For many years in Florida, when the governor issued a declaration of emergency, developers were entitled to automatic extensions on development orders and state and local permits. This applied in any circumstance. In 2019, the legislature put a limitation on this, providing that this extension applies in the case of a “natural emergency.” The question now arises whether COVID-19 is a natural emergency. The answer, unfortunately, is unclear.
The staff analysis in amending Section 252. 363, Florida Statutes provides that, “Extensions will no longer be applicable during a general state of emergency.” Although a general state of emergency is not defined, it is clear that this was meant to limit the operation permit extensions to events that are not manmade. Further guidance may be considered by a review of the definitions in Section 252.34, Florida Statutes.
“Natural emergency” is defined in Section 252.34(8) as, “[A]n 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.” This is distinct from the definition of a “Manmade emergency” in Section 252.34(7), which is “caused by an action against persons or society, including, but not limited to enemy attack, sabotage, terrorism, civil unrest, or other action impairing the orderly administration of government.” In this case, Governor DeSantis’ Order calls this (appropriately) a “public health emergency.” That is not defined in Section 252.34, but is defined in Section 381.00315(1)(c). That provides that it could be “natural or manmade.” The question, then, remains -- is COVID-19 a “natural emergency” or a “manmade emergency?”
Given the purpose of the amendment to limit the availability of emergency extensions, we would expect that there would tend to be a narrow view of “natural emergency.” Things such as the emergencies declared to manage the opioid crises for Palm Beach County would not be covered. Of course, the current Coronavirus pandemic is a very unique event. Given the nature of the pandemic, it certainly appears to be much more in line with the “natural emergency” than a “general emergency” or “manmade emergency” and permits should be extended. More, governmental agencies should agree. Without development being able to move forward, there is no question that they would merely prolong detrimental economic impacts to their communities.
If any governmental agency believes that Section 252.363 does not apply to the current situation, Governor DeSantis can issue some clarification that the Public Health Emergency in this particular case is a natural emergency. And, of course, the legislature could clarify the statute with retroactive application if required.
The most important thing for all developers is to make sure that notices are provided on all permits identified in Section 252.363(1), Florida Statutes. We remain available to assist our clients with these issues and to help provide notices as requested.
If you have any questions, please contact Brian M. Seymour or Joanna Bonfanti.
