A permit and development order extension opportunity is available as a result of the threat posed to Florida by the recent Hurricane Irma. Holders of certain development orders can request at least 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 Hurricane Irma on Sept. 4, 2017.
- Executive Order No. 17-235 declared a state of emergency for Florida because of the severe threat posed by Hurricane Irma for every county in the state. This state of emergency was effective as of Sept. 4, 2017, and, unless otherwise extended, will terminate 60 days later, on Nov. 3, 2017.
Because the tolling period for the Hurricane Irma state of emergency overlaps with another state of emergency declared in connection with the Zika virus threat, which commenced on June 23, 2016, and, unless extended, is anticipated to terminate on Oct. 3, 2017, the estimated extension available for the state of emergency associated with Executive Order 17-235 for Hurricane Irma is 32 days plus six months, consistent with the interpretation by the DEO. However, it is too soon to tell what the exact period of time applicable for an extension for this state of emergency will be since the total extension period will depend on whether the Zika virus state of emergency is extended beyond its current termination date. Holland & Knight will continue to monitor both states of emergency and their respective critical dates.
In order to take advantage of the Hurricane Irma extension opportunity, 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. For the Hurricane Irma state of emergency extension, the first available date that written notice may be submitted to the local government is Nov. 4, 2017, and the deadline to take advantage of this extension is Feb. 1, 2018, unless this state of emergency is extended.
In addition, while it is clear that the state statute implements the extension, local governments act differently and may require further processing time to recognize the extensions for local permits.
Because the extensions is 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. For more information and clarification on the permit extensions, please contact the authors of this alert.