“Beneficial to developers”: Florida Legislature approves tweaks to Live Local Act

Amendments loosen floor area ratio restrictions for projects with affordable rentals

Government Law Group’s Keith Poliakoff and Berger Singerman’s Javier Vazquez (Government Law Group, Berger Singerman, Getty)

Florida lawmakers approved changes to the Live Local Act that are expected to benefit developers planning affordable housing projects.

The state House on Wednesday passed a slew of tweaks with a 112-1 vote, three weeks after the Senate first approved the changes. The legislation won’t be final until Gov. Ron DeSantis signs it into law.

The Live Local Act was approved last year to alleviate the state’s housing predicament. Although some Florida areas have struggled with an affordable housing shortage for decades, the issue was exacerbated starting in late 2020 due to an influx of out-of-state residents and record rent hikes. The crisis is especially pronounced in South Florida, a major recipient of the influx of residents, which experienced record rent hikes from 2020 to 2022.

The Live Local Act incentivizes construction of affordable and workforce-priced rentals by giving developers major tax breaks, as well as allowing them to build taller buildings with more units than allowed in counties and municipalities and whiz by local government approvals. Developers must designate at least 40 percent of units for rent at or below 120 percent of the area median income for at least 30 years to qualify under the Live Local Act. For mixed-use projects, at least 65 percent of the total square footage must be residential to qualify.

But last year’s law failed to address another project size restriction that counties and cities could invoke: floor area ratio. The floor area ratio, or FAR, is a general measure of a project’s massing through a ratio of a building’s total floor area to the development site’s size. Because the law failed to lift FAR restrictions, it rendered its provisions allowing for greater height and density useless, experts said. Also, last year’s law failed to provide exemptions for parking requirements.

“The local FAR requirements survived [in last year’s law], so no matter what density and height you were giving the developer, when they put pencil to paper, they were still being hamstrung by FAR requirements and parking requirements,” said Javier Vazquez, a zoning and land use attorney. “This year’s legislation definitely benefits the developer because the holes that existed in last year’s bill had to do with issues that were not thought through.”

Under the new law, Live Local Act projects can be 150 percent of the “highest currently allowed” FAR in the county or city where they would rise.

The latest amendments reduce parking requirements for some Live Local Act projects. Developments that are a half-mile from a major transportation hub or 600 feet from available parking such as a garage can get at least a 20 percent reduction of the required parking. A Live Local Act project that’s in a transit-oriented development could be built with no parking at all. In addition, counties and cities could consider allowing for less parking at Live Local Act projects within a quarter mile of a transit stop.

Since the Live Local Act’s adoption last year, many municipal elected officials and residents have been angered by the possibility that developers can bypass zoning and land use regulations. In South Florida, the contention is most pronounced in Bal Harbour. Whitman Family Development, owner of high-end Bal Harbour Shops, filed an application under the act to build up to 275-foot-tall towers with 528 residential units, a 70-key hotel and 46,000 square feet of retail at the 18-acre property. Following an uproar from Bal Harbour elected officials and residents, as well as officials from nearby municipalities, Whitman sued Bal Harbour after the village took steps the developer deemed counter to its project. The council had voted to allow the village manager to protect Bal Harbour’s quality of life.

Vazquez, of Berger Singerman, said that many developers held back from Live Local Act projects last year due to the legislation’s “holes.” He expects the tweaks to unleash a flurry of proposals and contention.

“One of the interesting things we will see now that Live Local is being cleaned up …. When developers start moving forward by right with developments that exceed the allowed local regulations, we will see more and more conflicts between municipalities and developers,” he said, adding that some cities still could welcome the proposals. Others “will push back hard.”

The amendments did give some protections to counties and cities angered by Live Local. If a project is surrounded on two or more sides by parcels zoned for single-family homes and near at least 25 contiguous houses, the project’s height will be capped to the tallest of either 150 percent of the tallest adjacent building, the highest currently allowed height on the site or to three stories.

Keith Poliakoff, a zoning, land use and development agreements attorney, said this year’s bill originally was drafted to curtail last year’s Live Local Act provisions and catered to municipalities’ pushback to the law. During the session, legislators “flipped it on them” and made the bill even stronger in favor of developers.

“It is beneficial to developers, but in my opinion may not go far enough,” said Poliakoff, of Government Law Group.

The amendments carved out an exemption for densities, heights and FARs, saying they can be over the “highest currently allowed” uses in cities and counties.

But they can’t be over those of other Live Local Act projects or developments that received special exemptions on densities, heights and FARs. This carve out should be scrapped, Poliakoff said, because otherwise “municipalities will make everything a special exception to prevent people from being able to use Live Local Act.”

Also, the amendments say that a Live Local Act project that fails to set 40 percent of its units at below market rates would be given a chance to cure the issue. But if it doesn’t, then it would simply be treated as a “nonconforming use” but doesn’t have to be knocked down, meaning no penalties will be levied on developers that don’t set units at affordable rates, Poliakoff said.

Future state legislative sessions are likely to pick up more amendments of the Live Local Act.

“This is not the last time you are going to see Live Local on the Florida legislative agenda,” Poliakoff said. “This is only the beginning.”

Article Link: “Beneficial to developers”: Florida Legislature approves tweaks to Live Local Act
Author: Lidia Dinkova