Developers have since 2011 been able to obtain extensions of the expiration dates of certain environmental permits and development orders under the “State Emergency Management Act,” Sections 252.31-252.60, Florida Statutes, whenever the governor declares a state of emergency under the act. Using executive orders, Gov. Rick Scott has issued many such declarations since then. Collectively, these gubernatorial declarations have created opportunities to obtain multiple extensions that can piggyback on each other. There is no filing fee for requesting an extension—it just takes a letter.
Under Section 252.363 of the act, a developer can use each declaration to extend, for the length of the declaration (the “tolling period,” often 60 days) plus six months, the expiration dates for a development order, a building permit, an environmental resource permit issued by the Florida Department of Environmental Protection or a water management district, and the buildout of a development of regional impact, provided:
- The developer has applied within 90 days prior to the end of the tolling period;
- The permit has not otherwise expired by the time the application is filed; and
- The emergency declaration includes the county for which the extension is being sought.
The declaration need not have any apparent relationship to the activity authorized by the permit or order, as long as the declaration covers the same county. The extension can apply, for example, whether the emergency is based upon actual damage from a hurricane, fears over Zika mosquito bites, or concerns that Puerto Ricans escaping impacts from Hurricane Maria will overwhelm Florida.
The act covers “any occurrence, or threat thereof, whether natural, technological, or man-made, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property.” To determine whether a declaration is for an emergency covered by the act, it is sufficient that it state that it is issued under the authority of the act. This can be shown, for example, in a “NOW, THEREFORE,” clause in a declaration stating, “by virtue of the authority vested in me … by the Florida Emergency Management Act, as amended …”
Gov. Scott’s executive orders can be accessed through the website of the Executive Office of the Governor at http://www.flgov.com/all-executive-orders/. Piggybacking potential can be shown by reviewing the following executive orders issued during 2017 through the beginning of October: 2017-259, 2017-236, 2017-235, 2017-211, 2017-204, and 2017-174. Some cover all. Florida counties, others fewer, and a few extend prior declarations issued in 2017 or previously.
This review shows that extensions have been available anywhere in Florida for at least two years plus cumulative (but not overlapping) tolling periods, more so for some counties. In Miami-Dade County, the availability may total three and one-half years plus tolling periods. Assuming piggybacking can be used to extend existing declarations, and considering extension declarations issued this year alone, extensions in Miami-Dade County could have totaled four and one half years plus tollings.
This is only a rough survey of the piggybacking opportunities, not an effort to quantify how many extensions a developer could have obtained this year or since 2011. Given the frequency with which Gov. Scott has issued and renewed of emergency declarations, and the reasonable expectation that future governors may follow suit, there will likely still be plenty of additional opportunities for developers to jump on the piggybacking bandwagon.
This analysis is subject to (at least) the following caveats:
- There has been no definitive litigation on piggybacking. Though some agencies recognize and allow it, others may resist.
- Resistance may be more successful for declarations extending existing ones.
- Extension calculations are based upon combining days, months, and potentially overlapping tolling periods, and can be complicated.
- To sort this all out, it is usually best to work with appropriate agency staff. Or, if that does not work, bring in the lawyers.
Daniel Thompson is a partner at Berger Singerman in Tallahassee and board certified by the Florida Bar as an expert in state and federal government and administrative practice.