On March 28, 2023, Governor Ron DeSantis signed into law Senate Bill 102 (“Live Local Act” or the “Act”). The Act is a multifaceted law that supports the development of affordable housing in Florida by expanding and creating affordable housing programs, initiatives and incentives.  Among its provisions, Section 125.379 of the Florida Statutes, which permits the conveyance of property owned by Florida counties to private developers for the purpose of developing affordable housing, was revised by the Act to encourage more development pursuant to that statute. The Act also makes conforming changes to Section 166.0451, Florida Statutes (together with Section 125.379, the “Statutes”), which provides the same powers to municipalities in Florida. These changes have the potential to help mitigate the housing crisis in Florida by increasing development opportunities through the efficient use, or disposal, of public assets. 

The Statutes were enacted in 2006 and permits counties and municipalities to sell or lease property for the development of affordable housing without a competitive process. Miami-Dade County has frequently taken advantage of this in order to provide much-needed affordable housing. In fact, Bilzin Sumberg has been involved in a number of recent transactions in which a client was awarded a long-term ground lease from Miami-Dade County pursuant to this statute for the development of affordable housing. Most recently, Miami-Dade County entered into a long-term lease with our client for the development of affordable housing adjacent to the Palmetto Metrorail Station. Specific changes to the Statutes are described below:

Registry:

The Statutes have always required that counties and municipalities keep an inventory list - to be updated every three years - of property in which it holds a fee simple interest that would be appropriate for affordable housing, including the address and legal description of each parcel contained therein, and specifying whether such parcel is vacant or improved. The inventory list must then be reviewed by the county or municipality’s governing body at a public hearing, revised if necessary, and adopted by resolution. However, the Act revises the Statutes to require that the inventory lists be completed (to the extent they have not been completed already) by October 1, 2023. Importantly, the Act now requires that each county and municipality must publish its inventory list on its website, and explicitly states that the purpose is to encourage development. The Act also extends these requirements so that they apply to any dependent special district within the boundaries of a Florida county or municipality.

Permitted Methods of Development:

The Statutes have always permitted various methods of conveyance of county or municipality-owned property for the development of affordable housing. However, the Act revised the Statutes to explicitly state that a county or municipality may enter into a long-term land lease requiring the development and maintenance of affordable housing. This clarification will make it more attractive for counties and municipalities to enter into transactions for the development of public land as affordable housing, knowing that such transactions can be structured without transferring fee simple ownership of the land. As with the registry requirements discussed above, the Act extends these provisions so that they apply to any dependent special district within the boundaries of a Florida county or municipality.  

Best Practices:

Finally, the Act revises the Statutes to encourage counties and municipalities to adopt best practices with respect to surplus land programs. Best practices include, but are not limited to:

• Establishing eligibility criteria for the receipt or purchase of surplus land by developers;
• Making publicly available the process by which surplus lands may be requested; and
• Including clauses in ground leases granting a right of first refusal to purchase property that would be sold or offered at market rate, and providing for the reversion of property not used for affordable housing within a certain timeframe.

An example of such a “best practices” policy is Implementing Order 8-4 adopted by Miami-Dade County last year. The order includes eligibility criteria for potential developers, details the application process for requesting surplus property, and includes a number of required clauses that protect the county in the event that the development does not move forward as proposed.

Bilzin Sumberg’s Land Use/Zoning, Procurement, Affordable Housing and Real Estate teams have been closely monitoring and analyzing the Live Local Act.