Greg Stanley , greg.stanley@naplesnews.com; 239-263-47387:28 p.m. EDT October 25, 2016
The Beach Box Cafe will lose a parking exemption that could cause the restaurant and bar that anchors the entrance to Vanderbilt Beach to close its doors.
Collier County commissioners voted 3-2 Tuesday to revoke a parking exemption that allowed the Beach Box Cafe to add seating outside and expand into a former paddle board shop. Without the exemption, owners will have to either reduce seating from a capacity of 68 customers to seven or find room to install 31 more parking spaces.
The move could close the restaurant, co-owner Gary Brecka said just before the vote was taken.
“There will not be one parking space added or deleted because of this,” Brecka said. “Nothing has been moved or changed. The parking that is there is what has always been there. All this will do is put the Beach Box Cafe out of business.”
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Collier County commissioners, Penny Taylor, Tim Nance, Donna Fiala, Georgia Hiller and Tom Henning listen to arguments for and against the parking exemption for the Beach Box Cafe on Tuesday, Oct. 25, 2016, at the Collier County Commission Chambers in East Naples. (Photo: Katie Klann/Naples Daily News)
Brian Cross, a lawyer representing the Beach Box, said the store will sue the county to try to get the exemption back.
"Somehow they turned this whole thing into a debate about short-term rentals," Cross said. "The fact of the matter is the county improperly and illegally took away an APR (administrative parking reduction) without any evidence as to why and without giving my client due process."
Eleven nearby businesses and homeowners applauded the decision, saying Beach Box customers have been taking up parking spaces for their stores and condominiums.
“The area already has huge parking problems,” said Anthony Pires, a lawyer representing the nearby condos and business owners. “This is about a private business that wants to expand but can’t because of the property they own.”
Beach Box received the parking exemption in 2015 from Zoning Director Mike Bosi. The parking reduction was granted because the restaurant serves the 350,000 people a year who travel to Vanderbilt Beach, Bosi said. Those patrons are using the nearly 400 public parking spaces in a garage less than 150 feet away from the Beach Box and aren't necessarily driving to the restaurant as a destination, Bosi said.
Late this summer, Pires and homeowners pointed Bosi to a little-known and hardly enforced rule over county parking garages, which allows drivers to park in the garages for beach access "solely." Bosi said the strict code means that he couldn't use the hundreds of parking spaces in the garage in his consideration of the parking reduction for the Beach Box and withdrew the permit.
Beach Box owners appealed to county commissioners, saying that parking garage or not, the Beach Box serves walk-up customers who are finding parking for the beach, not their store.
During the appeal, co-owner Ralph Cioffi said they were renting out four condos above the restaurant to vacationers, which is a violation of county codes.
Commissioner Tim Nance, who voted with Donna Fiala and Penny Taylor to remove the parking reduction, said that shows the store was marketing itself as a destination.
"I'm concerned that its intended use is as a destination and not just ancillary use for the beach," Nance said. "It's problematic if you're advertising as a destination and operating facilities that are there for rental and lodging."
Complicating matters, commissioners voted unanimously Tuesday to change the parking garage rule that led to Beach Box losing its parking exemption in the first place. The rule now reads that parking garage spaces are to be used "primarily" for beach access rather than "solely." Even with the less strict parking garage rule, commissioners still removed Beach Box's reduction.
Commissioners Georgia Hiller and Tom Henning voted to allow the restaurant to keep its current seating with its current parking.
"This is ridiculous," Hiller said. "Even if we eliminated that parking garage, it wouldn't eliminate all people at the beach who would still have access to that restaurant. This is absolutely a takings."
In other business, commissioners also unanimously voted to sue CVS pharmacy and a landowner to try to recover $6.5 million.
Anthony Pires, the lawyer representing the business and property owners, speaks his case on Tuesday, Oct. 25, 2016, at the Collier County Commission Chambers in East Naples. (Photo: Katie Klann/Naples Daily News)
The payment, which also included landowner Realty Trust Group LLC, was made in 2014 in exchange for a slice of property to make room for an expanded intersection at Collier Boulevard and U.S. 41 in East Naples.
A jury awarded CVS and the landowner a total of $5 million for the loss of potential business revenue and rental income, and an additional $1.5 million for attorney fees.
That award was based largely on CVS' contention that the store would have to close because the county was taking away the land for 11 of its parking spaces and it no longer could operate on that site, county attorney Jeffk Klatzkow said.
But two years later, the CVS is still open.
“I don’t think they had any intent to close the darn store,” Klatzkow said. “Month to month the landlord is getting his rent, and month to month the cashiers are ringing up customers. They got money they said they were losing that they never lost.”
CVS either lied and knew it wasn't going to close or made a mistake by thinking it would have to close, Klatzkow said. In either case, county taxpayers should get their money back. Klatzkow said he will write a letter to CVS executives when he files the suit.
"Maybe they're not aware and it's just a local issue and we can get it taken care of," Klatzkow said. "We'll find out a little about CVS along the way."
The jury awarded CVS $1.9 million for loss of potential revenue at the store and gave Realty Trust Group $3.9 million for potential loss of rental income.
Any lawsuit filed by the county would be unfounded, CVS spokesman Michael DeAngelis said.
Florida law requires juries to assume the worst-case scenario for any property owner and tenant when their land is taken by eminent domain, DeAngelis said.
"We have, in fact, seen a business impact at our store location due to the reduced access and reduced parking that resulted from the taking," he said. "We continue to evaluate the long-term impact on the store’s business and whether to keep this location open."
The store is still operating on a month-to-month lease with the landowner, DeAngelis said.
The county has more than 150 eminent domain cases pending, Klatzkow said.
"We need these property owners to know they will be more than fairly compensated, but they can't lie to make claims that don’t exist," he said. "It undermines the whole issue."