ISLAMORADA -- Residents of neighborhoods surrounding the planned mile marker 83.2 Publix are asking the court to invalidate the Village Council's Dec. 12 approval of the market.
"Failure of a local government to adhere its own regulations constitutes a departure from the essential requirements of the law," wrote attorney Tucker Gibbs in the petition, which he filed in the Monroe County Circuit Court on Jan. 10.
The litigants in the case are Upper Matecumbe Key residents Lori Blair, Beth Kaminstein and Dan Phair. The Bay Hammock Owners' Association, which represents a neighborhood behind the Publix site, and the nonprofit KIPPS, or Keep Islamorada Profitable, Peaceful and Safe, which was formed to fight the Publix project, are also litigants. In addition to the village, the appeal names Equity Development Group, the Publix developer, as a defendant.
In the appeal, Gibbs makes several of the arguments he brought forth during the Village Council's five-hour hearing over the planned market in December.
He leads by asserting that Equity Development's application was incomplete because it didn't have a sign-off from the owners of the neighboring Fish Bowl property, upon which a portion of the market's parking spaces and vehicle routes lie.
"All owners and any person having a contractual interest in their land shall give their permission for application," Gibbs writes, citing village code.
Reached last Friday, Village Attorney Roget Bryan declined to comment on the case, saying he had not reviewed the lawsuit. But the council's December site plan approval is contingent upon Equity Development obtaining a cross-access agreement with Fish Bowl owner IAP at Islamorada.
Gibbs focuses the bulk of the appeal on his assertion that the Islamorada Planning Department used the wrong criteria to calculate the size of the proposed Publix at 28,000 square feet.
The actual size, he contends, is 37,000 square feet. When the proper square footage is applied, he says, the plan is 40 parking spaces short of village requirements. It also exceeds the village's 25 percent limit on how much of a property can be occupied by a business' floor area.
The village, Gibbs writes, erred by not counting interior stairways, entryways, storage areas and loading areas as square footage.
At the December hearing, Assistant Village Director of Planning Cheryl Cioffari asserted that what is relevant is the market's nonresidential floor area. Village code specifically excludes walkways, stairways and entryways from the nonresidential floor area definition, she said.
But Gibbs writes that the planning department misread the code. Such areas do count as square footage as long as they are indoors. It is only exterior, but covered, walkways, stairways and entryways that should not be part of the calculation.
Publix has been vying for a decade to gain entry into the village. The project drew split reactions at the Dec. 12 hearing, with public speakers who don't live in the immediate area of the planned market mainly supporting it and neighbors of the site mainly opposing it.
A Publix spokeswoman didn't return a call for comment Monday morning.
The Village Council approved the Publix 4-1, with council members stating that they had no option but to vote yes since it meets village requirements. Councilman Ken Philipson voted to oppose.