SRQ Airport Authority plans lawsuit over City Commission’s approval of 372-unit apartment complex close to end of runway

On 4-1 votes, commissioners approved change in land classification for 25-acre former dog track site and its rezoning for project

On Sept. 6, as the Sarasota City Commission once again was discussing plans for a 372-unit apartment complex on the site of the former greyhound dog track near Sarasota Bradenton International Airport (SRQ), City Attorney Robert Fournier cautioned the members about the consequences of approving the proposal.

The focus of Fournier’s concern was a section of the City Zoning Code that says, “Where the community determines that residential or school uses must be allowed, measures to achieve outdoor to indoor noise level reduction (NLR) of at least 25 dB [decibels] and 30 dB must be incorporated into the design and construction of these buildings.”

“Is this a project that we can approve, given our code?” Commissioner Hagen Brody asked Fournier, referring to the apartment complex project application.

The hearing that day was of a quasi-judicial nature, meaning the board members would have to base their decisions on evidence and testimony, akin to a ruling following a court hearing, Fournier had explained earlier. In responding to Brody’s question, Fournier pointed out that the proposed residential use within 1,500 feet of the end of the SRQ runway would be incompatible, based on the Zoning Code, unless the project was a “must.”

Therefore, Fournier continued, the commissioners could make a “finding of fact” that the apartment complex was a “must” because of the housing crisis in the city.

He did point out, “It’s inappropriate for me to give you evidence, but that’s the argument being made as to why it’s a must.”

Then Brody asked whether Fournier thought the city could prevail if the Sarasota Manatee Airport Authority filed suit against the city, if the commission went ahead and approved the plans.

“I think it’s going to be a difficult argument,” Fournier replied, referring to commissioners’ assertions that the project was needed because more dwelling units in the city would lead to lower rents. “I’m not certain that [the commissioners’ finding of fact] would prevail.”

The only argument that would be in the record, Fournier continued, in response to further questioning by Brody, would be the testimony of the applicant, Aventon Companies of Raleigh, N.C., that the apartment complex would ease the city’s housing shortage.

Sean Flanagan, senior development director of Aventon, had pointed out again that day — as he did during the initial hearing, on Aug. 15 — that the city has a 2% vacancy rate, which is the lowest in the Southeast.

At one point, Commissioner Liz Alpert talked about looking up the definition of “must” in the Oxford English Dictionary. What she read, she said, was that the word means “be obliged to” or “should.” The definition was not “have to,” she emphasized.

The commissioners ended up voting 4-1 twice that evening — once on a Comprehensive Plan amendment to change the future land classification of the approximately 25-acre property and, the second time, on the rezoning of the former greyhound track to Residential Multi-Family 4, which allows for moderate density of 18 dwelling units per acre. The Aventon project will entail about 14 units per acre, according to the city staff report on the proposal.

Commissioner Jen Ahearn-Koch cast the “No” votes, just as she did on Aug. 15, following the first reading of the proposed change in land-use classification.

The commissioners will not have to wait long for the court challenge that Fournier predicted.

During a Sept. 13 telephone interview with The Sarasota News Leader, Frederick “Rick” Piccolo, president and CEO of the Airport Authority, confirmed that a lawsuit would be filed within the necessary time frame.

Referring to the City Commission’s approval of the apartment plans, Piccolo added, “It was disappointing.”

The interlocal agreement and ‘attainable housing’

On Sept. 6, representatives of the Airport Authority — including attorney Robert Lincoln, whose eponymous firm is located in Sarasota — cited a 2018 interlocal agreement with the City Commission, as well as the Zoning Code section that Fournier had noted, in arguing that no housing complex should be allowed within such close proximity to the airport.

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] 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 …”

The agreement adds 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.”

Piccolo said that interlocal agreement “was intended to prevent exactly what type of development is being proposed today.”

Yet, commissioners stressed the need for the new housing, even though Flanagan of Aventon Companies had made it clear to them that the apartments would not be designed for tenants with a level of income considered “affordable.” Instead, Flanagan continued, he expected 94% of the units would have rents that would fall within 120% of the Area Median Income that the U.S. Department of Housing and Urban Development (HUD) has set for the North Port-Sarasota-Bradenton Metropolitan Statistical Area for this year. One hundred percent of the Area Median Income for 2022 is $90,400, up from $77,200 in 2021.

On Aug. 15, Flanagan told the commissioners the rents would range from $1,600 to $2,200 a month.

Piccolo of SRQ characterized the units as “luxury apartments” at that level.

Lincoln told the commissioners on Sept. 6 that the Airport Authority would not object to a mixed-use development on the site, which would entail commercial operations with some residential dwellings, as long as the apartments or condominiums were outside the “noise contour.” Lincoln meant that they would be far enough away from the runway that the noise emanating from aircraft taking off and landing would be below an average of 65 decibels (dB).

As it stands, the Aventon design would put the majority of the 13 buildings — eight — within the noise contour.

Piccolo explained that, starting in 1990, the Airport Authority “began an aggressive noise mitigation effort,” which it completed in the mid-2000s, to buy property in the vicinity of SRQ, provide sound insulating for homes that would remain in place and purchase easements to protect homeowners. The expense, he noted, was more than $47 million.

In response to a question from Commissioner Ahearn-Koch, Flanagan of Aventon said that Sarasota County staff had told the project team that it would not be feasible to adjust the course of a canal on the 25-acre site to enable all of the structures to stand outside that noise contour.

Flanagan and Sarasota consultant Joel Freedman, who has been working with the project team, did testify that soundproofing would be provided in the buildings to reduce the interior noise by 25 decibels.

Additionally, Flanagan talked of the approximately $2 million in property taxes that the company would be paying the city annually, as well as the fact that the project would rid the area of the blighted remains of the dog track.

Flanagan also proffered indemnities to the city and to the Airport Authority in regard to any noise complaints, and Freedman told the commissioners that each resident of the complex would be provided formal notification of the noise issues at the site.

Along with the apartments, the plans call for a clubhouse, a pool, a grilling area, a “hammock garden,” a covered bar area and designated space for walking dogs.

One of two people who addressed the commissioners during the public hearing — Ed McCaffrey, who lives in a mobile home on land near the airport, talked of the difficulties he has engaging in conversation with his next-door neighbor just across a fence if a jet is taking off or landing.

In the winter, McCaffrey added, if he has his windows open, he cannot hear his television over the sound of aircraft departing or arriving. “There’s no television loud enough,” he said. “Not one.”

Final remarks

As they wrapped up their discussion, Vice Mayor Kyle Battie told his colleagues that he “did have reservations” about the fact that the complex will not provide affordable housing units, “because we are in a housing crisis.”

Yet, he continued, “I don’t want to see this property or the proprietor of it, you know, held hostage by the parameters that are placed around it. You know, I think the development, you know will serve a purpose to the greater community …”

Battie also acknowledged that he understood the Airport Authority’s position.

Ahearn-Koch emphasized the “health and safety risk” of allowing people to live so close to the airport. “The proximity to that runway is unprecedented,” she added, and the 2018 interlocal agreement that the City Commission approved with the Airport Authority called for “no more residential units or humans living in that proximity. This is what we agreed to.”

Ahearn-Koch also pointed out, “I don’t know how we can make interlocal agreements with other government entities, vote on them, and then whey they want to rely on them, we just change [them].”

“It is our job,” she continued, to protect the health, safety and welfare of city residents. “We swear an oath to this, and we know that this is a risk. We know it is.”

Commissioner Brody responded, “I just, um, find those comments to be extremely hyperbolic and, um, have to defend the idea that this commission is somehow putting people at risk.”

He noted that the commissioners had heard that day from a noise expert who testified that it would take hours of exposure to the noise levels that the Airport Authority team had cited before a person’s hearing was damaged.

Moreover, Brody pointed out, people will not be outside all day; they will be in their apartments. “I think common sense tells us it’s not a health hazard to be in some proximity near the airport.”

He also said that he concurred with remarks that Commissioner Alpert had made regarding the interlocal agreement with the airport — that the document was meant to prohibit construction that “would interfere with the actual operation” of the airport, instead of banning construction because of the effects of the noise.

Alpert herself said, “I just don’t think this is going to harm people. If it does, then can move out, and if people want to move in there, they’re aware of what’s going on.”

In making the last motion on the issue — for approval of the rezoning of the property and the site plan, Brody said of the project, “I think it’s kind of this moderate intensity, but very, uh, well done type of development that we see common throughout the country, not so much in our community. And I do think it’ll be an asset, particularly to those that live there.”

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