Florida's State of Emergency for Tropical Storm Eta Gives Developers, Permit Holders More Time

Florida Gov. Ron DeSantis issued Executive Order 20-277 on Nov. 7, 2020, declaring a state of emergency due to Tropical Storm Eta for the following counties:

• Broward
• Collier
• Hendry
• Lee
• Martin
• Miami-Dade
• Monroe
• Palm Beach

The declaration of a state of emergency concerning a natural emergency adds 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 declaration of a state of emergency for Tropical Storm Eta tolls the expiration of valid permits, development orders and other authorizations to Jan. 6, 2021, and allows permit holders to extend their development authorizations for an additional six months in the impacted counties.

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 that they may be extended automatically upon the exercise of the notice requirements of Section 252.363 (b) 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

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.

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 and must have their respective development project located in one of the impacted counties. The Declaration is currently scheduled to expire on Jan. 6, 2021. Thus, permit holders must notify the issuing authority of their intent to toll and extend their permits or other authorizations within 90 days of that date, unless the declaration is terminated on an earlier date or is extended.

It is important to note that the Department of Economic Opportunity has opined that the tolling period for two separate declarations of a state of emergency cannot be counted together and that the tolling period may be counted only once. Thus, the tolling impact of the declaration of a state of emergency for Tropical Storm Eta cannot be added together to the tolling period provided for the declaration of state of emergency for COVID-19 (EO 20-276). Nonetheless, the six month extension can be applied for each of the declarations.

We note that, assuming the declaration of a state of emergency due to Tropical Storm Eta remains in effect for its current duration, it will have a tolling period longer than that currently in effect for the state of emergency for COVID-19. The tolling period for Tropical Storm Eta would end Jan. 6, 2021 and the declaration of state of emergency for COVID-19 currently expires on Jan. 2, 2021. It is possible, however, that the Governor will cancel the declaration for Tropical Storm Eta and therefore the tolling period for that declaration would end on an earlier date.

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.

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

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, 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.