Magistrate Gives Naccarato 30 More Days

Key Estero owner Carmine Naccarato had his illegal parking lot case tabled until September while his attorney and the town submit new briefs to Town Magistrate Monica Schmucker.

Naccarato’s new attorney Amy Thibaut argued that the Key Estero property is a legal non-conforming use and has been since before the town was incorporated in the mid 1990’s. She went on to say that the town’s special exception ordinance was adopted in 1994 and was not retroactive.

The town has argued for years that Naccarato’s parking lot was to be used for tenants of the businesses. In other words they claim it’s a single-use parking lot. He’s been charging people who walk across Estero Boulevard to the beach for years, even when his plaza did have retail tenants. In other words he’s using it as a share-use parking lot. Town Attorney Nancy Stuparich said this is the first time Naccarato is claiming the lot is a legal non-conforming use and it’s inappropriate at this time to bring that up.

Under the old Lee County code, spaces were allowed to be rented out by the property owner. Naccarato’s attorney claims the parking lot has been used for renting spaces for over 40 years. At some point in the 90’s, after the town incorporated, that appears to have changed with spaces in the Key Estero parking lot mainly to be used for shoppers who come to the businesses in that plaza. The town now has specific rules that need to be followed to operate a revenue-generating parking lot. A previous Fort Myers Beach Town Attorney said Naccarato was unwilling to agree to a specific number of spaces to sell, that he wanted to use the entire parking lot. There are 122 spaces in the lot.

The town has clearly stated that it would consider allowing Naccarato to charge for parking if he applied for a special exception. That is a 60-90 day process that starts with staff, goes to the LPA, then to the Town Council. Up until now, Naccarato has never gone through that process which forced the town to put a lien on his property in September of 2020. That lead to the town filing a foreclosure lawsuit against Naccarato in 2022.

Naccarato basically admitted that what he’s been doing for years is wrong. He paid $188,000 in fines back in March which put an end to the lien process the town was pursuing after years of ignoring the code violations. It’s important to note that during his first round of violations, Naccarato appealed the Magistrate’s order to pay the fines to the Circuit Court in Lee County and lost. 

This week, Naccarato’s attorney also stated that whenever this became a violation Naccarato was unaware of it. Most people following this story from the beginning will have a hard time believing that statement.

The day after Naccarato paid his $188,000 in fines back in March he went right back to renting all the spaces in the lot.

Claiming they are putting forth a good-faith effort to work with the town, Naccarato’s attorney stated that a special exception application was submitted on July 11th. We were able to find a record of that application. Naccarato’s request is now to rent 88 of his 122 spots.

Naccarato’s attorney then threw a bunch of state statutes at the town which the town had never seen before, basically claiming Naccarato has always had a legal right to do what he’s doing now. The town really had no time to prepare for the onslaught of new legal information. This Tuesday was the first time Town Attorney Nancy Stuparich saw any of the new information. Special Magistrate Monica Schmucker gave Thibaut 10 days to file briefs about the new information and make her argument. She gave the town 10 days to respond to those briefs. Schmucker will make a final ruling on the matter in September.

If Schmucker finds in favor of the town, Naccarato’s $500 per day fines will be retroactive to March when the town reinspected his property. So far he’s racked up $70,500 in fines since he paid off the $188,000 in fines. The fines continue to accrue at $500 per day moving forward. The town wants to impose the max penalty allowed in their code – $500 per day – because they say Naccarato is a repeat offender. The only way the fines stop accruing is if he stops renting spots until the matter is resolved.

Naccarato did not attend the hearing Tuesday. During and after the meeting his parking lot was and is open renting spots.

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