In Florida, we are all too familiar with the halting of administrative procedures due to storm events. The Governor’s Office usually declares a state of emergency that leads to certain state agencies issuing emergency orders suspending or halting the imposition of that particular agency’s substantive statutes, rules and codes pursuant to Florida Statutes, section 252.363. In doing so, some permits or development orders may be “extended” beyond their original lifespan.
In 2019, Florida law was changed to limit the extension of permits to declarations associated with a “natural emergency”, which is defined as,
“. . . an emergency caused by a natural event, including, but not limited to, a hurricane, a storm, a flood, severe wave action, a drought, or an earthquake.”
While COVID-19 is neither an hurricane nor an earthquake, it also does not fit into the statutory definition of a man-made or technological event.
As of March 18, 2020, the Governor’s COVID-19 declaration does not make the distinction between natural, manmade or technological events when it comes to COVID-19. Further, the agencies charged with issuing building or development permits have yet to issue their own Emergency Orders specifying which of their laws and rules will be impacted by the Governor’s larger emergency declaration. For instance, the Florida Department of Environmental Protection (FDEP) and the state’s water management districts have yet to issue an Emergency Orders. For example, customarily in response to storm events, FDEP has issued Emergency Orders extending permit deadlines, suspending administrative timelines and processes requirements (including public notice periods and challenge windows), and suspending enforcement or imposition of certain construction, preservation and funding requirements. Again, to date, no such Emergency Order has been issued but it is expected that FDEP will be issuing an Emergency Order in the next few days. We will continue to monitor agency action in this regard. Should an Emergency Order be issued, we will provide further guidance and explanation.
In the meantime, as the COVID-19 response continues, those holding valid building and development permits will clearly be impacted by administrative timelines and statutory requirements. The types of permits that may be extended by agency order in the coming days may include:
- The expiration of local government development orders and building permits
- FDEP environmental resource, coastal construction, consumptive use and similar permits issued pursuant to Florida Statutes, Part IV, Chapter 373
- Certain land use build-out permits such as Planned Unit Developments and Developments of Regional Impact
Another factor to keep in mind if you recently obtained a development order or development permit, you may be within the challenge window afforded “substantially interested parties” – meaning your permit, while issued, remains susceptible to third party challenge. Language in an emergency order may extend this challenge window beyond the original time frame.
Lastly, many agencies and local governments are currently working with skeleton staffs and their review of pending applications and response times may be delayed. However, absent clear direction contained in an Emergency Order, government offices are themselves bound by stringent administrative time frames for permit review and approval. For example, in certain circumstances a permit may be issued by default if the reviewing agency fails to meet its own administrative review time rames. How local governments and issuing agencies respond in the coming days may be critical to your permit issuance or denial.
We will continue to monitor the state and local government reactions to the COVID-19 response as it relates to real estate development and do our best to keep you all apprised of how your business and property may be impacted. We will also be including information about any emergency declarations made in Georgia, Alabama, Mississippi and Texas in the coming days.