Live Local Act Changes 'Favorable To Developers' Approved, But Battles Likely To Rage On

The Florida Legislature passed broad changes to its year-old affordable housing law, closing what many developers and land use attorneys saw as loopholes that allowed local governments to block projects while adding more rules that municipalities could potentially leverage to hold back projects. 

The Florida House of Representatives passed the changes by a 112-1 vote on Wednesday, three weeks after the amendments to the law known as the Live Local Act unanimously passed the Senate. The legislation will immediately go into effect once signed by Gov. Ron DeSantis, and it includes provisions to give developers with existing proposals under the law the opportunity to amend their plans to fit within the new standards. 

“As written, it is definitely more favorable for developers,” said Keith Poliakoff, a land use attorney at Fort Lauderdale-based Government Law Group.

But Poliakoff said the broad changes only added “more confusion to the bill” that will ultimately give municipalities more ways to push back against proposals that the law aims to compel them to approve.

“Although some of the fixes were good, there are still so many open issues that there's no doubt that more litigation is going to ensue, that more municipalities are going to figure out ways to block it,” Poliakoff said.  

The Live Local Act first passed the Florida Legislature with broad bipartisan support last year and went into effect in July. It’s meant to spur the development of affordable and workforce housing through a mix of tax incentives and density bonuses. It also includes a rule that compels local governments to approve projects without a public hearing if they maintain at least 40% of units as workforce housing.

Among the most significant changes to the law passed by the Legislature as SB 328 this week was the addition of language that prevents municipalities from using floor-area ratio, a measure of density in a development commonly referred to as FAR, as a criteria to deny administrative approval of projects.

The omission of FAR was flagged by land use attorneys as a gap in the legislation when it initially passed as a way local governments could try to exercise control over the approval of projects. 

In the most high-profile example, Miami Beach used the lack of guidance on FAR to push back against Jesta Group’s planned redevelopment of the Clevelander South Beach hotel and bar into an 18-story residential tower. 

The new language added to the law compels local municipalities to administratively approve projects so long as the proposals don’t exceed 150% of the maximum FAR allowed under the area’s development codes if the project fits within the law’s other provisions. 

The Live Local Act applies to residential developments in land zoned for commercial, industrial or mixed-use that have a minimum of 70 units and set aside at least 40% of those units as units affordable for tenants making no more than 120% of area median income. In Miami-Dade County, that’s a salary of $86,760 for a single person, in Broward County it’s a $80,640 salary and in Palm Beach County it’s a $81,840 salary. 

Initial amendments proposed in January sought to remove industrial zoning from the law’s scope, but that change was ultimately walked back. Poliakoff said the first round of proposed amendments were mostly offered by local governments and that the Legislature reconsidered their impact on the law’s effectiveness. 

“The initial proposal was borne by the municipalities in an attempt to render Live Local useless,” he said. “All of those changes that they tried to make, including limiting where it can go, limiting the height, limiting the density, limiting its applicability, were all killed by the Legislature.”

The current law ties the maximum height of a proposed development to equal the allowed height of any building within a 1-mile radius. 

Amendments proposed in January sought to reduce that radius to a quarter-mile. The changes passed this week keep the 1-mile rule but exclude any existing buildings that received “any bonus, variance, or other special exception for height” as an incentive for development from being used to calculate a new project’s maximum height. 

Legislators also created new rules in the law for projects with at least 25 single-family homes on at least two sides of the proposed site. The legislation limits the height at those parcels to whichever is tallest between the site’s maximum allowed height under local zoning rules or 150% of the tallest adjacent building, but no less than three stories. 

The amendments passed this week also expand Live Local's reach into parking requirements for proposals near transit stops, which had previously not been addressed in the legislation.

It allows proposals within a half-mile of transit hubs to include 20% less parking than required by zoning in many cases and eliminates parking requirements entirely for mixed-use projects in transit-oriented development zones seeking approval under its rules.

Other changes were made along the margins that affect which sites qualify under the law and, in some cases, the minimum number of units. 

Projects within a quarter mile of a military installation cannot be administratively approved, and the law, once signed, will not apply to parcels directly under an airport runway or within federally determined airport noise zones. 

Properties in “areas of critical state concern,” which includes the Florida Keys and other environmentally sensitive swaths of the state, will only need a minimum of 10 units to qualify for consideration under Live Local Act provisions. 

Rep. Ashley Viola Gantt, a Democrat whose district includes Allapattah and other parts of Miami-Dade County, was the only state lawmaker in either house to vote against the amendments. A spokesperson at her office didn’t respond to Bisnow’s request for comment. 

The changes to the law do little to quash unease and pushback from local governments about the loss of control over project approval. In South Florida, Doral passed a six-month moratorium on any Live Local Act applications, which recently expired. Weston considered a resolution that would require public hearings for all affordable housing proposals. 

The latest high-profile fight over a Live Local proposal is playing out in Bal Harbour, where local officials in the wealthy neighborhood are pushing back against a plan to add more than 500 apartments to the Bal Harbour Shops using the law’s provisions. 

Local officials’ latest move to block the proposal is an ordinance that would ban developments from including different entrances for a project’s affordable and market-rate components.

“This session’s amendments to Live Local are just the start because municipalities and governmental agencies are going to continue to put roadblocks in the way of its implementation,” Poliakoff said. “I foresee that each year going forward there are going to be amendments made.”