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Florida Senate and House of Representatives Pass Senate Bill 328 Amending the 2023 Live Local Act

Stearns Weaver Miller News Update|March 1, 2024|Jacob T. Cremer, Brian J. McDonough, Nicole A. Neugebauer MacInnes, Marco T. Paredes, Jr.

Stearns Weaver Miller has been closely monitoring the implementation of last year’s Live Local Act (Senate Bill 102) and proposed legislation enhancing the Live Local Act in this year’s legislative session. On January 4, 2024, Representative Vicki Lopez and Senator Alexis Calatayud filed House Bill 1239 and Senate Bill 328, respectively. As we previously reported, the original bills amended several key components of the Live Local Act, including changes to both the land use and “Missing Middle” ad valorem property tax portions of the Live Local Act, as well as funding for the Florida Hometown Hero program.

 

After several iterations, on February 28, 2024, the Florida Legislature, passed Senate Bill 328 (the “2024 Live Local Act”). The 2024 Live Local Act has not yet been sent to the Governor but will take effect upon being signed into law. The 2024 Live Local Act makes several big changes to the 2023 Live Local Act, as discussed in detail below:

 

Land Use Administrative Approval Process - Section 125.01055(7), Fla. Stat. (Counties) & Section 166.04151(7), Fla. Stat. (Municipalities)

 

  • Grandfathering of Projects Utilizing the 2023 Live Local Act:
    • 2023 Live Local Act: n/a
    • 2024 Live Local Act: applicants have the option to proceed under the 2023 Live Local Act or the 2024 Live Local Act, so long as the application, written request, or notice of intent was submitted and received by the local government prior to the effective date of the 2024 Live Local Act.
      • Based on this language, developers should submit applications, written requests, or notices of intent as soon as possible if the developer desires to be grandfathered under the 2023 Live Local Act.
    • For Sale Units Permitted:
      • 2023 Live Local Act: requires the proposed multifamily project to be comprised of rental units only.
      • 2024 Live Local Act: requires 40% of the residential units to be affordable rental units, but the remainder of the residential units can be for sale or rental market rate units.
    • Industrial Property
      • 2023 Live Local Act: property zoned for industrial uses qualifies for the administrative approval process.
      • 2024 Live Local Act: same as 2023 Live Local Act. The original bills removed industrial property from qualifying for the administrative approval process, but industrial property was re-added.
    • Density:
      • 2023 Live Local Act: prohibits local governments from restricting the density below the highest allowed density in any land in the jurisdiction where residential development is allowed.
      • 2024 Live Local Act: prohibits local governments from restricting the density below the highest currently allowed density in any land in the jurisdiction where residential development is allowed under the local government’s land development regulations. Further, the highest currently allowed density does not include the density of a development that received an administrative approval under the Live Local Act, or that received a bonus, variance, or special exception for density or floor area ratio provided as an incentive for development.
        • The addition of “land development regulations” may adversely affect projects depending on the jurisdiction.
      • Floor Area Ratio (“FAR”):
        • 2023 Live Local Act: FAR is not expressly mentioned.
        • 2024 Live Local Act: prohibits local governments from restricting the FAR below 150% of the highest currently allowed FAR on any land in the local government’s jurisdiction where development is allowed under the local government’s land development regulations. Like density, the highest currently allowed FAR does not include the FAR for projects using the administrative approval process, or any bonus, variance, or other special exception provided as an incentive for development. FAR includes floor lot ratio.
      • Height:
        • 2023 Live Local Act: prohibits local governments from restricting the height below the highest currently allowed height for a commercial or residential development in its jurisdiction within 1 mile or 3 stories, whichever is higher.
        • 2024 Live Local Act: modifies the height to 150% of the tallest building on property within ¼ mile of the proposed development or 3 stories, whichever is higher, if the proposed development is adjacent to, on two or more sides, a parcel or parcels zoned for single-family residential use that is within a single family residential development with at least 25 contiguous single-family homes. “Adjacent to” means properties that share more than one point of a property line, but not property separated by a public road. It also clarifies that the highest currently allowed height does not include the height of any building approved through the administrative approval process, or any bonus, variance, or other special exception provided as an incentive for development.
      • Parking:
        • 2023 Live Local Act: requires local governments to consider a parking reduction if the proposed development is within ½ mile of a major transit stop and the major transit stop is accessible from the proposed development.
        • 2024 Live Local Act: requires local governments to consider a parking reduction if the development is located within ¼ mile of a transit stop and the transit stop is accessible from the development. The 2024 Live Local Act further requires the local government to reduce parking by 20% if the development is located within ½ mile of a major transportation hub that is accessible from the proposed development by safe, pedestrian-friendly means, such as sidewalks, crosswalks, elevated pedestrian or bike paths, or other multimodal design features and has available parking within 600 feet of the proposed development, consisting of on-street parking, parking lots, or parking garages available for use by the residents of the proposed development. Finally, the 2024 Live Local Act requires a local government to eliminate parking for a proposed mixed-use residential development if it is within an area recognized by the local government as a transit oriented development area.
      • Military Installations:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: prohibits local governments from administratively approving a proposed development within ¼ mile of a military installation as defined in section 163.3175(2), Florida Statutes.
      • Mixed Use Requirement for Projects Located within a Transit Oriented Development or Area:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: requires proposed developments located in a transit oriented development or area to be mixed-use residential (residential and non-residential uses) and otherwise comply with the local government’s regulations for transit oriented developments or areas except for use, height, density, and FAR unless otherwise agreed to by the local government and the applicant.
      • Negotiated Bonus Opportunity:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: allows, but does not require, local governments to grant a bonus, variance, conditional use, or special exception for height, density, or FAR for a proposed development.
      • Airport Regulations:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: prohibits the use of the administrative approval process for airport-impacted areas as provided in section 333.03. Section 333.03 is amended to include the following:
          • A proposed development near a runway within ¼ mile laterally from the runway edge and within an area that is the width of ¼ mile extending at right angles from the end of the runway for a distance of 10,000 feet of any existing airport runway or planned airport runway identified in the local government’s airport master plan.
          • A proposed development within any airport noise zone identified in the federal land use compatibility table or in a land-use zoning or airport noise regulation adopted by the local government.
          • A proposed development that exceeds maximum height restrictions identified in the political subdivision’s airport zoning regulation adopted pursuant to this section.
      • Conforming Use:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: requires local governments to treat developments authorized under this administrative approval process as a conforming use after the administrative approval process expires in 2033 and the development’s 30-year affordability period expires, notwithstanding the local government’s comprehensive plan, future land use designation, or zoning.
      • Violations of Affordability Requirement:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: imposes a reasonable cure period to cure violations of the 30-year affordability period. If the violation is not cured within a reasonable time, the development must be treated as a nonconforming use.
      • Administrative Approval Procedures:
        • 2023 Live Local Act: n/a
        • 2024 Live Local Act: requires local governments to maintain a policy on their websites with procedures and expectations for the administrative approval process.

 

Missing Middle Ad Valorem Property Tax Program - Section 196.1978(3), Fla. Stat.

  • Area of Critical State Concern:
    • 2023 Live Local Act: n/a
    • 2024 Live Local Act: allows qualifying projects within an area of critical state concern, as defined in section 380.0552, Florida Statutes, or chapter 28-36, Florida Administrative Code, to qualify for the Missing Middle exemption provided the project contains more than 10 units dedicated to housing natural persons or families meeting the 80%or 120% of area median income limitations.
  • Vacant Units:
    • 2023 Live Local Act: states that if a unit in a previous year qualified for the Missing Middle exemption and is now vacant on January 1, the vacant unit is still eligible provided the unit is restricted to providing affordable housing that otherwise meets the requirements of the Missing Middle program and a reasonable effort is made to lease the unit to eligible persons or families.
    • 2024 Live Local Act: clarifies that if a unit in a previous year received the Missing Middle exemption and is now vacant on January 1, the vacant unit is still eligible provided the unit is restricted to providing affordable housing that otherwise meets the requirements of the Missing Middle program and a reasonable effort is made to lease the unit to eligible persons or families.
  • Valuation of Residential Common Areas:
    • 2023 Live Local Act: n/a
    • 2024 Live Local Act: requires the property appraiser to include in the valuation of a unit the proportionate share of the residential common areas, including the land, fairly attributable to such unit.
  • Property Appraiser Discretion:
    • 2023 Live Local Act: n/a
    • 2024 Live Local Act: allows the property appraiser to ask for additional information as necessary.
      • Please note that this language allows the property appraiser to request the rental market study or rent roll. The property appraiser does not have discretion to deny the exemption if the project otherwise complies with the exemption requirements.
    • Transient Public Lodging Establishments:
      • 2023 Live Local Act: n/a
      • 2024 Live Local Act: prohibits units used as a transient public lodging establishment as defined in section 509.013 from qualifying for the exemption.
    • Remedial Effect:
      • 2023 Live Local Act: n/a
      • 2024 Live Local Act: these amendments to the Missing Middle program are intended to be remedial and clarifying in nature and apply retroactively to January 1, 2024.  

 

Local Government Ad Valorem Property Tax Program - Section 196.1979, Fla. Stat.

  • Exemption Granted on Unit-by-Unit Basis:
    • 2023 Live Local Act: provides an exemption for up to 100% of the assessed value if 100% of the multifamily project’s residential units are used to provide affordable housing.
    • 2024 Live Local Act: clarifies that if 100% of a multifamily project’s residential units are used to provide affordable housing, then the property owner is entitled to an exemption of up to 100% of the assessed value of each residential unit used to provide affordable housing.
  • Vacant Units:
    • 2023 Live Local Act: states that units which are vacant must have qualified for the ad valorem exemption in the previous year in order to continue to qualify despite the unit currently being vacant.
    • 2024 Live Local Act: clarifies that units which are vacant must have received the ad valorem exemption in the previous year in order to continue to qualify despite the unit currently being vacant.
  • January 1 Deadline:
    • 2023 Live Local Act: n/a
    • 2024 Live Local Act: requires the local government to send the property appraiser the ordinance granting the exemption by January 1 of the year in which the exemption will take effect and if the ordinance expires or is repealed, the local government must send the notice to the property appraiser by January 1 of the year the repeal or expiration will take effect.
  • Property Appraiser Discretion:
    • 2023 Live Local Act: n/a
    • 2024 Live Local Act: allows the property appraiser to request more information as part of its review of the application.
      • Please note that this language allows the property appraiser to request the rental market study or rent roll. The property appraiser does not have discretion to deny the exemption if the project otherwise complies with the exemption requirements.
    • Valuation of Residential Common Areas:
      • 2023 Live Local Act: n/a
      • 2024 Live Local Act: requires the property appraiser to include in the valuation of a unit the proportionate share of the residential common areas, including the land, fairly attributable to such unit.
    • Retroactivity of New Amendment:
      • 2023 Live Local Act: n/a
      • 2024 Live Local Act: these amendments to the Local Government exemption are intended to be remedial and clarifying in nature and apply retroactively to January 1, 2024.  

 

Powers of the Florida Housing Finance Corporation (“FHFC”) – Section 420.507, Fla. Stat., Section 420.518, Fla. Stat.

  • 2023 Live Local Act: n/a
  • 2024 Live Local Act: allows FHFC to preclude any applicant, sponsor, or affiliate of an applicant or sponsor from participating in FHFC’s programs if the applicant or affiliate has engaged in fraudulent or material misrepresentation as defined in section 420.518, Florida Statutes. This fraudulent or material misrepresentation includes the debarment from participating in federal United States Department of Housing and Urban development programs and material or repeated violations of a condition imposed by FHFC in connection with an FHFC program, land use restriction agreement, extended use agreement, or other financing or regulatory agreement with FHFC.

Florida Hometown Hero Program Funding – Section 420.5096, Fla. Stat.

  • 2024 Live Local Act: for the 2024-2025 fiscal year, appropriates $100 million in nonrecurring funds from the funds received and deposited into the General Revenue Fund from the State’s allocation from the federal Coronavirus State Fiscal Recovery Fund to the State Housing Trust Fund for use to implement the Florida Hometown Hero Program.

Stearns Weaver Miller is actively monitoring all aspects of the 2023 Live Local Act and 2024 Live Local Act, including the funding opportunities, ad valorem exemption programs, and land use preemption implementation across the State of Florida.

 

If you should have any questions on this new legislation, please contact us.

 

You can also view our previous comprehensive analysis of the 2023 Live Local Act here.

 

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