By Joseph Cranney of the Naples Daily News
Correction: An earlier version of this article misidentified the name of a petitioner's lawyer. It is Raymond Bass, not Robert Bass.
The Naples City Council went too far when it approved a downtown redevelopment project, violating the city's charter that limits the height of commercial buildings, according to a court challenge filed by the development's neighbors.
The project, proposed by local developer Phil McCabe, includes plans for a three-story building with commercial space, an underground parking level and condos on the 400 block of Fifth Avenue South. City Council voted 5-2 to approve the plan on Nov. 18, with council members Teresa Heitmann and Dee Sulick dissenting.
Joan Fiore and Bob Martin, who both own property downtown, filed the petition Monday in Collier County's 20th Judicial Circuit Court, arguing the council's action should be reversed because members didn't have a legal basis to approve the building's height or its plans for underground parking, which the petitioners argue is a fourth floor.
"The city council was asked to approve something over which it does not have the power," the petition states. "The parking garage also is requested for property in an area where it is prohibited."
The charter limits commercial buildings to three floors and a building height of 42 feet measured above elevation set by the Federal Emergency Management Agency.
McCabe's project calls for 10,300 square feet of commercial space on the ground floor and 11 condominiums on the second and third floors. The plan approved by council includes a building height seven feet above the charter limit.
"You are limited by the language of the charter," said Raymond Bass, attorney for the petitioners. "And the charter is very specific."
The project is virtually identical to another project on Ninth Street approved by council earlier this month. The recent string of redevelopment projects has concerned Old Naples residents and other frequenters of Fifth who worry downtown is becoming too exclusive.
McCabe's project will raze several popular eateries, including Café Luna, and other businesses on Fifth to replace them with retail. A citizens' petition against the project submitted to council in November included close to 300 signatures.
In the past decade, council has approved projects with elevations that skirted the charter by citing a building code that allows for chimneys, elevator shafts and other architectural amenities to extend a maximum of seven feet above the limit, or 49 feet total. The code allows architects to design buildings at maximum height without creating a downtown corridor of flat roofs, council members have said.
But Bass said council should be bound by the language of the charter in the same way Congress is bound by the Constitution.
Efforts to reach McCabe for comment Tuesday failed. But John Passidomo, his lawyer, said McCabe is confident council approved a lawful project.
City Manager Bill Moss said it will be up to City Attorney Bob Pritt to determine if council will discuss Monday's court filing at a future meeting. Moss said Pritt was out of town Tuesday.
City Councilman Sam Saad, chairman of the Community Redevelopment Agency, declined to comment.
Longtime councilman Bill Barnett said he doesn't recall a council development decision being appealed to the circuit court in at least 20 years. Barnett said he trusts Pritt to interpret the charter for council.
Barnett also noted council's lengthy deliberations during recent hearings, which have each lasted about four hours. Council has since held a workshop about underground parking and is planning a similar discussion on building heights.
"We didn't just lay down and say, 'Sure, here you are,'" Barnett said.