Podcast - What Florida Real Estate Developers Should Know About Emergency Permit Extensions

Erica Adams: Hello, my name is Erica Adams and this Alessandria San Roman, and we work at Holland & Knight, which is a premier international law firm. Specifically, we work in the land use and zoning department in the Miami office. And today we're going to be talking about Florida Statute 252.363, very interesting stuff. But it actually is incredibly valuable for developers because it allows you to extend development orders and development permits when there are declared states of emergency, which in Florida is incredibly relevant considering the hurricanes and extreme weather conditions, which can affect development timelines and deadlines, as well as regulatory compliance. So Alessandria is going to talk a little bit about the background of the statute and how it came to be. 

Alessandria San Roman: Absolutely. So, really, let's start with the purpose of the statute. So when the governor declares a state of emergency for, as Erica talked about, a natural disaster — it could be a hurricane, it could be a flood — many construction and development projects obviously halt. We got to prepare for a natural disaster, we have to react, we have to clean up, and so a lot of the times government agencies are not available to provide the permits that we need, or [they] may not be open for quite some time. So what can we do to help protect the timeline of our permits? And that's where this statute comes into play. It provides, really, a legal mechanism to pause the clock on certain permits and extend them once the emergency ends.

Erica Adams: So one of the questions that might come up is, what exactly does the statute apply to? Like, what can I extend? And probably one of the most encompassing terms is a development order. So you might be asking, what is a development order? And in 2012, the Florida attorney general actually issued an opinion explaining what constitutes a development order. And I'll read the definitions, also listed in the statute. But it's "an order granting, denying, or granting with conditions, an application for a building permit, a zoning permit, subdivision approval, rezoning, certification, special exception, variants, or any other official action of local government having the effect of permitting the development of land." So it's a very broad definition. You are going to want to look at your approval and see if that approval falls within the scope of a development order.

Alessandria San Roman: So over time, there have been questions as to what exactly is a development order. And as Erica defined, it has been narrowed to certain permits. So for example, you may have several different agencies [that] can define what permits are eligible. You can have your building permits be eligible. There's certain environmental permits under Chapter 373. Your development agreements under Florida Statute 163. Your buildout dates for DRIs, or developments of regional impact. And most recently, this past legislative session, they added wetland letters of determination. There are some important exclusions that we do want to highlight. Those are permits outside the geographic area of where that natural disaster or emergency has been declared. So unfortunately, if you're in the area where the governor did not name that county as an area that's impacted, you cannot benefit from the extensions. There are certain permits under the Army Corps of Engineer programs, as well as permits that are significant noncompliance, as well as permits that have subject court orders that set specific expiration dates. Now, these exclusions help ensure that only genuinely impacted projects get to benefit from these extensions. So Erica, can you walk us through exactly how we can calculate these extensions and how the statute works?

Erica Adams: Absolutely. So that's a question that comes up a lot, and it's important to note that the statute specifically states tolling and extension. So the tolling date is the remaining time to exercise rights under the permit. So for example, if you have a deadline in your development order that is for September 1 and the governor issues a state of emergency or declares a state emergency on August 25 and that state of emergency is in place for 30 days, the amount of time from September 1 to 24 days or 25 days, that is the tolling time. So you're allowed to extend the deadline by which you need to comply with the date by the tolling time, as well as an additional 24 months, which is stated as allowed under the statute.

Alessandria San Roman: Absolutely. And one thing to note is in the past it used to be just six months, but recently in the last few years the statute was amended where you can get 24 months per state of emergency, a maximum of 48 months. So that's something really important because if you've been extending for quite some time you probably know about the six months. This has been a recent change. 

Erica Adams: Exactly. And do you want to talk about how this applies when you have multiple states of emergency that are overlapping with each other? Because that also happens.

Alessandria San Roman: Sure, and so when you have these overlapping state of emergencies — for example, we had one recently with Hurricanes Ian and Milton — when they overlap, you only get that tolling period one time. Cannot double dip. So that's the most important thing, because when you do apply and you do double dip, you'll get that time taken away and you can only count it one time. There also has been clear direction from DEO as to how to calculate those. So if you need any specific information, you can look up that directive to get more information. The one thing I also do want to point out is that phase developments also get to benefit from this. So you can extend each of those phases, not just the whole overall project.

Erica Adams: Got it. And I think something that's important to note is, you know, you are not automatically entitled to this extension. It's something that you actually need to submit a notice for, or apply for. So you want to look at your approval right away and see what the deadlines are. And then when you're coming closer to that deadline, you're going to want to see if an extension applies. So that's when you should reach out to us, and that's when we can review your approval, see the deadline, see what states of emergency apply. And you have 90 days after the state of emergency expires to notify the issuing authority to let them know that you basically want to opt in to this extension. And that's something that we do for our clients all the time. So we can do that for you.

Alessandria San Roman: Absolutely, and I think one thing that's really important to note is when we do these extensions as you mentioned, putting these on your calendars, these are when they expire, but there are also some agencies that make it very strict as to when you can apply. Some of them, for example, FDEP says that you can only send [a] notification once the state of emergency expires. Other places say, no, you need to send us notice that you intend to extend before your permit expires. So there are some discrepancies across the state, and so in an abundance of caution, you really want to take that into consideration.

So in summary, Florida Statute 252.363 is really a vital tool for managing the impact of natural disasters on our development timelines. It balances regulatory compliance with practical realties, ensuring that projects aren't unfairly penalized for circumstances beyond their control. And this is something, as Erica mentioned, that we do often. We process these and work with the appropriate government agencies to ensure that they're processed in a timely manner. If you need any assistance with your projects and any of these extensions, we are happy to process those.