91-004797 City Of Cape Canaveral, Brevard County, And Norma E. Townsend vs. Downtown Heliport Corporation And Department Of Transportation Status: Closed Recommended Order on Wednesday, December 18, 1991.

Summary: Resident one-half mile from proposed heliport has standing. Facility meets all criteria and should be approved

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CAPE CANAVERAL, et al, )

)

Petitioners, )

)

vs. ) CASE NO. 91-4797

)

DOWNTOWN HELIPORT CORPORATION, INC., )

and DEPARTMENT OF TRANSPORTATION, )

)

Respondents. )

______________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled case on October 9, 1991, in the City of Cape Canaveral, Florida.

APPEARANCES

For Petitioners: Edward Spenik, City Manager

City of Cape Canaveral

105 Polk Avenue

P.O. Box 326

Cape Canaveral, FL 32920

Norma E. Townsend

P.O. Box 883

Cape Canaveral, FL 32920-0883

For Respondents: Robert Uttal

Downtown Heliport Corporation, Inc.

P.O. Box 621148

Orlando, FL 32862-1148

Vernon L. Whittier, Jr.

Assistant General Counsel

Department of Transportation

605 Suwannee Street

Tallahassee, FL 32399-0458

STATEMENT OF THE ISSUES

The issue for determination is whether the Department of Transportation's

(DOT) site approval number 91-17, to Downtown Heliport Corporation for a

heliport at Port Canaveral, Florida, should become final agency action.

PRELIMINARY STATEMENT

In response to the issuance of the above-referenced site approval, several

parties requested a formal hearing. Those parties included Joy C. Salamone,

Mayor, City of Cape Canaveral; Karen Andreas, Commissioner, District 2, Brevard

County; and Norma E. Townsend, a citizen and resident of the City of Cape

Canaveral.

Prior to the hearing, City of Cape Canaveral City Manager Edward Spenik

sent a letter explaining that no city officials would be in attendance to

present new data. Mr. Spenik appeared at the hearing but did not participate,

and he stated that the city was satisfied with the conditions placed on the site

approval.

No one, including Commissioner Andreas, appeared on behalf of Brevard

County, and any objections by that party are deemed waived.

Ms. Townsend appeared and actively participated through cross-examination

and her own testimony. Her exhibits #1-3 and 6-7 were received in evidence.

Exhibits #4 and 5 were marked for identification, but were rejected as

irrelevant to the proceeding.

The Department of Transportation presented testimony of two witnesses and

exhibits #1-9, all received in evidence without objection.

Downtown Heliport Corporation, Inc. presented the testimony of three

witnesses and four exhibits, received without objection.

Each party filed post-hearing recommended orders or written argument. The

findings of fact proposed by the Department of Transportation are substantially

adopted herein.

The transcript of proceeding was filed in error at the Department of

Transportation and was furnished to the Hearing Officer on November 11, 1991, by

counsel for that agency.

FINDINGS OF FACT

1. The applicant for site approval is Downtown Heliport Corporation, Inc.,

a corporation with headquarters in Orlando, Florida, engaged in operating

heliport facilities throughout Florida and other states. Its related company is

Bulldog Airlines, which owns and operates helicopters for hire. Robert Uttal is

President of both companies.

2. On January 4, 1990, Downtown Heliport Corporation filed its application

for site approval by the Department of Transportation (DOT), proposing to

establish a .23 acre (10,000 square feet) helicopter pad within the

jurisdictional territory of the Canaveral Port Authority.

The Port Authority had already approved a land use permit and lease for the

applicant on July 19, 1989 and November 14, 1989.

3. The Federal Aviation Authority (FAA) also gave its approval. In a

letter dated January 10, 1991, addressed to McDonald Smith, Director of

Operations, Downtown Heliport Corporation, the FAA granted approval of the

subject heliport under the following conditions:

1. All operations are conducted in VFR weather

conditions.

2. The landing area is limited to private use.

3. All approach/departure route helicopter

operations are conducted in an area from 090

degrees clockwise to 160 degrees and from 250

degrees clockwise to 330 degrees using the touchdown

pad as the center of a compass rose.

4. The takeoff/landing area is appropriately marked.

5. A nonobstructing wind indicator is maintained

adjacent to the takeoff/landing area.

The approval letter provides, in pertinent part:

This determination does not mean FAA approval

or disapproval of the physical development

involved in the proposal nor is it based on any

environmental or land-use compatibility issue.

It is a determination with respect to the safe

and efficient use of airspace by aircraft and

with respect to the safety of persons and property

on the ground.

In making this determination, the FAA has considered

matters such as the effect the proposal would have

on existing or planned traffic patterns of neighboring

airports or heliports, the effects 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 effects that existing or proposed man-made

objects (on file with the FAA) and known natural

objects within the affected area would have on the

heliport proposal.

The FAA cannot prevent the construction of structures

near a heliport. The heliport environs can only be

protected through such means as local zoning ordinances

or acquisitions of property rights.

(DOT Exhibit #4)

4. On January 30, 1990, Bronson Monteith, DOT District Aviation

Specialist, inspected the proposed site and found it feasible for the proposed

use and consistent with the requirements of DOT Rule Chapter 14-60, F.A.C.

More specifically, he reviewed the facility diagram provided by the applicant

and determined that the size of the pad, the location of the pad and the air

corridor were appropriate. He considered that the Port Canaveral and FAA

approval established compliance with ground and air safety standards. He

determined from his inspection that existing structures would not interfere with

an 8:1 glide slope to and from the pad. Once cleared from the pad the

helicopters will use an existing ships' channel as the flight path.

Mr. Monteith considered the distance of the streets from the heliport and the

objects around it, including trees, the parking area and any major buildings

that would be occupied. There are no schools close to the site.

5. A Notice of Intent to issue a site approval for the proposed heliport

was issued by the Department and advertised in an area newspaper; notices were

sent, as provided in Rule 14-60, F.A.C. John Monteith conducted a public

meeting, received comments and submitted a report to the DOT Aviation Bureau in

Tallahassee recommending site approval. The heliport application, documentation

and comments from the public meeting were reviewed by the Department's Licensing

Coordinator and the Aviation Office Manager, and they determined that the

application met all requirements under Chapter 330, Florida Statutes, and

Chapter 14-60, F.A.C. for site approval.

6. Site approval order no. 91-17 imposes the following conditions:

1. All operations are to be conducted in VFR

weather conditions.

2. Operations are limited to private use.

3. There are to be no flights over the City

of Cape Canaveral.

4. That the provisions in FAA Airspace Approval

letter dated January 10, 1991, be complied with.

affic patterns and operational procedures

are subject to review by this Department prior

to licensing or relicensing.

(DOT Exhibit #9)

7. Bulldog Airlines and Downtown Heliport Corporation intend to comply

with, and enforce the conditions imposed by DOT.

The flight path will be at 800 feet elevation along the corridor until the final

approach for landing or takeoff, and that final approach will only be over the

port itself. It will not include any flights over the Trident nuclear submarine

or over storage tanks.

The heliport will be private, primarily for the use of Bulldog Airlines, who

flies for NASA, for the Port Authority, for various governmental agencies,

including environmental monitoring agencies, and for other private hire. The

heliport is open only to commercial pilots, will be used during daylight hours

and only under conditions which allow for visual, noninstrument flying.

8. Bulldog Airlines commenced operation in 1985 and has never experienced

an incident, accident, or any notice of violation from the FAA, DOT or local law

enforcement agencies. Because of its safety record it is able to maintain $100

million liability insurance.

McDonald Smith, Director of Operations for Bulldog Airlines, is a pilot with

approximately 10,000 hours of flight time. He also inspected the site and is

aware of existing structures. In his opinion the flight corridor is wide enough

to fly a helicopter, even if it is necessary to avoid unforeseen obstacles.

9. Norma Townsend is a resident of the City of Cape Canaveral,

approximately one-half mile south of the proposed site. She has attended the

series of public meetings which preceded the DOT's proposed decision. She has

amassed an impressive array of letters, maps, tapes and other documents related

to the proposed site.

She describes herself as a citizen and is neither a pilot nor trained in safety.

Ms. Townsend is concerned about the existence of the nuclear submarine base,

fuel storage tanks and other hazardous materials in the proximity of the

proposed site. She feels that no amount of care by the pilots will insure that

a helicopter in an emergency might not collide with an existing structure, with

disastrous results. She has heard that used parts are sold for new, causing a

helicopter to drop from the sky.

She believes that ultra-light airplanes, low flying airplanes and weather

balloons will provide extraordinary flying hazards in the Port Canaveral area.

She suspects that no meaningful study was done by any agency prior to approving

the site.

Ms. Townsend presented no witnesses to substantiate these concerns and relies on

her own common sense. In many instances this would be sufficient, but here the

agency and applicant presented knowledgeable, competent expertise in support of

a finding that the site is appropriate.

10. Anything is possible, but instances of helicopters dropping out of the

sky are virtually unheard of. Pilots are conscious of ultra-light planes and

other possible obstacles to flying. Even large birds are a hazard. Heliports

are routinely sited near or on top of buildings, in downtown areas or other

places where traffic and population are congested. Helicopters are highly

maneuverable, and for that reason are relied on in providing transportation and

observation in circumstances where planes or ground vehicles are prohibited, for

example after a hurricane or after a fire or other calamity.

11. The substantial weight of evidence establishes that the proposed

heliport at Port Canaveral can and will be safely operated.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this proceeding pursuant to Section 120.57(1),

F.S.

13. Section 330.30(1)(a), F.S. gives DOT the responsibility to approve

airport sites and license airports. Site approval is required if the department

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.

Section 330.30(1)(a), F.S.

14. DOT Rule 14-60.007(6), F.A.C. establishes minimum standards for

helistops and heliports, in pertinent part:

1. A minimum primary surface area shall be

provided with length and width dimensions equal

to at least 1.5 times the overall length of the

largest helicopter intended to use the facility;

however, a primary surface with 300 foot length

and width or larger shall be accepted as sufficient

to accommodate all helicopters.

2. Centered within the primary surface shall be a

minimum touchdown area with length and width dimensions

equal to the rotor diameter of the largest helicopter

intended to use the facility, however, a touchdown

area with 100 foot length and width dimensions or

larger centered within a 200 foot primary surface,

shall be sufficient to accommodate all helicopters.

Smaller touchdown area, not less than 20 feet in

diameter, may be approved for heliports/ helistops

located on man-made structures.

3. There shall be a minimum of two (one for

limited or emergency helistops) 500 foot wide

approach/departure corridors with floor and side

planes as follows: the floor plane shall provide

an 8:1 obstruction clearance and shall coincide

in width with the required primary surface width

at the boundary and proceed outward, flaring

horizontally at a 10:1 rate on both sides until it

reaches 500 feet wide. Where the floor plane is

less than 500 feet wide, the side planes extending

out from the floor plane or the primary surface shall

provide a 2:1 obstruction clearance out to the

required 500 foot corridor width. The two

approach/departure corridors shall be at least 90

degrees apart in direction. Curved approach/departure

corridors with a minimum radius of 700 feet are

permissible but the curved path shall not commence

closer than 300 feet from the primary surface.

4. There shall be markings consisting of any FAA

approved design and shall include touchdown area

border lines whose dimensions coincide with and,

therefore, indicate the rotor diameter of the

largest helicopter intended to use the facility.

When the load bearing capacity of the touchdown

area located on a structure is limited to less

than 20,000 pounds per landing gear, a number

shall be displayed in the center of the touchdown

area indicating the maximum allowable gross weight

of a landing helicopter in thousands of pounds.

5. A wind indicator shall be located so as to be

clearly visible to landing helicopters but not within

the primary surface and not a hazard to flight.

6. Fire protection of at least two 30 pound dry

chemical extinguishers (foam compatible) or equivalent

(not required for limited or emergency helistops) shall

be available. In addition, public heliports/ helistops

shall provide an effective safety barrier to protect

the public from entering the primary surface and when

the public heliport/ helistop is located on top of a

building, egress shall be provided at two separate

locations.

15. DOT's Rule 14-60.005(8)(b), F.A.C. requires that notice of the

agency's intent to approve an airport site be published in a newspaper of

general circulation in the county in which the proposed site is located and also

that the notice be sent by certified mail to airports and municipalities within

15 miles and property owners within 1,000 feet of the proposed site.

That Ms. Townsend does not own property within 1,000 feet does not prohibit her

participation in the public hearing or this administrative proceeding. The case

cited by agency counsel for Ms. Townsend's lack of standing, Peterson v.

Department of Community Affairs, 386 So.2d 879 (Fla. 1st DCA 1980), relates to

Section 380.06, F.S., regarding binding letters informing developers whether a

proposed project is a development of regional impact ( DRI). The legislative

scheme is substantially different there; only the agency and a developer

participate in issuance of a binding letter. In contrast, the statute and rules

governing airport site approval invite public participation.

Ms. Townsend did not, however, prove that she would be substantially affected by

the site approval. Her concerns were largely speculative and unsubstantiated.

The Downtown Heliport Corporation presented competent evidence that its facility

will meet the requirements of Section 330.30, F.S. and Rule 14-60.007, F.A.C.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED:

That the agency enter its final order finding that site approval order no.

91-17 is valid and appropriate.

DONE AND RECOMMENDED this __18th__ day of December, 1991, in Tallahassee,

Leon County, Florida.

___________________________________

MARY CLARK

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 __18th__

day of December, 1991.

Copies furnished:

Robert R. Uttal

Downtown Heliport Corporation, Inc.

P.O. Box 621148

Orlando, FL 32862-1148

Joy C. Salamone, Mayor

City of Cape Canaveral

P.O. Box 326

Cape Canaveral, FL 32920

Karen S. Andreas, Commissioner

Brevard County Board of County Commissioners

900 E. Merritt Island Cswy.

Merritt Island, FL 32952

Vernon L. Whittier, Jr., Esquire

Dept. of Transportation

605 Suwannee Street

Tallahassee, FL 32399-0450

Norma E. Townsend

P.O. Box 883

Cape Canaveral, FL 32920-0883

Ben G. Watts, Secretary

Attn: Eleanor F. Turner, M.S. 58

Dept. of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, FL 32399-0458

Thornton J. Williams

General Counsel

Dept. of Transportation

Haydon Burns Building

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. Some agencies allow a larger period within 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.