12-001512 Margot Seefried vs. Department Of Transportation Status: Closed Recommended Order on Thursday, February 21, 2013.

Summary: Applicant failed to demonstrate entitlement to private Airport Site Approval Order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARGOT SEEFRIED , )

)

Petitioner, )

)

vs. ) Case No . 1 2 - 1512

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on October 19 ,

2012 , in Palatka , Florida, before Lawrence P. Stevenson, a duly -

designated a dministrative l aw j udge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Craig Z. Sherar, Esquire

Law Offices of Craig Z. Sherar

147 Pinetree Road

East Palatka, Florida 32131

For Respondent: Susan Schwartz , Esquire

Department of Transportation

Haydon Burn s Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 04 50

STATEMENT OF THE ISSUE

The issue is whether the Department of Transportation (the

"Department") properly iss ued an A irport S ite A pproval O rder to

Monroe Airport, a private airport in Putnam County, in

accordance with section 330.30, Florida Statutes , and Florida

Administrative Code R ule 14 - 60.005.

PRELIMINARY STATEMENT

On March 1, 2012, the Department issued an A irport S ite

A pproval O rder , Site Approval Number SW2012 - FLA - 0117 - AP, to

Michael D. Monroe that would allow Mr. Monroe to construct a

private airport on his property in Putnam County. Pursuant to

Florida Administrative Code R ule 14 - 60.005(7)(b)1., the

Dep artment placed an announcement of the issuance of the private

A irport S ite A pproval O rder in the March 16, 2012 , issue of the

Florida Administrative Weekly . 1 / On April 6, 2012, Petitioner

Margot Seefried timely filed a P etition for A dministrative

H earing opposing the Airport S ite A pproval O rder.

On April 23, 2012 , the Department referred the case to the

Division of Administrative Hearings for the assignment of an

a dministrative l aw j udge and the conduct of a formal

administrative hearing. The case was ori ginally set for hearing

on June 19 , 2012. On May 17, 2012, the Department filed a

M otion for C ontinuance due to the unavailability of Mr. Monroe

to attend the hearing. By order dated May 21, 2012, the request

for continuance was granted. By order dated May 31, 2012, the

hearing was rescheduled for August 24, 2012. On August 2, 2012,

Petitioner filed a M otion for C ontinuance to allow an

opportunity to take Mr. Monroe's deposition. By order dated

August 7, 2012, Petitioner's motion was granted and the he aring

was rescheduled for October 19, 2012.

The hearing convened on October 19, 2012. At the outset of

the hearing, Petitioner moved to exclude the testimony of

Mr. Monroe because his scheduled deposition had not taken place

due to ineffective service of the deposition subpoena. After

some discussion, the undersigned provisionally denied the

motion. Mr. Monroe would be allowed to testify at the hearing,

with the proviso that Petitioner could obtain a continuance and

pursue additional discovery should Mr. Monroe's testimony raise

the need.

At the hea ring, the Department presented the testimony of

D avid Roberts, the Department's aviation operations

a dministrator; Michael Monroe, the owner of the proposed

airport; and the rebuttal testimony of Stephen LaPo inte . The

Department 's Exhibits 1 through 4 and 5a through 5m were

admitted into evidence. Petitioner testified on her own behalf.

Petitioner's Exhibits 4a, 4b, 5 and 6 were admitted into

evidence. Petitioner's Exhibits 7 through 9 were proffered but

n ot admitted.

At the conclusion of the hearing, the parties agreed that

their proposed recommended orders would be filed within 20 days

of the filing of the transcript at the Division of

Administrative Hearings. The one - volume transcript of the

hearing was filed on October 29 , 2012. The parties timely filed

their P roposed R ecommended O rders on November 19, 2012.

Unless otherwise noted, all statutory references are to

Florida Statutes (201 2 ).

FINDINGS OF FACT

1. The Department is the agency of the S tate of Florida

granted authority to issue A irport S ite A pproval O rders, license

public airports, and register private airports. § 330.30 , Fla.

Stat.

2. A "public airport" is an airport, publicly or privately

owned, that is open for use by the public. A "priva te airport"

is an airport, publicly or privately owned, that is not open for

use by the public but may be made available to others by

invitation of the owner or manager. § 330.27(5)&(6), Fla. Stat.

3. With some exceptions not relevant to this case, the

o wner or lessee of any proposed airport must obtain site

approval from the Department "prior to site acquisition or

construction or establishment of the proposed airport."

§ 330.30(1), Fla. Stat.

4. Section 330.30(1) provides that applications for

approva l of a site "shall be made in a form and manner

prescribed by the department." The statute requires the

Department to grant the site approval if it is satisfied: that

the site has adequate area for the proposed airport; that the

proposed airport will conf orm to licensing or registration

requirements and will comply with local land development

regulations or zoning requirements; that all affected airports,

local governments, and property owners have been notified and

any comments submitted by them have been given adequate

consideration; and that safe air - traffic patterns can be

established for the proposed airport with all existing airports

and approved airport sites in its vicinity. § 330.30(1)(a),

Fla. Stat.

5. Michael Monroe is the owner of property in Crescent

City on which he proposes to place a private airport.

Mr. Monroe has in fact constructed an airstrip on the property.

In constructing his airstrip in 2008 , Mr. Monroe caused the

dredging and filling of jurisdictional wetlands without a

permit . An enforcement action by the Department of

Environmental Protection led to a consent order dated

October 28, 2009. The consent order required payment of a civil

penalty and required Mr. Monroe to undertake various actions in

mitigation of his unpermitted wetlands activities.

6. The Department's Aviation Office sent a cease and

desist letter to Mr. Monroe, dated April 27, 2010 , and signed by

Micki Liddell, then the Department's Private Airport

Registration Manager. The letter stated as follows, in relev ant

part:

This letter is follow - up to our telephone

conversation of this date regarding a

citizen complaint received by the Florida

Department of Transportation (FDOT)

April 27, 2010 , concerning allegations of

flight operations to and from your property.

The law ( section 330.30, F.S.) states that

the owner or lessee of any proposed airport

shall obtain approval of the airport site by

the Department and subsequently shall have

either a public airport license or private

airport registration "prior to the ope ration

of aircraft to or from the facility." Our

records show that neither an A irport S ite

A pproval O rder nor airport license or

private airport registration have been

issued by the Department for your residence.

Flight operations to and from your reside nce

would confirm that your residence is being

used as an "airport" and being unauthorized

by the Department would constitute a

violation of Florida law and could put a

site approval request in jeopardy.

In that regard, the Department hereby

advises you t o cease all flight operations

to and from your residence until such time

as you have followed the appropriate

procedures to obtain airspace approval from

the Federal Aviation Administration (FAA),

local zoning approval, a irport site approval

and private ai rport registration from the

Department, provided your site meets the

criteria of c hapter 330, Florida Statutes.

7. At the final hearing, Mr. Monroe testified that he had

flown planes in and out of his property on four occasions prior

to the issuance of the cease and desist letter. He stated that

he has only flown a plane out of his property on one occasion

since receiving the cease and desist letter, and that he had

received verbal approval from the Department for th e flight.

8. On July 30, 2010, Mr. M onroe received airspace approval

from the FAA for a private use landing area, with the following

provisos: a) all operations will be conducted in VFR weather

conditions; b) the landing area will be limited to private use;

and c) an operational letter of a greement ("LOA") will be

entered between Mr. Monroe, and the owners of nearby airfields

Eagle ' s Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport,

and Thunderbird Airpark, to provide for compatible traffic

pattern operations, considering common radio frequencies,

traffic pattern altitudes, and other items as appropriate. The

FAA also recommended certain approach slope ratios and

centerline separation from roads and other objects. On

November 15, 2010, the FAA issued an amended determination

providin g a fourth condition to its approval: that all

arrivals, departures and traffic pattern operations remain clear

of a nearby military restricted area.

9. In August 2010, Mr. Monroe applied to the Putnam County

Zoning Board of Adjustment for a special use permit ("SUP") to

allow a private airport on his property, which was zoned

Agricultural. At its public meeting on October 20, 2010, the

Zoning Board unanimously denied the SUP after hearing Petitioner

and a representative of the U.S. Navy speak in opposit ion. The

Navy had initially contended that the airport would be located

within the restricted airspace of the Lake George bombing range.

Further review confirmed that the airport was outside that

particular restricted airspace, but the Navy continued to assert

that the airport was within the generally restricted airspace of

its military operating area.

10. After clarifying that the airport property was not in

restricted airspace, Mr. Monroe reapplied for the SUP in

September 2011. By Final Order dated N ovember 16, 2011, the

Zoning Board issued SUP - 11 - 009 to Mr. Monroe and his wife,

finding that the Putnam County Land Development Code allowed for

a private aircraft landing facility by SUP in an Agricultural

zoning district and that the proposed special us e "will not

adversely affect the general public health, safety and welfare

of the residents of Putnam County." Appended to the Final Order

were minutes of the public hearings, schematics of Mr. Monroe's

property, and a Department of Environmental Protecti on closure

request form stating that the conditions of the October 28,

2009 , consent order had been satisfactorily completed.

11 . On January 27, 2012, Mr. Monroe submitted a site

approval application to the Department, using the interactive

internet - based system established under rule 14 - 60.005(3)(b).

12 . Rule 14 - 60.005(4) sets forth the following as

conditions for site approval:

The Department shall grant site approval for

a proposed airport that complies with all

the requirements of s ection 330.30, Flor ida

Statutes, subject to any reasonable

conditions necessary to protect the public

health, safety, or welfare. Such conditions

shall include operations limited to VFR

flight conditions, [ 2 / ] restricted approach or

takeoff direction from only one end of a

r unway, specified air - traffic pattern

layouts to help prevent mid - air collision

conflict with aircraft flying at another

nearby airport, airport noise abatement

procedures in order to satisfy community

standards, or other environmental

compatibility measure s.

13 . Rule 14 - 60.005(5)(a) - (m) set s forth the supporting

documentation that an applicant for a public airport site

approval must submit to allow the Department to make its site

approval determination and "to ensure the applicant's

satisfaction of condi tions" set forth in subsection (4) above.

The supporting documentation is as follows:

(a) Property Rights. Provide a copy of

written legal confirmation of ownership,

option to buy, or lease agreement for the

real property that comprises the site on

whic h the proposed airport would be located.

Although adequate safety areas surrounding

an airport site are important and a factor

in the DepartmentÓs approval determination,

the applicant is not required to hold

property rights over those real property

areas that would constitute runway approach

surfaces.

(b) Facility Diagram. Provide a scale

drawing showing the size and dimensions of

the proposed facility; property rights of

way and easements; lighting, power, and

telephone poles; location of building(s) on

property and surrounding areas; and

direction, distance, and height of all

structures over 25 feet within 1,000 feet of

the site perimeter.

(c) Geodetic Position. Provide a copy of a

U.S. Geological Survey quadrangle map or

equivalent with the propo sed site plotted to

the nearest second of latitude and

longitude.

(d) Location Map. Provide a copy of a map

or sketch, at least 8.5 x 11 inches in size,

showing the location of the proposed site,

with respect to recognizable landmarks and

access roads t o the site clearly marked.

(e) Aviation Facilities. Provide a list of

names and mailing addresses for adjacent

airports, including a sample copy of the

letter submitted as proposal notification to

these airports, and attach a copy of all

airport reply c orrespondence.

1. For a proposed airport or seaplane

landing facility, list all VFR airports and

heliports within five nautical miles and all

IFR airports within 20 nautical miles.

2. For a proposed heliport, list all VFR

airports and heliports within three nautical

miles and all IFR airports within 10

nautical miles.

(f) Local Government. Provide a copy of

each of the letters of noti fication, showing

the recipient' s name and mailing address,

that have been submitted to each zoning

authority having j urisdiction, for the

municipality and county in which the site

lies or which is located within five

nautical miles of the proposed airport site.

The applicant shall also include a copy of

all related correspondence from each city or

county authority, inclu ding a statement that

the proposed airport site is in compliance

with local zoning requirements or that such

requirements are not applicable.

(g) Adjacent Property. Provide a list of

the names and mailing addresses of all real

property owners within 1 ,000 feet of the

airport site perimeter, or within 300 feet

of the heliport or helistop site perimeter,

including a single copy of the letter of

notification submitted as notification to

these adjacent real property owners, and

include a copy of all real p roperty owner

correspondence in reply. If notification

was provided by a local government as part

of its review and approval process for the

airport, provide written confirmation of the

fact, in lieu of the above required

submittal by the applicant.

(h) Public Notice. Provide a copy of the

notice and of th e letter, showing the

recipient' s name and mailing address,

requesting publication of notification of

the proposed airport site in a newspaper of

general circulation in the county in which

the proposed airport site is located and

counties within five nautical miles of the

proposed airport site. If this condition

has been accomplished by a local government

as part of its review and approval process

for the airport, provide written

confirmation of the fa ct, in lieu of the

above required submittal by the applicant.

(i) Waste Sites. Provide written

confirmation that the runway(s) on the

proposed airport would not be located within

5,000 feet of any solid waste management

facility for a proposed airport s erving only

non - turbine aircraft, or within 10,000 feet

of any solid waste management facility for a

proposed airport serving turbine - driven

aircraft.

(j) Air Traffic Pattern. Provide written

confirmation, including a graphical

depiction, demonstrating that safe air

traffic patterns can be established for the

proposed airport with all existing and

approved airport sites within three miles of

the proposed airport site. Provide a copy

of written memorandum(s) of understanding or

letter(s) of agreement, si gned by each

respective party, regarding air traffic

pattern separation procedures between the

parties representing the proposed airport

and any existing airport(s) or approved

airport site(s) located within three miles

of the proposed site.

(k) Safety F actors. Provide written

confirmation that the runway and taxiway

design criteria and airport design layout of

the proposed airport have appropriately

taken into account co nsideration of the

manufacturer' s performance characteristics

for the type(s) of air craft planned to be

operated; the frequency and type(s) of

flight operations to be anticipated; planned

aviation - related or non - aviation activities

on the airport; and any other safety

considerations, as necessary, to help ensure

the general public health, safety, and

welfare of persons located on or near the

airport.

(l) Security Factors. Provide written

confirmation that the proposed airport site

owner or lessee will take appropriate steps

to help protect the general public health,

safety, and welfare through secure airport

operations and that they will develop and

implement adequate airport security measures

to safeguard airport and aviation - related

assets from misappropriation or misuse in

order to prevent potential loss or public

endangerment.

(m) FAA Approval. Provide a copy of the

notification to the FAA regarding the

proposed air port site and a copy of the

FAA' s airspace approval correspondence given

in response.

14 . Rule 14 - 60.005(6) provides that an applicant for

private airport site approva l is subject to the same

requirements as stated for a public airport site approval

applicant. However, private airport applicants are not required

to submit a hard copy, written site approval application nor the

supporting documentation set forth in the p receding paragraph.

Private airport site approval applicants are required to "re tain

for their records all of the required documentation related to

the site approval application, in order to be able to respond to

any possible future local, state, or feder al inquiry."

15 . The private airport site approval applicant submits

his application through a Department website. Once the

applicant obtains a user ID and password to the site, he

proceeds to an interactive site approval screen that requires

him to prov ide the following data: type of facility (airport,

heliport, or ultralight); personal information (name, address,

phone number, fax number, and email address); facility data

(facility name, physical location, geographical information --

latitude, longitud e, and elevation -- and primary type of

facility use); and landing area data (runway/helipad magnetic

bearing, length, width, and type of surface -- paved/unpaved).

16 . The applicant is also required to certify that he has

completed all the conditions set forth in rule 14 - 60.005(5)(a) -

(m). The applicant must check a certification box next to each

and every requirement of the rule. For example, as to the

requirement of rule 14 - 60.005(5)(c), the applicant checks a box

next to the following statement:

Geod etic Position -- I certify that I have a

copy of a U.S. Geological Survey quadrangle

map or equivalent with the proposed site

plotted to the nearest second of latitude

and longitude.

17 . In other words, as a private airport applicant,

Mr. Monroe was not required under the rule to submit the

supporting documentation demonstrating his satisfaction of the

conditions set forth in rule 14 - 60.005(5), but he was required

to certify that at the time of his application he possessed all

such documentation and was c apable of submitting it in response

to a governmental inquiry.

18 . On March 1, 2012, the Department issued an A irport

S ite A pproval O rder to Mr. Monroe, to be effective April 15,

2012. On April 6, 2012, Petitioner timely filed a challenge to

the site app roval order. Petitioner is the owner of property

directly abutting the southeast corner of Mr. Monroe's property.

Petitioner raises goats on her property, and contends that low -

flying planes frighten her animals, causing them to stampede and

injure thems elves. Petitioner's challenge has stayed the

effective date of the site approval order.

19. David Roberts, the Department's aviation operations

administrator, testified that in preparation for this proceeding

he asked Mr. Monroe to produce all the docume ntation which he

had certified to meet the requirements of rule 14 - 60.005(5)(a) -

(m). The Department introduced into evidence all of the

documents that Mr. Monroe provided in response to Mr. Roberts'

request.

20. As to rule 14 - 60.005(5)(a), Mr. Monroe pro vided copies

of his deed for and mortgage on the Crescent City property

sufficient to establish his property rights to the site on which

the proposed airport is to be located.

21. As to rule 14 - 60.005(5)(b), Mr. Monroe provided a hand

drawing of the prope rty indicating the configuration of the

airstrip and showing the general locations of the entrance gate,

barn , pond, bridge , and trailer on the property. The map is not

drawn to scale and does not show property rights of way and

easements or lighting, pow er and telephone poles. The map does

not indicate the "direction, distance, and height of all

structures over 25 feet within 1,000 feet of the site

perimeter," but Mr. Monroe' s testimony that there are no su ch

structures is credited.

22. As to rule 14 - 60 .005(5)(c), Mr. Monroe provided a

personally commissioned survey map of the property that the

Department accepted as the "equivalent" of a U.S. Geological

Survey quadrangle map.

23. As to rule 14 - 60.005(5)(d), Mr. Monroe provided a map,

b ut not one that showed "recognizable landmarks and access

roads."

24. As to rule 14 - 60.005(5)(e), Mr. Monroe submitted a

list of five airports that met the notification requirement:

Eagle ' s Nest Aerodrome, Mount Royal Airport, Jim Finlay Airport,

Thunderbird Airpark, and Palatka Municipal Airport, also known

as Kay Larkin Field . Mr. Monroe also included a sample copy of

the letter providing proposal notification to these airports.

The only direct reply correspondence that Mr. Monroe submitted

was an emailed letter of co ngratulations from the manager of

Palatka Municipal Airport, dated May 15, 2012. Mr. Monroe also

submitted a June 10, 2012 , email from Jim Manus of Royal Park

Airport in support of Mr. Monroe's intent to align his common

traffic advisory frequency ("CTAF" ) with that of Mount Royal and

Eagle's Nest. The tone of Mr. Manus' correspondence indicates

approval of Mr. Monroe's airport. No response was provided from

Jim Finlay , Thunderbird , or Eagle's Nest . 3 /

25. As to rule 14 - 60.005(5)(f), Mr. Monroe provide d copies

of his letters of notification to the Marion County director of

growth management and the Volusia County growth and resource

management office. Volusia County responded by stating that it

took no issue with the proposed airport and that the FAA h ad

informed the county that it needed to take no action on the

matter. Mr. Monroe provided no response from Marion County.

26. As to the notice requirements of rule 14 -

60.005(5)(g) &(h) , Mr. Monroe provided a list of names and

addresses of nearby proper ty owners along with a letter of

notification dated August 30, 2004, stating Mr. Monroe's

intention to establish an airstrip on his property. He included

no reply correspondence. Petitioner rightly argues that an

eight - year - old letter cannot be held to m eet the notice

requirement of the rule. Though the rule does not state a

temporal limitation as to the notice, the context of the notice

requirement clearly requires the applicant to provide his

neighbors with notice of the pending site approval.

Howeve r, Mr. Monroe also provided the receipt from a newspaper

notice that he ran in 2010 regarding his SUP application and he

credibly testified that the county notified his neighbors prior

to issuance of the SUP . Thus , the requirement s of rule 14 -

60.005(5)(g) &(h) were met.

27. As to rule 14 - 60.005(5)(i), Mr. Monroe submitted

documentation that demonstrated there are no active solid waste

management facilities within the prescribed distances.

28. As to rule 14 - 60.005(5)(j), Mr. Monroe provided a

graphical dep iction of the traffic pattern and approaches to his

own proposed airport. The depiction also lists radio

frequencies for Mr. Monroe's airport, Mount Royal, and Eagle's

Nest. Mr. Monroe did not submit any documentation to

demonstrate that safe traffic pat terns can be established for

the proposed airport with all existing airport sites within

three miles of the proposed airport. Mr. Monroe also did not

submit written memoranda of understanding or letters of

agreement with the other airports as regards air traffic pattern

separation procedures.

29 . As to rule 14 - 60.005(5)(k ) &(l) , Mr. Monroe submitted

an opinion letter from aviation consultant Robert E. Babis,

dated April 19, 2012, addressing safety and security factors at

the proposed airport. Mr. Babis st ated that he was a retired

Department public transportation manager, a flight instructor,

airport inspector, and aviation planner. Mr. Babis further

stated that he has inspected and landed at over 200 private

airports in Florida. Mr. Babis concluded that Mr. Monroe's

airport "is a safe and secure facility with a very low risk for

operational accidents or illegal activities." The Department

reasonably accepted this letter as satisfying the criteria of

rule 14 - 60.005 (5) (k)&(l).

30. As to rule 14 - 60.005(5) (m), Mr. Monroe submitted a

copy of his amended FAA approval determination, dated

November 15, 2010. Petitioner noted that Mr. Monroe has yet to

fulfill one of the conditions of the FAA determination: he has

yet to produce an operational LOA with the owne rs of Eagle's

Nest, Mount Royal, Jim Finlay, and Thunderbird to provide for

compatible traffic pattern operations, common radio frequencies,

traffic pattern altitudes, and other items as appropriate.

31. In summary, t he evidence presented at the hearing

d emonstrated that, despite his certification otherwise,

Mr. Monroe did not possess all the documentation required by

rule 14 - 60.005(5)(a) - (m). Mr. Monroe did not meet the

requirement of paragraph (b) that he provide a scale drawing

showing property rights of way or easements, lighting, power and

telephone poles. He did not meet the requirement of paragraph

(d) that his map show recognizable landmarks and access roads.

32. Most importantly, Mr. Monroe did not meet the

requirement of paragraph (j) that he submit documentation

demonstrating that safe traffic patterns can be established for

the proposed airport with all existing airports within three

miles. This failure, coupled with Mr. Monroe's failure to

fulfill his commitment to the FAA that he would en ter an LOA

with the owners of four nearby airports, not to mention

Mr. Monroe's history of building his airstrip and flying in and

out of his property before obtaining legal permission to do so,

indicates a casual approach to regulatory compliance that sho uld

give the Department pause in granting site approval.

33. At the final hearing, Mr. Roberts of the Department

testified that because a private applicant such as Mr. Monroe is

not required to submit his supporting documentation to the

Department to dem onstrate compliance with rule 14 - 60.005(5)(a) -

(m), the Department may not deny the site approval to Mr. Monroe

once he has certified that he has all the documentation.

Mr. Roberts testified that the Department's only recourse upon

learning that Mr. Monroe in fact does not have the docu mentation

would be to revoke the site approval order.

34. The Department's rule sets forth the criteria for

revocation of a site approval order. One of the grounds for

revocation is a Department determination that "aircra ft have

operated on the site prior to airport licensing or registration,

except as required for an in - flight emergency." Fla. Admin.

Code R. 14 - 60.005(8)(b)3. By his own admission, Mr. Monroe flew

into and out of his property prior to registration. 4 / Ho wever,

Mr. Roberts testified that the Department could not base a

revocation action on those flights because they occurred prior

to the date on which Mr. Monroe applied for site approval.

Mr. Roberts could cite to no language in the rule that supported

hi s restrictive view of the revocation provision.

3 5 . The Department does not persist in supporting

Mr. Roberts' reasoning in its P roposed R ecommended O rder. T he

Department concedes that Mr. Monroe has failed to meet all the

documentation criteria set fort h in the rule and that it has the

authority to deny the site approval order . The Department does

not concede th at the maps submitted in response to paragraphs

(b) and (d) of rule 14 - 60.005(5) are deficient , but it does

concede that Mr. Monroe failed to co mply with paragraph (j)

regarding the LOA setting forth jointly agreed - upon departure

and arrival routes and common radio frequencies with the other

nearby airports.

3 6 . The Department argues that Mr. Monroe should

nonetheless be granted a S ite A pproval O rder, subject to the

condition that Mr. Monroe enter into an LOA establishing safe

traffic patterns and radio frequencies with all airfields within

three miles of his facility. The Department notes that if

Mr. Monroe's application were denied in this proc eeding, he

could immediately procure the LOA and reapply. Granting the

site approval in this proceeding would merely obviate the need

for Mr. Monroe to take that largely redundant step. As

authority for its contention that it may issue a site approval

or der prior to an applicant's compliance with all provisions of

rule 14 - 60.005(5), the Department cites section 330.30(1)(d),

which states: "Site approval may be granted subject to any

reasonable conditions the department deems necessary to protect

the publ ic health, safety, or welfare." 5 /

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

38 . The general rule is that the burden of proof, apart

from a statutory directive, is on the party asserting the

affirmative of an issue before an administrative tribunal.

Young v. Dep't of Cmty. Aff. , 625 So. 2d 831, 833 - 834 (F l a.

1993); Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778, 788 (F la.

1st DCA 1981); Balino v. Dep't of HRS , 348 So. 2d 349, 350 (Fla.

1st DCA 1977). In this case, the Department bears the burden of

showing that the applicant is entitled to a private airport

site - approval order .

39. On January 27, 2012, Mr. Monroe subm itted a site

approval application to the Department via the internet, as

provided in rule 14 - 60.005(3)(b):

(3) An application for airport site

approval shall be made in the form and

manner required by the Department. There

are no monetary fees required f or this

airport site approval service.

* * *

(b) Private Airport. Private airport site

approval applicants shall complete an

interactive internet - based registration

application and certify that the information

is true and correct to the best of thei r

knowledge, using a Department electronic

aviation facility data system.

40. Rule 14 - 60.005(6) provides as follows, in relevant

part:

Private airport site approval applications,

as stated in paragraph 14 - 60.005(3)(b),

F.A.C., above, are subject to the sa me

requirements for approval as stated for

public airport site approval applicants in

paragraphs 14 - 60.005(5)(a) - (m), F.A.C.,

above. However, private airport site

approval applicants are required only to

respond to interactive inquiries on the

specified D epartment private airport

website. Private airport applicants are not

required to submit a hard copy, written site

approval application nor supporting

documentation, as required of public

airports. However, all private airport site

approval applicants sh all retain for their

records all of the required documentation

related to the site approval application, in

order to be able to respond to any possible

future local, state, or federal inquiry.

41. Based on the certifications provided by Mr. Monroe in

his internet - based application, the Department issued an A irport

S ite A pproval O rder to Mr. Monroe on March 1, 2012, with an

effective date of April 15, 2012. Petitioner timely filed a

challenge to this approval order pursuant to rule 14 -

60.005(7)(b) . As th e owner of property directly abutting

Mr. Monroe's property, Petitioner has standing to initiate this

proceeding.

42. Rule 14 - 60.005(6) provides that a private airport site

approval applicant must satisfy the same requirements for

approval that are set fo rth for public airport site approval

applicants in rule 14 - 60.005(5)(a) - (m). The only difference is

that the private airport applicant is not required to submit his

supporting documentation to the Department. The rule is clear,

however, that the applican t must be in possession of the

supporting documentation. The evidence produced at the hearing

established that Mr. Monroe did not have in his possession the

supporting documentation to establish his entitlement to a

private A irport S ite A pproval O rder.

43 . At the hearing, Mr. Roberts opined that the Department

lacks authority to deny Mr. Monroe his S ite A pproval O rder

because Mr. Monroe had complied with the rule's requirement that

he certify that he is in possession of the supporting

documentation. The subsequently - discovered fact that Mr. Monroe

did not have all of the required documentation might establish

cause to revoke the S ite A pproval O rder at a later time but

would not be cause to deny issuance of the site approval in the

first instance.

4 4. Giv en the statutory and rule scheme regarding the

registration of private airports, it would be possible for an

applicant to bluff his way through the process and obtain site

approval and a private airport registration while having

absolutely none of the requ ired documentation in his possession,

provided no third party challenged him. However, rule 14 -

60.005(7)(b) provides a point of entry for affected persons to

contest the Department's preliminary decision to issue a p rivate

A irport S ite A pproval O rder. If Mr. Roberts ' view were correct,

there would be no point in allowing such a challenge. The

Department would be bound to issue the Airport S ite A pproval

O rder even if the applicant could pro duce no documentation at

all to the administrative tribunal , provi ded the applicant had

certified his possession of the documentation prior to the

filing of the challenge.

4 5. The purpose of the administrative challenge must be to

put the applicant to his proof. The rule requires the applicant

to "retain for [his] re cords all of the required documentation

related to the site approval application." The formal

administrative hearing is the forum in which that documentation

is produced and tested against the standard of rule 14 -

60.005(5). Mr. Roberts' reasoning would r ender futile the

administrative challenge process , and is therefore rejected .

46. To its credit, the Department did not pursue

Mr. Roberts' line of reasoning in its P roposed R ecommended

O rder. Rather, the Department conceded that Mr. Monroe failed

to com ply with rule 14 - 60.005(5)(j) , which requires that the

applicant:

Provide written confirmation that the runway

and taxiway design criteria and airport

design layout of the proposed airport have

appropriately taken into account

co nsideration of the manufac turer' s

performance characteristics for the type(s)

of aircraft planned to be operated; the

frequency and type(s) of flight operations

to be anticipated; planned aviation - related

or non - aviation activities on the airport;

and any other safety consideration s, as

necessary, to help ensure the general public

health, safety, and welfare of persons

located on or near the airport .

47 . The Department argues that Mr. Monroe should

nonetheless be granted a n Airport S ite A pproval O rder, but that

it should be made s ubject to the condition that Mr. Monroe enter

into an LOA establishing jointly agreed upon departure and

arrival routes, and common radio frequencies, with all airfields

within three miles of Mr. Monroe's facility.

48. The Department observes that denia l of Mr. Monroe's

application in this proceeding would not be the end of the

matter. After denial, Mr. Monroe could simply obtain the

missing LOA and reapply for the p rivate A irport S ite A pproval

O rder. The Department argues that granting the conditional site

approval in this proceeding would be a more practical and

efficient use of the state's resources.

49. Assuming arguendo that the Department has the

authority to waive a requirement of rule 14 - 60.005(5)(a) - (m) and

grant a conditional site approval, t he question occurs as to why

the Department considers Mr. Monroe a candidate for such

preferred treatment. This is an applicant who illegally filled

in jurisdictional wetlands to build his airstrip and was subject

to an enforcement action by the Departmen t of Environmental

Protection. The construction of the airstrip also appears to

violate section 330.30(1)(a), which provides (with exceptions

not here relevant) that site approval must be obtained from the

Department "prior to site acquisition or construc tion or

establishment of the proposed airport." The Department issued a

cease and desist order against Mr. Monroe on April 27, 2010,

based on credible allegations that he had been flying planes in

and out of his property without site approval or private a irport

registration. At the hearing, Mr. Monroe admitted that he had

flown planes in and out of the property.

50. Mr. Monroe's airspace approval from the FAA, dated

July 30, 2010, included the proviso that he obtain an

operational LOA with neighboring airports to provide for

compatible traffic pattern operations and common radio

frequencies , the same LOA that the Department now suggests

should be a condition of site approval in this case. Mr. Monroe

did not obtain the LOA during the more than two years that

passed between the FAA approval and the date of the hearing in

this case. Provisional approval from the FAA did not serve as a

compliance incentive to Mr. Monroe. The Department has offered

no reason for its faith that Mr. Monroe would comply with the

provisions of a conditional site approval in the instant case.

51. In any event, it is concluded that the Department does

not have authority to waive the requirements of section 330.30

or its implementing rules. As authority for its contention that

it may issue a S ite A pproval O rder prior to an applicant's

compliance with all provisions of rule 14 - 60.005(5), the

Department cites section 330.30(1)(d), which states: "Site

approval may be granted subject to any reasonable conditions the

department deem s necessary to protect the public health, safety,

or welfare. "

52. Section 330.30(1) provides as follows, in its

entirety:

( 1) SITE APPROVALS; REQUIREMENTS, EFFECTIVE

PERIOD, REVOCATION. Ï

(a) Except as provided in subsection (3),

the owner or lessee o f any proposed airport

shall, prior to site acquisition or

construction or establishment of the

proposed airport, obtain approval of the

airport site from the department.

Applications for approval of a site shall be

made in a form and manner prescribed by the

department. The department shall grant the

site approval if it is satisfied :

1. That the site has adequate area allocated

for the airport as proposed.

2. That the proposed airport will conform to

licensing or registration requirements and

will co mply with the applicable local

government land development regulations or

zoning requirements.

3. That all affected airports, local

governments, and property owners have been

notified and any comments submitted by them

have been given adequate considerat ion.

4. That safe air - traffic patterns can be

established for the proposed airport with

all existing airports and approved airport

sites in its vicinity .

(b) Site approval shall be granted for

public airports only after a favorable

department inspectio n of the proposed site.

(c) Site approval shall be granted for

private airports only after receipt of

documentation in a form and manner the

department deems necessary to satisfy the

conditions in paragraph (a).

(d) Site approval may be granted subject to

any reasonable conditions the department

deems necessary to protect the public

health, safety, or welfare.

(e) Approval shall remain valid for 2 years

after the date of issue, unless revoked by

the department or a public airport license

is issued or private airport registration

completed pursuant to subsection (2) prior

to the expiration date.

(f) The department may extend a site

approval for subsequent periods of 2 years

per extension for good cause.

(g) The department may revoke a site

approval if it determines:

1. That the site has been abandoned as an

airport site;

2. That the site has not been developed as

an airport within a reasonable time period

or development does not comply with the

conditions of the site approval;

3. That, except a s required for in - flight

emergencies, aircraft have operated on the

site; or

4. That the site is no longer usable for

aviation purposes due to physical or legal

changes in conditions that were the subject

of the approval granted. ( e mphasis added) .

53. When read in the context of the entirety of section

330.10(1), it is apparent that paragraph (d) does not give the

Department authority to waive the clearly stated requirement of

subparagraph (a)4. Nowhere in the statute is it stated that the

Department may waive any of the enumerated criteria for site

approval. If such were the case, paragraph (d) would swallow

the rest of the statute, giving the Department carte blanche to

set its own "reasonable conditions" without regard to the

criteria established b y the Legislature. The better reading is

that paragraph (d) gives the Department authority to establish

additional "reasonable conditions," over and above those set

forth elsewhere in subsection (1), where specific circumstances

make such additional condi tions necessary to protect the public

health, safety or welfare.

54. The Department may be correct that upon rejection of

his site approval request, Mr. Monroe will obtain the LOA and

reapply. Then again, based on prior form, Mr. Monroe may never

obtain the LOA. The contingent nature of future actions is a

significant reason why rule 14 - 60.005(5) requires that its

criteria be satisfied before the S ite A pproval O rder may be

issued. Despite its interest in conserving administrative

resources and streamlin ing the site approval process, the

Department lacks the statutory authority to overlook the fact

that Mr. Monroe has not satisfied the permitting criteria of

section 330.30(1)(a)4., Florida Statutes , and Florida

Administrative Code R ule 14 - 60.005(5)(b),(d) , and (j).

55. Petitioner contends that the facts of this case also

establish grounds for revocation of any site approval obtained

by Mr. Monroe. As previously noted, o ne of the grounds for

revocation is a Department determination that "aircraft have

ope rated on the site prior to airport licensing or registration,

except as required for an in - flight emergency." Fla. Admin.

Code R. 14 - 60.005(8)(b)3. It was undisputed that Mr. Monroe

operated aircraft on the site prior to registration. However,

given tha t Mr. Monroe has yet to obtain site approval or private

airport registration, it is premature to address the question of

revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department o f Transportation enter a

final order denying the site approval application of

Michael D. Monroe and withdrawing the A irport S ite A pproval

O rder issued to Mr. Monroe on March 1, 2012, Site Approval

Number SW2012 - FLA - 0117 - AP.

DONE AND ENT ERED this 2 1st day o f February, 2013 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850 ) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 1st day of February, 2013 .

ENDNOTES

1 / 38 Fla. Admin. W. 1232 (March 16 , 2012).

2 / Florida Administrative Code rule 14 - 60.003(2)(b)23. provides:

"VFR" means FAA established "Visual Flight

Rules" under which aircraft operate when

favorable meteorological conditions,

ceiling, or visibility exist that are above

the minimums for flight under instrument

flight rules.

3 / There was confusion as to whether Mr. Manus ' email should be

construed as speaking for Eagle's Nest as well as Mount Royal.

The return address on his email lists only Mount Royal. The

evidence is therefore insufficient to establish that Mr. Manus

also represented Eagle's Nest.

4 / Petitioner alleged but failed to prove that Mr. Monroe fl e w

into and out of his property after the date of the April 27,

2010 , cease and desist order.

5 / Rule 14 - 60.005(4) imp lements this statutory provision. The

rule's language is set forth in full at Finding of Fact 12,

supra .

COPIES FURNISHED :

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Flor ida 32399 - 0450

Craig Z. Sherar, Esquire

Law Offices Craig Z. Sherar

147 Pinetree Road

East Palatka, Florida 32131

Trish Parsons, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallaha ssee, Florida 32399 - 0450

Gerald B. Curington, Gen eral Co unsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Ananth Prasad, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exc eptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.