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The 2024 legislative session is now in full swing, with the legislature considering an unprecedented number of bills that may affect existing land use, development, and environmental laws. This suggests that Florida’s steady growth—and the accompanying practical and environmental concerns that come with it—are at the forefront of the policy debate this year. Clients should be aware of the potential changes that could impact their developments. For more information, please contact us.
Significant Amendments Proposed to the Recently Enacted Live Local Act
Senate Bill 328 and its companion, House Bill 1239, propose substantial changes to the recently enacted “Live Local Act.” The existing Live Local Act is a transformative piece of legislation designed to tackle Florida’s affordable and workforce housing shortage. It provides a streamlined administrative approval process for certain proposed developments in areas zoned for commercial, industrial, or mixed use, so long as a certain percentage of units are designated as affordable housing and other requirements are met.
However, the proposed Bills make significant alterations to the existing Live Local Act, and place additional restraints on the administrative approval process. Notably, the Bills would carve out property within a certain proximity to military installations and airport-impacted areas, including properties near smaller executive airports, from using the administrative approval process. These changes have had a significant effect on projects, as the proximity extends far beyond the airport and surrounding property. In addition, Senate Bill 328 decreases the previously granted height allowance if the property is adjacent to single family homes. Finally, Senate Bill 328 requires projects within a transit oriented development or area, as designated by the local government, to be mixed use. There are also certain parking reductions that are now available for projects utilizing the administrative approval process.
The Bills also clarify some of the uncertainties that surround the existing Live Local Act. For example, the existing Act states that a local government may not restrict the density of an otherwise-qualifying affordable housing development below the highest density permitted in the local government’s land development regulations, but it is silent as to a local government’s power to restrict floor area ratio (“FAR”). The Bills would fill in this gap, including the same limitation on a local government’s ability to restrict the FAR of an otherwise-qualifying development. In addition, the Bills clarify that 40% of the units must be affordable rental units, but the other multifamily units could be market rate for sale. Other proposed amendments include language to deem projects utilizing the administrative approval process as a conforming use for the 30-year affordability period and language imposing a 30-day cure period if a violation of the 30-year affordability period is found. Right now, Senate Bill 328 is moving faster and has some different language than House Bill 1239.
We are closely monitoring the progress of both Senate Bill 328 and House Bill 1239, and will continue to provide updates.
Proposal to Streamline Certain Changes to
Previously Approved Developments of Regional Impact
Senate Bill 1110, and its companion, House Bill 1177, among other things, would make substantial changes to Section 380.06(7)(a), Florida Statutes, which controls all proposed changes for previously approved Developments of Regional Impact (“DRIs”). Generally, any proposed change to a previously approved DRI must be reviewed based on the standards and procedures found in that local government’s comprehensive plan and land development regulations. The Bills establish an administrative approval process applicable to proposed changes that reduce the originally approved height, density or intensity and proposed changes that alter “the location, types, or acreage of uses and infrastructure.”
Additionally, the Bills require approval for proposed changes that show “a dedicated multimodal pathway suitable for bicycles, pedestrians, and low-speed vehicles … along any internal roadway … so long as the right-of-way remains sufficient for the ultimate number of lanes of the internal road.” Moreover, they require approval to changes that propose a multimodal pathway in lieu of a traditional internal road, so long as two conditions are met: (1) the pathway does not have the effect of making any road within or adjacent to the DRI fall below the adopted level of service; or (2) the pathway does not increase trip distribution for roads analyzed within the DRI by more than 20%. Thus, these Bills would have the effect of expediting and streamlining the approval of certain proposed changes to existing DRIs.
Changes on the Horizon for Applicants and Holders of
Credits Under a Transportation Concurrency System or Alternative System
House Bill 479, and its companion, Senate Bill 688, would generally streamline the process of mitigating transportation impacts. Under the existing law, an applicant can satisfy transportation concurrency by entering into a binding agreement with a local government to pay for or construct his or her proportionate share of the required improvements. These Bills would require this binding agreement to contain certain language. Specifically, the Bills require the agreement to state that, after contribution, “the project shall be considered to have mitigated its transportation impacts and be allowed to proceed.” They further state that a local government may not prevent a single applicant from proceeding after the proportionate-share contribution is satisfied.
The Bills also clarify the effect of previously acquired credits under a transportation concurrency system when a local government subsequently adopts an alternative system. The Bills reference a local government’s ability to adopt alternative systems (i.e., an alternative mobility planning and fee system, or an alternative system that is not mobility plan and fee based). The proposed laws expressly state that the holder of any previously acquired credits “is entitled to the full benefit of the intensity and density prepaid by the credit balance as of the date the alternative funding system was first established.” Thus, the Bills will also benefit holders of previously acquired credits when a local government adopts some alternative to the traditional transportation concurrency system.
Changes to the Local Government “Shot Clock” for
Approving or Denying a Development Permit or Development Order
House Bill 791, and its companion, Senate Bill 1150, concern the timeframes (the “shot clock”) within which a county (amending Section 125.022, Florida Statutes) or municipality (amending Section 166.033, Florida Statutes) must approve or deny a development permit or development order. Substantively, the Bills would require local governments to specify in writing the minimum information that must be included in an application for various land use entitlements. They also require a local government to confirm the receipt of a submitted application within five business days.
The Bills do not completely overhaul the shot clock for the approval or denial of an application, but instead add clarification to the different timelines that may apply depending on whether the application requires final action through a quasi-judicial hearing or not. If an application does not require final action through a quasi-judicial hearing or public hearing, then the local government must “approve, approve with conditions, or deny” the application within 120 days after deeming an application complete. If an application does require final action through a quasi-judicial hearing or public hearing, then the local government must “approve, approve with conditions, or deny” the application within 180 days after deeming an application complete. Critically, the Bills allow both parties to agree in writing to extend this timeline, and state that the shot clock will restart if an applicant makes substantive changes (as that term is defined in Section 163.3164, Florida Statutes) to an application.
Changes to Chapter 163, Part II, Related to
Local Government Comprehensive Plans and Land Development Regulations
House Bill 1221 and its companion, Senate Bill 1184, propose to amend Ch. 163, Part II, regarding requirements for Comprehensive Plan amendments and land development regulations. Key changes include:
- Amending the definition of “intensity” to delete references to natural resource demand and public facility and services demand;
- Amending the definition of “urban service area” to allow for agreements for private funding of supporting infrastructure;
- Requiring siting of public schools in proximity to urban service areas;
- Clarifying optional elements must be consistent with other elements of the Comprehensive Plan and may not restrict density and intensity allowed by the Future Land Use Element;
- Amending the definition of “urban sprawl” and related criteria for discouraging urban sprawl;
- Amending supporting data and analysis requirements for Comprehensive Plan amendments;
- Providing new definition of “infill residential development”
- Amending s.163.3202 to require local government land development regulations to:
- establish minimum lot sizes for single family, duplexes and townhouses based on the applicable maximum density allowed by the Comprehensive Plan;
- account for areas set aside for infrastructure, open and other areas not available for development in determining minimum lot sizes; and
- allow for administrative approval of infill development for single family, duplex and townhouse lots.
- Declaring infill residential development to be consistent with the Comprehensive Plan and Land Development Regulations.
- Amending the definition of “agricultural enclave” to account for proximity to an urban service district and specifying related local government review procedures related to consistency with the Comprehensive Plan, Zoning and Land Development Regulations.
Proposal to Preempt Wetlands Buffer Zones to the State
In short, House Bill 527, and its companion Senate Bill 664, would have the effect of preempting the determination of wetlands buffer zones to the state. The Bills would add subsection (8) to Section 373.421, Florida Statutes, which governs the method to delineate the extent of wetlands throughout Florida. Specifically, the Bills would require local government buffer zones for land or water delineations to the extent that those buffer zones exceed the delineation determinations made by the Department of Environmental Protection (“DEP”) or the requisite water management district. If a local government buffer zone does exceed the DEP or water management district delineation of the wetland line, then the local government’s only recourse to maintain its more stringent buffer zone is to acquire the property through eminent domain pursuant to chapters 73 and 74.
The Bills also expressly preempt dredge and fill activities to the DEP, although the DEP’s ability to delegate its powers to water management districts is not precluded. The Bills further repeal Section 373.591, Florida Statutes, in its entirety. This section required water management districts to establish “management review teams,” which were to be comprised of various local and governmental individuals to ensure that lands titled in the name of the water management district were being managed for the purposes for which they were acquired.
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