HURRICANE IAN AND NICOLE EXECUTIVE ORDER MAY BE EXPIRING SOON – HERE'S HOW IT AFFECTS YOUR DEVELOPMENT PERMITS
You may be eligible to secure extensions of your development permits due to Hurricane Ian and Hurricane Nicole! In response to Hurricane Ian and Hurricane Nicole, Governor DeSantis declared two states of emergency to respond to the storms.
On September 23, 2022, Governor DeSantis issued Executive Order 22-218 due to Tropical Depression Nine (the prior name for Hurricane Ian) for twenty-four counties. On September 24, 2022, Executive Order 22-219 amended Executive Order 22-218 and declared a state of emergency for the entire State of Florida due to Tropical Storm Ian. Executive Order 22-219 was extended November 21, 2022 (Executive Order 22-268) and January 19, 2023 (Executive Order 23-21). It is set to expire on March 19, 2023.
Governor DeSantis declared a state of emergency for select counties due to Subtropical Storm Nicole on November 7, 2022 via Executive Order 22-253. On November 10, 2022, Governor DeSantis issued Executive Order 22-256, declaring a state of emergency for the entire State of Florida. These Executive Orders were extended on January 5, 2023 (Executive Order 23-02) and March 3, 2023 (Executive Order 23-48) and are set to expire on May 3, 2023.
Section 252.363(1)(a), Florida Statutes, provides that when the Governor declares a State of Emergency due to a “natural emergency,” the permit holder may toll the time period remaining to exercise rights under a permit or other authorization for the duration of the State of Emergency plus an additional six months. These benefits apply to:
- The expiration date 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, F.S.
- Permits issued by the Department of Environmental Protection or a water management pursuant to Part II of Chapter 373, F.S., for land subject to a development agreement under ss. 163.3220-163.3243, F.S., in which the permittee and the developer are the same related entity.
- The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted pursuant to s. 380.06(19)(c), F.S.
- The expiration of a development permit or development agreement authorized by Florida Statutes, including those authorized under the Florida Local Government Development Agreement Act, or issued by a local government or other government agency.
Extending a permit is not always a simple matter. The calculation of the tolling periods may be complicated, particularly when multiple Executive Orders apply to a permit and require adjustments to account for overlapping toll periods. For DRIs, Chapter 380, F.S., provides opportunities to extend other related dates, such as DRI expiration dates. Also, depending on the circumstances, it may be possible to revive a development order or permit that was due to expire during an emergency termination. Hurricane Ian and Hurricane Nicole are particularly complicated because their respective executive orders overlap significantly.
To claim the extension, permit holders must take advantage before the expiration of the 90-day notice periods for each of the applicable executive orders. Stearns Weaver Miller‘s Executive Order Permit Extension Tracker is a web-based tool that tracks Executive Orders so you may research opportunities to extend the expiration of 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.
Second DCA Finds No Compensable Taking for the State’s Elimination of Taxi Cab Permit Special Legislation
On October 7, 2022, the Second DCA affirmed the trial court’s ruling, holding that there was no compensable taking for the State’s elimination of legislation granting taxi cab drivers a transferrable “property interest” in their permits. The Second DCA held that merely labelling something “private property” does not transform it into property that is protected by the Takings Clause. Thus, there was no cognizable property interest in the medallions for a valid regulatory takings claim. View More.
Third DCA Holds that Comprehensive Plan Amendment Extending Evacuation Window to 48-hours Violates the Florida Keys Area Protection Act
Florida Keys residents challenged two comprehensive plan amendments that allowed for a two-phase, 48-hour evacuation time instead of a 24-hour evacuation time, as required by the Florida Keys Area Protection Act (the “Act”). The Act requires that cities’ Comprehensive Plans maintain a maximum 24-hour evacuation window for the Keys’ permanent residents. In response to housing demands, both Islamorada and Marathon adopted amendments to their Comprehensive Plans that required new affordable workforce units to be deed restricted, such that tenants would evacuate in the Phase I window (first 24 hours) of the hurricane evacuation plan. As remaining permanent residents were categorized under Phase II (second 24 hours), these amendments resulted in an inconsistency with the Act’s 24-hour window mandate. The Department of Economic Opportunity (“DEO”) found that this inconsistency did not violate the statute, which was reversed on appeal by the Third DCA.
Fourth DCA Holds All Local Government Public Hearings Must Be Re-Noticed Even if the Public Hearing is Continued
On the Record
The Fourth DCA recently overruled the longstanding notice practice for many local governments throughout the State of Florida. In Testa v. Town of Jupiter Island, the Fourth DCA held that the Town of Jupiter Island (the “Town”) failed to properly notice a proposed amendment to its land development code because the public hearing was continued without being re-noticed in the newspaper with the new hearing date. Specifically, the Court reviewed whether the Town complied with the statutory requirements that a proposed ordinance must, at least 10 days prior to adoption, be noticed in a newspaper of general circulation and must state the date, time, and place of the meeting, and the title of the proposed ordinance. The Fourth DCA held that the Town did not strictly comply with the mandatory minimum notice requirements and that a notice of proposed enactment is only effective for the meeting date, time, and place stated in the notice. The Court held that a continuance placed on the record is not considered sufficient notice. View More.
Suwannee River Water Management District Permit Applicants Are Entitled to a Formal Administrative Hearing if the Permit Application is Denied
Florida Springs Council appealed the decision of an administrative law judge (“ALJ”) dismissing its petition for an administrative hearing to challenge the issuance of a permit to Seven Springs Water Company (“Seven Springs”). Prior to the issuance of the permit, the Suwanee River Water Management District (“SRWMD”) published notice of its intent to deny the issuance of the permit to Seven Springs. Thereafter, Seven Springs petitioned for a formal administrative hearing to challenge the proposed denial resulting in the permit being issued under protest by SRWMD. Then, Florida Springs Council, who had not intervened in the first administrative hearing, petitioned for another administrative hearing to challenge the permit under SRWMD Rule 40B-1.1010(2)(a). The ALJ held that Florida Springs Council’s interpretation of the SRWMD Rule would create a second point of entry in the administrative process, dismissing the petition. Florida Springs Council appealed. The First DCA determined that dismissal of the petition was an error because the plain language of the Rule entitled the Florida Springs Council to a hearing. View More.
Second DCA Holds Traffic and Fiscal Neutrality Fall Within Narrow Scope of Consistency Challenges under Section 163.3215, Florida Statutes
The Conservancy of Southwest Florida, Inc. filed a declaratory judgment action pursuant to section 163.3215, Florida Statutes (a “Consistency Challenge”), challenging the approval of a 1,000-acre mixed-use development on the grounds that it violated provisions of the Collier County Growth Management Plan (the “GMP”), Land Development Code (the “Code”), and other land use standards. The circuit court issued a partial summary judgment against the Conservancy, holding that actions under section 163.3215 are limited to use, density, and intensity, and the Growth Management Plan’s traffic impacts and fiscal neutrality requirements do not fall within this narrow scope. On appeal, the Second DCA held that traffic and fiscal neutrality did fall within the scope of a Consistency Challenge. The Second DCA remanded the case to the circuit court for further proceedings. View More.
Fourth DCA Holds Generalized Traffic Concerns Do Not Satisfy Heightened “Special Damages” Requirement for Standing to Challenge a Zoning Approval
Appellants, Citizens for Responsible Development (“CFRD”) and Herbert Simpson (“Simpson”) sought declaratory and injunctive relief against the City of Dania Beach (the “City”) for failure to comply with its own zoning ordinances by entering into an amended development agreement with the Dania Entertainment Center (“DEC”) to add a marina, commercial retail, a new casino, two hotel towers, a multi-story parking garage and a banquet hall to a pari-mutuel facility development. CFRD and Simpson challenged the approval, alleging that the approval violated the Florida Development Agreement Act, the Dania Beach Land Development Code, and the Broward County Land Development Code. The circuit court held that CFRD and Simpson lacked standing to file the action because CFRD did not prove a substantial number of its members will be affected by the approval and Simpson did not prove he has a special injury different in kind from others in the community. View More.
Second DCA Holds Wetland Designation for 93% of Property May Constitute a Total Regulatory Taking and a Claim under the Bert Harris Act
The Second DCA held in favor of a property owner who sought to change a wetland designation on his property for nearly 10 years. The Court overruled the trial court, concluding that a bench trial was necessary to determine whether the property had been subject to a partial or total taking due to the wetland designation, and, if not, if property owner’s Bert Harris Act claim was timely. View More.
First DCA Holds that Property Owner Properly Pled a Cause of Action for Removal of Deed Restrictions
On October 19, 2022, the First DCA reversed the trial court’s dismissal of Gate Venture, LLC’s second amended complaint, holding that Gate Venture, LLC (“Gate Venture”) sufficiently stated a cause of action for the removal of deed restrictions on its property. In 2018, Gate Venture acquired property (the “Property”) that had been subject to deed restrictions limiting its use to office space. The original grantor who created the restrictions (“Defendant”) no longer owned any land adjacent to the Property, and numerous zoning changes would allow for much more development in the area. Gate Venture wanted to create a multi-family development on the Property, and Defendant refused, resulting in a suit. View More.
Fifth DCA Finds Trial Court Erred in Allowing Rent Control Ordinance
to Stay on Ballot
On October 27, 2022, the Fifth DCA found that while the trial court correctly concluded the Association had a substantial likelihood of success on the merits of its challenge to Orange County’s rent control ordinance and the corresponding ballot summary, it should have not permitted the matter to stay on the ballot. The Orange County Board of County Commissioners adopted a rent control ordinance (the “Ordinance”) to address housing issues facing the County, which would be placed on the ballot and voted on by the public. The Florida Association of Realtors challenged the constitutionality of the Ordinance and the validity of the ballot summary six days after its adoption. The trial court denied the Association’s request for a temporary injunction even though it concluded the Association had a substantial likelihood of succeeding in its challenges against both the Ordinance and ballot summary. The Fifth DCA disagreed with the trial court’s denial and determined the issue should not have been on the ballot. View More.
Second DCA Reverses Circuit Court, Holding that Sub-Parcel, Not Entire DRI, is Subject to Takings Claims
Appellant, Lake Lincoln, LLC, sought damages in response to Manatee County’s denial of a request to amend an existing Development of Regional Impact (“DRI”) development order and rezoning of approximately 10.32 acres. The trial court rejected Appellant’s claims that the denials inordinately burdened the property and resulted in a compensable taking. On appeal, the Second DCA evaluated whether the “relevant parcel” for inverse condemnation proceedings should be the entirety of the DRI or the smaller parcel within the DRI that was the subject of the modification to the DRI and rezoning. The Second DCA ultimately held that the relevant parcel for this taking was only the 10.32-acre parcel, not the entire 1,124-acre DRI. View More.
Second DCA Holds Requirement for Vacation Rental Operators to Report Violations of the Town’s Vacation Rental Standards May Violate Florida Constitution
Management Properties, LLC, a single family, beach front property operator in Redington Shores, Florida, challenged provisions of the Town of Redington Shores’s vacation rental ordinance as unconstitutionally compelled speech. The provisions at issue required vacation rental operators to provide written notice to renters of laws and regulations they are subject to and to report violations to the Town or to law enforcement. On appeal, the Second DCA held that the notice requirement is commercially protected speech, but the requirement to report violations to the Town or law enforcement is not commercial speech and may violate the Florida Constitution. View More.
Second DCA Holds Local Government Wetland Buffer Requirements Are Not Illegal Exactions or Unconstitutional Physical Takings
Property owners filed a complaint challenging the denial of a variance to reduce the wetland buffers on their properties and alleged that Manatee County’s (the “County”) wetland buffer requirements constituted an illegal exaction and a taking by physical invasion. The Second DCA held that the County’s wetland buffer regulations do not amount to an illegal exaction because the County did not require any dedication of land or monetary payment as a condition of approval of the variance. The Court also found that neither the County's regulations requiring wetland buffers nor do its regulations requiring common areas be dedicated to an entity responsible for maintaining the community amount to a taking by physical invasion. View More.
First DCA Reverses Florida Department of Environmental Protection’s Basin Management Action Plans for Outstanding Florida Springs
The First DCA held that the Florida Department of Environmental Protection (“DEP”) violated Florida law by not allocating the pollutant load to categories of nonpoint sources for the Basin Management Action Plans (“BMAPs”) for 15 impaired Outstanding Florida Springs (“OFS”). The Court explained that the provisions of section 403.067(6)(b), Florida Statutes, contemplate total maximum daily load (“TMDL”) rules with either initial allocations to point and nonpoint sources broadly or detailed allocations to specific point sources and categories of nonpoint sources. If only an initial, broad allocation is included in the TMDL, the BMAP must include a more detailed allocation. The First DCA held that because there were no “specific categories of nonpoint sources” included in the TMDL rules, the rules included only an “initial allocation,” and section 403.067(6)(b) required the Department to include a “detailed allocation to specific point sources and specific categories of nonpoint sources” in the BMAP for each Outstanding Florida Springs at issue. The Department's allocations of load reductions in the BMAPs at issue allocated the reductions to the entire basins, not to any point or nonpoint source. The First DCA reversed the Department’s final order and remanded to the trial court. View More.
Florida Third DCA Finds Easements Created in a Declaration are Void ab initio where a Fee Simple Property Owner Was the Only Party to the Declaration
Common Wealth Trust Services, LLC (“Common Wealth”) acquired title to property that was subject to a Declaration of Covenants, Conditions, Restrictions, Easements and Operating Agreement (the “Declaration”). The Declaration was recorded by a predecessor in interest, who at the time of recording, owned each of the properties subject to the Declaration. The Declaration burdened Common Wealth’s property with an easement for parking, ingress, and egress in favor of a condominium association and a commercial property. After winning its motion for summary judgment to quiet title and remove the condominium association’s alleged easement rights under the Declaration, Common Wealth filed a third party complaint against AFP 103, LLC (“AFP”), the convention lot owner, seeking similar relief. The trial court granted summary judgment in favor of Common Wealth and AFP appealed. On appeal, the Third DCA held that the easements granted in the Declaration were void ab initio, relying on precedent that an owner cannot create an easement over his or her own property when the owner owns both the dominant and subservient estate. In light of the holding that the easements created by the Declaration were void from the outset, the Third DCA declined to consider AFP’s equitable claims, including estoppel, laches, and unclean hands. View More.
Nicole A. Neugebauer
Email | View Bio
Connect via LinkedIn
Nicole's Practice: Nicole represents clients before local, regional, and state agencies, courts, and elected bodies on land use and land development matters. Nicole has experience advising clients on land use permitting and entitlement issues, including comprehensive plan amendments, rezonings, variances, permitting, licensing, and other related aspects of securing development authorization. Nicole is skilled in developing litigation strategy as it relates to obtaining, challenging, and defending development approvals.
Nicole earned her J.D., magna cum laude, from Stetson University College of Law. During law school, she served as a law clerk in the Firm’s Tampa office. Nicole has played an instrumental role in the research and drafting of the past sixteen editions of What’s Developing.
Nicole is also actively involved in CREW Tampa Bay, currently serving on their Economic Summit Committee, and the Junior League of Tampa on their Gasparilla Committee.
We frequently collaborate with other Attorneys & Specialists statewide in a multidisciplinary approach to address all legal and business issues in a matter.
*Ken Metcalf, David Smith, Tina Ekblad, Cynthia Spidell, Chris Smith, Shawn Halphen, Roger Houle and Yuliya Olvy are not attorneys and are not authorized to practice law.
Ken, Tina, David and Cynthia are highly experienced planners. Ken, Tina and Cynthia are AICP certified.
Chris and Shawn are highly experienced GIS analysts.
Roger and Yuliya are highly experienced real estate analysts.
Special thanks to our law clerks who assisted in the drafting of this alert:
Fatou Calixte: Third year Juris Doctor Candidate at Florida State University College of Law
- Nicholas Sanders: Third year Juris Doctor Candidate at Stetson University College of Law
- Maresa Semper: Second year Juris Doctor Candidate at Florida State University College of Law
About Stearns Weaver Miller
Stearns Weaver Miller Weissler Alhadeff & Sitterson is a full service law firm with offices in Miami, Fort Lauderdale, Tampa, Tallahassee, and Coral Gables, Florida. We offer multidisciplinary solutions with a focus on Litigation & Dispute Resolution, Bankruptcy & Creditors' Rights, Corporate & Securities, Government & Administrative, Labor & Employment, Real Estate, Real Estate Finance, Commercial Finance and Loan Restructuring & Workouts, Land Development, Zoning & Environmental, Marital & Family Law and Tax. For more information, please visit stearnsweaver.com.