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State of Emergency?

Emergency Orders Can Have A 
Silver Lining for Property Owners and Developers


CapasGroup Realty Advisors, in collaboration with zoning and land use attorney Drew Melville of Melville Law, PA is pleased to share the following discussion explaining how property owners can easily extend their real estate entitlements and permits.  To our surprise, many property owners are not aware of their statutory right to these extensions.  If you are a developer or own property with permits or other entitlements, please read this article and keep it on file for future reference.  For more details, please contact CapasGroup, Melville Law or your zoning attorney.


Under certain circumstances, the Governor of Florida will issue an Executive Order “EO” declaring a state of emergency “SOE” for specific counties or even for the entire state.  In Florida, SOE declarations most commonly occur in advance of tropical storms or hurricanes but can be in response to other threats as well. Recent examples include SOE’s issued related to Lake Okeechobee discharge and even the Zika virus.

To enable property owners in affected areas to focus on the emergency at hand, Florida Statutes makes certain entitlement and permit extensions available whenever a state of emergency is declared.  Property owners in affected areas can typically extend their entitlements for at least eight months, sometimes longer.  The process is relatively simple, inexpensive does not require an approval process.  Essentially, all property owners must do is notify the appropriate regulatory agencies of their intent to exercise their rights under the Section.

How It Works

Under Section 252.363, Florida Statutes the declaration of a state of emergency by the Governor tolls (i.e. pauses) the period remaining to exercise rights under a permit or other authorization for the duration of the emergency declaration (e.g. the “Tolling Period”). The typical Tolling Period for SOE’s issued during 2016 was 60 days.  Permittees and their counsel must read each Executive Order individually to determine its duration and what counties are covered, as well as check to see if the EO was extended beyond the time stated in its original issuance.

In addition to the Tolling Period for the duration of the EO, the statute provides that the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 6 months. Therefore, for a typical EO with a 60-day duration, the total extension would be about eight months (60-day Tolling Period plus 6-month extension = 8 months).

What Entitlements Can Be Extended?

The above provisions apply to:

  1. The expiration of a development order issued by a local government.
  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 pursuant to Part IV of Chapter 373 (Management and Storage of Surface Waters). This would include Environmental Resource Permits issued pursuant to an application for development.
  4. The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted pursuant to Section 380.06(19)(c).

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Deadlines

The holder of the permit or authorization who wishes to utilize these provisions must notify the issuing authority of their intent to exercise the tolling and extension granted under the statute within ninety (90) days after the termination of the emergency declaration.

If the permit or other authorization for a phased construction project is extended, the commencement and completion dates for any required mitigation are extended such that the mitigation activities occur in the same timeframe relative to the phase as originally permitted.

What Entitlements Do Not Qualify?

It is important to note that Section 252.363 expressly does not apply to:

  1. A permit or other authorization for a building, improvement, or development located outside the geographic area for which the declaration of a state of emergency applies.
  2. A permit or other authorization under any programmatic or regional permit issued by the Army Corps of Engineers.
  3. The holder of a permit or other authorization who is determined by the authorizing agency to be in significant noncompliance with the conditions of the permit or other authorization through the issuance of a warning letter or notice of violation, the initiation of formal enforcement, or an equivalent action.
  4. A permit or other authorization that is subject to a court order specifying an expiration date or buildout date that would be in conflict with the extensions granted in 252.363, FS.

It is also important to note that under subsection (2) of the statute, a permit or other authorization that is extended shall be governed by the laws, administrative rules, and ordinances in effect when the permit was issued, unless any party or the issuing authority demonstrates that operating under those laws, administrative rules, or ordinances will create an immediate threat to the public health or safety. Also important to note is that the statute expressly states that it does not restrict a county or municipality from requiring property to be maintained and secured in a safe and sanitary condition in compliance with applicable laws, administrative rules, or ordinances.

Stacking of Extensions In The Event of Multiple SOE’s

Guidance from the Department of Economic Opportunity clarifies that permittees may take a separate 6-month extension for each SOE, plus the tolling time when the EO was in effect.  If the Tolling Periods for separate SOE events overlap, the overlap is deducted from the aggregate.  For example, if separate SOE’s were declared on January 1 and February 1 and both had 60-day terms, the aggregate Tolling Period would effectively be three months (i.e. two, 60-day Tolling Periods = 4 months less the one-month overlap for February).  However, the 6-month extension periods are unaffected by any SOE overlaps. Therefore, in this example, there would still be two, 6-month extensions resulting in combined tolling and extensions of about 15 months (3 months Tolling plus 12 months of extensions).

Note:  For the period of January through October 2016, SOE declarations made property owners in 20 Florida counties eligible for tolling and extensions ranging from 1.5 to more than two years, assuming notices are filed before the respective deadlines.  In fact, Palm Beach County was subject to four separate SOE declarations through October 2016 making property owners there potentially eligible for extensions in excess of 2.5 years if they observe the respective noticing deadlines for each Emergency Order.

Download Article and Executive Order List Here

Legal Advice Recommended

As a practical matter, permittees and their counsel should review each state of emergency EO issued to determine which counties were affected. Applicability of the statute under each EO depends on the location of the project and the project’s history of compliance, so each project or permit must be analyzed individually to determine the length of extension that a permittee is allowed.  Permittees should also pay close attention to the filing deadlines for each event. A letter should be noticed to the proper permitting authority, and a return letter from the permitting authority acknowledging the extension should be requested. In some cases, it may also be prudent to record a notice of extension in the public records of the applicable county.

Melville Law, PA can provide these services and administer the notices anywhere in Florida for a reasonable flat fee per permit extended. Feel free to contact Drew Melville at (954) 336-9366 or drew@drewmelville.com for a free consultation and to discuss further. Also, visit their website at www.drewmelville.com.

CapasGroup Realty Advisors is a real estate investment sales organization with considerable expertise facilitating complex land transactions.  For additional information contact Brad Capas at (954) 320-6031; brad.capas@capasgroup.com or visit www.capasgroup.com.

 

Published November 2016 by CapasGroup Realty Advisors

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