Could Florida's Live Local Act mean affordable housing in high-rises?

There are some 96,000 attorneys in Florida, which means there are 96,000 different interpretations of the Live Local Act that was passed by the state legislature earlier this year.

That’s what Sarasota Deputy City Attorney Michael Connelly told city commissioners during a July 10 workshop discussion about Senate Bill 102, the 55-page piece of legislation that has cities across the state scrambling to determine its potential impact on their zoning code. The bill is the legislature’s attempt to respond to Florida’s attainable housing issues, using a combination of funding, mostly state funding, tax credits, tax exemptions and land use controls to create incentives for affordable housing. 

“The vast majority of that act will have no direct impact on the city,” Connelly said. “There are two pages that will directly impact the city.”

Those pages say a jurisdiction:

• Must authorize multifamily and mixed-use residential as allowable uses in any area zoned for commercial, industrial or mixed use if at least 40% of the residential units in a proposed multifamily rental development are, for a period of at least 30 years, affordable as defined.
• May not require a proposed multifamily development 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 by the legislation. For mixed-use residential projects, at least 65% of the total square footage must be used for residential purposes.
• May not restrict the density of a proposed development authorized under this subsection below the highest allowed density where residential development is allowed. 
• May not restrict the height below the maximum currently allowed for a commercial or residential development located in its jurisdiction within one mile of the proposed development, or three stories, whichever is higher. 
• Must be administratively approved if the development satisfies the land development regulations for multifamily developments in areas zoned for such use and is otherwise consistent with the comprehensive plans.

What does all that mean legally? 

“There are some 96,000 attorneys in the state of Florida, we all have an opinion and that's all it is right now. They're just opinions,” Connelly said. “Whatever disputes we have between local governments and developers over the next six months, those developers are going to be going up to their legislators in Tallahassee next spring. And that's when we're going to get the answers.”

Those as-yet-unknown answers are what concern Commissioner Jen Ahearn-Koch. Because the Live Local Act currently applies only to rental developments, the prevailing opinion is that it would be impractical to develop high-density affordable housing high-rises on valuable property, at least in downtown zoning districts on pricey land, combined with escalating construction costs.

What if, Ahearn-Koch asked, future tweaking of the law to render greater practicality made it possible to build a high-rise on— as a worst-case scenario — St. Armands Circle with the city unable to prevent it?

“There is a lot of angst about this and I cannot answer the questions if I don't know, and I don't know what these worst-case scenarios are,” she said. “What does that look like at 40% rental at 120% AMI, If you could sell condos on the top five floors at $5 million?”

For now that isn’t possible, but with commercial zoning there, heights in theory could reach 110 feet.

“You have to also look at this from a financial and economic perspective,” said Brown. “So yes, there is the possibility that they can go to 110 feet, but practically, is someone going to spend that money to do 40% affordable and have it all rental?”

City Attorney Robert Fournier further explained that the legislation does limit the height and density to current comprehensive plans and zoning codes. There could be 18-story, 200 units per acre affordable housing rental towers in districts that currently permit such scale, but it isn’t likely.

“I just returned from the Florida Municipal Attorneys Association Conference and there was a discussion about this, and most people seemed to think that the height wouldn't really exceed much above five stories because of the economics of going higher and the increased cost of construction,” said Fournier. “That was a generalized sentiment, but it seemed to be the consensus.”

Projects of a more modest height and density, Brown added, would be more likely among single-family neighborhoods. The density and height, though, would still be subject to limits prescribed by the city's comprehensive plan and zoning text, and permitted heights within that 1-mile radius. Such projects, Connelly and Fournier agreed, would also be subject to the city’s affordable housing ordinance that prescribes tiering attainable rent rates at one-third of the units at 80% and below, 81%-100% and 101%-120% AMI.

“What we've heard is that it's very unlikely that developers will take advantage of this in downtown,” added Planning Director Steven Cover. “The downtown land is obviously very expensive. High-rise construction is super expensive. We've heard that they've crunched numbers and it's really iffy. With 40% of the units having to be attainable in an area that's super expensive, and construction costs are high, it’s pretty unlikely, especially when you're looking at maximum rents in the in the teens and low 2,000s.”