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Live Local Act Glitch Bill

Anthony De Yurre, Carter N. McDowell & Nicholas Noto

For the latest updates on the Live Local Act Glitch Bill, please visit this article.

As expected, within days of the opening day of the 2024 Legislative Session came two proposed “clarification glitch” bills containing several proposed amendments to the Live Local Act.  Senate Bill 328, sponsored by Senator Calatayud, the sponsor of the original Live Local Act legislation, and companion House Bill 1239, sponsored by Representative Lopez which, if adopted, provide several additions, modifications, and clarifications to the original Live Local Act, Senate Bill 102 (“SB 102”). These bills also provide clarifications concerning the implementation of the “Missing Middle” Ad Valorem Tax Exemption.

While Senator Calatayud and Representative Lopez’s bills were originally introduced as carbon copies, Senator Calatayud’s SB 328 has already been amended four times in committee, with the most recent amendments on January 31, 2024. 

While some of the biggest changes have been summarized below, SB 328 may continue to be amended until a final version of the bill is voted on. The summary below is not intended to be a digest of every change included in these proposed bills, but instead a high-level summary. 

Our office is happy to discuss any of these changes or the application of the Live Local Act to your particular property or project.

Retroactive Clarification to the “Missing Middle” Property Tax Exemption (the “Exemption”)

 SB 328 clarifies that in determining the value of a unit for purposes of applying the Exemption, the local property appraiser must include the proportionate share of the residential common areas and the land fairly attributable to that unit.

 SB 328 provides that the amendments relating to the Exemption are remedial and clarifying in nature and as such apply retroactively to January 1, 2024. This would allow pending 2024 Exemption applications to benefit from the inclusion of the proportionate share of common areas and land values. 

 SB 328 also creates an additional benefit to “newly constructed” multifamily projects in the Florida Keys and Key West, which extends the Missing Middle Property Tax Exemption to projects with 11 or more qualifying units (as opposed to the required 71 qualifying units elsewhere).

Building Height Preemption Remains at 1-mile; Additional Protections Added for Single-Family Developments

 SB 328 originally proposed to reduce the comparator site range for Live Local Act Project building height from 1 mile to 1/4 mile of the proposed development. As of the January 30th amendment, the building height preemption was restored to the “highest currently allowed height for a commercial or residential building … within 1 mile of the proposed [Live Local Act Project] or 3 stories, whichever is higher.”

 SB 328 proposes to add a new building height restriction in areas where the Live Local Act Project is adjacent to, 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. 
o In such circumstances, the local government may restrict the height of the Live Local Act Project to 150 percent of the tallest building on property within one-quarter mile of the Live Local Act Project or three-stories, whichever is higher. 

Industrial Zoned Lands Remain Eligible; Lands near Airport Runways Removed

SB 328 originally proposed to remove industrial zoning as a qualifying zoning transect. As of the January 30th amendment, industrial zoned lands were added back in and remain eligible for Live Local Act Projects. 

Section 328 proposes to prohibit Live Local Act Projects: 
(1) in any airport-impacted areas as provided for in Section 333.03, Florida Statutes; 
(2) near a runway within one-quarter of a mile laterally from the runway edge and within an area that is the width of one-quarter of a 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; or
(3) 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.

Addition of Preemption for Floor Area Ratio

SB 328 clarifies and includes a preemption for floor area ratio (“FAR”) to match the original SB 102 preemption for density. This would permit a Live Local Act Project to utilize the highest currently allowed floor area ratio on any land in the local government where development is permitted.
o SB 328 specifies that FAR includes floor lot ratio – as used by certain jurisdictions, such as the City of Miami. 

Local Incentive Bonuses, Variances and Special Exemptions are Available for Live Local Act Projects 

• SB 328 adds clarifying language regarding bonuses, variances, or other special exceptions provided in the local government’s land development regulations as an incentive for development. 
o SB 328 also provides a clarification that: (1) local governments are not precluded from granting a bonus, variance, conditional use, or other special exception to height, density, or floor area ratio in addition to the height, density, and floor area ratio requirements provided by the Live Local  Act; and (2) that the Live Local Act does not preclude a proposed Live Local Act Project from receiving a bonus for density, height, or floor area ratio pursuant to an ordinance or regulation of the local government if the proposed development satisfies the conditions to receive the bonus.

Additional Transit-Related Parking Preemptions

SB 328 provides that Live Local Act Project located within a transit-oriented development (“TOD”) or area, recognized by the local government, must be mixed-use residential and otherwise comply with the requirements applicable to the transit-oriented development or area except for use, height, density, and FAR.
o SB 328 provides an additional preemption that requires the local government to “eliminate parking requirements” for these mixed-use residential TOD Live Local Act Projects.  

SB 328 makes mandatory a 20% parking reduction for Live Local Act Projects:
o Located within 1/2 mile of a major transit hub “accessible from the development by safe, pedestrian friendly means, such as sidewalks, crosswalks, elevated pedestrian or bike paths, or other multimodal design features.”
A “major transportation hub” is defined to mean “any transit station, whether bus, train, or light rail, which is served by public transit with a mix of other transportation options.”
o With available parking within 600 feet of the proposed development which may consist of options such as on-street parking, parking lots, or parking garages available for use by residents of the proposed development.

Other Miscellaneous Zoning Related Modifications

SB 328 requires local governments to maintain a policy containing the procedure and expectations for the administrative approval of Live Local Act Projects on their websites.

SB 328 adds a grandfathering provision, which provides that Preemption Projects must be treated as conforming uses even after the expiration of the affordability period (30 years) and provides that if the Preemption Project violates the affordability period requirement, it must be provided a reasonable time to cure before the Preemption Project is treated as a nonconforming use.

SB 328 provides a clarification that allows for mixed ownership Live Local Act Projects (condominium/apartment hybrid buildings). The proposed text now states that qualifying Live Local Act Projects are those which have at least 40 percent of the residential units in a proposed multifamily development as rental units that are affordable for a period of at least 30 years. 

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