Permit Extensions Can’t Be Denied
By Keith Hetrick, FHBA General Counsel
Florida’s permit extension law will expire on December 31, 2009. Under the guidelines of this law, the valid holder of a local building permit or development order, water management district permit or Department of Environmental Protection permit with expiration dates between September 1, 2008 and January 1, 2012 must make a written extension request to the appropriate agency prior to the law expiring.
The Florida Home Builders Association has been advised by several of its members that some local governments are attempting to deny permit extension requests. Members should be aware that the permit extension law is self-executing and the only requirement for the extension to be effective is a written notice given by the holder of a valid permit or development order prior to the deadline. Upon written notice to the appropriate agency, city or county, the permit extension is automatically legally in effect, by operation of the statute.
Because the law is self-executing, a city or county is not required or even authorized to respond to the notice. A city or county therefore has no authority to approve or deny the notice. However, some local governments may perfunctorily choose to acknowledge receipt of the notice.
While some cities and counties may purport to approve the extension, such approval has no legal effect. Likewise, any such denial by a city or county would have no legal effect. In fact, it would be a clear violation of the statute for any local government to deny an extension to an eligible holder of a valid permit under any condition.
Since the extension is self executing, a city or county may not condition the extension on the pre-payment of a fee. The only thing a city or county may do, according to the statute, is simply notify the owner that it must comply with existing legal requirements such as “maintain and secure property in a safe and sanitary condition in compliance with applicable laws and ordinances.”
If a denial of an extension for any reason is received by the holder of a valid permit who has noticed the appropriate agency or local government, or if an authorizing agency or city or county acts in any manner that would be inconsistent with the ongoing existence of a valid permit for which a valid extension applies, the holder of a valid permit should consult with a lawyer and seek immediate legal advice.
It is likely that the denial can quickly be resolved in circuit court by the valid permit holder (for which the denial of a notice of extension is received) seeking declaratory and injunctive relief. It is also likely that the holder of a valid permit would be entitled to receive attorneys’ fees and costs for the frivolous and unlawful local action.
Local governments who deny the permit extensions very simply are putting themselves at great risk for liability in unlawfully denying a notice of extension. And such local officials authorizing denials are receiving either very poor legal advice or receiving good legal advice and ignoring such advice as well as the plain wording of the statute.
Florida Attorney General Bill McCollum recently issued an Advisory Legal Opinion further supporting the extension of building permits or development orders that lawmakers passed earlier this year. McCollum’s opinion was issued after the City of Maitland asked the Attorney General for clarification on the new law.
Below is a copy of the Attorney General’s legal opinion, and a downloadable permit extension form.
Attorney General Permit Extension Legal Opinion
Permit Extension Request Form SB360-2
Permit Extension Deadline: December 31, 2009
If your local building permit or development order, water management district permit or Department of Environmental Protection (DEP) permit expires between September 1, 2008 and January 1, 2012, now is the time to request a two-year extension.
Legislation signed into law earlier this year extends permits and other authorizations by two years. But permit holders must notify the authorizing agency in writing by December 31, 2009 if they wish to obtain the extension.
You can obtain an extension if the permit:
- Meets the specified expiration time period,
- If the permit was issued by DEP or a water management district pursuant to part IV of chapter 373, Florida Statutes, and
- If it is a local government-issued development order or building permit.
The two-year extension also applies to build out dates, including any build out date extension previously granted under s. 380.06(19), Florida Statutes.
Permits Not Covered by the Extension
- A permit or other authorization under any programmatic or regional general permit issued by the Army Corps of Engineers;
- A permit or other authorization issued by DEP or a water management district that’s not pursuant to part IV of chapter 373, Florida Statues;
- A permit or other authorization held by an owner or operator determined to be in significant noncompliance with the conditions of the permit or authorization as established through action by the authorizing agency; (However, if you clear up the violation and come into compliance this year, you may still be eligible to meet the 12/31/09 deadline for extension notification.)
- A permit or other authorization that, if granted an extension, would delay or prevent compliance with a court order.
DCA Statement Regarding Permit Extension
The below is a June 16, 2009 statement regarding permit extensions from Tom Pelham, Secretary, Florida Department of Community Affairs.
“The Department has received numerous inquiries about the agency’s interpretation of the above-quoted provisions. The extension of permits issued by the Department of Environmental Protection, water management districts, and local governments for non-DRI related development orders and building permits are not within the jurisdiction of the Department of Community Affairs. Accordingly, the Department has no authority to issue binding interpretations of the statutory language pertaining to permits issued by those agencies. Local governments will have to determine the scope of the statutory extension for local government-issued development orders or building permits except for those that pertain to developments of regional impact.
“The Department of Community Affairs does have jurisdiction over local development orders that pertain to DRIs, including local actions which approve extension of build-out dates pursuant to s. 380.06(19)(c), Florida Statutes. The Department interprets the above-quoted statutory provisions as granting a two-year extension of the expiration date and build-out date for any local government-issued DRI development order and related building permits which have an expiration date of September 1, 2008, through January 1, 2012.”
DCA Statement Regarding Permit Extension
DEP or Water Management District Permits
For additional information regarding permits issued by the Florida Department of Environmental Protection or water management districts, please click the below link.
DEP Permit Extension Information
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