By Mitch Bierman, Tony Recio, Edward Martos, and Alex Uribe (Private Sector Land Use and Zoning)
On Friday, March 20, 2020, the Florida Department of Business and Professional Regulation (DBPR) confirmed that the state of emergency presented by COVID-19 a/k/a novel coronavirus (see Executive Order 20-52) triggers state law protections pursuant to Section 252.363, Florida Statutes that allow permit holders to toll the expiration and even extend development orders. There is a wide variety of eligible orders including local and state-issued state building permits, zoning approvals, and certain environmental permits issued by Florida Department of Environmental Protection and local governments.
Over the years, developers, property owners, and lenders have likely become familiar with Florida law that authorized the tolling and extension of development approvals during times of emergency. DBPR’s confirmation was necessary because a 2019 amendment to the law appeared to narrowed eligible emergencies to “natural emergencies” like “a hurricane, a storm, a flood, severe wave action, a drought, or an earthquake.”
Despite DPBR’s March 20th guidance, some local governments have raised material questions about the application of the emergency extensions, particularly which development approvals can be extended and under what circumstances. One reason for local governments’ uncertainty is that the state law is very broad—it extends to just about any action that has the effect of authorizing the development of land—from demolition, site clearing, and soil work, to zoning approvals and master permits for new construction. Another cause for hesitation—and the reason the law was amended in 2019—is the fact that, in the past, extensions were authorized for events whose impact on development was not obvious and sometimes questionable, like wild fires in distant areas, the Zika virus outbreak, and the Opioid epidemic.
On behalf of our private clients, we have secured extensions of development orders for dozens of projects throughout Florida in connection with previous emergency declarations. We are currently pursuing extensions under the current state of emergency pertaining to COVID-19 a/k/a novel coronavirus. In limited circumstances where state law does not extend to a project or development order, our attorneys have developed alternative, creative solutions relying on local code provisions or the pursuit of legislative amendments to extend or even revive approvals. Further, for certain types of approvals and conditions, we have crafted and implemented strategies to combine extensions offered by both state and local jurisdictions.
