Florida Gov. Ron DeSantis issued Executive Orders 22-218 and 22-219 on Sept. 23 and 24, 2022, respectively, declaring a state of emergency due to Tropical Depression Nine (also referred to as Hurricane Ian) across the entire State of Florida.

The governor's declaration of a state of emergency for Tropical Depression Nine tolls the expiration of valid permits, development orders and other authorizations to Nov. 22, 2022, 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 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(1)(a) 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 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 Nov. 22, 2022. 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 Florida 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 Depression Nine cannot be added together to any tolling period that may overlap with the current state of emergency. Nonetheless, the six-month extension can be applied for each of the declarations. At this time, there are no declarations of a state of emergency that overlap with Tropical Depression Nine.

We note that is it possible that Gov. DeSantis will amend the declaration for Tropical Depression Nine as it relates to certain counties and, therefore, the tolling period for that declaration would end on an earlier date. Conversely, the governor may extend the declaration for Tropical Depression Nine as it relates to certain counties and, thus, the tolling period may be extended. We recommend routine monitoring during the remainder of the expiration period.

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.

Agencies May Abrogate Deadlines for Final Action on Permit Applications

Please note that Executive Order 22-218 also allows all state agencies to abrogate the time requirements, notice requirements and deadlines for final action on applications for permits, licenses, rates and other approvals under any statutes or rules under which such applications are deemed to be approved unless disapproved in writing by specified deadlines. All such time requirements that have not yet expired as of the date of Executive Order 22-218 are suspended and tolled to the extent necessary to meet this emergency.

Please note that the situation surrounding Tropical Depression Nine is evolving and that the information discussed in this alert may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors 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.