Electronically Filed 11/11/2013 05:01:23 PM ET IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION NEAPOLITAN ENTERPRISES, LLC, Plaintiff, v. THE CITY OF NAPLES, . Case No. 12-02607-CA BUILDING LLC, and BROAD AVENUE LLC, Defendants. FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiff, NEAPOLITAN ENTERPRISES. LLC (hereinafter by? the through its undersigned attorneys,? sues Defendants, CITY OF NAPLES (hereinafter??ClTY?), OLDE: NAPLES BUILDING LLC and BROAD AVENUE LLC (hereinafter ?the Owners of the. for declaratory and injunctive relief and alleges: INTRODUCTION 1. The CITY has, without affording interested parties an opportunity to be heard at a public hearing, made an illegal administrative determination that the ONB could operate as a restaurant without providing any off-street parking even though the Land Development Code requires the ONB to provide at least 76 off-street parking spaces to operate theproperty as a restaurant. The 76 parking spaces that were not provided - butwhich the CITY's code identi?es as the amount needed for an intense use such as a restaurant represents over 1/3 of all the public parking currently available in the entire Third Street Commercial District. 2. This determination will cause enormous harmful impacts on adjacent property owners (who have provided the required parking), residents and other interested parties. Although the CITY Code requires the CITY to grant all interested parties an opportunity to be heard on any zoning matter of this magnitude, CITY staff made the determination in theface of Page 1 of 20 compelling contrary evidence (including the own records), and without any public. hearing granting interested parties the opportunity to be heard. This parking determination was an ultra vires action on the part of CITY staff, which was encouraged by ONB, and a breach of the public trust, and shouldbe found to be null and void ab initio because the CITY violated the Land Development Code and lacked the authority under the Code to issue such a determination in this manner. PARTIES AND STANDING 3. Plaintiff, NEAPOLITAN, is a limited liability company organized and existing under the laws of the State of Florida and has its principal place of business in Collier County, Florida. 4. Defendant CITY is a Florida municipal corporation, is a CITY Manager-Council form of government, and is governed by a City Council consisting of seven (7) elected members. 5. Defendants OLDE NAPLES BUILDING LLC, and BROAD AVENUE (collectively referred to as are both limited liability companies organized and existing under the laws of the State of Florida and are'the owners of the property and building known as the ?Olde Naples Building,? which has the following street addresses: 284 Broad Avenue South, 384 Broad Avenue South, and 1148 Third Street South all in Naples, Florida. 6. This Court has jurisdiction over this action pursuant to FlOrida Statutes 86.01. Venue is proper in this Court pursuant to Florida StatUte 47.011. 7. NEAPOLITAN, or its predecessor family-owned entities has, since the- early 1950?s, owned and been responsible for the development of a signi?Cant number of the properties that make up the Third Street Commercial District of d0wntown Naples and has an interest in preserving the character of the area and ensuring there is suf?cient parking to support all businesses located there. Page 2 of 20 8. NEAPOLITAN owns a number of properties in the Third Street Commercial District which are directly affected by the CITY?S-grant of an illegal parking credit to the Owners of the ONE, including, but not limited to the following properties which are eaCh located within ?ve hundred (500) feet of the ONE: 1186 3rd Street South, 1177 3rd Street South, 1181 3rd Street" South, 1204 3rd Street South, 1205 Street South, 1250 3rd Street South, 255 13th Avenue South. 9. Over the years, NEAPOLITAN has constructed more off-street parking in and around the Third Street commercial District than any other commercial property owner and currently provides more than twice as much private parking as all of the public parking in the entire area. 10. The issue of adequate off-street parking is a legally recognizable'interest and a, property owner?s legal interest in its own off-street parking facilities is suf?cient to grant standing to contest a parking variance granted to a nearby property owner. Exchange Investments, Inc.', v. Alachua County, 481 So.2d 1223 (Fla. 1st DCA 1985). FACTUAL ALLEGATIONSI A. The ONB Property is Nonconforming Under The Land Development Code Because it Fails to Provide Any Off-Street Parking Spaces. 11?. Prior to 1947 the CITY had" no zoning. ordinances orland development codes which required property owners to provide off-street parking. 12. The ONB was constructed in the CITY in 1921 before the CITY adopted zoning ordinances or land development codes. 13. in 1947, the CITY adopted its firstLand Development Code, (?the CITY which required private property owners to provide off-street parking for property based on the use category of the property. 14. The current still requires all businesses to provide off-street parking spaces based on the category of use, of the business property. Page 3 of 20 15. Among the categories of use in the CITY LDC for parking purposes are the categories of retail, commercial, grocery and restaurant. 16. The CITY LDC has always required grocery and restaurant uSes to provide more parking than retail and commercial uses. 17. At the time the CITY LDC was adopted in 1947, and at all times up through and including the present, the ONB has not provided any off-street parking spaces. 18. Under the CITY LDC, properties may be excused from complying with the zoning provisions in the LDC if either (1) theproperty owners obtain a Variance from the requirements in the CITY LDC, or (2) the property is a nonconformity otherwise in compliance with the CITY LDC. 19. Section 46-37 of the CITY LDC governs variances to zoning requirements. Importantly, the CITY LDC de?nes a variance as a relaxation of the zoning and land development provisions of the LDC. 20. To obtain a variance,?the CITY LDC requires that an owner ?le a writtenpetition, after which the CITY manager must notify owners of property located within 500 feet of the outer limit of the property described in the petition, and that then both the Planning Advisory Board and City COuncil must hold public hearings on the petition in accordance with proCedures for quasi-judicial proceedings. CITY staff, such as the Planning Director, can only issue administratiVe variances where the deviation from the regulations is minimal, that is, not exceeding ten percent. 321?. ?Nonconformit[ies]" are de?ned in the CITY LDC as ?a lot, structure or use of land, or any Combination thereof, which was lawful before government action but no longer meets the regulations contained in this Land DevelOpment Code because of said government. ac?onf 22. Section 46-35 of, the CITY LDC provides that such nonconforming uses may be continued but that ?[e]xcept as othenivise provided by this section, no nonconformity shall be Page 4 of 20 expanded, enlarged or changed to a. different nonconformity except upon recommendation of the Planning Advisory Board, after a public hearing with due public notice, and approval of the City Council. . . 23. The CITY LDC also provides that a nonconforming use exemption from the CITY LDC requirements can be lost, stating in section that, for any reason a nonconforming use of land or of a structure ceases for a period of more than 12 months, the land or structure shall not thereafter be put to a nonconforming use. -. . 24. ln'addition to these provisionsdealing speci?cally with nonconforming properties, section 50-101(d) of the CITY LDC, makes it clear that if an owner of any property (nonconforming or conforming) changes the use of a building or land. ?additional off-street parking and loading facilities shall be provided to the extent that the off-street parking or loading required by this article for the new use exceeds the off-street parking or loading for the previous use." 25. At the time that the CITY LDC was adopted in 1947, the ONB was being used for commercial use. It was not being used as a grocery or a restaurant at that time. 26. At the time that the CITY LDC which required off street parking was adopted in 1947, the use of the property for commercial purposes without providing off-street parking became a ?nonconformity? because under the Land Development LDC the ONB 'was required to provide off-street parking and did not proVide it. 27. More speci?cally, the ONB property became nonconforming in 1947 because while its use for commercial purposes without providing any off-street parking was lawful before the CITY adopted the parking requirements in the CITY LDC in 1947, its use for commercial purposes would not have been lawful thereafter because it failed to provide any off-street parking. 28. Accordingly, from 1947 fonrvardthe- use of the ONB property. withoutjoff-street parking became nonconforming and the use could not be expanded, enlarged or changed to a Page 5 of 20 different use without providing off-street parking except upon recommendation of the Planning Advisory Board, after a public hearing with due public notice, and approval of the City Council. 29. Furthermore, if for any reason the use of the ONB for commercial purposes without providing off-street parking ceased for a period of more than 12 months, the ONB property could no longer be used for any purpose even commercial without providing the off- street parking required by the LDC. B- The use of the ONB Property Cannot be Expanded or Enlarged Without Obtaining Proper Approval by the City Council - Which Has Never Occurred -- And the ONB Has Lost its Nonconforming Status Because Use of the Property Has. Ceased for Over Six Years. 30. From 1947 through the present, the ONB has not added any additional off-street parking spaces and continues to-have no off-street parking spaces. 31. From 1947 through the present, the ONB never obtained approval of the City Council to expand or change the nonconforrnity after a publichearing with due public notice. 32. More speci?cally, from 1947 through the present, the ONB never obtained approval of the City Council to change the use of the property from commercial to a more intense grocery use without providing any off-street parking spaces. 33. If, during the period from 1947 to the present, the ONB?changed its useof the property from commercial (which is required to provide 1 parking space for every 300 square feet) to grocery (which is required to provide 1 parking space ~for every 100 square feet) without providing any off-street parking spaces, this expansion of the nonconforming use would have required approval of the City Council under section 46735 of the CITY LDC. Without such approval, the change in use without providing the required parking would have been illegal and a violation of the LDC. 34. In addition, if during the period from 1947'to the present, the ONB changed its use of the property from commercial (which is required'to provide 1 parking space for every 300 square feet) to grocery (which is required to provide?1 parking space for every 100 square feet) Page 6 of 20 the off-street parking or loading required by this article for the new use would have exceeded the off-street parking or loading for the previous use and ONB would have been required to provide, additional off-street parking spaces in order to comply With LDC Section '50? 101(d). If ONB changed its use of the property from commercial to grocery without providing the additional off-street parking, this change would have been illegal and a violation of the LDC. 35. According to the own records, the nonconforming use that was permitted fer the ONB property was alWays a commercial use and was never properly changed to a grocery use. 36. In fact, in 1990 and ?1996 the staff gathered information regarding the current parking status of all Third'Street's existing buildings under the CITY LDC and compiled a report showing (1) the size and use of each building, (2) whether the properties were grandfathered nonconforming) and (3) the parking they were required to provide under the CITY LDC based on their size and use. 37. The report shows that the ONB (then known as the "Colonial Cheese Shop" Building) was listed as 5,020 square feet of space with a general commercial use. The property was identified as grandfathered nonconforming) because it had not provided the required parking. 38. The own records show that the CITY never approved the ONB property for use as a grocery and that its approved use wasfor general commercial purposes. 39._ The ONB became vacant in 2006 and has not been actively used as retail/commerCial oras a grocery/restaurant during the time period'from 2006 to the present, a period in excess of six (6) years. 40. Accordingly, the nonconforming use of the property without providing the reqUired off-street parking ceased for a period of more than 12 months, and therefore the ONB Page 7 of 20 property cannot now be put to a nonconforming use and instead must comply with the LDC provisions that require off-street parking. C. ONB Improperly Obtained Approval from CITY ,Staff? and Not City Council, -- to Expand its Nonconforming Use to Grocery/Restaurant Without a Public Hearing and in Violation of the LDC. 41. In November of 2010, Barbara Walker received notice of a Design Review Board hearing regarding proposed changes to the facade of the ONB. 42. The LDC clearly establishes powers and duties of the DRB, and the poWers delineated do not include the power to make zoning ?or parking decisions. 43. The DRB did not make any decision "on the issue of parking. 44. Thereafter, in March 2011, the owner of the ONB sought a limited building permit to perform some?stabilization renovations to the building. 45; The building permit application included a request for con?rmation of parking space credit calculations Submitted by the owners who claimed'the inclUded calculations were based on the building?s prior use as a grocery and were submitted to, ?secure the' parking nonconformity.? '46. In other words, the building permit application sought confirmatibn by' the CITY of the ONB's parking nonconformity, essentially asking the CITY to determine that it was allowed to operate as a grocery orrestaurant use in the future without providing any off-street parking spaces. 47-. On or about April 12, 2011, CITY Planning Director Robin Singer added a notation to the submitted plansstating that, ?Parking Credits asshown "on Page A10 have not been of?cially determined as of?4l12/11. Parking credits, if any, will be determined by the Planning Director." (gee Exhibit 1). 48. Through a series of public records requests to the CITY, NEAPOLITAN discovered that ONB was seeking con?rmation'from the CITY that it was entitled to operate as a Page 8 of 20 grocery or restaurant without providing any off-street parking spaces and NEAPOLITAN objected in writing to the CITY providing such con?rmation. 49. In particular, on April 12, 2011, NEAPOLITAN, by and through counsel, sent a letter to CITY of Naples Planning DirectOr Robin Singer. explaining, among other things. that (1) the ONB had been used for retail/commercial use: at the time the CITY enacted zoning and therefore its nonconforming use was as retail/commercial, (2) that the use of the property as a grocery or restaurant was a use that required'more parking than for a retail/commercial use. (3) that the own records shoWed that the CITY considered the property to have been used for retail/commercial purposes at all times since the enactment of zoning, (4) that if the property had been used as a grocery or restaurant it was done illegally without providing the proper increased parking required by the LDC, and (5) that the use of the property had been abandoned for more than twelve (12) months and under the LDC and the ONB had Iost?is nonconforming status and was now required to Comply with the CITY LDC and pr0vide off-street parking. 50. NEAPOLITAN subsequently sent multiple letters to the CITY objecting to the approval of the expanded parking and indicating that it was seeking a public hearing on the matter. 51. On May 19, 2011, NEAPOLITAN sent a letter to the CITY con?rming that'Robin Singer would not be approving the parking calcUIations submitted by the owners of the Olde Naples Building as part of "the Permit Application set 'of plans and that she?would determine those rights at a later date. NEAPOLITAN also asked for immediate notice of the issuance of any building permit?so that it could appeal the issuance of the permit with the 52. 13. 2011, CITY Planning Director Robin Singer provided a draft of her determination letter to counsel for NEAPOLITAN. The draft included ?a specific provision allowing for NEAPOLITAN to appeal the determination pursuant to Section 2?84 of the Land DeVelopment LDC. Page 9 of'20 53. The CITY subsequently issued the building permit to ONE without informing NEAPOLITAN that it was issuing the permit. 54. On September 2, 2011, CITY Planning Director Robin Singer Sent a letter to counsel for NEAPOLITAN that constituted the.?of?cial noti?cation of an administrative decision to approve the parking calculations supplied by the agent for the owners of the Olde- Naples Building. . and explaining the reasons why? the CITY accepted the owner?s parking calculatiOns.. 55. The Planning Director Robin Singer explained the basis of her decision as follows: Pursuant to Section 46-35, a non-conformity is a lot, structure or use of land, or any combination thereof, which Was lawful before government action but no longer meets the regulations contained in this Land Development Code because of said government action. The regulations are constantly changing and, when we review a new use of the building we assume the most recent use was properly established prior to being licensed and we allowa continuation of that use. For eXample, medical of?ces have-a higher parking ratio than other offices. If a medical of?ce is locating where there had previously been an accountantwe would require parking Calculations to con?rm compliance with the increased parking requirement. If a medical of?ce is locating where the prior use had also been a medical office, we assume that the parking issue had "been addressed prior to the establishment of the preVious use or that this is an existing non- conformity resulting from a change in the parking regulations since the use'was established and we do not require parking calculations or compliance with current parking requirements. In the case of the Olde Naples Building, we wouldlook at theUses most recently licensed on the premises for con?rmation that the parking needs ofgthe structure were met regardless of theamount of parking available on-site. While there are no spaces provided for this building, we assume that it was functional With a 76 space parking de?cit. As the uses of food sales are permitted in the district this is not a question Of a use nonconformity. In this. case the non-conformity is a building with inadequate parking. Section states that any nonconformity which becomes conforming shall not thereafter be changed to nonconformity. This means that should a use be established which requires fewer parking spaces, a use cannot be established thereafter that requires more parking spaces without complying with the established parking requirement at that time. Should any part of the building be voluntarily demolished it cannot be rebuilt without the required parking. The nonconformity cannot be transferred from one part of the building to another. (See Exhibit 2)(emphasis added). Page 10 of 20 56. The CITY LDC, however, does not give the CITY Planning Director the authority to am. that the cUrrent or most recent use of the property complies with the CITY LDC when reviewing an application for a building permit. 57. In making the assumption that the most recent use of the property, as that was represented by ONB, complied with the CITY LDC and was a proper nonconforming use, the CITY, with the encouragement of the owners Of the ONE, violated the LDC because it- did not apply the correct definition of nonconformity as stated in the .CITY LDC which requires the CITY to' identify the use which was lawful before government action but no longer meets the regulations contained in the CITY LDC because of the government action. 58. The CITY did not address the issue of whether the ONB's rights as nonconformity?had been lost because the non-conforming use of the property had ceased for more than 12 months. 59. In making its determination that the. was entitled to operate as a restaurant/grocery without providing any off-street parking spaces, the CITY did not follow the procedures included in section 46-35(b) of the CITY LDC pertaining the expansion of nonconformities that required recommendation of the Planning Advisory Board, after a public hearing with due public notice, and approval of the City Council. 60. In making its determination that the ONE was entitled to operate as a restaurant/grocery without providing an off-street parking spaces, the CITY did not follow the procedures included in section 46-37 of the CITY LDC pertaining to variances, which required for any variance or relaxation of the zoning LDC that the ONE ?le a petition, that notice be provided to property owners Within 500 feet, and that public hearings be held before the Planning Advisory Board and the City Council. 61. NEAPOLITAN ?led two administrative appeals of the decision with the CITY so that the matter would be heard by City Council, but the CITY staff Changed its mind that an Page 11 of 20 appeal was allowed, and refused to allow? NEAPOLITAN an appeal hearing before the City Council. D. NEAPOLITAN Sought Relief through a Petition for Certiorari and Was Denied Relief Because the Court Found that It Did not Have Jurisdiction Due to the Failure to Hold a Hearing. 62. NEAPOLITAN ?led a Petition for Certiorari in the Collier County Circuit Court on or about October 3, 201-1. arguing, among other'things, that the CITY had employed a flawed procedure to grant the variance which deprived NEAPOLITAN of due process and that the?basis of the decision to do so was not supported by competent substantial evidence. 63. The Third Street South Area Merchant?s Association, lnc.?led an Amicus Curiae? Brief in support of NEAPOLITAN. 64. The ONB ?led ?a response to Petition in which they argued that the Circuit Court did not have jurisdiction because the decision by the 0f Naples to?issue the building permit and con?rm the parking calculations did not result from a quasi-judicial hearing and?because the issues raised by NEAPOLITAN were nonjusticiable in any fOrm and could not be the subject of 'anyjudiCial action. The CITY ?led a response?which incorporated by reference the arguments of the Owners of the ONB and argued that certiorari review was not available to review what it characterized as an ?executive" decision. 65. On July 20, 2012, the Circuit Court rendered its decision in an Order Denying NEAPOLITAN's Petition for Writ of Certiorari (the ?Order"). In this Order, the Circuit Court concluded that it did not have jurisdiction to review Petition because the parking determination was made in the Singer Letter of Sept 2, 2011, which Was not a quasi- judicial event reviewable by petition for writ of certiorari. Page 12 of 20 E. The Second District Court of Appeal Indicated During Oral Argument that a Declaratory Judgment Was the Proper Avenue for NEAPOLITAN to Obtain Relief. '66. NEAPOLITAN ?led a petition for writ of certiorari in the Second District Court of Appeal in August of?2012 (the ?Second-Tier Petition"). The Court heard oral argument on the matter on August 6,2013. 67. At the Oral argument, Attorney Shubin, representing ONB, argued, among other things, that: ?[tlo the extent that an individual who is aggrieved by a decision of local government that is not quasi-judicial not quasi-judicial believes'that the local government or local government official acted in excess of their jurisdiction, in an ultra vires manner, to use Judge ,Silberman's characterization, the typical remedy is to bring an action for declaratory and injunctive relief in the circuit-court and to present evidence in a de novo hearing of the alleged actions in excess of the jurisdiction, also arguing that the actions of the local of?cials are arbitrary and capricious." 68. Judge Silberman of the Second District Court of Appeals noted during oral argument that, me, boiled down to its essence, the argument of the petitioner seems to be that the DRB and/or Ms. Singer acted inappropriately in granting a variance. And if that is essentially?the argumentcert as opposed to what the Sowa case and other cases say? You've got to sue for basically an ultra vires act and challenge it through?a dec action.? 69. Thereafter, on August 14, 2013, the Second District Court of, Appeals issued a per curiam opinion denying the Second-Tier Petition. COUNT (DECLARATORY RELIEF) 70. NEAPOLITAN realleges and incorporates by reference paragraphs 1 through 69 as though fully alleged herein. 71. There is a bona fide, actual, present practical need for a declaratory judgment. Page 13 of 20 72. The declaration concerns a present, ascertained or ascertainable state Of facts or a present controversy as to a state of facts. 73. An immunity, power, privilege or right of NEAPOLITAN is dependent upon the facts or the law applicable to the facts. 74?. NEAPOLITAN has an actual, present, adverse and antagonistic interest in the subject matter, in fact and law. 75. The antagonistic and adverse interests are before the Court. 76, The relief sought is not merely giving of legal advice or the answer to questions propounded for curiosity. 77. equitable and legal relations are affected by the CITY LDC provisions set forth in detail above and, in particular, by the interpretation of those provisions. 78. NEAPOLITAN has the right to have determined questions of construction and validity arising under 'such CITY LDC provisions. 79. NEAPOLITAN has the right to obtain a declaration regarding its rights, status and other equitable and legal relations under these CITY LDC provisions. 80. The administrative determination that the ONE is entitled to parking credits that allow it to operate as a grocery/restaurant use without proViding any off-street parking spaces as set forth above adversely affects NEAPOLITAN and other nearby property oWners in the Third. Street Commercial District because, among other things, patrons of the ONE will utilize parking provided by NEAPOLITAN and other nearby businesses and gives the OMB a distinct competitive advantage over NEAPOLITAN and others. 81. Based on the foregoing, NEAPOLITAN is entitled to declaratory relief as set forth below. WHEREFORE, NEAPOLITAN requests that the Court enter a declaratory judgment that includes the following relief: Page 14 of 20 A. A declaration that, to the extent that the Court ?nds that the Design Review Board granted any parking rights to the ONB, that the action of the DRB was an ultra vires action, and is therefore null and void ab initio, because the DRB does not have the authority under the CITY LDC to make zoning decisions regarding parking; B. A declaration that the CITY Planning Director?s administrative determination that the ONB is entitled to parking credits that allow it to operate as a grocery/restadrant use Without providing any off?street parking spaces is an ultra vires aCtion, and istherefore null and void ab initio, because such determination violated the LDC which requires that the non- conforming status of?a property be determined to be the use at the time government action is taken which in this case was in 1947 when zoning was enacted that required off-street parking; C. A declaration that the CITY Planning Director's administrative determination that the ONB is entitled to parking credits that allow it to operate as a grocery/restaurant use without providing any off-street parking spaces is an ultra vires action, and is therefore null and void ab initio, because the CITY Planning Director has no authority under section 46?35 of the CITY LDC to the most recent use of a property, as represented by the owner at the ONB, was properly established as a nonconforming Use and to automatically allow a continuation of that prior use; D. A declaration that the CITY Planning Director?s administrative determination that the ONB is entitled to parking credits that allow it to. operate as a grocery/restaurant use without providing any off-street parking spaces is an ultra vires action, and is therefore null and void ab initio, because such determination violated section 46-35 of the CITY LDC which provides that for any reason a nonconforming use of land or of a structure ceases for a period of more than 12 months, the land or structure shall not thereafter be put to a nonconforming use. . . and the nonconforming use of the land has in fact ceased for a period of more than 12 months; Page 15 of 20 E. A declaration that the CITY Planning Director?s administrative determination that the ONE is entitled to parking credits that allow it to operate as a grocery/restaurant use without providing any off-streetparking spaCes is an ultra vires action, and is therefore null and void ab initio, because it violates section 46-35 of the CITY LDC which provides that ?[e]xcept as otherwise provided by this section, no nonconformity shall be expanded, enlarged or changed to a different nonconformity except upon recommendation of the Planning Advisory Board, after a public hearing withdue public notice, and approval of the City Council. . . F. A declaration thatthe CITY Planning Director?s administrative determination that the ONE is entitled to parking credits that allow it to operate as a grocery/restaurant use without providing any off-street parking spaces is an ultra vires action, and istherefore null and void ab initio, because it violates Section 50-101(d) of the CITY LDC, which states that if an owner of any property (nonconforming or conforming) changes the use of a building or land, ?additional off-street parking and loading?facilities shall be provided to the extent that theroff-street parking or loading required by this article for the new use exceeds .the? off-street parking or loading for the previous use.? G. A declaration that the CITY Planning Director's administrative determination that the ONE is entitled to parking credits that allow-it to operate as a grocery/restaurant use without providing any off-street parking spaces is an ultra vires action, and is therefore nulland void ab initio, because it amounts .to a variance that violates section 46-37 of the CITY LDC which provides that in order to obtain a variance an owner ?le a written petition, after which the CITY manager must notify owners of property located within 500 feet of the outer limit of the property described in the petition, and that then both the Planning Advisory Board and City Council must hold public hearings on the petition in accordance with procedures for quasi-judicial proceedings. H. A declaration that the CITY Planning Director's administrative determination that the ONE is entitled to parking credits that allowfit to operate as a grocery/restaurant use without Page 16 of 20 providing any off-street parking spaces is an ultra vires action, and is therefore null and void ab. initio, because the CITY Planning Director?has no authority under the CITY LDC to issue a letter approving parking when a use has not been identified in the permit. I. A declaration that the CITY Planning Director?s administrative determination that the ONE is entitled to parking credits that allow it to operate as a grocery/restaurant use without providing any off-street parking spaces is an ultra vires action, and is therefore nulland void ab initio, because it?amounts to an administrative variance that violates section 46-37?of the CITY LDC which provides that no administrative variance can be issued that involves a deviation of more than 10% Under the CITY LDC. J. An award of costs of this action to and K. Grant NEAPOLITAN such other and further relief as the Court may deem just, proper and necessary. COUNT ll (INJUNCTIVE RELIEF) 82. NEAPOLITAN realleges and incorporates by reference paragraphs 1 through 69 as though fully alleged herein. 83. NEAPOLITAN has a clear legal right to injunctive relief as relief supplemental to the declaratory relief sought in Count I above. 84. NEAPOLITAN will suffer irreparable harm if it is not granted permanent injunctive relief preventing the CITY and/or the Owners of the OMB from taking action pursuant'to the parking request granted by the CITY. 85. NEAPOLITAN has a substantial likelihood of success on the merits of its claims. 86. NEAPOLITAN has no adequate remedy at law and must seek injunctive relief in order to prevent the CITY and the Owners of the ONE from taking action pursuant to the parking request granted by the CITY. Page 17 of 20 87. An injunction will serve the public interest. .88. Based on the foregoing, NEAPOLITAN is entitled to injunctive relief as set forth below. WHEREFORE, NEAPOLITAN requests that the Court enter an injunction that includes the following relief: A. An injunction enjoining the CITY. OLDE NAPLES LLC and BROAD- AVENUE LLC from constructing, building or operating any project on the property that relies on the illegal parking credit to comply with the parking statutes, or issuing a permit for any such project; B. An injunction ordering the CITY to withdraw its granting of the parking credit and. any permit based on the parking credit; C. An injunction enjoining the CITY from granting and OLDE NAPLES BUILDING LLC and BROAD AVENUE LLC from being granted, any parking rights for the Olde Naples Building based on any alleged prior use as a grocery or restaurant; D. An injunction enjoining the CITY from granting and OLDE NAPLES BUILDING LLC and BROAD AVENUE LLC from being granted any parking rights for the Olde Naples Building based on any prior use because any such prior uSe has been abandoned; E. An award of costs of this action to and F. Grant NEAPOLITAN such other and further relief'as the Court may?deem just, proper and necessary- Page 18 of 20 Respectfully submitted, WOODS, WEIDENMILLER MICHETTI, P.L. By: Ca?nyWe??erfniner Florida Bar No. 521035 Gregory N. Woods Florida Bar No. 17550 5150 North Tamiami Trail, Suite 603 Naples. 34103 (239) 325-4070 Telephone (239) 325-4080 Facsimile 7 AttOrneys for Plaintiff Neapolitan Enterprises, LLC LAW OFFICE OF MICHAEL D. MOORE, PA Michael D. Moore. Esq. Florida Bar No. 812850 9225 Gulfshore Drive North Naples, FL 34108 Fax: (239) 597-2199 Co-Counsel for, Plaintiff Neapolitan Enterprises, LLC By: Page 19 of 20 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing First Amended Complaint for Declaratory and Injunctive Relief has'been served by facsimile and e-mail on this day of November 2013. to: Richard D. Yovanovich, Esq. Deana D. Falce, Esq. Coleman?Yovanovich Koester, P.A. . Shubin Bass, P.A. 4001 Tamiami Trail North. Suite 300 46 S. W. First Street, Third Floor Naples, FL 34103 Miami. FL 33130 Fax: (239) 435-1218 Fax: (305) 381-9457 Email: Email: jshubin@shubinbass.com cykservice@cyklawfirm.com eservice@shubinbass.com Kevin J. Jursinski, Esq. Law Of?ce of Kevin F. Jursinski Associates 15701 S. Tamiami Trail Fort Myers, FL 33908 Fax: (239) 337-5364 Email: kevin@KFJLaw.com Nicole@KFJLaw.com David C. Potter, Esq. Fowler White Boggs P.A. P. 0. box 1567 7 .FOrt Myers, FL 133902 Fax: (239) 425-6390 Email: Marilynmiller@fowlerwhite.com Michele.adams@fowlerwhite.com woons, WEIDENMILLER MICHETTI, P.L. Casey Wdea?f?iller/ Florida Bar No. 521035 Gregory N. Woods Florida Bar No. 17550 5150 North Tamiami Trail. Suite 603 Naples, FL 34103 (239) 325-4070 - Telephone (239) 325-4080 Facsimile Attorneys for Plaintiff Neapolitan Enterprises, LLC Page 20 of 20 a min? .A . :7 '3 L34 ifaka. '1 -: r; 4533a? PLANNING DEPARTMENT TELEPHONE (239) 213-1050 .. (239)213-1045 295 Rivaastna Ctaeus . FLORIDA 34102-1401 September 2,201 D5 Moore 9225 Drive North Naples, FL 34108 Re: Objection to LandDevclopment Code Interpretation Dear Mr. Moore: This letter [is sent to your letters concerning the interpretation of. the Land DevelbpmentCodc with respect to parkingrequirements for the OlderNaples Building located; StreetSoI-ith, .1 154 Street South What followsiisthe analysis? of. the pr'o'posedpr?ojectrand a reSanse?to your interpretation ofthe application of the eode, In your letter you assert the fellowing: that the. previous use of the property had b'een'fOr a retail Operation ratherthan-?a gr0cery store or restaurant; that the.baleonystorages?pace was not useable and ?ie?reforeshould not?bei_calculated as part of their sq'uare foeta'ge; that the parking credited to a buildingis dependent on the use established when the building was built change in the usegshould have requireda corresponding adjustment to parking as required? by code;:and that theiackhof parking forthe Olde Naples Building isause non-conformityand, as such, the discontinuation of the Use of the property should result in a lost of the grandfathering of the parking. A copy Ofyour letter was. prOVidcd to the agent for theowners ofthehproperty. They responded by providing a narrative describing their intended renoVation of the property and af?davits from localr'e'sidents attestingvto the previous use of the property. copy of that correSpondeneewas provided to you in response toyour public recOrds request. The owners-also applied for. and received buildingpermits for the interior renovation of the preperty. While no speci?c use hasbeenudescribed-for the building after renovation, they have supplied parking ,calcu1ations relativeitothe previous uses on the property. The parking calculations are intended to apply the most intense parking ratio jasti?ed by the previous use, According to the City?s ?records and inspections, the most. recent use present on the property in the central and mezzanine SpaCe involved thesretailgsalesof food items 7/41? . . n/chw'm . . (?r/17V (IV. r/f. Exhibit 2 PageZ . . September 2011 including-.prepared fond for take out service. Smaller'spaces along both Third Street South and Bread Avenue Southwerc used'for the retail salesof art. Pursuant to-Section 44-8 of the Land Development of a grocerystore' (established by: ordinance in.1.97_9) is an establishment dispensing food. of any kind, other than bakeries, for consumptioaoffthepremises, and'havingra?gross ?oorsarea of 1,500 square feetior more. The-de?nition of restaurants,carryout and driveup includes restaurants specializing in shOrt-ordenfOodsan?d beVer?a?ges, including the'preparation offood to be taken out and consumed off The de?nition of; restaurantincludes the limitation that establishmentsdispensing foods of any kind the premises and havinga gross?oorarea of less than 1,500 square feetshall be considered as retail;SaIes establislunentsand nOt restaurants. The parking?requirement'fo?rboth restaurant and, grocery store is 1 space per. 100square~feet of ?gross?oor area, Based on these de?nitions, a' reviewofpreViouslicenses and an inspectionof the premises prior to interiordemolition it use of the centrallarea of the building was for theretail sales offOod items, ineluding'take-o'ut meals. The most recent occupationallicense or business tax receipt'listedrfo'r .1 148-35d Street South was. for for a take-outrestaurant and gourmet.foods.. It wasalsoapparent on inspection ofthe premises that the mezzanine area wasused for storage as accessory to the gourmetfood sales. As such, the parking requirement forthe portions of the establishment dedicated to take out and the retail sales of prepared food, which exceeds 1,500,3quare feet, was 1 space'per 100 squarefeet of ?oor area? The parkin'gtr'equirement for the other.retail-portionsofthe building,.most recently licensed as Island House Gallery, Florida?_Design and Stelen Inc. (art gallery) month have been I sp?ace.per.300 feet-ofgross-?oorarea. Based On the squarefootage calculations the total parkingrequirement for the building would have been 76 Spaces. I would agree that'parkingiisprovided bas?edon the needs atithc time of theissuance Of a building. permit orbusiness tax receipt,(formerlyoccupational license). However, over time codes change-as dointerpretations. written con?rmation that arbuilding was isstredja?licenseor permitbased is applied as written at the time that a determination is made. You Supplied the resultsot? a parking study which indicateda retail use of the Olde Naples Building. While I am analysis perforrned'by prior City staff, as shown in the documents provided by your of?ce,- the studies werenot done to speci?callyaddress a singlestructure an'd?it?s parking requirement. From Whatl?. can tell-these were. general district-wide parking studies and not a thorough analysis of the parking requirementsand needstfor. each building. To my'knowledge, this analysis is-the ?rst to be conducted in recent history speci?cally for thisbuilding and?use. Building permit recordsonly indic'atesigniand regro?Ofpermits?andinointerion work wherethe use or parking requirement may have been in question. Inthe City?s review of building permits and business taxreccipts we take into account the permitteduse ofthe'structure andthe most recent licensed use of the structurev.19. . [ha/3r. K74Mmyu (?xx/Ky Page 3 September 2. :201 1 Pursuant to anon-conformity is_ a lot, structure, or use ofland, or any combinationthereo'f; Which was lanul before?goveniment actionibu?tano longer regulations containedin thisLaad Development" Code because, of said govcnunen'tactioa ,The? City?s regulationsare-c0nstantly changingan'dwhen We reviewza'new Use of the building we assume the most recent usewasproperly established prior to being licensed and we allowa?c'ontinuation of that use. For example, medical of?ceshave a higher parking'ratio, than-other of?ces. If there had previously been'antaccountant, 'we would require parking calculations to cen?nncompliancewith the increased If amedical of?ce is locatingjawhere theiprior usehad also been a medical assume that the parking issue had been addressed. prior to the establishment of the, previous use or?that this is an existing noneconformity. resulting from achan'ge in the parking regulations since the use was established and we do not requireparking calculations orcompliance with current'parking requirements. Intthe case oftheOlde Naples would look at theluses, most recently licensed on the premises fer con?rmation that the parking-needs of the structure were met regardless of thcamount ofparking?ravailable on-site. While there are no spaces provided for-this building, we assumethat it. was ?mctional-with a 76 space parking de?cit. As the uses of. food salesare permitted inthe district this'is not a question?of a use non- conformity. In this case the nan-conformity is a buildinggwith'inadequate parking.- Se'ction that-anynonCOnformitywhich not" thereafter be changed to anonconfonnity. This means that should a established which requires fewer parking-spaces, a use cannot be established therca?er thatrequir'es more parking spaces Without complying With the established parking requirement at that time. Should'any-parttof the building be Voluntarily demolished it-ca'nnot'b'e rebuilt without the requiredparking. The?nonconfonnity cannot be transferred from one part of a building to another. Please accept this-letteras of?cial noti?cation of an administrative decision to approve theiparking calculationssupplied by the agent'for theowners ofthe Olde Naples Building indicating a parking de?cit for the last permitted use of the property of 76 parking spaces and establishing the Olde Naples Building as a lawful nonconformity. As you are aware, theapplicabilityof a third party'appeal? of this administrative decision to City Council is under} dispute. ?fIf. yOu requireany additionalmaterialsor have questions regardi'ngthis letter, please contact'meior the City Manager. Sincerely, Robin D. Singer Flaming Director cc: A..William Moss Timothy Jones . . . .- . - . . - (v51, /r . (?xx/7y