Section 252.363, Florida Statutes, allows certain permits and authorizations to be tolled and extended due to a state of emergency, if the permit holder files a particular notice with the agency or government which issued the permit. To exercise the right to tolling and extension under this statute, the permit holder must provide written notice to the issuing authority of the intent to exercise the tolling and extension right not later than 90 days from the end of the particular state of emergency. Generally, if the permit holder provides the required notice to the permitting agency, the period remaining to exercise the rights under an eligible permit or authorization is (a) tolled during the state of emergency and (b) extended for an additional 6 months beyond the tolled period. Additional details on the most recent executive orders are found below. Note that the Governor can extend or terminate a declared state of emergency, which affects both the expiration and notification dates.

Tropical Storm Nate. On October 5, Governor Scott issued Executive Order (EO) 17-262, declaring a 60-day state of emergency in 29 northern Florida counties due to the threats posed by Tropical Storm Nate.

Hurricane Maria. On October 2, the Governor issued EO 17-259 recognizing the devastation caused in Puerto Rico by Hurricane Maria and mobilizing resources to assist in providing services to Puerto Rico and to people from Puerto Rico who are taking refuge in Florida. The 60-day state of emergency applies statewide.

Hurricane Irma. On September 4, Governor Scott issued EO 17-235, declaring a 60-day state of emergency throughout the state of Florida due to the threats posed by Hurricane Irma.

Tropical Storm Emily. On July 31, 2017, Governor Scott issued EO 17-204, declaring a 60-day state of emergency in 31 Florida counties for Tropical Storm Emily. The state of emergency was curtailed, however, on August 15 by EO 17-220, which has the effect of reducing the tolling period for any related development approval extensions and advancing the deadline for notifying issuing agencies of the intent to exercise the extension. The new notification deadline appears to be November 13, 2017.

Extensions of Previous EOs. Since our last Practice Update on this topic, the Governor has extended the states of emergency for the Zika virus (EOs 17-211 and 17-260) and the opioid epidemic (EO 17-230).

Executive Order(s)

State of Emergency

Date Declared

Expiration (unless extended or shortened)

16-149, 16-193, 16-233, 16-288, 17-43, 17-115, 17-166, 17-211, 17-260

Zika Virus*

6/23/16

60 days from October 3, 2017

17-120, 17-174

Wildfires

4/11/17

Expired; see orders as to end date – 17-174: “emergency declared in Executive Order 17-120 is extended for an additional 60 days.”

17-146, 17-177, 17-178, 17-230

Opioid Epidemic

5/3/17

60 days from August 28, 2017

17-204, 17-220

Tropical Storm Emily**

7/31/17

Expired August 15, 2017

17-235

Hurricane Irma

9/4/17

60 days

17-259

Hurricane Maria

10/2/17

60 days

17-262

Tropical Storm Nate***

10/5/17

60 days

*Emergency applied to Alachua, Brevard, Broward, Clay, Collier, Duval, Escambia, Hillsborough, Highlands, Lee, Martin, Miami-Dade, Okaloosa, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Santa Rosa, Seminole, St. Johns and Volusia Counties. ** Emergency applied to Brevard, Broward, Charlotte, Citrus, Collier, DeSoto, Glades, Hardee, Hendry, Hernando, Highlands, Hillsborough, Indian River, Lake, Lee, Manatee, Martin, Miami-Dade, Monroe, Okeechobee, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Sarasota, Seminole, St. Lucie, Sumter, and Volusia. *** Emergency applied to Escambia, Santa Rosa, Okaloosa, Walton, Holmes, Washington, Bay, Jackson, Calhoun, Gulf, Gadsden, Liberty, Franklin, Leon, Wakulla, Jefferson, Madison, Taylor, Hamilton, Suwannee, Lafayette, Dixie, Columbia, Gilchrist, Levy, Baker, Union, Bradford, and Alachua.

Additional Information on Applicability and Criteria

Applicability. With some exceptions, the extensions provided under Florida Statute 252.363 apply to expiration of local-government-issued development orders (such as rezonings, concurrency approvals and proportionate share agreements with phasing or expiration dates), building permits, Development of Regional Impact development orders, and Environmental Resource Permits issued by the Florida Department of Environmental Protection or water management districts pursuant to Part IV of Ch. 373, Florida Statutes. These extensions do not apply to federal permits.

Exercising Multiple Extensions. While multiple extensions may be applicable to some projects under the recent executive orders and each state of emergency provides a separate 6-month extension, overlapping tolling periods (when multiple states of emergency are in effect) cannot be double-counted. Care must therefore be taken in calculating the total amount of time available under the various development approval extensions and to ensure the notice deadlines are met for each applicable extension.

Government Interpretation. Government agencies may differ in their interpretations of the statute, such as whether a permit is eligible for an extension and how to calculate the extension and tolling periods. For example, at least one governmental agency has taken the position that the opioid epidemic state of emergency does not qualify as a state of emergency under section 252.363. Another has made an interpretation relative to an EO extending a state of emergency that has the effect of reducing the tolling period and the time to notify the agency. If practicable, clients should therefore try to get an acknowledgement from the permitting staff agreeing to the extension and new phasing and expiration dates. If that is not practicable, it is important to keep records showing that the notice was given, when it was given, and that it was otherwise in compliance with the statutory requirements. Where multiple notices of extensions have been provided to the permitting authority, it is useful to catalog in the new notice each prior extension for which notice was given and the applicable dates.