City gives final approval to Aventon Sarasota in the face of legal opposition

Sue us now or sue use later. Or hopefully neither.

That was the warning Sarasota City Attorney Robert Fournier voiced to city commissioners Monday before they gave second-reading approval of the rezoning and site plan of Aventon Companies’ proposed 372-unit apartment complex at the former Sarasota Kennel Club.

On Aug. 15, by a 4-1 vote with Jen Ahearn-Koch opposed, commissioners gave preliminary approval to the site plan and the rezoning of the 25-plus acres across University Parkway from Sarasota-Bradenton International Airport. The future land use classification of the property was subject to final approval of the city’s comprehensive plan amendments, which occurred on Oct. 17.

The former kennel club closed in 2019 following statewide approval of a referendum to ban dog racing in Florida. Other than commercial truck parking and a COVID-19 testing site, the facility has been largely abandoned since.

Throughout the apartment community approval process, the airport has opposed the use. It has charged that allowing residences beneath the 65 decibel day-night average noise level (DNL) contour, even with FAA-required noise mitigation construction techniques, is in violation of a 2018 agreement between the city and the airport.

In late September, the Bradenton-Manatee Airport Authority Board of Directors authorized SRQ President and CEO Rick Piccolo to initiate legal action to invalidate the future land use change on the kennel club property, which would render moot rezoning the site for multifamily use.

Fournier suggested commissioners continue the final approval into January to allow for the first step of the legal challenge, and perhaps even negotiation between the developer and the airport to relocate the residential buildings outside of the noise contour.

Aventon’s attorney Scott McLaren made it clear that reconfiguring the site plan would make the project unworkable and is not negotiable, and that Aventon was entitled to a decision on Monday with a mid-December property purchase deadline looming. During a prior hearing, Aventon informed the City Commission it had already spent some $1.5 million in engineering and site plan work.

“We have to make an informed decision as to whether we can move forward by Dec. 14,” he said. “What would provide us clarity is the approval that we think we're entitled to.”

The airport has filed for a hearing before an administrative law judge, a two- to three-day process followed by written submissions and findings to be considered, focused on the agreement language between the city and airport authority. That decision could become final, or could be subject to appeal to the First District Court of Appeal. Pending that outcome, the airport may choose to file two additional lawsuits, both challenging the validity of rezoning and site plan approvals. 

According to Fournier, the first suit would likely allege the rezone and site plan approval was not supported by competent substantial evidence and that the wrong criteria applied (and other criteria ignored) in granting the approval. The second possible suit can be expected to allege that the approval of the rezoning and site plan is not consistent with the city's comprehensive plan. 

For now, the future land use rezoning of the site, Fournier said, is not in force.

“The future land use classification of this property right now is still community commercial. The reason for that is because the Sarasota-Manatee Airport Authority timely filed a petition with the State of Florida Division of Administrative Hearings to challenge the validity of a comprehensive plan,” Fournier said. “The ordinance approving a comprehensive plan amendment will not go into effect until this challenge now pending is over and it's finally resolved."

That means the rezoning and site plan ordinance approved by the commission on Monday will not go into effect unless and until the airport’s legal challenge fails.

“But if the Airport Authority’s challenge to the comprehensive plan amendment succeeds,” Fournier said, "then neither the comprehensive plan amendment nor this ordinance approving the rezoning and site plan before you today will ever go into effect.”

Approving the site plan and rezoning, which McLaren said Aventon deserves so it may continue planning, closed the door on further negotiation between the parties. Ahearn-Koch and Commissioner Liz Alpert urged continuing the final approval into January to “keep the door open,” to negotiation and perhaps avoid future potential lawsuits. Commissioner Hagen Brody countered that subsequent legal action is inevitable should Aventon and the city prevail.

“This is going to be litigated no matter what, and (airport) counsel was very clear at our hearing that this was going to be litigated. It really didn’t rest on nuances of the site plan,” Brody said. “My fear is that this property just sits there and decays forever and we could add to that problem by continuing it. There is going to be a legal challenge on the site plan and the comprehensive plan changes regardless of when we approve those.”

A motion by Ahearn-Koch to continue the issue until January failed 3-2. She was joined in the vote by Alpert, who then voted with the majority to approve the site plan and rezoning.

No date has been set for proceedings with the administrative court.