Florida Law Strips Cities of Sovereign Immunity Defense

Florida has eliminated a critical legal shield that local governments previously used to defend against lawsuits over affordable housing developments. The change, part of House Bill 1389 signed by Governor Ron DeSantis, expands the definition of a "person" under fair housing law to include government agencies and entities.

The legislative shift stems directly from developer Michael Wohl's unsuccessful legal battle with Pompano Beach over an affordable housing project. After losing on appeal and failing to gain traction with the state Supreme Court, Wohl, a principal at Coral Rock Development Group, took his case to the legislature. He invested significant resources in hiring lobbyists and meeting with lawmakers to secure the change.

The new provision prevents cities and counties from invoking sovereign immunity, a legal doctrine that traditionally protects governments from lawsuits without their explicit consent, when challenging Live Local Act applications. If a court determines that a local government has engaged in discriminatory housing practices, it must now issue an order stopping that practice and providing relief to the plaintiff.

Beyond closing the sovereign immunity loophole, House Bill 1389 expands which properties qualify for Live Local development. The legislation now includes land owned by counties, municipalities, school districts, and certain religious institutions, regardless of existing zoning regulations. Local governments or school districts that own qualifying land must be parties to project applications.

Wohl highlighted the potential impact of including school district properties. As Florida's voucher system expansion prompts school closures across the state, these sites could become mixed-use developments featuring workforce or affordable housing specifically targeting teachers and education professionals.

The Live Local Act offers significant incentives to developers who dedicate at least 40 percent of residential units to households earning up to 120 percent of area median income. These benefits include height and density bonuses along with tax and parking breaks. Local governments must administratively approve qualifying projects.

The bill also prohibits counties from using architectural setbacks or stepbacks to effectively limit building heights, removing another tool municipalities previously employed to control development density.

The timing of these reforms coincides with mounting resistance from South Florida municipalities. Miami's City Commission recently voted unanimously to direct city attorneys to explore legal challenges to the Live Local Act, signaling continued tension between state mandates and local control.

Since its initial passage in 2023, the Live Local Act has undergone multiple expansions, progressively reducing municipal authority over local housing development decisions. The latest amendments represent another step in Florida's effort to streamline affordable and workforce housing production by limiting local government discretion.