Office of County Attorney awaiting response to request for opinion from Office of the Florida Attorney General
The summary of an independent legal opinion that the Office of the Sarasota County Attorney requested on behalf of the County Commission, in regard to facets of the state’s Live Local Act, says the law “has become one of the most significant state-level preemptions of local land use and zoning authority in recent years.”
Written by Valerie Vicente and Heather Encinosa, partners with the Tallahassee firm of Nabors Giblin & Nickerson, the memorandum notes, “Since [the law’s] enactment in 2023, the Legislature has revisited and amended the Act in successive legislative sessions to clarify its application, address ambiguities, and expand the scope of its preemptions. As a result, its application continues to evolve and should be evaluated on a case-by-case basis, with careful consideration given to the applicable zoning district, comprehensive plan consistency, site-specific facts, and any subsequent legislative or judicial developments.”
The memorandum does explain that it “is intended as a general overview of the Act’s zoning and land use preemptions and related affordable housing ad valorem tax exemptions, and should not be construed as a parcel-specific legal determination or an analysis of the Act’s ad valorem tax exemption provisions or other non-land use components of the Act.”
It further points out that it “does not include an analysis or opinion as to how the Live Local Act applies to specific zoning districts within Sarasota County …”
The memorandum was sent on May 1 to County Attorney Joshua Moye and Assistant County Attorney Stephen Shaw, who specializes in land-use issues. It beat by five days the deadline that Commissioner Teresa Mast had made in an April 21 motion, which her colleagues fully supported. The motion came in the aftermath of the County Commission’s unanimous vote on April 7 to implement a Sarasota County policy that no parcel zoned for open use or rural or residential uses could be considered as the site of a Live Local Act development.
That County Commission action was a response to a multitude of concerns that members of the board indicated that they had received from their constituents, especially those living next to properties zoned Open Use Estate and Residential Estate, about development proposals created under the aegis of the Live Local Act.
County Attorney Moye told the board members that, as a result of their vote, it would be up to entities that had submitted Live Local Act applications to the county for initiatives on parcels with the above zoning to file suit against the county in response to the policy.
As of the commission’s regular meeting on April 21, Moye reported that none of the applicants had filed complaints against the county over the new policy. A Sarasota News Leader check of 12th Judicial Circuit Court records late in the morning of May 14 found no litigation related to the board’s new policy.
Mast’s April 21 motion also directed Moye to seek an opinion from Florida Attorney General James Uthmeier on the land-use aspects of the law.
In an April 30 memo to the commissioners, Moye summarized the first part of Mast’s motion as seeking an “ ‘outside legal opinion as to the general applicability and application of the Live Local Act.’ ”
He further noted that the Office of the County Attorney had sent the request for the opinion to the Florida Attorney General’s Office; he included a copy of that with the memorandum.
Facets of the Nabors Giblin document
The Nabors Giblin memorandum points out, “Since its enactment in 2023, the Act’s preemption provisions, which limit a local government’s application of its use, height, intensity, density, parking, and procedural requirements to qualifying affordable housing developments, have been subject to considerable interpretation and scrutiny, particularly in their practical application.”
It notes that the Florida Legislature has amended the Live Local Act three times.
Referring to the current version, the Nabors Giblin memorandum explains, “By its terms, the Act does not apply to residential zoning districts and is limited to multi-family affordable housing, not single-family affordable housing.”
Moreover, it says, “[A] proposed multifamily residential development must set aside at least 40 percent of its units as ‘affordable’ … for a minimum period of 30 years.”
Then the memorandum points out, with emphasis, that a county must allow “multifamily and mixed-use residential as allowable uses in any area zoned for commercial, industrial, or mixed use, and in portions of any flexibly zoned area such as a planned unit development for commercial, industrial, or mixed uses.”
Because of ambiguity “regarding what constituted ‘commercial,’ ‘industrial,’ and ‘mixed-use’ zoning under the act, “particularly given that many local zoning codes use unique classifications that do not align neatly with these traditional categories,” the 2025 amendment to the law provided the following definitions:
Among other details, the memorandum includes a statement mirroring comments that County Attorney Moye has made to the County Commission: “Further highlighting the Legislature’s intent to limit local government discretion, the Act imposes mandatory attorney’s fee awards to the prevailing party in actions alleging a violation of the Act, subject to a $250,000 cap. See §125.01055(7)(m) [of the Florida Statutes]. The Act further provides that courts must prioritize any civil action brought against a county alleging a violation and issue a preliminary or final ruling as expeditiously as possible. See §125.01055(7)(l), Fla. Stat.”
Further, the memorandum discusses the 2026 amendment that the Florida Legislature approved to the Live Local Act through both House Bill 1389 and Senate Bill 962. (As of May 11, Gov. Ron DeSantis had not signed either bill, according to a report by Orlando TV station WKMG. If he takes no action on them, they would go into effect on July 1, as specified in state law.
Among the “most significant proposed changes” under the House bill, the Nabors Giblin memorandum continues, is the creation of “several new express exemptions from the Act, including … open space and open-use land development districts established before July 1, 2026 [and] portions of property encumbered by recorded conservation easements.”
That bill, the Nabors Giblin attorneys wrote, also refined the definitions of “ ‘commercial use’ and ‘industrial use’ by expressly excluding farms and farm operations …” Thus, they pointed out, if House Bill 1389 becomes law, “traditionally zoned agricultural lands no longer qualify as eligible ‘commercial’ or ‘industrial’ property under the Act.”
Senate Bill 962, the memorandum added, has “the practical effect” of clarifying “that agricultural lands do not constitute qualifying ‘commercial,’ ‘industrial,’ or ‘mixed-use’ lands for purposes of the Act’s use preemption.”
The memorandum does acknowledge that the Live Local Act “has generated litigation throughout the State of Florida,” but much of that “has either been resolved through settlement or remains pending without final judicial rulings, leaving local governments with limited case law guidance on the interpretation and application of the Act.”