Florida Extends COVID-19 State of Emergency, Providing More Time For Developers, Permit Holders

Florida Gov. Ron DeSantis issued Executive Order 20-166 on July 7, 2020, extending the declaration of a state of emergency to contain the spread of the novel coronavirus disease (COVID-19). The extension of the declaration of a state of emergency concerning a natural emergency provides additional time for developers and other permit holders to toll and extend development orders, permits and other authorizations for the length of time the declaration is in effect plus six months. The governor's initial declaration of a state of emergency, published on March 9, 2020, tolled the expiration of valid permits, development orders and other authorizations to May 8, 2020, and allowed permit holders to extend their development authorizations for an additional six months. With the governor's extension of the declaration of a state of emergency, valid permits and other authorizations that were valid as of March 9, 2020, cannot expire before Sept. 5, 2020.

Eligible Permits and Other Authorizations

Section 252.363 of the 2019 Florida Statutes provides that upon the declaration of a state of emergency, permits and other authorizations are tolled for the duration of the declaration and may be extended for an additional six months. The tolling and extension provisions apply to the expiration of:

• development orders issued by a local government
• building permits
• Florida Department of Environmental Protection or water management district permits issued pursuant to Part IV of Chapter 373, Florida Statutes
• 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

Application of Tolling and Extension Provisions

Recent revisions to Section 252.363 of the Florida Statutes limit the tolling and extension provisions described above to "natural" emergencies. Section 252.34 (8), Florida Statutes defines "natural emergency" as "an emergency caused by a natural event, including, but not limited to, a hurricane, a storm, a flood, severe wave action, a drought, or an earthquake." The Florida Department of Business and Professional Regulation has opined that COVID-19 qualifies as a "natural emergency" and that the provisions of Section 252.363 therefore apply as a result of the issuance of Executive Order No. 20-52. A Palm Beach County resident challenged a separate Executive Order issued by the Governor on the basis that the novel coronavirus disease does not constitute a "natural emergency." On June 25, 2020, the Florida Supreme Court rejected that argument and ruled that the pandemic is a "natural emergency" within the meaning of Section 252.34(8).

Notification for Tolling and Extension

The holder of the permit or other authorization must notify the issuing authority of the intent to exercise the tolling and extension. The notice must be in writing and must identify the specific permit or other authorization qualifying for extension. In addition, while the statute cited above authorizes these extensions, some local governments may require additional information to recognize the extensions for local permits. It is therefore advisable to consult with legal counsel to discuss the timing and process for filing the required notice.

Extension Requests Begin Sept. 5, 2020

To take advantage of the extension, 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 declaration is currently scheduled to expire on Sept. 5, 2020. Thus, permit holders must notify the issuing authority of their intent to toll and extend their permits or other authorizations between Sept. 5 and Dec. 4, 2020. These dates are subject to change depending on whether Gov. DeSantis further extends the declaration of a state of emergency. Holland & Knight is following the situation closely and will provide updates when available.

Impact on Developers and Other Permit Holders

Because the tolling and extension is available only upon written notice by the indicated date, permit holders should review their existing permits and development orders promptly to determine whether they are eligible. Lenders for ongoing development projects also may wish to confirm that their borrowers are taking the necessary steps to avail themselves of these extensions. Here, the benefits of the declaration would allow permit holders to extend permits for an additional six months from July 7, 2020.

If you have any questions or would like assistance in reviewing any permits or authorizations for extensions, please contact one of the authors.

For more information about how the efforts to contain the virus are impacting businesses across the state, see Holland & Knight's alert, "What Florida Businesses Need to Know about the COVID-19 Response."

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

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.