Florida Governor DeSantis recently allowed Executive Order No. 20-52, which originally declared a State of Emergency for the entire State on March 9, 2020 in response to confirmed COVID-19 cases in Florida, to expire after eight (8) extensions¹.
Section 252.363(1)(a), Florida Statutes, provides that certain qualifying permits and authorizations are eligible for an extension once a State of Emergency is declared for “natural emergencies” for the length of time the declaration is in effect, plus an additional six months. Six types of permits and authorizations qualify for an extension under these circumstances pursuant to Section 252.363(1)(a), Florida Statutes, as it was recently amended:
- a development order issued by a local government, which includes a wide variety of local government approvals that permit development activities;
- a building permit;
- a permit issued by the Department of Environmental Protection or a water management district pursuant to Part IV of Chapter 373;
- a permit issued by the Department of Environmental Protection or a water management district pursuant to Part II of Chapter 373 for land subject to a development agreement in which the permittee and the developer are the same or related entities;
- a Development of Regional Impact’s (“DRI’s”) build-out date; and
- a development permit or development agreement authorized by Florida Statutes or issued by a local government or other governmental agency.
The statute, as amended, applies retroactively to any qualifying State of Emergency declared by the Governor on or after March 1, 2020, which includes the COVID-19 State of Emergency.
While there was some initial debate as to whether the COVID-19 pandemic would qualify as a “natural emergency,” the Florida Supreme Court affirmed the Governor’s emergency powers in June 2020, ruling that the pandemic constituted a “natural emergency” within the meaning of the State’s emergency management law outlined in Abramson v. DeSantis, SC20-646, 2020 WL 3464376 (Fla. June 25, 2020). In this case, a former used-car salesman and restaurant employee challenged the authority of the Governor to issue COVID-19 related shutdown orders.
Accordingly, there is a basis on which the above referenced Executive Orders provide an opportunity to extend for qualifying permits and authorizations due to the COVID-19 pandemic. A written request for such an extension must be submitted to authorizing governmental agencies no later than ninety (90) days after the COVID-19 State of Emergency expired. § 252.363(1)(b), Florida Statutes. Such an extension would be in addition to any others afforded by emergency declarations issued by the Governor for other natural emergencies, like hurricanes.
If you hold permits or other authorizations in Florida and would like to discuss options to preserve your development rights, please contact Kathleen Berkey.
¹(Executive Order Nos. 20-114, 20-166, 20-192, 20-213, 20-276, 20-316, 21-45, and 21-94).