Changing the law: How negotiations over Live Local Act amendments unfolded

During the legislative process to fix holes and beef up the Live Local Act this past session, Florida lawmakers heard from attorneys, lobbyists, elected officials and the public, all airing their problems with the landmark affordable housing bill that was signed into law last year. 

Attorney Anthony De Yurre, a partner at the Miami law firm Bilzin Sumberg, said he acted as a sort of crossing guard — bridging the gap between the law and how it is being interpreted by local municipalities and developers. His experience working with the public sector dates back to when he was a law clerk at the city of Miami while the Miami 21 zoning code was created. 

Live Local is meant to encourage developers to build workforce housing by offering them zoning and tax incentives if they set aside at least 40 percent of their rental units to households earning up to 120 percent of the area median income for a period of at least 30 years. 

That’s where De Yurre and Senate Bill 328 came into play. De Yurre, directly and indirectly through other lobbyists, represented the interests of real estate developers, lenders and investors as he advocated for changes in the amendments bill that was passed this year. 

The bill, which Gov. Ron DeSantis signed into law in May, is more developer friendly. It incorporates floor area ratio into the incentives that Live Local provides — so any developer that sets aside the required amount of workforce housing can build up to 150 percent of the highest currently allowed FAR in that municipality. This was one of the holes that some local governments tried to use to slow or stop some projects. Their issue? The law forces municipalities to administratively approve projects with density, height and FAR increases. 

The latest law beefs up parking incentives. It eliminates parking requirements if the project is part of a transit-oriented development, and reduces the amount of required parking if the project is within a half-mile of a major transportation hub. The legislation’s property tax savings help developers subsidize the rent. SB 328 also allows condo developers to incorporate workforce rental housing into their projects and take advantage of the incentives. 

The Real Deal spoke with De Yurre, who gave insight into how the sausage was made. He declined to name his clients. 

How did you push for some of these industry friendly changes?

I have a pool of clients that I know cannot get their return on costs and get underwritten on these deals, and these deals are not going to work the way it was drafted. Condos are their own world. They’re working, but multifamily developers can’t hit the return on costs. 

I was volunteering language to specific lobbyists in Tallahassee, who were directly engaging on behalf of specific clients for me. When it was a specific client, I had to go through the lobbyists; these are just particular rules. Independent of that particular client, there were a number of policy initiatives that I was working on [through my] involvement in ULI, the Chamber of Commerce workforce housing committee, the Builders Association of South Florida. Some of the stuff got done that way as well. 

You said a disconnect exists between the policy initiatives coming out of the Florida Legislature and how those laws are written. Where do you come in? 

I helped draft different versions to help them to effectuate it, and at the same time [I] communicated where there were some instances where interpretations were being made that were frustrating that intent. 

The tax exemption took a very long time to figure out. We figured it out almost accidentally, when going through specific anecdotal examples of how Live Local will be applied to particular properties. The property appraiser was showing a smaller exemption. We literally had an Excel sheet, we expanded the cells, and I said, ‘Wait a second, what is that cell, E24, and why is that not being counted in the tax exemption? They said, ‘Oh, well, that’s the land value. We cannot include the land value pursuant to appraisal guidelines and what the statute says.’ I said, ‘Well, that’s not the legislative intent. It was this.’ The property appraiser took note. 

The intent for the Legislature was to include the proportionate share of the entire tax, but when it came down to it, it was only 50 cents on the dollar. So to the credit of the Miami-Dade County Property Appraiser’s office, they did not take a position to frustrate the legislative intent. I literally got the Senate sponsor and the property appraiser’s office together. I had a call with each of them and I go, ‘Now you speak. I don’t want to get involved in between the two government agencies or elected officials talking to each other. But this is the legislative intent. This is how you’re interpreting it. I think you both are on the same page. Now discuss it with each other.’ And they did.

What happened?

Then I helped the property appraiser. We were requested to provide a draft, which we did jointly. We submitted it, and it was accepted word for word. And now the tax exemption as a result of this is double — double, meaning what it should have been in the first place.

[This process] has absorbed more time than any single thing I’ve ever done in my life. And sometimes you get the opportunity to, sometimes you get called to make these drafting decisions or weigh in on particular issues, when they have the legislators on a plane, for example. 

While the lawmakers are on a plane?

Remember, people are flying back and forth to caucuses all over the country. That’s the window we have, and you need to be available on a Sunday or Saturday. I was explaining to my kids, my wife, that I have to be available. My wife was like, ‘You’re not a doctor.’ She’s a nurse practitioner. 

I think at this point in time, my kids can give a pretty good presentation on [Live Local]. 

What other parts of SB 328 were you involved in?

There was a lot of back and forth on whether industrial [sites] would come out. Will the [maximum allowable height of the project match the tallest buildings within] a mile or a quarter mile? Will it be dependent on the size of a county being over 650,000 residents or less than 600,000 residents? There were drafts flying around to make it into amendments. There were some bad ideas from the beginning, or they didn’t meet constitutional muster for preemption, and [those got] cut immediately. 

The parking exemption for transit-oriented developments is a big deal. Why?

Parking becomes 50 percent of the square footage in the building. If 50 percent of your square footage [is parking], you’re never going to hit the return on cost number that you need for a lender to finance your deal or an investor to invest in it. 

I never dealt with [Sen. Rosalind Osgood] directly or any of the lobbyists that I was working with on it, but there were a number of different people that knew about construction and understood the importance of transit-oriented development that it became part of the bill. It wasn’t Anthony De Yurre up there by himself by any stretch of the imagination. But you know, once these ideas started going back and forth about industrial, the height situation protecting single-family neighborhoods, that was something I was definitely involved in because I tried to focus the discussion on what is giving the local municipalities heartburn. 

What made it into the law that you hoped would not?

The one thing that I didn’t agree with was the airports. That one is a perfect example of what happened throughout the entire bill. This comes out of nowhere. Airports want supporting industrial facilities around airports, but what they don’t want is residential. So the [airport lobby] said, ‘We don’t want you to do any zoning benefits for Live Local within a 10,000 foot radius of the point of any runway.’

Think about Miami International Airport. It’s in the middle [of Miami-Dade County] between the Everglades and the bay, which is seven miles wide. You’re talking about taking five miles out of seven miles that are available smack dab in the middle of the city. What is an incredible employment center for workforce housing tenants? The airport. So it was mind boggling. 

We, the lobbyist I was working with, got very active and drafted a ton on that. I actually had a project that was falling in that band, so we got vesting language [added so the project would be grandfathered in]. My project would have been negated by the new law. The 10,000-foot radius [got changed to] to a 10,000-foot flight path, which makes a lot more sense. 

Some projects have caused a commotion in specific cities, like the proposed Clevelander redevelopment on Ocean Drive in Miami Beach and the Bal Harbour Shops expansion in Bal Harbour. Do you view these as distractions from the law’s intent?

I think they’re absolute outliers. If it’s not a Live Local deal, the deal is not working. 

If I can’t make the number work for you, then don’t hire me. And don’t work with me and tell me I’m crazy. 

Now that SB 328 is law, what’s next? 

This never stops. Now we’re going to the Attorney General’s Office for certain interpretations on specific definitions that are being interpreted a thousand different ways by different jurisdictions. And having discussions with the Department of Revenue in regards to the tax exemption, and some nuances. The thing that I would tell everybody is, the law exists in a vacuum at the state level. Then you have to work with specific municipalities and interpret it at a municipal level.