Citizen Appeal of Approval of the 465 Fifth Avenue South LLC Project – 3/14/16

Dear ONA Members and Supporters,
For those of you concerned about the potential for destructive redevelopment, we thought you would like this update regarding one of the controversial projects taking place on Fifth Avenue South. The 465 Fifth Avenue South LLC Project (the “Project”, where Café Luna, one of its tenants, is currently located) – was approved in November of 2015, by a 5-2 vote of city council after a four-hour public hearing. Mayor Sorey, and Council members Barnett, Saad, Penniman and Finlay voted for and Council members Heitmann and Sulick voted against this Project.
On December 28, 2015, two residents of the City of Naples filed an action in the 20thCircuit Court in Collier County to obtain court review and reversal of the City Council’s decision.  For purposes of this letter that action will be referred as the “Appeal”, and you can read that as “Petition For Writ Of Certiorari.pdf


The Issues in the Appeal:
The issues in the Appeal include the following:
1. The “Height” and number of “Floors” of the Project:
In the year 2000 citizens of the City of Naples adopted aCharter Amendment, limiting the height of commercial buildings to 3 floors AND 42 Feet (to the peak of the roof) above the first floor FEMA elevation (the “Charter Height Limitations”). 

The Project as approved by the City Council has one floor of underground parking and 3 above ground floors. The Appeal contends thatby virtue of allowing the underground parking, the building is in reality a 4 story building, contrary to the Charter Height Limitation. Additionally, the Appeal contends the Project as approved by the City Council is 49 feet in height exceeding the Charter Height Limitation by 7 feet.
2. The Parking Garage
In addition to the Charter violations, the proposed Project includes an underground parking garage which appears to have violated the City Land Development (Zoning) Code. The Project is located in the C1-A zoning district and the Fifth Avenue South Special Overlay (zoning) district. The Fifth Avenue South regulating plan identifies three (3) locations where parking garages are allowable and limits parking garages to these three specific locations. The location of the proposed parking garage at the 465 Fifth Avenue South Project is in conflict with the Fifth Avenue South Regulating plan i.e. it is not one of the three specific locations identified in the regulating plan.
Perspectives regarding the Appeal:
Although not raised in the Appeal, it is our belief that the approval of the Project is also inconsistent with a June 30, 2003 opinion of Robert Pritt, City Attorney, that another project where Mr. McCabe was a principal involving a 4th floor and exceeding 42 feet in height was in violation of the Charter Height Limitation. This opinion can be read here at pdf pages 3 – 4. Unfortunately City staff did not include this legal analysis in the public hearing agenda materials for the Project for either the Planning Advisory Board or the City Council,  as reported here in the Naples Daily News. The article stated that “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.”

This January the City Council was asked to redefine the meaning of “parking garage” in a manner that in our opinion would dramatically increase density and intensity of development in the Fifth Avenue Special Overlay District, and not improve parking for the general public. More on this in an upcoming newsletter.
Development pressures are not new to Naples. In the late 1990’s several large buildings were approved by the City Council despite vociferous opposition of the community. This led to a referendum drive in 1999 and 2000 – led in part by ONA – resulting in the addition of limiting language to the City Charter, the Charter Height Limitation, specifically reading:
“All commercial zoning districts in the City of Naples shall be limited to three floors and building heights of 42 feet to the peak of the roof, measured from the first floor, FEMA elevation. Commercial zoning districts shall include Highway Commercial, C1 retail shopping, C1A commercial core, C2 general commercial, C2A waterfront commercial, C3 heavy commercial, C4 airport commercial, Industrial, Medical, Office, Planned Development, Downtown, and any future commercial zoning districts that Naples may create.” (link here).
The stated purpose of the referendum to insert the Charter Height Limitation into the Charter by City residents was to prevent City Council from circumventing these constraints. Under Florida law, a City’s charter is its “constitution”, and Council may not pass ordinances or resolutions that violate the Charter. The only lawful way to amend this Limitation is by voter referendum; see Florida statutes Chapter 166.031 here.
However, since the passage of this referendum in early 2000, it is our observation and belief that City Council approvals and actions have gradually and increasingly ignored the clear language of the Charter Height Limitation, and allowed building heights to rise above 42 feet and to have more than three floors. Approvals have included such things as “embellishments” (building features higher than 42’ including roofed structures such as elevator shafts), reinterpreted FEMA first floor definitions, and proposed redefinitions of the meanings of such terms as “floor” and “parking garage” in the Code, all allowing denser and more intense uses of commercial property than otherwise permitted in our Land Development Code.
These incremental changes impacting the Charter language form the primary basis for the Appeal. The net result has been a deterioration in our zoning protections and an impending overdevelopment in the Fifth Avenue South. These changes will also impact the redevelopment of the CRA district, which is a subject for another newsletter, but you can find out more about it herehere and here.
In plain language, the impact of all these changes will be denser development, more people, more traffic and ultimately the continued destruction of Naples’ small town charm and character.

What to Do?
If you haven’t voted yet, please ascertain which candidates are most concerned about overdevelopment from our recent email on this subject and go the polls this Tuesday.
Most importantly, get involved and make a direct difference.

  • Attend City Council meetings and make your views known. City Council agendas are here (City TV schedule) and here (City Clerk’s page).
  • Attend Planning Advisory Board meetings and make your views known. Agendas are hard to come by, but may be found here (City TV schedule) or you can contact Robin Singer for information at her city email.
  • Contact City Council members (specific information here) and let them know of your concerns.
  • Support ONA’s Planning and Development Committee and help us monitor and intervene in the current redevelopment activities affecting Naples, including Fifth Avenue South and the CRA area. Please contact Lori Raleigh, the Committee Chair at her ONA email to learn how you can help.

A City Council that exercises restraint,  that investigates and plans carefully, and is concerned first and foremost about the residents and voters of Naples will be essential to avoid the destruction of the small town charm and character of Naples.
To volunteer or for more information, please contact us at
If you haven’t already, please join or renew your membership in ONA ( and consider contributing to our fundraising drive to be announced next month. We need the support of all concerned Naples residents, property owners and voters at this critical time.


Lori Raleigh, Chair, Planning and Development Committee
John Lehmann, President
Old Naples Association