With only Ahearn-Koch voting ‘No’ on rezoning of property for apartment complex near airport, city attorney expects 2 new legal challenges from Sarasota Manatee Airport Authority

Developer says site plan cannot be modified to eliminate Airport Authority concerns

On Nov. 7, the Sarasota city commissioners were faced with the potential of three legal challenges if they approved the rezoning of property near the Sarasota Bradenton International Airport (SRQ), plus the site plan, for a proposed 372-apartment complex.

If they agreed to continue the second, required reading of those requests from a North Carolina-based company, City Attorney Robert Fournier explained, they would be looking at just one legal issue.

Although Commissioner Jen Ahearn-Koch made a motion to continue the rezoning and site plan hearing to Jan. 17, 2023, and Commissioner Liz Alpert seconded it, it failed on a 2-3 vote.

Then Commissioner Hagen Brody made a motion to approve the rezoning and site plan applications for the final time, and only Ahearn-Koch voted against it.

“This is going to be litigated no matter what,” Brody pointed out, referring to the opposition of the Sarasota Manatee Airport Authority to the plans for the apartment complex, which would be only about 1,500 feet from SRQ’s runway.

“My fear is that this property just sits there and decays forever,” he said of the site, where the Sarasota Kennel Club operated until a state ban on greyhound racing went into effect.

The address of the property is 5400 Old Bradenton Road.

“We could add to that problem,” Brody continued, “by really piecemealing the litigation and the appeals.”

Conversely, Ahearn-Koch stressed the comments that morning by City Attorney Fournier, who had explained that the Airport Authority had voted in late September to pursue a conflict resolution process against the city, as provided for in Chapter 164 of the Florida Statutes.

“You can negotiate in good faith if you have a door open,” she said. “I lean on the side of protecting the city,” she added, referring to the “very, very real” expectations that the Airport Authority would take other legal action if the commissioners that day approved the rezoning and site plan on final reading.

During his Nov. 7 remarks, Fournier also had reported on an initial meeting in the conflict resolution process, which was conducted on Nov. 1 with representatives of the Airport Authority. The parties had opted for mediation as the next step, he said, as allowed by state law, instead of first bringing together the city commissioners and the Airport Authority board members to discuss the issues.

Alpert did point out to her colleagues that, as a divorce attorney, she handles numerous contentious cases. She has gone into many mediations with clients, she said, “convinced that this is not going to settle,” only to find that agreement could be reached. “So I’ve got great faith in what can happen in a mediation.”

Yet, comments during the commission’s regular meeting this week indicated that mediation during the conflict resolution process likely would not prove successful.

First, Sean Flanagan, the senior development director of Aventon Companies of Raleigh, N.C., said the company is facing a Dec. 14 deadline to complete its purchase of the former Kennel Club property.

When Alpert asked whether the owner of the site would be willing to delay the closing, Flanagan replied, “Not sure yet.”

Second, attorney Scott McLaren of the Tampa firm Hill Ward Henderson, who is representing Aventon, pointed out that the potential relocation of apartment buildings on the site “is really not negotiable anyway … due to the cost associated with the canal on the west side of the property.”

Flanagan previously had told the city commissioners that Sarasota County staff had nixed the idea of adjusting the canal’s path to accommodate changes to the layout of the apartment structures and outdoor amenities.

The DOAH process

During his presentation at the outset of the Nov. 7 hearing, City Attorney Fournier also explained that, in October, the Airport Authority filed a challenge with the Florida Division of Administrative Hearings (DOAH), contending that the Comprehensive Plan amendment the commissioners approved on Sept. 6 to make the apartment complex possible is inconsistent with sections of that plan, which guides growth in the city.

Fournier added that the administrative law judge presiding over the case recently ordered the abeyance of it until early January 2023. Her decision, he said, was predicated on the potential that a settlement could be negotiated through the state conflict resolution process for governmental entities.

With their final action on the Comprehensive Plan amendment — only Ahearn-Koch voted against it — the commissioners modified the Future Land Use classification of the approximately 25.58-acre site near the airport. Formerly Community Commercial, the Future Land Use classification became Multiple Family-Medium Density. Aventon had applied for rezoning to the Residential Multiple Family 4 designation allowed under the latter classification.

Writing on behalf of the Airport Authority in a Sept. 2 letter to Mayor Erik Arroyo, Sarasota attorney Robert Lincoln pointed out that eight of the 13 proposed apartment buildings would be constructed in what is referred to as the “65 DNL Noise Contour.” The latter phrase means that the day and night average for noise generated by aircraft taking off and landing is 65 decibels.

Frederick “Rick” Piccolo, president and CEO of the airport, stressed to the commissioners during both public hearings on the Comprehensive Plan amendment that a strategy in the plan makes it clear that residential dwelling units should not be allowed in that Noise Contour unless they are absolutely necessary. Even then, he stressed, the developer would have to take steps to reduce the noise levels in the affected buildings by at least 25%.

Following City Commission discussion on Sept. 6, the rezoning and site plan ordinance was modified to include a new section, as Deputy City Attorney Michael Connolly explained in an Oct. 14 memo included in the Nov. 7 agenda packet. That section requires Aventon to provide formal notice to each tenant of the apartment complex of the site’s proximity to the airport.

Except for Ahearn-Koch, the commissioners agreed that the apartment complex is a necessity because it would add to the city’s housing stock and, therefore, could lead to lower rents. They emphasized that more and more people are being forced to live outside the city because rents are so high.

Yet, Piccolo put his emphasis on the fact that Aventon Companies has not proposed that any of the apartments would be priced at a level considered affordable according to Area Median Income levels that the U.S. Department of Housing and Urban Development (HUD) has set for Sarasota. Piccolo called Aventon’s design “luxury apartments.”

Fournier had pointed out to the commissioners before they approved the Comprehensive Plan amendment that the Airport Authority already had indicated that it would pursue a legal challenge to the amendment if that were approved. The commissioners’ “finding of fact” that the apartments are necessary to try to lower city rents would be the primary issue for a judge to consider in litigation, Fournier said.

The other expected legal challenges

During his Nov. 7 remarks, Fournier also pointed out to the commissioners that, until the DOAH proceeding was complete, the rezoning and site plan for the apartment complex would not be legally valid anyway, if the commissioners voted that day to approve them.

Moreover, he said, if the administrative law judge ruled that the Comprehensive Plan amendment changing the classification of the former Kennel Club site was inconsistent with existing city plan policies, that would make any rezoning or site plan approval moot.

He did acknowledge, though, that whatever the DOAH ruling was, it likely would be appealed by the losing party. Such an appeal would be filed with the Florida Second District Court of Appeal, whose jurisdiction includes Sarasota County.

Yet, McLaren, the attorney for Aventon, emphasized to the commissioners this week, “We have a right under [state law] to have this ruled upon now,” referring to the rezoning and site plan.

“We have to make an informed decision” by Dec. 14, McLaren added, referring to the closing date for the purchase of the property. “What would provide us clarity,” he continued, would be the board’s final approval that day of Aventon’s applications.

When Commissioner Alpert responded that the Airport Authority could prevail in its DOAH challenge, McLaren replied that his clients were willing to take that risk. “You can mediate after the approval,” he added, referring to discussions with the Airport Authority about the site plan.

At one point, Commissioner Brody said, “We would all assume that [Comprehensive Plan amendment] would be [ruled valid by the administrative law judge].”

Fournier also explained that if the commissioners approved the rezoning of the property and site plan that day, he expected the Airport Authority to file what is called a Petition for Writ of Certiorari. Such a filing in the 12th Judicial Circuit Court in Sarasota would seek a judge’s ruling that the approval should be overturned because the evidence and testimony that the commissioners had heard prior to their vote did not support their decision.

A second lawsuit, Fournier continued, likely would be filed, as well. It would ask that the court find the rezoning and site plan to be inconsistent with policies in the city’s Comprehensive Plan for the reasons that the Airport Authority has stated.

When Brody maintained that it would be better to let the Airport Authority pursue those other legal options, Fournier responded, “I’m responsible for a litigation budget. We’re talking about three more lawsuits blowing up here, all of which are probably going to last a considerable amount of time and be moderately to fairly expensive.”

Nonetheless, Fournier acknowledged the upcoming December closing date and Aventon’s unwillingness to modify the site plan. He was more optimistic that the conflict resolution process would have had a chance to succeed, he indicated, before he heard Flanagan’s and McLaren’s statements on Nov. 7.

“If we want to see this project happen,” Brody said, “we have to move forward.”

“I think you need to be conservative about our approach,” Commissioner Ahearn-Koch told her colleagues, referring to the legal issues. “Why add to those expenses?”

Fournier also referenced a comment that McLaren had made earlier: If the Airport Authority files the other two legal challenges that Fournier expects, the court will require mediation in the cases.

Fournier indicated that if the commissioners approved the site plan and rezoning that day, he doubted that court-required mediation would succeed. “I think it happens now, or it doesn’t happen.”