United States: Florida Legislature Amends Live Local Act's Land Use Provisions

Highlights

• The Florida Legislature on Feb. 28, 2024, passed Senate Bill 328, which amends the Live Local Act (Amended Act). It becomes effective upon becoming law (except as otherwise provided).
• The Amended Act requires local governments to authorize the development of multifamily residential and mixed-use developments on sites that are zoned mixed-use residential, commercial or industrial if at least 40 percent of the residential units in a proposed multifamily development will, for a period of at least 30 years, be affordable to individuals making up to 120 percent of the local area median income (AMI).
• The major changes include provisions that limit a local government's ability to restrict the floor area ratio (FAR), clarify that the height and density maximums do not include bonuses, mandate a 20 percent parking reduction near transit and modify the maximum height when adjacent to single-family residential uses, under certain circumstances.

The Florida Legislature on Feb. 28, 2024, passed Senate Bill 328, which amends the Live Local Act (Amended Act). It becomes effective upon becoming law (except as otherwise provided). While most of the 2023 Live Local Act provisions remain the same, there are some significant changes in the Amended Act. This Holland & Knight alert provides a general outline of the changes in the Amended Act and discusses the potential impact on land use and zoning entitlements.¹

The chart below highlights the key changes to the 2023 Live Local Act:

Some of the favorable provisions that were changed in the Amended Act are still available to applicants for proposed developments that are grandfathered in³ by the timing of their application. The Amended Act provides an opportunity for applicants to be grandfathered under the 2023 version of the law. Depending on the project's specifics, it may be to a developer's advantage to utilize either the 2023 provisions or submit a revised application to account for the new provisions in the Amended Act.

Land Use and Zoning Changes

If at least 40 percent of the residential units in a mixed-use or multifamily residential project will, for a period of at least 30 years, be affordable to individuals making up to 120 percent of the local area median income (Threshold Requirement), then local governments must administratively approve development of the project on sites that are zoned mixed-use, commercial or industrial.

The Amended Live Local Act provides that where the Threshold Requirement is met, a local government also cannot restrict the FAR of a proposed development, in addition to the existing prohibitions on restricting height, use and density.

Once a multifamily project complies with the Threshold Requirement, a local government must allow at least 150 percent of the "highest currently allowed" FAR under the land development regulations. Additionally, a local government cannot restrict the height of the proposed development below the highest currently allowed height for a commercial or residential building located within the local jurisdiction within 1 mile of the proposed development. At minimum, the Amended Act mandates that a local jurisdiction allow the proposed development to build at a height of three stories.

The Amended Act clarifies that the "highest currently allowed" density and height provisions do not include any building that 1) was approved under the previous version of the bill or 2) has received a bonus, variance or other special exception for density. However, the Amended Act further clarifies that if a development qualifies for a density, height or FAR bonus pursuant to the jurisdiction's regulations, then the local government must administratively approve such bonus without further action by the governing body.

The Amended Act also carves out a new exception for height determinations where the proposed development is "adjacent" to properties zoned for single-family use, under certain circumstances. If a proposed development is adjacent to⁴, on two or more sides, a parcel zoned for single-family residential use that is within a single-family residential development with at least 25 contiguous single-family homes, then the height of the proposed adjacent development is limited to 150 percent of the tallest building on any property adjacent to the proposed development, the highest currently allowed height for the property provided in the land development regulations or three stories, whichever is higher.

The Amended Act strengthens the parking reduction requirements for qualifying developments by requiring local governments to:

• consider reducing parking requirements for developments within one-quarter mile of a transit stop as defined in the local government's land development regulations and the transit stop is accessible from the development
• reduce parking requirements by at least 20 percent for developments within one-half mile of a "major transportation hub"⁵ and has alternative parking⁶ available and accessible within 600 feet from the proposed development; a county may not require that the available parking be sufficient to compensate for the reduction in parking requirements
• eliminate parking requirements for developments within a transit-oriented development or area, as recognized by the local government; the proposed development must be mixed-use residential and otherwise comply with the local government's regulations concerning transit-oriented development, except for use, height, density, FAR and parking provided by this exception or otherwise agreed to by the local government and the developer

Finally, the Amended Act precludes development within one-quarter mile of a military installation from being approved administratively and requires local governments to publish their policy for administrative approval of qualifying developments. Airports and military installations are not subject to these provisions, nor are areas impacted by airport land use regulations.

Footnotes

1. A future alert will address the Amended Act's tax exemption program.

2. For mixed-use projects, at least 65 percent of the total square footage must be used for residential purposes, leaving 35 percent for commercial and ancillary uses. Sections 125.01055(7)(a) and 166.04151(7)(a), F.S.

3. For a summary of the 2023 Act, see Holland & Knight's previous alert, "Florida's New Live Local Act Offers Land Use and Tax Benefits," Aug. 8, 2023.

4. The Amended Act defines "adjacent to" for the purpose of the exception as those properties sharing more than one point of a property line, but not including properties separated by a public road.

5. The Amended Act defines "major transportation hub" as any transit station, whether bus, train or light rail, that is served by public transit with a mix of other transportation options.

6. The available parking within 600 feet of the proposed development may consist of options such as on-street parking, parking lots or parking garages available for use by residents of the proposed development. A local government may not require that the available parking compensate for the reduction in parking requirements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.