91-007369 Hart Land And Cattle Company, Inc., And R. L. Hart And Victoria A. Hart vs. Ron Biritz And Department Of Transportation Status: Closed Recommended Order on Thursday, May 28, 1992.

Summary: Department of Transportation should approve airport.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HART LAND AND CATTLE CO., )

INC., RON L. HART and )

VICTORIA S. HART, )

)

Petitioners, )

)

and )

)

BRUCE BEST and CHERYL ) CASE NO. 91-7369

SANDERS, )

)

Intervenors, )

)

vs. )

)

RON BIRITZ and DEPARTMENT OF)

TRANSPORTATION, )

)

Respondents. )

____________________________)

RECOMMENDED ORDER

This matter came on for hearing in New Smyrna Beach, Florida, before Robert

T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on

March 1, 1992. The parties filed proposed recommended orders (or adopted others

already filed) on or before April 9, 1992. The attached appendix addresses

proposed findings of fact by number. Neither Ron L. Hart nor Victoria S. Hart

entered an appearance.

APPEARANCES

For Petitioner Dan R. Warren, Esquire

Hart Land and Judge and Warren, P.A.

Cattle Company: 315 Silver Beach Avenue

Daytona Beach, FL 32118

Pro Se: Bruce Best

Post Office Box 2793

New Smyrna Beach, FL 32170

Pro Se: Cheryl M. Sanders

Post Office Box 2793

New Smyrna Beach, FL 32170

For Respondent James S. Morris, Esquire

Biritz: Storch, Hansen & Morris, P.A.

1620 South Clyde Morris Blvd., #300

Daytona Beach, FL 32219

For Responden Vernon L. Whittier, Esquire

DOT: 605 Suwanee Street

Tallahassee, FL 32399-0458

STATEMENT OF THE ISSUE

Whether respondent Department of Transportation (DOT) should grant co-

respondent Ron Biritz's application for site approval for and licensure of a

private airport three miles west of Oak Hill at 28o 51' 25" N., 81o 54' 26" W.,

as proposed in DOT's order No. 91-34?

PRELIMINARY STATEMENT

After DOT entered order No. 91-34, Cheryl M. Sanders and Hart Land and

Cattle Company, by its agent Clyde L. Hart, who may also have been acting as the

other petitioners' agent, requested formal administrative proceedings on the

airport site approval and license application. DOT forwarded the latter, but

not the former, request to the Division of Administrative Hearings for hearing,

in accordance with Section 120.57(1)(b)3., Florida Statutes (1991).

At hearing, both Ms. Sanders and Mr. Best were allowed to intervene,

subject to proof at hearing of a substantial interest to be determined by the

proposed site approval and licensure. Clyde L. Hart sought but was denied the

right to act as qualified representative for petitioners, although he testified

as a witness.

FINDINGS OF FACT

1. Selwin Coleman is the record holder of land located near Maytown Road

three miles west of Oak Hill, Florida, at latitude 28o51'25" North, longitude

80o54'26" West in Sections F and G, Township 19 South, Range 34 East in Volusia

County (the proposed site). He has authorized his son-in-law, Ron Biritz, to

seek DOT site approval and a license for a private airport as the proposed site.

2. Petitioners and intervenors own land in the general vicinity, and

Robert L. Hart owns extensive mineral rights, including rights to any minerals

underlying the proposed site. Other land owners, including Warren J. Brull, who

owns part of the land over which the existing air strip runs, C.R. "Dick"

Powell, and Vaughn L. Grasso, who owns a crop duster he stores in a building he

characterizes as agricultural, also made Mr. Biritz their agent for purposes of

the pending application.

3. Known as "Blue Ridge Flightpark," a 4,000-foot grass air strip at the

proposed site had been used by light planes for some time, until recently. The

air strip has been significantly improved within the last two years; at one time

watermelons were grown on the property. Originally, scrub hickory and gopher

tortoise holes made its use as an air field impractical.

4. When John Bronson Monteith, the aviation specialist for DOT's District

Five, learned the grass strip at the proposed site was "operational," he

contacted the owners and instructed them to close down operations until site

approval was granted; and told them how to apply for site approval.

5. As one result, they caused a large "X" to be placed on the strip,

indicating the field was closed to operation. When Mr. Monteith visited the

proposed site on November 21, 1991, he saw rust on a brake disc on Mr. Biritz's

airplane, suggesting disuse.

6. After DOT received the application, Mr. Monteith determined that it was

complete and seemed to meet all rule and statutory criteria, so he prepared a

notice to grant the application for Nancy Houston's signature. He caused copies

of the notice of intent to be sent by certified mail to all airports and

municipalities within 15 miles and to all landowners within 1,000 feet of the

proposed site. The notice of intent was published in the News Journal, and a

public hearing was held on July 18, 1991.

7. There is some question regarding the true nature of several largish

buildings along the air stripeated as "agricultural" for purposes of

construction without building permits, the buildings look to some more like

hangars than barns. But, as to the air strip itself, Volusia County zoning

officials have recognized a nonconforming use antedating adoption of County

zoning ordinances, a use which the ordinances allow to continue, as long as it

does not entail construction of any new structures. Respondent's Exhibit Nos. 4

and 7.

8. As experience has demonstrated, the proposed site is "feasible" and

"adequate." Despite military air traffic in the general vicinity, the Federal

Aviation Authority concluded that, if limited to private use, the "airport will

not adversely affect the safe and efficient use of airspace by aircraft."

Respondent's Exhibit No. 3. Only a windsock and markings, including threshold

markings, are needed to meet licensing requirements.

CONCLUSIONS OF LAW

9. Since DOT referred the hearing request to the Division of

Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida

Statutes (1991), "the division has jurisdiction over the formal proceeding."

Section 120.57(1)(b)3., Florida Statutes (1991).

10. The statutory and rule provisions under which the present application

is pending contemplate a unified site approval and licensure process. Section

330.30, Florida Statutes (1991), entitled "Approval of airport sites and

licensing of airports; fees," provides:

(1) SITE APPROVALS; REQUIREMENTS, FEES,

EFFECTIVE PERIOD, REVOCATION.

(a) . . . [T]he owner or lessee of any

proposed airport shall, prior to the

acquisition of the site or prior to the

construction or establishment of the proposed

airport, obtain approval of the airport site

from the department. Applications for approval

of a site and for an original license shall be

jointly made on a form prescribed by the

department . . . . The 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; and

4. That safe air-traffic patterns can be

worked out for the proposed airport and for

all existing airports and approved airport

sites in its vicinity.

(b) Site approval may be granted subject

to any reasonable conditions which the

department may deem necessary to protect the

public health, safety, or welfare.

. . .

(2) LICENSES; REQUIREMENTS, FEES, RENEWAL,

REVOCATION.

(a) . . . [T]he owner or lessee of an

airport in this state must obtain a license

prior to the operation of aircraft on the

airport. An application for such license

shall be made on a form prescribed by the

department and shall be accomplished jointly

with an application for site approval. Upon

granting site approval, making a favorable

final airport inspection report indicating

compliance with all license requirements, and

receiving the appropriate license fee, the

department shall issue a license to the

applicant, subject to any reasonable

conditions that the department may deem

necessary to protect the public health,

safety, or welfare. . . .

Implementing these statutory provisions, Rule 14-60.005, Florida Administrative

Code, provides:

(8) Site Approval.

(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 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 1,000 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 show 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.

11. The procedural steps required by statute and rule have been taken, and

no party has contended otherwise.

12. The courts view it "as fundamental that an applicant for a license or

permit carries 'the ultimate burden of persuasion' of entitlement through all

proceedings, of whatever nature, until such time as final action has been taken

by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396

So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,

347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from

evidence submitted by the applicant"). See generally Balino v. Department of

Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

Petitioner has met the burden here.

RECOMMENDATION

It is, accordingly,

RECOMMENDED:

That DOT grant site approval on the conditions stated in Order No. 91-34;

and, after the requirements of Section 330.30(2), Florida Statutes (1991) have

been satisfied, issue a private airport license to Ron Biritz.

DONE and ENTERED this __28__ day of May, 1992, in Tallahassee, Florida.

___________________________________

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this __28__ day of May, 1992.

APPENDIX

Both intervenors adopted petitioner's proposed findings of fact as their

own.

Petitioner's proposed findings of fact Nos. 1, 2 and 4 have been adopted in

substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 3, the legal

status was not clear.

With respect to petitioner's proposed finding of fact No. 5, a

preponderance of the evidence established that flights had stopped recently.

Respondent's proposed findings of fact Nos. 1 through 6 have been adopted,

in substance, insofar as material.

Respondent's proposed finding of fact No. 7 is properly a conclusion of

law.

COPIES FURNISHED:

Ben G. Watts, Secretary

Department of Transportation

605 Suwanee Street

Tallahassee, FL 32399-0458

Thornton J. Williams, General Counsel

Department of Transportation

562 Haydon Burns Building

Tallahassee, FL 32399-0458

Dan R. Warren, Esquire

315 Silver Beach Avenue

Daytona Beach, FL 32118

Bruce Best

Post Office Box 2793

New Smyrna Beach, FL 32170

Cheryl M. Sanders

Post Office Box 2793

New Smyrna Beach, FL 32170

James S. Morris, Esquire

Storch, Hansen & Morris, P.A.

1620 South Clyde Morris Blvd., #300

Daytona Beach, FL 32219

Vernon L. Whittier, Esquire

605 Suwanee Street

Tallahassee, FL 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.