A permit and development order extension opportunity is available as a result of the threat posed to Florida by the recent Tropical Storm Emily. Holders of certain development orders can request an additional six months to complete work under certain permits. The length of the extension of time for permits and development orders depends on the county where the property is located.
According to Section 252.363, Florida Statutes provide for the tolling of valid permits and other authorizations during the declaration of a state of emergency, plus an additional six months. The tolling and extension provisions apply to the expiration of 1) development orders issued by a local government, 2) building permits, 3) Florida Department of Environmental Protection or water management district permits issued pursuant to part IV of Chapter 373, Florida Statutes, and 4) buildout dates for developments of regional impact (DRI), including any extension of a buildout date that was previously granted pursuant to Section 380.06(19)(c), Florida Statutes.
Notwithstanding the foregoing, the Florida Department of Economic Opportunity (DEO) has established that:
- When the period of tolling for two separate emergency events overlaps, the period of the overlap is counted only once and is not added together. The premise for tolling in this case is that the event may have rendered the development incapable of developing during the tolling period, but the incapability of developing during the emergencies cannot be measured twice for the same period of time. However, because the executive orders are separate orders for separate events, there are individual six month extensions to the tolling periods for each emergency declaration. (emphasis added.)
Florida Gov. Rick Scott declared a state of emergency for Florida in connection with Tropical Storm Emily on July 31, 2017.
- Executive Order No. 17-204 declared a state of emergency for Florida because of the severe threat posed by Tropical Storm Emily for 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 counties. This state of emergency was effective as of July 31, 2017, and was terminated on Aug. 15, 2017 pursuant to Executive Order 17-220.
Because the tolling period for this state of emergency overlaps with the Zika virus state of emergency, which commenced on June 23, 2016, and, is still ongoing as of Aug. 23, 2017, the total extension available for this state of emergency is only six months, consistent with the interpretation by the DEO.
In order to take advantage of these extension options, it is imperative for developers to act quickly. Permit holders must notify the issuing authority of their intent to do so in writing within 90 days of the termination of the emergency declaration. The DEO Community Planning Staff has advised that extensions should not be applied for until the expiration of the state of emergency. In this case, the first available date that written notice could have been submitted to the local government was Aug. 16, 2017. The deadline to take advantage of an extension under Executive Order No. 17-204, is Nov. 13, 2017.
In addition, while it is clear that the state statute implements these extensions, local governments act differently and may require further processing time to recognize the extensions for local permits.
Because these extensions are available only upon written notice, developers should review existing permits and agreements promptly to determine whether they are eligible. Lenders for ongoing development projects may wish to confirm that borrowers are taking the necessary steps for this extension as well.