Update: Additional Opportunity to Extend Certain Permits Due to Hurricane Nicole

Section 252.363(1)(a), Florida Statutes (2022), provides that certain qualifying permits and authorizations are eligible for an extension once a state of emergency is issued by the Governor for the length of time the state of emergency is in effect, plus an additional six months. A written request for such an extension must be submitted to the authorizing governmental agency within 90 days after the state of emergency has expired (§252.363(1)(b), Florida Statutes). Six 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 November 7, 2022, the Governor issued Executive Order No. 2022-253 declaring a 60-day a state of emergency, unless extended further, for 34 counties in Florida in light of Subtropical Storm Nicole, which later strengthened into a category 1 hurricane. On November 10, 2022, the Governor issued Executive Order No. 2022-256 to make the prior Executive Order applicable to the entire state. On January 5, 2023, March 3, 2023, and May 1, 2023, the Governor extended the state of emergency by another 180 days collectively pursuant to Executive Order Nos. 2023-02, 2023-48, and 2023-87. Accordingly, these Executive Orders collectively provide an opportunity to extend certain permits and authorizations for a total for six months and 240 days following submittal of a timely written notification 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.

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.