An opportunity to obtain substantial permit and development order extensions is available as a result of Emergency Orders issued by Florida Gov. Rick Scott because of the Zika virus. To date, holders of certain development orders can request up to an additional 18 months to complete work under certain permits. The length of the extension of time depends on the county where the property is located.
According to Section 252.363, Florida Statutes provide for the tolling of valid permits and other authorizations during the declaration of a state of emergency, plus an additional six months. The tolling and extension provisions apply to the expiration of 1) development orders issued by a local government; 2) building permits; 3) Florida Department of Environmental Protection or water management district permits issued pursuant to part IV of Chapter 373, Florida Statutes; and 4) 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.
Scott first declared a state of emergency for Florida regarding the Zika virus on June 23, 2016. This emergency order in connection with the Zika virus has been amended five times, most recently on April 10, 2017. Pursuant to Section 252.363, Florida Statutes, each of these declarations of states of emergency tolled the period remaining to exercise rights under a permit, development order or other authorization for 60 days and provides an extension of six months following the tolled period.
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Executive Order No. 16-149 declared a state of emergency for Florida because of the severe threat posed by the Zika virus for Alachua, Brevard, Broward, Clay, Collier, Duval, Escambia, Hillsborough, Highlands, Lee, Martin, Miami-Dade, Okaloosa, Orange, Osceola, Palm Beach, Pasco, Pinellas, Polk, Santa Rosa, Seminole, St. Johns and Volusia counties. This state of emergency was effective as of June 23, 2016, and expired 60 days later, on Aug. 22, 2016. The state of emergency has been extended for 60 days five times, pursuant to Executive Order Nos. 16-193, 16-233, 16-288, 17-43, and 17-115, which was recently released on April 10, 2017. The total duration of the Zika virus state of emergency is 360 days.
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Because the Florida Statute authorizes the tolling of development orders for six months in addition to the duration of the state of emergency, the total extension available for the Zika virus state of emergency is 360 days, plus six months. The total tolled period is, consequently, 540 days, or about 18 months.
This extension option only applies to the counties identified above.
In order to take advantage of these extension options, it is imperative for developers to act quickly. 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. The Florida Department of Economic Opportunity Community Planning Staff has advised that extensions should not be applied for until the expiration of the state of emergency. In this case, the deadline for an extension under Executive Order No. 16-149, as extended, is still uncertain since the state of emergency has not terminated. Holland & Knight will continue to monitor the Zika virus state of emergency and will notify developers promptly of their deadline to file extension notifications.
In addition, while it is clear that the state statute implements these extensions, local governments act differently and may require further process to recognize the extensions for local permits.
Because these extensions are available only upon written notice, developers should review existing permits and agreements promptly to determine whether they are eligible. Lenders for ongoing development projects may wish to confirm that borrowers are taking the necessary steps for this extension as well.
