Affordable housing incentive amendments win County Commission approval

Florida Housing Coalition and other opponents of the changes contend they are not needed for county compliance with a 2019 state law

Editor’s note: This article was updated early in the afternoon of Jan. 15 to include a new chart from county staff showing the complete list of affordable housing units the County Commission has approved.

This chart, shown to the Commission this week, shows the number of affordable housing units planned in new communities created under the guidelines of the county’s 2050 Plan for development east of I-75. Image courtesy Sarasota County

With Sarasota Commissioner Nancy Detert absent because of ill health, her colleagues this week voted unanimously to approve changes in county policies related to affordable housing incentives, citing concerns about a state law that went into effect in 2019.

On Sept. 22, 2020, Detert was the sole board member to vote against the recommended amendments to the county’s Comprehensive Plan and Unified Development Code (UDC); the latter contains all of the county’s land-development and zoning regulations.

“What has proved to be the unsolvable problem,” Detert said during that meeting, is “we keep offering these incentives and builders accommodate or don’t accommodate … and then we pretend we did something about affordable housing.”

The 3-1 vote that day — with Commissioner Michael Moran absent because of a family emergency — authorized staff to transmit the proposed county Comprehensive Plan changes to the Florida Department of Economic Opportunity (DEO) for its staff’s review, as required by the state before the board could implement any changes.

(The DEO staff offered no comments, county Planner Steve Kirk told the commissioners during their regular meeting on Jan. 13.)

This is a revised chart, released after the Jan. 13 meeting, showing the complete list of affordable housing units planned for projects the County Commission has approved. Image courtesy Sarasota County

In responding to questions board members posed on Jan. 13 about the proposed amendments, Deputy County Attorney Joshua B. Moye explained that county staff is not absolutely certain that the county’s policies and regulations conflict with the provisions of Florida Statute 125.01055.

The law says that if a county has a policy requiring that a developer construct affordable housing, Moye pointed out, then the county “has to fully offset the cost …” The concern, he added, is that staff does not know the value of the incentives it has been providing. “There could be potential litigation,” Moye continued, if the county did not modify its policies and regulations to conform to the language in the Florida Statutes.

“If our current system doesn’t provide enough incentive to offset [the developer’s expense in creating affordable housing units],” he said, “then the county would be responsible for that difference. … It could be a significant amount.”

Deputy County Attorney Joshua More addresses the commissioners on jan. 13. News Leader image

Moye added, “‘Fully offset’ is not defined anywhere [in the Florida House bill that was the basis for the state law].”

The county’s Planning and Development Services staff had proposed the revisions to the Comprehensive Plan and the UDC, Moye pointed out, “to make clear” that the county has a “fully incentive-based system [that is] voluntary.”

Commissioner Michael Moran said he interpreted the state intent as, “If a community wants to do affordable housing, fine, have at it, but don’t be pushing that on the private sector, period.”

“Yes, that’s correct,” Moye replied.

Thus, as Planner Kirk noted, proposed Amendment 23 to the UDC, in regard to Village developments in the county’s 2050 Plan — which governs new communities east of Interstate 75 — calls for the following:

  • 2 incentive dwelling units for every housing unit provided for a family at or below the 80% Area Median Income (AMI).

(Every year, the U.S. Department of Housing and Urban Development sets the AMI for each Metropolitan Statistical Area. For 2020, the median family income for the North Port-Sarasota-Bradenton area was $76,700. Therefore, 80% of the AMI for a family of four in Sarasota County would have been $61,200.)

  • 1.5 incentive dwelling unit for every housing unit provided for a family at or below the 100 percent AMI.
  • 1 incentive dwelling unit for every housing unit provided for a family at or below the 120 percent AMI.

None of the 2050 Villages the commission has approved would be affected by the changes, Deputy County Attorney Moye told the commissioners.

This is an amendment to the Unified Development Code that the commissioners approved this week, with the new language in red. Image courtesy Sarasota County

A chart that Planner Kirk showed the board noted, for example, that the Grand Lakes development, a Neal Communities project to be built south of Clark Road and east of I-75, was approved for 274 additional housing units on the basis of the 165 affordable homes that Neal committed to constructing. Grand Lakes is being planned with 1,097 homes on 533 acres.

Florida Housing Coalition takes a different view

Regardless of staff’s worries about the 2019 state law, representatives of the Florida Housing Coalition say they believe the county’s policies and regulations are sufficient.

In a Jan. 5 memo to the commissioners, Jamie Ross, president and CEO of the Florida Housing Coalition, and Kody Glazer, legal director of that organization, urged the commissioners not to implement the proposed amendments.

The 2019 state law, their memo pointed out with emphasis, “is designed to keep developers economically whole in exchange for production of affordable housing. Sarasota’s current [Comprehensive Plan] and ordinance [are] fully compliant with this law. Sarasota has fully offset the cost of the affordable housing by providing valuable development rights in exchange for the affordable units.

This is a banner on the Florida Housing Coalition website. Image courtesy Florida Housing Coalition

“For example,” Ross and Glazer continued, “if the current code only allows 1 unit per 10 acres for an existing Rural designation and the Village designation allows up to 5 units per acre … a rezoning will allow a developer the possibility of up to 60 units per 10 acres — an increase of 59 buildable units on the same 10-acre lot. In this example, by the act of allowing the Village designation in the first instance, the value of the property increases through the potential of 59 more buildable units. By repealing the affordable housing requirement outright, the County loses the ability to calculate how the Village designation itself increases the value of property to comply with the state’s inclusionary zoning law.”

Ross and Glazer also pointed out, “The areas that can be optionally overlayed with the [2050 Plan] ‘Village’ designation to allow housing development are mostly currently designated as rural with some as semi-rural. Therefore, it is likely that most developers that utilize the voluntary Village designation and its accompanying density allowances will experience a windfall in increased land value given most of the land is currently zoned for rural uses.”

“To its credit,” the memo further noted, “the County has created 2,8890 affordable housing units” as a result of its Affordable Housing Overlay zoning regulations.

Commissioner Moran ended up making the motions to put the revised county policies and UDC amendments into effect. Commissioner Ron Cutsinger seconded them.

Cutsinger pointed out that he had served on the county’s Affordable Housing Advisory Committee. That group made “some great recommendations,” he added, “and this commission … moved forward on many of those.”

Chair Alan Maio noted some of the changes to which Cutsinger had alluded, including provisions for reduced parking requirements and lower impact and utility fees for smaller dwelling units, to encourage developers to pursue such construction.

A section of the Affordable Housing Overlay policy shows changes approved by the County Commission in September 2015. Image courtesy Sarasota County

Cutsinger also stressed that county staff members proposed the Comprehensive Plan and UDC amendments; the commission did not call for the changes.

If the board did not approve the amendments, he said, “We have a real risk here.”

Other opponents and one supporter

Two speakers during the Jan. 13 public hearing also urged the board members to maintain the existing policies and regulations.

Minjee Kim. Image from Florida State University

Minjee Kim, an assistant professor in the Urban Planning Department at Florida State University, told the commissioners she teaches courses on land-use law and zoning issues. “The most powerful tool that local governments can use to meet the new standard [in the state law] is exactly what you’ve been doing,” she said, based on her research.

The county allows the rezoning of rural and agricultural land for new developments, she added. “Just that opportunity creates tremendous value.”

Sarasota attorney Dan Lobeck pointed out that county staff said the amendments would not change the function of the county’s affordable housing policy. “Nonsense,” he told the board members, stressing the voluntary option of creating affordable housing, as outlined in the 2050 Plan for Village developments.

Allowing extra market-price dwellings as an incentive for constructing affordable homes, Lobeck maintained, leads to “a huge increase in profit” for a developer.

The only supporter of the amendments who addressed the commissioners on Jan. 13 was Jon Mast, CEO of the Manatee-Sarasota Building Industry Association, who is chair of the county’s Affordable Housing Committee.

“Miami-Dade [County] just eliminated inclusionary housing [from its regulations] because it doesn’t work,” Mast said, referring to the state language regarding affordable housing. Such provisions do not “work across our country,” Mast added.

Moreover, he continued, new affordable homes do not need to be constructed east of I-75 in Sarasota County. “Affordable housing needs to be in our inner core.”

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