Update: Opportunity To Extend Certain Permits Due to Hurricane Ian Continues

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Section 252.363(1)(a), Florida Statutes (2023), as amended by Section 4, Chapter 2023-304, Laws of Florida (SB 250, which applies retroactively to September 28, 2022 and which was signed into law by the Governor on June 28, 2023), provides that certain qualifying permits and authorizations are eligible for an extension once a state of emergency  for a natural emergency is issued by the Governor for the length of time the state of emergency is in effect, plus an additional twenty-four (24) months. A written request for such an extension must be submitted to the authorizing governmental agency within ninety (90) days after the state of emergency has expired (§ 252.363(1)(b), Florida Statutes). Six (6) types of permits and authorizations qualify for an extension under these circumstances:

    1. The expiration of a development order issued by a local government, which includes a wide variety of local government approvals that permit development activities;
    2. The expiration of a building permit;
    3. The expiration of a permit issued by the Department of Environmental Protection or a water management district for management and storage of surface waters pursuant to Part IV of Chapter 373, Florida Statutes;
    4. Consumptive water use permits issued by the Department of Environmental Protection or a water management district pursuant to Part II of Chapter 373, Florida Statutes, for land subject to a development agreement under Sections 163.3220-163.3243, Florida Statutes, in which the permittee and the developer are the same or a related entity;
    5. The buildout date of a Development of Regional Impact; and
    6. The expiration of a development permit or development agreement authorized by the Florida Statutes, including those authorized under the Florida Local Government Agreement Act under Section 163.3221, Florida Statutes, or issued by a local government or other governmental agency.

Governmental agencies have no affirmative obligation to take action extending the foregoing permits and authorizations pursuant to Section 252.363(1)(a), Florida Statutes. Rather the extension occurs as a matter of law in response to a written notification of intent to exercise the tolling and extension granted by the Statute. Florida Op.Atty.Gen., 2012-13, April 25, 2012.

On September 23, 2022, the Governor issued Executive Order No. 2022-218, declaring a 60-day a state of emergency, unless extended further, for several counties in Florida in light of Tropical Depression Nine, which later strengthened into Tropical Storm Ian, and then into Hurricane Ian. On September 24, 2022, the Governor issued Executive Order No. 2022-219 to make the prior Executive Order applicable to the entire state. On November 21, 2022, January 19, 2023, March 17, 2023, May 15, 2023, and July 13, 2023, respectively, the Governor extended the state of emergency another 300 days collectively under Executive Order Nos. 22-268, 23-21, 23-60, 23-104, and 23-139.  Accordingly, the Executive Orders provide an opportunity to extend certain permits and authorizations for a total for six (6) months and 360 days following a timely submittal of a written request to the authorizing government agency. If the state of emergency were to be extended further by the Governor, this would increase the deadline by which the written request must be filed and the total extension available. However, under Senate Bill 250, the maximum extension period may not exceed forty-eight (48) months in total in the event of multiple natural emergencies for which the Governor declared a state of emergency.

If you hold permits or other authorizations in Florida and would like assistance in reviewing and evaluating possible opportunities for extension to preserve your development rights, please do not hesitate to contact Katie Berkey, Esq., AICP.

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