Florida State of Emergency for Zika Virus Has Terminated

After the issuance of various extensions, the Zika virus state of emergency declared by Florida Gov. Rick Scott has terminated after the governor did not renew the Executive Order. However, holders of certain development orders can request up to an additional 24 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.

Scott first declared a state of emergency for Florida regarding the Zika virus on June 23, 2016. This emergency order in connection with the Zika virus has been amended eight times, most recently on Oct. 3, 2017. Pursuant to Section 252.363, Florida Statutes, each of these declarations of states of emergency tolled the period remaining to exercise rights under a permit, development order or other authorization for 60 days and provides an extension of six months following the tolled period.

• Executive Order No. 16-149 declared a state of emergency for Florida because of the severe threat posed by the Zika virus for 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. This state of emergency was declared on June 23, 2016, and was subsequently extended eight times pursuant to Executive Order Nos. 16-193, 16-233, 16-288, 17-43, 17-115, 17-166, 17-211 and 17-260, which was issued on Oct. 3, 2017. Each Executive Order had a duration of 60 days. The total duration of the Zika virus state of emergency was 540 days.
• Because the Florida Statute authorizes the tolling of development orders for six months in addition to the duration of the state of emergency, the total extension available for the Zika virus state of emergency is 540 days, plus six months. The total tolled period is approximately 24 months.

This extension option only applies to the counties identified above.

In order to take advantage of the extension option, 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 Florida Department of Economic Opportunity 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 may have been submitted to the local government was Dec. 3, 2017, and the deadline to take advantage of an extension under Executive Order No. 16-149, as extended, is March 2, 2018.

In addition, while it is clear that the state statute implements these extensions, local governments act differently and may require further process 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. For more information and clarification on the permit extensions, please contact the authors of this alert.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.