By: Elizabeth Somerstein, Esq.
On March 29, 2023, Governor Ron DeSantis signed Senate Bill 102, otherwise known as the Live Local Act (Act), into law. The Act makes various changes and additions to affordable housing-related programs and policies, at both the state and local level. The provisions become law on July 1, 2023, with some exceptions. Below is a summary of some of the key elements of the Act as it relates to developers and builders. Note that the below is a high-level overview, and should be used for informational purposes only.
1. Fla. Stat. § 125.01055 (County Land Development):
Currently, Fla. Stat. § 125.01055 allows a county to approve the development of housing that is affordable on any parcel zoned for residential, commercial, or industrial use without the need to follow local rules and regulations (for example, rezoning or comprehensive plan amendments) so long as (i) at least 10% of the units included in the project were used for affordable housing; and (ii) the developer did not apply for or receive SAIL funding.
The Act removes a county’s ability to approve affordable housing developments in contravention of its regulations on parcels zoned residential but also removes the restriction on developers who have applied for or received SAIL funding for parcels zoned in commercial or industrial use areas.
The Act adds a new subsection 7 (Fla. Stat. § 125.01055(7)). In this subsection, the Act details that a county must authorize proposed multifamily and mixed-use residential projects as an allowable use in any area zoned for commercial, industrial, or mixed-use if the project will provide the following:
At least 40% of the residential units are affordable;
The units are designated as affordable for a period of at least 30 years; and
For a mixed-use project, at least 65% of the total square footage of the improvement on the parcel must be used for residential purposes.
For any proposed multifamily developments meeting the above requirements and that are to be located in areas zoned for commercial, industrial, or mixed-use, a county may no longer require the owner to obtain a zoning or land use change, special exception, conditional use approval, variance, or comprehensive plan amendment for the building height, zoning, and densities authorized in this section.
With respect to density and building height for projects meeting the requirements:
Density : a county may not restrict density below the highest allowed density on any unincorporated land in the county where residential development is allowed.Height : a county may not restrict the height of the proposed development below the highest allowed height for a commercial or residential development located in its jurisdiction within one (1) mile of the proposed development, or three (3) stories, whichever is higher.
Developments meeting the requirements of these new provisions are approved administratively. However, any project authorized under this section must still otherwise satisfy the county’s land development regulations (setback, parking, etc.) and be consistent with the comprehensive plan. Further, except as otherwise provided herein, a proposed development must comply with all applicable state and local laws and regulations.
A county must consider a reduced parking requirement if the development is located within one half-mile of a major transit stop, as defined in the county’s land development code, and the major transit stop is accessible from the development.
For proposed multifamily developments in an unincorporated area zoned for commercial or industrial use which is within the boundaries of a multicounty independent special district that was created to provide municipal services and is not authorized to levy ad valorem taxes, and less than 20 percent of the land area within such district is designated for commercial or industrial use, a county must authorize such development only if the development is mixed-use residential.
The new subsection 7 does not apply to property defined as recreational and commercial working waterfront in s. 342.201(2)(b) in any area zoned as industrial.
These provisions expire on October 1, 2033.
Summary:
A county must administratively approve a residential or mixed-use residential project on property zoned commercial, industrial, or mixed-use without the need for rezoning/comprehensive plan amendment/other special approval, provided the project meets the requirements of subsection (7) (i.e., 40% of the units are affordable for a period of 30 years, and the projects meets the density and height restrictions set forth in the Act). Outside of use, density, and height as detailed above, the project must meet all other applicable land development regulations and be consistent with the comprehensive plan; if it does not, then further action may be required by the county to meet those additional regulations. If the project is mixed-use, then 65% of the total square footage must be used for residential purposes. The project may be eligible for reduced parking requirements, under certain circumstances as outlined in the Act.
2. Fla. Stat. § 125.379 (County Property for Affordable Housing):
Current law provides that each county is required to prepare an inventory list of all real property within its jurisdiction which is owned by the county and deemed appropriate for affordable housing.
The Act now also requires any property deemed appropriate for affordable housing that is owned by any dependent special district to be included in the inventory list and for the county to publish this list on its website to encourage potential development.
The Act adds that any property on the inventory list may be used for affordable housing through a long-term ground lease that requires the development and maintenance of affordable housing.
The Act adds that counties are encouraged to adopt best practices for surplus land programs, including, but not limited to:
Establishing criteria for eligibility for receipt or purchase of surplus land by developers;
Making the process for requesting surplus lands publicly available; and
Ensure long-term affordability through ground leases by retaining right of first refusal to purchase property that would be sold or offered at market rate and by requiring reversion of property not used for affordable housing within a timeframe.
Summary:
A developer will be able to view county inventory of affordable housing-appropriate land online. A developer will now be able to enter into long-term ground leases (versus acquiring title to the land) for purposes of developing affordable housing on county property.
3. Fla. Stat. § 166.04151 (Municipal Land Development):
Amendments to Fla. Stat. § 166.04151, which relate to municipalities, identically mirror those amendments detailed in Section 1. above as it relates to counties (Fla. Stat. § 125.01055), with the following exception:
Municipalities which are predominately residential (that is, less than 20% of the total land area is designated as either commercial or industrial), the municipality must approve a development pursuant to the new provisions of the Act only if the proposed development is mixed-use residential.
Summary:
A municipality must administratively approve a residential or mixed-use residential project on property zoned commercial, industrial, or mixed-use without the need for rezoning/comprehensive plan amendment/other special approval, provided the project meets the requirements of subsection (7) (i.e., 40% of the units are affordable for a period of 30 years, the projects meet the density and height restrictions set forth in the Act). Outside of use, density, and height as detailed above, the project must meet all other applicable land development regulations and be consistent with the comprehensive plan; if it does not, then further action may be required by the municipality to meet those additional regulations. Municipalities which are predominately residential (that is, less than 20% of the total land area is designated as either commercial or industrial), the municipality must approve a development pursuant to the new provisions of the Act only if the proposed development is mixed-use residential. If the project is mixed-use, then 65% of the total square footage must be used for residential purposes. The project may be eligible for reduced parking requirements, under certain circumstances as outlined in the Act.
4. Fla. Stat. § 166.0451 (Municipal Property for Affordable Housing):
Amendments to Fla. Stat. § 166.0451, which relate to municipalities, identically mirror those amendments detailed in Section 2. above as it relates to counties (Fla. Stat. § 125.379).
Summary:
A developer will be able to view a municipality’s inventory of affordable housing-appropriate land online. A developer will now be able to enter into long-term ground leases (versus acquiring title to the land) for purposes of developing affordable housing on municipal property.
5. Fla. Stat. § 196.1978(2)(b) (Nonprofit Ad Valorem Exemption):
A new ad valorem tax exemption is created by Fla. Stat. § 196.1978(2)(b) for the 2024 tax year through the 2059 tax year.
This provision provides that any land owned entirely by a non-profit corporation, which is leased for a minimum of 99 years and predominately used to provide affordable housing to households for extremely low, very low-, low-, or moderate-income, is exempt from ad valorem taxes.
For purposes of this provision, “predominantly used” for affordable housing means that the square footage of the improvements on the land for housing is greater than 50% of the total improvements on the land.
Summary:
A nonprofit can now receive an ad valorem exemption on its land when a nonprofit enters into a 99 year ground lease with an affordable housing developer.
6. Fla. Stat. § 196.1978(3)(Multifamily Development Exemption):
A new ad valorem tax exemption is created by Fla. Stat. § 196.1978(3) for the 2024 tax year through the 2059 tax year.
This provision provides that portions of a multifamily project are considered as a matter of law to be charitable, and therefore eligible for an ad valorem tax exemption as follows:
Where providing affordable housing to a person or family between 80 and 120% of AMI within the metropolitan statistical area or, if not within such an area, the county, the portion providing that housing is eligible for a 75% ad valorem tax exemption of the assessed value;
Where providing affordable housing to a person or family up to 80% of AMI within the metropolitan statistical area or, if not within such an area, the county, the portion providing that housing is exempt from ad valorem taxes.
Requirements to obtain the exemption:
The units must be within a newly constructed project, which means an improvement which was substantially completed within 5 years of the first request for certification or exemption, whichever is earlier;
The project must contain more than 70 units dedicated to persons/households whose household income does not exceed 120% AMI.
Unit must be rented for the lesser of (1) an amount that does not exceed the amounts specified by the most recent multifamily rental program income and rental limit chart posted by the FHFC (derived from HUD); or (2) 10% below the market rent as determined by a rental market study meeting the requirements in the Act.
Units cannot be subject to a recorded agreement with the FHFC.
Cannot utilize this exemption if the developer is utilizing the exemption outlined in Section 7 below. (Fla. Stat. § 196.1979)
To obtain the exemption, the property owner must submit to the property appraiser an application, along with a certification notice from the FHFC, by March 1st. Details of the application process are listed in the Act.
Summary:
Provides a property tax exemption to “newly constructed” multifamily developments that have more than 70 affordable households for certain, qualifying, multifamily developments.
7. Fla. Stat. § 196.1979 (County and Municipal Affordable Housing Exemption):
A new ad valorem tax exemption is created by Fla. Stat. § 196.1979.
The provisions allow counties and municipalities to adopt an ordinance to exempt portions of property used to provide affordable housing. However, it does not require a county or municipality to do so.
To be eligible, the portions of the property must meet the following:
Houses natural persons or families whose annual income is greater than 30% AMI but not more than 60% AMI or does not exceed 30% of the median annual adjusted gross income for the area;
Must contain more than 50 residential units of which at least 20% will be used to provide affordable housing;
Units must be rented for the lesser of (i) an amount that does not exceed the amounts specified by the most recent multifamily rental program income and rental limit chart posted by FHFC (derived from HUD); or (ii) 10% below the market rate as determined by a rental market studying meeting the requirements of the Act, whichever is less; and
The property must not have been cited for 3 code violations in the preceding 24 months and must not have outstanding code violations or related fines before final determination on a property’s qualification.
Amount of exemption:
If less than 100% of the units are used for affordable housing, then the local government can exempt up to 75% of the assessed value of each residential unit used to provide affordable housing;
If all units in the development are used for affordable housing, then the local government can exempt up to 100% of the assessed value of each residential unit used to provide affordable housing.
To receive an exemption the property owner must submit to the property appraiser an application along with a certification of qualified property by March 1st.
First applies to the 2024 tax roll.
Summary:
This new provision allows a local government to adopt a property tax exemption for affordable housing developments. Note that this exemption only applies where a local government has chosen to adopt the exemption.
8. Fla. Stat. § 212.08 (Building Material Sales Tax Refund):
A new subsection (v) is added to Fla. Stat. § 212.08(5) related to sales taxes for building materials used in the construction of affordable housing units subject to an agreement with the FHFC to provide housing within the extremely low-, very low- or low-income limits.
Building materials used in eligible residential units are exempt from the sales tax imposed by Chapter 212 if an owner demonstrates to the satisfaction of the department that the requirements of this new subsection paragraph have been met. The exemption is through a refund of previously paid taxes, via an application submitted by the owner at substantial completion of the unit.
The person seeking a refund must submit an application for a refund to the department within 6 months after the eligible residential unit is deemed to be substantially completed by the local building code inspector or by November 1 after the improved property is first subject to assessment.
The exemption under this paragraph inures to a municipality, county, other governmental unit or agency, or nonprofit community-based organization through a refund of previously paid taxes if the building materials are paid for from the funds of a community development block grant, the State Housing Initiatives Partnership Program, or a similar grant or loan program.
The refund may only be had once per unit and must be between $500 and $5000 or 97.5% of sales or use tax paid, whichever is less.
Summary:
A sales tax rebate may be available under certain conditions for affordable housing units developed within the extremely low-, very low- or low-income limits.
9. Fla. Stat. § 553.792 (Expedited building permitting and development orders):
Section 553.792(1)(a) is amended only to provide that the local governments are required to maintain on their websites the policy and procedures for expedited building permitting and development orders.
Summary:
This will be helpful for a developer looking for any expedited permitting within a local jurisdiction.
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