Does Florida's emergency-declaration tolling for permits (§ 252.363(1)(a)) apply to a development agreement between a city and a developer?

Plain-English summary

The City of Brooksville had a development agreement with Greenpointe Communities (successor to Hampton Ridge Developers) for the Hampton Ridge Project. The agreement included specific deadlines for the developer to build infrastructure (notably a PVC potable water main loop). The developer had repeatedly given the City notice that those deadlines were tolled and extended by Governor's emergency declarations under § 252.363(1)(a). Over time, the cumulative tolls had delayed infrastructure construction in occupied parts of the development by about six years.

The City asked whether the tolling provision actually applied to this kind of development agreement, or whether it was confined to other types of instruments.

The AG's office offered informal observations rather than a formal opinion. Section 16.01(3) limits the AG to questions of law, and the City's question was substantially fact-specific (whether the particular agreement fit the statutory category).

Section 252.363(1)(a) lists four categories of "permit or other authorization" that get tolled when the Governor declares a state of emergency: (1) the expiration of a development order issued by a local government; (2) the expiration of a building permit; (3) the expiration of a DEP or water-management-district permit under chapter 373, part IV; and (4) the buildout date of a development of regional impact. The list is closed.

The development-order definition is in § 163.3164(15) (within the Community Planning Act, in the same chapter as the Local Government Development Agreement Act): "any order granting, denying, or granting with conditions an application for a development permit." A "development permit" is in § 163.3221(5): "any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land."

The AG's bottom line: whether the Brooksville Development Agreement fits within the development-order definition (and therefore qualifies for emergency tolling under § 252.363(1)(a)1) is a determination the City has to make on the specific facts of the agreement. The AG didn't address the constitutional impairment-of-contracts argument the City raised; AG opinions traditionally don't pass on the constitutionality of statutes.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: When did Florida's emergency-declaration tolling apply?
A: Section 252.363(1)(a) tolls "the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration." It also extends the period by an additional six months on top of the toll. So a 30-day emergency declaration produced a 30-day toll plus six months of extension.

Q: Did the tolling apply to all permits and authorizations?
A: No. The list was closed: (1) local-government development orders; (2) building permits; (3) DEP and water-management-district permits under chapter 373, part IV; and (4) DRI buildout dates.

Q: Was a development agreement a "development order"?
A: That depends on whether the agreement granted (or granted with conditions) a "development permit," using the broad definition in § 163.3221(5). The definition covers building permits, zoning permits, subdivision approvals, rezonings, certifications, special exceptions, variances, "or any other official action of local government having the effect of permitting the development of land."

Q: Did the AG decide whether the Brooksville agreement was a development order?
A: No. The AG concluded that question turned on the specific terms of the agreement and was a factual determination for the City to make.

Q: Could the city refuse the developer's tolling notices?
A: Whether to honor a tolling notice depends on whether the agreement fits within § 252.363(1)(a)1. If it does, the toll is automatic; if it doesn't, the developer's notice has no statutory effect.

Q: What about constitutional concerns?
A: The City suggested that applying the tolling to its agreement might unconstitutionally impair the contract's obligations. The AG's office declined to address that, citing its established practice of not opining on the constitutionality of statutes.

Background and statutory framework

Florida's permit-tolling-during-emergency framework reflects two policy goals: protecting permittees from losing rights through no fault of their own when emergencies prevent timely performance, and giving local governments and state agencies a clean rule for handling deadlines during emergencies. The closed list in § 252.363(1)(a) keeps the rule narrow; not every agreement that touches on "permits" gets caught up in emergency tolling.

The Community Planning Act and the Local Government Development Agreement Act both live in chapter 163, Florida Statutes. The cross-references in § 163.3164(15) and § 163.3221(5) build a layered set of definitions: a "development order" is an order granting (or denying) a "development permit," and "development permit" is broadly defined to capture local-government actions that allow land development. Under Debaun v. State (Fla. 2017), courts can borrow the same statutory term's meaning from related provisions when a statute (here § 252.363) doesn't define the term itself.

Whether a given development agreement fits the definition is a fact-intensive question. Some development agreements look very much like development orders (granting site plans, approving subdivision plats, conditioning building permits); others look more like contractual frameworks for cooperative development. The AG correctly identified the question as for the City, not the AG, to resolve.

Citations and references

Statutes:
- § 252.363, Fla. Stat. (Tolling and extension of permits)
- § 163.3164, Fla. Stat. (Community Planning Act definitions)
- § 163.3221, Fla. Stat. (Local Government Development Agreement Act definitions)
- § 380.06, Fla. Stat. (Developments of regional impact)

Cases:
- Debaun v. State, 213 So. 3d 747 (Fla. 2017)
- Jones v. Williams Pawn & Gun, Inc., 800 So. 2d 267 (Fla. 4th DCA 2001)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/land-development-permits-state-of-emergency
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8035

Original opinion text

August 1, 2017

Mr. Thomas S. Hogan, Jr.

City Attorney for the City of Brooksville

The Hogan Law Firm

20 South Broad Street

Brooksville, Florida 34601

Dear Mr. Hogan:

This office has received your inquiry on behalf of the City Council of the City of Brooksville, asking whether a development agreement between the City and a developer is subject to the tolling and extension provision for a development order in section 252.363, Florida Statutes. Attorney General Pam Bondi has asked that I respond to your question.

Because you are seeking a factual determination, which under section 16.01(3), Florida Statutes, this office does not have the authority to undertake,[1] we are unable to provide you with a formal opinion. Instead, I offer some informal comments that I hope will assist the City Council in resolving its question.

You represent that the City of Brooksville entered into a Development Agreement with Hampton Ridge Developers, LLC, regarding the Hampton Ridge Project, and subsequently an Amended and Restated Development Agreement with Greenpointe Communities, LLC, successor-in-interest to Hampton Ridge Developers. The amended agreement replaced the original agreement in its entirety. You state that the agreement contains a number of dates for performance of obligations that the parties agreed upon, including provisions related to the construction by the developer of a PVC potable water main loop to supply residents and fire hydrants with adequate water pressure within Phase 3A of the development.

According to your letter, the developer has given the City of Brooksville notice on multiple occasions that obligations within the Development Agreement have been tolled and extended by various executive orders of the Governor under section 252.363(1)(a), Florida Statutes. These periods have combined to delay the construction of infrastructure for occupied portions of the development for approximately six years.

Section 252.363(1)(a), Florida Statutes, entitled "Tolling and extension of permits and other authorizations[,]" provides:

"The declaration of a state of emergency by the Governor tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration. Further, the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 6 months in addition to the tolled period. This paragraph applies to the following:

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.

4. The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted pursuant to s. 380.06(19)(c)."

Thus, the statute plainly provides for tolling and extension only as applied to certain specified periods of time found within four specified kinds of "permit or other authorization[,]" namely, the expiration date of a local government development order; the expiration date of a building permit; the expiration date of a DEP water-resources permit; and the buildout dates in a development order for a development of regional impact. Your question pertains only to whether the tolling and extension of the expiration date that applies to a "development order issued by a local government" is properly invoked by the parties' Development Agreement.

The Official Records of the City of Brooksville show that the City and the developer stated that they were entering the Amended and Restated Development Agreement pursuant to sections 163.3220 through 163.3243, Florida Statutes, which is the Florida Local Government Development Agreement Act.[2] Section 252.363, Florida Statutes, does not contain a definition of "development order," but there is a definition in section 163.3164(15), Florida Statutes, within the Community Planning Act, found in the same chapter as the Florida Local Government Development Agreement Act. When a statutory term is not specifically defined, it is permissible to consider definitions of the same term located in related statutory provisions.[3] Section 163.3164(15), Florida Statutes, defines "development order" as "any order granting, denying, or granting with conditions an application for a development permit." A "development permit" is defined in section 163.3221(5), Florida Statutes, of the Florida Local Government Development Agreement Act, as including "any building permit, zoning permit, subdivision approval, rezoning, certification, special exception, variance, or any other official action of local government having the effect of permitting the development of land."

Accordingly, when considered within the context of the Florida Local Government Development Agreement Act, the tolling and extension provision in section 252.363(1)(a)1., Florida Statutes, authorizes, in the event of the declaration of a state of emergency by the Governor, additional time beyond the expiration date of an order that was issued by a local government in which such government granted, or granted with conditions, an application for a building permit, a zoning permit, subdivision approval, rezoning, certification, a special exception, a variance, or any other official action that has the effect of permitting the development of land.[4]

The City of Brooksville must therefore determine whether the Development Agreement is an order by the City of Brooksville that granted a permit application by the developer. An affirmative conclusion would render the order subject to the tolling and extension provision of section 252.363(1)(a)1., Florida Statutes.

You also contend that application of the tolling and extension provision of section 252.363(1)(a), Florida Statutes, to the agreement would be an unconstitutional impairment of the obligation of contracts under Article I, Section 10 of the United States Constitution. This office, however, addresses the duties of public officials under state law and does not address the constitutionality of statutes.[5]

I trust these informal comments will be helpful to you in addressing your concerns.

Sincerely,

Ellen B. Gwynn

Assistant Attorney General

EBG/tsh

[1] See Ops. Att'y Gen. Fla. 14-12 (2014) and 11-11 (2011).

[2] City of Brooksville Official Records Book 2768, page 951 (recorded Sept. 10, 2010).

[3] See Debaun v. State, 213 So. 3d 747, 753 (Fla. 2017). Accord Jones v. Williams Pawn & Gun, Inc., 800 So. 2d 267, 270 (Fla. 4th DCA 2001).

[4] Similarly, the definition of "development order" in the Brooksville Code of Ordinances is: "Any order granting, denying or granting with conditions, an application for a building permit, zoning permit, subdivision approval, or any other official action of the City having the effect of permitting the development of land." Code of Ordinances, City of Brooksville, § 11-1.2, Art. XI, Subpart B – Land Development Code.

[5] Ops. Att'y Gen. Fla. 05-51 (2005) and 10-02 (2010).