88-006208 Lake Lucerne Civic Association, Inc.; Crestview Homeowners Association, Inc.; And Rolling Oaks Homeowners vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, August 29, 1989.

Summary: Homeowner association opposition to DOT permit for helistop at Joe Robbie stadium dismissed for failure to specify safety violations and res judicata

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE LUCERNE CIVIC ASSOCIATION, INC., )

CRESTVIEW HOMEOWNER'S ASSOCIATION, INC. )

ROLLING OAKS HOMEOWNER'S ASSOCIATION, INC.)

)

Petitioners, )

vs. ) CASE NO. 88-6208

)

DEPARTMENT OF TRANSPORTATION and )

ROBBIE STADIUM CORPORATION, )

)

Respondents. )

__________________________________________)

RECOMMENDED ORDER OF DISMISSAL

This matter was considered by William R. Dorsey, Jr., the Hearing Officer

designated by the Division of Administrative Hearings. Prehearing conferences

were conducted by telephone conference call on January 24, 1989, March 16, 1989,

and August 16, 1989.

APPEARANCES

For Lake Lucerne George F. Knox, Esquire

Civic Association, 4770 Biscayne Boulevard

Inc.; Crestview Suite 1460

Homeowner's Miami, Florida 33137

Association, Inc.;

Rolling Oaks

Homeowner's

Association, Inc.

For Department of Vernon L. Whittier, Jr.

Transportation: Office of the General Counsel

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

For Robbie Stadium Robert L. Shevin, Esquire

Corporation: Stroock, Stroock & Lavan

200 South Biscayne Boulevard

33rd Floor

Miami, Florida 33131-2385

STATEMENT OF THE ISSUES

The issue is whether the application for airport site approval made by

Robbie Stadium Corporation satisfies the requirements of Section 330.30(1)(a),

Florida Statutes and Chapter 14-60.007(6), Florida Administrative Code.

I.

PROCEDURAL BACKGROUND

1. On November 15, 1988, the Florida Department of Transportation issued

its Site Approval No. 88-31 which authorized the location of a helistop at Joe

Robbie Stadium in the City of Opa Locka, Dade County, Florida. The application

by Robbie Stadium Corporation for the helistop had been filed on October 20,

1987. The Petitioners are civic groups of owners of property who oppose the

development of Joe Robbie Stadium near their residential property, including the

helistop which is part of the development.

2. The application file includes a letter from T. E. Lunn, P.E., the Chief

of the Permit Control Division of the Building and Zoning Department of

Metropolitan Dade County, dated July 11, 1988. In that letter, Mr. Lunn states

that resolutions of the Dade County Commission, including Resolution Z-211-85,

as amended by Resolutions Z-147-86 and Z-342-87, all make reference to the

heliport pad at the stadium and recommend its location and use. Further, Mr.

Lunn confirmed that the heliport pad at the stadium "is not in conflict with our

zoning code or with the resolutions that established the use of the stadium,

which included the heliport pad".

3. The file also demonstrates that Robbie Stadium Corporation received

approval for the helistop from the United States Department of Transportation,

Federal Aviation Administration [FAA], Orlando Airport District Office on

February 9, 1988. The FAA determined that the submission made by Robbie Stadium

Corporation for the helistop landing area would permit safe and efficient use of

the air space by aircraft and provide for the safety of persons and property on

the ground. This approval was based upon certain specific requirements, viz.,

that all operations would be conducted pursuant to letter agreements, and

aircraft crews would be briefed on procedures, as well as the hazards which

could be presented by unlit power lines to the east of the helistop.

4. The application file for Robbie Stadium Corp. also contains site

sketches, including airspace approach and descent paths, a location plan,

sketches of the FAA air traffic control area and a helistop layout and

obstruction drawings prepared by Howard, Needles, Tammen, Bergendoff, engineers

and planners.

A.

Department Action Preceding The Approval

5. The Department of Transportation inspected the proposed helistop site

on August 13, 1987. Based on that inspection it issued a Notice of Intent to

grant approval for the helistop site unless before October 8, 1988 opponents

filed a written statement with the Department of Transportation District 6

Planning and Programs Office in Miami demonstrating why the approval should not

be granted. The Notice of Intent to grant the proposed helistop was published

in the Miami Review, a legal newspaper in Dade County, Florida on September 16,

1988. In addition, a notice of the intent to grant the helistop application was

mailed by certified mail to those persons who owned property within 1,000 feet

of the proposed helistop. A list of those who received notice and copies of the

return receipts for those mailings have been filed by Joe Robbie Stadium

Corporation in this proceeding.

6. The Department of Transportation then conducted a public meeting on

October 18, 1988 to hear from persons who objected to the site approval. This

was not a formal hearing under Section 120.57(1), Florida Statutes. The

November 3, 1988 report of the District Aviation Specialist who conducted the

meeting, Lenwell Bivins, has been filed by Robbie Stadium Corporation. Mr.

Bivins recommended approval of the application for site approval.

B.

Homeowners' Request for Chapter 120 Hearing

7. After the Department of Transportation issued its site approval order

number 88-31 on November 15, 1988, Homeowners residing near the helistop site

filed with the Clerk of the Department of Transportation a request for formal

administrative hearing under Section 120.57(1), Florida Statutes (1987). That

request contains eight "Grounds for Hearing". In it, the Homeowners contend:

(1) That the zoning resolution of Dade County

approving the helistop was passed without

first conducting a quasi-judicial

administrative hearing, which renders the

resolution void;

(2) That Dade County Code Section 33-27

requires that a permit for a landing field

not be granted unless the director of the

port authority finds that all federal, state

and county requirements have been met, which

was not done;

(3) There has been no certification that

noise generated by air traffic would fall

within the limits promulgated by the state,

federal and local governments, as required by

Dade County Code Section 25-10.13(h);

(4) That no unusual use of land, such as a

helistop, may be permitted if the use

conflicts with the normal and expected use of

nearby residential areas under Dade County

Code Section 33-13, and no variance should be

created to permit a landing field without

certification by the zoning director that the

variance would not interfere with the

adjoining property owners' rights, see Dade

County Code Section 33-36, but neither of

these findings had been made;

(5) That location of the helistop within 400

feet of residential homes constitutes a

taking of land without due process;

(6) That the private helistop does not meet

minimum standards of safety because air

traffic patterns cannot be worked out for

takeoffs and landings which do not create

noise, nuisances and safety hazards in

violation of Section 330.30(1)(a), Florida

Statutes;

(7) That approval of the site of the

helistop near single family homes is contrary

to the public interest and endangers the

health, safety and welfare of adjoining

residential property owners in violation of

Section 320.30(2)(b), Florida Statutes;

(8) That the Department of Transportation

and Dade County should deny the permit or

await the outcome of appeal pending in the

U.S. Court of Appeals of the Eleventh

Circuit, Case 88-5383, where the zoning for

the stadium (including the helistop) was

challenged as substantively illegal and

violative of civil rights of minority

citizens.

C.

U.S. Court of Appeals Decision in Lake Lucerne

Civic Association v. Dolphin Stadium Corp.

8. The decision referenced in paragraph 8 of the Petitioner's November 30,

1988 Grounds for Hearing was entered by the U.S. Court of Appeals for the

Eleventh Circuit on August 3, 1989. Lake Lucerne Civic Association v. Dolphin

Stadium Corporation, ____F.2d_____,3 FLW Fed. C 1008 (11th Cir. 1989). The

Homeowners have been resolute in their opposition to the location of the sport

complex in their vicinity, and the decision of the Court of Appeals chronicles

the numerous proceedings which they have filed over the years in state and

federal courts opposing the sport complex. The Eleventh Circuit's decision

holds that prior state court litigation has established bars to many of the

contentions the Homeowners advanced in this site approval proceeding. According

to the Eleventh Circuit's decision, the Dade County Board of County

Commissioners adopted resolutions on September 26, 1985 which changed the zoning

for the land the stadium complex occupies from residential to commercial or

industrial use, and also established a development order on the stadium's

application for a development of regional impact which would guide the

development of the complex. The Homeowners appealed these zoning changes to the

circuit court, which upheld the rezoning. The Homeowners appealed that decision

to the Florida District Court of Appeal, Third District in Norwood-Norland

Homeowners' Association, Inc. v. Dade County, 511 So.2d 1009 (Fla. 3rd DCA

1987), review denied, 520 So.2d 585 (Fla. 1988). The state appellate court

upheld the circuit court decision that the county's rezoning was appropriate

under the "fairly debatable" test, and that the rezoning also was consistent

with the Dade County Master Plan.

9. The Lake Lucerne Civic Association thereafter filed another suit in

circuit court in Dade County, alleging five grounds for relief, including, in

Count Four, the substantiative unconstitutionality of the county's zoning

resolutions. Approximately two months later, the Association filed suit in the

U.S. District Court for the Southern District of Florida also alleging the

substantiative unconstitutionality of the zoning resolutions as well as

violations of other civil or contract rights of the Homeowners. The U.S.

District Court granted summary judgment on March 22, 1988, against the

Homeowners on the count raising the substantiative unconstitutionality of the

rezoning. The U.S. Circuit Court of Appeals affirmed the dismissal of the count

challenging the rezoning and held the issue of rezoning had been adjudicated in

the Florida circuit court and the district court of appeal, and could not be

relitigated in Federal court. 3 FLW Fed C 1012.

10. The Lake Lucerne Civic Association was permitted, however, to proceed

to trial in U.S. District Court on its claim under 42 U.S.C. Section 1983 that

the rezoning had caused such a diminution of the Homeowners property rights as

to entitle them to compensation for a taking of property under the Fifth

Amendment to the U.S. Constitution. The Eleventh Circuit also reinstated the

Homeowners' claim the rezoning was part of a history of unconstitutional

discriminatory community development. 3 FLW Fed. at C 1013-14.

D.

Prior Proceedings in this Permit Application Case.

11. After a prehearing conference held on January 24, 1989, the Department

of Transportation and Robbie Stadium Corporation were ordered to file a

statement setting out in detail how the helistop application submitted meets the

requirements of Section 330.30(1)(a), Florida Statutes and Rule Chapter 14-

60.007(6), Florida Administrative Code. The Homeowners were granted an

additional period of ten days in which to identify facts the Homeowners

disputed, and to describe the nature of any dispute. Robbie Stadium Corporation

and the Department of Transportation complied with the order and filed a

Statement of Satisfaction of Requirements on February 22, 1989. The Statement

shows that the application meets each of the requirements of Section

330.30(1)(a), Florida Statutes. It attached:

a. The application,

b. The engineering drawings for the helistop,

c. An affidavit from the employee of the Department of Transportation

who conducted the public hearing on the application on October 18, 1988, along

with a sworn statement that appropriate notice had been sent by certified mail,

returned receipt requested, to all airports and municipalities within fifteen

miles of proposed site and to all owners of property within 1,000 of the

proposed site, along with copies of the return receipts,

d. A copy of the letter from the Federal Aviation Administration

finding that the proposed helistop met the requirements of part 157 of the

Federal Aviation Regulations,

e. A letter from T. E. Lunn, P.E., the Chief of the Permit Control

Division of the Metropolitan Dade County Building and Zoning Department stating

that the heliport pad at the stadium was not in conflict with the Dade County

Zoning Code and resolutions establishing the use of the stadium (which included

the heliport pad), the affidavit of Mr. Lenwell Bivins who conducted the October

18, 1988 public meeting, and of Mr. Lacey Moore of the Florida Department of

Transportation to show that adequate consideration was given to comments

submitted by nearby airports, municipalities and property owners, and

f. The letter agreement with the Opa Locka and North Perry Air

Traffic Control Authority which demonstrates that safe air traffic patterns

already have been worked out with existing airports and approved airports in the

vicinity of the stadium.

12. The Homeowners' Response to the Applicant's Statement of Satisfaction

of Requirements filed March 17, 1989, again focused on provisions of the Dade

County Zoning Code. As in their earlier statement of their grounds for hearing,

the homeowners contended that the engine noises from aircraft using the helistop

would be greater than permitted under the code, that the use of the helistop

would conflict with the normal and expected use of the Homeowners' residential

property, that the applicant had failed to show that the helistop poses no

danger to the health, safety and welfare of the residents, and argued that the

helicopter traffic generated by the Superbowl which took place at the Stadium in

early 1989 presented hazards to health and safety. The Homeowners' Response

also generally denigrates the filing made by Robbie Stadium as self- serving.

13. Thereafter, a second prehearing conference was held in this case. The

Order on Prehearing Conference entered after that hearing found that the

Statement of Satisfaction of Requirements which Robbie Stadium Corporation had

filed constituted prima facie proof that Robbie Stadium was entitled to site

approval for the helistop under Section 330.30, Florida Statutes (1987) and Rule

14-6.007(6), Florida Administrative Code. The Homeowners were instructed to

file a statement of whatever evidence they may have to show that there was a

disputed issue of material fact with respect to the statement by the Chief of

the Permit Control Division of the Building and Zoning Department that the

helistop was permissible under the existing zoning for the stadium. On the

issue of safety, the Homeowners were granted the opportunity to provide specific

citations to any safety standard they believed the proposed helistop violated,

and a summary of the evidence they intended to adduce in support of their

contention that the proposed helistop design failed to meet those standards. On

the issue of notice to persons owning property within 1,000 feet of the

helistop, the Homeowners were given 14 days in which to provide a summary of any

evidence that they had which indicated that any persons entitled to notice had

not received it, and that the fairness of the proceeding before the Department

had been substantially impaired by any lack of required notice.

E.

The Homeowners' Second Response

14. No summary of evidence was ever filed on behalf of the Homeowners.

Instead, on April 18, 1989, they filed exceptions to the March 27, 1989, Order

on Prehearing Conference. They argued that it was constitutionally unfair to

require them to submit evidence to rebut Robbie Stadium Corporation's prima

facie proof. They continued to argue

a. That the noise generated by helicopter

landings was so loud that the permit

should not be granted,

b. That no enforceable air traffic patterns

could be worked out to minimize noise and

eliminate danger to their homes, that

there was no mechanism to limit the number

of takeoffs and landings at the stadium,

that the permit violated the Dade County

Code Section 25-10.13(h) and 33-13, and

c. That there was no public purpose to be

furthered in permitting a helistop within

400 feet of residential homes.

15. A third prehearing conference was held on August 16, 1989. Counsel

for the Homeowners acknowledged that the decision of the U.S. Court of Appeals

in the Lake Lucerne case appears to bar the Homeowners' challenges to the

county's zoning approval for the sports complex, including the helistop, under

principles of res judicata and collateral estoppel. Counsel also declined the

opportunity to amend the Homeowners' response to specify the safety standards

the Homeowners believe the helistop would violate. The Homeowners are fearful

of the use of the helistop near their homes, but can point to no specific safety

standards violated by the helistop design.

II.

CONCLUSIONS OF LAW

16. The Homeowners have misconceived the purpose of the two orders on

prehearing conference entered February 6, 1989 and March 27, 1989. Those orders

required Robbie Stadium Corporation to make out a prima facie case demonstrating

its entitlement to an order of site approval, and then provided the Homeowners

the opportunity to be specific about the factual disputes to be determined in a

final hearing under Section 120.57(1), Florida Statutes. The reason for this

pre-hearing procedure is found in the opinion of the First District Court of

Appeal in Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778, 788-

789 (Fla. 1st DCA 1981):

Not every request for a formal Section

120.57(1) hearing may properly be granted, for

it is a clear that the petitioner must first

demonstrate by appropriate pleading that there

are disputed issues of fact requiring such a

hearing. We totally agree with the sentiments

expressed by amicus curiae Agrico that no

third party "merely by filing a petition"

should be permitted to require the applicant

to "completely prove anew" all items in the

permit application down to the last detail.

The petitioner must identify the areas of

controversy and allege a factual basis for the

contention that the facts relied upon by the

applicant fall short of carrying the .

burden cast upon the applicant. 39 So.2d at

789. (Citations omitted)

The Homeowners are third parties here. They have been given two opportunities

to demonstrate, with specificity, that the prima facie case made in the

Statement of Satisfaction of Requirements which Robbie Stadium and the

Department of Transportation filed on February 22, 1989, is somehow deficient,

or the facts the applicant relies on are untrue. They have not done so. They

were offered a third opportunity to do so but declined it. The inference drawn

from this failure is that they have no such evidence, and that to conduct a

formal hearing under Section 120.57(1), Florida Statutes, would serve no

purpose, for there are no disputed relevant facts to be determined.

17. The two prior Orders on Prehearing Conference have required the

Homeowners to demonstrate there are factual disputes to be heard, in much the

same manner as litigants in circuit courts are required to come forward with

proof of disputed issues of material fact to avoid a summary judgement. See

Rule 1.510(c) Fla. R. Civ. P. Hearing Officers also have the authority to issue

orders "to prevent delay, and to promote the just, speedy, and inexpensive

determination of all aspects of the case". Rule 221-6.024, Florida

Administrative Code. Under Rule 221-6.015(2)(1), Florida Administrative Code,

the parties may be required to state their positions on each issue of fact, law,

and policy at issue. The Homeowners' were given the opportunity to demonstrate

a factual dispute on the issues of safety and notice, but have been unable to

show any facts to be determined at a final hearing.

18. The grounds for opposing the site approval stated in the Homeowners'

original November 30, 1988, filing at paragraphs 1-4, are all challenges to the

propriety of the zoning granted by the Dade County for the helistop. As the

U.S. Court of Appeals has determined, the Homeowners now are foreclosed from

maintaining substantive challenges to the rezoning. Those issues were

conclusively determined against them in the state circuit court and in the Third

District Court of Appeal. This proceeding for site approval for the helistop

under Section 300.30, Florida Statutes does not permit the Florida Secretary of

Transportation to entertain an appeal from actions of a County Commission

granting zoning for a helistop. Because necessary zoning has been granted,

Section 330.30(1)(a)2. has been satisfied, i.e. the proposed helistop complies

"with applicable county or municipal zoning requirements". Whether that zoning

should have been granted has been litigated and resolved against the Homeowners.

With respect to the fifth ground stated in the November 30, 1988, request for a

hearing, (complaining that location of the helistop within 400 feet of

residential homes constitutes a taking) such a claim is not cognizable under

Section 330.30, Florida Statutes. Under Florida law, "inverse condemnation

actions cannot be adjudicated by administrative boards or agencies". Bowen v.

Florida Department of Environmental Regulation, 448 So.2d 566, 568 (Fla. 2nd DCA

1984). Whether the Homeowners are entitled to compensation for the proximity of

the helistop to their property will be litigated in their Section 1983 action

pending in the U.S. District Court for the Southern District of Florida. Lake

Lucerne Civic Association v. Dolphin Stadium Corp., ______ F.2d ___ 3 FLW Fed C

1008, 1014 (11th Cir. 1989). The allegation in paragraph 7 of the Homeowners'

November 30, 1988 Grounds for Hearing, (that the use of the private helistop is

not in the public interest and endangers the health, safety and welfare of

adjoining residential property owners) has never been made specific by the

identification of any safety standards which they contend would be violated, or

any specification of how those standards would be violated. The Homeowners were

required to provide that information in the Order entered on March 27, 1989.

They did not do so. On August 16, 1989, they declined the opportunity to

identify any safety standards they believe the proposed helistop design

violates. Similarly, the allegations of paragraph 6 of the November 30, 1988,

Grounds for Hearing (that the private helistop "cannot be made to conform to

minimum standards of safety" due to the proximity of homes, and that "air-

traffic patterns cannot be worked out for landings and takeoffs which do not

create noise, nuisance and safety hazards") create no disputed issue of material

fact. The letter from the FAA filed by Robbie Stadium Corporation and the

Department of Transportation in their Statement of Satisfaction of Requirements,

coupled with the January 15, 1989 letter agreement between the Opa Locka Air

Traffic Area, North Perry Traffic Area and Robbie Stadium Corporation show that

safe traffic patterns have been worked out. Despite two opportunities given to

the Homeowners to demonstrate some factual disputes on the question of safety,

they have been unable to do so. They rely instead on subjective fears about

safety. The Homeowners may harbor those fears, but undifferentiated fears do

not create a dispute of material fact for formal hearing under Section

120.57(1), Florida Statutes.

19. The last ground asserted in the Homeowners' November 30, 1988 Grounds

for Hearing are that the outcome of this proceeding should await the outcome of

the appeal pending in the U.S. Court of Appeals for the Eleventh Circuit. The

opinion entered by the Eleventh Circuit provides no basis for denial of the

helistop permit; in fact, that opinion precludes relitigation of the zoning

claims the Homeowners raised. The opinion shows that all zoning issues with

respect to the development order and rezoning of the stadium property have been

conclusively determined adversely to the Homeowners' position by the County

Commission, the circuit court in its appellate capacity, and by the Third

District Court of Appeal.

20. No disputed fact issues remain to be determined at a Section 120.57(1)

final hearing.

RECOMMENDATION

It is RECOMMENDED that the Homeowners' objection to the issuance of the

final site approval order permitting the helistop at Joe Robbie Stadium as

requested in the Airport Site Approval and License Application filed on October

20, 1987 by Joe Robbie Stadium Corporation be dismissed.

DONE and ENTERED this 29th day of August, 1989, at Tallahassee, Florida.

___________________________________

WILLIAM R. DORSEY, JR.

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 29th day of August, 1989.

COPIES FURNISHED:

Vernon L. Whittier, Jr., Esquire

Department of Transportation

605 Suwannee Street, M.S. 58

Tallahassee, Florida 32399-0450

Robert L. Shevin, Esquire

200 South Biscayne Boulevard

Suite 3300

Miami, Florida 33131-2385

George F. Knox, Esquire

4770 Biscayne Boulevard

Suite 1460

Miami, Florida 33137

Kaye N. Henderson, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III

General Counsel

Department of Transportation

562 Haydon Burns Building

Tallahassee, Florida 32399-0450