Commissioners agree to proposed terms after city attorney provides details
The Sarasota City commissioners this week agreed unanimously to conduct a public hearing that could end legal action that the Sarasota Manatee Airport Authority has taken against the city over votes last year that would have allowed a 372-unit apartment complex to be constructed within 1,500 feet of the airport’s runway.
As part of the process, the trust that owns the site of the former Sarasota Kennel Club — whose closure was dictated by a state law outlawing greyhound racing — already has terminated an agreement with the Raleigh, N.C., company that planned to build the apartments, City Attorney Robert Fournier explained during the City Commission’s regular meeting on March 6.
The 25.58-acre parcel sits at the intersection of Old Bradenton Road and University Parkway, Fournier noted. Its official address is 5400 Old Bradenton Road.
The document pertaining to the termination was included in the commissioners’ March 6 agenda package. It says the closing date for the sale had been extended to Feb. 2, but, as of that date, the closing had not occurred.
The original closing date was Dec. 14, 2022, Sean Flanagan, senior development director of Aventon Holdings LLC — the developer who won commission approval for the residential project — told the commissioners last fall.
Therefore, the Jack G. Collins Sr. Revocable Trust and Aventon Holdings had agreed to terminate their contract, the document adds. Thomas Keady, chair and CEO of Aventon Holdings, signed the agreement on Feb. 7, the document shows.
Aventon had planned to invest about $100 million in the project, Flanagan noted in remarks to the City Commission last year.
Additionally, Barbara Collins, trustee of the trust, “no longer wants to pursue or defend” the change in the city’s Future Land Use classification of the property and the site’s rezoning, which the city approved on 4-1 votes in November 2022, Fournier pointed out on March 6. The property is zoned Community Commercial.
In opposing the apartment project, Commissioner Jen Ahearn-Koch stressed to her colleagues last year that, in 2018, the City Commission seated at that time and the Airport Authority had approved an interlocal agreement that specified “no [new] residential [construction in that area] unless we must have it.”
Among its clauses, the May 31, 2018 agreement references “activities and uses of land in the immediate vicinity of airports as enumerated in [Section 333.03(2) of the Florida Statutes that] are not compatible with normal airport operations, and may, if not regulated, also endanger the lives of the participants, adversely affect their health, or otherwise limit the accomplishment of normal activities …”
Further, the 2018 interlocal agreement says that the city and the Airport Authority “acknowledge their obligation … to adopt, administer, and enforce updated airport zoning regulations applicable to the airport hazard areas, and restricting the use of land adjacent to or in the immediate vicinity of SRQ to activities and purposes compatible with the continuation of normal airport operations including landing and takeoff of aircraft in order to promote public health, safety, and general welfare.”
During remarks to the commissioners in August 2022, Frederick “Rick” Piccolo, president and CEO of the Airport Authority, emphasized that the interlocal agreement “was intended to prevent exactly what type of development is being proposed today.”
Piccolo also told the commissioners that noise readings taken for the Authority showed that the maximum decibel level that residents of the apartment complex would experience outdoors would be 98. Moreover, he and attorney Robert Lincoln of Sarasota, who was representing the Authority, pointed out that most of the buildings planned for the apartment complex would be within what the Authority calls the “65 DNL noise contour.” That meant that the average noise level of aircraft taking off and landing, day and night over 24 hours, would be 65 decibels.
However, the majority of the commissioners cited rising rents in Sarasota for their decision to approve the apartment complex plans. They contended that the new units would add to the housing stock and, therefore, lead to rents coming down.
Flanagan of Aventon had noted during discussions with the commissioners that the city had a 2% housing vacancy rate, which he called the lowest in the Southeast. He did acknowledge, however, that none of the Aventon apartments would be considered “attainable or affordable,” in the context of city discussions of the need for more of that type of housing. The apartment complex rents would range from $1,600 to $2,200 a month, Flanagan said.
At those levels, Piccolo of the Airport Authority emphasized, the units would be considered “luxury apartments.”
Fournier had cautioned the commissioners that that would be the primary “finding of fact” cited as the basis for their approval of the change in the Future Land Use classification for the site, plus the requested rezoning and the site plan for the development.
When Brody asked Fournier whether he thought the city could prevail if the Airport Authority filed suit over the commission’s approval of the Aventon project, Fournier replied, “I think it’s going to be a difficult argument. I’m not certain that [the commissioners’ finding of fact] would prevail.”
Facets of the proposed settlement
During the commission’s March 6 meeting, Fournier explained that the proposed settlement terms covers four issues.
First, the Airport Authority had begun the state’s Conflict Resolution Process with the city after the 2022 decisions. That action involves only the city and the Authority, he pointed out.
To resolve that, Fournier continued, the city has proposed amending its administrative procedures to give the Airport Authority the right to participate in a determination regarding any project proposed within 10,000 feet of airport runways. That involvement would come during the city’s Development Review Committee (DRC) analysis of the application.
The DRC comprises city employees who work on land-use issues. In reviewing a proposal, they determine whether it complies with all relevant city policies and ordinances. They typically make comments to an applicant to ensure such compliance.
The Airport Authority would not be able to ask the City Commission to veto a project or overrule approval of a development, Fournier said.
It was his understanding, Fournier continued, that Piccolo of the Airport Authority had conveyed to City Manager Marlon Brown that that facet of the settlement agreement was fine with the Authority.
Then Fournier explained that the City Commission is facing a tight deadline in regard to the next legal challenge. That pertains to the Authority’s filing last year of a challenge of the commission’s approval of an amendment to the city’s Comprehensive Plan that changed the land-use classification of the former Kennel Club property to one that allows residential construction.
The Authority filed that challenge with the Florida Division of Administrative Hearings (DOAH), Fournier said; a hearing on the issue has been scheduled for April 12-14.
“We would like to abate that [proceeding],” Fournier continued.
Therefore, he said, he hopes to have ready for the commissioners on April 3 a formal ordinance that would rescind the Comprehensive Plan amendment approved last year.
City regulations require such a step, Fournier explained, to undo previous commission action.
In the meantime, The Sarasota News Leader learned, on March 7, Collins — the trustee of the Collins Revocable Trust; the Airport Authority; and the city filed a joint motion to abate the DOAH proceeding or, alternatively, to continue the final hearing.
The motion said, “The Trust owns the property subject to the [Comprehensive] Plan Amendment at issue in this matter. The Trust’s contract with Aventon Holdings … for the sale of the subject property was terminated and the Trust now wants the property to retain its commercial future land use designation. Per Order dated February 17, 2023, the Trust has intervened and is substituted for Aventon as the real party in interest in this matter.
“The Parties are in good faith negotiations to settle this dispute and eliminate the need for the final hearing,” the motion continued. “The settlement would require additional time to implement the local government administrative processes contemplated, with anticipated completion by June 15, 2023.”
On March 8, Administrative Law Judge Hetal Desai issued an order that cancelled the April hearing and placed the case in abeyance. Then she wrote, “The parties shall confer and advise [her] in writing no later than
June 23, 2023, as to the status of this matter and as to the length of time required for the final hearing and several mutually-agreeable dates for rescheduling the final hearing should one be necessary. Failure to timely advise gives rise to the conclusion that this matter has been amicably resolved, and accordingly the file will be closed.”
During the March 6 commission meeting, City Attorney Fournier added that if the rescission ordinance won approval, the votes to rezone the property for residential use and to approve the site plan would be moot, based on language in the Comprehensive Plan ordinance.
Finally, Fournier reported on March 6 that, “very significantly,” the Airport Authority had agreed that all of the parties would waive any claims to attorneys’ fees from the other parties. “The most significant claim in that regard,” he added, involved the filing of two complaints in the 12th Judicial Circuit Court. That action, under provisions of state law, had to take place within 30 days of the commission’s final approval of the rezoning and site plan, Fournier said. One of those was a Petition for Writ of Certiorari, which asked the court to quash the rezoning and site plan ordinance that the City Commission approved on Nov. 8, 2022.
That petition argued that the commissioners violated “the City’s own clear and unambiguous rezoning and site plan standards that prohibit residential uses inside the safety Noise [Contour] of the Airport.”
As Cornell Law School’s Legal Information Institute explains, “This type of petition usually argues that a lower court has incorrectly decided an important question of law, and that the mistake should be fixed to prevent confusion in similar cases.”
The commissioners had conducted what is called a “quasi-judicial hearing” before voting in favor of the rezoning and site plan for Aventon. As the phrase implies, a “quasi-judicial hearing” held by a local government entity includes evidence and testimony on which members of that body must make their decision, akin to a court proceeding.
The other 12th Circuit Court filing was a complaint alleging that the city had violated state law in granting the rezoning and site plan approval to Aventon. That complaint contended that the action was inconsistent with the city’s Comprehensive Plan, as it would expose the apartment residents “to unsafe frequent and loud aircraft noise …”
With no commissioner posing a question after Fournier’s remarks, Commissioner Ahearn-Koch made a motion to accept the proposed term sheet for the settlement, and Commissioner Debbie Trice seconded the motion.
No board member offered a comment before the 5-0 vote approving the motion.