88-004932 Albert F. Cooper vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, September 19, 1989.

Summary: Seaplane base application denied where zoning variance not currently available

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT F. COOPER, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4932

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 15, 1989 in

Panama City, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bonnie K. Roberts, Esquire

Post Office Box 667

Bonifay, Florida 32425

For Respondent: Vernon L. Whittier, Jr.

Senior Attorney

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUE

Does Petitioner's proposed seaplane base site meet the requirements for a

site approval as provided in Section 330.30, F.S. and Section 14-60.005-.007,

F.A.C.?

PRELIMINARY STATEMENT

At formal hearing, Petitioner Cooper presented the oral testimony of Albert

F. Cooper, Jim Walters, and Hal Britton. The Respondent Department of

Transportation (DOT) presented the oral testimony of Frank Duke, Bobby R. Grice,

Linda Hunt, Norman Fralick, John F. Dearing, Jerry Serpas, John Williams, John

Coleman, and Harold Richardson. Eight joint exhibits were admitted into

evidence. Petitioner had twenty additional exhibits admitted into evidence.

Respondent Department of Transportation (DOT) had one additional exhibit

admitted into evidence. Slide number five in Petitioner's exhibits was

withdrawn by the Petitioner.

A transcript of formal proceedings was duly filed and all timely-filed

proposed findings of fact have been ruled on, pursuant to Section 120.59(2),

F.S. in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. By application dated October 7, 1987, Petitioner applied to DOT for

approval of a seaplane base on Deerpoint Lake in Bay County, Florida. The

application originally provided for limited commercial flying and use by

visiting seaplanes upon invitation by Petitioner. Petitioner also has submitted

an October 21, 1987 letter from the Federal Aviation Authority (FAA) granting

airspace approval and an October 29, 1987 letter from the Bay County

Commissioners stating that no zoning existed in Bay County which would prohibit

the location of the seaplane base at Deerpoint Lake.

2. The application was subsequently amended to limit use of the proposed

seaplane base to Petitioner's personal, non-commercial use, and at formal

hearing, Petitioner bound himself to accept approval of a seaplane base permit

restricted exclusively to his private usage and to flying only during daylight

hours, and under Visual Flight Rules (VFR) which call for an altitude of 1,000

feet and three miles of visibility.

3. By a resolution dated August 16, 1988, the Bay County Board of County

Commissioners adopted a resolution opposing Petitioner's seaplane base.

4. By letter dated August 30, 1988, DOT denied Petitioner's application

because of zoning, noise, and safety.

5. Petitioner owns land on a peninsula in the Highpoint area of Deerpoint

Lake. Deerpoint Lake is a freshwater lake approximately seven miles long and

approximately two miles across at the point it runs up into Bayou George. The

landing area proposed by Petitioner would be 200 feet wide and 7,000 feet long,

running in an east/west direction with a ramp and hangar located on the

peninsula. Although Petitioner testified that the area is large enough to

provide multiple landing areas, the landing approaches would be generally over

Bayou George. The proposed site would permit takeoffs and landings of

Petitioner's presently owned seaplane without flying over anyone's house at an

altitude of less than 1,000 feet.

6. Petitioner's seaplane is a four place Aeranca with a 145 horsepower

engine. It has no wheels and is equipped with pontoons for water landings. The

plane has a muffled exhaust, self contained fuel tanks, and does not discharge

emissions into the water. Takeoff time takes approximately 15 seconds at full

power with two people on board. Eight hundred feet is necessary for takeoff

which produces the loudest noise the plane makes. Landing is accomplished at a

low power setting, is generally silent, and requires only 400 feet. DOT has

assembled no factual or scientific data for noise. The witnesses are not in

agreement as to the volume of noise produced by this plane and there was no

reliable evidence which would indicate the decibel level generated at takeoff,

but similar descriptions from several pilot that Petitioner's takeoff is "no

noisier than an average motor boat, if muffled" is credible and accepted. In

weighing the evidence presented with regard to the noise factor, the testimony

of several local residents who testified concerning their opinions that the

noise made by Petitioner's seaplane upon takeoff and landing was "excessive" has

been discounted because these respective opinions are largely not credible

either because the witness had no experience with seaplanes, or because the

witness was prejudiced against the Petitioner's project as a whole.

Specifically, no witness had made a complaint about noise until after the hangar

was built. Some witnesses erroneously assumed that Petitioner had erected his

hangar without a building permit and further believed an unfounded rumor that

the Petitioner must be starting a flying school, or they considered the hangar

an "eyesore", or they felt "betrayed" that a neighbor would establish a flying

school base.

7. Deerpoint Lake is a low population density area, almost exclusively

residential in nature. DOT has done no survey of any kind with regard to the

recreational uses of this lake, however evidence adduced at hearing shows that

it is used primarily for recreational fishing and water sports. The largest

number of fishing boats traceable to lake visitors at one time is twelve, but

this does not account for additional abutting owners' boats which are launched

without trailers. The concentration of boaters tends to be 3-4 miles away from

Petitioner's property. However, there are also private boat ramps on both sides

of Petitioner's property. Deerpoint Lake is also a reservoir area and a source

of potable water for the county. There are some power poles in the vicinity of

Petitioner's property. Some poles support a new power line and others are only

the remains of an abandoned power line. The old power poles are generally cut

off to be only 3-4 feet above the waterline, and some are just even with the

waterline. Both sets of power poles and the power line limit where seaplanes

can take off and land on the surface of the water itself, although there is

testimony that, under ideal conditions (i.e. if all conditions are met and no

flying or boating rules are disobeyed), Petitioner's standard plan for takeoffs

and landings would not encounter either power line or poles upon takeoff or

landing. There is, of course, no guarantee that all conditions will be

favorable all of the time. The more probable danger presented by the poles is

that if a seaplane had to taxi or otherwise take evasive action on the surface

of the water so as too avoid a fishing boat, swimmer, or water-skier, the plane

could encounter a cut-off pole.

8. Petitioner first located his plane on Deerpoint Lake in July, 1984 and

has accomplished approximately 25 safe takeoffs and landings therefrom since

that time. Since becoming aware of the need for a site permit, he has

voluntarily not taken off or landed on the lake. He has never had an accident

there, but two other planes have. Neither of the situations, planes, or pilot

in these two accidents is comparable to Petitioner's circumstances. Neither

accident involved recreational users of the lake.

9. Bobby R. Grice, who ultimately denied the application on behalf of DOT,

expressed "just my personal opinion" that boaters could not hear a plane on its

final approach. He has fished on Deerpoint Lake. He is not familiar with he

operation of seaplanes, the visibility from them, or FAA rules. Two witnesses

complained about Petitioner's coming too close to their homes during landings.

10. By County Ordinance 89-02, enacted January 17, 1989, the Bay County

Board of County Commissioners prohibited seaplanes on Deerpoint Lake, but also

provided for a variance procedure for those landowners in Petitioner's location.

As of the date of formal hearing, Petitioner had not applied for, or received, a

variance from the county. The October 29, 1987 letter obtained by the

Petitioner from the County (see Finding of Fact No. 1) stating there were no

zoning impediments to the application at that time has been superseded by the

1989 ordinance Mr. Frank Duke, Chief Planner for Bay County, was unable to give

a firm and competent opinion on whether or not the Petitioner's application to

DOT was consistent with the existing 1978 Bay County Comprehensive Plan, because

he had never personally observed the Petitioner's property on Deerpoint Lake.

Nonetheless, it is clear that if Petitioner were to apply to Bay County for a

seaplane base variance on Deerpoint Lake, Petitioner's proposed use would have

to be reviewed in relationship to the County Comprehensive Plan.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this action. See Section 120.57(1), F.S.

12. Section 330.30(1)(a), F.S. (1987) authorizes the Department of

Transportation to issue site approvals for new airport sites in Florida.

Section 330.30(1)(a), F.S. (1987) provides the following pertinent requirements:

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; and

13. The operative facts for analysis of this application are those in

existence as of the date of formal hearing. See, Boca Raton v. Florida

Department of Health and Rehablitative Services, 475 So.2d 260 (Fla. 1st DCA

1985), Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778,

(Fla. 1st DCA 1981), citing McDonald v. Department of Banking and Finance, 346

So.2d 569, 584 (Fla. 1st DCA 1977).

14. Section 14-60.007(2) and (3), F.A.C. establishes minimum approaches

and effective landing lengths for private airports which provide for a 3,000

foot glide path of 20:1 ratio and a usable landing length of 1,800 feet.

Additionally, Section 14-60.007(5), F.A.C. provides, in pertinent part:

(a) No 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 dancer to persons or property.

(Emphasis supplied)

15. Upon the facts as found, Petitioner's proposal bring the seaplane's

takeoff and landing into proximity with neighbors' boat docks and at least one

power line.

16. As of the date of formal hearing, Petitioner, who bears the burden of

proof in this cause, (See, Balino v. Department of Health and Rehabilitative

Services, 348 So.2d 349 (Fla. 1st DCA 1977) and Florida Department of

Transportation v. J.W.C. Company, supra) could not meet the requirements of Rule

14-60.005(8)3, F.A.C. which requires that Petitioner's application:

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.

Regardless of what Petitioner was able to submit with regard to Bay County

zoning in 1987, he cannot presently comply with Section 330.30(1)(a), F.S. or

Rule 14-60.005(8), F.A.C., due to the ordinance enacted January 17, 1989.

17. Because of the potential impact of Bay County's Comprehensive Plan, it

also is neither reasonable nor appropriate for DOT to grant the site permit

pending grant or denial of the variance by Bay County, even considering the

provisions of Rule 14-60.05(8)(b)1.f.iii, F.A.C., cited by Petitioner. This is

particularly so in light of the fact that no variance application has yet been

submitted to Bay County by the Petitioner and in light of the August 16, 1988

Bay County resolution against Petitioner's proposed use, even though that

resolution appears to be nonbinding and merely an expression of sentiment at the

time it was passed.

18. Due to the foregoing conclusions, the nearby property owners'

complaints concerning noise and their vague safety fears need not be discussed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

recommended that Department of Transportation enter a Final Order denying

Petitioner'S seaplane base application.

DONE and ENTERED this 19th day of September, 1989, at Tallahassee, Florida.

_________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4932

The following specific rulings are made pursuant to Section 120.59(2) F.S.,

upon the parties' respective Proposed Findings of Fact (PFOF):

Petitioner's Proposed Findings of Fact

Accepted: 1, 2, 3, 4, 5, 7, 8, 11, (12 is accepted as modified to conform

to the record), 13, 15, 19 a-b, 20, 22, 24.

Accepted except for material subordinate, unnecessary or cummulative to the

facts as found: 6, 16, 21, 23. What is rejected is also not dispositive of the

issue at bar.

Rejected as subordinate or unnecessary: 9,10.

Accepted in part; the remainder is rejected as not proven: 14, 17, 18.

Respondent's Proposed Findings of Fact

Accepted except for material subordinate, unnecessary, or cumulative to the

facts as found: 1, 2, 4, 5.

Rejected as subordinate, unnecessary, or cumulative to the facts as found:

3, 6, 7, 8. Moreover, these proposals are largely reiteration of unreconciled

testimony or legal argument.

COPIES FURNISHED:

Vernon L. Whittier, Jr.

Senior Attorney

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0458

Bonnie K. Roberts, Esquire

Post Office Box 667

Bonifay, Florida 32425

Ben C. Watts, Interim Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450