Lawmakers Mull Major Changes To Landmark Live Local Act

Proposed changes to Florida's Live Local Act, which changed the landscape for housing development in the Sunshine State, are under consideration in the state legislature that would smooth out ambiguities in the law that have been used to push back on proposals. They would also tighten rules around project heights and the types of sites that qualify under its provisions. 

The amendments, which will be considered during the legislative session that kicked off Tuesday, offer a mixed bag to developers seeking approval under the new state of play created by Live Local.

“As with any major piece of legislation, the original bill that came out had a few flaws,” Javi Vazquez, a land use attorney at Berger Singerman, told Bisnow on Wednesday. “We are starting to see the beginning of some of the patchwork to fill the holes that were perhaps present in the original bill.” 

The Live Local Act, which passed the Florida Legislature with bipartisan support and went into effect in July, aims to boost the development of affordable and workforce housing through a mix of tax exemptions and rules that allow developers to sidestep some local zoning ordinances for projects with at least 40% of units set aside for residents making no more than 120% of the area median income. 

The most significant proposed change that would benefit developers is the addition of language that would prohibit municipalities from using floor area ratio, or FAR, as a factor to deny administrative approval of developments that would otherwise fit under Live Local’s provisions. 

In its current form, the law requires administrative approval without a public hearing for projects that, among other factors, fall below the maximum allowed density on any unincorporated land in the county where residential development is allowed. 

“When architects started putting pencil to paper, they started realizing that the FAR was limiting the situation to the point where they couldn't even come close to some of the contemplated heights and densities that were intended,” Vazquez said. “I think we will see an increase in applications with the FAR issue addressed.”

Miami Beach officials used the lack of guidance on FAR to suggest the denial of a proposal from Jesta Group to redevelop the Clevelander South Beach hotel and bar, a historic nightlife hot spot, into an 18-story residential development under Live Local’s provisions. 

The Canadian real estate investment firm, which acquired the Clevelander in 2018, had also relied on a provision in the law that tied the maximum height of some new housing developments to the tallest allowed height for a residential or commercial building within a 1-mile radius. 

Under those rules, Jesta said it could build as tall as 52 stories on the site in a neighborhood of low-rise art deco buildings.

But another proposed amendment to the law would reduce that radius to a quarter-mile and add restrictions that cap the allowable height on sites where adjacent properties are three stories or shorter.

For properties adjacent to low-rise buildings, the maximum height would be 125% of the height of the adjacent properties or three stories, whichever is greater. 

“I suspect that, in hindsight, [lawmakers] realized that the original radius of a mile may have been overreaching,” Vazquez said.  

Other amendments, filed under Senate Bill 328 and identical House Bill 1239, include the removal of industrially zoned properties from the list of allowable sites for residential development, meaning only parcels zoned for multifamily and commercial development could be used for new apartment buildings under the law.

The proposed amendments would also broaden the number of properties that qualify under the statute, which currently applies only to new construction, by including existing developments that have undergone “substantial rehabilitation.”

A carve-out in the changes to the law would also allow properties in places designated as “areas of critical state concern” with at least 10 units set aside for affordable or workforce housing to qualify for the tax breaks if they fit the rest of the law’s provisions, which require a minimum of 70 units to be set aside at properties throughout the rest of the state. 

Qualifying areas are governed by a separate Florida statute and include the Florida Keys, the Big Cypress area between Miami and Tampa, the Green Swamp area in Polk and Lake Counties, and the Apalachicola Bay area in Franklin County. 

The bill was filed in the Florida Senate by Sen. Alexis Calatayud, whose district includes a large swath of Miami-Dade County, and in the House by Rep. Vicki Lopez, whose district covers Key Biscayne and parts of Coral Gables. 

The passage of the Live Local Act was welcomed by Florida’s developers and was expected to lead to a wave of proposals. But several municipalities have pushed back on the law, which removes some of the control over development local governments previously enjoyed.

In addition to Miami Beach’s fight with Jesta Group over the Clevelander, the city of Doral passed a six-month moratorium in July on considering development proposals for any projects looking for approval under Live Local. 

In Broward County, an 18-story proposal from Condra Property Group for a beachfront condo and apartment complex in Hollywood is facing pushback. The city of Weston passed the first reading of an ordinance in June, before the law was in effect, that would require public hearings for all affordable housing proposals, seemingly in contravention of Live Local’s requirements on providing administrative approval for projects under its purview.  

Despite the moves to claw back control by some localities, developers are working on and submitting proposals for projects under the law. 

The most recent plan came earlier this week from Whitman Family Development, which owns the Bal Harbour Shops north of Surfside. The firm is looking to leverage the law to add to the luxury retail center a 20-story hotel and 600 residential units across three towers. 

The towers would rise around 275 feet, which a news release announcing the project says is “consistent with immediately adjacent buildings.” 

The plan follows an attempt in 2021 from the Whitman family to add to the complex by organizing a referendum that would have allowed them to bypass resident approval to secure additional height on the project. Residents overwhelmingly voted to reject the plan, The Wall Street Journal reported.