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Reggie L. Bouthillier
Tallahassee
Jeffrey A. Collier
Tampa
Jacob T. Cremer
Tampa
Maria A. Gralia
Miami
Kenneth B. Metcalf, AICP
Tallahassee
Special thanks to Nicholas Marler who assisted in the drafting of this alert. Nicholas is a third-year Juris Doctor Candidate at Stetson University College of Law. Additional special thanks to Chris Smith, our GIS Director, for his work on this web tool.
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Tolling and Extension Benefits Available for Pandemic Emergency Declarations
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The current pandemic has resulted in multiple emergency declarations issued by the Governor's office as the state seeks to address COVID-19. Section 252.363(1)(a), Florida Statutes, provides that "[t]he declaration of a state of emergency issued by the Governor for a natural emergency tolls the [time] period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration" and allows for an additional six month extension to these time periods for each such declaration. In order to receive the benefit of the tolled period, a permit holder must notify the authority that issued that permit of their intent to exercise the tolling and extension period. A permit holder has 90 days from the date the emergency order expires to notify the issuing authority. Extensions are available for:
- The expiration of a development order issued by a local government.
- The expiration of a building permit.
- The expiration of a permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373.
- The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted as specified in s. 380.06(7)(c).
The Department of Professional and Business Regulation (DBPR) issued "guidance" to contractors on March 23, 2020, indicating that COVID-19 qualifies as a "natural emergency" for the purpose of s. 252.363 benefits. Despite this guidance, some local governments continued to debate the issue, as DBPR lacked jurisdiction to make a binding determination. In our continuing effort to support the development industry during the pandemic and resolve the issue, we worked with the Florida Home Builders Association and Association of Florida Community Developers in drafting a joint letter, conveying our reading of the statute and urging Governor DeSantis to explicitly state that COVID-19 is a natural emergency in the next extension of Executive Order 20-52. While that request remains pending, we are pleased to report that the Florida Supreme Court resolved the issue in a recent Order, finding that COVID-19 is indeed a natural emergency. This is an important decision that provides certainty for landowners and developers in uncertain times.
Determining the tolling and extension periods available can often be a complicated matter-especially when there are multiple executive orders that can apply to a permit and require an adjustment to account for the overlapping toll periods. Executive Order 20-52 initiated the state of emergency on March 9, 2020, and on May 8, 2020, the state of emergency was extended for sixty days by Executive Order 20-114. Most recently, Executive Order 20-166 was issued on July 7, 2020, extending the state of emergency for another sixty days. The state of emergency is likely to be extended again as the COVID crisis continues. These three Executive Orders, along with any future extensions, will be the basis for calculating the tolling period. Furthermore, while we hope for a quiet hurricane season this year, additional executive orders may be issued as a result of the 2020 hurricane season. When requesting the tolling benefits, the tolling periods must be carefully adjusted to account for multiple overlapping toll periods.
Our team has created a proprietary online tool to track Executive Orders declaring a state of emergency in Florida. Use our Executive Order Permit Tracker to research whether opportunities exist to extend the expiration of your permits.
Our Land Development, Zoning & Environmental Team can assist clients in analyzing whether permits qualify for an extension, calculating expiration delay and extension periods, and preparing notifications. We can also determine whether other opportunities are available to efficiently extend permits. For more information, please contact us.
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