6184015031_52bb1094fd_zExecutive Order 16-155

On June 29, 2016, the Governor issued Executive Order Number 16-155, declaring a State of Emergency throughout Martin and St. Lucie Counties due to the increased number of algae blooms from the Lake Okeechobee discharges. In this Executive Order, the Governor states:

[t]he Obama Administration unreasonably failed to budget for adequate maintenance and speedy rehabilitation of the Herbert Hoover Dike, resulting in frequent discharges of harmful water from Lake Okeechobee to the St. Lucie and Caloosahatchee Rivers and estuaries.”

The Governor explained that the release of these waters has caused an increase in algae blooms that have been dominated by Mycrosystis, an algae that can produce harmful toxins.

Executive Order 16-156


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On June 27, 2016, Lee County staff presented a series of proposed Land Development Code (LDC) amendments to the Local Planning Agency (LPA). Of significant importance, were staff’s proposed amendments to LDC Sections 2-45 through 2-46 and Sections 66-76, which specifically impact the County’s current provisions governing its “Proportionate Fair-Share” and Concurrency programs. In addition, as a companion amendment, staff has proposed a complete revision to the Administrative Code (AC) 13-16.

The Purposes for the Proposed LDC and AC Amendments

According to staff, the purposes behind the proposed changes are:
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From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with Molly Maggiano and Austin Turner (Henderson Franklin)
From left to right: Ryan Binkowski and Alexis Crespo (Waldrop Engineering) with attorneys Molly Maggiano and Austin Turner (Henderson Franklin)

This year’s two day Urban Land Institute (ULI) Annual Florida Summit was held in Miami at the Turnberry Isle Resort and was comprised of more than 650 attendees. The theme of this year’s event was Creative Disruption: “The Future Ain’t What it Used to Be.”

The mission of ULI is to provide leadership in the responsible use of land and in creating and sustaining thriving communities worldwide. ULI is an independent global nonprofit supported by the top real estate professionals from throughout the state including developers, attorneys, engineers, architects, and land use planners, from both the private and public sector.

The “Creative Class”


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The term “due diligence” gets thrown around a lot in the development world, but often with little regard for what the term entails. As with all things relating to property, this post is in no way intended to encompass all considerations in due diligence as properties are unique and present specific needs of review. However, the following list provides a brief glimpse into items to review when you are considering the purchase of real property for development in Southwest Florida:
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Statutory Authority for State of Emergency Extensions in Florida

As explained in our earlier blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permits and authorizations can obtain extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six months.

In order to obtain an extension under the statute, the applicant must submit a written request to the authorizing agency within 90 days after the State of Emergency has expired.

The State of Emergency for Heavy Rainfall Has Expired


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On April 21, 2016, Southwest Florida’s state legislators presented a “Legislative Wrap-Up” at the Cohen Center of Florida Gulf Coast University. This year’s event was well attended and presented for the first time as a collaborative effort between and among ULI of Southwest Florida, REIS, and the FPZA.

This Year’s Legislative Panel

Attendees had the pleasure of hearing about many of this year’s successful and unsuccessful bills from the following legislative panel:

Highlights from the 2016 Legislative Session

Following a brief introduction by moderator Jenna Buzzacco-Foerster, each panelist was given several minutes to discuss their greatest accomplishments of the 2016 Legislative Session.


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6184015031_52bb1094fd_zFirst, as a follow up to a previous blog post regarding the Governor’s recent Executive Orders for the Zika virus and Heavy Rainfall, there are two important corrections.

A “Public Health Emergency” was Declared for the Zika Virus in Executive Order 16-29, not a “State of “Emergency”

Only a “State of Emergency” may be used to extend permits under Section 252.363, Florida Statutes.   There is no corresponding right under a “Public Health Emergency.” Therefore, no extension of permits will be issued in connection with the “Public Health Emergency” declared in connection with the Zika Virus.

The Heavy Rainfall SOE Has Been Extended 15 days (Executive Order 16-43)

On February 18, 2016, the same day that the Heavy Rainfall SOE was set to expire, the Governor issued Executive Order 16-43 extending the declaration made in Executive Order 16-30 an additional fifteen (15) days.


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Updated:  March 2, 2016

In 2011, Florida enacted section 252.363, Florida Statutes, a law which grants certain permits and authorizations an extension for the amount of time a declared state of emergency was in effect, plus an additional six (6) months.

To qualify for the extension, a written notification of intent must be submitted to the agency that authorized the permit within ninety (90) days of the termination of the emergency declaration.

Important Executive Order

Executive Order 16-30 (Heavy Rainfall)


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gavel.jpgThe Florida Marketable Record Title Act (“MRTA”) was enacted in 1963 to simplify conveyances of real property and provide greater certainty to landowners. Generally, MRTA provides that any person holding any recorded estate or interest in land for 30 years or more has title to the land, free and clear of most claims or encumbrances. By eliminating many old and stale title claims, MRTA makes examining title to real property less labor intensive. An important effect of MRTA is that covenants and restrictions may be extinguished 30 years after their creation.

Restrictive Covenants Imposed by Governmental Zoning Approvals Are Not Subject to MRTA

Recently, in Save Calusa Trust v. St. Andrews Holdings, Ltd., et al., Nos. 3D14-2682 & 3D14-2690 (Fla. 3d DCA Jan. 13, 2016), the Third District addressed whether a restrictive covenant that is recorded in compliance with a government-imposed land use approval is a title interest subject to extinguishment by MRTA. The developer in that case sought both a rezoning and an “unusual use” approval in 1967 to create a new golf course development in Miami-Dade County. In a resolution approving the developer’s “unusual use” application, the County’s Zoning Appeals Board imposed a restrictive covenant requiring the property to be perpetually maintained as a golf course. Thereafter, the restrictive covenant was recorded in 1968, and the developer subsequently sold the property. In 2012, after acquiring the subject property and realizing that the golf course was no longer profitable, the subsequent developer/owner filed an action in circuit court to declare the restrictive covenant void, arguing it had been extinguished under MRTA. The Third District disagreed and held that because the restrictive covenant had been imposed through the governmental zoning reclassification approval process, the covenant did not fall within the purview of MRTA’s extinguishing effect.

Impact of Proposed MRTA Amendments


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