land use on the property from Light Industrial to Community Mixed Use-35 (CMU- 5). See Joint Exhibit 2. The proposed use of the property was described in the application as a "Mixed Use Development." Id. The new land use designates "areas suitable for general commercial, professional office, and multi-family development" and, absent any other limiting conditions, would permit a development potential of eight hundred ninety-two residential units or a maximum commercial buildout of almost 1.7 million square feet. No text amendments were proposed. On March 31, 2008, the Planning Commission recommended approval of the application and forwarded that recommendation to the City. On April 10, 2008, the City held its first public hearing on the amendment and voted to transmit the plan amendment to the Department and other entities that are required by law to receive copies of the amendment and supporting data and analyses. See § 163.32456(4)(a), Fla. Stat. The proposed amendment and supporting data and analyses were submitted to the Department and other entities on April 11, 2008. See Florida Rock Exhibit 2. Comments regarding the amendment were submitted by the Department to the City on May 14, 2008. See Department Exhibit Comments were also filed by the Air Force, the Florida Department of Transportation, and the Tampa Bay Regional Planning Council, all voicing concerns.4 The Department concluded its comments by stating that it "strongly urges the City not to adopt the amendment." Id. Notwithstanding the adverse comments, on August 21, 2008, the City adopted Ordinance No. 2008-145, which approved the application and changed the land use on Florida Rock's property to CMU-35. To counter at least in part the objections lodged by the Department and Air Force, the Ordinance contained a condition that "[r]esidential density shall not exceed ten (10) units per gross residential acre of land and/or a floor area ratio of 1.5." See Florida Rock Exhibit 3. This limitation on residential development is consistent with Future Land Use Element (FLUE) Policy A-3.1, adopted in 1989, which limits new residential development within the MacDill and Tampa International Airport flight paths, also known as Accident Potential Zones, to ten dwelling units per acre. Under either category, Florida Rock can build more than 1.5 million square feet of commercial uses. More than likely, the potential residential (and/or commercial) development on the property will be something less than ten dwelling units per acre because of setback, parking, mitigation, and other miscellaneous requirements. Also, density bonuses do not apply. One City witness estimated that the maximum development potential will be around 8.6 units per acre. The Department timely filed its Petition with DOAH on September 26, 2008. See § 163.32465(6)(b), Fla. Stat. ("[t]he state land planning agency may file a petition with the Division of Administrative Hearings pursuant to ss. 120.569 and 120.57, with a copy served on the affected local government, . . . within 30 days after the state land planning agency notifies the local government that the plan amendment package is complete"). Although the Petition and parties' Joint Prehearing Stipulation identify a number of issues to be resolved, the Department and Air Force's Proposed Recommended Orders address only two broad grounds for finding the amendment not in compliance: that the proposed land use is not compatible with the adjacent military installation, which the Department describes as being the "principal dispute in this proceeding"; and that the proposed plan amendment is not based on relevant and appropriate data and analyses, as required by Section 163.3177(6)(a), Florida Statutes, and Florida Administrative Code Rule 9J-5.005(2)(a). All other allegations are assumed to no longer be in issue, voluntarily withdrawn, or not supported by the preponderance of the evidence.5 Operations at MacDill The host wing at MacDill is the Sixth Air Mobility Wing (Wing). Serving under that Wing is the 91st Air Refueling Squadron (Squadron), which owns sixteen KC-135R aircraft that are permanently based at MacDill. The Squadron's primary mission is refueling other military aircraft, a mission that requires the KC-135R to travel around the globe. The KC-135R can carry up to 200,000 pounds of Jet Propellant 8 (JP-8) aviation fuel, a kerosene-based jet fuel, depending on the nature and duration of its mission. Besides the KC-135R, other aircraft permanently based at MacDill include three C-37s (smaller jet aircraft) assigned to the 300LS Squadron, the 310th Airlift Squadron, and five or six aircraft associated with the National Oceanic and Atmospheric Administration. MacDill also hosts approximately six-to-eight joint exercises per year (lasting between one and three weeks) involving numerous fighter and bomber aircraft that use the Avon Park bombing range for training, as well as C-17s and C-130s (transport aircraft) that use the facility for special training. In addition, Air Force and National Guard reserve units train at MacDill. Therefore, on any given day, multiple fighters and aircraft from other military branches, and occasionally even a commercial aircraft, may use the runways at MacDill. On an average day at MacDill, there are sixty takeoffs and landings and up to five sorties. This does not include touch and go takeoffs and landings, which involve pattern or transition work. Mainly residential uses are located in the flight path of Runway 4 as far south as, and to the east of, the Florida Rock property. That type of development continues in the flight path until the aircraft exit the Interbay Peninsula and pass over Hillsborough Bay. Due to this encroachment, when departing on Runway 4, the aircraft maintain a runway heading until reaching an altitude of four hundred feet; they then turn right on a heading of 080 and climb to, and maintain, one thousand, six hundred feet until air space is de-conflicted to ensure that all aircraft in the area are separated. Air traffic control requires that all flights are instrument departures using radar vectors. Also, because of existing residential encroachment and concerns about noise, MacDill has compromised some of its mission flexibility by limiting its hours of operation to 6:00 a.m. to 11:00 p.m. and limiting engine use on some fighter aircraft by reducing after-burning usage. When departing on Runway 4 and passing just to the east of Florida Rock's property (and over the closest existing residential development), the KC-135R is at an elevation of approximately three hundred feet and sometimes as low as one hundred forty feet, depending on its fuel load and wind conditions. Air Installation Compatible Installation Zone (AICUZ) The AICUZ program is a program developed by the United States Department of Defense for military airfields to promote land use compatibility in areas subject to aircraft noise and accident potential. There have been four AICUZ studies prepared for MacDill, which were published in 1976, 1978, 1998, and 2008. The latter study was not yet finalized and available to the public when Plan Amendment PA-07-08 was adopted. The 1998 study was prepared to present and document flying conditions at MacDill following the reassignment of KC-135R aircraft to the base in 1996. The AICUZ delineates a Clear Zone, Accident Potential Zone I (APZ I), and Accident Potential Zone II (APZ II) for each runway and makes land use recommendations for each of those areas. These areas are based on standardized data compiled from military airfields around the globe to determine areas of increased accident potential. However, the studies do not assess risk nor consider the safety record of each individual airfield. Based on the standardized data, the Clear Zone is the area with the highest potential for accidents, then the APZ I, and finally the APZ II. Accident potential increases toward the centerline of the runway, and away from the ends of those zones. The southwest corner of Florida Rock's property abuts the Clear Zone for Runway 4, while the remainder of the site lies within the APZ I north-northeast of the runway. Two aerial photographs submitted into evidence provide an excellent view of the zones, the flight path of Runway 4, the existing development north of the airfield, and the location of Florida Rock's property. See Air Force Exhibits g and g1. The AICUZ land use compatibility chart recommends no residential uses in a Clear Zone or in an APZ I. (The chart identifies a number of examples of uses that are compatible with APZ I and flight operations at MacDill, such as miscellaneous manufacturing and low intensity office use. See Department Exhibit 3, pages 46 through 50.) In an APZ II, the AICUZ only recommends approval of single-family detached units for residential uses. These recommendations apply to all military installations with airfields and do not take into consideration unique local situations. However, the AICUZ recommendations are not binding on local governments and are to be balanced by the local government along with other planning considerations. The active runway at MacDill is three thousand feet wide. At the end of the overrun for Runway 4 (and Runway 22 to the southwest) is the Clear Zone, which is normally three thousand feet wide and three thousand feet long. At the end of the Clear Zone is the APZ I, which ordinarily is three thousand feet wide and five thousand feet long. At the end of the APZ I is the APZ II, which ordinarily is three thousand feet wide. By using standardized APZs, the Air Force can alter the mission of a base (e.g., change from fighters to bombers) without having to alter the APZs. The southeastern end of Runway 22 is surrounded by Tampa Bay. Therefore, the Clear Zone, APZ I, and APZ II for Runway 22 are located over the water and conform to the standard dimensions described above. Because aircraft departing on Runway 4 are required to make a right turn to a heading of 080 shortly after departure, the flight track for Runway 4 has an atypical split to the right. This deviation from a straight extension from the runway is permitted only when a majority of the aircraft fly predominately in the alternate direction. This split causes the APZ I for Runway 4 to deviate from the ordinary rectangular shape and to have two distinct APZ IIs, one directly northeast of, and aligned with, Runway 4, and the other to the east-northeast tracking the alternate direction of the aircraft after takeoff. The City's Plan depicts the Clear Zone, APZ I, and APZ II on Figure 11 of the Transportation Element and shows the outline of those areas on the FLUM. See Fla. Admin. Code R. 9J-5.019(2)(a)5. and (5)(a)7., which requires that both the Transportation Element and FLUM depict "clear zones and obstructions." Besides the delineation of a Clear Zone, APZ I, and APZ II, the AICUZ also includes noise contours and land use recommendations based on these noise contours. Noise contours are specific to each airfield based on one year of flight data applying noise variables, such as aircraft type, altitude, and engine power. An additional ten decibel (dB) noise penalty is added for flights after ten o'clock in the evening. Noise contours are mapped in five dB increments between sixty-five and seventy dB. A noise of sixty-five dB is equivalent to the sound of normal conversations. A noise of seventy-five dB is perceived by most persons to be twice as loud as a sixty-five dB noise. The AICUZ land use guidelines include a determination that residential uses in the Day Noise Level (DNL) sixty-five to sixty-nine contour and seventy to seventy-four contour are generally compatible with noise attenuation of twenty-five dB and thirty dB, respectively. The guidelines further note that residential use is discouraged in DNL sixty-five to sixty-nine and strongly discouraged in DNL seventy to seventy-four, but if residential uses must be allowed, measures to achieve outdoor to indoor Noise Level Reduction (NLR) for DNL sixty-five to sixty- nine dB and DNL seventy to seventy-four dB should be incorporated into building codes. The subject property is located mostly in the DNL sixty-five to sixty-nine dB contour, while less than nine acres in the southern portion are located within the DNL seventy to seventy-four dB contour. The FAA compatibility guidelines codified in 14 CFR Part 150, Appendix A, which apply to civilian airports, include a determination that residential uses are compatible with the DNL sixty-five to sixty-nine contour. Nothing in Chapter 163, Florida Statutes, or Florida Administrative Code Rule Chapter 9J-5 requires noise contours to be mapped or for comprehensive plans to include noise standards. The Joint Land Use Study (JLUS) The JLUS is a Department of Defense program administered through its Office of Economic Adjustment and funded by the Federal Government. It provides funds and resources for local governments located adjacent to military installations, such as the City, to evaluate a study area of properties affected by the military installation. The City and MacDill conducted a JLUS, which was finalized in June 2006, or before Amendment PA07-08 was adopted. The study was initiated at the request of MacDill because of its concern that urban encroachment might affect its operations and future viability. Two of the stated goals of the JLUS were to promote "comprehensive planning for long term land use compatibility between MacDill and the surrounding community" and to restrict "land uses that are deemed to be incompatible with MacDill operations by the AICUZ study." See Department Exhibit 4. The JLUS relied heavily upon information regarding flight operations, accident potential, and noise impacts in the 1998 AICUZ. It analyzed each zone in the AICUZ to identify existing development encroachment densities and ultimately made recommendations regarding development issues adjacent to MacDill. According to the 2006 study, residential uses constitute ninety-one percent of the three hundred twenty-seven acres of property that lie within the APZ I and most are single- family detached homes. As of 2003, the AICUZ was almost fully developed and only 72.2 acres were held in private ownership. Most of this development has existed for years. The study further indicated that almost eight thousand people lived in APZ-1, and that the average net density in the APZ I is 5.78 units per acre, although higher densities exist in some areas. The JLUS included four sets of land use options for the Clear Zones and APZs, which vary in intensity from three to ten units per acre, none of which followed the AICUZ recommendation of no new residential uses in APZ I. One recommended option was that within APZ I, densities for residentially-designated parcels be limited to zero to six dwelling units per acre and a 0.5 floor area ratio. Another recommended option was to maintain the status quo within the APZ I, as expressed in FLUE Policy A-3.1, of ten dwelling units per acre. Ultimately, the committee preparing the report adopted the zero to six dwelling units per acre option. The JLUS further recommended that the City amend FLUE Policy A-3.1 by establishing a new land use category entitled "Military Installation Airport Compatibility Plan Category" with a density/intensity range of zero to six dwelling units per acre and a 0.5 floor acre ratio within APZ I. See Department Exhibit 4, page 5-5. Although the Planning Commission recommended to the City that these changes be approved, to date the City has not formally adopted either recommendation in its Plan. See Department Exhibit 19. The Objections Compatibility The Department and Air Force contend that the proposed future land use on the Florida Rock property (CMU-35) is not compatible with MacDill. Although the Department has not adopted any rule specific to military installation compatibility or to airport APZs, the word "compatibility" is defined in Florida Administrative Code Rule 9J-5.003(23) as follows: A condition in which land uses or conditions can coexist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. Whether or not adjacent property is "unduly negatively impacted" and therefore compatible or not is a fact-specific determination made by the Department on a case-by-case basis. Section 163.3177(6)(a), Florida Statutes, was amended in 2004 to require that the FLUE of each local government "include criteria to be used to achieve the compatibility of adjacent or closely proximate lands with military installations." To assist local governments with all types of land use compatibility issues, including those involving military installations, in May 2004 the Department prepared a PowerPoint presentation, presumably for the benefit of various local government planning officials. See Florida Rock Exhibit 34. Among other things, the document includes a list of twelve "Suggested Best Practices" in addressing military installation compatibility. One suggested practice is for the local government to adopt noise attenuation standards in either the plan itself or land development regulations. To ensure compliance with the 2004 statutory amendment, as well as requirements of Florida Administrative Code Rule Chapter 9J-5, the City's Plan includes a number of provisions to achieve compatibility with MacDill operations. Most, if not all, of these provisions were actually in effect before the change in the law, having been adopted in response to the 1998 AICUZ. Specifically, Transportation Element Objective 9.6, and underlying Policies 9.6.1 through 9.6.5, generally require that the City ensure that new development will not obstruct military aircraft operations; that MacDill representatives be included in the review of all proposed plan amendments within the APZs and Approach Zones; that the City consult the AICUZ recommendations when proposing land use changes within APZ I and II; that the City promote compatibility within the APZs and Approach Zones through reduced densities; that the City and Planning Commission continue to review the impacts of development within the Approach Zones; and that communication towers and antennas be prohibited in APZ I and II. See Fla. Admin. Code R. 9J-5.019(4)(c)21., which requires that the Transportation Element include policies to "[protect] airports from the encroachment of incompatible land uses." In addition, FLUE Objective A-3, and underlying Policies A-3.1, A-3.3, A-3.4, A-3.6, and A-3.7, some of which apply only to MacDill, and others to both MacDill and Tampa International Airport, generally require that "adjacent development be compatible with airport related activities"; that future residential development be restricted to ten dwelling units per acre; that new construction and redevelopment which inhibits the safe and efficient operation of airport facilities with the APZs be prohibited; that "noise sensitive" development be prohibited unless noise attenuation features are included; that new development not obstruct aircraft operations; and that floor area ratios be promoted to guarantee the efficient operation of the airports. See Fla. Admin. Code R. 9J- 5.006(3)(c)2., which requires policies in the FLUE that "[p]rovi[de] for compatibility with adjacent uses." As noted earlier, all of these provisions have been found to be in compliance. The compatibility argument by the Department and Air Force centers around two concerns: accident potential and noise impacts of aircraft departing from and/or landing at MacDill. In response to the accident potential concern, Florida Rock and the City point out that no witness could recall a Class I accident (one resulting in a property loss of over $1 million, a loss of life, or a permanent injury) ever occurring at a MacDill Clear Zone or APZ. They also point out that aircraft safety is continually improving, and that the Air Force itself concedes that the number of accidents has decreased "tremendously" over the last forty years. Finally, they point out that ninety percent of the landings at MacDill are from the southwest over Tampa Bay and thus pose no threat to Florida Rock's property. The two stages of a flight with the greatest potential for accident are on takeoff and landing. Based on historical locations of accidents, the APZ has the greatest potential for accidents when aircraft are in distress. The Florida Rock parcel is located within APZ I. Although no Class I accidents have occurred at MacDill for at least the last forty years, and aircraft safety has dramatically improved over the years, there is no guarantee that an accident will not happen in the future. If an accident occurred, the results could be highly destructive. This is particularly true since the KC-135R routinely departs over or close to the southeastern corner of the Florida Rock parcel, sometimes at altitudes as low as one hundred forty feet, carrying up to 200,000 pounds of JP-8 aviation fuel. Debris scatter from a larger, heavier aircraft such as the KC-135R typically covers around eight acres. The debris scatter from a smaller aircraft, such as a fighter jet, is around three acres. Therefore, an aircraft accident would obviously be catastrophic for residents living around the site of the accident. Depending on its location, residential encroachment in the APZ can erode operational flexibility. As noted earlier, due to long-existing residential housing north and northeast of the airfield, the hours of operation at MacDill have been curtailed by eliminating flights between 11:00 p.m. and 6:00 a.m., more than likely due to noise concerns rather than safety issues. The KC-135R must make a right turn towards Hillsborough Bay when it reaches an elevation of only four hundred feet. Pilots must use instruments (rather than visual flight rules) and vectors when departing the airfield, but the evidence suggests this limitation is due to congested traffic in the area and the fact that MacDill air traffic control only "owns" the airspace below one thousand, six hundred feet, and not because of residential encroachment. According to an Air Force witness, depending on the type of development in the APZ and the height of the structures, it might cause the KC-135R to maintain a higher altitude on takeoff (with a corresponding lower fuel load) and/or to make a slight change in direction. However, FLUE Policy A-3.3 prohibits new construction "which inhibits the safe and efficient operations of airport facilities within the [APZ]"; FLUE Policy A-3.6 provides that "[n]ew development shall not obstruct aircraft operations"; and FLUE Policy A-3.7 provides that "[a]ll building regulations (floor area ratios (FAR) and height) shall be promoted to guarantee the continued efficient operation of the airport and ensure public safety." Also, Transportation Element Policy 9.6.5 prohibits the construction of communication towers and antenna in the APZ I and II zones. Presumably, these restrictions are enforced during the site approval process. MacDill has always been located in an urban area and residential development has existed for decades directly in the flight path of Runway 4. In fact, the AICUZ was nearly fully developed in 2003. Therefore, it is fair to characterize the area in and around the flight path as already developed and built out with a residential character. While the potential for an accident is always present, the evidence does not show that this consideration has unduly negatively interfered with the missions or operational flexibility of the base. Even the 1998 AICUZ describes the risk to people on the ground of being killed or injured by aircraft accidents as "minute." See Department Exhibit 3, page 42. Even though the proposed change in land use will result in more residential development to the west of the flight path for aircraft using Runway 4, it should not unduly negatively impact, directly or indirectly, the use or condition of MacDill. (Under the Light Industrial land use, Florida Rock can now construct a building that employs hundreds of people.) The more persuasive evidence shows that the plan amendment is not incompatible in this respect. Most of the Florida Rock property lies entirely within the DNL sixty-five dB noise contour zone. This means that the average noise exposure is sixty-five dB, but the actual noise of all aircraft in the fleet is much louder than that on takeoff. For example, fighter aircraft are around one hundred ten dB at one thousand feet and would be much louder at lower altitudes. Some types of bombers, which occasionally use the base for training operations, were described as being so loud that you have "to hold the table down or things will fall over." Even so, CMU-35 residential development within this category of noise exposure is consistent with the FAA land use compatibility table and is generally compatible with AICUZ land use guidelines. The southern end of the site, which is a wetland area, is within the DNL seventy to seventy-four dB noise contour, but it is highly unlikely that development could ever occur in that area, given its designation as an environmentally sensitive area by the Planning Commission. The City has adopted a land development regulation, codified as Section 27-137.5, which requires that all residential development within the APZ-I be "designed and constructed to reduce noise levels by twenty-five (25) decibels." Another land development regulation, Section 5-301.1 requires noise level reduction, or abatement, of twenty-five dB for construction in the APZ-I. Both provisions were enacted in order to ensure compatibility with MacDill's operations. While the Department points out that there are no specific provisions such as these in the Plan to reduce noise impacts, FLUE Policy A-3.4 "[p]rohibit[s] future 'noise sensitive' development such as residences . . . which do not provide the required noise attenuation features within those noise contour areas adjacent to MacDill AFB which may pose health hazards." The Air Force acknowledged that curtailment of flight operations for the KC-135R has not occurred due to noise complaints from residents or users of property around the base. In making this admission, it may have overlooked the fact that late-night operations (between 11:00 p.m. and 6:00 a.m.) have been curtailed for an unknown period of time, presumably because of concerns that operations during these hours would disturb the nearby residential areas. But this is due to existing development, and not future development, and there is no evidence that development by Florida Rock would likely cause a further reduction in MacDill's hours of operation. Although the Department argues that residents in the neighborhood adjacent to MacDill constantly complain to the base and City officials, recorded noise complaints numbered only seventeen in 2007, twenty-five in 2008, and sixteen through the date of the hearing in 2009. One person living in APZ II was the source of eleven of the twenty-five recorded complaints in 2008 and four of the sixteen in 2009, while many of the other complaints came from persons who live in other counties or cities in the area. It is fair to say that all of the noise complaints are associated with fighter and bomber aircraft, which occasionally use the base for training missions, and not the KC-135R, which is permanently stationed at the base. Even though the Florida Rock property may be subjected to potentially more than a hundred takeoffs and landings per day, with aircraft operating at altitudes as low as one hundred forty feet, there is insufficient evidence to support a finding that military operations will be affected by noise concerns. This is evidenced by the fact that literally hundreds of existing residences in the APZ are now subjected to the same conditions, yet they have coexisted with MacDill operations for many years. Further support for this finding is based on the fact that very few complaints have been filed by persons living in the immediate area. Even though a City witness conceded that the noise from aircraft may be a "nuisance" to some area residents, the greater weight of evidence supports a finding that from a noise perspective, the proposed change in land use would not be incompatible with MacDill operations or use.6 The evidence supports a finding that a change in the land use for the Florida Rock property will be compatible with adjacent uses, including MacDill, as that word is defined in Florida Administrative Code Rule 9J-5.003(23). Data and Analysis The map change on the FLUM must be based on surveys, studies, and data regarding the area, including the compatibility of uses on lands adjacent to or closely proximate to military installations. See § 163.3177(6)(a), Fla. Stat. Florida Administrative Code Rule 9J-5.005(2) implements that provision and spells out the requirements for satisfying the statute. These include requirements that the data must be "relevant and appropriate," "taken from professionally accepted existing sources, such as . . . existing technical studies," and "collected and applied in a professionally acceptable manner." See Fla. Admin. Code R. 9J-5.005(2)(a). The City must also "react to it in an appropriate way" at the time the amendment is adopted. Id. Finally, a local government may rely on data and analysis used to support the original plan or a previous plan amendment unless "the previously submitted data and analysis no longer include and rely on the best available existing data. See Fla. Admin. Code R. 9J-11.007(1). The Department and Air Force argue that the 1998 AICUZ and the June 2006 JLUS are the best available, relevant, and appropriate data regarding land uses around MacDill, and that the City failed to appropriately react to that data when it adopted the amendment. They further argue that the City relied on data and analyses supporting the 1998 Plan, which is no longer the best available existing data. On the other hand, Florida Rock and the City assert that there is adequate data and analysis that support the adopted map change, including the Transportation Element and FLUE policies listed above (Joint Exhibit 1), the JLUS data and recommendations (Department Exhibit 4), the Planning Commission report (Florida Rock Exhibit 3), the City Community Planning Division staff report (City Exhibit 28), the portion of the Department's PowerPoint relating to Military Installation Compatibility (Florida Rock Exhibit 34), and 14 CFR Part 150, Appendix A, which was officially recognized. The 2006 JLUS includes as one option a recommendation that the status quo for density in FLUE Policy A-3.1 be maintained for development around MacDill. The Planning Commission staff report noted that both land use categories have the same maximum commercial buildout potential; that the site will never be developed to its maximum potential; that the change is consistent with recent trends away from light industrial in that area; that the new designation is consistent with the surrounding area; that the amendment is consistent with all other provisions in the Plan; and that the City must ensure that any development will not obstruct operations at MacDill. Similarly, the City Community Planning Division staff report noted that MacDill and the South Tampa community have coexisted for sixty-five years; that the predominant land use in the area is residential; that the change is consistent with FLUE Policy A-3.1; that noise attenuation measures will be employed; that the CMU-35 designation continues the land use trend away from light industrial; that the site will not be able to develop to its full potential; and that the change would be consistent with the future development pattern of the area. The map change is also supported by the land use compatibility policies in the AICUZ study for noise contours, as well the FAA noise compatibility guidelines. Finally, the change is consistent with existing policies in the FLUE and Transportation Element. They provide further support for the requested change and the City's determination that the map change is compatible with surrounding uses, including MacDill flight operations. The City reacted appropriately to these data and analyses when it enacted the amendment. The AICUZ is based on standardized data complied from airbases around the world to determine areas of increased accident potential. It did not assess the individual risk nor consider the safety record of MacDill; it did not give consideration to any unique local situations, including the fact that MacDill is located in a fully developed urban area and has coexisted with residential development in the Runway 4 flight path for decades; and it characterized the risk of an aircraft accident as "minute." Because residential development under the map change will be subject to noise attenuation requirements, the new use will be consistent with the AICUZ and FAA guidelines. The JLUS presented four options for residential use within the APZ I, one of which continues the existing policy of allowing ten dwelling units per acre in APA I. Although the committee ultimately recommended that more restrictive measures be implemented, this recommendation was not adopted by the City. Standing alone, the JLUS contains competing data that support a less intense residential classification on the Florida Rock property. But the City has no land use category that allows the site a mixed use with a maximum of six residential units per acre. When taken as a whole, the data and analyses relied upon by the City constitute adequate support for the plan amendment. Accordingly, the Department and Air Force have failed to show by a preponderance of evidence that the plan amendment contravenes Section 163.3177(6)(a), Florida Statutes, or Florida Administrative Code Rules 9J-5.005(2)(a) and 9J- 11.007(1). See, e.g., Geraci, et al. v. Hillsborough County, et al., DOAH Case No. 95-0259GM, 1999 Fla. ENV Lexis 11 at *114-15 (DOAH Oct. 16, 1998, DCA Jan. 12, 1999)(even though the data and analysis may support another classification, a local government is not required to demonstrate that its land use classification choice is perfect, or that the data and analysis support that use to the exclusion of any other classification). The more persuasive evidence supports a finding that the challenged plan amendment is in compliance.
Recommendation RECOMMENDED that the Department of Community Affairs enter a final order determining that the plan amendment adopted by Ordinance No. 2008-145 is in compliance. DONE AND ENTERED this 26th day of August, 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 26th day of August, 2009.
Findings Of Fact The Resource Recovery Facility The purpose of the Applicants' proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,200 tons of refuse each day, and generate up to 55.5 megawatts of electrical power. The ultimate disposal capacity of the proposed facility is 3,300 tons of refuse each day, and a generating capacity of 83.25 megawatts. The proposed RRF complex will include an administrative building, scalehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, and electrical substation. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building. All waste will be stored and processed inside the main facility. The Site The site for the proposed RRF is an undeveloped 25-acre parcel of land situated on the south side of Northwest 45th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County. The uses surrounding the site are predominantly industrial. On the south side of Hilton Road, between the Florida Turnpike, which lies to the west, and Powerline Road, which lies to the east, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant. Immediately south and east of the project site is a newly permitted landfill area which will function as an expansion of the existing landfill located immediately south and west of the site's boundaries. Consistency of the site with local land use plans and zoning ordinances Broward County has adopted a Comprehensive Plan, pursuant to Chapter 163 Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward bounty Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan), and Broward County's zoning ordinances. The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans, and satisfies the goals, policies, and objectives of the Broward County Comprehensive Plan. On April 22, 1986, the Board of County Commissioners of Broward County approved the rezoning of the site to Planned Unit Development (PUD) Special Complex District, and approved the RRF conceptual site plan. The proposed RRF is a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, a permitted non-residential use. 1/ The Department of Community Affairs, Department of Environmental Regulation, and South Florida Water Management District concur that the proposed RRF is consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process. Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel on April 21, 1986, and in the Florida Administrative Weekly on April 18, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the location, construction and operation of the proposed facility, subject to the conditions of the certification attached to this Recommended Order as Appendix II. DONE AND ORDERED this 9th day of January 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 9th day of January 1987.
The Issue The issue in this case is whether proposed amendments to Rule 12A-1.070 are an invalid exercise of delegated legislative authority. Petitioners and Intervenors challenge Proposed Rule 12A-1.070(1) and (4)(a) and (b). Respondent published the amendments in the Florida Administrative Law Weekly on March 18, 1994 and June 10, 1994. As described in the Joint Prehearing Stipulation, the proposed rule amendments address, among other things, the taxation of payments to airport authorities from concessionaires like rental car companies and airport restaurants. The law imposes a sales tax on payments for the use or occupancy of real property, whether the agreement consists of a lease or a license to use real property. The main dispute in these cases is whether the proposed rule amendments illegally extend the sales tax to payments for intangibles like a concession, franchise, or privilege to do business.
Findings Of Fact The Proposed Rules By notice published in 20 Florida Administrative Law Weekly 1549 on March 18, 1994, Respondent proposed amendments to existing Rule 12A-1.070. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code. All references to Proposed Rules are to the rule amendments that are the subject of this proceeding.) The notice explains that the purpose of the rule amendments is to clarify the application of specific statutory sales tax exemptions for the lease or license to use real property at airports, malls and nursing homes. The rule amendments clarify that the total payment pursuant to a lease or license of real property is subject to tax, unless specifically exempt, irrespective of how the payment, or a portion thereof, is identified. However, if such leased property includes specifically exempt property, then such exemption may be applied on a pro rata basis. 20 Florida Administrative Law Weekly 1549 (March 18, 1994). In the notice, Respondent cites as specific authority for the proposed amendments Sections 212.17(6), 212.18(2), and 213.06(1). Respondent states that the proposed amendments implement Sections 212.02(10)(h) and (i) and (13), 212.03(6), and 212.031. By notice published June 10, 1994, in 20 Florida Administrative Law Weekly 4096, Respondent proposed amendments to the amendments previously proposed. As amended by both notices, Rule 12A-1.070 provides, with deletions stricken through and additions underlined: * 12A-1.070 Leases and Licenses of Real Property; Storage of Boats and Aircraft (1)(a) Every person who rents or leases any real property or who grants a license to use, occupy, or enter upon any real property is exer- cising a taxable privilege unless such real property is: * * * <<a>>. Property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft. See Subsection (3). <<b. Property which is used by an airline exclusively for loading or unloading passengers onto or from an aircraft is exempt. This property includes: common walkways inside a terminal building used by passengers for boarding or departing from an aircraft, ticket counters, baggage claim areas, ramp and apron areas, and departure lounges (the rooms which are used by passengers as a sitting or gathering area immed- iately before surrendering their tickets to board the aircraft). Departure lounges commonly known as VIP lounges or airport clubs which are affiliated with an airline or a club which requires a membership or charge or for which membership or usage is determined by ticket status are not included as property exempt from tax. The lease or license to use passenger loading bridges (jetways) and baggage conveyor systems comes under this exemption, provided that the jetways and baggage conveyor systems are deemed real property. In order for the jetways and baggage conveyors to be deemed real property, the owner of these items must also be the owner of the land to which they are attached, and must have had the intention that such property become a permanent accession to the realty from the moment of installation. The items shall not be considered real property if the owner, when the owner is not the airport, retains title to the items after the purchase/installation indebtedness has been paid in full. Any operator of an airport, such as an airport authority, which is the lessee of the land on which the airport has its situs is, for the purposes of this sub- subparagraph, deemed the owner of such land. Real property used by an airline for purposes of loading or unloading passengers or property onto or from an aircraft which is exempt from tax includes: office areas used to process tickets, baggage processing areas, operations areas used for the purpose of the operational control of an airline's aircraft, and air cargo areas. If any portion of the above property is used for any other purpose, it is taxed on a pro- rata basis, which shall be determined by the square footage of the portions of the areas in the airport that are used by an airline exclusively for the purpose of loading or unloading passengers or property onto or from aircraft (which areas shall be the numerator) compared to the total square footage of such areas used by the airlines (which areas shall be the denominator). Example: An airline leases a total of 3,000 square feet from an airport authority. The airline uses the space as follows: 1,000 square feet are used to process tickets and check in the passengers' luggage; 1,000 square feet are used for the passengers' departure lounge; and 1,000 square feet are used for the management office and the employees' lounge. The 1,000 square feet used to process tickets and check in the luggage is exempt; the 1,000 square feet used as a passengers' departure lounge is also exempt; and the 1,000 square feet used as the management office and employees' lounge is taxable. Therefore, a total of 2,000 square feet is exempt because that portion of the total space leased by the airline is used exclusively for the purposes of loading or unloading passengers or property onto or from an aircraft. However, the total amount used as office space and the employees' lounge (i.e., 1,000 square feet) is taxable, because that portion of the space leased by the airline is not used exclusively for the purposes of loading or unloading passengers or property onto or from an aircraft. Real property used for fueling aircraft is taxable when the fueling activities are conducted by a lessee or licensee which is not an airline. However, the charge made to an airline for the use of aprons, ramps, or other areas used for fueling aircrafts is exempt. From July 1, 1990, through June 30, 1991, property used at an airport to operate advertising displays in any county as defined in s. 125.011(1), F.S., was exempt from tax.>> * * * (b)1. A person providing retail concessionaire services involving the sale of food or drink or other tangible personal property within the premises of an airport shall be subject to tax on the rental of such real property. 2. However, effective July 1, 1987, a person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall not be subject to the tax on any license to use such property. For purposes of this subparagraph, the term "sale" shall not include the leasing of tangible personal property. <<3. For purposes of this rule, the term "retail concessionaire," which may be either a lessee or licensee, shall mean any person .. . who makes sales of food, drinks, or other tangible personal property directly to the general public within the premises of an airport. With regard to airports, any persons which contract to service or supply tangible personal property for airline operations are considered to be providing aircraft support services and are not concessionaires for purposes of this rule.>> * * * The provisions of this rule relating to the license to use, occupy, or enter upon any real property are effective July 1, 1986, unless other- wise noted. "Real property" means the surface land, improvements thereto, and fixtures, and is synonymous with "realty" and "real estate." "License," with reference to the use of real property, means the granting of a privilege to use or occupy a building or parcel of real property for any purpose. <<1. Example:>> [[(g)]] An agreement whereby the owner of real property grants another person permission to install and <<operate>> [[maintain]] a full service coin-operated vending machine, coin- operated amusement machine, coin-operated laundry machine, or any like items, on the premises is a [[taxable]] license to use real property. The consideration paid by the machine owner to the real property owner <<for the license to use the real property>> is taxable. . . . <<2. Example:>> [[(h)]] An agreement between the owner of real property and an advertising agency for the use of real property to display advertising matter is a [[taxable]] license to use real property. <<The consideration paid by the advertising agency to the real property owner for the license to use the real property is taxable.>> * * * (4)(a)<<1.>> The tenant or person actually occupying, using, or entitled to use any real property from which rental or license fee is subject to taxation under s. 212.031, F.S., and shall pay the tax to his immediate landlord or other person granting the right to such tenant or person to occupy or use such real property. <<2. Where the lessor's or licensor's ability to impose fee(s) is based on its ownership or control of the real property, and the payment made to the lessor or licensor is for the lessee's or licensee's use of the real property, such fees are subject to tax. In such circumstances, the total payment for the use of real property, including airport property, is taxable, irrespective that the payment or a portion of the payment may be identified as consideration for the privilege to do business at that location, privilege fee, guaranteed minimum, concession fee, percentage fee, or by the use of similar terms which seek to distinguish such portion(s) from the payment for the lease of or license to use such real property for any purpose, unless such lease or license is otherwise specifically exempt. Example: A clothing retailer occupying a location inside a mall has an agreement with the owner of the mall under which it pays a minimum rent plus a percentage of its gross sales for the right to operate its store at that location. The agreement characterizes the minimum rent as consideration for the lease of designated real property and the percentage of gross sales as consideration for the privilege to do business in the mall; failure to make any of these payments can cause the agreement to be terminated. The total amount required under the agreement is subject to tax, regardless of how the consideration, or a portion thereof, is characterized. Example: A push cart or kiosk vendor has an agreement with the owner of the mall under which it pays a minimum rent plus a percentage of its gross sales for the right to sell its merchandise at various locations within the common areas of the mall. Failure to make the payments can terminate the right to sell merchandise in the mall. The total amount under the agreement is subject to tax because the statute defines a taxable license as the granting of the privilege to use real property for any purpose, including the privilege to use the real property to do business. Example: A car rental company has an agree- ment with an airport authority to operate its rental car business with a designated office and counter space within the airport terminal building. The agreement provides for a payment designated as rent for the use of real property as well as a payment based on a percentage of gross sales designated as a privilege fee for engaging in business at the airport. Failure to make either payment can terminate the agreement. The total amount required under the agreement is subject to tax. All past declarations, including Temporary Technical Assistance Advisements issued pursuant to Emergency Rule 87AER-91, Technical Assistance Advisements, Letters of Technical Assistance, and similar correspondence, issued by the Department, which advised that fees or portions of fees identified as privilege fees to engage in business were exempt, and which are inconsistent with this rule are rescinded. Therefore, such privilege fees are taxable payments for a lease or license to use real property for business purposes. (b) Except for tolls charged to the travelling public, both commercial and non- commercial, imposed exclusively for the right to travel on turnpikes, expressways, bridges, and other public roadways, the full consideration paid for the license to use airport real property for the purpose of picking-up or dropping-off passengers and baggage from airport sidewalks, landings, and other facilities by any person providing ground transportation services to such airport, shall be taxable as a license to use airport real property, irrespective of whether the operator of such service enters the airport terminal building while engaged in providing such service. Example: The fee paid by a hotel to an airport, for the privilege of coming on the airport property for the purpose of picking-up and dropping- off its guests at the airport terminal, is a license to use airport real property, and is taxable. Example: The fee paid by a taxicab and limousine company to an airport, for the privilege of coming on the airport property for the purpose of picking-up and dropping- off its passengers at the airport terminal, is a license to use airport real property, and is taxable. Example: The fee paid by a remote location rental car company, for the privilege of using the airport premises to pick-up and drop-off its customers at the airport terminal, is a license to use real property, and is taxable.>> Note: In the above text, language added to the statute is within the <<>>; deleted language is within the [[]]. Statutes and Legislative History As amended by 66, Chapter 86-152, Laws of Florida, Section 212.031 states: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, [[or]] letting<<, or granting a license for the use>> of any real property unless such property is: * * * Note: In the above text, language added to the statute is within the <<>>; deleted language is within the [[]]. Section 212.02(10)(h) defines "real property" as "the surface land, improvements thereto, and fixtures, and is synonymous with 'realty' and 'real estate.'" The 1986 amendments extend the sales tax to licenses for the use or occupancy of real property. Section 212.02(10)(i) defines "license." "License," as used in this chapter with reference to the use of real property, means the granting of a privilege to use or occupy a building or a parcel of real property for any purpose. Section 212.031 imposes a sale tax for the use and occupancy of real property, but not upon payments for intangibles, such as a franchise, concession, or other privilege to do business. The sales tax imposed by Section 212.031 is limited to the payments, or portions of payments, for the use or occupancy of real property. Each of the ten subsections under Section 212.031 exempts from the sales tax various types of property. Three exemptions relevant to these cases are at Section 212.031(1)(a)6, 7, and 10, which exempt real property that is: 6. A public street or road which is used for transportation purposes. 7. Property used at an airport exclusively for the purpose of aircraft landing or aircraft taxiing or property used by an airline for the purpose of loading or unloading passengers or property onto or from aircraft or for fueling aircraft or, for the period July 1, 1990, through June 30, 1991, property used at an airport to operate advertising displays in any county as defined in s. 125.011(1). Leased, subleased, or rented to a person providing food and drink concessionaire services within the premises of [[an airport,]] a movie theater, a business operated under a permit issued pursuant to chapter 550 or chapter 551, or any publicly owned arena, sport stadium, convention hall, [[or]] exhibition hall<<, auditorium, or recreational facility. A person providing retail concessionaire services involving the sale of food and drink or other tangible personal property within the premises of an airport shall be subject to tax on the rental of real property used for that purpose, but shall not be subject to the tax on any license to use the property. For purposes of this subparagraph, the term "sale" shall not include the leasing of tangible personal property.>> Note: In the above text, language added to the statute is within the <<>>; deleted language is within the [[]]. The indicated changes in subparagraph 10 were enacted by 10, Chapter 87-101, Laws of Florida. The remaining statutes cited by Respondent as law implemented by the Proposed Rules are not relevant to this proceeding. Court Decisions In Quick and Havey v. Department of Revenue, Case No. 72-363, Second Judicial Circuit, decided December 5, 1974, Donald O. Hartwell, Circuit Judge, entered a summary judgement in favor of Respondent. Quick and Havey operated a food concession at the municipal auditorium in West Palm Beach. In return for the concession, they agreed to pay the city base rental and a percentage of gross sales. The agreement entitled Quick and Harvey to the exclusive occupancy of part of the auditorium; they also provided concession services at other locations throughout the auditorium. Quick and Harvey paid the sales tax on the base rental, but argued that the percentage payment constituted "a fee paid for the exercise of a privilege." Judge Hartwell held that the tax applied to the base rent and percentage rent because the latter payments "are so inextricably entwined and enmeshed in the agreement to pay rent that they cannot be separated or distilled . . .." Judge Hartwell reasoned that rent is the "compensation paid for the use and occupation of real property." Recognizing that a tenant might make payments to its landlord that are not rent, Judge Hartwell found that at least under the terms of the instruments before it for construction and analysis that there has not been such a sufficient separation of the source of these funds as to warrant their classification solely as a fee for the exercise of a privilege. The right to use property cannot be separated from the property itself. We, of course, do not pass upon the question of whether the so-called concession rights can be [illegible] separated from the lease of the property itself. Suffice it to say that under the facts as herein presented, the Court is of the opinion that all payments made to the City of West Palm Beach under the agreement before the Court constitute payment of rent and are therefore subject to the tax specified in Section 212.031, Florida Statutes. In Avis Rent-A-Car System, Inc. v. Askew, Case No. 74- 338, Second Judicial Circuit, decided January 20, 1977, Judge Hartwell decided whether certain payments made by Avis were taxable under Section 212.031. Avis had "entered into various contracts for a concession or license to do business at various airports and for the rental of real property," as well as contracts with private individuals for the rental of real property to conduct business at nonairport locations. Judge Hartwell divided the contracts of Avis into three categories. The first type of contract was for the payment of rental for the use real property. The second type of contract was for the payment of a concession fee for the right to do business on the premises and for the payment of a sum explicitly identified as rent for the use of real property. The third type of contract was for the payment of a concession fee for the right to do business on the premises and for the use of real property without a sum explicitly identified as rent. Judge Hartwell concluded that all payments for the rights conveyed by the first type of contract were taxable under Section 212.031. He ruled that the payments for the right to rent real property under the second type of contract were taxable, but the payments for the remaining rights were not. Declining to aggregate payments as he had in Quick and Havey two years earlier, Judge Hartwell ruled that the payments for the rights conveyed by the third type of contract required a "reasonable allocation." The allocation was between the payments for the use of real property, which were taxed, and the remaining payments, which were not. Judge Hartwell ordered that the allocation should be based on rental rates charged for the right of occupancy of the real property charged other tenants for comparable space. In a per curiam decision not yet final, the Fifth District Court of Appeal recently considered the taxation of concession fees in Lloyd Enterprises, Inc. v. Department of Revenue, 20 Fla. Law Weekly D552 (March 3, 1995). The findings of fact and conclusions of law in this final order do not rely upon Lloyd Enterprises, which is discussed merely as supplemental material. In Lloyd Enterprises, the taxpayer entered into a concession agreement with Volusia County for the rental of motorcycles at the beach. A fixed- location concessionaire, the taxpayer had the right to park its vehicles within 100 feet in either direction of its assigned spot during its assigned operating hours. Other concessionaires were allowed to roam the beach, but beach rangers would enforce the taxpayer's exclusive right to sell goods within its 200-foot territory if the free- roaming concessionaires parked or tried to sell goods in this territory. Rejecting Respondent's interpretation of its own rules, the court considered the language of the agreement, as well as a county ordinance incorporated by the agreement. The court held that neither document created a lease or license for the use of real property. Rather, they reflected the County's concern with the image that activities on the beach projected to visitors. The documents evidenced the County's intent to enhance the public's enjoyment of the beach through the provision of goods and services, as well as to raise revenue, mostly to defray cleanup costs at the beach. Thus, under the documents, the payments were nontaxable concession fees. Agency Interpretations Interpretations of Law Prior to Proposed Rule Amendments By letter dated May 14, 1968, Mr. J. Ed Straughn, Executive Director of Respondent, advised Mr. Wilbur Jones that tax is due on the space rented to car rental companies in any airport building. If the agreement makes no allocation between rental and nonrent payments, Respondent would require a "reasonable allocation" between rent and other payments with the tax due only on the amount paid for the right of occupancy. Mr. Straughn suggested that the rent component be estimated by the use of comparable rental rates for space elsewhere in the building. By letter dated August 14, 1985, Mr. Hugh Stephens, a Technical Assistant for Respondent, advised Mr. Victor Bacigalupi that a contract between an advertising company and Dade County, concerning advertising at Miami International Airport, did not involve the rental of real property. Mr. Stephens evidently relied on the nonexclusive right of posting advertising displays and the right of Dade County to require the advertiser to relocate or remove displays. By memorandum dated October 28, 1986, Mr. William D. Townsend, General Counsel, proposed policy for the taxation of licenses. Consistent with the Straughn letter 18 years earlier, the memorandum, which is directed to Mr. Randy Miller, Executive Director, states: A license in real property can be defined as a personal, revocable, and unassignable privilege, conferred either by writing or orally, to do one or more acts on land without possessing any interest in the land. Every license to do an act on land involves the occupation of the land by the licensee so far as it is necessary to do the act. Example: A concessionaire pays for permission (a license) to sell hot dogs in the building of a wrestling arena. The concessionaire has no possessory interest in the building. He normally has no specifically or legally described area which is his. He is allowed simply to vend his hot dogs in the building. Perhaps he delivers and vends in the stands. Without special permission, he cannot assign his license and it is normally revocable by the licensor unless specifically agreed otherwise. . . . For purposes of F.S. 212.031, however, the Department of Revenue (DOR) takes the position that either a lease or license is present in any business arrangement in which one or more owners, lessors, sublessors, or other persons holding a possessory interest in real property, permits a third party to use such real property for authorized acts unless all of the facts and circumstances surrounding the agreement between the parties conclusively indicate that the agreement is neither a lease nor a license. The form in which the transaction is cast is not controlling. Accordingly, some portion of the consideration paid for an agreement that in form is a joint venture, profits interest, management agreement, franchise, manufacturer's discount, bailment or other arrange- ment will be presumed by the DOR to be allocable to a lease or license if the arrangement involves the use of real property to perform authorized acts by the lessee or licensee. If the terms of the agree- ment are silent with respect to the portion of the consideration allocable to the inherent lease or license or if the consideration allocated under the terms of the agreement is less than its fair market value, the DOR will allocate to the lease or license a portion of the consideration that is equal to the fair market value of the lease or license. Contrary to the Straughn letter and Townsend memorandum eight months earlier, Technical Assistance Advisement 87A-011 dated July 2, 1987, which was prepared by Mr. Melton H. McKown, advised the Hillsborough County Aviation Authority that the privilege fees paid by car rental companies to the aviation authority were taxable. The agreement between the parties stated that the fees were "for the concession privileges granted hereunder, and in addition to the charges paid for the Premises .. ., [the car rental company] shall pay a privilege fee " Two months later, Temporary Technical Assistance Advisement TTAA 87(AER)-225 reversed TAA 87A-011. In TTAA 87(AER)-225, which is dated September 10, 1987, Ceneral Counsel William Townsend informed Mr. Samuel J. Dubbin that the payments made to airport authorities from concessionaires are "not for the right to use real property, but are for the right to engage in business at the airport." The letter relies upon Avis Rent-A- Car Systems, Inc. v. Askew. Respondent confirmed TTAA 87(AER)-225 in TTAA 88(AER)- 198, which is dated March 24, 1988, and in a letter dated April 6, 1989, from Mr. Robert M. Parsons, Technical Assistant, to Mr. Thomas P. Abbott. The April 6 letter confirms that payments from on- airport rental car companies are taxed only to the extent that the payments represent rent for space on airport property and not to the extent that the payments represent consideration for the privilege to do business. The April 6 letter adds that the payments from off-airport car rental companies for the right to pick up customers at the airport are not taxable because such payments are merely consideration for the privilege to engage in business. The April 6 letter discusses fees paid by other airport concessionaires. Acknowledging the recent enactment of the statutory exemption for license payments made to airports by food and drink concessionaires, the letter notes that, after July 1, 1987 (the effective date of the statutory changes), such payments, even if calculated as percentages of sales, are not taxable because such payments are construed as payments for a mere privilege or license to engage in business. The April 6 letter evidently marks the first time that, in a single document, Respondent inconsistently treats car rental company concession fees and all other concession fees. The April 6 letter adopts the Straughn/Townsend approach when it states that percentage rent is not taxable because it is payment for the privilege to do business. (The letter actually states "privilege or license" to do business, and this alternative use of "license," not involving the use or occupancy of real property, may have caused part of the confusion.) But the assurance of nontaxability of concession fees in the April 6 letter is limited to the period after July 1, 1987. Consistent with the McKown approach, the letter relies on the relatively recent statutory exemption for license payments from airport retail concessionaires. Consistent with the McKown approach, the letter later adds that percentage rent was taxable after the legislature amended Section 212.031 to tax payments for a license to use real property. The April 6 letter concludes erroneously that it is treating all airport concessionaires like on-airport car rental companies. In a Notice of Decision dated July 28, 1992, Respondent addressed the taxation of payments to airport authorities from car rental companies. Under a concession agreement, the airport charged a car rental company a fixed rent for occupied airport space, such as for parking, check-in, and service. Under the same agreement, the airport also charges the car rental company the greater of a guaranteed minimum or percentage of gross revenues. Taking the Straughn/Townsend approach, the Notice of Decision reversed a tentative assessment and held that the additional payments were not taxable. The July 28, 1992 Notice of Decision also addresses the taxation of percentage payments to airport authorities from other concessionaires. Explicitly endorsing the inconsistency of the April 6 letter, Respondent determined that percentage payments from concessionaires other than rental car companies were taxable either as leases or, since July 1, 1986, as licenses. The only explanation offered for the inconsistent treatment of concessionaires is that TTAA 87(AER)-225 applies only to rental car companies. Two years later, as reflected in a March 3, 1994 internal memorandum from Ms. Nydia Men,ndez to two Miami auditors, Respondent continued to perpetuate its inconsistent policy of taxing all payments for the privilege of engaging in business at airports, except for such payments from rental car companies. Returning to advertising, the July 28, 1992, Notice of Decision also states that the payments from the advertiser addressed in the letter dated August 14, 1985, have been taxable, as payments for a license, since July 1, 1986. This conclusion represents the correct treatment of licenses, as another means of granting a right to use or occupy real property. This treatment contrasts with the apparent misinterpretation in the April 6 letter that taxable licenses include grants of privileges to do business. In an early attempt to revisit the tax treatment of payments for concessions, franchises, and other privileges to do business, especially at airports, Respondent evidently chose the Quick and Havey and McKown approach that such business payments are taxable, at least when they are combined with taxable payments for the use or occupancy of real property. By memorandum dated January 14, 1993, from Assistant General Counsel Jeff Kielbasa to Ms. Lorraine Yoemans, Legislative Affairs Director, Mr. Kielbasa explained the purpose of unidentified proposed rule amendments addressing the same issues addressed by the subject proposed rule amendments. He wrote: The proposed rule amendment attempts to level the field by recognizing that any charge for the right, privilege, or license to do business at an airport is fundamentally a charge for the privilege to use or occupy land. If an airport business refuses to pay the fee, the airport's remedy is to have the business removed as a trespasser. It should be pointed out that we are not concerned with true business licenses or privilege fees attendant to use of trademarks, franchises and the like. These are licenses or privilege fees unrelated to the use of real property. The proposed rule does not differentiate between businesses such as on-airport car rental companies (with counterspaces) and off-airport car rental companies. The fee (however characterized) charged by the airport for the privilege to use or occupy the airport for business purposes is subject to the section 212.031 sales tax. See section 212.02(10)(i) defining license with reference to the use of real property as the "privilege to use or occupy a building or parcel of real property for any purpose." We believe that separation of a payment by characterizing one portion as a lease or license of realty (whether site specific or not) and another for the privilege of conducting business on the premises is artificial. It would be just as easy for the property owner on the corner of College and Monroe to charge a business tenant the average commercial square footage rental in Leon County for the lease and require the tenant to pay the premium attributable to the location at College and Monroe as a separate charge in the form of a license to do business. However carved up and characterized, under the statute each charge would be taxable since both leases and licenses to use real property are taxable. Interpretations of Proposed Rule Amendments On April 14, 1994, Respondent conducted a workshop on the proposed rule amendments prior to the modification published June 10, 1994. Respondent's representatives were understandably reluctant to opine on questions of law without detailed facts. However, explaining the tax consequences of payments from a concessionaire to an airport, Assistant General Counsel Kielbasa stated: I think the notion that there is a separate privilege fee that an airport charges unrelated to the fact that the privilege is being granted to function at the airport, I don't think that's what's happening. I think it's a very simple case, and I think it's very clear. But there may be separate provisions in contracts or lease agreements which have nothing to do with operating at that location, and to that extent, I don't think it would be subject to tax at all under the statute, and that's what we're trying to get at. Respondent's Exhibit 1A, pages 33-34. A major element of the dispute between Respondent and Petitioners and Intervenors (collectively, Petitioners) concerned Respondent's choice to take the Quick and Havey and McKown approach over the Avis and Straughn/Townsend approach in taxing mixed payments for the use of real property and for business intangibles. Following the rule workshop, Respondent made some Avis and Straughn/Townsend changes to the proposed rules, but the changes did not preclude a Quick and Havey and McKown approach, as evidenced by the following statement in the Prehearing Stipulation: "The Department contends that where the amount paid for a privilege fee is so intertwined or meshed with a payment for a license or lease to use real property that it cannot be separated, the full amount is taxable." Airports and Concessions Governmental entities operate and typically own large commercial airports, such as those in Orlando, Miami, and Tampa. By law, these airport authorities are empowered to enter into contracts with third parties to supply persons using airports with goods and services, such as food and beverage, retail sales, and car rentals. In some cases, airport authorities may obtain services by management agreements, which are not subject to sales tax. In most cases, though, airport authorities obtain goods and services for airport visitors by leases and grants of concessions, franchises, or other privileges to do business. The Dictionary of Real Estate Appraisal defines "concession" as "a franchise for the right to conduct a business, granted by a government body or authority." The Dictionary of Real Estate Appraisal defines "franchise" as "a privilege or right that is conferred by grant to an individual or group of individuals; usually an exclusive right to furnish public services or to sell a particular product in a certain community." By what are normally labelled "concession" or "franchise" agreements, airport authorities permit a concessionaire to operate a business with some nexus to the airport or at least its passengers, in return for which the concessionaire pays money to the airport authority. The nexus to the airport may take various forms. Some concessionaires sell food or drink or retail merchandise at exclusively assigned locations within the airport terminal. Hotel concessionaires operate hotels at fixed locations in the terminal. Some concessionaires, like taxi companies and nonairport hotels, pick up and drop off passengers at the airport terminal in areas designated for such purpose, but not reserved exclusively for any one concessionaire. An on-airport car rental concessionaire rents cars at the airport, using fixed counter space, parking areas, car service areas, and car pick-up and drop-off areas. A variation of the car rental concession is the off- airport car rental concessionaire, which has no fixed space at the airport except for customer pick-up and drop-off areas and usually counter space. In Florida, all off-airport rental car companies use their own vans to pick-up and drop-off customers. At some airports outside Florida, such as Sacramento, Dallas, and Minneapolis, the airport authorities operate their own vans to pick up and drop off customers of off-airport rental car companies. In such cases, the off-airport rental car companies do not directly use or occupy any of the real property of the airport. In general, the payments from the concessionaires to the airport authorities consist of two categories. First, there is a fixed payment, which the concession agreement typically characterizes as consideration for the use and occupancy of real property. The airport authority normally bases this rental payment on the fair market value of the space leased, as estimated by a licensed real estate appraiser, or under a cost-based formula. Second, there is a payment representing a percentage of the gross revenue of the concessionaire derived from airport business. The concession agreement typically characterizes this payment as consideration for the privilege to do business with airport passengers. Rents typically exceed $50 per square foot per year. Most, but not all concessionaires, make total payments of considerably more that $50 per square foot per year, often totalling hundreds and sometimes thousands of dollars. In entering into concession agreements, airport authorities pursue a variety of goals. They must produce high revenues because airport authorities do not operate on public subsidies, aside from the monopoly grant of the airport operation itself. But high returns from concessionaires are not the only goal. Airport authorities must serve airport visitors in order to maintain successful relations with the airlines. And airport visitors demand a mix of goods and services at acceptable prices and quality. In selecting concessionaires and pricing concession fees, airport authorities therefore balance maximizing revenues with serving visitors' needs. Airport authorities price concession fees based on the type of goods and services offered by the concessionaire. A bank at one major Florida airport pays six times the concession fees of a travel agency, which occupies space of equal size next to the bank. At the same airport, one theme-park retailer pays concession fees of more than three times what another theme-park retailer pays for the identical space. In the typical concession arrangement, the airport authority receives payments consisting of rent and "something else." The rent is attributable to the use and occupancy of real property. The "something else" is business income, which is attributable to an intangible business asset, such as a franchise, concession, or privilege to do business. Like any other lessor, airport authorities undertake, in their concession agreements, to provide their lessees with offices or retail space for their use and occupancy. Unlike other lessors, however, airport authorities also undertake, in their concession agreements, to provide nearly all of the concessionaire's customers through operating agreements with airlines. Through concession agreements, airport authorities allow concessionaires to share in the authority's most valuable asset, which is not the real property comprising the airport, but the exclusive, governmental franchise to operate the airport. In these regards, airport authorities are in very similar roles to the county in Lloyd Enterprises with the subjects of the government monopoly being in one case a beach and another an airport. Both governmental "owner/operators" provide customers for their respective concessionaires and predicate their agreements upon the ability of the contracting party to supply the needs of the customers in a manner that does not compromise the public asset--i.e., an airport or a beach. These elements are not typical of a lessor or licensor. To varying, lesser degrees, airport authorities also distinguish themselves from mere lessors through the marketing, management, working capital, and workforce that characterize the airport operation. Respondent's key witness identified four factors useful in determining whether a payment is for the use or occupancy of real property: the relationship of the parties to the real property, the use to be made of the real property, the rights granted the parties under the agreement, and the basis for the payment or charge for the real property. These four factors assist in the determination whether a payment is for the use or occupancy of real property. But the usefulness of the four factors is limited because they do not directly address the other possible component of a mixed payment, which is a payment for a franchise, concession, or other privilege to do business. It is easy to determine that concessionaire payments typically comprise rent or some other payment for the use and occupancy of real property plus a payment for an intangible, such as the privilege to do business with airport users. Obviously, Respondent is not required to accept the parties' labelling or allocations of these payments. But it is difficult to determine how much of a mixed payment is for the use or occupancy of real property, which is taxable (ignoring, as always, the special treatment of certain airport license payments, as well as other exemptions), and how much is for a privilege to do business, which is nontaxable. The issue is whether a "reasonable allocation" is possible between the two components in a mixed payment. As ordered in Avis and suggested by the Straughn letter and Townsend memorandum, the allocation process should begin with finding a fair rental value. It is difficult to estimate the fair market rent for space in a large commercial airport. The universe of comparables is small due to the uniqueness of major airports. But the appraisal of airport real property is not impossible. Nonairport comparables normally exist that, with suitable adjustments, yield reasonable approximations of fair market rentals. A real estate appraisal helps determine how much of a concessionaire's payment should be characterized as rent. However, the allocation problem can be approached at the same time from the opposite end. In appraising business assets, an accountant or business appraiser estimates the value of the concession, franchise, or other privilege to do business with airport visitors. The business-income approach to the allocation problem is aided by analysis of the payments made by completely off- airport car rental concessionaires in Sacramento, Minneapolis, and Dallas. These payments provide a rough approximation of the value of this intangible, even though they probably require major adjustments to reflect, among other things, differing passenger counts and demographics, as well as the costs incurred by the airport authorities in providing transportation to the off- airport sites. Based on the foregoing, the record demonstrates that: a) the payments of a concessionaire to an airport authority ordinarily consist in part of rent or license payments and in part of payments for an intangible, such as a franchise, concession, or other privilege to do business and b) these payments may be allocated, with reasonable precision, between the real property and business components. The Proposed Rules Proposed Rule 12A-1.070(4)(a)2 and (b) Rule 12A-1.070(4)(a)1. is not materially changed by the proposed rule amendments. Consistent with the statute, this paragraph of the rule merely imposes the sales tax in taxable transactions on the person actually occupying, using, or entitled to use the real property and requires that such person pay its immediate landlord or grantor. The next subparagraph is new. Proposed Rule 12A- 1.070(4)(a)2 contains two introductory sentences followed by three examples and a notice. The first sentence of Proposed Rule 12A-1.070(4)(a)2 fairly interprets the statute. The first sentence states that the sales tax is due on payments made to lessors or licensors when the payment is for the use of the real property and is based on the ownership or control of the real property by the lessor or licensor. By limiting the tax to those payments based on the payee's interest in the real property, the proposed rule ensures that the tax is imposed only on the portion of the payment attributable to the use or occupancy of real estate. The first sentence is unobjectionable. The second sentence of Proposed Rule 12A-1.070(4)(a)2 is no more controversial. This sentence provides that the "total payment for the use of real property" is taxable, even though the payment or part of the payment "may be identified" as payment for a privilege to do business. The use of "may be identified" in the "even though" clause refers to the label given such payments by the parties. The second sentence of Proposed Rule 12A-1.070(4)(a)2 merely provides that the taxable consequence of the transaction is not governed by the label given the payments by the parties. In other words, just because the parties use "concession fee," "privilege fee," "percentage fee," or "similar terms" does not necessarily make them payments for the privilege to do business. The second sentence assures that Respondent will not be deterred by mere labels from its lawful responsibility to characterize properly the nature of the payments, and make reasonable allocations when allocations are indicated. The three examples under Proposed Rule 12A-1.070(4)(a)2 are neither illustrative nor useful. To the contrary, they are vague and misleading and appear to reveal a misunderstanding of the proper taxation of mixed payments consisting of rent and payments for a privilege to do business. The first example is Proposed Rule 12A-1.070(4)(a)2.a. A clothing retailer occupies a location in a shopping mall. The retailer pays the mall owner minimum rent plus a percentage of gross sales. The agreement characterizes the minimum rent as consideration for the lease of designated space and the percentage of sales as consideration for the privilege to do business in the mall. The failure to pay either amount is grounds for termination of the agreement. The proposed rule concludes: "The total amount required under the agreement is subject to tax, regardless of how the consideration, or a portion thereof, is characterized." In fact, both payments made by the retailer to the mall owner may constitute taxable payments for the use of real property. Supplying little useful information as to how to determine the true character of payments, the proposed example ignores all of the important factors necessary in making this determination. The proposed example overrides the characterization of the payments by the parties. As discussed above, the parties' labelling of a payment may be tax-motivated, but it may also reveal their true intent. However, the proposed example offers insufficient explanation why it ignores the label of "privilege to do business" at the mall. The only possible grounds for ignoring the label are that the retailer occupies a location inside a mall under which it pays minimum rent and percentage rent and a default in the payment of either amount is grounds for terminating the agreement. The first basis is only that the payments are mixed and, except under the most strained reading of Quick and Havey, cannot, without more, possibly be considered justification for taxing the total payments. The key factor in the first proposed example is thus the presence of a cross-default clause. Such a clause may play a role in distinguishing between payments for the use of real property and other types of payments. In certain cases, the total amount actually being paid for the use of the real property may include all payments that must be paid in order for the agreement to remain in good standing. This would likely be true of base rent and additional rent, consisting of a lessee's prorata share of insurance, taxes, maintenance, and utilities. However, there is nothing in the record to suggest that a cross- default clause is of such importance as to confer upon it the status that it is given in the rule example. Nothing in the record supports the assertion that all cross-defaulted payments are therefore payments for the use or occupancy of real property. For instance, Respondent concedes that a lessee/payor might be obligated under a lease to make taxable payments of rent and nontaxable payments of promotional fees, such as for the use of logos or other intangibles. It is conceivable that a prudent (and powerful) lessor/payee might provide in the agreement, even if called a "lease agreement," that a default in either payment is grounds for terminating the agreement. Even so, the mere existence of such a cross-default clause does not, without more, transform the promotional fee into rent. The proper characterization of the two payments under the first proposed example requires consideration of, among other things, the four factors identified by Respondent's key witness: the relationship of the parties to the real property, the use to be made of the real property, the rights granted the parties under the agreement, and the basis for the payment or charge for the real property. The proper characterization requires consideration, in some fashion, of the elements that distinguish a real property asset from a business asset, such as any contributions by the mall owner in the form of operating agreements, other leases, marketing, management, working capital, and workforce, as well as the method by which the mall owner decides with whom it will enter into agreements and the total payments that it will require. The second example is Proposed Rule 12A-1.070(4)(a)2.b. A push cart vendor pays a mall owner minimum rent plus a percentage of gross sales for the right to sell merchandise at various locations within the common area of the mall. The mall owner may terminate the agreement if the vendor fails to make either payment. The example concludes that both payments are taxable "because the statute defines a taxable license as the granting of a privilege to use real property for any purpose, including the privilege to use real property to do business." The only difference in the first two examples is that the second involves a license and the first involves a lease. Like the example of the mall retailer, the example of the push cart vendor elevates the cross-default provision to outcome-determinative status. Again, the record does not support such reliance upon this factor for the above-discussed reasons. The third example is Proposed Rule 12A-1.070(4)(a)2.c. A car rental company pays an airport authority for designated office and counter space in the terminal. The agreement identifies a payment as rent for the use of real property. The agreement also identifies a payment, representing a percentage of gross sales, as a privilege fee for the right to engage in business at the airport. Failure to make either payment is grounds for terminating the agreement. The example concludes that the "total amount required under the agreement is subject to tax." As with the preceding examples, the example of the airport car rental company relies upon a cross-default clause to characterize all payments as for the use of real property. Again, for the reasons stated above, the record does not support such reliance upon this single factor. The three examples make no "reasonable allocation" between the real property and business components of what are probably mixed payments. Best revealed by the last sentence of the second example, the examples illegitimately transform business payments into real property payments simply because the business payor uses or occupies real property to conduct its business. In reality, the three examples seek to find their way back to the haven of Quick and Havey by equating cross-default clauses with inextricable intertwining and enmeshment. It is only conjecture whether a court would today so readily abandon an attempt to allocate between real property and business income. In any event, the present record demonstrates that "reasonable allocations" are achievable and require consideration of much more than cross- default clauses. Respondent's defense of the examples is inadequate. Respondent argues that the examples are modified by the language of Proposed Rule 12A- 1.070(4)(a)2. As previously stated, the two sentences of Proposed Rule 12A- 1.070(4)(a)2 represent a fair restatement of the statutory taxing criteria. But the role of the two examples is to illustrate the application of Proposed Rule 12A-1.070(4)(a)2, not provide a circular restatement of the rule and, thus, the statute. Given their language, the proposed examples stand alone and cannot be saved by the implicit incorporation of the first two sentences of Proposed Rule 12A- 1.070(4)(a)2. Standing alone, the illustrations are erroneous in their reliance on cross-default clauses, misleading in their omission of material factors required for any reasonable allocation, and misguided in their implicit bias against making allocations between payments for real property and business components. Respondent claims that the examples create presumptions that a taxpayer may rebut. This claim is dubious on two counts. First, Respondent's key witnesses disagreed on whether the presumptions created by the examples were indeed rebuttable. One witness testified clearly that, if a nonexempt transaction fit one of the examples, then the transaction was taxable. Nothing in the examples suggests that these presumptions are rebuttable. But the examples do not work even if they establish only rebuttable presumptions. The cross-default provision cannot bear the burden even of creating a rebuttable presumption. A cross-default provision is simply not that important to the proper characterization of the payments, especially in light of far more important factors. Proposed Rule 12A-1.070(4)(a)d warns taxpayers that all past declarations, including technical assistance advisements, that "advised that fees . . . identified as privilege fees to engage in business were exempt, and . . . are inconsistent with this rule" are rescinded. Proposed Rule 12A- 1.070(4)(a)d concludes: "Therefore, such privilege fees are taxable payments for a lease of license to use real property for business purposes." Respondent's key witness could not identify with certainty the past declarations rescinded by Proposed Rule 12A-1.070(4)(a)d or the past declarations left unaffected. This leave the proposed rule unnecessarily vague, at least as to airport authorities. There are a limited number of airport authorities and concessionaires that could be relying on past declarations and, if there are any besides those uncovered in this proceeding, they should be easily found. Proposed Rule 12A-1.070(4)(b) identifies as a taxable license to use real property the "full consideration paid for the license to use airport real property for the purpose of picking- up or dropping-off passengers and baggage from airport sidewalks, landings, and other facilities" by any provider of ground transportation services, regardless whether the provider "enters the airport terminal building while . . . providing such service." The full payment for the real property component is taxable, and Proposed Rule 12A-1.070(4)(b) accurately interprets the statutes. However, Respondent again encounters problems in the three examples that follow Proposed Rule 12A-1.070(4)(b). In Proposed Rule 12A-1.070(4)(b)1, a hotel pays a fee to an airport authority for the privilege of coming onto airport property to pick up and drop off hotel guests at the terminal. The example states that the payment is taxable because it is for a license to use airport real property. The second and third examples are identical except they involve a taxicab and limousine company and an off-site car rental company. Proposed Rule 12A-1.070(4)(b) states the obvious-- i.e., that whatever the payor pays for the right to use or occupy real property is subject to sales tax. Proposed Rule 12A- 1.070(4)(b) does not require the characterization of all payments between such parties as taxable payments for the use or occupancy of real property. The problem with the proposed examples is that they depart from the real-property language of Proposed Rule 12A- 1.070(4)(b) and use the business language of a privilege to do business. The first example baldly provides that a fee paid by a hotel to an airport for the "privilege" to enter airport property and pick up and drop off hotel guests is a license to use airport property and is taxable. There is no mention of allocation or of the factors that would go into a reasonable allocation. The fee is taxable. The language and paucity of reasoning are practically identical for the second and third examples. Respondent argues that Proposed Rule 12A-1.070(4)(b) must be read in connection with the language of Proposed Rule 12A-1.070(4)(a)2, which restates the statutory language. This argument fails for two reasons. Like the examples under Proposed Rule 12A-1.070(4)(a)2, Proposed Rule 12A-1.070(4)(b) does not incorporate by reference the language of Proposed Rule 12A-1.070(4)(a)2. Respondent's argument of implicit incorporation is even weaker here because Proposed Rule 12A-1.070(4)(b) is not even a subparagraph of Proposed Rule 12A- 1.070(4)(a)2. The first set of proposed examples at least mentions a cross-default clause, which could have some bearing on the proper characterization of the payments, even though the omission of far more important factors invalidates the first set of examples. The second set of proposed examples fails even to mention a single factor. If the hotel, taxi cab company, or rental car company pays for the privilege of entering airport property to do business, the entire payment is taxable. Proposed Rule 12A-1.070(1)(a)6.b and c Proposed Rule 12A-1.070(1)(a)6.b provides that property "used by an airline exclusively for loading or unloading passengers onto or from an aircraft is exempt." The proposed rule identifies examples of such property as common terminal walkways used by passengers for boarding or exiting planes, ticket counters, baggage claim areas, ramp and apron areas, and departure lounges (but distinguished from VIP lounges or clubs that require a membership not determined by ticket status). Proposed Rule 12A-1.070(1)(a)6.c adds that "[r]eal property used by an airline for purposes of loading or unloading passengers or property . . . which is exempt from tax includes ... office areas used to process tickets, baggage processing areas, operations areas used for the purpose of the operational control of an airline's aircraft, and air cargo areas." Petitioners object to the use of "exclusively" in subparagraph b. The statute provides an exemption for property used exclusively for aircraft landing or taxiing or property used by an airline for loading or unloading persons or property or for fueling. Clearly, due to the repetition of "property used" in the second clause, the modifier "exclusively" applies only to the first clause, which is consistent with the doctrine of the nearest antecedent argued in Petitioner's proposed final order. It is unclear how Proposed Rule 12A-1.070(1)(a)6.b and c work together because they seem to define the same exempt property under different subparagraphs. Both subparagraphs apply to real property, and both seem to describe the same examples of real property, using different words. The subparagraphs under subparagraph b present reasonable rules for determining what is real property based on ownership of the underlying land, with a special rule when the airport authority leases, but does not own, the land on which the airport is situated. The subparagraphs under subparagraph c identify a prorating process, which applies when the property is used for both exempt and nonexempt purposes. It is unclear how property could be used for exempt and nonexempt purposes under the requirement of "exclusive" use in subparagraph b, although such mixed uses is contemplated by subparagraph c. The requirement contained in the first sentence of Proposed Rule 12A- 1.070(1)(a)6.b that the property be used exclusively for loading or unloading passengers conflicts with the language of Proposed Rule 12A-1.070(1)(a)6.c, as well as the language of Rule 12A-1.070(1)(a)6.a; neither of the latter two provisions predicates the exemption upon exclusivity of use. More importantly, the first sentence of Proposed Rule 12A- 1.070(1)(a)6.b conflicts with the relevant statutes. However, the remainder of Proposed Rule 12A- 1.070(1)(a)6.b, including subparagraphs (I) and (II), is a reasonable interpretation of the relevant statutes, as is Proposed Rule 12A-1.070(1)(a)6.c, including subparagraphs (I) and (II). Petitioners argue that Respondent intends to tax nonairline concessionaires for their use of property used for loading or unloading persons or property. This argument is unclear, perhaps because the unobjectionable proposed rules do not require such an application. Proposed Rule 12A-1.070(1)(b)3 Proposed Rule 12A-1.070(1)(b)3 defines "retail concessionaire" as either a lessee or licensee that makes sales directly to the public within an airport. The words "retail concessionaire" are not used elsewhere in the rule or proposed rules at issue except in Rule 12A-1.070(1)(b)1 and 2, which addresses "a person providing retail concessionaire services" involving the sale of food or drink or other tangible personal property in an airport. Subparagraph 1 imposes tax on rent paid by such persons, and subparagraph 2 exempts from tax any license payments made by such persons. Petitioners' arguments against the definitional proposed rule are misplaced. The definition covers lessees and licensees, but does not impose any tax. In conjunction with subparagraphs 1 and 2, the proposed definition of "retail concessionaire" says, in effect, that all lessees and licensees selling food and drink or other personal property are subject to tax on payments for the rental of associated real property, but are not subject to tax on payments for the licensing of associated real property. The subparagraphs that carry tax consequences honor the legislative directives as to taxability.
The Issue The issue presented is whether Respondent George Wentworth is entitled to a noticed general permit and consent to use sovereign submerged lands for a dock and boathouse.
Findings Of Fact On June 26, 1998, Respondent Wentworth submitted to the Department an application for a standard general permit to construct a boardwalk through mangroves on his property on Hutchinson Island in Stuart, Florida. On August 13, 1998, he revised his application by expanding it to include a dock with a U-shaped terminal platform and boat lift. His revised application was a notice of intent to use a noticed general permit rather than a standard general permit. The expanded project is in the Indian River Lagoon, which is classified as an Outstanding Florida Water and is within the Jensen Beach to Jupiter Inlet Aquatic Preserve (Class II waters of the State). His revised application form specifically advised that he was not seeking authorization to use the sovereign submerged lands over which his project would be constructed. Bruce Jerner, a Department employee in its Port St. Lucie office, processed Wentworth's application. He made a site visit, met with Wentworth's consultant, performed a survey of the seagrasses in the area of the project site, and placed a stake for the landward extent of the terminal platform for the dock which would allow Wentworth to avoid the existing seagrasses. While Wentworth's request for approval was being processed by the Department, Jerner had several conversations with Wentworth or his consultant. The project changed several times as to its dimensions, and Wentworth agreed to give the Department several extensions of the 30 days the Department had to object to the project before the noticed general permit would issue by operation of law. The last extension given would expire in October 1998. On September 23, 1998, Jerner was about to leave on vacation. He processed Wentworth's permit application that day, using the revised drawings submitted by Wentworth that same day. That day's drawings indicated a rectangular terminal platform instead of U-shaped and a notation indicating a boathouse and boat lift. In processing the application with the new drawings, Jerner did not consider the more stringent standards that apply in an aquatic preserve and did not consider any requirements of the local government, Martin County. He prepared a document which would grant approval by using various forms and piecing them together. He placed the document in the location for outgoing mail. Jerner did not have another staff person review the file, as required by Department procedures. Jerner did not then have the file reviewed by the administrator of the Department's Port St. Lucie office, as required by Department procedures. Although Jerner had the authority to sign a permit when the Department's administrator was absent from the office, no evidence was offered at the final hearing in this cause as to whether Melissa Meeker, the administrator of the office at the time, was in the office that day or not. The letter received by Wentworth was not signed and recited the wrong address for the project location. It also indicated that it was both a permit and an exemption from permitting. Although Wentworth is a state-certified general contractor, neither he nor his consultant contacted the Department to find out why the permit was unsigned, why the project location was wrong, or why the Department's letter referred to itself as being both a permit and an exemption. Further, they did not question why the attachments to the letter indicated that the project as approved could not be. The September 23, 1998, letter advised Wentworth that he could protect himself from third-party challenges to his noticed general permit and consent to use sovereign submerged lands by publishing notice in a local newspaper and/or by mailing a copy, by certified mail, to any known interested persons. The letter advised him that if he did those things, his permit would be beyond challenge after 21 days. Wentworth did neither. The permit letter mailed by Jerner authorized Wentworth to use sovereign submerged lands even though Wentworth's application specifically advised that Wentworth did not want the State's consent to use its land. The permit letter also authorized Wentworth to construct a 1,894 square foot single- family docking structure with a 236' x 4' access pier through jurisdictional wetlands and open water and a 23' x 50' boathouse located over the terminal access and mooring area. In December 1998 Wentworth faxed to Jerner a revised drawing of his dock and attendant structures. That drawing showed a boat shelter on one side of the access walkway and a traditional terminal platform on the other. A notation reflected that the boat shelter was reduced to 16' x 30'. The drawing was not signed or sealed. It was not accompanied by a request for modification. In an ensuing conversation Jerner told Wentworth that the drawing was probably something he could approve if Wentworth submitted a modification request with a signed, sealed copy of the drawing. Wentworth never did so. Since no modification was ever requested, one was never approved. Wentworth commenced construction, and he was contacted by Petitioners Urban, the adjoining landowners, and by Petitioners Vogel, nearby landowners. They objected to the very large structure he was constructing as was evident by the location and size of the pilings being put in place. They asked him to decrease the size of his boathouse, but he refused. In January 1999 the Vogels and the Urbans filed petitions with the Department seeking to have the Department reverse its approval of Wentworth's noticed general permit and its consent for Wentworth to use sovereign submerged lands. The Department contacted Wentworth and requested that he cease all construction activities until the merits of the petitions could be determined. Wentworth continued with the construction. On December 31, 1998, Martin County issued a stop work order against Wentworth's construction project for two reasons: first, the questions which had been raised by the Urbans and the Vogels regarding the validity of the Department's permit; and, second, the electrical work being performed on the project without a permit from Martin County. Wentworth ignored the County's stop work order and continued his construction. The project has been completed. On May 10, 1999, the Department issued a revised letter correcting the errors in its September 23, 1998, letter. The address of the project was corrected. The reference to Class III waters of the State was changed to Class II. The letter added language to reflect that the dimensions of the project may not be authorized. The references to an exemption from permitting were deleted. As constructed, the structure consists of a 236' x 4' access pier. Toward the end on one side is a 10' x 17' traditional terminal platform. On the other side is a 16' x 30' boathouse roof with a boat lift under it. Basically, the outline of the dock and attendant structures looks like a flagpole that runs east to west with a small flag at the southwest end and a large one at the northwest end. The total area that extends from the end of the access pier (not including the access pier) is approximately 650 square feet, and the total area for the entire structure is approximately 1,594 square feet. The access pier ends where the structure becomes wider than four feet, where the attached roof structure (boathouse or boat shelter) begins. The terminal platform begins at the landward extent of the boat shelter. The terminal platform, which includes both the traditional docking platform and the boathouse roof, far exceeds 160 square feet. The terminal platform (which includes the boathouse roof) is connected to the access pier, is located at the terminus of the facility, is designed to secure and load or unload a vessel, and is a water- dependent activity. However, the boathouse roof is not necessary for Wentworth to gain access to his boat or the water to conduct water-dependent activities. The dock access pier is not elevated a minimum of five feet above mean high water. The dock plank spacing is less than one-half inch. The access pier is located over a bed of seagrasses. The first eighty feet from the landward extent of the mangroves meets the definition of a Resource Protection Area 1, an area with the highest level of resources. From that point outward, there are no seagrasses, but since seagrasses are migratory, there is the potential for seagrasses absent extensive shading. The potential for resources under the remaining access pier, the terminal platform, and the boathouse places that part of the structure in a Resource Protection Area 2. The boathouse roof is elevated at least 17' above mean high water and will cast a shadow over resources in the area. Shading of resources by structures in an aquatic preserve can adversely impact marine grass, fish, birds, and benthic organisms. A noticed general permit is a form of regulatory authorization whereby if all criteria are met, the applicant qualifies for a regulatory permit without the agency having to issue a permit. The noticed general permit is not an authorization to use state lands nor is it linked to the state lands authorization. Proprietary authorization is a separate authorization to use state-owned submerged lands. Nonetheless, the two prongs of authorization are covered by one document/letter in an effort to streamline the permitting process. The September 23, 1998, and May 10, 1999, letters to Wentworth each had attachments which addressed, among other things, the specific criteria that must be met to qualify for state lands authorization. The state lands (proprietary) authorization has more stringent size and design requirements than the noticed general permit (regulatory) authorization. Although Wentworth's dock structure meets the criteria for a noticed general permit, it does not meet the criteria for consent to use sovereign submerged lands. The completed dock structure is quite visible from the homes of the Urbans and the Vogels. They had purchased their homes years before Wentworth constructed his dock and boathouse and had relied on the pristine character of the water and their unobstructed view in making their purchases. They relied on the fact that they were purchasing property in an aquatic preserve with special protection afforded by the restrictions on construction in the preserve. The Urbans have a dock and own a boat which they use on the Lagoon. The Vogels do not have a boat, but they use the Lagoon as guests of others who own boats. There are no other boathouses within view of the Vogel or the Urban properties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Wentworth's application for a noticed general permit and for consent to use sovereign submerged lands conditioned on the entire terminal platform not exceeding 160 square feet, the entire terminal platform not exceeding eight feet in width, the deck plank spacing being at least one-half inch wide, and the access pier being elevated to five feet above mean high water. If Wentworth is not willing to meet such conditions, his application for a noticed general permit and consent to use should be denied. DONE AND ENTERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 25th day of August, 1999 COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. Post Office Box 1197 Stuart, Florida 34995 William E. Guy, Jr., Esquire Law Offices of William E. Guy, Jr. Post Office Box 3386 Stuart, Florida 34995 Ricardo Muratti, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Port Largo Airport, Key Largo, Monroe County, Florida has been operated as a public airport under DOT license (p-1) and a zoning variance (R-2) since 1973. A recent rezoning of the R-2U (residential two-family) area of the airport to private airport (P-10) has not been finalized. The most recent lease of the property was executed July, 1977 for a period of five years (P-4) The Port Largo Airport has one asphalt runway oriented nearly north/south that is more than 65 feet wide and 2,100 feet long (P-1 and 3). Between the west side of the runway edge and an airplane parking area there is 30 feet of unpaved area; on the east side at least 20 feet of unpaved area exists between the runway and the ocean. The full length of the paved and unpaved area appears to he on a long, narrow breakwater or strip of land 150 feet wide and 2,400 feet long with the Atlantic Ocean on the east and a wide canal on the west (P-9) The south end of the runway is approached over the water, while the north end has a clump of mangroves 15 feet high a distance of 360 feet from Runway 19's displaced threshold. The height and location of the mangroves from the displaced threshold is such that there is an elevation angle of 2 degrees 17 feet 19 inches and an offset angle of 5 degrees 42 feet 28 inches (P-1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the renewal license application of Port Largo Aero and Marine, Inc. for the Port Largo Airport be granted and License No. 3778 continued in effect to its termination date of January 31, 1981. DONE and ORDERED this 4th day of December, 1980, in Tallahassee, Leon County, Florida. HAROLD E. SMITHERS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Joseph B. Allen, III, Esquire 604 Whitehead Street Key West, Florida 33040 Joe L. Sharit, Jr., Esquire 255 Magnolia Avenue Post Office Box 2295 Winter Haven, Florida 33880
Conclusions This matter was considered by the Secretary of the Department of Community Affairs following receipt of a Recommended Order issued by an Administrative Law Judge of the Division of Administrative Hearings. A copy of the Recommended Order is appended to this Final Order as Exhibit A.
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 this matter is whether section 330.30(3)(f), Florida Statutes, exempts Petitioner from obtaining the approval of the Department of Transportation prior to using a private heliport site adjacent to his property.
Findings Of Fact The Department is authorized to administer and enforce the rules and requirements for airport sites, including initial airport site approval, registration of private airports, and licensing of public use airports. See § 330.29, Fla. Stat. Petitioner owns a home next to Honeymoon Lake in Brevard County, Florida. Petitioner, an aviation enthusiast, also owns several helicopters. Petitioner currently parks his helicopters at a nearby airport. Petitioner desires to takeoff and land his helicopters at his home. Petitioner built a dock on Honeymoon Lake next to his property. Over the dock, Petitioner constructed a wooden platform to use as his heliport. Petitioner built the platform directly into the submerged lands beneath Honeymoon Lake. The platform is approximately 36 feet long by 32 feet wide. The platform rests on wooden pilings and is raised to about 15 feet above Honeymoon Lake. The platform is connected to the shore by a wooden foot bridge. Petitioner harbors two boats at the dock beneath the platform. Petitioner constructed the heliport for his private, recreational use only. Petitioner wants to use his heliport without applying for approval from the Department. Honeymoon Lake is a private (not State) body of water whose history goes back to a deed issued in the late 18th century. In 1878, President Rutherford B. Hayes, on behalf of the United States government, deeded Honeymoon Lake to the original developer of the area. Honeymoon Lake is approximately 300 feet wide at Petitioner’s property line. The area of the lake where Petitioner’s heliport is located is owned by the Stillwaters Homeowners Association and used as a recreation area. On September 5, 2017, after Petitioner constructed the platform, the Stillwaters Homeowners Association Board of Directors approved Petitioner’s heliport by resolution. Prior to this administrative action, Petitioner applied to the Federal Aviation Administration (“FAA”) for airspace approval to operate his heliport on Honeymoon Lake. On April 13, 2017, the FAA provided Petitioner a favorable Heliport Airspace Analysis Determination in which the FAA did not object to Petitioner’s use of his helicopters in the airspace over Honeymoon Lake. The FAA’s determination included an approved Approach/Departure Path Layout and Agreement with the 45th Space Wing, which operates out of nearby Patrick Air Force Base. Petitioner also represents that the heliport platform does not violate the Brevard County Building Code. In support of this assertion, Petitioner introduced the testimony of Brevard County Code Enforcement Officer Denny Long. In August 2017, after receiving a complaint that Petitioner’s heliport might have been built in violation of Brevard County ordinances, Mr. Long inspected Petitioner’s dock structure. Upon finding that Petitioner had already constructed his platform, Mr. Long could not identify a code provision that he needed to enforce. Therefore, he closed his investigation. Petitioner contends that the Honeymoon Lake area is not taxed by Brevard County. Neither is Brevard County responsible for any improvements thereon.3/ Because his heliport is situated over water and not land, as well as the fact that he will only use the heliport for occasional, private use, Petitioner believes that he is entitled to the exemption under section 330.30(3)(f) from obtaining the Department’s approval prior to landing his helicopters at his heliport. Section 330.30 states, in pertinent part: SITE APPROVALS; REQUIREMENTS, EFFECTIVE PERIOD, REVOCATION.— (a) Except as provided in subsection (3), the owner or lessee of any proposed airport shall, prior to . . . construction or establishment of the proposed airport, obtain approval of the airport site from the department. * * * (3) EXEMPTIONS.—The provisions of this section do not apply to: * * * (f) Any body of water used for the takeoff and landing of aircraft, including any land, building, structure, or any other contrivance that facilitates private use or intended private use. Petitioner asserts that the exemption described in section 330.30(3)(f) extends to a “building, structure or any other contrivance” that is constructed on, or over, a body of water. Therefore, since his landing site is situated over water, Petitioner argues that his heliport should be considered a “structure . . . that facilitates private use” of a “body of water for the takeoff and landing of aircraft” which qualifies him for an exemption from Department approval. Although Petitioner does not believe that he needed to apply to the Department for approval of his proposed landing site, he did so at the FAA’s suggestion. Around April 2017, Petitioner contacted the Department inquiring about the process to obtain an airport license or registration for his heliport. On September 25, 2017, however, the Department denied Petitioner’s application as incomplete. Pursuant to section 330.30(1)(a), the Department instructed Petitioner to produce written assurances from the local government zoning authority (Brevard County) that the proposed heliport was a compatible land use for the location and complied with local zoning requirements. In response, instead of supplementing his application, Petitioner asserted to the Department that his heliport was exempt from registration under section 330.30(3)(f) because it was located in a private body of water. On April 6, 2018, the Department issued Petitioner a formal “Letter of Prohibition.” The Letter of Prohibition notified Petitioner that he was not authorized to operate his helicopter from his dock/heliport without first registering his heliport with the Department and obtaining an Airport Site Approval Order. The Letter of Prohibition further stated that Petitioner’s heliport did not meet the exception from site approval and registration requirements in section 330.30(3)(f). The Department expressed that the exception only applied to “a body of water used for the takeoff and landing of aircraft.” The exception did not apply to the platform Petitioner desired to use as his landing site. Petitioner challenges the Letter of Prohibition in this administrative hearing. The Department, through Alice Lammert and Dave Roberts, asserts that Petitioner must register his private-use heliport before he may use it to takeoff or land his helicopters. Ms. Lammert and Mr. Roberts testified that the Department has consistently interpreted section 330.30(3)(f) to pertain to actual bodies of water, e.g., waters used by seaplanes or other floatable aircraft. Both Ms. Lammert and Mr. Roberts commented that Petitioner is not seeking to takeoff or land his helicopters on Honeymoon Lake. Petitioner intends to use a platform, situated 15 feet above Honeymoon Lake, on which to land his helicopters. Ms. Lammert and Mr. Roberts expressed that Petitioner’s construction of his heliport over water does not change the fact that his heliport is a fixed wooden structure and not a “body of water.” Consequently, Petitioner must obtain Department approval prior to using the platform for his helicopters. Ms. Lammert and Mr. Roberts added that if Petitioner’s helicopters were equipped with pontoons and landed directly on the surface of Honeymoon Lake, his “landing site” would qualify for the exemption set forth in section 330.30(3)(f). Ms. Lammert and Mr. Roberts further explained that the Department is responsible for ensuring that aircraft operating in Florida takeoff and land in safe, controlled areas. Through section 330.30, the Department is tasked to inspect all potential airport sites to make sure that the landing zones do not pose a danger to any aircraft (or helicopter) that might use them. Safety is the Department’s primary focus when approving private airport/heliport registrations. For example, as Ms. Lammert explained, the Department would inspect Petitioner’s heliport to ensure that the platform is sturdy enough and wide enough to bear the weight of Petitioner’s helicopters. The Department might also determine whether the platform should be equipped with a safety net. Regarding Petitioner’s argument that the Department should consider his heliport a “structure . . . that facilitates private use” of a body of water, Mr. Roberts understands the exemption under section 330.30(3)(f) to include docks that are used for persons disembarking from a seaplane or other floatable aircraft. The exemption, however, does not apply if the dock, itself, serves as the landing site. Regarding Petitioner’s reference to the FAA analysis determination, Mr. Roberts explained that while the FAA has authority to approve the use of the airspace over Honeymoon Lake, the authority to approve the landing site remains with the Department. Based on the evidence and testimony presented at the final hearing, Petitioner did not prove, by a preponderance of the evidence, that his heliport qualifies for an exemption under section 330.30(3)(f). Accordingly, prior to his use of his heliport to takeoff or land his helicopters, he must apply for site approval from the Department.
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 Petitioner’s request for an exemption from Department approval under section 330.30(3)(f) prior to the use of his wooden platform as a heliport. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 25th day of October, 2018.
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
