Five months after settling a lawsuit accusing city of Naples of enacting an illegal moratorium, Mayor Teresa Heitmann suggested the city put a pause on further development until it adheres to state law.

The discussion on Oct. 16 came minutes before City Council formalized that settlement, which allows Aspen, Colorado-based M Development to proceed with modified plans to redevelop a 4.32-acre parcel that’s considered the gateway to downtown.

The temporary pause wasn’t on the agenda but was added by the mayor at the start of the meeting — and opposed by Council and City Attorney Matthew McConnell, who said it wasn’t on the publicly noticed agenda and would require direction from the full Council.

“This is not something that I felt was something I could ignore, but it’s also something that is very concerning,” Heitmann said.

She referred to a state-required annual concurrency report, which requires public facilities, infrastructure and services needed to support development be available “concurrent” with the impacts of a development pending approval. The annual report hasn’t been completed by the city in more than a decade and is similar to the county’s Annual Update and Inventory Report on public utilities.

Although most council members balked at the suggestion, Vice Mayor Terry Hutchison thanked the mayor for bringing it up and asked the city attorney to assure them they weren’t breaking laws, as Heitmann suggested.

“I need to know that I’m acting lawfully in considering the items that we’re considering,” Hutchison said. “Are we completely covered in making the decisions that we’re making on land-use matters without this issue of concurrency and level of service being fully vetted by you?”

McConnell, who was hired this year, discovered Naples wasn’t complying with the annual report and provided Council with a detailed history of the law, which was enacted in 1985 and required concurrency requirements to avoid urban sprawl, development of areas without roads or infrastructure.

“The state found it inappropriate for the citizens to pay for those roads because people were turning farmland into developments,” McConnell explained, adding that after Naples resident Rick Scott took office as governor in 2011, he eliminated the state Department of Community Affairs, which was responsible for land planning and development.

It was replaced by the Florida Department of Commerce, which changed submittal requirements for cities to develop level-of-service standards — alleviating the need to address urban sprawl by establishing codes for concurrency. The law requires concurrency before developments are approved and ensures costs are paid by developers as impact fees, not by raising property taxes.

In 2014, Council discussed the standards and directed the Planning Advisory Board and planning staff to review concurrency requirements to determine if changes were needed based on the 2011 standards. That never occurred.

McConnell told Council he, City Manager Jay Boodheshwar and planning staff will complete an internal audit by January and present a proposed annual concurrency report to Council in February. However, he assured Council the city’s comprehensive plan addresses concurrency and staff vets every development.

“Maybe they need to change, maybe they don’t,” McConnell said. “This is an internal audit of our facilities to determine if we need to modify those, or if we are good-to-go with the level-of-service standards that have been adopted.”

McConnell said the city’s comprehensive plan includes an annual level-of-service report, which isn’t the same as the city’s adopted level-of-service standards, Chapter 48, which he called “very robust” and “well written.” It requires a yearly internal infrastructure review to be submitted to the Planning Advisory Board before Council adopts it.

The city must deny developments if the level-of-service standard and comprehensive plan hasn’t been met or if the city determines the project’s impacts would lower the level of service, he said, adding, however, that planning staff vets each development’s impact on infrastructure.

Other council members objected to discussing a pause without alerting the public before a meeting. And council member Ray Christman noted the city building official just advised them that more than 1,000 properties citywide were affected by Hurricane Ian, which prompted the city to enact the “ill-fated and inappropriate development moratorium” to preserve the city’s charm and prompted M Development’s lawsuit. Since then, he said, Naples was affected by several more hurricanes.

“You’re not just talking about stopping (new) developments from occurring,” Christman said. “You’re preventing homeowners who need to repair their properties in the short term from being able to exercise those rights, as well as people who just want to improve their properties — even if they weren’t impacted by a storm. … I have problems with us even discussing it or entertaining it, let alone implying it.”

He suggested Council allow the city attorney and planning staff to finish their audit and educate Council, so they can make “sound decisions.”

Heitmann explained she wasn’t suggesting a moratorium, just a pause, but emphasized that as elected officials, they must uphold the law.

“There were a lot of developers putting the fear out to our community and homeowners that they should sell, and it put our community in a frenzy,” she explained, adding that she wants to consider recent hurricane damage so they can make sound decisions moving forward.

Land-use attorney Clay Brooker, of Cheffy Passidomo, who was there to represent M Development, told Council that a pause on building, especially developments pending city approvals, would be illegal.

“Florida law does not allow a local government to stop development because it has not lived up to its obligations in ensuring that infrastructure is in place,” Brooker said. “… The city of Naples actually does have a concurrency program, and it is enforced. There are level-of-service standards on the books.”

He noted the city imposes impact fees, which have been collected for a decade, ensuring each development pays for infrastructure and impacts to parks, fire and police when building permits are issued. Brooker urged Council not to make a decision “on the fly” and to approve M Development’s resolution, which the settlement mandated be approved as soon as possible.