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Real estate matters remained a high priority for the Florida Legislature during its 2024 session, which wrapped up Friday with lawmakers making revisions to a landmark housing bill, imposing statewide vacation rental regulations, and taking further steps to shore up condominiums and community associations.

Here’s a look at some of the most notable changes lawmakers sent to Gov. Ron DeSantis’ desk — and one they didn’t.

Live Local Revisions

Arguably the signature piece of the 2023 session, the Live Local Act caught the attention of real estate developers with tax breaks, building-size bonuses, and the opening of commercial and industrial zoned sites for residential projects in exchange for including affordable and workforce units. But some local governments balked at preemptions of their approval powers, even enacting development moratoriums in response.

When the 2024 session opened in January, Senate Bill 328 looked like it might temper some of those concerns, but the final version that passed appears to do more to clear obstacles to Live Local projects by adding another preemption for floor area ratio, or FAR, which determines buildable square footage, and by reducing parking minimum requirements, while curbing allowed heights only in single-family neighborhoods.

Bill Sklar, a shareholder at Carlton Fields, said Senate leadership made clear to him they did not view S.B. 328 as a “glitch bill” aimed at fixing problems, but instead the first of what is likely to be a series of refinements to the Live Local Act over several years.

Keith Poliakoff, a partner at Government Law Group, also predicted further changes — and tensions.

“While this law attempts to clarify many aspects of the Live Local Act, municipalities are already crafting ways to thwart its effectiveness,” he said. “As a result, there is no doubt that this act will once again be amended next year.”

Vacation Rentals

After more than a decade of unsuccessful attempts, the Legislature passed a bill setting a statewide framework for vacation rentals, which number in the tens of thousands in the state and have become the scourge of some neighborhoods. Indicative of the measure’s controversial nature, S.B. 280 passed by narrow margins, 60-51 in the House and 23-16 in the Senate.

The law empowers the state to license vacation rentals and regulate “advertising platform[s]” such as Airbnb and VRBO, but it does allow local governments to require registration of vacation rentals, set reasonable registration fees and inspect rentals for code compliance. Local governments can also issue fines of up to $500 and suspend rental registrations for violations, but only after multiple violations within set amounts of time and after giving the owner 15 days to resolve the violation.

The new law maintains a “grandfathering” of local restrictions that predate 2011, when the Legislature preempted local regulations prohibiting or restricting the use of vacation rentals. The new law extended the “grandfather” clause to 2016, which amounted to a carveout for policies in Broward and Flagler counties, according to a legislative staff analysis, but the Senate did not pass a last-minute amendment to “grandfather” local regulations passed by June 1, 2024.

The law also sets requirements for advertising platforms to collect and remit taxes and sets occupancy limits for rentals.

Coastal Building Demolitions

The Resiliency and Safe Structures Act, which limits local control over the demolition and replacement of certain coastal buildings, represented another controversial initiative that crossed the finish line after previously falling short.

Opponents said S.B. 1526, which applies to buildings that are deemed unsafe and don’t conform to current National Flood Insurance Program elevation requirements, caters to developer interests and threatens the character of several historic coastal communities, including Miami Beach. But while such criticism killed a similar proposal last year, this time a similar set of carveouts added during the session built momentum and led to passage by 36-2 in the Senate and 86-29 in the House.

Government Law Group’s Poliakoff said that in the wake of more stringent flood plain management requirements, the inability to rehabilitate older structures up to those standards has left numerous coastal buildings vacant and turned them into a blight on the surrounding community.

“Some local governments are so concerned with maintaining community character that they have created major obstacles in getting these obsolete buildings reconstructed,” he said. “This law eliminates the politics by requiring local governments to approve demolition plans for these impacted buildings” and new projects up to maximum allowed heights.

Condos and Community Associations

The Legislature has been scrutinizing condominiums and community associations since the 2021 partial collapse of the Champlain Towers South condo in Surfside, which killed 98 people, and the 2022 arrests of current and former board members at the Hammocks Community Association near Miami over an alleged $2.4 million dollar fraud scheme.

Lawmakers’ latest work on these issues and others related to condominiums and community associations ended up largely combined this year in S.B. 1021, which passed unanimously in both chambers.

Among its many parts, the 154-page bill requires condo associations with 25 or more units to make certain records available on a website or mobile app, mandates the maintenance of additional accounting records, and establishes criminal penalties for willful failure to comply and destruction of records.

It also adds conflict of interest disclosure requirements related to the hiring of community association managers and bids for other services, and it provides additional criminal penalties for board members accepting kickbacks or interfering with elections.

“I guess after investigating what happened with the Hammocks, they realized that there’s a lot of shortcomings in protections for the homeowners,” said Kevin Koushel, a partner at Bilzin Sumberg Baena Price & Axelrod LLP, but he added these new requirements and penalties could have a chilling effect on finding residents willing to volunteer for association boards.

Following up on building safety reforms made in 2022’s S.B. 4D and last year’s S.B. 154, the Legislature added a requirement for board member education on the milestone structural inspections and reserve requirements established in those previous bills. S.B. 1021 also exempts four-family dwellings of three or fewer stories above ground from having to undergo the new milestone inspections.

But lawmakers notably did not extend the inspection deadlines at the end of 2024 for condos to complete their milestone inspections or take any steps to provide financing programs or assistance for condos.

“I think there was some hope, at least from a lot of the condo associations, that the deadlines would be extended or some additional ability to sign contracts and have the work deferred,” Koushel said.

“I wish they did, but they didn’t,” Carlton Fields’ Sklar said of the potential for financing help, but he said House Speaker Paul Renner, R-Palm Coast, felt strongly they “were not going to kick the can down the road” on the inspection and reserve requirements.

Lawmakers also rolled in proposals from two other bills to update definitions in the Condo Act to acknowledge the creation of condominiums within multi-use or multi-parcel projects, which is relevant to the growing trend of branded residences in condo-hotel and other mixed-use projects.

Additional provisions require clear declarations of how costs and control of those projects will be apportioned with these partial condos, and they mandate disclosures of these agreements for new and resale transactions of units.

“Those are, in my estimation, significant consumer protections that did not previously exist,” Sklar said.

Foreign Ownership Limits

One of the Legislature’s actions that drew the most attention in 2023 was the passage of S.B. 264, which severely limited land and real estate investment by people and interests tied to the People’s Republic of China and six other “foreign countries of concern.”

The Republican-controlled Legislature delivered on a top priority of DeSantis ahead of his ill-fated presidential run despite considerable controversy and questions about the law’s clarity. Some investors, especially private equity funds, have expressed concerns that noncontrolling members of a fund would be restricted individuals under the law.

Lawmakers looked into providing more clarity on certain parts of the law and potentially loosening some of the restrictions on Chinese individuals in S.B. 814, but DeSantis made clear during a press event that he opposed any backtracking, and ultimately no changes were made — leaving some attorneys and their fund clients looking for more.

“A lot of us are hoping that the administrative side, the bureaucratic side that’s making the rules and interpreting the rules can clarify that and maybe put out guidance that stresses that squarely enough that people will feel comfortable,” said Joe Hernandez, a partner at Bilzin Sumberg, who noted the firm has received calls since the law’s enactment from concerned fund clients.

–Editing by Haylee Pearl and Philip Shea.

Article Link: Top Real Estate Issues Tackled By Fla. Lawmakers In 2024
Author: Nathan Hale

Alan DiPietro merely wanted more land for his alpacas.

It was 2014, and the Massachusetts engineer had been raising a herd of the camelid mammals for half a dozen years and selling their fleece. Looking for more space for his alpacas to roam, he bought 34 acres in the contiguous towns of Bolton and Stow in eastern Massachusetts.

His idea was simple: With only minimal changes, he could turn that undeveloped land into an alpaca farm.

After falling behind on tax payments and facing a fine for an alleged wetlands law violation, however, the local government foreclosed on some of that land to make good on DiPietro’s debt.

That was December 2021.

“It was clear that they were going to take everything, but I had gotten myself to the land court hearings about the tax title foreclosure, and they said, ‘There’s nothing you can do about it. You need to get an attorney.’ And I said, ‘Well, I don’t think the attorney’s going to tell me anything different,'” DiPietro told Law360 in a recent interview.

Since then, the U.S. Supreme Court handed down a landmark decision finding a Minnesota county could not keep the excess equity it reaped after foreclosing on a woman’s condominium in order to resolve a tax lien.

While Massachusetts law similarly allows the state to keep excess equity in cases where the property is worth more than the debt owed, DiPietro is now going to court to get back what he alleges is more than $300,000 in excess value the local government holds.

State laws vary considerably on the practice, which some have dubbed “home equity theft,” with many outlawing the practice but some allowing it. The practice is common in the states that allow it, and a recent study by the Pacific Legal Foundation, which represents DiPietro in the lawsuit he filed against the town of Bolton last January, found governments have taken more than $777 million in equity from homeowners.

In the wake of the U.S. Supreme Court’s ruling last year in Tyler v. Hennepin County, however, states that permit the practice have seen a wave of new litigation from homeowners looking to challenge it and efforts by lawmakers to reform it.

The Pacific Legal Foundation told Law360 it has discussed reforms with legislators in Alabama and Idaho, and bills are planned or expected in Alaska, California, Illinois, Minnesota, Montana, Nevada, New York, Oregon and Rhode Island.

“We do believe that there are ripple effects and ramifications from the decision. We think they could go in various directions,” said Buck Dougherty, senior counsel at Liberty Justice Center. “Most of the work going on right now is happening in the legislatures in various states. … Everyone’s trying to figure out how they’re going to navigate Tyler and what that’s going to look like.”

Meanwhile, lawsuits challenging the practice have been filed in more than half a dozen states.

“It’s amazing to me that, even after the Tyler decision, that anyone can question whether they’re operating unconstitutionally,” DiPietro said. “It seems crazy that it can be different in the different states.”

Home Equity ‘Theft’ Reform Was Long in the Making

Tax-delinquent homeowners face vastly different experiences in states that ban home equity “theft” versus states that allow it.

For homeowners in the majority of states that have outlawed the practice, the process is quite simple: When government takes property through tax foreclosure and then sells it, the difference between sale price and debt owed must by law be returned to the homeowner.

But in Massachusetts, Minnesota and other states, homeowners have routinely been told, as DiPietro was, that there’s nothing to be done. The local government is simply following state law, which allows for the practice.

In short, whether falling behind on taxes wipes out a homeowner’s life savings in equity and upends their lives has been largely dependent on where they choose to live. And in states where governments are allowed to hang onto excess equity, it’s been the very low-income owners who have been largely impacted.

“Seventy-five percent identify as Black or African American, and 75% identify as having household incomes of less than $30,000,” Dougherty said.

The more than a dozen states that allow for the practice have raked in millions of dollars in the last decade alone, according to a report from American Property Owners Alliance, which found governments took $780 million in equity from homeowners from 2014 to 2021 through tax foreclosures on 8,600 homes.

The Supreme Court case that’s now called the practice into question comes out of Minnesota, where Geraldine Tyler fell behind by $15,000 in taxes and other penalties on her Twin Cities condominium.

When the government took the property and later sold it for $40,000, it pocketed the $25,000 equity difference. When Tyler sued, both a federal district judge and the Eighth Circuit on appeal found Hennepin County had acted within its rights under Minnesota law. The U.S. Supreme Court took the case in 2022 and decided in favor of Tyler in May 2023.

The high court found Hennepin County keeping that $25,000 difference was a violation of the Fifth Amendment’s takings clause, which bars governments from taking private property without just compensation.

The U.S. Supreme Court did not weigh in on the plaintiff’s allegation of an Eighth Amendment violation — that Hennepin County’s actions rose to the level of an excessive fine.

Bay State Has Seen a Flurry of Post-Tyler Activity

Long before the Supreme Court took up Tyler, DiPietro had been scrambling.

He had gone through a divorce and was facing a $26,000 fine for allegedly violating the Massachusetts Wetlands Protection Act as well as Stow and Bolton’s bylaws when he installed fencing and made other land improvements too close to an area of wetlands. He had also fallen behind on a roughly $6,000 tax payment, which later started accruing interest at a clip of 16% per year.

All told, by 2021, when the town of Bolton foreclosed on the land DiPietro owned there, his debts to the town had grown to roughly $60,000. The land in Bolton is worth $370,000 for tax purposes, leaving an equity difference of roughly $310,000 that the local government is holding.

When DiPietro learned the local government was taking his property and would not be paying him the difference between market value and debt owed, he naturally sought a legal opinion.

At the time, home equity “theft” was not grabbing national headlines, and a lawyer told DiPietro there was simply nothing to be done — that Massachusetts allowed the practice and the local government was following the law.

“I got an attorney, and he said, ‘There’s nothing you can do about it. Either pay or they take it. That’s just the way it is,'” DiPietro said. “He never raised any Fifth Amendment issue. He never raised anything about the constitutionality of the statute. Nothing. So nobody was helping. Nobody was thinking that way.”

Shortly after the December 2021 foreclosure, DiPietro got in contact with the Pacific Legal Foundation, which agreed to represent him pro bono. DiPietro filed his lawsuit against Bolton in January 2023.

“It’s a blessing to me because I could not afford that,” DiPietro said. “I couldn’t afford … a top-rate attorney, much less one of national caliber.”

DiPietro’s suit is just one of several cases proceeding in Massachusetts, which has also seen recent bills in its House and Senate aimed at addressing the question of home equity theft.

On the litigation front, the City of Springfield and the Town of Tyngsborough are both involved in legal battles with homeowners who claim they’re being robbed of equity in their property.

The former case concerns Springfield homeowner Ashley Mills, who fell behind by more than $20,000 on taxes on her home yet had more than $200,000 in equity in the property. In the latter case, Tyngsborough is in a court battle over whether it can foreclose on the home of Paula Recco and keep the equity difference.

Meanwhile, the state’s attorney general issued guidance late last year clarifying that, under its reading of the Hennepin decision, an unconstitutional taking has occurred if equity is greater than debt when a private investor takes title. And Massachusetts saw at least six pieces of legislation introduced last year aimed at ending home equity “theft” in the state.

Those bills, which are still making their way through the Legislature, lay out various requirements and procedures for governments to sell tax-foreclosed properties and send the excess equity, after debts are settled, back to the former property owner.

“The bigger problem I see right now is that the Massachusetts Legislature knows this is unconstitutional. The attorney general knows it’s unconstitutional. The land court knows it’s unconstitutional. And yet nothing can be done until the Legislature acts,” DiPietro said. “The Legislature has had this in front of them for two or three sessions now, and they’ve been unable to write new legislation to resolve this.”

“They’re in a lot of trouble here, and they don’t want to pull the carpet out from under everything too quickly,” he added.

Other State Legislatures Are Moving Past Tyler

While movement in the Massachusetts Legislature has been slow, other states are moving more quickly.

A bill in Arizona that passed a vote in the state’s House of Representatives earlier this year and has now moved to the state’s Senate would create new requirements for distribution of proceeds in connection with sales of properties that governments have taken via tax foreclosure.

In Colorado, the state’s attorney general issued a formal opinion last year finding an unlawful taking will be considered to have occurred if equity is greater than debt when a private investor takes title. Meanwhile, a bill that passed a House vote earlier this year and is moving through the Senate would bring the state in line with the Tyler decision by requiring any excess equity to be returned to the former owner following a sale.

Meanwhile, a bill introduced in the Minnesota Senate last year just weeks before the high court’s decision in Tyler would end the practice of equity “theft” and bring the state in compliance with the ruling.

In Idaho, Gov. Bradley Little in February signed a bill that requires governments to sell a property within a year of acquiring it via tax foreclosure and requires return of surplus equity to the former owner.

Some states have already taken action. In Maine and Nebraska, bills passed last year ended the practice of home equity theft. In Montana, the passage of S.B. 253 in 2019 prohibited home equity “theft” in connection with residential, forest and agricultural properties. North Dakota ended it in 2021 with the passage of H.B. 1199.

“I hope there will be good legislation that comes from the [Tyler] case. I do think that the property tax laws and how local governments conduct [them], they do need to be reformed,” Dougherty said. “Some states are better than others. I do believe there will be significant reforms in more than one state.”

Meanwhile, in New York, lawmakers last year passed a bill that would have put a one-year moratorium on tax foreclosures in place while the state studied the issue of home equity theft, but Gov. Kathy Hochul vetoed the measure in December.

Wisconsin, meanwhile, eliminated home equity “theft” in 2022 with S.B. 829, but now a new bill is pending, supported by more than a dozen sponsors, that would provide rules and procedures for how tax sales are conducted and how equity is returned.

“Some states are in compliance with the mechanics, some states are probably in the middle, and some states are not so great,” Dougherty said. “The short answer is, I expect to see a lot from various state legislatures this year. States are going to figure it out legislatively.”

Litigation Continues in a Handful of States

When it comes to legal challenges over the practice, Michigan has been center stage of late, with a handful of cases having already been decided and others moving through the courts.

The Michigan Supreme Court ruled in 2020 that Oakland Could not keep the excess equity when it sold a rental property owned by Uri Rafaeli to make good on delinquent taxes. And in Hall v. Meisner, the Sixth Circuit found in 2022 that Michigan’s tax foreclosure process violated the Fifth Amendment’s takings clause.

“Although I believe that the problem may be limited to certain states and certain jurisdictions, those governmental agencies should immediately audit their past foreclosures to proactively make those impacted whole,” said Keith Poliakoff of Florida-based law firm Government Law Group. “If they fail to do so, I foresee numerous class action cases being filed based on the court’s unambiguous decision.”

The Great Lake State, however, continues to see litigation as plaintiffs hope to ride the momentum of the Tyler and Hall decisions.

In Schafer v. Kent County, the Michigan Supreme Court is set to decide the constitutionality of tax sales by Kent County in 2017 at prices higher than the debt owed by the plaintiffs.

A second case before the state’s high court, Hathon v. State, concerns the tax-foreclosed former property of Lynette Hathon, which allegedly had a market value of roughly $67,000 versus roughly $5,000 in debt owed. The state foreclosed on that property in 2018 and sold it at auction for roughly $28,000.

“I expect the Michigan Supreme Court to adopt the holding of Hall. Any cases concerning post-foreclosure auctions that generated proceeds likely should resolve soon after the Supreme Court rules,” said Mark McAlpine of McAlpine PC, who represented the plaintiffs in the Hall case. “Cases where a municipality exercised its right of first refusal prior to a sale are proving more difficult to resolve because the amount of damages can be debated.”

Oakland County, Michigan, filed an amicus brief in the Tyler case in support of Hennepin County.

“In no event should the court federalize state foreclosure proceedings by reshaping a sovereign state’s property rights,” the county argued in its brief.

In Minnesota, meanwhile, a judge is presiding over a pair of cases involving the tax foreclosures and subsequent sale of properties owned by plaintiffs Sharon Sporleder and Darrin Demars.

“It shocks me that there can be a clear constitutional problem and yet nobody’s willing to do anything or resolve it,” DiPietro said. “It just seems like the Supreme Court spoke, and all these courts should just fall in line right now and not be waiting for somebody else to make the decision.”

“I’ve been depressed. I get angry,” DiPietro added.

In Nebraska, the state’s highest court is currently weighing two cases over the issue, including one the U.S. Supreme Court had initially agreed to hear before ultimately remanding it in the weeks after the Tyler ruling.

In the second, the nation’s high court vacated an earlier decision by Nebraska justices that had gone against the homeowners. In that case, the U.S. Supreme Court ordered the Nebraska Supreme Court to revisit its conclusions in light of Tyler.

“I do expect to see litigation post-Tyler in the last half of 2024,” Dougherty said. “There are going to be huge ramifications in terms of property rights. The Eighth Amendment has been left open. I still think there is more to do on the Fifth Amendment.”

In New Jersey, a judge ruled last year that the U.S. Supreme Court’s decision in Tyler applied to foreclosure proceedings in the state. A second case, Johnson v. City of East Orange, is also moving forward over an $81,000 profit that plaintiff Lynette Johnson alleges the city improperly held onto after seizing her home and selling it.

Those stories, not unlike DiPietro’s, speak to vast differences that still exist between states that allow for home equity “theft” and those that don’t, even after the Tyler decision.

“I’m motivated to do something about this and actually make sure that people know about this and that the thing gets checked, gets changed, because I was angry. I was angry for years at these people in the town,” DiPietro said. “And their position is, ‘We’re just following the law, so don’t be mad at us.’ … That was the thing that always rubbed me the wrong way.”

–Additional reporting by Carolyn Muyskens, Danielle Ferguson, David Holtzman, Charlie Innis and Nate Beck. Graphics by Ben Jay. Editing by Philip Shea.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

Glitch bill strengthens the law, while adding some protections for single-family neighborhoods

Florida lawmakers have passed a bill updating last year’s Live Local Act, offering some concessions to single-family neighborhoods while ultimately expanding the law’s purview even further.

The original Live Local Act was designed to increase workforce housing development, and its main provision allowed developers to bypass local zoning restrictions on projects where at least 40 percent of units are priced as workforce housing. The law requires local administrative approval, pre-empting community review.

Many local officials are critical of its top-down approach, concerned about the extent to which it interfered with their ability to manage city planning.

That is why the bill’s sponsors introduced the so-called 2024 glitch bill. “These are very large pieces of legislation,” Rep. Vicki Lopez, who represents the Miami metro in the state House, told Commercial Observer in a February interview. “There’s always more to improve.”

However, while the glitch bill was initially an attempt to assuage concerns of local officials, and came with the backing of the Florida League of Cities, an advocacy group, the final version kept two hotly debated provisions regarding building height allowances and where Live Local provisions can be applied, and then added new pre-emptions limiting the input of local governments.

“The original amendment to the Senate bill was a League of Cities amendment that was trying to give local governments back control of the issue,” said Keith Poliakoff, a partner with Government Law Group, who represents developers pursuing Live Local Act projects. “Fortunately, the Florida Legislature realized if they made those amendments it would undo [the original law]. So they actually made the law stronger to the chagrin of the local governments who were lobbying to make the law ineffective.” (The Florida League of Cities declined to comment.)

A key feature of the original Live Local Act was that developers can build up to the height of any building within a one-mile radius if a project met the Live Local affordability requirements.

Earlier iterations of the 2024 bill would have cut that radius down to a half-mile, but the final version keeps the one-mile radius, while carving out an exemption for single-family neighborhoods. In addition, lawmakers had debated whether to restrict Live Local’s application to industrial assets, but that remained intact.

To protect residential neighborhoods, the 2024 update requires that properties adjacent to single-family lots on at least two sides can be built up to three stories, the pre-existing allowed height in the zoning jurisdiction, or up to 150 percent of the tallest adjacent zoning jurisdiction.

“Instead of making a blanket change, [the law] was only enhanced in regards to that point of protecting single-family neighborhoods,” said Anthony De Yurre, a lawyer with Bilzin Sumberg, who was involved in developing the glitch bill.

The update law also expanded on the original version, introducing a floor area ratio (FAR) pre-emption parallel to the height and density allowances in the 2023 act, restricting FAR caps to 150 percent of the highest allowable FAR in the jurisdiction.

“There were two limitations to the original bill — one was FAR and one was parking,” De Yurre said. “We were given a new ceiling for density and height, but in many districts we ran out of square footage.”

The new bill also includes clarifications on how the Live Local Act interacts with other development bonuses or variances. In particular, the bill clarified that a Live Local Act project does not preclude a project from receiving other local development bonuses that affect density, height or FAR — and that these bonuses must be administratively approved. For example, projects that also qualify as transit-oriented developments can apply the associated bonuses.

Finally, the 2024 bill clarifies that the market-rate housing at a Live Local project can be for-sale units, allowing for a mixed project with market-rate condos and rentals with restricted pricing.

“It’s another opportunity for mixed income, which I think is the best part of the bill,” said De Yurre.

Meanwhile, residents feel completely blindsided by a planning process that essentially excludes them. During a public meeting addressing a 12-story Live Local project in Hollywood Beach, one resident registered her frustration. “We hear about the legislature, we hear about the governor,” Hollywood resident Helen Chervin said. “But he don’t live here. We do.”

The update bill has passed in both the House and Senate, and now goes to Gov. Ron DeSantis to await his signature.

Article Link: Florida Lawmakers Update Live Local Act But Leave 1-Mile Radius Intact
Author: CHAVA GOURARIE

Every morning, Elijah Wooten walks through the Westview Community Cemetery. On this particular morning, he’s wearing a loose polo shirt, slacks and a Korean War Veteran cap pulled down over his gray hair. The hair spills out from underneath the hat and runs down as sideburns.

He walks across the unkempt field of the cemetery, a landscape that shifts from uncut grass and weeds to dirt that turns to mud after a rain.

Cement vaults that cover graves are close together, offering little space for Wooten to reach his family’s plot. He’s got a slight wobble, but he keeps a good pace for a 91-year-old.

His family’s graves are covered in granite stone and inscribed with names and bible verses. They are among the most maintained of the 400 or so graves.

He picks up a plastic bottle and small cardboard boxes and takes them to the dumpster.

“Anything that I can do to make the place look better, I do,” says Wooten, who has lived in Pompano Beach his entire life.

The cemetery is lined with white-painted cement vaults. The first few rows are freshly painted in holy-white, but the condition of the cement vaults get progressively worse the further away you get from the cemetery’s entrance.

Most headstones, if they exist, are split or crumbling. Figurines of Jesus and the Virgin Mary lay on their side, missing limbs. And, in one case, a vault is cracked so badly that the casket underneath is exposed to the harsh rain and sun and moisture of South Florida.

The abhorrent state of the historic Black cemetery is at the center of a legal battle over who is in charge of its operation, upkeep and land — some of which was sold to a developer who planned to build an industrial office park until it was voted down by the city’s Planning and Zoning board last November.

The cemetery is run by a nonprofit board of four Trustees who were behind the 2020 sale. The board’s validity is being disputed in court by a new board, elected in 2022 by community members and made up of Pompano Beach residents, most of whom have family buried in the cemetery.

For some, it’s an example of the far reaching effects of segregation on Black communities across the country, who have largely relied on elders and activists to push for preservation with little help from municipal, state or the federal governments.

Antoinette Jackson is the chair of the Department of Anthropology at the University of South Florida. She has worked for years archiving and preserving the history of Black cemeteries in Tampa and around the country.

“That cemetery [Westview] is an example of what happens when there has been a continual tension of trying to maintain a cemetery with limited resources,” she said. “All those layers of things that they’re dealing with underscore the systemic nature of what segregation often meant to Black cemeteries and Black communities.”

Jackson runs the Black Cemetery Network, an online community that works to preserve archives and physical sites of Black cemeteries across the country. It started as a way for others like her to communicate about their preservation efforts.

“The big, thousand foot level is the preservation of history and the comprehensive understanding of communities, which come with acknowledgement that these cemeteries and these communities were there, and sometimes are still there,” she said.

Keeping that history alive in Black communities has long been the job of elders and activists.

Ramona La Roche has been part of many of those efforts throughout Florida and her homeland in South Carolina. Now she works to archive genealogies in Black cemeteries throughout the South.

She was part of a push to preserve the remains of 31 people buried under an auditorium in Charleston.

“They initially wanted to place the bones at another Black church. The community protested,” she said. Ultimately the bones were buried back in the spot where they were found.

“We marched from The College of Charleston back to the burial site and we actually put each of the remains in its own separate small box, and then they were put in one coffin, and then we reinterred it.”

La Roche says the City of Charleston paid for the burial celebration. In Florida, cities like Tampa and Deerfield Beach have bought back properties from developers who discovered human remains on the land.

Until recently, help from governments has been limited. Some states, like Florida, have moved to help the preservation of land and archives. Still, development is an ever-present threat to the land as the state’s population increases.

A Florida law, approved by Gov. Ron DeSantis last May, created a Historic Cemeteries Advisory Council and provided over a million dollars for organizations to buy land where remains were found.

Progress has been slower on the federal level, where the African-American Burial Grounds Preservation Act has been introduced in the Senate. It would make grants available for preserving African American burial grounds.

Westview Cemetery’s history dates to the 1950s

In 1952, Black businessman Paul Hunter donated the land — all 15 acres of it — to be used for burying Black residents after the city passed a racist law banning the integration of the city-run cemetery. Although the law has since been repealed, the cemetery still caters to mostly Black residents of Pompano Beach.

Burials are also inexpensive — $1,600 — which caused financial challenges for the current board, according to their former chair. They sold what they said was an unused parcel of about 5 acres for just over $1 million in 2020 and vowed to use the money to revitalize the cemetery.

Community members haven’t seen much improvement.

Residents challenged the sale of the land in court. That challenge failed.

The new owners, the development company KZ Copans, said they contracted a company to search for remains on the land but found none. Longtime city residents contest that claim.

The fate of what remains of the Westview Community Cemetery is now tied up in court.

In recent years, more public attention and awareness has emerged surrounding Black cemeteries and their erasure.

In 2015, Deerfield Beach residents came forward with testimony that land purchased by a developer held remains of their family members. It took three separate archeological surveys to find remains. The land was then turned into a memorial park with support from the developer and the city.

Cemetery land is sold

In 2020, unbeknownst to the Pompano Beach community, two members of the Westview Community Cemetery board signed away 4.3 acres of cemetery land to Jacob Zebede and KZ Copans for $1.29 million.

A year later, a group of residents sued to have the contract between the board and KZ Copans voided. They claimed the board had been running afoul of their own bylaws, which prohibited sale of any cemetery land and required nine members. This board only had four.

That lawsuit failed in 2020.

An appeal was also shot down by the state’s Fourth District Court of Appeal.

‘A second bite at the apple’

In January 2022, a group of residents upset at the state of the cemetery held a community meeting and started to vet candidates for a new board. They held elections in accordance with bylaws and formed a new nine-member board.

Last May, a group of four residents, including one newly named board member, filed a lawsuit against the old board, alleging they changed bylaws to work in their favor, stopped holding meetings and elections and allowed themselves to be paid for serving on the board.

Through the lawsuit, they hope a judge will rule that the newly elected members are the rightful Board of Trustees for the cemetery.

“I heard about what was going on, I just felt that it was wrong and I wanted to get involved because I wanted to help right the wrong,” said Sonya Williams-Finney, who was elected to the new board.

Williams-Finney grew up in Pompano Beach and has family buried at the cemetery. Because of bad record keeping, she does not know the location of her family’s graves. About 30 percent of the graves are unidentified, according to records.

In a motion to dismiss the lawsuit, the old-board’s lawyer Jonathan Heller, wrote that the new lawsuit is “trying to take a second bite at the apple, before a new judge.”

The judge in the case, Jeffrey Levenson, allowed the case to move forward and it is currently pending in county court.

‘Better be careful what you ask for’

During a Pompano Beach Planning and Zoning Board meeting last Nov. 15, Keith Poliakoff, an attorney for KZ Copans, gave a presentation to the board and dozens of fuming residents about his vision for Westview Cemetery’s future.

In a video portion of the presentation, workers are seen pressure washing and re-painting vaults that cover the caskets. However, when WLRN visited the site in January only a few rows of vaults near the cemetery’s entrance had been repainted and cleaned. Paint buckets were left sprawled throughout the cemetery near vaults and headstones.

The money from the sale — about $1.2 million — would pay for things like painting and pressure cleaning the vaults, paving the roads and a new irrigation system, according to a budget Poliakoff presented. He also said the developer pledged another $600,000 if the zoning change is granted. That money, he noted, would be used for a digital archive project and other improvements.

When Walter Hunter came to the microphone, he was berated by jeers. Hunter was the president and CEO of the cemetery board and initiated the sale of the land.

“The time has come to breathe new life into Westview Cemetery,” he said, calling the decision to sell the land as “the most difficult decision that we could ever make.”

Poliakoff’s mission was to get the board to change the zoning for the land so that KZ Copans could construct an industrial office building there. The board voted unanimously against the zoning change.

“The ownership will go back to the drawing board if it has to, and it will say, ‘okay, fine, if we have to turn this into a waste transfer station under the code, that’s what we’ll do.’ And sometimes, you know, you better be careful what you ask for,” Poliakoff warned community members.

Tundra King, a member of the Planning and Zoning Board, chastised Poliakoff and some of her colleagues who wanted to see documentation of the dedication of the cemetery.

“I’ve heard you go back and forth as to ‘there may not be history that’s in writing’ or ‘no one has been able to produce certain things in writing.’ You have the history sitting right here in the audience,” she said, referring to the dozens of community members.

“We know that a lot of things from the African American community back in that time was not properly documented.”

Vacant land and the future

The fight is not over. The Planning and Zoning vote was just a recommendation that the city and county now have from the board.

What those two governing bodies do and the result of pending litigation will shape the future of hundreds of Pompano Beach residents that wish to be buried near their families.

Broward County judge plans to start hearing arguments from attorneys in March.

As for Wooten, his fight to preserve his family’s graves at Westview continues.

“I’ve been doing this for the last, what, two years, two and a half years now. … Anything, anything, anything can be done that I can do to make the place look better, I do.”

Article Link: Florida residents are in court over a cemetery’s future
Author: Gerard Albert

Amendments loosen floor area ratio restrictions for projects with affordable rentals

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