89-004314 Thomas J. Hirt, Alfred And Jane Pritchard vs. Frank J. Drewniany And Department Of Transportation Status: Closed Recommended Order on Monday, November 27, 1989.

Summary: Application for private airport license met requirements for such a license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK J. DREWNIANY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4314

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

)

THOMAS J. HIRT and )

ALFRED and JUNE PRITCHARD, )

)

Intervenors. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a public hearing was held in the above-styled case on

October 12, 1989, at Haines City, Florida, before K. N. Ayers, duly designated

Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roger W. Sims, Esquire

Post Office Box 1526

Orlando, Florida 32802

and

Thomas J. Patka, Esquire

Post Office Box 1288

Tampa, Florida 33601

For Respondent: Vernon L. Whittier, Jr., Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Intervenor: Thomas J. Hirt, pro se

1 Cypress Run

Sun Air Country Club

Haines City, Florida 33844

STATEMENT OF THE ISSUES

Whether Petitioner should be granted a license for a private airport some

four miles east of Dundee, Florida.

PRELIMINARY STATEMENT

Following completion of inspections of the site and a public hearing, the

Department of Transportation issued Site Approval Order 89-13 to Frank J.

Drewniany to operate a private airport at Latitude 28 -00'-40" North, Longitude

81 -31'-40" West, and published notice of this approval and intent to issue a

license. Intervenor's Pritchard and Hirt, by letters dated June 30 and July 6,

1989, protested the granting of the site permit and license and requested a

hearing. This request was forwarded to the Division of Administrative Hearings,

and these proceedings followed.

At the hearing, the Applicant called two witnesses, Respondent called no

additional witnesses, Intervenor called one witness and 9 exhibits were admitted

into evidence.

Proposed findings have been submitted by Petitioner. As there is no basic

dispute as to the operative facts here involved, those proposed findings are

accepted. Those not included in the findings below were deemed unnecessary to

the conclusions reached.

FINDINGS OF FACT

1. Frank J. Drewniany, Petitioner, is the owner of 153 acres of

undeveloped land some 4 miles east of Dundee, Florida, which he proposes to

develop and on which he proposes to operate a private airport.

2. On October 28, 1988, Petitioner applied for a site permit and license

for a private airport (Exhibit 1). The application provided the information

required by statute and the rules of the Department of Transportation (DOT),

Respondent. This information included evidence of Applicant's right to so use

the property, a list of airports within 15 miles of the proposed facility,

mailing addresses of all landowners within 1000 feet of the proposed facility,

FAA airspace approval and the prescribed fees.

3. The proposed site was inspected by John Roeller, the Florida DOT

airport program administrator in the district office having jurisdiction over

the area. This inspection revealed the site to be adequate for the proposed

airport; the airport, if constructed, would conform to minimum standards of

safety; the local zoning was appropriate for the airport; the Applicant had

provided 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; and that safe air traffic patterns can be worked out for the proposed

airport.

4. Following this inspection Roeller, on October 31, 1988, executed the

prescribed certification that the site is feasible for the proposed use and can

meet the requirements set forth in Chapter 14-60, Florida Administrative Code

(Exhibit 5).

5. By letter dated August 22, 1988, the Federal Aviation Administration

(Exhibit 6) determined the proposed airport would not adversely affect the safe

and efficient use of airspace by aircraft if operations are conducted in VFR

weather conditions and the landing area is limited to private use.

6. By Notice of Intent to issue site approval dated March 22, 1989

(Exhibit 7), the DOT published the intent to issue the requested permit and

advised protestors would be allowed to air their views at a public meeting on

May 10, 1989.

7. Following this public meeting, Site Approval Order 89-13 (Exhibit 8)

was issued, a hearing was requested to contest the issuance of the requested

license and these proceedings followed.

8. Intervenors presented evidence of a general concern for the safety of

residents living in the vicinity of the airport and hearsay evidence regarding

crashes of private planes in various areas of the United States. No evidence

was presented by Intervenors to rebut the evidence that the Applicant had

complied with the requirements for site approval and licensure contained in

Chapter 14-60, Florida Administrative Code.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings.

10. Chapter 330, Florida Statutes (1987), provides, inter alia, for the

regulation of airports by DOT. Section 330.29(2) directs the department to

establish minimum standards for airport sites and airports under its licensing

jurisdiction.

11. These DOT rules are contained in Chapter 14-60, Florida Administrative

Code. Rule 14-60.005 establishes rules for airport site approval and general

licensing requirements. Subsection (8) provides in part:

(a) 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 and

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 to 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.

(b) All airport sites must be inspected by a

representative of the Department and a

written report containing a recommendation

filed with the Department.

1. If the inspection shows that the

site is feasible and can meet the

requirements set forth in Rule

14-60.005(8)(a) 1-5 above, the

Department shall issue a notice

of intent. (emphasis supplied)

12. Subsection (8) goes on to provide for the public meeting that was held

and if, after the public meeting, the Department determines that the proposed

airport can comply with the standards set forth in Rule 14-60.005(8)(a) 1-5 and

if the Applicant has obtained airspace approval from FAA, the Department shall

issue a site approval order.

13. Here the Applicant has met all of the requirements established by

Chapter 14-60, Florida Administrative Code, for site approval for a private

airport.

14. Rule 14-60.006(1), Florida Administrative Code, provides:

Upon compliance with all conditions

enumerated in the site approval order,

a satisfactory final inspection by a

representative of the Department, and

payment of the required license fee, an

airport license shall be issued subject

to any conditions deemed necessary to

protect the public health, safety, or

welfare. (emphasis added)

15. Petitioner has met all of these requirements.

RECOMMENDATION

It is recommended that a Final Order be entered granting Frank J. Drewniany

a license to operate a private airport at Latitude 28 -00'-40" North and

Longitude 81 -31'40" West, subject to restrictions established by the FAA and

DOT to insure safe air patterns are established for the proposed private

airport.

ENTERED this 27th day of November, 1989, in Tallahassee, Florida.

_________________________________

K. N. AYERS

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 27th day of November, 1989.

COPIES FURNISHED:

Roger W. Sims, Esquire

Post Office Box 1526

Orlando, Florida 32802

Thomas J. Patka, Esquire

Post Office Box 1288

Tampa, Florida 33601

Vernon L. Whittier, Jr., Esquire

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thomas J. Hirt

1 Cypress Run

Sun Air Country Club

Haines City, Florida 33844

Ben G. Watts

Interim Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Thomas H. Bateman, III

General Counsel

562 Haydon Burns Building

Tallahassee, Florida 32399-0450