December 21, 2011

DRI and Permit Extension Notification Deadlines Approaching

Holland & Knight Alert
Alan Samuel Krischer

The notification deadlines are approaching for Developments of Regional Impact (DRI) and permit extension provisions enacted by the Florida Legislature earlier this year. This presents the latest opportunity for developers whose projects qualify for those extensions, but who have not yet submitted the required notifications.

House Bill 7207 (Chapter 2011-139, Laws of Florida) granted developers the option to extend all commencement, phase, buildout and expiration dates for currently valid developments of regional impact by four years, regardless of any previous extension and extensions for certain permits previously extended by legislation in 2009 and 2010. Senate Bill 2156 (Chapter 2011-142, Laws of Florida) granted an additional six-month extension to permits for various developments due to the wildfire states of emergency declared by the Governor.

In order to take advantage of these extension options, it is imperative for developers to act now.

House Bill 7207 Development of Regional Impact Extensions

House Bill 7207 made numerous changes to the legislation that governs local comprehensive plans and developments of regional impact in response to 2011 real estate market conditions. As noted above, Section 54 provides that, at the option of the developer, all commencement, phase, buildout and expiration dates for projects that are currently valid, developments of regional impact are extended for four years regardless of any previous extension. Associated mitigation requirements for DRIs have also been extended for the same period, except in certain cases where a governmental entity has already entered into a contract for construction of a facility using mitigation funds from that development phase.

The four-year DRI extension is not considered to be a substantial deviation, is not subject to further development-of-regional-impact review by local or state governments and reviewing agencies, and may not be considered when determining whether a subsequent extension is a substantial deviation for any other extension request pursuant to Section 380.06(19), Florida Statutes.

In order to take advantage of this extension option, the developer must notify the local government in writing by December 31, 2011.

House Bill 7207 Permit Extensions

Two permit extension opportunities were also granted by House Bill 7207. Section 73 grants extensions of any permit or other authorization that was previously extended under Section 14 of Chapter 2009-96, Laws of Florida, and reauthorized by Section 47 of Chapter 2010-147, Laws of Florida, for an additional two-year period after its previously scheduled expiration date. Section 79 grants extensions to any building permit and any permit issued by the Department of Environmental Protection or by a water management district pursuant to Chapter IV of Chapter 373, Florida Statues, with an expiration date from January 1, 2012 through January 1, 2014, for two years after its previously scheduled expiration date.

These extension provisions are in addition to the previously granted two-year extension granted pursuant to Section 14 of Chapter 2009-96, Laws of Florida, and reauthorized by Section 47 of Chapter 2010-147, Laws of Florida. However, if a permit was extended by four years under Section 14 of Chapter 2009-96, Laws of Florida and Section 47 of Chapter 2010-147, Laws of Florida, then it cannot be further extended.

The Section 73 and Section 79 extensions also require the permit holder to provide written notification to the authorizing agency by December 31, 2011.

Senate Bill 2156 Permit Extensions During State of Emergency

Finally, Senate Bill 2156 granted a tolling period during the state of emergency and extended rights under permits and other authorizations for six months in addition to the tolled period. The tolling and extension applies to local government development order expiration dates, building permit expiration dates, the expiration dates for Department of Environmental Permitting or water management district permits issued pursuant to part IV of Chapter 373, Florida Statutes, and development of regional impact buildout dates. In order to exercise their rights under this legislation, the 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. This extension option only applies to the geographic areas identified in the given declaration of state of emergency.

For example, the Governor declared a state of emergency on August 5, 2011, as a result of wildfires for Flagler County, Baker County, Levy County and Miami-Dade County. This declaration expired on October 30, 2011.

Permit holders in these counties have until January 28, 2012 to notify the issuing authorities of their intent to exercise the tolling and extension option.

Act Now: Some Notifications Are Due by December 31, 2011

Because these extensions are available only upon written notice, developers should review their existing permits and agreements promptly to determine whether they are eligible. Lenders for ongoing development projects may wish to confirm that their borrowers are taking the necessary steps to avail themselves of this extension as well.

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