88-004117 Richard D. Nudtsen vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, December 20, 1988.

Summary: Operation of seaplane base in lake poses danger to residents and to persons in lightweight low-powered watercraft. Permit denied

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD NUDTSEN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4117

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This matter came on for formal administrative hearing, pursuant to notice,

on November 3, 1988, in Chipley, Florida, before William F. Quattlebaum, Hearing

Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bonnie K. Roberts, Esquire

Post Office Box 667

Bonifay, Florida, 32425

For Respondent: Vernon L. Whittier, Esquire

Department of Transportation

Hayden Burns Building

605 Suwanee Street, Mail Station 58

Tallahassee, Florida 32399-0458

BACKGROUND

By letter dated July 27, 1988, the Department of Transportation

(hereinafter "Department") informed Richard Nudtsen (hereinafter "Petitioner")

that his request for approval of a seaplane base site was denied. The

Petitioner timely requested a formal administrative hearing. The Department

forwarded the request to the Division of Administrative Hearings which scheduled

the proceeding.

At the hearing, the Petitioner presented the testimony of Raymond Joseph

Vosika and Al Cooper, and had thirteen exhibits admitted into evidence. A

fourteenth exhibit, consisting of a magazine editorial and related information,

was rejected. The Department presented the testimony of Katherine Masciello,

Katherine Harcus, Michael Coker, Samuel Coker, and Bobby Grice, and had three

exhibits admitted into evidence.

A transcript was filed. Both parties submitted proposed recommended orders

which were considered in the preparation of the Recommended Order. The proposed

findings of fact are ruled upon in the Appendix which is attached and hereby

made a part of this Order.

The issue presented for consideration is whether the proposed seaplane base

site meets the statutory requirements for approval and licensure.

FINDINGS OF FACT

1. By application dated May 10, 1987, and subscribed to on December 18,

1987, the Petitioner applied to the Department for approval and licensing of a

seaplane airport site for his own private usage (P-2) . The Petitioner is

appropriately licensed as a seaplane pilot.

2. The location of the proposed airport is Pate Lake, located near

Caryville, in Washington County, Florida. Pate Lake is approximately one mile

by three-quarters of one mile in size, large enough to accommodate the

Petitioner's proposed airport.

3. The Petitioner's seaplane is currently and would remain based on the

west side of the lake, where the Petitioner owns a parcel of land. The

Petitioner has utilized Pate Lake as a base of operation for the seaplane on an

irregular basis for several years.

4. The seaplane is a single-engine Balanca Citaba, similar in size to a

Piper Cub. The plane carries a maximum of two persons, including the pilot.

The engine produces 150 horsepower and has a muffled exhaust. There was no

reliable evidence which would indicate the decibel level or amount of noise that

is generated by the seaplane on takeoff, however the noise at landing is minimal

because landings are accomplished with the engine thrust significantly reduced.

5. Pate Lake is relatively remote with limited population, however the

population residing near the water is generally concentrated on the western side

of the lake. The lake is used primarily for fishing and other recreational

activities. A public boat ramp is also located on the west side of Pate Lake,

approximately 400 to 500 feet from the Petitioner's property, according to a map

prepared by the Department and introduced by the Petitioner (P-12). The number

and type of recreational users of the lake depend on the weather and time of

year, with an estimated 15 to 20 fishing boats on the lake simultaneously when

conditions warrant.

6. In December, 1987, an on-site inspection of the proposed airport area

was performed by Larry Parker, an aviation specialist with the Department.

Parker determined that the site was feasible for use as proposed by the

Petitioner and "can meet the requirements set forth in Airport Licensing and

Zoning Rule Chapter 14-60" (P-4).

7. By letter dated December 30, 1987, the administrator for the Washington

County Commission advised the Department that there were no restrictions which

would prohibit the establishment of the seaplane base (P-5). There is no

relevant zoning ordinance applicable to Washington County.

8. By letter dated March 2, 1988, the Petitioner was advised by the

Federal Aviation Administration that the proposed airport would "not adversely

affect the safe and efficient use of airspace by aircraft" provided that

operations were limited to VFR (visual flight rules) weather conditions, and

that the airport were limited to private use. The F.A.A. specifically "did not

consider the interaction of sea plane operations with surface craft traffic..."

(P-6).

9. On May 2, 1988, the department issued a "Notice of Intent" to approve

the airport and issue the license (P-3). A public meeting was subsequently held

on June 8, 1988, at which time an unknown number of persons apparently objected

to the Department's intended approval of the license application.

10. On June 16, 1988, a resolution was adopted by the Washington County

Board of County Commissioners at which time the Board expressed opposition "to

the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution

clearly indicates that the Board acted, at least in part, in the belief that "a

commercial Seaplane operation is contemplated on the lake..." and that property

owners in the area objected to the proposal.

11. By memo dated July 11, 1988, Larry Parker, the district aviation

specialist for the Department forwarded materials from the public meeting to his

supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that

the proposed airport site met "the safety standards as outlined in Rule 14-60",

and that the Petitioner could operate in a safe manner from Pate Lake.

12. By letter dated July, 27, 1988, the Petitioner received notice from

the Department that it intended to deny his application for approval of his Pate

Lake seaplane base (P-10). The Department stated that the denial was based on

the County Commission resolution of June 16th, which "the department

accepts...as equivalent to zoning refusal by the Washington County Commission."

Further the Department cited comments "submitted by many of the nearby

landowners and they are opposed to a seaplane base on Pate Lake on the basis of

noise and safety."

13. The Department's action followed the recommendation of Mr. Grice to

deny the application. Mr. Grice based his recommendation on safety concerns

related to utilization of the recreational lake as a seaplane base. Mr. Grice

has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in

operation.

14. At the administrative hearing the Department presented the testimony

of several persons who reside on or near Pate Lake. The property owners had on

infrequent occasions heard or seen a seaplane, allegedly the Petitioner's,

flying over their homes at an altitude they believed to be unreasonably low or

in a manner which caused what they felt was excessive noise. 1/ No one

recalled more than two such incidents over the several years that the Petitioner

has utilized the lake as a seaplane base.

15. Other complaints were directed towards the maintenance of the

Petitioner's property, which was identified by one witness as an "eyesore".

Concerns were voiced related to the witnesses fear of property value

depreciation, but there were no facts to support the theoretical depreciation.

16. One witness, a helicopter instruction pilot who visits the area on

occasion, observed the seaplane, approximately seven or eight months prior to

the hearing, take off and land twice on the same day. The witness testified

that the pilot on both occasions flew at an excessively low altitude over the

houses on the west side of the lake. The witness estimated the altitude over

the houses to be less than 500 feet, an altitude which he believed was a "major

judgement error" of the pilot, because an emergency maneuver at that altitude,

if necessary, would have been difficult to accomplish. However, the witness,

who has no experience with seaplane operations, did not register the incident

with any regulatory agency, although he believed it to be a violation of minimum

safe altitude regulations. He has not otherwise viewed the seaplane in

operation.

17. One witness, a seasonal resident of the lake area who utilizes the

lake for fishing, recalled an incident in January or February, 1988, where the

Petitioner's plane landed on the lake while the witness was fishing from a small

boat in the same vicinity as where the Petitioner was attempting to land. The

witness had not heard the plane's approach due to the lack of engine noise until

the plane began landing. Although uninjured, he was fearful for his safety

during the incident. The witness explained that he was concerned about the

personal safety of boaters in the water during the times the seaplane was

landing, because the noise level is minimal, and boaters may not be aware of the

aircraft's approach.

18. There was no explanation or response offered by the Petitioner to the

allegations of the Department's witnesses other than assertions that a seaplane

could be operated in such a manner as to prevent low flight over residences and

minimize risk to users of the lake.

19. Although there was testimony related to lakes, similar or smaller than

Pate Lake, which are allegedly licensed as private seaplane airports, the

testimony did not provide evidence sufficient to provide for an accurate

comparison between other lakes and Pate Lake.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the

parties to and subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

21. The Petitioner has the burden to establish by a preponderance of the

evidence that his application for licensure of a seaplane base at Pate Lake

meets the requirements far site approval pursuant to Chapter 330, Florida

Statutes, and applicable rules. Balino v. Department of Health and

Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). In this case the

burden has not been met.

22. The Department of Transportation is responsible for the establishment

of minimum standards for airport sites and airports under its licensing

jurisdiction, Section 330.29, Florida Statutes, including water landing sites,

Section 330.27(3), Florida Statutes.

23. Section 330.30(1)(a) , Florida Statutes, in relevant part provides

that:

"[t]he department, after inspection of

the airport site, shall grant the site

approval if it is satisfied:

1. That the site is adequate for the

proposed airport;

2. That the proposed airport, if

constructed or established, will conform

to minimum standards of safety and will

comply with applicable county or

municipal zoning requirements;

3. That all nearby airports,

municipalities, and property owners have

been notified and any comments submitted

by them have been given adequate

consideration...."

24. Rule 14-60.005(8), Florida Administrative Code, provides that "prior

to receiving site approval, an applicant shall:

1. Demonstrate that the site is

adequate for the proposed airport.

2. Demonstrate that the proposed

airport, if constructed or established,

will conform to minimum standards of

safety.

3. Include documentation evidencing

local zoning approval by the appropriate

governmental agency. Where there is no

local zoning, a statement of that fact

from an official of the appropriate

governmental agency shall be submitted.

4. Provide the Department a list of all

airports and municipalities within 15

miles of the proposed airport and all

property owners within 1000 feet of the

proposed airport.

5. Demonstrate that safe air traffic

patterns could be worked out for the

proposed airport.

25. Rule 14-60.007(5), Florida Administrative Code, provides, "[n]o

seaplane base shall be approved which requires aircraft to land or take off in

close proximity to a bridge, public beach, power line, boat dock or other area

which could constitute a danger to persons or property" (emphasis supplied).

26. The Department's 7/27/88 letter to the Petitioner, stating the

intention to deny the application, identifies the basis for the decision as

noise and safety objections voiced by nearby property owners, section

330.30(1)(a)3, Florida Statutes, and the "resolution equivalent to zoning

refusal by the Washington County Commission," referencing section 330.30(1)(a)2,

Florida Statutes. However the reference to zoning in the statute provides that

the proposed airport must "comply with the applicable county or municipal zoning

requirements." No provision is made for the acceptance and use of such a

resolution from a commission in an unzoned county to establish that zoning

requirements are not met. Rule 14-60.005(8)(a)3, Florida Administrative Code,

provides "[w]here there is no local zoning, a statement of that fact from an

official of the appropriate governmental agency shall be submitted." The

Petitioner's submission of the 12/30/87 letter from the administrator of the

commission fulfilled his responsibility in this regard. Further the

commission's resolution is specifically grounded in the unproven assumption that

the proposed airport would be a commercial facility. Accordingly, the

resolution has been considered solely as a statement of sentiment expressed to

the commission by local property owners.

27. The property owners are clearly opposed to the Petitioner's proposal.

Although some of their objections, including complaints regarding the

maintenance of the Petitioner's property, were irrelevant to the application,

significant concerns related to safety issues were expressed by the owners, as

well as by and on behalf of recreational users of the lake. The Petitioner's

response was to assert that flight patterns could be altered to avoid low

altitude flight over residences. However, the safety issue related to lake

users was not resolved.

28. Although it may be that a pilot could see and avoid persons boating or

otherwise using the lake, the close proximity of an operating seaplane to

persons in lightweight, low-powered boats could constitute a danger to the lake

users. Further the location of the public boat ramp to the area in which the

Petitioner's airplane would depart and return presents a substantial potential

hazard to ramp users and others nearby.

29. According to the site inspection performed by Mr. Parker, the site is

capable of meeting the safety requirements of Chapter 14-60, Florida

Administrative Code. Although there was testimony from Mr. Parker's supervisor,

Mr. Grice, indicating that Mr. Parker meant that the proposed length, width, and

approach slope of the airport were acceptable, the Parker memo of 7/11/88 states

that the proposal can meet "the safety standards of Rule 14-60." However, after

considering safety issues and public comment, and with personal knowledge of the

Pate Lake area, Mr. Grice recommended that the application be denied.

30. Utilization of Pate Lake as a seaplane base clearly requires an

aircraft to operate in close proximity to a public boat ramp and to persons

utilizing the lake, which could constitute a danger to persons or property.

Rule 14-60.007(5), Florida Administrative Code, states that where such aircraft

landing or taking off could constitute a danger to persons or property, no

seaplane base shall be approved.

RECOMMENDATION

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

hereby

RECOMMENDED:

That the Petitioner's application for licensure of Pate Lake as a seaplane

base be DENIED.

DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida.

_________________________________

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of December, 1988.

ENDNOTE

1/ Although no one identified the seaplane involved in any of the alleged

incidents by the registration number, the descriptions of the seaplane indicated

that it was the Petitioner's aircraft. There was no evidence which would lead

to the conclusion that any seaplane, other than the Petitioner's, operates from

Pate Lake. Further, there was no evidence to indicate that the Petitioner's

seaplane had been piloted by anyone other than the Petitioner.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4117

The following are rulings on the proposed findings of fact submitted by the

parties:

Petitioner:

1. Accepted.

2. Accepted.

3. Accepted as modified.

4. Accepted as modified.

5. Rejected, not supported by credible evidence.

6. Rejected, not supported by credible evidence.

7. Accepted.

8. Rejected, immaterial.

9. Accepted.

10. Accepted.

11. Rejected, immaterial.

12. Accepted, not a issue.

13. Rejected, immaterial.

Respondent:

1. Accepted.

2. Accepted as modified; except reference to decibel level of seaplane,

rejected, not supported by credible evidence.

3. Accepted as modified.

4. Accepted as modified; except as to reference to meaning of Parker

memorandum, rejected, not supported by credible evidence; and as to reference to

County Commission resolutions use as stated in Recommended Order.

COPIES FURNISHED:

Bonnie K. Roberts, Esquire

Post Office Box 667

Bonifay, Florida 32425

Vernon L. Whittier, Jr., Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 46

Tallahassee, Florida 32399-0458

Kaye N. Henderson, P.E., Secretary

ATTEN: Eleanor F. Turner, Mail Station 58

Department of Transportation

Haydon Burns Building

605 Suwannee Street, 46

Tallahassee, Florida 32399-0458

Thomas H. Bateman, III

General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street,

Tallahassee, Florida 32399-0458