91-007541 Maurice Uchitel vs. Department Of Transportation Status: Closed Recommended Order on Monday, July 20, 1992.

Summary: Ultralight airport approved; ultralights foung not to constitute noisy nuisance or hazard.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURICE UCHITEL, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7541

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

______________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in the above-styled case was held by

Stephen F. Dean, assigned Hearing Officer of the Division of Administrative

Hearings, on June 22, 1992, at Tallahassee, Florida. At the suggestion of the

parties, the hearing was held by telephonic conference call.

APPEARANCES

For Petitioner: Jeffrey J. Pardo, Esquire

8323 N.W. 12th Street

Miami, FL 33126

For Respondent: Paul Sexton, Esquire

Department of Transportation

Haydon Burns Building, M.S.-58

605 Suwannee Street

Tallahassee, FL 32399-0458

PRELIMINARY STATEMENT

This case arose from an application for site certification of an airport

filed with the Department of Transportation by Robert Sarra. The application

sought site approval of a private airport for ultralight aircraft, to be located

in Lake County, pursuant to Section 330.30, Florida Statutes, and Chapter 14-60,

Florida Administrative Code. A public hearing was held by the Department in

Lake County, in accordance with Rule 14-60.005(8) and written comments were

received by the Department. Site Approval Order No. 91-35 was issued October 3,

1991, subject to a request for a proceeding pursuant to Section 120.57, Florida

Statutes. Maurice Uchitel, owner of adjoining land, filed a request for a

hearing and this matter was referred to the Division of Administrative Hearings

for hearing. Mr. Uchitel's concerns were that the airport would be a noisy

nuisance and create a danger to his property because of the experimental nature

of ultralight aircraft. The DOT and Mr. Uchitel jointly presented proposed

findings of fact which were read and adopted.

FINDINGS OF FACT

1. Sworn testimony was presented on behalf of the Department by Bronson

Monteith, an Aviation Specialist employed by the Department. Mr. Monteith

testified as to the application process, the document received by the Department

(DOT Exhibit No. 1) and his analysis and conclusions regarding the application.

According to Mr. Monteith's testimony, the application was complete and met all

Department requirements for issuance of site approval.

2. An application for site certification was filed with the Department on

February 19, 1990 (DOT Exhibit No. 1, page 1). The application was revised to

" ultralight private" on March 3, 1990 (DOT Exhibit No. 1, page 7). A landing

area proposal was filed with the Federal Aviation Administration on February 19,

1990 by Mr. Sarra (DOT Exhibit No. 1, page 13). FAA approval of the application

was issued April 10, 1990 and contained the following finding:

the subject airport will not adversely affect

the safe and efficient use of airspace by air

craft provided the landing area is limited to

private use.

(DOT Exhibit No. 1, page 15)

The FAA approval also stated:

In making this determination, the FAA has

considered matters such as the effects the

proposal would have on existing or planned

traffic patterns of neighboring airports or

heliports, the effect it would have on the

existing airspace structure and projects or

programs of the FAA, the effects it would

have on the safety of persons and property on

the ground, and the effect that existing or

proposed manmade objects (on file with the

FAA) and known natural objects within the

affected areas would have on the airport

proposal.

(DOT Exhibit No. 1, page 15)

3. Conditional Use Permit No. 89/4/5/2 was issued for the construction and

operation of an airport at the proposed site by the County Commission of Lake

County on August 10, 1989 (DOT Exhibit No. 1, Page 20). The property in

question is owned by Romar Agricultural Development Corporation, which is owned

by Mr. Sarra (DOT Exhibit No. 1, page 26). The site was inspected and certified

by Mr. Monteith as suitable for a private ultralight airpark site under Chapter

14-60 on August 21, 1990 (DOT Exhibit No. 1, page 30-33). Mr. Monteith

conferred with the FAA and pilots at a nearby glider port and determined that

the application should sign an agreement governing the operation of the proposed

airport to ensure that safe air traffic patterns can be maintained (DOT Exhibit

No. 1, page 34). The agreement was signed by the applicant (DOT Exhibit No. 1,

page 36).

4. During the hearing, Mr. Uchitel's attorney proposed that an additional

condition be placed on site approval: that the applicant indemnify nearby

landowners for all injury and liability associated with the operation of the

airport and post a bond or other guarantee to support the indemnification. The

rationale for this condition was that ultralight aircraft were not as well-

regulated as other aircraft and posed a particular danger to nearby landowners.

5. Mr. Uchitel's counsel expressed Mr. Uchitel's concern that the local

zoning may have been obtained without due notice to him.

6. The FAA regulations for operation of ultralight aircraft were

introduced. These regulations prohibit flight below 1500 feet except when

landing and taking off.

7. The sketch accompanying the application reveals that the proposed

airport will have a grass runway 500 feet wide and 1500 feet long, running north

and south.

8. A diagram of the proposed airstrip shows that the first 500 feet of the

north and south ends of the airport are for approaching the primary landing

zone.

9. Ultralight aircraft landing at the airport would commence their descent

flying parallel to the airstrip, make a 90 degree turn towards the airstrip at

the end of the approach area, fly toward the airstrip centerline and execute

another 90 degree turn towards the landing zone. Because of the flight

characteristics of ultralights, their descent from their approach altitude of

1500 feet generally would be over the airport itself. The aircraft's flight

over the property of adjoining property owners would be at the required minimum

altitude of 1500 feet.

10. Although ultralight aircraft are licensed in a manner similar to

experimental aircraft, and are not subject to all of the inspections which

certified non-experimental aircraft must have, they are generally flown by their

owner-builders, who want to avoid any accidents for obvious reasons. Further,

these aircraft, as their classification indicates, are very light, kite like

aircraft with light aluminum bracing. It is inconceivable that one would cause

major damage to property on the ground if it did crash.

11. Power plants for these aircraft are typically small engines similar to

those used in snow mobiles. Although they are noisy, they do not generate as

much noise as standards aircraft engines. Flying at their assigned altitudes,

they will not be a major source of noise for adjoining property owners.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this case, pursuant to Section 120.57(1),

Florida Statutes.

13. The criteria for site certification under Section 330.30(1)(a),

Florida Statutes, and Rule 14-60.005, Florida Administrative Code are as

follows:

1. The site is adequate for the proposed

airport;

2. 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. Safe air traffic patterns can (and have

been worked out for the proposed airport and

all existing airports and approved airport

sites in the vicinity.

4. All nearby airports, municipalities and

property owners have been notified and any

comments submitted by them have been given

adequate consideration; and

14. The site is adequate for the proposed airport. The airport must

conform to the minimum safety standards set forth in Department regulations.

Local zoning authorities have approved the site for use as an airport. Safe air

traffic patterns have been worked out for the proposed airport pursuant to an

agreement between the applicant and another airport for gliders some miles away.

The site has been inspected and certified as feasible. Appropriate notice of

DOT's consideration of the application was issued to nearby landowners, airports

and municipalities and a public hearing was held. The application filed in this

case is complete and in compliance with the minimum requirements of the rules

and statute. A site approval order was issued, which set forth the appropriate

information and conditions as required by the rule.

15. The record does not support the imposition of any additional

conditions on site approval. Persuasive evidence was presented that the airport

meets all of the requirements of the Department's rules, which include safe

operation. The FAA has approved the airport after specifically considering the

safety of persons and property on the ground.

16. Mr. Uchitel's concern about proper notice of the proposed change in

zoning is outside the scope of this hearing which is limited to issues addressed

pursuant Section 330.30, Florida Statutes. Further, no competent evidence was

presented to support the condition proposed by Mr. Uchitel that a bond be posted

for potential damages. Such a condition is neither necessary nor authorized

under the Department's rules or Section 330.30, Florida Statutes.

17. Accordingly, the application satisfies the provisions of Section

330.30(1)(a), Florida Statutes, and Rule 14-60.005, Florida Administrative Code,

and a site approval permit should be issued for the airport, as proposed by the

Department.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered granting site approval for the proposed

airport, under the terms and conditions provided in Site Approval Order No. 91-

36.

DONE and ENTERED this 20th day of July, 1992, in Tallahassee, Florida.

___________________________________

STEPHEN F. DEAN, 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 ____ day of July, 1992.

COPIES FURNISHED:

Ben G. Watts, Secretary

ATTN: Eleanor F. Turner

Department of Transportation

Haydon Burns Building, M.S.-58

605 Suwannee Street

Tallahassee, FL 32399-0458

Jeffrey J. Pardo, Esquire

8323 N.W. 12th Street

Miami, FL 33126

Paul Sexton, Esquire

Department of Transportation

Haydon Burns Building, M.S.-58

605 Suwannee 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.