COVID Emergency Measures Aiding Florida Developers, Permit Holders End Soon

Florida Executive Order 21-94, which extended the state of emergency due to the COVID-19 pandemic, expired on June 26, 2021. Affected developers and permit holders must act soon to take advantage of their tolling and extension rights under Florida law.

Florida Gov. Ron DeSantis first declared a state of emergency for the COVID-19 pandemic on March 9, 2020, with Executive Order 20-52, and continually renewed the state of emergency over the course of approximately 15 months. The declaration of a state of emergency allows additional time for developers and other permit holders to toll and extend development orders, permits and certain other authorizations for the length of time the declaration is in effect plus six months. As a result of the extensions issued by Gov. DeSantis, developers and permit holders are able to toll the time remaining to exercise their permits and extend such permits for a period of 475 days plus an additional six months, respectively.

Florida Legislature Adds Eligible Permits to Tolling and Extension Requests

Section 252.363 of the Florida Statutes, part of the State Emergency Management Act, provides that upon declaration of a state of emergency for a natural emergency, certain permits and other authorizations are tolled for the duration of the declaration, and may be extended for an additional six months. The Supreme Court of Florida has ruled that the pandemic is a "natural emergency" within the meaning of the statute. (See previous Holland & Knight alert, "Florida Extends COVID-19 State of Emergency, Providing More Time For Developers, Permit Holders," July 13, 2020.)

During the 2021 Florida Legislative Session, the Legislature expanded the permits and authorizations subject to the tolling and extension provisions of Florida law. Specifically, Florida Senate Bill 912 (SB 912) added to the list of permits and authorizations that may be tolled and/or extended pursuant to Section 252.363: certain consumptive use permits (CUP) issued by the Florida Department of Environmental Protection (DEP) or a water management district pursuant to Part II of Florida Statutes Chapter 373 for land subject to a development agreement in which the permittee and the developer are the same or a related entity, and development permits or development agreements authorized by the Florida Statutes, including those authorized under the Florida Local Government Development Agreement Act, or issued by a local government or other governmental agency.

SB 912 applies retroactively to all declarations of emergency issued by Gov. DeSantis for natural emergencies since March 1, 2020. As a result, permits or authorizations added by SB 912 to Section 252.363 may receive tolling and extension for the COVID-19 state of emergency. The following permits and authorizations are eligible for such tolling and extension:

• development orders issued by a local government
• building permits
• DEP environmental resource 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
• certain CUPs issued by DEP or a water management district under Part II of Chapter 373, Florida Statutes
• development permits and development agreements authorized by state law, including those authorized under the Florida Local Government Development Agreement Act, or issued by a local government or other government entity

Notification for Tolling and Extension

Within 90 days after the state of emergency declaration's termination or expiration, the permit holder must provide written notice of the intent to exercise applicable tolling and extension. Such notice must be in writing and identify the specific permit or other authorization qualifying for extension, as well as the applicable state of emergency declaration. In addition, while the statute cited above authorizes these extensions, some local governments may require additional information to recognize the extensions for local permits. Thus, it is advisable to consult with legal counsel to discuss timing and process for filing the required notice.

Because the COVID-19 Declaration expired on June 26, 2021, permit holders must notify the issuing authority of their intent to toll and extend their eligible permits, development agreements or other authorizations by Sept. 24, 2021.

Extending Permits and Other Authorizations

The Department of Economic Opportunity has opined that the tolling period for two separate declarations of a state of emergency cannot be tacked together and a tolling period may be counted only once. The six-month extension, however, can be applied for each declaration. Thus, the available extension period for the COVID-19 declaration may be added together with other applicable and overlapping declarations of states of emergency.

For example, during the term of the COVID-19 declaration, Gov. DeSantis also issued other declarations for a state of emergency for certain hurricanes, tropical storms and tropical depressions. Depending on the location of the project, the six-month extension periods for some or all of these declarations also may be added to the COVID-19 pandemic to extend further the term of the applicable permit or other authorization, if requested in a timely fashion.

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

DISCLAIMER: Please note that the situation surrounding declarations of states of emergency is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact the author or your responsible Holland & Knight lawyer 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, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.