Downtown Naples property owners claim Fifth Avenue South condo project violates charter

By Joseph Cranney of the Naples Daily News

Two downtown Naples property owners fighting the city over a Fifth Avenue South condominium project have withdrawn their lawsuit and filed a new claim against the project, arguing the city issued a permit that violates building design codes.

The lawsuit filed by Joan Fiore and Bob Martin seeks a permanent injunction against local developer Phil McCabe's project on the 400 block of Fifth Avenue South. The lawsuit claims the city issued McCabe a permit that allows for the erection of a mixed-use project that will violate the city charter.

DOCUMENT: Read the new lawsuit filed against the project.

The lawsuit was a separate action from the action Fiore and Martin filed in December, appealing the council's approval of McCabe's project last fall. Fiore and Martin withdrew that petition last week after the city argued the petitioners didn't have standing.

The building department issued McCabe a permit earlier this month to demolish his old building, which included several restaurants and office space. In its place, McCabe got City Council approval to construct a three-story project above a level of underground parking. Fiore and Martin argue the project doesn't adhere to charter provisions on building height and building intensity.

"The building permit allows for a building that exceeds the building height and the number of floors allowed in a commercial zoning district as limited by the Naples Charter," the lawsuit claims.

The new lawsuit will allow a Collier judge to consider the issue on its merits, Fiore said.

"I'm not anti-development," Fiore said. "I think they should follow our current zoning and ordinance and regulations. Their requests are egregious."

Efforts to reach City Attorney Bob Pritt for comment Tuesday failed. John Passidomo, McCabe's attorney, declined to comment.

Passidomo and the city have argued the charter doesn't prohibit McCabe's building plans.

Fiore and Martin, who both live within a few blocks of the Fifth Avenue district, argue McCabe's development will cause a drop in their property values.

"As a result of the increase in density due to the nonconforming building height, number of floors for the building, placement of a parking garage and number of residential units allowed in the building, plaintiffs residential properties' values will be affected negatively," the lawsuit claims.

McCabe's plans for 11 condominium units on his half-acre property violates a downtown zoning rule that should limit the project to eight units per acre, the lawsuit claims.

"The permit … allows for the erection of a building with a parking garage and with residential units that will have a density that will exceed eight units per acre," which violates the Fifth Avenue Special Overlay District, the lawsuit claims.

But before the vote on McCabe's project, the council in February 2015 voted to change the rules that govern downtown building designs. The amendment adopted by the council added language to say that building density should be restricted by the number of parking spaces.

Fiore filed a separate lawsuit in March arguing the council voted on the amendment without properly notifying the public first. That lawsuit is still pending.

"In the end, I just want to keep Naples beautiful and we can ensure all the developers are playing by the rules," Fiore said.