What's Happened with the Two Lawsuits regarding Overdevelopment in Old Naples?

The Short Story: 

  • Zoning changes sought by developers and approved by City Council have allowed dramatic increases in the size of ongoing and planned developments on Fifth Avenue South.
  • These changes appear to have violated the City Charter and Florida Statutes, and have been challenged in court by local residents.
  • While the changes may be what the developers want, it is not clear whether such changes are what we – the residents, taxpayers and voters of Old Naples – would like to see in our neighborhood.
  • Please read the full story following the picture below, contact the names at the end for more information and how to get involved, and help maintain the small-town charm and character of Old Naples.



The construction site at 465 Fifth Avenue South


The Long Story:

ONA has received a number of questions about the status of the litigation opposing the project at 465 Fifth Avenue South. This project is also referred to as the Residences at Fifth and Fifth and was the former location of the Café Luna restaurant.

We recently met with Joan Fiore and Bob Martin, two Old Naples residents, for an update on the appeals they have filed regarding City approval of the proposed redevelopment project at 465 Fifth Avenue South. Their appeals concern conflicts with the City of Naples Charter, the Land Development (zoning) Codes and the State of Florida Statutes.

The First Appeal: Conflicts with the City of Naples Charter Regarding the Maximum Allowable Building Height and Number of Floors

This appeal was originally filed in December of 2015 concerning the maximum allowable commercial building height and number of floors, which are limited by the City of Naples Charter and Land Development Codes to 42’ and 3 floors. For many years the maximum height for buildings on Fifth Avenue was 35’. The City of Naples Charter Amendment approved in 2000, increased the maximum allowable height to 42’ (to allow for/including architectural embellishments) and restricted buildings to 3 floors.

The approval of the “Residences at Fifth And Fifth” project was challenged as being in conflict with the City of Naples Charter. The project as proposed with 4 floors and a height of 49’ substantially exceeds the 42’ height and 3 floor limitation in the City of Naples Charter.

The City of Naples and the lawyer for the owner (465 LLC) have spent the past year very aggressively challenging the lawsuit on “technicalities”. For several months the focus was on challenging the “standing” or the right of Martin and Fiore to bring suit. Most recently the City and lawyer for 465 LLC sought a Motion for Summary Judgment (dismissal) of the case arguing that Martin and Fiore failed to file the suit in a timely manner. The Motion for Summary Judgment was recently granted and we understand that Martin and Fiore have until early January to file an appeal.

It is very important to note that the case was dismissed on a “technicality” (which essentially came down to the definition of “development order”) and not on the merits of the case. To date the actual merits of the case (i.e. the issues of the potential conflicts with the City of Naples Charter and Land Development /zoning Code) —which appear to be compelling —have not been addressed by the defendants or heard by the courts.

The Second Appeal: Maximum Allowable Density

This appeal concerns procedural violations allegedly made by the City Council in approving a dramatic increase in residential density in the Fifth Avenue South area without proper public notification. Until February of 2015, the Land Development ( or zoning) Code limited the “density” (number of residences per acre) in the Fifth Avenue South Overlay district to 8 units per acre. In February of 2015, Ordinance #15-13608 was approved which allowed for densities substantially exceeding 8 units per acre.

Unfortunately, the public was not properly notified of this discussion and approval as is required by Florida Statute for significant zoning changes. The circumstances under which the text amendment 14-T6 (ordinance 15-13608) was approved raise many questions – because the record indicates that the language in the ordinance presented to City Council for approval was changed at some point after approval by the Planning Advisory Board. The process by which the density was increased – from 8 units to essentially limited only by parking – is also of concern.

This zoning change has had a major impact on the redevelopment of Fifth Avenue South. Since its approval 3 projects including the “Residences at Fifth And Fifth” (the former Café Luna site) in the Fifth Avenue South Overlay district have been approved with densities of 22-24 units per acre or nearly 3 times the allowable density per the zoning code prior to February 2015.

A detailed review of the process by which the maximum allowable density was changed is available here.

You can read the two most recent court filings regarding this appeal here and here.

What’s the Bottom Line Here?

These two appeals address fundamental (i.e. height and density) zoning issues that are substantially impacting redevelopment of the entire Fifth Avenue South commercial district in Old Naples. Martin and Fiore felt strongly enough that the City was violating the City Charter and Florida Statutes regarding these critical zoning issues that they needed to take legal action.

Whatever the outcome of these lawsuits, Old Naples residents should understand how directly and quickly such zoning issues can have major impacts on the small-town charm and character of Naples. In the last several years, changes in the zoning – and frequent variances granted – have dramatically eroded the protections we once enjoyed from overdevelopment in the commercial areas of the City. These erosions in the Fifth Avenue South Overlay district in particular include:

  • Heights exceeding the Charter maximum of 42’
  • Densities up to 3 times the 8 residential units per acre originally allowed
  • Mandatory zero setbacks on Fifth Avenue (versus the 10 foot minimum required per the underlying Fifth Avenue zoning code)
  • Lot coverage rising from 45% to 100% of the land area
  • Parking requirements “met” by the selling of “allocated (vs actual) spaces” in existing public garages – which are already full at peak periods in season.

These are the changes that have made the intensive redevelopment of Fifth Avenue South possible and economically viable. While it may be what the developers want, it is not clear whether such changes are what we – the residents, taxpayers and voters of Old Naples – would like to see in our neighborhood.

Where Do We Go from Here?

If you are concerned about the erosion in the Land Development Code and the resulting intensity of commercial and mixed-use development in Old Naples please let City Council know.

In the months to come, we will be highlighting these issues and their impact on our town, including scheduling a workshop early in 2017 for ONA members and local residents on the Comprehensive Plan review that governs our zoning regulations.

For Additional Information:

You can contact ONA’s President and Planning and Development Chair at the emails below .

You can contact the appellants Joan Fiore here and Bob Martin here.

Members of City Council can be reached via email as follows:

Bill Barnett, Mayor: mayorbill@naplesgov.com
Linda Penniman, Vice Mayor: lpenniman@naplesgov.com
Reg Buxton: rbuxton@naplesgov.com
Doug Finlay: dfinlay@naplesgov.com
Michelle McLeod: mmcleod@naplesgov.com
Sam Saad III: ssaad@naplesgov.com
Ellen Seigel: esiegel@naplesgov.com

Lori Raleigh, Chair
Planning and Development Committee

John Lehmann
President, ONA