On August 15, 2022, a two-year-long state of emergency related to the COVID-19 pandemic came to an end in North Carolina. Among the effects of the end of the state of emergency is an end to extensions (and in some cases rather long extensions) of development approvals provided by prior legislative acts. This blog explores the result of the state of emergency’s lifting on the term of existing development permits. For more on other implications of the end of the state of emergency, see other recent Coates Canons posts on the implications for remote board meetings and public health departments.
Background
On March 10, 2020, North Carolina Governor Roy Cooper issued Executive Order 116, which declared a state of emergency in North Carolina due to COVID-19. At the time, state and federal authorities had no idea how long the COVID-19 pandemic might last, so most measures in those far-gone days were meant to be temporary.
In addition, millions of North Carolinians (and other Americans) staying home had rather significant short-term effects on the state’s economy. As a result, the General Assembly passed Session Law 2020-3 to relieve some of the economic pressure created by the pandemic. Section 4.40 of this law extended the term of most development-related permits in the state that were current and valid between March 10 and April 28 of 2020. As the pandemic evolved, the legislature reacted with a second and a third permit extension. Each of those extensions is discussed in this blog post.
On July 11, 2022, Governor Cooper’s office published a press release announcing that the statewide state of emergency will end on August 15, 2022.
Length of extensions: Where we are now
Following the third and final permit extension—Section 2.21 of Session Law 2021-3—any development approvals (and associated vested rights) that were current and valid between September 2, 2020 and 30 days from the lifting of the state of emergency are extended until 150 days from the date that EO 116 is lifted. Some of these development approvals were only valid after September 2, 2020, because they had already been extended by S.L. 2020-3. Since the third extension was enacted, many local governments and development-related practitioners have wondered how long the extension might last.
Now that we have a date certain for the end of the state of emergency – August 15, 2022 – we also have more certainty about when permits expire. Because this third and final permit extension set a date certain for the expiration of development approvals with extended terms, those approvals that would have expired on September 14, 2022 (30 days after the declaration is lifted), or earlier, will expire on January 12, 2023, the date that is 150 days from the end of the state of emergency.
A quick note on interpretation: the third extension states that qualifying development approvals are “extended until” 150 days after the end of the state of emergency. This language was presumably chosen over something like “will expire on” to clarify that it only lengthens development approvals that would otherwise expire before January 12, 2023, and does not cut short approvals obtained before September 14, 2022, that remain valid past January 12, 2023.
Which approvals qualify for extension
The permit extensions apply only to those permits and approvals the legislation defines as “development approvals.” The following definition of “development approval” (with emphasis added) appeared in S.L. 2020-3 and was not altered by later approval extensions:
“Any of the following approvals issued by any unit of local government, regardless of the form of the approval, that are for the development of land:
- Any approval of an erosion and sedimentation control plan granted by a local government under Article 4 of Chapter 113A of the General Statutes.
- Any building permit issued under Article 9 of Chapter 143 of the General Statutes.
- Any approval by a county of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 18 of Chapter 153A of the General Statutes.
- Any approval by a city of sketch plans, preliminary plats, plats regarding a subdivision of land, a site-specific development plan or a phased development plan, a development permit, a development agreement, or a building permit under Article 19 of Chapter 160A of the General Statutes.
- Any certificate of appropriateness issued by a preservation commission of a city under Part 3C of Article 19 of Chapter 160A of the General Statutes.
As one can see, most erosion and sedimentation control plans, plats, site-specific or phased development plans, or building permits were extended by permit extension legislation. The approval extensions specifically did not apply to contracts with third parties or to most approvals issued by federal agencies, and the extension could be terminated if the permit holder stopped complying with applicable law or let performance guarantees lapse.
if there is a question about whether an approval is “for the development of land,” S.L. 2020-3 Section 2.21 defines “development” as “[t]he division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure or facility, or any grading, soil removal or relocation, excavation or landfill, or any use or change in the use of any building or other structure or land or extension of the use of land.”
What it all means
For development approvals that meet the definition in S.L. 2020-3 and do not fall under any of the exceptions described above and in the various bills, the end result of the effects of the various extensions and the lifting of the state of emergency are as follows:
First, development approvals that expired March 9, 2020, or earlier did not qualify for an extension. An approval had to be current and valid on March 10, 2020, or later. There is also a narrow window of development approvals that qualified for the first permit extension in S.L. 2020-3 § 4.40, but that expired before they could qualify for the second extension in S.L. 2020-97, § 3.21. These had expiration dates between March 10, 2020, and April 1, 2020, and expired five months after their original expiration date. In order to qualify for the second and third extensions, a development approval had to be current and valid on September 2, 2020, or later. Development approvals that would have expired between September 2, 2020, and September 14, 2022 (30 days after the state of emergency is lifted), all now expire 150 days after the state of emergency will lift, which is January 12, 2023. Note that the third extension applies to permits that are “current and valid” as of September 14, 2022, so permits that would have expired after September 14 may have been valid on that date, which would qualify them for the extension until January 12, 2023.
These scenarios are summarized in the table below:
Those in development regulation and in the development industry may want to check the status of their development approvals and note that January 12 expiration date. All current development approvals should now have a fixed date of expiration, at least until the next global health crisis …