By: Marla Neufeld, Esq. and Deena Gray, Esq.
In response to the COVID-19 pandemic, Florida Governor DeSantis declared a state of emergency in Florida issuing Executive Order 20-51 that directed the Florida Department of Health to issue a public health emergency for all 67 counties in the State of Florida pursuant to Florida Statutes 381.00315. Said order also directed the State Health Officer to take any action necessary to protect the public health. This first COVID-19 executive order established a COVID-19 response and protocol for the virus and established a protocol and directing public health emergency systems in the State of Florida.
The declaration of a state of emergency as to a natural emergency provides developers additional time by tolling and extending the expiration dates for valid development orders, permits and other authorizations for the length of time the declaration is in effect plus six months.
A public health emergency is defined per Section 252.34(8) of the Florida Statutes as:
“Public health emergency” means any occurrence, or threat thereof, whether natural or manmade, which results or may result in substantial injury or harm to the public health from infectious disease, chemical agents, nuclear agents, biological toxins, or situations involving mass casualties or natural disasters.
The Florida Department of Business Regulation opined that COVID-19 qualifies as a natural emergency. As such, the provisions of Florida Statutes 252.363 apply pursuant to the declaration of a state of emergency issued by the Governor of Florida for natural emergencies which tolls/extends certain rights under permits or other municipal approvals such as site plans, buildout dates of a development of regional impact order, and Broward County findings of adequacy.
The applicable Florida statute pertaining to this extension right is as follows:
Florida Statutes 252.363 Tolling and extension of permits and other authorizations
(1)(a) The declaration of a state of emergency issued by the Governor for a natural emergency tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration. Further, the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 6 months in addition to the tolled period. This paragraph applies to the following:
The expiration of a development order issued by a local government.
The expiration of a building permit.
The expiration of a permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373.
The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted as specified in s. 380.06 (7)(c).
In Executive Order 20-52 , the Governor declared a state of emergency in Florida which executive order originally tolled for 60 days. At the time of the issuance of this executive order, eight counties in Florida had positive cases for COVID-19 and COVID-19 posed a risk to the entire State of Florida. Following the issuance of Executive Order 20-52, the Governor has already issued two extensions of such emergency order by issuing Executive Order 20-114 Executive Order 20-166 .
The Governor has issued a variety of other executive orders relating to COVID-19 that do not pertain to extensions of municipal development orders, however, they are important to monitor as they do pertain to many important issues such as: business closures, vacation rental closures, re-employment of essential personnel, isolation of individuals traveling to Florida, protective measures for vulnerable populations, and airport screening and isolation, just to name a few.
Florida executive orders are being issued often and the latest executive orders can be accessed by visiting the Florida Governor’s website . It is important to note that notice of your intent to exercise your right to extend your permit’s expiration date, you must timely notify the relevant permit authority within 90 days after the termination of the emergency declaration. The notice must be in writing and identify the specific permit or other authorization qualifying the extension. Be sure to discuss with your local land use attorney how to properly preserve any available extensions for municipal approvals based on the Florida emergency executive orders.
If you have questions regarding how to properly preserve any available extensions for municipal approvals based on the Florida emergency executive orders, Greenspoon Marder’s Land Use, Zoning and Environmental Group is here to help. Contact us today at [email protected] .
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