With Detert in minority and Moran absent, commissioners vote 3-1 to seek state review of amended county policies regarding incentives for affordable housing

Changes necessary because of 2019 state law, staff says

This is the state law that went into effect in 2019. Image courtesy Sarasota County

With Sarasota County Commission Chair Michael Moran absent — apparently because of a family emergency — and Commissioner Nancy Detert voicing multiple frustrations over the issue, the County Commission this week voted 3-1 to submit to state officials proposed revisions in county policies and regulations dealing with affordable housing incentives.

Assuming state officials approve the changes, the commission will conduct a public hearing on them on Jan. 13, 2021.

Staff recommended the amendments, county Planner Steve Kirk explained on Sept. 22, because of a state law that went into effect on June 28, 2019. Florida House Bill 7103 “requires that in exchange for … affordable housing units, a county must provide incentives to fully offset the costs to the developer of its affordable housing contribution,” a staff memo said. “Such incentives may include providing density or intensity increases or reducing or waiving fees such as impact fees or utility charges.”

Kirk pointed out to the commissioners that staff proposed amendments to four Future Land Use policies and one Sarasota 2050 Plan policy in the county Comprehensive Plan to ensure consistency between local regulations and the state law. The county’s Unified Development Code, which contains all the county land-development and zoning regulations, also should be amended, he noted.

For one example, the revised county Future Land Use Policy 1.2.15 would allow a property owner meeting specific criteria to build more than 13 dwellings per acre in certain mixed-use developments, if 15% of the additional units would be considered affordable housing.

(Housing that is considered affordable has pricing linked to the annual median income (AMI) in the North Port-Sarasota-Bradenton Metropolitan Statistical Area, as provided by the U.S. Department of Housing and Urban Development. This year, the median family income for the MSA is $76,700.)

A chart shows a range of the AMI figures this year for the Metropolitan Statistical Area containing Sarasota County. Image courtesy HUD

For another example, the county’s 2050 Plan, which guides development east of Interstate 75, would be amended to say, “Villages shall be incentivized to include housing for families with incomes below the [AMI] for Sarasota County, with a goal that at least 15% of the housing will be available for families with incomes below the median family income for Sarasota County using techniques, including but not limited to bonus incentive dwelling units in the Land Development Regulations and Zoning Regulations.”

The underlined language in red shows proposed changes to county Future Land Use Policy 4.3.1, as a result of the state law. Image courtesy Sarasota County

In a letter to the commissioners in advance of the hearing, Sarasota attorney Dan Lobeck, president of the nonprofit Control Growth Now, wrote, “The claim that [these amendments are] required by state law is flatly false [his emphasis]. The law allows a requirement for affordable housing in exchange for voluntary incentives which fully compensate the developer for the lost profit. It is beyond question that the Sarasota 2050 Plan does that.”

Lobeck added, again with emphasis, “The amendments would repeal the current requirement that in order to receive the incentive under the Sarasota 2050 Plan to build at urban densities and commercial uses rather than rural densities, not less than 15% of the units must be affordable housing, that is sold to families at under 100% of Area Median Income (with 2/3 of those homes at 80% AMI).

Attorney Dan Lobeck makes a point to the commissioners in May. News Leader image

“Instead,” Lobeck continued, “a developer would be allowed to build … up to 5 dwelling units per acre in the developed area with no affordable housing. All that would be left is the current ‘incentive’ that a developer could go up to 6 dwelling units per developed area acre if the extra units are affordable housing.”

Further, Lobeck wrote, with more emphasis, “Given the densities that developers have been building in Sarasota 2050 developments, the 5 units per acre will not be exceeded and developers will have no desire to get the 6th by affordable housing. So, goodbye affordable housing in Sarasota 2050 developments if this is adopted.”

A number of questions

Commissioner Detert was the first board member to respond after Kirk made his presentation on the issues and the staff recommendation.

“This is very complicated,” she said. When she asked Kirk where new affordable housing units are being developed in the county, he showed the board members a slide with those details. It included 2050 Plan projects commissioners have approved for construction east of Interstate 75.

For example, Kirk said, the Neal Communities project Grand Lakes calls for 1,097 homes on 533 acres south of Clark Road in Sarasota. The company received approval for an extra 274 market rate homes, Kirk continued, because of its decision to make 15% of the dwelling units — 165 — affordable, based on the AMI regulations. Fifty-five of the homes would be offered at 100% AMI; the other 110, at 80% AMI.

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

She added that her goal is for the county to provide housing for working families.

Detert further complained about the fact that the county regulations require that an affordable home in a new 2050 development remain affordable only for the initial buyer.

Commissioner Christian Ziegler asked Kirk what he has heard in regard to that point. Ziegler added that people often raise with him their concerns about the short time frame in which the units carry affordable housing prices.

These are the policies affected by the state law that would be changed if the proposed Comprehensive Plan amendment wins approval. Image courtesy Sarasota County

Kirk replied that he has not been that involved in the affordable housing provisions of the 2050 Plan. Nonetheless, Kirk said, county policies offering additional housing units as incentives for making a certain percentage of new homes affordable in a development “have not been taken advantage of very often …”

“Why not?” Ziegler asked.

“Certainly, the developers would rather not be saddled with the requirement,” Kirk responded. “That’s most of the feedback I get.”

Kirk did note that the Siesta Promenade mixed-use development, planned on approximately 24 acres at the intersection of U.S. 41 and Stickney Point Road, “was the most recent and the most significant” proposed new project to take advantage of the option for increased density as a result of the developer’s providing affordable units.

“I’m just not sure what we’re doing with affordable housing,” Ziegler said, “is really addressing or solving the problem …”

Detert then reiterated some of her earlier concerns, adding, “This is going to be pretty complicated new paperwork [for developers].”

However, Vice Chair Alan Maio — who was presiding in Commissioner Moran’s absence — asked Kirk to show the board members once more the slide listing upcoming developments with affordable homes. “The fact that people don’t see these yet — that’s very unfortunate,” Maio said.

This slide shows the details about the planned new Sarasota 2050 developments that have won commission approval and the number of affordable housing units to be built within each of them. Image courtesy Sarasota County

Kirk also reiterated one of his earlier points — that the changes proposed by staff are “needed [for the county] to be consistent with that state law” approved in 2019.

In response to a question about whether the law would apply to the 2050 Plan developments already approved, Deputy County Attorney Josh Moye explained that the state law cannot be applied retroactively.

Replying to another question from Detert, Kirk said the county’s provisions “generally envision that the affordable housing … would be integrated into [a new] development,” instead of constructed in a special section of that community.

“I don’t see how they could make that happen,” Detert told him, adding that she could not imagine a builder constructing affordable homes “in the middle of the block” of houses costing $380,000.

In response to another question from Ziegler, Kirk explained that county regulations require that an affordable dwelling constructed for rental purposes remain at the affordable level for five years. “After that,” Kirk added, “the rent can go to any point.”

Replying to more questions from Ziegler, Moye said that if the applicable county policies were not amended, the county could face litigation filed by developers. Such complaints could argue that the county’s affordable housing incentives were not sufficient for the developers to cover their investments in building affordable dwellings, Moye added.

Commissioner Nancy Detert. News Leader image

Finally, Commissioner Charles Hines made the motion to approve the transmittal of the proposed changes to the Florida Department of Economic Opportunity (DEO) for review by its staff and staff of other designated state agencies, and Ziegler seconded the motion.

Detert asked when the DEO staff last told county staff that it would not accept proposed county changes in regard to land development policies.

Moye replied that he could not recall such an occasion, which he credited to the efforts of county staff and the Office of the County Attorney to comply with state guidelines in drafting Comprehensive Plan amendments.

When Maio called for the vote, Detert opposed the motion.