By Joseph Cranney of the Naples Daily News
Naples City Council approved a controversial Fifth Avenue South redevelopment project last fall, more than a decade after a previous council rejected a near-identical concept based on an analysis that the plans violated the city charter.
By voting against a developer's request in 2003 to construct a three-story hotel above a level of underground parking, the council followed the opinion of its lawyer, Bob Pritt, who said the project likely violated charter limits on building design.
Last November, Phil McCabe — the same developer whose 2003 project was rejected — came to the council with his plans for a three-story building with underground parking on the 400 block of Fifth Avenue South.
This time, Pritt's 2003 legal analysis wasn't included in any public discussions about the project, nor is there any record that he was asked to give a new opinion.
The relevant history on the 2003 project and legal analysis of underground parking wasn't included in the council packet compiled by city staff, even though Planning Director Robin Singer led a council workshop on underground parking in 2005. The planning department recommended council approval in November of McCabe's project and said nothing to council of earlier analyses concluding a possible charter violation.
And Pritt, still the city attorney, didn't offer insight on the charter issue during a four-hour public hearing, either a discussion of his 2003 opinion or an analysis of how that opinion has changed. The council voted 5-2 to approve McCabe's project after Pritt said the evidence pointed toward approval.
"There was no competent, substantial evidence in the record today that I heard that pointed to a disapproval," Pritt said in that meeting.
A majority of council members said in recent interviews they would have voted differently if Pritt had said the project didn't adhere to the charter, like he did in 2003. The city is being sued by two downtown property owners who claim the council acted unlawfully when approving McCabe's project.
Pritt, in an interview, said he has long maintained the charter language is ambiguous at best. It's impossible to determine the law's intent since it was passed by referendum, Pritt said.
"I fell on the side of thinking that for what little historical legislative history that there might be … I thought there's a better argument, or the argument is equal, that the intent was it be a limitation of (development intensity) as well as strictly a limitation on height," he said.
And Pritt said he has been guided by the council's action in 2004, when a building at the Bayfront complex was approved with underground parking despite Pritt's 2003 analysis concluding it likely violates the charter.
"It doesn't matter whether my opinion has changed because council has adopted an opinion," Pritt said of the council's 2004 approval of a separate mixed-use project with underground parking despite a staff recommendation to reject it.
City Manager Bill Moss said staff typically looks for relevant history when presenting a project to council, but that practice can change when the council is consistent with an interpretation.
Singer said there was some staff-level discussion about McCabe's underground parking constituting a fourth floor, but she said the department defers legal questions to the city attorney.
"We take each project on a case-by-case basis," Singer said. "We don't necessarily go back and consider cases to be precedent setting."
John Passidomo, McCabe's attorney, maintained his stance that McCabe developed a lawful project that was approved in November by council. The project was also approved by the city design and planning boards. McCabe declined to comment.
"If we have to push it again now, if we have to litigate, I think it will come out the same way," Passidomo said.
The question is whether the level of underground parking should count as a building floor. A charter amendment passed by voters in a February 2000 referendum limits all commercial buildings to three floors, but it doesn't clearly say whether floors should only be measured above ground.
"The [charter] is ambiguous as to application to the number of floors where a structure begins below grade," Pritt wrote to the city manager in June 30, 2003.
Most members of the council say they didn't know or recall that the charter question has come up in the city several times before.
In August 2003, McCabe asked to build his three-story hotel above a parking garage as part of a planned development on Goodlette-Frank Road. Before the council heard the issue, Pritt wrote an opinion that said the underground parking constitutes a fourth floor and was likely a violation of the charter.
"I concur with your analysis that [the charter] would seem to prohibit such a garage on the basis that it does not meet the three-floor limitation," Pritt wrote in a 2003 email outlining his legal analysis.
Pritt interpreted the charter amendment to regulate development intensity, or a building's mass, and height.
"If it is fair to say that the provision is not only a height provision, but also a development intensity provision and if it is fair to say that the three-floor limitation is to be given its own ordinary interpretation, the conclusion is that a fourth floor is not allowed, albeit that it is below base-flood elevation," Pritt said.
The issue gave the council pause. Then-Councilwoman Penny Taylor agreed in 2003 with Pritt that the charter was meant as a development intensity provision. She said "the project does in fact contain four floors which would violate" the charter, according to meeting minutes.
After about two hours of discussion, a council motion was drafted to say the hotel plans adhered to the charter, meeting minutes show. The motion failed by a 3-3 vote, with one councilman abstaining. After the vote, the petition was withdrawn and the project was never approved.
In July 2003, Mayor John Sorey voted in favor of McCabe's hotel project as a member of the city's planning board. But he said in a recent interview he didn't remember reviewing underground parking before last fall.
City Councilman Bill Barnett was mayor in 2004 when the prospect of underground parking came before the council again, this time at Bayfront. City staff recommended that the council vote against the Bayfront project, citing the 2003 discussion and legal analysis on the rejected McCabe project.
"City Council deny Rezone Petition … based on previous action of the City Council and the opinion of the City Attorney that below grade parking constitutes a fourth floor and therefore violates the City Charter," the staff recommendation said.
But the council, exercising its right as the ultimate legal authority in the city, approved the underground parking anyway. Barnett voted for the project. Sorey, then a councilman, also voted to approve.
In a recent interview, Barnett didn't recall the Bayfront vote, but said, "Bob Pritt's advice should be heeded," and that if Pritt's opinion hasn't changed, he should have let the council know.
Teresa Heitmann, who is running for mayor against Barnett and Sorey, voted in November against McCabe's project, which is planned to start construction in May. Heitmann spoke out against recent redevelopment projects during last Monday's mayoral debate. She said "a powerful group of developers" has gained the council's favor and suggested the council should be more careful when considering building requests.
Heitmann said the council is often asked to vote on issues within a vacuum of information presented by Pritt and the city staff. She uses McCabe's recent venture as an example of why she is running for mayor on a platform of transparency.
"If we're not given the proper information for all sides, then council is being, I would say, misled in the facts to be able to determine again how to move forward for the best policy for the community," Heitmann said.