Last year, the Florida Legislature passed a sweeping set of legislative changes referred to as the Live Local Act (SB 102, Florida 2023). You can see our analysis of that act here. In response to several concerns, the Florida Legislature passed amendments to several statutory provisions that were enacted or amended by the Live Local Act. This occurred via Senate Bill 328/House Bill 1239. The amendments that are most applicable to developers are discussed below.
Section 125.01055(7)/166.04151(7)
Previously, these provisions required that an affordable housing restriction apply to at least 40 percent of units “in a proposed multifamily rental development.” This at least implied that no for-sale units could be included in the development. This is now clarified such that the 40 percent be rental units within a multifamily development.[1] The remainder can be for sale units.
The amendments further clarify the allowable density. The amendment adds the word “currently” to the highest allowed density. It then defines that phrase. In that definition, the amendments make clear that density approved as part of Live Local Act developments is not included. The definition further provides that density received for “any building” based on a bonus, variance, or other special exception set forth in the local government regulations as an incentive for development is not considered as “highest currently allowed density.”[2]
A new provision is also added that allows consideration of Floor Area Ratio (or floor lot ratio) in addition to density. The local government may not restrict the floor area ratio of a proposed development below 150 percent of the “highest currently allowed floor area ratio” wherever floor area ratio is allowed. Unlike density, this does not consider residential development only. Like density, the concept of “highest currently allowed floor area ratio” does not include developments approved using the Live Local Act nor any bonus, variance, or other special exception as an incentive for development.[3]
There are also amendments to the height allowance for applicable developments. As with density and floor area ratio, the “highest currently allowed height” does not include developments approved using the Live Local Act nor any bonus, variance, or other special exception as an incentive for development.[4] The amendments further provide that where the proposed development is adjacent – on at least two sides – to property zoned for single-family uses and within a single-family development of at least 25 contiguous homes, height may (it is not a requirement) be restricted to 150% of the tallest building adjacent to the development, the highest currently allowed height for the property provided in the local government regulations, or three stories, whichever is highest. In determining adjacency, there must be more than a single point of connection along property lines; property across public roads is not considered adjacent.[5]
Despite the language noted above relative to “currently allowed” height, density, or floor area ratio, the local government can allow the additional height, density, or floor area ratio allowed by bonuses, variances, conditional uses, or other special exceptions and may do so administratively.[6] Further, In crafting the definitions of “currently allowed,” the legislature utilized the past tense in relation to what cannot be considered “currently available.” Specifically, the law uses “a building that met the requirements…” and “the height of any building that has received…”. This at least implies that in considering currently available height, an applicant may be able to consider not only what is provided by code, but what has been built.
For any property located within ¼ mile of a military installation as identified in Section 163.3175(2), Florida Statutes, the allowance for an administrative approval does not apply. Further, the local governments must update their websites to identify the procedures and expectations for administrative approvals for a Live Local Act development.[7] Airport impacted areas as provided in Section 333.03, Florida Statues are also not subject to these provisions.[8]
The amendment also addresses parking. Previously, the law provided that a county would have to consider reduced parking in certain circumstances. This was ambiguous and was not a requirement. This has changed. First, the law will now specify that the local government consider reductions where a development is within ¼ mile of a transit stop (no longer using the term “major”) as defined in the local government code.[9] Second, the law now requires at least a 20 percent reduction of parking in specific circumstances:
- The development is within ½ mile of a “major transportation hub” accessible by “by a safe, pedestrian-friendly means.
- A “major transportation hub” is any transit station served by public transit with a mix of other transportation options.[10]
- Has other parking available – including on-street, parking lot or garage available to residents of the development.[11]
Further, the law now requires that all parking requirements be eliminated for a mixed-use residential development where the development is within a transit-oriented development or area recognized by the local government. A proposed development located within a transient-oriented development or area must otherwise comply with the local government regulations applicable to the transit-oriented development or area, except for use, height, density, floor area ratio, and parking.[12]
In certain circumstances, despite these amendments, an applicant may elect to proceed under the Live Local Act provisions without regard to these amendments. If an “application, written request, or notice of intent to utilize” the provisions of the Live Local Act was submitted before these amendments become effective, the applicant can notify the local government no later than July 1, 2024, that it desires to proceed without regard to these amendments. Alternatively, the applicant must be allowed to submit a revised application, written request, or notice of intent that conforms to the provisions of these amendments.[13] If prior to the effective date of the amendments no “application, written request, or notice of intent” is filed, the provisions of these amendments will apply.
Section 196.1978
In addition to the ad valorem tax exemption included in 2023, a new provision is added that allows for the exemption for projects where a newly constructed multifamily project is in an area of critical state concern (per Section 380.0552, Florida Statutes or Chapter 28-36, F.A.C.), only ten units are required (as opposed to the 70 required in other areas).[14] Several clarifications are also included, one of which specifies that the proportionate share of the common areas must be included in calculating the exemption.[15]
[1] 125.01055(7)(a) and 166.04151(7)(a), Florida Statutes (2024)(“… at least 40 percent of the residential units in a proposed multifamily development are rental units…”).
[2] 125.01055(7)(b) and 166.04151(7)(b), Florida Statutes (2024).
[3] 125.01055(7)(c) and 166.04151(7)(c), Florida Statutes (2024). See also 125.01055(7)(e) and 166.04151(7)(es), Florida Statutes (2024).
[4] 125.01055(7)(d)(1) and 166.04151(7)(d)(1), Florida Statutes (2024).
[5] 125.01055(7)(d)(2) and 166.04151(7)(d)(2), Florida Statutes (2024).
[6] 125.01055(7)(j) and 166.04151(7)(j), Florida Statutes (2024).
[7] Id.
[8] 125.01055(7)(k) and 166.04151(7)(k), Florida Statutes (2024). A new section 333.03(5) is adopted identifying these restrictions: within ¼ mile laterally of a runway edge and width of ¼ mile extending at right angles from the end of the runway for 10,000 feet (applicable to existing or planned runways on an airport master plan), within an airport noise zone identified in the federal land use compatibility table or land use zoning or airport noise regulations of the local government, or exceeding maximum height within airport zoning regulations.
[9] 125.01055(7)(f)(1) and 166.04151(7)(f)(1), Florida Statutes (2024).
[10] 125.01055(7)(f)(4) and 166.04151(7)(f)(4), Florida Statutes (2024).
[11] 125.01055(7)(f)(2) and 166.04151(7)(f)(2), Florida Statutes (2024).
[12] 125.01055(7)(f)(3), (h) and 166.04151(7)(f)(3), (h), Florida Statutes (2024).
[13] SB 328, Section 3 (2024).
[14] Section 196.1978(3)(b)(2)(b), Florida Statutes (2024).
[15] Section 196.1978(3)(d)(2) & 196.1979(7), Florida Statutes (2024).
YES! PLEASE SIGN ME UP TO RECEIVE EMAIL ALERTS FROM OTHER GUNSTER PRACTICE AREAS.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
About Gunster
Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 290 attorneys and consultants, and over 290 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com
