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Item R07BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 11/17/10 Division: County Attorney Bulk Item: Yes x No _ Staff Contact Person/Phone #: Bob Shillinger x3470 AGENDA ITEM WORDING: Approval of a resolution formally approving a variance to flood plain ordinance regulations for property located at 23048 Sailfish Lane, Cudjoe Key, FL, applied for by Rory and Debra Brown and heard by the BOCC on September 15, 2010, subject to a restrictive covenant terminating the variance when Darren Brown no longer lives in the house. ITEM BACKGROUND: On September 15, 2010, the BOCC held a public hearing, at the conclusion of which it voted 4-1 to grant the Browns a limited variance. The variance approved by the Board allowed the use of a legally permitted downstairs enclosure at 4.68 feet below base flood elevation for habitation by Darren Brown, the Browns' paraplegic son, until Darren no longer lives in the structure. The Board directed staff to prepare a written resolution reflecting the testimony and other evidence presented. The proposed resolution includes citations to the record for ease of reference. PREVIOUS RELEVANT BOCC ACTION: On 9/15/10, after a public hearing, the BOCC voted 4-1 to grant the variance subject to a restrictive covenant by the Browns and a written resolution from staff . CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A INDIRECT COST: DIFFERENTIAL OF LOCAL PREFERENCE: N/A BUDGETED: N/A COST TO COUNTY: N/A SOURCE OF FUNDS: N/A REVENUE PRODUCING: N/A AMOUNT PER MONTH Year APPROVED BY: County Attyby OMB/Purchasing Risk Management DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # Revised 7/09 Resolution - 2010 A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA APPROVING A VARIANCE OF 4.68 FEET FROM THE NINE FOOT ELEVATION REQUIRED PURSUANT TO § 122-5 OF THE MONROE COUNTY CODE OF ORDINANCES FOR PROPERTY LOCATED AT 23048 SAILFISH LANE, CUDJOE KEY, FLORIDA, REAL ESTATE PARCEL NUMBER 00188650.000000, WHICH IS OWNED BY RORY AND DEBRA BROWN;ALLOWING THE USE OF THE EXISTING DOWNSTAIRS ENCLOSURE PERMITTED FOR RECREATIONAL USE, STORAGE AND CONVENIENCE BATH AS LIVING AREA THAT IS CONSTRUCTED AT 4.32 FEET ABOVE MEAN SEA LEVEL; REQUIRING THAT THE PROPERTY OWNER RECORD A RESTRICTIVE COVENANT APPROVED BY THE COUNTY ATTORNEY AND FILED WITH THE CLERK OF COURT IN THE OFFICIAL RECORDS THAT PROVIDES FOR THE USE OF THE DOWNSTAIRS PORTION OF THE STRUCTURE AS LIVING AREA UNTIL THE PARAPLEGIC FAMILY MEMBER DARREL BROWN IS NO LONGER LIVING AT THE HOME WHEREAS, Monroe County has participated in the National Flood Insurance Program (NFIP) since 1973; and WHEREAS, the NFIP is administered by the Federal Emergency Management Agency (FEMA); and WHEREAS, the FIRM date in the County is January 1, 1975; and WHEREAS, as a condition of that participation, Monroe County has adopted flood plain management ordinances which are consistent with the minimum requirements established by FEMA and set forth at 44 CFR 60.3; and WHEREAS, § 122-4 of the Monroe County Code (Code) prohibits habitation in structures that are located below base flood elevation; and WHEREAS, on September 15, 2010, the Board of County Commissioners (BOCC) held a public hearing on a variance request that had been filed by Rory and Debra Brown ("the Browns") for their property located at 23048 Sailfish Lane, Cudjoe Key, Florida, with a real estate parcel number of 00188650.000000 (hereinafter "the subject property); and WHEREAS, the Browns are seeking a hardship variance to the County's floodplain management ordinances so their adult son Darren, who is a paraplegic, can legally live in the existing downstairs enclosure which was legally permitted for a storage area, recreation room and convenience bath; and WHEREAS, the Browns purchased the subject property with a structure that included a permitted, non -conforming lower enclosure; and WHEREAS, the matter at issue in the variance request is the occupancy of the downstairs enclosure since the physical improvements to the subject property are allowed to stay; and WHEREAS, 44 CFR 60.6 states in pertinent part: (a) The Federal Insurance Administrator does not set forth absolute criteria for granting variances from the criteria set forth in §§ 60.3, 60.4, and 60.5.... The community, after examining the applicant's hardships, shall approve or disapprove a request. . . . Procedures for the granting of variances by a community are as follows: (3) Variances shall only be issued by a community upon (i) a showing of good and sufficient cause, (ii) a determination that failure to grant the variance would result in exceptional hardship to the applicant, and (iii) a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; (4) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; and WHEREAS, § 122-5(c)(3)a of the Monroe County Code states that physical disabilities shall not be considered when determining whether or not to grant a variance to the floodplain ordinance; and WHEREAS, § 122-5 of the Code was adopted to be consistent with guidelines provided by FEMA which are more detailed than the regulations set forth at 44 CFR 60.6; and WHEREAS, at the conclusion of the public hearing held on September 15, 2010, the Board voted by a 4-1 margin to grant the variance request of the Browns subject to durational limitations set forth in a restrictive covenant and further directed staff to prepare a written resolution documenting its factual findings and conclusions of law and bring that resolution back for consideration at a subsequent meeting; and WHEREAS, the County Commission, upon consideration of the testimony at the public hearing, the staff report, and verbal comments from staff, hereby makes the following findings of fact and conclusions of law: 1. The subject property is located at 23048 Sailfish Lane, Cudjoe Key, Florida, with a real estate parcel number of 00188650.000000 (Property Record Card); 2. The subject property consists of a two story, single family house with two bedrooms, one bathroom upstairs and a downstairs enclosure measuring approximately 960 square feet with an additional bathroom (Monroe County Property Record Card) which was purchased by Rory and Debra Brown; 3. The subject property is owned by Rory and Debra Brown (Monroe County Property Record Card); 4. The subject property has an elevation requirement of 9 feet above mean sea level (Tr. 44, LL 14-6); 5. The base elevation of the downstairs enclosure is approximately 4.32 feet above mean sea level Jr. 44, LL 14-5); 6. The certificate of occupancy for the subject property was issued on June 14, 1979 (September 15, 2010 Agenda Item Summary(AIS) Item Background, p. 4); 7. On March 6, 1981, the County issued permit number A7929 to construct on the subject property a 672 square foot downstairs enclosure with a storage area section partitioned off from a recreation room and a "convenience bath" (AIS Background, p. 4); 8. Permit number A7929 received a final inspection on August 10, 1983 for the downstairs enclosure (AIS Background, p. 4); 9. The notes from the inspector(s) at the time of final inspection for permit number A7929 indicate that the inspector(s) observed living space in the downstairs enclosure, including a stove, refrigerator, sink, and beds (AIS Background, p. 4); 10. The Browns purchased the property in 2003 with the permitted downstairs enclosure and took title through a warranty deed filed at Book 1915, Page 35 of the Official Records of Monroe County (see warranty deed at Book 1915, Page 35); 11. The Browns have made no additions to the downstairs enclosure on the subject property but have voluntarily removed the kitchen appliances (Tr. 27, LL 4-9); 12. The Browns have an adult son named Darren who was living at home at the time he was injured in a motorcycle accident in December of 2005 and, as a result of injuries suffered in that accident, is a paraplegic confined to a wheel chair Jr. 21-2, LL 23-6); 13. Prior to his accident, Darren was the Brown's only child still living at home, and slept in one of the upstairs bedrooms (Tr. 35, LL 10-6); 14. After Darren's accident, agents of the Florida Department of Health's Brain and Spinal Cord Injury Program inspected the subject property and determined that the upstairs portion of the subject property could not be renovated in a cost effective manner to make that portion of the house wheelchair accessible; (Tr. 23-4, LL 22-3); �3 15. The Brain and Spinal Cord Injury Program next hired a contractor and attempted to pull a building permit to refurbish the downstairs enclosure to make it more accessible for Darren; (Tr. 24, LL 6-10); 16. The County rejected building permit application 061-5462 on or about October 6, 2006 because it attempted to improve the non -conforming downstairs enclosures; (see AIS Background, p. 5); 17. The Brain and Spinal Cord Injury Program explored other options that would enable Darren to access the second floor portion of the home but none proved practical or came to fruition Jr. 24-7, LL 11-3); 18. Rory Brown testified that he would submit documentation of the involvement from the Brain and Spinal Cord Injury Program after the hearing Jr. 34-5, LL 13-9); 19. Subsequent to the public hearing, the Browns submitted a letter from Lexander A. Reina, MSBE, PE, ATP, RET, CBC, on behalf of Adapted Access, Incorporated, who indicated that the firm had been contracted by the Brain and Spinal Cord Injury Program to provide engineering services in an effort to make the Brown's home more accessible for Darren (Reina Letter dated September 27, 2010 attached hereto as Exhibit A); 20. Lexander Reina indicated that "providing access to the second floor [of the subject property] involved an investment of over $50,000 for an exterior lift before considering modifications to the bedroom and bathroom on the second floor. This [option] would make [Darren] dependent on the functioning lift for egress from the home. It would present a concern during longer lasting power outages or in the likely malfunctions of a lift exposed to the elements in a waterfront home. Having a wheelchair user need a lift in an emergency (like a fire) is a bigger concern. (Reina Letter dated September 27, 2010); 21. Lexander Reina concluded that "setting up the room downstairs is more cost effective, but more importantly, it is safer. Darren can come and go independently, and he does not need to navigate tight hallways in the upstairs area. In terms of accessibility and safety, the lower floor presents the best solution." (Reina Letter dated September 27, 2010); 22. Mr. Reina's conclusions were reinforced by Bill Lowey, a former Executive Director with Habitat for Humanity, who testified at the public hearing that during his tenure, he helped install approximately 30 to 40 wheel chair lifts in homes but that such lifts have limits and that such a lift would not address accessibility issues within the second floor of the subject property (Tr. 80-1, LL 17-18); 23. The Brown family has a plan for hurricane evacuation and will be able to remove Darren from the downstairs area and from the home if necessary, forty-eight hours before a storm event or hurricane. Darren is never left alone for extended periods of time. (Tr. 28-29 LL 21-11) 4 24. The Browns have specifically asked the BOCC to permit their son Darren to lawfully live in the downstairs enclosure of the subject property as currently configured and legally permitted with a large room and bathroom (see variance application and cover letter dated June 21, 2010 and Tr. 28, LL 6-8); 25. The Browns have agreed to condition any relief granted by the Board on the recording of a restrictive covenant in favor of the County which would cause the use variance to terminate when Darren Brown no longer lives in the downstairs enclosure, no longer needs a wheelchair, or the Browns sell the house, whichever comes first (Tr. 63, LL 6-19); 26. Based on the motion passed at the BOCC meeting on September 15, 2010, Rory and Debra Brown have executed a restrictive covenant in favor of the County (copy attached as Exhibit B) that provides for the use of the structure as living area for Darren Brown but which limits the duration of the variance to a time when Darren Brown no longer lives in the home, which restrictive covenant will be recorded subsequently to the execution of this Resolution. 27. As required by CFR 60.6(5) and Monroe County Code Sec. 122-5 ( c)(4), the Browns have been and are hereby notified that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation, if applicable in this case (November 5, 2010 letter from Dianne Bair) , and have executed an affidavit acknowledging this as required by Monroe County Code Sec. 122-5(c )5. 28. The County faces potential liability for violating the Federal Fair Housing Amendments Act and the American's with Disabilities Act if it does not grant the Brown's request for a variance to the floodplain management ordinance because that request serves as a reasonable accommodation for Darren Brown's disability Jr. 54, LL 12-15; and County Attorney's memo dated September 14, 2010); NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY: Section 1. The preceding recitals are incorporated herein by reference as though fully set forth therein. Section 2. The Browns have established good and sufficient cause in support of their request for a variance. Section 3. Failure to grant the requested variance would result in exceptional hardship to the applicant's disabled son Darren Brown. Section 4. Granting the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances other than Section 122-5 of the Monroe County Code. Section 5. Granting the variance, as limited by the terms of the restrictive covenant, is the minimum necessary, considering the flood hazard, to afford relief to the Browns and to provide a reasonable accommodation for Darren Brown. Section 6. A floodplain variance of 4.68 feet from the 9 feet required is hereby granted to Rory and Debra Brown for a structure built at an elevation of 4.32 feet located at 23048 Sailfish Lane, Cudjoe Key, Florida, with a real estate parcel number of 00188650.000000 subject to the conditions and limitations set forth in the restrictive covenant executed by the Browns in favor of Monroe County. Section 7. The variance at issue permits Darren Brown to use the existing non- conforming structure as living area, constructed at 4.32 feet above mean sea level, with the condition that this use is limited until Darren Brown no longer lives in the structure. Section 8. The Growth Management Director is directed to transmit a copy of this resolution, a copy of the restrictive covenant, the transcript of the September 15, 2010 hearing and documents related thereto, and all other documents referenced herein as the record of these proceedings to the Federal Emergency Management Agency. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida at a regular meeting of said Board on the >h day of November, A.D., 2010. Mayor Mayor Pro Tern Commissioner Commissioner Commissioner (SEAL) ATTEST: Danny L. Kolhage, CLERK By: Deputy Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By: Mayor MONROF (;;OUNTY ATTORNEY APPRO D AS TO FORM: 6 RIMSLEY y SUSAN M. ASSISTANT COUNTY ATTORNEY • • Q Adapted forAccess, Incorporated 1319 SW 7ZieAvenue Miami, FL 33144-5444 786-554-4099 TEL 305-643-7498 FAX e-mail.- lex.reina vahooxo►n September 27, 2010 Rory & Debra Brown 23048 Sailfish Lane Cudjoe Key,F133042 RE: Darren Brown Dear Mr. and Mrs. Brown: I was involved in finding accessible solutions for Darren Brown in 2006, as an engineer contracted by the Florida Brain and Spinal Cord Injury Program. Providing access to the second floor involved an investment of over $50,000 for an exterior lift before considering modifications to the bedroom and bathroom on the second floor. This would make him dependent on the functioning lift for egress from the home. It would present a concern during longer lasting power outages or in the likely malfunctions of a lift exposed to the elements in waterfront home. Having a wheelchair user need a lift in an emergency (Re a fire) is a bigger concern. Setting up the room downstairs is more cost effective, but more importantly, it is safer. Darren can come and go independently, and he does not need to navigate tight hallways in the upstairs area. In terms of accessibility and safety, the lower floor presents the best solution. This concludes my report at this time. If you have any questions regarding this recommendation or need further assistance, please contact me. Best wishes for the successful rehabilitation of Mr. Brown. Sincerely, Lexander A. Reina, MSBE, PE, ATP, RET, CBC Darren BwwWGeorge Brown. Darren HM 9-27-2010 Page I of I Exhibit A toBrown. Resolution Prepared by and Return to: Lee Rohe PO Box 42059 Summerland Key 33042-0259 RESTRICTIVE COVENANT RELATED TO VARIANCE FROM FLOODPLAIN REGULATIONS 1. WHEREAS, Rory and Debra Brown, the undersigned together are the sole owners of the following described real property (Subject Property) located in Monroe County, Florida: Real Estate Number # 00188650.000000 Lot 16, Block 8 of CUDJOE OCEAN SHORES, according to the Plat thereof, as recorded in Plat Book 5, Page 107, of the Public Records of Monroe County, Florida. Physical Address: 23048 Sailfish Lane, Cudjoe Key, F133042 WHEREAS, as part of the approval of a floodplain variance, the County of Monroe requires the undersigned to execute and deliver for recording in the Public Records of Monroe County, Florida, a Restrictive Covenant, restricting the use of the Subject Property for a period of time. WHEREAS, this restrictive covenant is being filed in consideration of the County of Monroe issuing to the undersigned a floodplain variance pursuant to Monroe County Code Section 122-5 approved at the meeting of the Board of County Commissioners on September 15, 2010, which Resolution was approved on November 17, 2010 and is attached as Exhibit A to allow residence in the property's existing 4.68 feet below base flood elevation downstairs enclosure by their paraplegic son, Darren Brown. NOW, THEREFORE, the undersigned agree as follows: A. The undersigned agree that said Variance shall be only for the duration of Darren Brown's residence in the existing structure on the Subject Property. In the event that Darren Brown ceases to reside in the existing dwelling unit on the subject property, the Variance and Restrictive Covenant shall expire and be of no further force and effect. B. The restrictions herein shall be binding upon the representatives, heirs, assigns and successors in title of the undersigned, it being the intention of the undersigned by execution and recording of this document that this restriction shall run with land and shall be forever binding upon the successors in title, unless Darren Brown is no longer living in the subject property, at which time the restrictive covenant is released. C. This covenant is intended to benefit and run in favor of the County of Monroe. Exhibit B to Brown Resolution p.1 of 2 D. In the event of any breach or violation of the covenant contained herein, Monroe County may enforce the covenant by injunction or such other legal method as the County deems appropriate. Executed on this day of , 2010. WITNESSES AS TO BOTH: OWNERS (Signature) Print/Type Name Address: (Signature) Print/Type Name Address: (Signature) Print/Type Name Address: (Signature) Print/Type Name Address: STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this day of , 2010 by Rory and Debra Brown who are personally known to me or have produced as identification. SEAL MONROE COUNTY ATTORNFN APPRO\J�D AqrTq FORM: SUSAN W IMSLEY ,ISTANT COUNTY ATTORNEY PA Notary Public My Commission Expires: Exhibit B to Brown Resolution p.2 of 2 Property Search -- Monroe County Property Appraiser Page 1 of 4 Ervin A. Higgs, CFA office (305) 292-3420 Property Appraiser fax (305) 292-3501 Monroe County, Florida Property Record View Alternate y: 1240613 Parcel : 00188650-000000 Ownership Details Mailing Address: BROWN RORY AND DEBRA 23048 SAILFISH LN CUDJOE KEY, FL 33042 Property Details PC Code: 01 - SINGLE FAMILY Millage Group: 100C Affordable No Housing: Section -Township- 34-66-28 Range: Property Location: 23048 SAILFISH LN CUDJOE KEY Subdivision: CUDJOE OCEAN SHORES Legal Description: CUDJOE OCEAN SHORES P135-107 CUDJOE KEY LOT 16 BK 8 OR564-756/759 OR764-7 OR890-1727 OR911-152111525Q/C OR1016-1479 OR1063-1209/1210 OR1172-671 OR1915-35(SL) Show Parcel Map Exemotions Exemption Amount 44 - ADDL HOMESTEAD 25,000.00 39 - 25000 HOMESTEAD 25,000.00 Land Details Land Use Code Frontage Depth Land Area 010C - RESIDENTIAL CANAL 75 100 7,500.00 SF Building SUmmary Number of Buildings: 1 Number of Commercial Buildings: 0 Total Living Area: 960 Year Built: 1979 http://www.mcpafl.or&ropSearch.aspx 10/25/2010 Property Search -- Monroe County Property Appraiser Page 2 of 4 Building Details Building Type R1. Condition G Effective Age 21 Perimeter 128 Year Built 1979 Special Arch 0 Functional Obs 0 Economic Obs 0 Inclusions: R1 includes 1 3-fixture bath and 1 kitchen. Roof Type GABLE,'HIP Roof Cover ASPHALT SHINGL Heat 1 NONE Heat 2 NONE Heat Src 1 NONE Heat Src 2 NONE Extra Features: 2 Fix Bath 0 3 Fix Bath 1 4 Fix Bath 0 6 Fix Bath 0 6 Fix Bath 0 7 Fix Bath 0 Extra Fix 0 42 Fr. 48 Fr. 9Fr. OFF 8FT. [)Pk FT3I0-90 330. 100 q6 .A FT. 14 FT. 4D F`. FL4 10 FT. H00-1.9 LLF 470 - 104 24 FT. EUF 24 FT. 330-70 4 14 FT, SBF I®B-% 14 FT, 40 FT, 14 FT, 14 FT. 4 FTD OF 101E88 40 FT. Sections: Quality Grade 450 Depreciation % 29 Grnd Floor Area 960 Foundation CONC PILINGS Bedrooms 3 Vacuum 0 Garbage Disposal 0 Compactor 0 Security 0 Intercom 0 Fireplaces 0 Dishwasher 0 4 FT. 0UU FTM4 4 FT. 24 Fr. 4FT. Nbr Type Ext Wall # Stories Year Built Attic A/C Basement % Finished Basement % Area 0 EUF 1:WD FRAME 1 1991 336 0 SBF 1:WD FRAME 1 1979 196 0 LLF 1:WD FRAME 1 1991 Y 476 0 OPF 1:WD FRAME 1 1991 336 4 FLA. 1:WD FRAME 1 1988 N Y 0.00 0.00 960 5 OPX 1:WD FRAME 1 1993 N Y 0.00 0.00 320 6 OUF 1:WD FRAME 1 1988 N Y 0.00 0.00 160 8 ODU 1:WD FRAME 1 2000 N Y 0.00 0.00 32 http://www.mcpafl.org/PropSearch.aspx 10/25/2010 Page 3 of 4 Nbr Type # Units Length Width Year Built Roll Year Grade Life 2 DK3:CONCRETE DOCK 825 SF 75 11 1990 1991 4 60 3 FN2:FENCES 168 SF 56 3 2002 2003 5 30 4 PT3:PATIO 63 SF 21 3 2000 2001 2 50 5 PT3:PATIO 63 SF 21 3 2000 2001 2 50 6 AC2:WALL AIR COND 1 UT 0 0 1989 1990 2 20 7 SW2:SEAWALL 75 SF 75 1 1989 1990 1 60 Appraiser Notes 2002-04-15 THE PARCEL IS COVERED WITH PEET ROCKS AND IT ABUTS VENTURE -OUT CHANGED THE EEF AGE FROM 2 TO 3 AND THE CONDITION FROM P TO G FOR THE 2002 TAX ROLL. SKI/DMJ Buildingits Bldg Number Date Issued Date Completed Amount Description Notes 1 A-4092 08/0111978 06/01/1979 25,900 Residential SFE 91-2133 03/01/1991 12/01/1991 5,214 Residential DOCKS A-7929 03/01/1981 12/01/1981 3.000 Residential ENCLOSURE 4 98-2757 12/14/1998 11/15/1999 3,800 Residential ROOFING 009100465 03/31 /2009 29,900 Residential pool & spa Parcel ales History Certified RAI Vakies, Vies/ Taxes for this P rcei, Roll Year Total Bldg Value Total Misc Improvement Value Total Land Value Total Just (Market) Value Total Assessed Value School Exempt Value School Taxable Value 2010 106,544 16,452 130,500 253,496 253,496 25,000 228,496 2009 154,616 16,924 153,338 324,878 324,878 25,000 299,878 2008 148.743 17,410 303,750 469,903 346,949 25,000 321,949 2007 187,339 17,345 375,000 579,684 336,844 25,000 311,844 2006 201,917 14,306 300,000 516,223 328,628 25,000 303,628 2006 161,534 14,688 262,500 438,722 319,056 25,000 294,056 2004 144,824 14,939 150,000 309,763 309,763 25,000 284,763 2003 178,118 18.198 90,000 286,316 286,316 0 286,316 2002 101,827 18,657 52,500 172,984 172,984 0 172,984 2001 101,472 18,968 45,000 165,440 165,440 0 165,440 2000 101,472 6,934 45,000 153,406 153,406 0 153.406 1999 87,476 6,121 37,500 131,098 131,098 0 131,098 1998 80,478 5,719 37,500 123,697 123,697 0 123,697 1997 80,478 5,827 37,500 123,805 123,805 0 123,805 hq://www.mcpafl.org/PropSearch.aspx 10/25/2010 Property Search -- Monroe County Property Appraiser Page 4 of 4 1996 80,478 5,957 37,500 123,935 123,935 0 123,935 1995 80,478 6,046 41,250 127,774 127,774 0 127,774 1994 80,478 6.153 41,250 127,881 127.881 0 127,881 1993 69,930 6,010 41,250 117,191 117,191 0 117,191 1992 69,930 6,095 41,250 117,275 117,275 0 117,275 1991 71,412 0 36,000 107,412 107,412 0 107.412 1990 65,559 0 30,750 96,309 96,309 0 96,309 1989 59,599 0 28,500 88,099 88,099 0 88,099 1988 53,335 0 26,250 '79,585 79,585 0 79,585 1987 41.247 0 22,500 63,747 63,747 25.000 38,747 1986 41,444 0 22,500 63,944 63,944 25,000 38,944 1986 40,505 0 22,500 63,005 63,005 25,000 38,005 1984 38,556 0 22,500 61,056 61,056 25,000 36,%6 1983 32,737 0 22,500 55,237 55,237 25,000 30,237 1982 33,183 0 12,706 45,889 45,889 5,000 40,889 Sale Date Official Records Book/Page Price Instrument Qualification 7/18/2003 1915 / 35 334,000 WD Q 6/1/1991 1172 / 671 15,000 WD U 8/1/1988 1063 / 1209 105,000 WD Q 6/1/1987 1016 / 1479 95,500 WD Q 8/1/1983 890 / 1727 85,000 WD Q This page has been visited 433,607 times. Monroe County Property Appraiser Ervin A. Higgs, CFA P.O. Box 1176 Key West, FL 33041-1176 http://www.mcpafl.org/PropSearch.aspx 10/25/2010 M BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY WEDNESDAY, SEPTEMBER 15, 2010 Re: Request by Rory and Debra Brown for a floodplain variance under Monroe County Code Section 122-5 COUNTY COMMISSIONERS: C O PY Sylvia J. Murphy, Mayor Mario Di Gennaro, County Commissioner Heather Carruthers, County Commissioner George Neugent, County Commissioner Kim Wigington, County Commissioner STAFF: Suzanne A. Hutton, County Attorney Robert B. Shillinger, Chief Assistant County Attorney Roman Gastesi, County Administrator Christine Hurley, Growth Management Director TRANSCRIPT OF PROCEEDINGS DATE TAKEN: September 15, 2010 TIME: 2:30 - 4:45 p.m. PLACE: Monroe County Government Center 2798 Overseas Highway Marathon, Florida 33050 BEFORE: Monroe County Board of County Commissioners All Keys Reporting Olde Town Centre 600 Whitehead Street 9701 Overseas Highway Suite 206, 2nd Floor Marathon Key West 305-289-1201 305-294-2601 All Keys Reporting -- Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 041n P R O C E E D I N G S MS. DESANTIS: A request by Rory and Debra Brown for a floodplain variance under Monroe County Code Section 122.5 to convert the use of their below base flood elevation enclosure from recreation room, storage area, laundry area and convenience bath to one bedroom, storage area, laundry area and convenience bath for a property located at 23048 Sailfish Lane, Cudjoe. And there are some speakers. MAYOR MURPHY: Does everyone who intends to speak on this issue have a blue card in with Ms. Desantis? MS. HUTTON: And before we begin this, this is a quasi-judicial matter. It's going to require that each of the Commissioners relate what conversations they've had with people outside of this meeting room, just the conversation and the persons to whom they spoke. It's also going to require that the people who get up at the podium and speak be sworn in. COMMISSIONER NEUGENT: Do you want that now, Suzanne? MS. HUTTON: Sure. COMMISSIONER NEUGENT: Are we talking about ex parte conversations? All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 MS. HUTTON: Yes. Well, not just ex parte, because you could have spoken to a number of people who are not actually not the party seeking the variance, so basically every person that you may have, you know, if you've spoken to the County Attorney, the Growth Management Director, the Planning Director, neighbor number one, neighbor number ten, you need to disclose that and the gist of the conversations. MAYOR MURPHY: Okay. Do you want to go first, George? COMMISSIONER NEUGENT: I've probably spoken to all of the above. How specific do we need to be? MS. HUTTON: The Clerk has requested that everybody who is going to get up and speak to stand up right now and raise your right hand so we can swear you all in at once. COMMISSIONER NEUGENT: Lee, everybody that's going to speak back there needs to have a blue card if, because they all stood up and took the oath. MR. ROHE: Yeah. Have you all done that? I didn't even know who was going to show up to speak until just now. MAYOR MURPHY: Everyone who is going to speak on this issue needs to fill out a blue card. The All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 minute the first speaker starts there will be no more signing up. What? That's fine. I'll wait. COMMISSIONER WIGINGTON: Well, and we can do our thing first. I'll start. It'll be fine. COMMISSIONER NEUGENT: A point of clarification. MAYOR MURPHY: Go ahead. COMMISSIONER NEUGENT: Ms. Hurley, in reference to the variance that has been talked about I think some clarification, or maybe Mr. Shillinger, a clarification on the variance and anything outside of the variance that's being proposed are maybe two different things. Am I not being clear? MR. SHILLINGER: No. COMMISSIONER NEUGENT: The variance that is talked about which FEMA addresses, which is a variance that goes with the land per se. Is that correct? MR. SHILLINGER: That's what FEMA's regulations say, is the variance is -- COMMISSIONER NEUGENT: But what may come out of this is something that has nothing to do with the variance as far as direction from the Commission, All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 41 01 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 may or may not, but the variance is something totally separate and clearly identified as to what it is that people in the audience may not understand. MR. SHILLINGER: Okay. And I'm trying to read between the lines as to what other than a variance we might come out of here for. They've filed an application for a variance. COMMISSIONER NEUGENT: I don't think you or anybody else can imagine what might come out of this beyond the variance. MR. SHILLINGER: Okay. So the blank look is understandable. MAYOR MURPHY: Join the club. COMMISSIONER DI GENNARO: George, I'm sure glad you made everything so clear. It's clear to me now. MAYOR MURPHY: And it only took you five minutes to do it. All right. Go ahead. Commissioner Wigington. COMMISSIONER WIGINGTON: We're going to disclose who -- MAYOR MURPHY: Yes. COMMISSIONER WIGINGTON: I spoke with Mr. Brown, and all this was about the facts surrounding the case. I spoke with Mr. Bashinsky. All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 51 "Imp 1 2 3 4 5 6 7 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think those are the two that called me, whether that matters or not. I spoke with County Flood Plain Manager, Ms. Bair, the Growth Management Director, Ms. Hurley, Planning Commissioner Werling, County Attorney Hutton, County Attorney Shillinger, County Attorney Grimsley, and the County Administrator, Roman Gastesi. MR. SHILLINGER: And the question is, did any of those conversations prejudice you or get you to form opinions that are going to prejudice you in your decision here today? COMMISSIONER WIGINGTON: No. MR. SHILLINGER: Okay. The whole idea is that your decision today needs to be based on the testimony that's here and presented today and the evidence that's put into the record, and if you have received information outside of that process, conversations with staff, with the applicant, with neighbors, with God, if that's going to influence your decision the applicant and any other interested party needs to have an opportunity to make sure that they're getting a fair hearing. And that's why we ask, does that affect you. COMMISSIONER NEUGENT: Bob, are you asking me if the information that I've gathered is going to All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 influence my position? MR. SHILLINGER: Yes. I'm going to ask, is it going to prejudice, is it going to influence your decision, and if it is let us know what that is, because if it's adverse to the applicant, then the applicant certainly possibly has a denial of his due process rights to a fair hearing. If he's walking in here with a deck that's already been stacked against him because you've received information outside of the record, then he's entitled to a fair hearing. So if there's information that's affecting your ability to give the applicant or any other, the only other party to this is the County, nobody's intervened in the matter, your job as a quasi-judicial panel is to decide the case based on the evidence presented to you and make sure that you come to this proceeding with as open a mind as possible. COMMISSIONER NEUGENT: I have spoken with Ms. Hurley, the Brown family, at least three of the Browns in the family. Who else? Bashinsky and Gastesi, Hutton, Kolhage. And I, that's all I can think of right now. And no, it hasn't influenced me. MR. SHILLINGER: And the whole idea is if there All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was something out there you'd want to give Mr. Rohe as the attorney for the applicant the ability to question you if something was in there so that the record would, so that he could be sure that he was getting a fair hearing on behalf of his client. That's why we have to go through this process at this stage of the game. COMMISSIONER CARRUTHERS: I have a question for you, Bob. Does that include e-mails? MR. SHILLINGER: Sure. Anything that's come from outside of any evidence -- COMMISSIONER CARRUTHERS: From my head? From outside of my head? MR. SHILLINGER: Yes. Yes. If you imagine something you don't have to disclose an ex parte communication with yourself. COMMISSIONER CARRUTHERS: Okay. Well, I've spoken with Mr. Brown, a couple of times with you, with Ms. Hutton, with Ms. Hurley, with my aide, with my partner, who works with one of Mr. Brown's daughters, and I think I've gotten a couple of e-mails on this, too, from a few constituents. MR. SHILLINGER: And do they -- COMMISSIONER CARRUTHERS: And then e-mail from Mr. Rohe. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHILLINGER: Do they affect your ability to -- COMMISSIONER CARRUTHERS: No. They just make it more difficult. MAYOR MURPHY: Commissioner Wigington. COMMISSIONER WIGINGTON: Yeah. I just did a search on my a -mails because I chose not to, which is rare for me, to answer some of these a -mails because I knew, I thought I knew what the proceedings would be. I think Mr. Rohe either sent an e-mail or else forwarded an e-mail with information from him. Again, Mr. Bashinsky, Mr. November, and Marilyn Tempest. COMMISSIONER CARRUTHERS: Yeah. I've seen all of those e-mails. COMMISSIONER WIGINGTON: Yes. And I've mentioned it to my aide and my husband. MR. SHILLINGER: And obviously the question at the end of all of this, we'll ask Mr. Rohe if he has any questions for you as a result of these just so he can make sure that his client's getting a fair hearing. COMMISSIONER DI GENNARO: I guess I'm next, right? I don't know if I spoke to the Brown family or not, so I'm going to ask them out there. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 91 OR Owl 1 2 3 4 A 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Did I speak to any of yous out there? Okay. Then I did speak to that gentleman over there, I spoke to the County Attorney, I spoke to Gastesi, I spoke to you, I spoke to Sloan Bashinsky, I spoke to John November, and I may have, you know, spoken to God, but I'm going to keep that to myself, okay. I don't think the attorneys want to know whether I spoke to God or not, which I often do. And, but many people have contacted me. I hope I've divulged everything. And it will not influence my decision. I've already made my decision, I think. MAYOR MURPHY: I hope not. MR. SHILLINGER: I hope you're going to make your decision based on the evidence that's presented here today. COMMISSIONER DI GENNARO: And Sloan Bashinsky, by the way. MAYOR MURPHY: Okay. I can't answer to the e-mails, because whatever a -mails I have received over the past few weeks concerning this case I have not read, I have deleted, so that's immaterial. I have no idea who they were from. I did receive a correspondence from Mr. Rohe. I've spoken with Ms. Hutton, today with Mr. Shillinger, and I'm not sure if Roman and I have talked about it. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 10 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Did we? Whatever. We may have. If so, it was -- MR. GASTESI: Obviously it's not going to influence you if you don't remember it. MAYOR MURPHY: No. Obviously not if I can't remember it. MR. GASTESI: You don't listen to me anyway. MAYOR MURPHY: This is true. I don't. And I don't believe there's anyone else here that I have discussed this with. MR. SHILLINGER: Lee, do you have any questions for the Commissioners as a result of it? MR. ROHE: Okay. Lee Rohe on behalf of the Browns, my law office address, 25000 Overseas Highway, Summerland Key. I'm concerned about whether any of you have talked to anyone with FEMA. COMMISSIONER WIGINGTON: Only Ms. Bair. MR. ROHE: With Dianne Bair. I'm going to exclude her because she's local. Has anybody talked to anyone with FEMA? COMMISSIONER CARRUTHERS: Not specifically about this case. I was in a FEMA meeting in D.C. MR. ROHE: About this case or about these issues? COMMISSIONER CARRUTHERS: Well, about these All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issues. MR. ROHE: Disability? COMMISSIONER CARRUTHERS: Not specifically disability. No. MR. ROHE: Has anyone talked to anyone with a disability organization or agency? COMMISSIONER NEUGENT: I did. MR. ROHE: Commissioner, could you tell us? COMMISSIONER NEUGENT: Mark Durbin. MR. ROHE: Who is he with? COMMISSIONER NEUGENT: He's an attorney. Not with an organization. He's an attorney. MR. ROHE: Is he -- COMMISSIONER NEUGENT: -- who specializes in ADA issues. MR. ROHE: Okay. So he would consider himself an expert in the law of ADA? COMMISSIONER NEUGENT: Yes. MR. ROHE: What was the gist of what you learned from him? COMMISSIONER NEUGENT: That ADA does not apply to residential, only commercial. The Fair Housing Act, according to him, applies to residential. MR. ROHE: I would ask that you just erase that from your mind, if you would, and we'll address All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 12 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 I those kinds of legal issues if and when you -- COMMISSIONER NEUGENT: I didn't say it influenced me. I just, it was just information that I gathered. MR. ROHE: Okay. Very good. Fair enough. Anybody else talk to someone who is a self -described expert in the law of disability? No? Thank you. MR. SHILLINGER: Okay. This is, again, this is a quasi-judicial hearing. The applicant gets an expanded opportunity, more than just the traditional three minutes to five minutes, to put on their case. It's the pleasure of the chair, but it would seem that since they are the applicants, their variance that they're looking for, that it would be appropriate for them to put their case on and then staff can chime in with its report and its response and then be subject to any kind of cross-examination. So I'm going to turn it over to Lee. MR. ROHE: Lee Rohe, again, on behalf of the Browns. Would it be all right to take a short break to set up a table for the Brown family with a microphone rather than have everybody try to crowd around one microphone here at the podium? Would All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 1 that be all right? MR. SHILLINGER: Sure. (Pause in the record.) MAYOR MURPHY: Okay. BOCC is back in session. Belle, do you want to read the -- oh, I guess you already have. MS. DESANTIS: No, ma'am. MAYOR MURPHY: You haven't started. MS. DESANTIS: Have not. MAYOR MURPHY: Go ahead and read -- oh, you did. You did read it. MS. DESANTIS: I'm sorry. I was going to call the cards, but it's Mr. Rohe who goes first. MAYOR MURPHY: Okay. Mr. Rohe. Now, how are we going to work this? Public speakers versus he goes first, then Christine, and then you. But where do the public speakers come in? MR. SHILLINGER: Where would you like them to be? my -- MAYOR MURPHY: I really don't care. This isn't MR. ROHE: Just before you deliberate. MAYOR MURPHY: You want public speakers just before -- MR. ROHE: You deliberate. That's usually the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 11 , 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 way I've seen it done. MAYOR MURPHY: Mr. Shillinger? MR. SHILLINGER: That's consistent with how we can do it, is to have that once they can comment on the testimony that's been given by Mr. Rohe and his clients and staff, and then that may'actually focus their statements to the issues that have been presented. MAYOR MURPHY: Okay, fine. Now, do you want to make a little speech about the time that -- MR. SHILLINGER: Sure. MAYOR MURPHY: -- different ones are allowed? MR. SHILLINGER: Right. The applicant in a quasi-judicial hearing has to have an opportunity to present their case. Generally in our cases we've given them twenty minutes to make their case. Certainly if the board feels, if Mr. Rohe feels he needs additional time to put on his record or if the board feels they need more to hear from that, that twenty -minute time limit is flexible in that regard. So all other public speakers that aren't the party or as part of the applicant's case, just members from the public commenting on it, those would be limited to the three -minute, five-minute rule. MAYOR MURPHY: Does everyone understand that? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 Nh.-e 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 MR. ROHE: Okay. Lee Rohe on behalf of the Brown family, the applicants for the variance. I have one little housekeeping matter that I wanted to raise. The agenda item backup, I've been through it. We accept what has been set forth in the memos by the staff as true and accurate with very little exception, which I can get to later on. But for the most part by and large we think that what's set forth in terms of the facts, the history of the property, the permitting, et cetera, is all accurate. Okay? So you can rely on that as far as I'm concerned. The ordinance that we're dealing with of course I'm sure you've looked at, and it actually says in pertinent part that physical disabilities or handicaps shall not be considered relevant. Now, this is an ordinance that goes back to 1979. The Americans with Disabilities Act was enacted in 1990 and these other federal laws that Mr. Shillinger has cited in his brief to you all were enacted later, after 1979. The Flood Act itself which prompted your Floodplain Ordinance, that was enacted by Congress in 1968. So in my opinion we're looking at an ordinance and a FEMA, and FEMA legislation and a FEMA rule that is antiquated, that has not kept up All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ff through the times, has not kept up with the law of disability and handicapped people and their right to live independently and fully as much as possible. And I do think that your ordinance on its face would be unlawful or unconstitutional if it were tested because it says you shall not consider disability, and I think that would clash with federal law. All right. I want to ask, I want to start with, we have Debbie Brown on the left, we have Roy, the dad, and Darren, and I want to start with, Debbie, would you just tell us, say your name and address for us and your occupation? MS. BROWN: Debra Brown. I live at 23048 Sailfish Lane, Cudjoe Key, Florida, and I work for the County Sheriff's Office at Monroe County Detention Center. MR. SHILLINGER: Just so that the record can be clear, make sure that they speak clearly into the record. Or into the microphone. MR. ROHE: Debbie, another question. How many children do you have? MS. BROWN: Three. MR. ROHE: And what are their names and ages? MS. BROWN: Jessica, twenty-eight; Corrine, twenty-seven; and Darren, twenty-five. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West N 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 MR. ROHE: Okay. And of those three who lives with you? MS. BROWN: Darren and Jessica. And actually now my other daughter had to move back in, so Corrine is now with us also. MR. ROHE: Okay. Would the two girls, the two daughters raise your hands? Now, your daughters are, I guess I'm going to have to ask age. How old are they? MS. BROWN: Twenty-eight and twenty-seven. MR. ROHE: And Darren is? MS. BROWN: Twenty-five. MR. ROHE: The address that you just gave, I'm going to shift now to Roy. Roy, would you give us your name and address and your occupation? MR. BROWN: Rory Brown, 23048 Sailfish Lane. I'm a salesman for Pepsi. MR. ROHE: And the home where you live now was purchased by you when? If you can at least recall the year? MR. BROWN: '03. MR. ROHE: And do you recall what month? MR. BROWN: I believe it was July. June, July. It was summertime. All Keys Reporting -- Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 �-- 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 I MR. ROHE: Would you describe the house for us, how many bedrooms, bathrooms? MR. BROWN: It's approximately 950 square foot, two bedrooms, one bath. MR. ROHE: Was it originally built on stilts, do you know? MR. BROWN: Yes. MR. ROHE: Okay. And what does the downstairs area look like? MR. BROWN: It's approximately, I'm going to say 800 square foot. It's basically got a room for his bed and there's another room that he uses to work on his hobbies and then a bathroom. It used to have a kitchen. The kitchen was yanked out. MR. ROHE: Did you do that? MR. BROWN: Yes. MR. ROHE: Are there any doorways within, inside the downstairs enclosure? MR. BROWN: No, sir. MR. ROHE: Is Darren able to maneuver around in the downstairs -- MR. BROWN: Yes. MR. ROHE: -- in his wheelchair? MR. BROWN: Yes. COMMISSIONER NEUGENT: A point of All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West M U M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 1 clarification, Lee? MR. ROHE: Yes, sir. COMMISSIONER NEUGENT: There are no doorways downstairs? MR. ROHE: No interior doorways, I think is what Mr. Brown just said. MR. BROWN: Yeah. Interior doorways, no. He's got -- COMMISSIONER NEUGENT: No interior doorways? MR. BROWN: No. MR. ROHE: And what kind of a doorway do you have to exit the downstairs? MR. BROWN: We just call them French doors. MR. ROHE: Okay. How wide are they? MR. BROWN: Opening both, probably six foot. MR. ROHE: Okay. And how, let's describe your upstairs. You have two bedrooms and one bath? MR. BROWN: That's correct. MR. ROHE: All right. And how many doorways do you have upstairs? MR. BROWN: Interior, three. MR. ROHE: All right. How wide are those doorways? MR. BROWN: Approximately thirty inches. MR. ROHE: Each one? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 I MR. BROWN: Each one. MR. ROHE: Okay. And what is the bathroom configuration? MR. BROWN: The bathroom configuration is a doorway, sink, toilet, and then a cast-iron tub. MR. ROHE: Okay. And how wide is Darren's wheelchair? MR. BROWN: It's thirty inches. MR. ROHE: It's thirty inches. How -- MR. BROWN: And that's just the wheelchair. That's not him. That's, yeah. MR. ROHE: Okay. When you include, when he's seated in the wheelchair, he's now occupying the wheelchair with his shoulders and his arms out, how wide would he need to pass through for a doorway when he's -- MR. BROWN: I would say minimum thirty-six. And that's approximately what the handicap doors are, thirty-six inches. MR. ROHE: All right. Does Darren work? MR. BROWN: No. MR. ROHE: And you bought the house in 2003. When did Darren have his accident? MR. BROWN: 105. December. MR. ROHE: And what happened during that All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 accident? What kind of accident was it and what was the result of it? MR. BROWN: Motorcycle accident. He lost control and hit a pole over on Key Haven, and since then he has been a paraplegic from the chest down. No movement, no feeling, no nothing. MR. ROHE: How much assistance does he need in living downstairs? How much assistance does he need as compared to upstairs? MR. BROWN: Assistance as far as, he, he can basically do his treatments, medication, bowel treatment, so forth on his own. We bring him food, coffee, so forth, drinks. MR. ROHE: Do both of you work, you and your wife? MR. BROWN: Yes. MR. ROHE: What are your hours? Are they daytime hours? MR. BROWN: Yes. MR. ROHE: So would that mean that Darren is home alone during the day? MR. BROWN: Yes, he is. MR. ROHE: Is he able to get around? Can he drive a car? MR. BROWN: He can drive a car. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West L M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 1 MR. ROHE: How is that? MR. BROWN: Handicap controls on the steering column. MR. ROHE: When he's downstairs he's able to get out to his car? MR. BROWN: Yes. MR. ROHE: In a wheelchair by himself? MR. BROWN: Yes. MR. ROHE: And if he were upstairs and he was alone, how would he get out of the upstairs if he had to? MR. BROWN: If he had to? MR. ROHE: Yeah. MR. BROWN: He'd have to go down the stairs, which he can't. So he can't get out, he can't come downstairs by himself. MR. ROHE: All right. And if the doors -- the doors are narrow upstairs; is that correct? MR. BROWN: That's correct. MR. ROHE: Have you ever looked into what it would take to widen those doorways? MR. BROWN: Yes. After his accident Brain and Spinal Cord came to the house, that's a State, I guess, funded organization for this type of injury, and their first step was to look at the upstairs to All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 1 renovate it and deemed it, it couldn't be done. It was just too much work. You would have literally had to remodel half the house. MR. ROHE: Did that organization make any kind of recommendation? MR. BROWN: Their next step was they hired a contractor, pulled a permit, and they were going to pay to redo the downstairs. That was plan B. That was, that was obviously shot down by the County, you know, because of the downstairs application. MR. ROHE: Did they have another plan? MR. BROWN: Plan C was a lift that goes on the stairs to get him upstairs, and that was shot down because we have wooden stairs. Plan D was the elevator, exterior elevator that was delivered, sat in the yard for over a year, and basically when bad times, the crash hit, I don't know what else you want to call it, the economy went, they lost funding, therefore the elevator project was pulled. MR. ROHE: Was the elevator going to be paid by this organization? Paid for by the organization? MR. BROWN: Yes. One hundred percent. MR. ROHE: And was there a time when their funding started to run dry where they asked you to pay for the elevator? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 61 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 1 MR. BROWN: Yes. They asked, they said they had X amount of dollars left and the balance would be, it was in the low twenties, 22,000, in that range, that we had to pay. MR. ROHE: And what was your response to that? MR. BROWN: Basically that was the end of it and we asked them to come and pick up the elevator. MR. ROHE: You didn't have the money? MR. BROWN: No. MR. ROHE: Is that what you're telling us? MR. BROWN: No. MR. ROHE: And the elevator was removed from your property about when? MR. BROWN: July 15th. MR. ROHE: How long did it sit on the property? MR. BROWN: About exactly a year to the day. MR. ROHE: And I guess there was some hope maybe that you could get the funding for it? MR. BROWN: There was always hope, and they tried afterwards and it was just, it was just the way the times were. There was just no money to be found. MR. ROHE: Did you have any other plan after plan D? MR. BROWN: Plan E was, you know, F and All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 61 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 everything else, Z, was the fact that we had to, we had to do something to take care of our child so we gave him what he needed downstairs, and he's been happy ever since. The one thing I would like to say about the elevator, the elevator was not to move him to live upstairs. The State already knew he could not function and live upstairs. The elevator was basically to get him out of harm's way, to bring him up for dinners and so forth. Their intention was that he was going to live downstairs. MR. ROHE: How does he get his meals, since you don't have a lift? MR. BROWN: We bring them down to him, we bring his coffee in the morning, you know, some of the girls before they leave for work, Deb when she's off. MR. ROHE: Okay. Now, one of the staff memos in the agenda item characterize the loss of the elevator as, quote, "The Browns chose not to install the elevator." Would that be a fair description of what happened? MR. BROWN: That's incorrect. We just didn't have the money to do the elevator so we asked them to come pick it up. It was not by choice. It's All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 just that's the way it was. When they gave us the elevator it was supposed to be one hundred percent paid for and covered. MR. ROHE: Since you've owned the house in 2003 have you added on to the downstairs enclosure? MR. BROWN: No. MR. ROHE: Other than the kitchen have you removed anything from the downstairs enclosure? MR. BROWN: No. MR. ROHE: Did you ever approach the County about getting a variance? MR. BROWN: Three years or so ago approximately I did talk to, I believe it was Ms. Wingate about a variance because somebody had suggested it, and I was told that variances did not exist and I stupidly dropped it at that point in time and I shouldn't have. MR. ROHE: I would like to just get a little bit better of a description of Darren's condition. He's paraplegic, correct? MR. BROWN: Correct. MR. ROHE: And he has a severed spine? MR. BROWN: Severed spine. MR. ROHE: In one place or more than one place? MR. BROWN: Well, the complete break is in one All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 1 place. It's called level T3-T4, which is about chest. MR. ROHE: Are you even able to stand up, Darren, by holding on to anything? DARREN BROWN: No. MR. ROHE: Darren, what would you prefer, to live downstairs or upstairs? DARREN BROWN: Downstairs. MR. ROHE: And why is that? DARREN BROWN: Because I would have some independence. MR. ROHE: What worries you about the upstairs? DARREN BROWN: Well, there just, there's no way to get around. There's no room. MR. ROHE: If you were home alone and you got into some kind of trouble -- DARREN BROWN: There would be no way to get downstairs. Like if there was a fire or something like that happened while I was cooking upstairs I'd be stuck up there. MR. ROHE: Now, does your family have a hurricane plan? Each family has a hurricane plan. What's your plan, Roy? MR. BROWN: In his case, Deb might have to stay because she works for the jail so under orders she All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 6 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M 29 may have to stay, but Darren and I, I mean, at Pepsi if there's a tropical storm or hurricane warning, watch, we are allowed to leave and we'd get forty-eight hours' notice, then that's when we would take off. MR. ROHE: Okay. There's no time, really, when you and your wife are away from home for any extended period of time in terms of days or weeks? MR. BROWN: No. MR. ROHE: You don't have those kinds of jobs? MR. BROWN: No. MR. ROHE: How was Darren able to get upstairs before you ever considered having a lift? MR. BROWN: Probably ended up carrying him between two or three friends or something. The family for Thanksgiving or so forth, we literally carried him. MR. ROHE: Up the wooden steps? MR. BROWN: Up the steps. MR. ROHE: What kind of a hardship has it been for you in going through the process of trying to get Darren so that he can live more independently? I know that's a large question. MR. BROWN: It's, it's, it's been a long road. I mean, it just, I mean, I thought we had an answer All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 W N. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 with the State several times, but everything just always seemed to catch a snag somewhere. It was either a FEMA issue or a County issue, a code issue, or a money issue. It's been a process since 107. I mean, it's just been going on and on forever. MR. ROHE: Debbie, do you want to speak to that? What kind of a hardship have you experienced? MS. BROWN: It's very difficult, I'm sorry, just to go through stuff and to see your child or other people not be able to live their lives the way they should or independently, and for things to carry on for years and years is just really not acceptable for anybody. And we have been trying to do the correct things to get this process completed, and it just keeps going on and on and on, and it just needs to end at some point, you know. It just, it has to. MR. ROHE: Debbie, with regard to a letter that I showed you earlier this afternoon, a letter you had written July 21, 2009, it's in the agenda backup and I showed it to you, do you remember me showing that to you? MS. BROWN: Yes, sir. MR. ROHE: Okay. Did you review that -- MS. BROWN: Yes, sir. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROHE: -- today? Okay. Do you affirm what is in that letter is true? 31 MS. BROWN: Yes, sir. MR. ROHE: Is there anything you'd like to add to that letter? MS. BROWN: Well, it would be nice if everybody could read it to see how everything has started with this issue and how it's still continuing and how we have tried to get things taken care of. MR. ROHE: Right now you have one daughter who's been living upstairs with you until very recently? MS. BROWN: Yes, sir. MR. ROHE: And Darren has been living downstairs? MS. BROWN: Yes, sir. MR. ROHE: I don't have any further questions, Madam Mayor. I may have some if Mr. Shillinger inquires. I may also have like a little closing remark to make if you will so indulge me. MR. SHILLINGER: And, Mayor and Commissioners, you have the opportunity to cross-examine the Browns if you'd like, or I have a couple of questions in my mind that, if you don't hit points that I think the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 32 record needs to include. MAYOR MURPHY: I think probably we'd be better off to, Mr. Rohe has finished, Ms. Hurley will give her, will ask her questions, whatever she's going to do, and then you will do it, and then we can ask ones that you haven't. MR. SHILLINGER: Okay. But while we're on this section of these witnesses I'd like to at least ask a couple of questions so we can clear up those issues if you don't mind. MAYOR MURPHY: Go right ahead. COMMISSIONER DI GENNARO: I have one question. MAYOR MURPHY: Yes. Go ahead. COMMISSIONER DI GENNARO: Let's go to the elevator, the elevator that you didn't receive unfortunately, but even if you did receive the elevator, and you didn't, which I wish you would have, it still wouldn't have helped the issue because he wouldn't be able to live upstairs? Am I right or wrong? MR. BROWN: Yes, sir. COMMISSIONER DI GENNARO: So actually the way I see it, the elevator is irrelevant to his living standard; is that correct? MR. BROWN: That's correct. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 COMMISSIONER DI GENNARO: That's the way, I mean, no matter what, that elevator would have been something for him -- MR. BROWN: It was a, what do you want to call it, just a helpful tool to visit family and so forth. COMMISSIONER DI GENNARO: You see, I was under the impression until now that if the elevator was installed that that would have solved the problem. MR. BROWN: No, sir. COMMISSIONER DI GENNARO: And you've just opened my eyes up to the issue, and I think, I don't know if my colleagues here understood that or not but I definitely, it's definitely very clear to me, whether he's got an elevator or not it wouldn't have helped the living condition of being able to live upstairs? MR. BROWN: No. As far as restroom and bedding, no. It would never -- COMMISSIONER DI GENNARO: Thank you, Mr. Brown. MR. SHILLINGER: A couple of questions, Madam Mayor, while we have the Browns here. Do you have the name of the State agency that was involved with you? MR. BROWN: It was Brain and Spinal Cord. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West u 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 34 1 MR. SHILLINGER: Brain and Spinal Cord. Is that, do you know if that's an official State agency or is that like a nonprofit that works with a contract with the State or -- MR. BROWN: It's a State agency. They got in contact with us when he was at Jackson Memorial. MR. SHILLINGER: Are they affiliated with, do you know which department they're affiliated with, like Department of Children and Family Services or Agency for Healthcare Administration or anything like that? MR. BROWN: I, I really don't know. MR. SHILLINGER: Do you have any reports from them or from their engineers or experts which document or supports the conclusion that the upstairs was inappropriate for your son to live in? Did they give you that in writing or in some sort of engineer's report? MS. BROWN: We have engineering, we have some reports, but I don't know what was in it. I would have to pull them back out. MR. SHILLINGER: Would you be willing to supplement the record with those reports? Assuming the variance is granted the next step as the case goes on to FEMA or the variance, we have to report All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 35 1 them to FEMA and we would send the variance and if they wanted to see the record we would want to have the information in it. Would you be willing to supplement the record to include those reports? MR. BROWN: We're still in contact with Brain and Spinal. If we, if we honestly can't find what you need, I'm sure we can have them come back out to the house and give you what you need as far as in writing, yes. I have no doubt about that. MR. SHILLINGER: And I anticipate this question being asked somewhere along the way. Prior to the accident did Darren sleep upstairs or did he sleep downstairs? MR. BROWN: Upstairs. The girls were not with us at the time. When we bought the house the girls were in Key West on their own. MR. SHILLINGER: I see. Okay. And so if I understand the position you articulated, if I understand it correctly, the elevator because of the engineering concerns upstairs, which was the size of the doorways, the upstairs was inappropriate for Darren as a result of his wheelchair, right? MR. BROWN: Yes. MR. SHILLINGER: And is it just the doorways, or are there other issues with respect to the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 I upstairs? MR. BROWN: The bigger issue was the bathroom. There's no, it's, it's probably maybe six foot wide, the distance between the toilet and the wall is probably twenty inches at best, and then we have one of the old-fashioned cast-iron tubs. So there was no way, I don't know if you're familiar with the terms of a person in a wheelchair, but he has to transfer. MR. SHILLINGER: Right. MAYOR MURPHY: To go to bed, to go to the bathroom, to basically do anything, he needs to transfer from the chair to whatever he's trying to do. MR. SHILLINGER: Okay. MR. BROWN: And that was just impossible. The walls would have to have come out, the shower would have had to come out, the toilet would have had to come out. I mean, it was basically that part of the house had to be re -engineered. MR. SHILLINGER: Okay. And is he able to do the transfer himself with grab bars, or does he need assistance to do that? MR. BROWN: Down in the downstairs we put grab bars. He has to have them. Shower -wise he has to All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 I have them. Yes. MR. SHILLINGER: Okay. So he is able, he has enough strength in his upper body to do some of the transferring himself? MR. BROWN: Correct. MR. SHILLINGER: Okay. Now, the downstairs bathroom, you said there's no interior doorways in the downstairs? Is the bathroom just open? MR. BROWN: Well, it's just, it's designed where it's just, it's a wet bath. Basically what we did is we just made it where he could roll in, transfer, and whatever got wet got wet. It didn't matter. He just takes a shower, transfers back into his chair, and moves out. MR. SHILLINGER: And the information on the elevator, your position again is that even if you had the elevator it would not have made it suitable for living upstairs because of the condition? That is your position, correct? MR. BROWN: Correct. MR. SHILLINGER: All right. I don't have any other questions at this time. Unless you do. MAYOR MURPHY: I do. But I also believe Commissioner Di Gennaro does. COMMISSIONER DI GENNARO: I just have one more All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25 38 1 question. Whether you had the elevator or not and whether it could work upstairs, Darren, I don't believe, would be capable of getting into the elevator and bringing himself upstairs and getting in on his own. He would be either a prisoner upstairs or downstairs; is that correct? MR. BROWN: That's correct. COMMISSIONER DI GENNARO: So in other words, the elevator would only work with assistance of somebody having to be there to bring him upstairs and to bring him downstairs, but again even though the conditions are unliveable upstairs the elevator was actually just an added convenience for the family when you were there to have him upstairs and downstairs while you work all day long, either that or you'd have to have somebody transporting him upstairs and downstairs in that elevator; is that correct? MR. BROWN: That's correct. COMMISSIONER DI GENNARO: Thank you. MAYOR MURPHY: Okay. I have some questions. I feel very badly that you are in the situation you're in, so please don't take offense at some of the questions, and if I ask anything inappropriate, stop me. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M MR. BROWN: Okay. MAYOR MURPHY: Okay? I only have a few questions. Have you thought about building a ramp up to the first, up to your, I guess second floor is what you call it, and use a motorized wheelchair? MR. BROWN: It was, it was never brought up as an issue. Unless you know something. MAYOR MURPHY: The reason I ask is because there are three people, one no longer lives in Tavernier, but who had that arrangement and they also were for one reason or another confined to a wheelchair twenty-four hours a day. And that is what they did, was to build, they ended up in your boat with a wooden staircase, and so they built a ramp, it's a long ramp, but it's there, and a motorized wheelchair, and that seems to do the trick. Do you have a pool? MR. BROWN: Yes. MAYOR MURPHY: And when did you put the pool in? MR. BROWN: It would have been last year, 109. I believe it was finished in May. MAYOR MURPHY: Okay. Do you mind telling me All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 39 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 40 how much that pool cost? MR. BROWN: I believe it was $30,000. MAYOR MURPHY: About all I have to say is that there are many, many people in this county, the elderly, children, people Darren's age, who cannot live in the manner in which they would like to live. They cannot live in the way that would suit them best or be most comfortable for them. And that's the way life goes. For one reason or another, sometimes it's because of rules, many times it's because we don't have services that would accompany these people on their way to a, I won't even say perfect life, a good life, and -- I think I'm going to leave it right there. MR. BROWN: Let me back up. One second thing on the pool, also. MAYOR MURPHY: Yes. MR. BROWN: Because it's considered rehabilitation there was a major tax credit for that pool. It's not like we dished out the $30,000. And as far as him living comfortably, he does deserve the right to live his life as comfortable as possible. MAYOR MURPHY: I didn't say he didn't deserve it. Believe me, I didn't say that. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 MR. BROWN: I understand. I'm just, I'm just getting certain points out there. And as you can tell it's -- MR. SHILLINGER: Any other questions from the Commission? Mr. Rohe, do you have any redirect? MR. ROHE: I do. Commissioner Di Gennaro asked you about whether Darren would be a prisoner upstairs or downstairs. Would he be less of a prisoner downstairs? MR. BROWN: Absolutely. One hundred percent. MR. ROHE: In other words, he's a lot more mobile when he's downstairs? MR. BROWN: That's correct. He can go out with his dog, he can go out and throw a fishing line in the canal. Upstairs he's, he's got nothing. He's got a TV, and that's it. I mean, that's, that's all he's got. MR. ROHE: I just wanted to clear that up, the difference between up and down. The Mayor asked you about a ramp. Would a ramp make any difference? Let's suppose that you built a ramp up to your exterior door on the second floor. Are you still faced with the same problem you are with the elevator, that when you get upstairs you All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 can't maneuver? MR. BROWN: That's correct. And an electronic wheelchair would be bulkier, heavier, and more difficult to maneuver upstairs than the one you see r i^M MR. ROHE: So would a ramp make any difference? MR. BROWN: No. MR. ROHE: Okay. I do have some comments just in closing, unless there are more questions. COMMISSIONER DI GENNARO: I want to clarify one thing, Counselor. I would like to clarify one issue. What I meant by he was a prisoner downstairs, meaning that he couldn't get upstairs. When he's upstairs he couldn't get downstairs. Naturally I realize that. That was the point that I was trying to bring out. That's what I understood. Once he's upstairs there's no way he can get back down. First of all, he couldn't get upstairs. He's trapped either way. It's, there's no way he can make a trip by himself. I realize that he does have much more freedom downstairs and definitely believe he deserves it. MAYOR MURPHY: Commissioner Carruthers. COMMISSIONER CARRUTHERS: I guess I would just like to get a little clarification about the All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 61 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 43 difference between upstairs and downstairs, also it seems to me that downstairs he has no barriers between his bed and where he hangs out and the bathroom, there are no real physical barriers, whereas upstairs there are obviously walls and doors that separate those things, and because you're a family if you tried to replicate the downstairs environment upstairs nobody would have any privacy. MR. BROWN: That's correct. That's his issue. He wants his quality of life. He wants to be independent, and that's the issue. Upstairs we're bumping heads. Trust me. MR. SHILLINGER: Any other questions, Lee? MR. ROHE: I don't have any more questions. MR. SHILLINGER: Why don't we go to the staff report? MS. HURLEY: Thank you. It's Christine Hurley, for the record, Growth Management Division Director. And basically I just wanted to take a moment to go over our agenda item that we've put in your packet. You can see, and I think it's important to put on the record, that this is a request to have a base flood elevation enclosed room at a different elevation than what is permitted by flood. I wanted to make it clear to the Commission and I think it's All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 44 beneficial for everyone that the structure itself except for a couple of partitions and a small air-conditioning unit was permitted by the Building Department in 1981. And the issue that we've been -- COMMISSIONER CARRUTHERS: The downstairs? MS. HURLEY: The downstairs enclosure. I'm sorry. The issue that the department has been dealing with is that it was not originally permitted to be used as living area, and I think there has been some communication issues out in the public and I just wanted to put that on the record so everybody was clear about that. The base elevation of the downstairs enclosure is around 4.32 feet and the flood elevation that's required is nine feet. For a variance to be granted in Monroe County based on the Monroe County Code there are certain criteria, and I have included that in your packet. I'm not going to go over the criteria in detail. But Mr. Rohe has already mentioned Section 122-5(3)(a), which is basically the code that says that the board should not consider the physical disabilities or handicaps and health of the applicant or members of his family. All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 COMMISSIONER DI GENNARO: What's that code number again? MS. HURLEY: 122-5(3)(a). 122-5. Given the fact that the code is written this way and the fact that the FEMA guidance that Monroe County is under relative to variances, the staff has not recommended approval of the variance, and I thought that was important to put on the record. In your packet you do have a history of the permits that have been issued to this site as well as attachments that are some of the documents that were approved, and I think that's important for you to review. One finding that we did make as staff that I think is important is that Section 60.6 of the Code of Federal Register does not include the fact that you should not consider disabilities. It's hard for me to talk in double negatives, so pardon me if I mess that up. But it's different from the Monroe County Code and the FEMA guidance. It's silent in that regard. And so I wanted to make sure you were aware of that. The other thing I wanted to point out, that if you grant the variance our staff is obligated to send that to FEMA, we send those, well, we're All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West E1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 1 obligated to send them monthly, and if you grant it we would give written notice and further an affidavit must be provided and prepared and signed by the owners and recorded with the Clerk of Circuit Court in the official property records stating the flood elevation, the lowest floor, which will be below base flood level, and that the actuarial flood insurance rate increase as the flood elevation decreases. So those are the parts that are in our code that are required if you grant the variance. Finally, I just wanted to mention there is a staff report where we went through in detail every criteria, I'm not going to go into that now, but it is in your packet and you can see how each one of those was answered relative to the assessment that was made by the staff. COMMISSIONER NEUGENT: Before we get off the variance I have a question. Christine, if we make a request for a variance does that become permanent if it's granted? MS. HURLEY: A variance is granted for the property, and that's why I felt it was so important to put into the record you really would be granting a variance to use the existing downstairs enclosure as living area at a 4. -- All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West on 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 47 COMMISSIONER NEUGENT: 3. MS. HURLEY: -- 32 elevation compared to the nine foot that is required. COMMISSIONER NEUGENT: My question once again is does that become permanent? Because one of the discussions that I have had with you and others is that, with my discussions with FEMA prior to this, Lee, because I'm not misleading you, but is that, and I recall sitting around the table with FEMA, that they said and their counsel said that they would be willing to work with us on unique issues, whether it be economic, physical disabilities, and those kind of things, but they had to have closure on those issues, meaning that, and I'm thinking that if we're requesting a variance that will then become the law of the land as opposed to a restrictive covenant that the nonconformity would be corrected at point of sale or when the Browns left their home, that that would have to be corrected at that point in time. MS. HURLEY: The way that the variance is written, to answer your question, is it does run with the land. If you condition your variance, and I'll turn this definitely over to Mr. Shillinger, you could perhaps add other alternatives as part of All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 your recommendation to try to limit who the, you know, how long the variances last and in what situation. Is that accurate, Bob? MR. SHILLINGER: We would be stepping beyond what is the traditional area of variance law where generally variance law traditionally has been issues with respect to the property, not the inhabitants. So tying it to those types of measures would be a step beyond that. Whether that's legally enforceable or not, I don't have the answer because that is such a step beyond what traditional variance law, traditional land use principles have been applied to in variances. I understand what you're trying to say. COMMISSIONER NEUGENT: My concern, if we send this up in a black -and -white proposal, i.e. the variance, to FEMA, it gives them a greater opportunity to out of hand refer to the variance per se as written and deny it. MR. SHILLINGER: Are you proposing -- let me see if I can peel away at the onion a little bit here. Are you proposing a specific time limitation on the variance? COMMISSIONER NEUGENT: Point of sale. All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West i.. 1 6 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 49 MR. SHILLINGER: Okay. That's not a specific time duration. That's not five years, ten years. It could be a year from now -- COMMISSIONER NEUGENT: Right. MR. SHILLINGER: It could be fifty years from VIPIM COMMISSIONER NEUGENT: But it's a corrective measure to address the nonconformity that exists. MR. SHILLINGER: What I'm trying to anticipate what FEMA might respond to that is they don't have a definitive measure of when they're going to get closure. They can't point to -- COMMISSIONER NEUGENT: They'll never get closure if they grant a variance that runs with the land. MR. SHILLINGER: Absolutely. So what I was trying to see is if you were thinking of a five-year variance and then we'd come back in five years and see if they're still eligible, meaning maybe Darren's moved on to someplace else or they've sold the house or, you know, it's sun-setted already or, miracle of miracles, they can cure spinal cord injuries and he's had that type of treatment. COMMISSIONER NEUGENT: Okay. But never lose sight of the fact that the downstairs enclosure All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No.., 50 outside of the bedroom was permitted. MR. SHILLINGER: Absolutely. Permitted for storage and rec, and the understanding at the time was recreational use, not -- COMMISSIONER NEUGENT: Which included a bathroom. MR. SHILLINGER: Right. But not sleeping quarters. MAYOR MURPHY: Commissioner Carruthers. COMMISSIONER CARRUTHERS: I guess I have a couple of questions. This whole concept of a variance that runs until ownership changes is something that we've talked about when, just in terms of all of the nonconforming structures that are currently inhabited and how to eventually have all structures come into compliance, so I guess I'm curious, is there a different standard for variance law versus what, you know, when we've been going back and forth with these discussions with FEMA, with some potential solution to this impasse? MR. SHILLINGER: I don't know whether there's a difference or not just because we're traveling outside of the area of law traditional to variances. Now, let me expound on what Mr. Rohe said a little bit earlier when he was talking about the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 . 51 FEMA guidelines being promulgated in an era prior to the ADA, the Fair Housing Amendments Act, and more recent legislative enactments. If you look at the case law, my reading of the case law suggests that the older cases, more traditional cases, support the traditional view. More recently some courts have allowed variances on account of disability. The one that I'm thinking of that just pops into mind was somebody wanted to be able to build in an area that should have been preserved for a conservation easement because it was water runoff to a significant waterway, and I think it was out of Maryland or Pennsylvania, and it was, there was apparently an exclusion shown, you couldn't build around the river or the bay or whatever it was, and they granted them a variance to put a walkway down so their child could enjoy the benefits of that. The court in that case, which was a state court case, not binding on the federal government or anything, upheld that type of variance. That's a more modern, we're starting to see a departure from the traditional variance law approach. So we wouldn't be the first to go into this ground, but it hasn't been clearly defined by the courts yet, I guess is what I'm saying. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West om M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 52 1 COMMISSIONER CARRUTHERS: My second question has to do with the difference between the regulations regarding this in the Code of Regulations versus the FEMA guidelines, because as Ms. Hurley stated, the code is silent on the issue, or maybe it was you who stated, it's silent on the issue of whether or not you could even consider a physical disability when granting a variance. There are, however, three other criteria that would have to be considered in order for a variance to be granted. And among those the first two seem to me to be, you know, a no-brainer. Of course in this case those two are fulfilled. The only one that worries me is the last phrase of the third item, which is that a variance can only be granted if a determination that the granting of a variance will not result in blah, blah, blah, blah, or conflict with existing laws, local laws or ordinances. So my question is, we have a local ordinance that ties to the FEMA guidelines where it does say you cannot consider disability, yet we have code in the federal, the Federal Code is silent on that issue. So would we or should we make our code silent on the issue in order to be more consonant with the Code of Federal Regulations, which is a higher standard All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 N 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 1 anyway, and in that case where would we be in terms of granting a variance such as this? MR. SHILLINGER: Well, first of all, that would be a legislative decision to deal with on another day. That's not before you. But had you done that ahead of time, since it is part of our Floodplain Management Ordinance, we would have had to submit it to FEMA, we would have gotten their take on that, whether it was compliant with their idea of what the federal statutes and their implementing regulations require, and if we disagreed we could challenge that, I suppose in some sort of administrative proceeding or ultimately in court. COMMISSIONER CARRUTHERS: But we wouldn't be specifically saying yes, in this case this is something we can consider. We would just be saying, you know, we're consistent with the Code of Federal Regulations. MS. HURLEY: But not with the guidelines from FEMA. MR. SHILLINGER: Right. And that's where they may disapprove the change to the ordinance based on that, which would then lead to either the administrative or the judicial proceeding to resolve that dispute. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 54 COMMISSIONER CARRUTHERS: Between basically the different agencies and the federal government. MR. SHILLINGER: Right. Which is, I mean, the other way to read that is conflict with any existing, well, it says local laws, but you are governed by these other federal laws as well, the ADA and the -- COMMISSIONER CARRUTHERS: So in other words, what you're saying is that if we did grant it we would be consistent with other federal laws actually. Is that what you're saying? MR. SHILLINGER: Yes. What I'm saying is that there is a possibility that if you deny this variance that they will have a claim under the ADA or the Fair Housing Amendments Act. I'm not saying that there would be definitely one. I'm not saying it would be a slam dunk win for them or a slam dunk win for the County. My read of the cases, and I've been reading them pretty carefully the last couple of weeks since this became an issue, is that there are some triable issues there that could go either way. MAYOR MURPHY: Commissioner Wigington. COMMISSIONER WIGINGTON: I think we want to be fair, above all fair to the Browns, fair to people All Keys Reporting -- Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 \.. 55 who are in like circumstances, but also fair to people who possibly could be kicked out of the National Flood Insurance Program, the taxpayers having to pay a lawsuit. On the one hand as we've been told federal law says you can't do this. On the other hand with ADA it appears that we should do this. Why can't we settle this once and for all for the Browns, for people in like circumstances, for us, for everyone involved? If we're unclear of our rights why can't we step before a federal judge and say on the one hand we're told to do this, on the other hand we're prohibited, tell us what we're supposed to do, and settle this once and for all for everyone? MR. SHILLINGER: That was one of the recommendations in the memo. One of the options laid out was a declaratory judgment action, and that's the purpose of a declaratory judgment action is to when the defendant thinks there may be some issues of liability, doesn't want to exacerbate those by causing even more damage to the other side, has, needs a clarification of its duties and obligations and rights under the law or the National Flood Insurance Program, that is one of the classic reasons why you would file a dec action. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 k, .,- 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 56 1 COMMISSIONER WIGINGTON: Because one thing I don't want this to become are decisions being based on personal relationships. And that is not the case here, we know that, but this is almost a test case for others to be coming before us, and I would really hate for it to matter just who someone knows on this commission of whether they get relief under these circumstances. MAYOR MURPHY: Commissioner Neugent. COMMISSIONER NEUGENT: Well, I guess if we brought it before the federal judge looking for a declaratory judgment most of us would be dead before there would ever be a ruling on that, so the Browns would be protected under that situation. But having said that, let me change the tenor of the discussion here and some of the troubling things that have happened. And please, staff, don't take this as a derogatory comment. It was four and a half years before we were made aware of this case, and I have a problem with us suing the Browns in a Code Enforcement case here. But it was four and a half years before I knew about this or any Commissioner to my knowledge knew about this, and we learned about it on the front page of The Key West Citizen. Speaking for myself, that's when I found All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West N... M 1 2 3 4 5 C: rl 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 f out about this particular case. And what is troubling to me is that because of its uniqueness and because I feel that Monroe County should be able to recognize unique situations that this is something that should have been brought to this County Commission a long time ago to flesh it out, to discuss it and do whatever we decide to do as a group. Being what it is, we're dealing with it here today in a situation to where in hindsight it probably should have been brought to a Commissioner at some point in time by the Browns or by our staff to further discuss this in a more humanistic way. What troubles me, another thing that troubles me in this particular situation is I read a book a long time ago, maybe this was even something along the parallels of this, it was a case study, The Death of Common Sense. This is a situation to where we as a commission, not looking for a permanent situation that's going to run with the land but a humanistic approach to FEMA asking them to recognize that this is one of those unique situations. And there may be other situations in the future, but this is not like an elderly situation where people grow older and have to go up stairs and have to put in an elevator. This was an event that took place, All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 58 I a catastrophic event through the fault of no one that now we have to deal with. And my suggestion would be that rather than we file a lawsuit against these people we ought to start thinking about how we put something together that we can propose to FEMA that they will accept knowing that this is a unique situation. MR. SHILLINGER: Well, in response to that latter point, you have two options to presenting it to FEMA. You can formally present it in a manner of deferring ruling on this and taking all of this information and seeing if we can get a positive advance read of the cards from FEMA, or you can grant the variance and then place it on their doorstep and tee up the issue. Those are your two options of getting that choice brought to FEMA, getting the issue brought to FEMA. The third would be to file the declaratory judgment action. And the only reason you would file against, you would include the Browns in the action is so that they're before the court, their rights are being adjudicated, and they can have an opportunity to be heard and have their issues addressed by the court. Now, whether they decide to align themselves as other defendants, and you're required to name All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 09 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 59 1 everybody who has an adverse interest here, if you're not sure you're going to grant the variance you may be adverse to them. If you had granted the variance and FEMA then denies it or instructs us to rescind the variance or face the consequences, then our interest with the Browns would not necessarily be adverse because we had granted the variance. It potentially could be, again if we decide to rescind it our interest generally in that issue would be adverse to FEMA and then the federal agencies that implement the ADA, which is the Justice Department, the Fair Housing Act, which is HUD, and the Rehabilitation Act, which is the Department of Health and Human Services. So there might be a lot of defendants on the other side of the v. in the case, but all of them are not going to be aligned and they may actually seek to realign themselves with the plaintiff's side, but that would be their call to make through their counsel. MAYOR MURPHY: Commissioner Di Gennaro. COMMISSIONER DI GENNARO: Yes. I have a few questions of you, Counselor. Number one, I understand what George was trying to reach out before as far as working with FEMA to offer them something and according to the way you told us that All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 'Oft... 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 I the restriction or that the variance would have to be based on the land and it would just be a variance on the land. But the Brown family could, and I'm asking you this now, could they on their own restrict their own deed if they get the variance, them doing that willingly without us, even with them telling us it's already restricted so when it does go to FEMA at least they see some sort of closure whatsoever when it comes down the road, when they either sell the house or when they decide to leave or whatever it is, when the young man doesn't live there anymore? That's my first question. Do you think that is possible? MR. SHILLINGER: Do I think, make sure I understand your question correctly. Do I think it is possible for them to voluntarily restrict through some sort of deed restriction the use of the property? Yes. COMMISSIONER DI GENNARO: So then when we send it to FEMA at least FEMA can see some sort of closure like George was trying to request before. George, do you understand what I'm trying to get at? COMMISSIONER NEUGENT: I'm hearing you. COMMISSIONER DI GENNARO: Okay. All Keys Reporting -- Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OR 61 1 Yes? You said yes to that question? MR. SHILLINGER: Yes. COMMISSIONER DI GENNARO: Next question -- MR. SHILLINGER: The property owner can voluntarily restrict through a restrictive covenant. COMMISSIONER DI GENNARO: So then there is a way to get it restricted? MR. SHILLINGER: And that would be, with a restricted covenant you tend to want to have somebody who can enforce that, so the restrictive covenant would be enforceable by the County. COMMISSIONER DI GENNARO: By the County. Okay. Next question, you said there was three possibilities. Can you repeat them again for me? MR. SHILLINGER: All right. You can, A, grant the variance and place the issue squarely before FEMA when they review our monthly variance report. B, you can defer ruling on the variance and seek informal discussions with FEMA. Here's the record of the hearing, here is all of the documentation that they have, including the stuff they're going to get us from the Spinal Injury, and you take it up to them and say rethink your position. You know, tell us what you think. The third one is to go straight to court. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 W 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 62 COMMISSIONER DI GENNARO: Okay. My question is, my question is this, then. Number 2 I don't like. Number 1, grant the variance, and we do grant the variance and then they come back and say no, could we go for the declaratory judgment? MR. SHILLINGER: Yes. COMMISSIONER DI GENNARO: In other words, we could do those steps? Because with my experience with FEMA, every time we ask or request, let them turn it down. I think that would be, that would be the method that I would choose. MR. SHILLINGER: I would tell you that -- COMMISSIONER DI GENNARO: We discussed this yesterday. I think you've had dealings with FEMA and I've had dealings with FEMA, and let's just one time stand up to them, is what I'm trying to say, instead of always asking, requesting, or begging. MR. SHILLINGER: In response to your comment, I think that if we submitted the variance to FEMA and they denied it and threatened us with probation or expulsion or whatever that we would have a claim that was riper -- COMMISSIONER DI GENNARO: Thank you. MR. SHILLINGER: -- before the courts. COMMISSIONER DI GENNARO: Thank you. You've All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 63 answered my question. Thank you very much. MR. SHILLINGER: Because then they would have acted. COMMISSIONER DI GENNARO: Thank you. MAYOR MURPHY: Counselor. MR. ROHE: I don't believe the Browns would have any problem in a variance that had a term on it, a restrictive covenant that had a term on it. I don't believe they would, if provided a sufficient number of months or years looking down the road as best you can. Would that be true? MR. BROWN: That's correct. That's, you know, whatever we can work out, that would be fine with US. MR. ROHE: What would you look at? Five years, ten years? MR. BROWN: Whatever's agreeable to everybody is fine with us. MR. ROHE: You can call it a variance, you can put variance at the top of the page, and it could still be or operate as a restrictive covenant. FEMA is not expert on real estate law. There's really two kinds of variances. There's one that's for non-use. That's where you have a piece of property All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 019M 14 15 16 17 18 19 20 21 22 23 24 25 `. 64 1 that is shaped like a piece of pie and you can't work with it and you go get a variance because it's unworkable, according to the code you don't have enough room for setbacks, et cetera. Then there's also a use variance, which is what we're talking about here, use of the property. So and the other point I want to make is that no judge is going to hang anybody for disregarding the guidelines when the guidelines go beyond the scope of the actual rule. It's funny that the staff put the guidelines first in your agenda packet. Those should have come second. The rule is what counts, 60.6, where it says the administrator does not set forth absolute criteria for granting of variances from the criteria set forth in Section 60.3, et cetera. The administrator does not set forth absolute criteria. Then if you get to the guidelines and all of a sudden the guidelines tighten everything up, those guidelines are going beyond the scope of the rule. So I would threaten FEMA with that. Nobody has ever been, said you're in violation of guidelines. You're in violation of a rule, you're in violation of a statute or an ordinance. That's it. You're not in violation of guidelines. There's no such case. All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 W 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 COMMISSIONER NEUGENT: Let's don't threaten anybody until we have to. MR. ROHE: I'm just saying that if FEMA is that big of a worry -- by the way, you haven't sent any variances up to FEMA since 2008. There were two which you sent up in 2008. One was for Ocean Reef, the other one was for the Key West Harbor, LLC. One was for a boatyard, the other one was for a facility at the racquet club in Ocean Reef. Those are the two you sent up in 2008. You've never sent a variance to FEMA based upon physical disabilities. MR. SHILLINGER: Since the late 180s. MR. ROHE: Since 1985. MR. SHILLINGER: Right. Which is -- MR. ROHE: That's all you have records on. MR. SHILLINGER: Just to understand, just in defense of staff, the guidelines that led to the code amendment, we were granting hardship and physical handicap variances prior to the 1987 Community Assistance Visit, which resulted in information, so they're attunedly aware of how they were handled in the past and this was FEMA's response, was follow these guidelines or else you'll be on probation. So there is, you know, there is a rationale and a method for their approach to the All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West OIR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 66 case, and it's a valid one. COMMISSIONER WIGINGTON: May I ask a question, ma'am? MAYOR MURPHY: You may. COMMISSIONER WIGINGTON: I'm not familiar with a use variance. If Ms. Hurley or Ms. Hutton or Mr. Shillinger could -- MS. HURLEY: I stated earlier that the variance request is for the elevation difference of the downstairs enclosure, and that is the key because while the structure exists, the confusion comes with being able to use it as living space. But I believe that the variance that you're granting is still for the structural elevation of that. That is the part of the Floodplain Ordinance that the downstairs doesn't meet because it was permitted to be used as something different. I don't know that I would call it a use variance, because it's still that flood elevation that you're getting a variance from. COMMISSIONER WIGINGTON: Okay. COMMISSIONER CARRUTHERS: So are you saying that you don't think that we could craft a variance that would have a time limit on it? MS. HURLEY: Oh, no. I'm not saying any of that. I just don't want you to refer to it as a use All Keys Reporting -- Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West N ., 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 variance, because you still need to make sure that you're attuned to, if you all grant a variance it is from the component of the elevation, the floodplain requirement. COMMISSIONER WIGINGTON: And what happens if a hurricane destroys the structure or it's repossessed by a bank or there's some liability somewhere where, you know, they lose the home in a judgment or anything? I'm just throwing out -- MR. ROHE: My opinion would be the covenant, if we make it a personal covenant, it would then expire under those conditions because it's personal to a single person. MR. SHILLINGER: Right. COMMISSIONER CARRUTHERS: But wait a minute. Okay. I'm not clear about that. In other words, it's a personal covenant for this family? MR. ROHE: Yes. For Darren. COMMISSIONER CARRUTHERS: For Darren. But if a hurricane comes and washes everything away, that means he, even though Darren and his family still live in this -- MR. ROHE: I'm sorry. I thought Kim's question was what happens if they leave the property. COMMISSIONER WIGINGTON: No. My question is if All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 68 f it was fifty percent destroyed in a hurricane what happens? COMMISSIONER CARRUTHERS: Can it be rebuilt? MS. HURLEY: Based on how the code works, and I'm going to look at Dianne, but I think she'll nod at me yes, if it is destroyed in a hurricane you have to build it back to the current code requirements, which currently would not allow a square footage on the first floor in excess of 299 square feet. They're all nodding yes. So if a hurricane would destroy the structure, the code is real clear that you come back in at the current code. MR. SHILLINGER: Well, and if you did have to have a major rebuild of the property, then it would be reasonable to assume that the bathroom could be built to handicap standards, the upstairs bathroom -- MAYOR MURPHY: Absolutely. MR. SHILLINGER: -- and the doorways and everything else, so. MAYOR MURPHY: Mario. COMMISSIONER DI GENNARO: My question is of Ms. Hurley. You say this is not a change of use. Now, from what I understand a variance, what I All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 understand is right now the downstairs enclosure that they have right there they're allowed to have but they're not allowed to live in it. Is that correct? MS. HURLEY: Yes. COMMISSIONER DI GENNARO: Okay. So let's get it clear. They're allowed to have it, they're not allowed to live in it. So then if they want to live in it, that would be a change of use? MS. HURLEY: I agree -- COMMISSIONER DI GENNARO: So no matter what the flood elevation is, they still are allowed to have it, it'll stay there. So why would that not be a change of use? Because that is exactly what it is. It is a change of use for them to live in it instead of not to live in it. MS. HURLEY: But what you are varying from -- I'm phrasing this to protect them if you grant it, just so you know. I'm trying to make it clear so if you make your motion you just don't say it's a use variance. The variance is from the nine foot elevation requirement to 4.32 feet elevation of the structure to be allowed to have it as living area as well. But I want you to, if you're going to grant it, I want you to include that in the -- All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 70 1 COMMISSIONER DI GENNARO: So you're recommending us one way, but -- MS. HURLEY: Do you understand what I'm saying? I just don't want you to not do it thoroughly. COMMISSIONER DI GENNARO: I'm looking at it from a common sense point. MS. HURLEY: Yes. COMMISSIONER DI GENNARO: Common sense says that it's a change of use because -- MS. HURLEY: Yeah. It's a change of use. COMMISSIONER DI GENNARO: -- he's going to now be allowed to live down there instead of being allowed to have it. And that's the point that you brought up. So, I mean, I wanted to, I think everybody knows which direction I'm going. But anyway so I'm trying to make it as safe as possible for if we do decide to go forward with this variance. COMMISSIONER CARRUTHERS: Can I just, before we go on, because we do have a lot of people, can I just sort of summarize where at least my thinking is right now? Tell me if this is true. We could craft a variance that would include a personal covenant and would run with this particular ownership or a time period for this use for this downstairs All Keys Reporting -- Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 71 enclosure? We could craft such a variance? MR. SHILLINGER: I'm sure we could, I think we could come up with a document. The question is whether it would be recognized as valid under the law. COMMISSIONER CARRUTHERS: Okay. That's just my first. Okay. So we could do that, and then we could send it to FEMA and they could either not say anything or they could deny it, at which case then we could proceed with a declaratory judgment? MR. SHILLINGER: Yes. Well, if they said nothing, then it would be in place. There would be no need to. If they -- COMMISSIONER CARRUTHERS: Step 3 is only required if they say, you know, no deal? MR. SHILLINGER: Right. And then you would have a final decision from them which would ripen, for lack of a better term, the declaratory judgment action. We'd have a better case to say that we have a final decision from FEMA on how they're going to handle this, and then we're faced with having the threat of being placed on probation and ultimately suspension and all the benefits that come under the National Flood Insurance Program and choosing between the Americans with Disabilities Act, the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 72 Fair Housing Act and everything else that goes along and so you have a conflict of federal laws, and that's the perfect type of thing when you would have a declaratory judgment action. COMMISSIONER CARRUTHERS: And then my last thing is that as an aside should we consider revising our code to be consistent with the Federal Code of Regulation as opposed to the federal guidelines? MR. ROHE: Yes. MR. SHILLINGER: It would be a consideration. I don't know how far we could get with it, but we could attempt to go forward with that. COMMISSIONER NEUGENT: I would just like to add before I make my comment that, you know, that has been an issue with a lot of people in the construction industry, that our ordinances have been overreaching beyond what FEMA has put in its guidelines. MR. SHILLINGER: Right. But FEMA's response to that has been and the prior commissions have enacted it as a way of showing FEMA that we are going to enforce the requirements of federal law and not, and make up for lax enforcement by our predecessors in prior years. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West w.. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 COMMISSIONER NEUGENT: And the other thing that I would like to add before everybody goes home and loses a whole lot of sleep over Darren having housing below base flood, I live in a pre -FIRM home that's ground level, as do thousands of other people, so, that is below base flood, so let's don't all lose a whole lot of sleep over a storm sneaking up on us and poor Darren getting washed away. MR. ROHE: Madam Mayor, unless the Commissioners have any more questions of me, and then we have public speakers, I'll go ahead and close. MAYOR MURPHY: Hold on. Kim does. MR. ROHE: Okay. COMMISSIONER WIGINGTON: I only ask, does it have to be so personal? I will have to admit, this is a strong word, I despise the Gifford case. This is not the Gifford case. This is on the other side of this. It's far, far away from that. But do we have to have it so personal? What about others in similar circumstances? Why would we have individuals coming to us again and again and again for us to decide this when it could be decided for those in like circumstances and not specifically for one person? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West N%-W 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Fosm 20 21 22 23 24 25 74 MR. ROHE: You have to do it case by case. You have to do it case by case. MR. SHILLINGER: You would have to at least give a variance or some sort of agreement on a case by case. Now, if we use this as the test case to see what the ultimate outcome is with FEMA and ultimately the courts, that may lead to a more general or routine practice for handling these types of things. So unfortunately for the Browns, they get to be the poster child for this effort and spearhead it if they're going to continue to fight on. So I can see where we could get to the point in the future where it would become more routine, but we're not there yet. COMMISSIONER NEUGENT: But that's why variances are put in place. Even though I don't, this variance is different in my mind than a variance, but it's a unique situation, an exception to the rule, and that's why it's personal, is because we're dealing with these people who are before us today. COMMISSIONER WIGINGTON: So there are others in like circumstances. COMMISSIONER NEUGENT: Let them come. MAYOR MURPHY: Lee, I believe if you want to close -- All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West OEM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ROHE: We will close at this point. Thank you for your attention and patience, and we'll get off the stage. MAYOR MURPHY: Now, Christine, do you have any more? MS. HURLEY: Do I have any more? MAYOR MURPHY: Are you finished? 75 MS. HURLEY: Yes, ma'am. MAYOR MURPHY: All right. MR. SHILLINGER: And, Mayor, I would just remind you that Mr. Rohe should be given the chance to give closing comments after public speakers if it affects his presentation. MAYOR MURPHY: I'm sure he will remind me of that when the time comes. Won't you, Mr. Rohe? MR. ROHE: Exactly. MAYOR MURPHY: Okay. Belle? MS. DESANTIS: John November, followed by Sloan Bashinsky. MAYOR MURPHY: Belle, how many do we have altogether? MS. DESANTIS: Four. MAYOR MURPHY: Oh, okay. MR. NOVEMBER: John November, with Citizens, All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 09 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 76 Not Serfs. Compassion. Do we want to be known as a community that has compassion for people in similar circumstances of the Browns or not? Do our reputation in this city, in this state, in this country, do we want to be the ones to be known that our community would not have the strength to stand up to FEMA and stand up not based on the law but based on what's right? We have the opportunity today to use our discretion as a community, and thankfully we live in a system where we have elected officials to use their ability to have that feeling in their heart to know what is right based on principle and make a decision based on those ability to discern in this unique situation with this unique man who's been through so much tough times, is it our time to show a little compassion? As we're aware, County staff oftentimes has to play more by the book. They have to look at the regulations, they have to look at the law. Look inside of your heart and think what would the community that elected me, what would each and every individual think and believe and say if I was sitting in that chair that you're sitting in today? No matter what, I believe they would put forward that at this point in time you need to show the leadership, the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 77 tenacity, and the strength to stand up, it's not to FEMA, it's to stand up for what is right. Let someone else take a stance that's separate from that. You've been put in a real -life situation. They need this variance. There's no if, ands, or but's. It's essential. It is an essential break from what's usual in this community. You are the deciders of fact in this case. You guys are the ones who get to take the testimony and make a decision based on what you've heard today. By deferring this to FEMA, by deferring this to someone else, you're losing an opportunity to do what is right in your heart, and I hope you choose to make the decision that's not just right from what you know or what you know the community would do in support of that situation. So please don't disregard the regulations, the federal regulations that give you the discretion to do what is right as a ruling body who's ruling on the facts in this case. Do what is right. Grant this variance. Do -- I don't care if you grant the variance. Do something to allow these people to live in their home. We've lost too many people from Monroe County. Let's not let this happen anymore. Do not let this unique situation slip away. Take this All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 78 opportunity and give these people the relief they need. Thank you. MS. DESANTIS: Following Mr. Bashinsky is Pauline Klein, then Bill Loewy. MR. BASHINSKY: Commissioners, Mayor, I swear I nearly fell out when I heard the County Attorney invoke God when he first started talking about this. I figured you knew I was here. And I listened carefully to what Bob said, and the only problem I had was when he suggested that you might want to initiate a declaratory action preemptively, because that would put the Browns to having to hire a lawyer and I guess the County doesn't want to pay for the Browns' lawyer, but that's probably what the federal court would require, especially if the judge didn't like the case to begin with. Why didn't you just grant the variance and then wait and see what FEMA did and come and see me later when you really had a problem? The courts don't like to be bothered ahead of time with something that hasn't happened yet, especially federal judges. I clerked for one, and I happen to know what they're like. They can be very cantankerous when they feel like their time is being wasted. I think you've been given excellent advice All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West NW1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 79 by your attorney. He assured you a way to wade through this, has set it up perfectly so if you do have to go against FEMA in court you are in the strong position. The Browns, I've met them, I've been in their house. They are only asking that you lay off of them until Darren doesn't live in the house anymore. That's basically what they want. How the lawyer crafts that's something else. You don't want it running with the land. That will irritate FEMA because it's got away from them and they will never have any control over it. They will love much better a conditional, you know, a temporary thing just for as long as this family's in this house or as long as Darren's in the house. As Rory said, Darren doesn't have the life expectancy probably of the rest of us. He might not be around as long as the rest of us. He's got a horrible thing happened to him. I can't imagine that you don't give relief. I can't imagine that you don't give a unanimous vote for relief and tell your lawyer, who's given you the gilted edge solution to draw it up. Thank you. MS. KLEIN: Pauline Klein from Key Largo. I have listened to this and it's a sad story but it's All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West OR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 80 real life, and I know how hard it is to have an emergency in the family such as this and I believe that it would be a compassionate thing to do is to test FEMA on this. Because it is an emergency, you could say life -or -death kind of thing in certain situations if this is not granted. I think it would be a good thing to go ahead and somehow suggest it and see what FEMA says. If you don't ask, you don't get anything. So it's maybe pass it and see, rather than ask, just do it and then find out what FEMA will do about it. I don't think they'll take away anybody's insurance. Thank you. COMMISSIONER NEUGENT: It's better to ask for forgiveness than permission, right? MS. KLEIN: Yes. MR. LOEWY: Good afternoon, Commissioners. For the record, my name is Bill Loewy. You all know me. I in my years with Habitat have had quite a lot of experience with some of the problems you're dealing with today with regards to this family's handicaps. Wheelchair lifts are one way of handling the problem, but only to a certain degree. As you've heard, this property is not set up for accessibility. And I looked at the property from All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 the outside, and it doesn't even, getting inside is only part of the problem. They would spend far more money trying to gain access to this property with a wheelchair lift than anything else that they would do. They need, they have wooden steps. The wooden steps and the landing is really too small for access with a wheelchair lift. Their problems go on and on. I have a particular interest in wheelchair lifts and handicaps and things of that sort. I've put in probably thirty or forty since I've been in the county. I probably am more expert with this than even the Building Department is. I know how hard it is to find money. I went out and found it most of the thirty or forty times, but grant money was available then. Yesterday I made some calls to some of these people looking for money for them, and there is no money out there for wheelchair lifts. I know I'm wasting your time. I look in your faces and I know you're going to do the right thing. But that said, I want to also tell you that the problems that you see before you, the Browns' problems, are right as Kim Wigington said, they're not the only ones out there with this problem. You're going to see it again, no question about it. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 82 All the Habitat volunteers that rebuilt the Keys now are doing, building houses for returning vets that are in wheelchairs that are handicapped. You're not going to escape some of these vets coming down here. Will they go to Key West? Will you have a similar problem? I seriously doubt it. My brother was in a wheelchair. I can tell you, it's a horrible, horrible thing, not only for the person in the chair but for the family. Thank you. I look at your face and I've never been more proud of each and every one of you. I know you're going to do what's right. Thank you. MAYOR MURPHY: I believe that was the last speaker. Do any of the Commissioners wish to say anything? COMMISSIONER NEUGENT: I would only make a proposal/suggestion, is that either Christine or Bob, based upon if you saw the same thing that Mr. Loewy saw, that craft the wording of the motion that we should be making. MAYOR MURPHY: Mario wishes to make the motion. He's already said that. To begin with, I'm going to -- do you have anything you, do you have anything you want to say before we do that? Okay. Well, I do. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 83 COMMISSIONER CARRUTHERS: Well, doesn't Mr. Rohe get his last word? MAYOR MURPHY: If he wishes. He hasn't jumped up yet. MR. ROHE: No. I don't have anything to add. Thank you. MAYOR MURPHY: Okay. COMMISSIONER DI GENNARO: First time a lawyer doesn't have anything to say. COMMISSIONER NEUGENT: He's very smart. MAYOR MURPHY: I do have something to say. I want it known that if I had my way, my druthers, everyone in Monroe County would be allowed to build whatever they wanted halfway under their house, a horse stable, an apartment, a rec room, I don't care what it is. And I don't like FEMA's guidelines, I don't like the pilot program, I don't like what they have done to our mother-in-law apartments, children coming home from college, newlyweds, et cetera, cannot live downstairs. I don't like it. And if anybody ever wants to challenge FEMA, challenge the pilot program, et cetera, count me in. However, with that said, I think you know I'm going to vote no on this because this will bring on every month people who with good reason in their mind want the All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 84 same type of variance. It will be worded a little different, the circumstances will be quite different, but they are going to be here on behalf of their mother, child, Aunt Edna, you name it, but they are going to want -- and I'm not saying they're faking, because they're not. It would benefit a whole hell of a lot of people in this county if they could use their downstairs rooms as living space. And I really do not want to spend my time, my effort, I don't want to be put in a position of having to be the judge, the jury, the medical expert -- AUDIENCE MEMBER: Out of order. MAYOR MURPHY: -- the rehab expert -- AUDIENCE MEMBER: Out of order. It's totally irrelevant, and she cannot use that as a reason. She has to determine this based on the facts that are here now. This is a quasi-judicial hearing. All of this cannot be considered by the Mayor, and I ask that she be recused. MR. SHILLINGER: First of all, he's not a party to the action so he has no standing to recuse you on anything. When you do make your decision you need to base it on the evidence in the record that's presented today and the guidance of counsel and All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 85 argument. MAYOR MURPHY: Okay. And I'm sorry, I've already said a lot of it. I didn't think I had to repeat it, but I will. Based on the fact that I think we have with the permit for the elevator for whatever reason that didn't go in, for anything else that we could help you with with the house, I would be more than willing to do and I think the staff has shown a willingness to do. And so I guess I will leave it at that as to my reason for whatever my vote will be. Heather. COMMISSIONER CARRUTHERS: Well, I think I've outlined what I would like to see happen, but I understand that Mr. Di Gennaro would like to make the motion. But I just would like to say this, that I think all of us are really, we are caught between a rock and a hard place here because we want to protect our ability as a county and as homeowners here to be able to participate in the National Flood Insurance Program, because if not most of us won't be able to live here because if you have a mortgage you have to have flood insurance and if that gets pulled from us then we're in big trouble. There's no guarantee that that will happen in this case, but All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 86 we`re always concerned about that. Having said that, we also have to take into account real -life situations where things change that we don't expect, and I think that this is clearly one of those situations. To me what we're trying to deal with now needs to be dealt with on a federal level because, you know, you started out by saying in 1968 the FEMA rules were promulgated and in 1990 we had the ADA regulations, and clearly the federal government has not within all of its agencies come to terms with how to deal with these two conflicting interests. And, you know, we're seeing it on a very personal level here in Monroe County, and I think that the path that you've outlined may help us deal with it on a federal level. And ultimately that's going to be the only solution that will help deal with all of these individual cases that the Mayor is worried about coming forward. MAYOR MURPHY: Commissioner Wigington. COMMISSIONER WIGINGTON: You were discussing how we were basing our decision and what we could base our decision on. If we were to go strictly by the regulations and the guidelines and the backup that we were given in our agenda backup, we would All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West OWE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 87 have no choice. We've had, felt like we've had no choice all along but to say no. It's only our willingness to stick our finger in the eye of FEMA and make them address this issue based on what we've heard here in this hearing that I think that we can vote yes on this. So I'm, I'm a little bit confused in that is our obligation based on what we're given and presented in evidence according to its relationship to the guidelines that we have read from FEMA and what we're allowed to do, or is it, do we actually have discretion in this matter is what I'm asking, because this gives us no discretion. MR. SHILLINGER: The Code of Federal Regulations, the language in there says that variances are local decisions based on a number of factors. So there is some basis within the Code of Federal Regulations for you to exercise some discretion. We have adopted an ordinance at the behest of FEMA that includes the more restrictive, more specific technical guidelines proffered by FEMA which are not part of the Code of Federal Regulations. It's FEMA's interpretation of the Code of Federal Regulations and how, and since they're judge and jury, they get to interpret their regulations but they're not executioner. You have All Keys Reporting — Court Reporters -- (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 0'1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 88 judicial review. So yeah, you do have some discretion. And understand this. FEMA is charged under the National Flood Insurance Act with implementing this program in a manner which will minimize the ultimate cost to the taxpayers, the U.S. taxpayers, and as any good bureaucrat will do, they will look at their enabling legislation and they will look and work within that box. The ADA, the Fair Housing Amendments Act, Rehabilitation Act, are considerations that are outside of that box. So they may not have fully integrated those acts into what they see as their legislative mandate. And this would be speculative at this point, but that's my read on that. They're going to, they've got their marching orders from their statute and they're going to work within that statute until they get legislative direction to do something different or are ordered by the court to do something different. MAYOR MURPHY: Commissioner, go ahead. COMMISSIONER DI GENNARO: Before I make the motion, like you said, there's so much differences between the ADA, the Fair Housing Act, and also FEMA's rules and regulations, so what we can do is once and for all put everything on the table. With that, I would like to make a motion to All Keys Reporting -- Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 grant the variance, and if FEMA denies the variance I would like to go one step further and move on that we agree also to go to declaratory judgment and to find out once and for all let a judge then decide or let a court of law decide what's going to happen, if FEMA does turn it down to let them know that we're going to go all the way and we're going to support this case to the maximum, and we should, I want to go for a variance now. So my motion is to grant them a variance. COMMISSIONER WIGINGTON: You want all of that in there at one time, huh? COMMISSIONER DI GENNARO: Pardon? COMMISSIONER WIGINGTON: You want all of that in there at one time? COMMISSIONER DI GENNARO: I said it all at once, didn't I? MR. SHILLINGER: What I would suggest, whatever the ultimate outcome is -- COMMISSIONER DI GENNARO: I'll listen to your suggestion. MR. SHILLINGER: -- is that you delegate to staff an opportunity to come back with a resolution outlining your findings, whatever the ultimate outcome is, the decision, like they would do at the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 M 90 Planning Commission when they grant a variance or something. You bring that document back. We would certainly work with Mr. Rohe in crafting, making sure the language accurately reflects what he thinks your ruling is. We bring that back next month for signature and make sure that the document, the resolution, formally -- or we can bring it back Friday if we need to. COMMISSIONER NEUGENT: You don't have to get in a rush. Take your time in getting something like this done. MR. SHILLINGER: And get it done, you know, commit the actual findings to writing in the form of a resolution that you would then finalize. COMMISSIONER DI GENNARO: But do you understand the two steps that I'm suggesting? MR. SHILLINGER: I understand your direction. I was just, Christine has some language she would like to insert as part of the, and suggest it be implicit in your motion. COMMISSIONER DI GENNARO: With the other language also put in that, naturally, that they're willing to, if they move out of the house, that naturally then they no longer will have the downstairs enclosure, all of the fine tuning. I'm All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 91 pretty sure that you'll get together with by next month. MS. HUTTON: So basically your motion is more than what you originally stated. It would also include the conditions for the time certain that the variance would end? COMMISSIONER DI GENNARO: Yes. Yes. Definitely. MR. SHILLINGER: And that would be when either Darren no longer lives there or they sell the property? COMMISSIONER DI GENNARO: When the young man no longer lives there. MR. SHILLINGER: Or he for some reason no longer needs the accommodation. MAYOR MURPHY: Yes, Christine. MS. HURLEY: I would just ask that the wording of the variance be to grant the variance to use the existing downstairs enclosure as living area that is constructed at 4.32 feet above mean sea level from the nine foot elevation requirement with the condition that the property owner record a restrictive covenant approved by the County Attorney and formed in the land records of the County that provides for the use of the structure as living area All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West OR 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 92 until the paraplegic family member is no longer living at the home, to forward that to FEMA after it's documented, and I'm not clear on that last part about the declaratory judgment, but I'm sure Bob is. MAYOR MURPHY: Hold on. George. COMMISSIONER NEUGENT: Christine, I think we need to include a much more articulated rationale for why we're making this request than you just stated. I think you touched on the rationale, but this is an accident that took place after these people lived in the house. It's not, you know, there's a lot of things that could be misconstrued and questions that could be created if we don't articulate the situation as best we can. MR. SHILLINGER: And that's why we propose bringing back a resolution with some legislative findings in it, whereas the accident took place after they were in the house and whereas he's got documentation that he's had it looked at by the Department of Health, Brain and Spinal Cord program, and they've determined that it's inappropriate to live in this house upstairs. COMMISSIONER NEUGENT: How old Darren is, that this was a permitted rec room, and whatever you can embellish it with. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West OR Own 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 93 COMMISSIONER DI GENNARO: And even with an elevator he can't live upstairs. Even with an elevator on the outside he can't live upstairs. COMMISSIONER CARRUTHERS: I guess my only question is, is do we need at this stage to also say we're going to take it to a declaratory judgment? Even though that's our intention, shouldn't we perhaps wait to see what comes back? COMMISSIONER WIGINGTON: If you're going to poke them in the eye shouldn't you at least let them not know you're doing that? MR. SHILLINGER: I mean, certainly the Commission could come back and revisit that issue once it's had the think from FEMA. I think what Commissioner Di Gennaro is suggesting is that you want to communicate to FEMA that you intend to see this through to the, you're not going to accept a no answer as the last answer. COMMISSIONER CARRUTHERS: Because we want to revolve the conflict between these various federal -- COMMISSIONER DI GENNARO: I think, and we discussed this also yesterday, that even as a strategy to let, one time stand firm with FEMA and let them know that we will seek an answer if they All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West OWE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 94 rule against us, then they'll have something to think about. Give them a lot more to think about. And I think we should put our cards on the table, one time and for all not just say please, please, please, and we're begging them. Just say, listen, we're going to go all the way with this. And I think you as an attorney, what would you do if you were fighting this case, if it was -- MR. SHILLINGER: I wouldn't put that necessarily in the resolution. I'd communicate to them that the board has expressed the intention to go forward to the end. The one thing that's giving me pause is there are other issues with FEMA that are out there. The one thing that, the biggest one is the FEMA injunction that the court has up for consideration sometime this fall if not early next year and, you know, it's much larger than just the National Flood Insurance variance, you know, the variance for these folks, or just the issue with downstairs enclosures. It's the endangered species, it's everything else. So I'm reluctant to poke them in the eye, in both eyes. COMMISSIONER DI GENNARO: Well, let me ask you this question. In the interest of just this case we have, wouldn't you do that? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 95 MR. SHILLINGER: Yes. COMMISSIONER DI GENNARO: Okay. So, I mean, this is what we're discussing right now, so why are we mixing apples with oranges? MR. SHILLINGER: Because you have the reality of dealing with the same federal agency -- COMMISSIONER DI GENNARO: We've been dealing with the same federal agency, and they haven't given a damn thing so far. COMMISSIONER NEUGENT: And they don't have to, and I would suggest that we take all of this potentially interpreted adversarial language out of our presentation. We're making a very polite position that we're taking, and let's don't ask for a gunfight unnecessarily. MR. KOHLAGE: Since, Commissioner Di Gennaro, you made the motion, I'd like to know what it is now after all of this discussion. COMMISSIONER DI GENNARO: What I'm hearing from my colleagues here, I do want to see the variance go through, if you're not satisfied with putting in that the declaratory judgment should be our next step, I would go along with that and I would retract that from my, as counsel has advised me, but I sure would like to get the message out there at least to All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West Olin 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 96 say that we do want to have a variance and we're granting a variance today and send it up to FEMA and see what they have to say. MR. KOHLAGE: So is your motion the language that Ms. Hurley just stated with the direction to bring back a resolution? COMMISSIONER DI GENNARO: Yup. Excluding right now, excluding the declaratory judgment. COMMISSIONER CARRUTHERS: I'll second that. MAYOR MURPHY: I have a motion and a second. Belle, would you call the roll, please? MS. DESANTIS: Commissioner Carruthers? COMMISSIONER CARRUTHERS: Yes. MS. DESANTIS: Commissioner Di Gennaro? COMMISSIONER DI GENNARO: Yes. MS. DESANTIS: Commissioner Neugent? COMMISSIONER NEUGENT: Yes. MS. DESANTIS: Commissioner Wigington? COMMISSIONER WIGINGTON: Yes. MS. DESANTIS: Mayor Murphy? MAYOR MURPHY: No. (Proceedings concluded at 4:45 p.m.) All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 97 1 C E R T I F I C A T E STATE OF FLORIDA ) COUNTY OF MONROE ) I, Susan L. McTaggart, Court Reporter and Notary Public, State of Florida at Large, do hereby certify that I was authorized to and did report by stenotype the proceedings in the above -entitled matter, and that the transcript is a true record of said proceedings. Dated this 28th day of September, 2010. Susan L. McTaggart, Court Reporter All Keys Reporting - Court Reporters - (305) 289-1201 Locations in Key Largo, Marathon & Key West c BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: September 15, 2010 Division: Growth Management Bulk Item: Yes No X Department: Building_ Staff Contact Person: Dianne Bair, CFM 289-2518 AGENDA ITEM WORDING: A request by Rory and Debra Brown, for a floodplain variance under Monroe County Code Section 122-5 to convert the use of their below base flood elevation enclosure from recreation room, storage area, laundry area and convenience bath to one bedroom, storage area, laundry area and convenience bath for property located at 23048 Sailfish Lane, Cudjoe Key, RE# 00188650.000000. ITEM BACKGROUND: see attached PREVIOUS REVELANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: None STAFF RECOMMENDATIONS: 1. Deny the variance request under the parameters set forth in the Monroe County Code and FEMA guidelines for local variance and appeal board, or alternatively, 2. Submit the variance request to FEMA, prior to consideration of variance, to determine whether the variance may be granted. TOTAL COST: -0- INDIRECT COST -0- BUDGETED: Yes No -0- DIFFERENTIAL OF LOCAL PREFERENCE COST TO COUNTY: -0- SOURCE OF FUNDS: -0- REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year APPROVED BY: County Atty N/A OMB/Purchasing N/A Risk Management N/A DOCUMENTATION: Included X Not Required DISPOSITION: AGENDA ITEM # II � 11 11 111 7 1 1111-- : III w 1 11111, 4111 will''11�1`1 �'1111111111 1-111w, ill, I I County of Monroe Growth Management Division We strive to be caring, professional and fair To: Board of County Commissioners From: Joe Paskalik, Building Official Townsley Schwab, Planning and Environmental Resources Director Through: Christine Hurley, AICP, Growth Management Division Director Date: August 31, 2010 Re: AGENDA ITEM SUMMARY ITEM BACKGROUND Brown Floodplain Variance Request and Building Permit History Summary Debra and Rory Brown, through their agent and attorney, Mr. Lee Rohe, have requested a floodplain variance from the requirements of the Monroe County floodplain regulations. They own a home with a downstairs enclosure that was originally permitted to include a recreation room and "convenience" bathroom (shower, toilet, sink), with laundry facilities. It was not permitted by the county to be used as living area. The required elevation is nine feet above mean sea level (AE 9) and the downstairs enclosure has a current elevation of 4.32 feet above mean sea level (MSL). Monroe County Code, Section 122-5 requires the Board of County Commissioners to review and grant or deny variances from the floodplain management requirements. A variance is to be granted based on exceptional hardship requirements unique to a property. After receipt of a variance request, the Building Official and Planning Director are to complete a report and recommendation to the board of county commissioners. The board shall review the application and reports and consider granting the variance. The criteria for granting the variance are as follows in Monroe County Code Section 122-5: (1) Variances shall be issued only upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief, and only upon all of the following conditions: a. A showing of good and sufficient cause; Page 1 of 6 Brown Floodplain Variance Request b. A determination that failure to grant the variance would result in exceptional hardship to the applicant; c. A determination that the granting of a variance will not result in increased flood heights, result in additional threats to public safety; result in extraordinary public expense, create nuisance; cause fraud on or victimization of the public, or conflict with other provisions of this chapter or this Code, and d. Specific written findings linked to the criteria below. (2) The following factors shall be relevant in the granting of a variance: a. Physical characteristics of construction; b. Whether it is possible to use the property by a conforming method of construction; c. The possibility that materials may be swept onto other lands to the injury of others, d. The danger to life and property due to flooding or erosion damage, e. The susceptibility of the proposed facility and its contents to flood damage and the effects of such damage on the individual owner; f. The importance to the community of the services provided by the proposed facility; g. The necessity to the facility of a water -dependent location, where applicable; h. The availability of alternate locations less subject to flooding, 1. The compatibility of the proposed use with existing and anticipated development, j. The relationship of the proposed use to the comprehensive plan, land development regulations and the floodplain management program for that area; k. The safety of access to the property for ordinary and emergency vehicles in times of flood; 1. The expected heights, velocity, duration, rate of rise, and sediment transport of the floodwaters and the effects of wave action, if applicable, expected at the site; and m. The costs of providing governmental services during and alter flood conditions, including maintenance and repair of public utilities and facilities such as sewer, gas, electrical and water systems, and streets and bridges. (3) When the board of county commissioners shall consider the property of granting a variance as permitted by this chapter, the following factors shall not be considered relevant: a. The physical disabllldes or handicaps and health of the applicant or members of his family; b. The domestic dZIficulties of the applicant or members of his family, c. The financial dficulty of the applicant in complying with the floodplain management provisions of this chapter; or d. The elevation of surrounding structures. The staff has prepared a report (attached) that indicates the status of the property relative to the criteria found in Section 122-5 for consideration of granting a floodplain regulation variance. Staff has also assembled documentation of the permit history at this site. The permit history indicates that generally, the downstairs enclosure that is below base flood elevation by 4.68 feet was permitted by Monroe County in 1981, except for perhaps the window unit air conditioner and the finishes, which were not indicated on the drawings at the time. While the permit was issued according to the regulations in effect at the time, there are notes in the Monroe County permit files that indicate a plumbing inspector observed the downstairs area being used as living area in 1983, when it was noted that the downstairs seemed to be a separate living unit. This was not permitted nor allowed at the time. However, there does not appear to have been any enforcement efforts at that time. Further, a complaint was received related to the Page 2 of 6 Brown Floodplain Variance Request downstairs being used as living area (duplex) in 1999, and a code enforcement action was initiated. Resolution of that action cannot be determined. In the application from the owners, the owners state that the downstairs had a full kitchen and they removed it. The current owners subsequently sought permits to improve the enclosed area, and at that time were notified the area could not be used for living area. Since the family was using the downstairs for their disabled son, and alternative methods for providing access for their son to the upstairs living area were not successful, the owners are seeking this variance. The staff is obligated to review the variance request based on the current code (Section 122-5) and the FEMA regulations and guidance. It should be noted that the federal regulations (CFR Section 60.6) indicate a variance shall only be issued upon a showing of good and sufficient cause, a determination that failure to grant the variance will result in exceptional hardship and the determination that granting of the variance will not result in increased flood height, additional threats to public safety, extraordinary expense, create nuisances, cause fraud on or victimization of the public or conflict with existing laws or ordinances. The Code of Federal Regulations does not specifically state that physical handicap is not a reason to grant a variance. FEMA Guidelines provide administrative interpretations of the Federal Code. These Guidelines indicate variances should not be granted based on physical disabilities or handicaps, and that such does not constitute exceptional hardship. The Monroe County Code appears to mirror closely the FEMA guidelines and the Code of Federal Regulations. Staff has based its recommendation for denial of the variance on the Monroe County Code and the FEMA Guidelines. If the Board grants the variance, it must give written notice to the owners that specifies the difference between the base flood elevation and the elevation to which the structure is to be maintained. This could impact the cost of flood insurance greatly for this property. Further an affidavit must be prepared and signed by the owners and recorded with the clerk of circuit court in the official property records stating the flood elevation, the lowest floor which will be below base flood level, and that the actuarial flood insurance rates increase as the flood elevation decreases. Finally, the building official must keep a record of all variance actions and annually report any variances to the Federal Emergency Management Agency (FEMA). However, FEMA has required Monroe County to report variances granted, if any, on a monthly basis since 1987. As the Board knows, the Code of Federal Regulations and FEMA indicate that Monroe County should not take actions contrary to the County floodplain regulations, nor the Code of Federal Regulations, as the result could jeopardize the County's voluntary participation in the national flood insurance program. Page 3 of 6 Brown Floodplain Variance Request Brown Floodplain Variance Request PERMIT HISTORY SUMMARY Permit A4092 was issued August 28. 1978 for a single family residence without a downstairs enclosure. The flood zone was V8 elevation 8. There was a fee charged on the electrical permit work sheet for three wall unit air conditioners (A/C). The locations for these units were shown on the floor plans. There was also a fee charged for a washer and dryer on the electrical permit work sheet, but no location was shown on the elevated floor plan. It was not an uncommon practice to locate the washer and dryer below the elevated home in 1978 when the location was not shown on the floor plan. The Certificate of Occupancy (CO) was issued June 14, 1979. This is a post -FIRM home. Permit A5872 for a chain link fence was issued September 21, 1979. Permit A7929 was issued March 6, 1981 for a 672 square foot downstairs enclosure with a storage area section partitioned off from a recreation room and a "convenience bath". Up until 1983, the County regularly issued permits for recreation rooms and "convenience baths" in lower enclosures based on Ordinance 3-1975 and administrative interpretations of the ordinance at that time. At that time the County did not consider such uses as "habitable uses". FEMA addressed below base flood elevation non -conforming enclosed space authorized by permit in the Final Rule for the Pilot Inspection Program date June 27, 2000 under "Previously Issued Permits". As a result of a class action suit filed against the County, the County reached a settlement agreement with the Plaintiffs dated April 13, 1999 which stated that non -conforming enclosed space below base flood elevation authorized by permit would not be cited for violating the County ordinances setting forth floodplain regulations. In 2000, FEMA specifically answered the question of previously issued permits by stating in the Federal Register that "the illegally built enclosures for which the County had previously issued permits are still subject to the inspection procedure". The final rule for the pilot inspection program also stated that the County must inspect these enclosures to ensure that they have not been improved beyond what had been previously permitted. If so the County must take an enforcement action on those improvements that go beyond the previously issued permit. Permit A7929 received final inspections August 10, 1983 for the downstairs enclosure. Notes from the inspectors at that time indicated they observed living space in the downstairs enclosure, including stove, sink and refrigerator. The plumbing inspector made note on the final "OK for plumbing only' and that the "downstairs looks like a separate unit including stove, sink, refrigerator and beds". Permit 911-2133 was issued for a dock March 4, 1991 and inspected May 28, 1991. Permit 981-2757 was issued December 14. 1998 for a re -roof and received an "in progress" inspection January 25, 1999. The final "passed" inspection was never obtained. July 12, 1999 an anonymous complaint was received. The complaint alleged that the downstairs enclosure was being used for habitation, making the house an illegal duplex and that work was being completed without a permit. A code enforcement case was initiated under number CE 99-578A but the case did not go before the Special Magistrate. Page 4 of 6 Brown Floodplain. Variance Request Permit application 061-5462 was submitted September 15, 2006 for the "remodel of existing bathroom'. The remodel request was for the downstairs enclosure "convenience bath". This permit was never issued pursuant to Monroe County Code Section 122-4(a)(9) which incorporates the language of the Federal Register's "Previously Issued Permits" rule and states: "Nonconforming uses and construction below elevated post FIRM buildings shall not be expanded or improved or repaired from damages of any origin and no building permit shall be issued for any improvements to below base flood enclosures, other than for demolition or a permit to remedy a life safety hazard, unless the structure is brought into compliance with this chapter. " October 6, 2006 the County informed the contractor who submitted the application that the permit could not be issued for improvements to nonconforming uses and construction in the downstairs enclosure. May 29, 2008 a complaint was received by code enforcement for the installation of a wheelchair lift without permit. A code complaint was initiated under number CE08050293. On May 30, a code officer met with the property owner and the lift had not been installed. The property owner explained that the wheelchair lift would remain in storage pending the issuance of a permit. On June 2, 2008 case CE08050293 was closed without further action. Permit application 081-2155 was received by the building department on June 10, 2008, for the installation of an elevator and slab. On August 14, 2008 in accordance with Section 6-107 MCC, which requires an inspection upon any building permit where the property tax card shows living area in the downstairs enclosure, an inspection of the downstairs enclosure was performed. The inspection demonstrated that with the exception of a small area and the area permitted as a recreation room and convenience bath, all walls were unfinished bare stud walls and there was no stove. Two refrigerators were observed. During the inspection it was discovered that the previously permitted recreation room is now being used as a bedroom. The laundry room and "convenience bath" were still intact. In addition, the summary in the variance application provided by the Brown's states that the Brown's removed the kitchen years ago. Permit 081-2155 was issued October 3, 2008 for an elevator and slab. This permit generated the inspection performed August 14, 2008 pursuant to Section 6-107. On August 20, 2008, in a letter to the Browns, the County explained that the enclosure exceeded the scope of work permitted in the permit and the steps necessary to gain compliance for the nonconforming structure. The letter also explained that failure to gain compliance would result in a code enforcement referral. The permit was renewed on April 21, 2009 and then expired without any work being completed. The Browns chose not to install the elevator or the slab. February 19, 2009, floodplain management forwarded a referral to Code Enforcement (CE09020237) for the Browns failure to comply with the solutions provided in the August 20, 2008 letter on how to gain compliance. Permit 091-465 for a swimming pool was issued March 31, 2009. The final inspection was passed on June 24, 2009. Page 5 of 6 Brown Floodplain Variance Request July 30, 2009 code enforcement case number CE09020237 was scheduled for a code enforcement hearing. The hearing on July 30, 2009 was continued a number of times to May 27, 2010. At the May 27, 2010 code enforcement hearing, the Browns requested a continuance to apply for a variance. June 21, 2010 Variance application submitted. August 31, 2010 The County continues to receive complaints on this house alleging habitation in the lower enclosure, excessive car traffic as well as perceived multi -family use. At the time of the last inspection, the downstairs enclosure did not have a kitchen, and therefore, would not be classified as multifamily. Page 6 of 6 Brown Floodplain Variance Request a M±2:4:4:101 MONROE COUNTY PLANNING DEPARTMENT We strive to be caring, professional and fair To: Christine Hurley, AICP Director, Growth Management Division Through: Townley Schwab, Sr. Director of Planning and Environmental Resources, Joe Paskalik, Sr. Director Building Official From: Dianne Bair CFM, Floodplain/Special Projects Administrator Date: August 31, 2010 Re: STAFF REPORT Flood Plain Variance Request by Rory and Debra Brown VARIANCE REQUEST: A request by Rory and Debra Brown for a floodplain variance under Monroe County Code Section 122-5 for a variance of 4.68 feet from the required 9 feet elevation (above mean sea level) for use of existing structure as habitable living space at 4.32 feet finished floor elevation (above mean sea level) to convert the use of their below base flood elevation enclosure from permitted recreation room, storage area, laundry area and convenience bath to one bedroom, storage area, laundry area and convenience bath for property located at 23048 Sailfish Lane, Cudjoe Key , RE# 00 18 8650.000000. BACKGROUND: See attached summary and permitting history from Joe Paskalik, Building Official and Townley Schwab, Planning Director dated August 31, 2010. PROCESS: In accordance with Section 122-5 of the Monroe County Code, variances shall be issued by the Board of County Commissioners. The variance shall be made only upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief, and only upon all the criteria in Monroe County Code Section 122-5. If a variance is granted, the decision is rendered to FEMA. A flood plain variance report is sent to FEMA on a monthly basis if variances are granted. The county has not granted any variances since 1987 that did not meet FEMA and County variance criteria. In 1987, FEMA required that the County re-examine all previously issued variances where construction had not commenced and rescind those not properly granted with appropriate criteria. Based on past experience, if a variance is granted to the applicants, upon submission of the variance to FEMA, it is possible that FEMA will require the BOCC to rescind the variance for failure to meet FEMA and County variance criteria. Page 1 of 6 STAFF REVIEW OF VARIANCE REQUEST: The National Flood Insurance variance criteria are based on the general principal of zoning law that variances pertain to a piece of property and are not personal in nature. A properly issued variance is granted for a parcel of property with physical characteristics so unusual that complying with the ordinance would create an exceptional hardship to the applicant or the surrounding property owners. Those characteristics must be unique to that property and not shared by adjacent parcels. The unique characteristics must pertain to the land itself, not to the structure, its inhabitants, or the property owners. Section 122-5 (W (1) Variances shall be issued only upon a determination that the variance is the minimum necessary considering theflood lood hazard, to afford relief, and only upon all of the following conditions. a. Showing of good and su, fj'icient cause: The applicant has stated their son cannot live upstairs comfortably and that his wheelchair will not fit through the upstairs doorway. The applicant has not demonstrated good and sufficient cause, under either the "FEMA Guidelines for Local Variance and Appeal Boards " (federal guidelines attached) or under the Monroe County Code (attached). Good and sufficient cause is based on the property characteristics and not on the occupants. The "FEMA Guidelines for Local Variance and Appeal Boards" state that inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors, do not qualify for exceptional hardship for the granting of a variance. b. A determination that failure to grant the variance will result in exceptional hardship to the applicant: Monroe County staff is sympathetic to this family and its needs. However, staff is constrained by the guidelines and the code. Based on FEMA guidelines, hardship is based on the physical characteristics of the land and not on any property owner or member of a property owner's family. The guidelines offer an example that appears to be of an exceptional hardship, such as this request; however it is not deemed so by FEMA. (see "Individual Hardship vs. Community Goals" and "Hardship - Title 44, CFR" page 2 of 10 and page 3 of 10 of the "Federal Guidelines for Local Variance and Appeal Boards".) An exceptional hardship would pertain to a parcel of property with physical characteristics so unusual that complying with the ordinance would create the hardship. The characteristics must be unique to the property and not shared by adjacent properties. There are no geological conditions peculiar to this property not shared by other properties which would create an exceptional hardship preventing the applicants from using their property in a compliant manner. Page 2 of 6 G A determination that granting the variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense; nuisance; fraud on or victimization of the public, or conflict with other provisions of this chapter. For this particular structure, the expected flood heights should not be increased; the structure and enclosure already exist. Based on FEMA guidelines, "The situation of handicapped persons occupying flood prone housing raises a critical public safety concern. If a variance is granted and building is constructed at grade, it will be critical that the handicapped or infirmed person evacuate when floodwaters begin to rise. Even though he or she may be helpless to do so alone. Not only does this pose an unnecessary danger to handicapped persons but it also places extra demand on the community's emergency services personnel who are called upon and placed at risk during rescue. (thereby creating extraordinary public expense) In contrast, if the building is properly elevated, the handicapped person can still be evacuated if there is sufficient warning and assistance available. If there is not, that person can, in all likelihood, survive the flood simply by remaining at home safely above the level of the floodwaters. " FEMA Guidelines concerning Public Safety and Nuisances (page 3 of 10) state "Variances must not result in additional threats to public safety or create nuisances. As mentioned above, local flood damage prevention ordinances (including elevation requirements ) are intended to help protect the health, safety, well-being and property of the local citizens." Fraud and Victimization (page 3 of 10) state that future owners of the property and the community as a whole are subject to the increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all costs, inconvenience, danger, and suffering that those increased flood damages bring. However, should a variance be granted based on a handicap, other variances with the same criteria may follow setting a precedent and establishing a history which may jeopardize the County's participation in the National Flood Insurance Program which could result in extraordinary expense to the citizens of Monroe County. In addition, persons occupying flood prone areas raises a critical public safety concern. It would be essential that handicap persons leave when an evacuation notice is issued. If flood waters begin to rise, and unforeseen circumstances prevent evacuations he or she may be helpless and in harms way. Not only would this pose unnecessary danger to handicapped persons but it places an extra demand on the emergency management personnel who may be called to the rescue. In this instance the handicap person would be safer in the elevated part of the home. In addition, the granting of this variance will significantly increase the yearly flood insurance. The current owner as well as future owners may purchase this property unaware that it is subject to high insurance rates. d Specific written findings linked to the criteria below: (2) The following factors shall be relevant in the granting of a variance: a. Physical characteristics of construction; There are no unique physical characteristics specific to the structure or property to justify a variance. The granting of a variance for this property would expand the existing nonconforming use which is not in compliance with Section 122-4(a)(9) Nonconforming uses and construction. The enclosure is expected over time to come into compliance with the current regulations. Current regulations permit only limited storage, parking of vehicles and building access. Page 3 of 6 b. Whether it is possible to use the property by a conforming method of construction; The property can be used in a conforming manner. An elevator or lift may be installed, and the bathroom and/or doorways in the elevated home can be altered to accommodate the wheelchair. It is unclear whether or not the doors on the enclosure "convenience bath" must be enlarged or already are large enough to accommodate the wheelchair. C. The possibility that materials may be swept onto other lands to the injury of others; The fact that this enclosure is non -conforming already leaves the possibility of the non -conforming construction materials being swept onto other lands. Additionally, those materials and household furnishings/furniture and other materials and items associated with living in the enclosure would further exacerbate these possibilities. d The danger to life and property due to flooding or erosion damage; As stated in l.c., if flood waters begin to rise, and unforeseen circumstances prevent evacuation, a handicapped person may be helpless and in harms way. Handicapped persons are safer in a home elevated above flood level. The susceptibility of the proposed facility and its contents to flood damage and the effects of such damage on the individual owner; The lower enclosure is susceptible to flood damage. The flood zone is nine feet above mean sea level (AE 9) and the average ground elevation 3.99 feet above mean sea level. With the slab, the finished floor elevation is 4.32 feet. This means there is a one percent chance in any given year that the enclosure could be submerged by 4.68 feet of floodwaters. The contents of a recreation room and "convenience bath" are minimal when compared to the loss of full living area. The damages sustained would not be covered by flood insurance and must be absorbed by the individual owner. f. The importance to the community of the services provided by the proposed facility; A variance for living area for a handicapped person below an elevated home does not provide any service to the community. g. The necessity of the facility of a water dependent location where applicable; This is not applicable. This is not a water dependent facility. h. The availability of alternative locations less subject toflooding; looding; The elevated building and the enclosure are already in place. The only available alternative location less subject to flooding is the existing elevated home. i. The compatibility of the proposed use with existing and anticipated development; Page 4 of 6 A variance to allow permanent continuous habitation as a use in an enclosure which was permitted for occasional recreational use below the base flood elevation is not compatible with existing or anticipated development. j. The relationship of the proposed use to the comprehensive plan, land development regulations and the Jloodplain management program for the area; Habitable space below base flood elevation under elevated buildings is inconsistent with the goals, objectives and policies of the Monroe County Year 2010 Comprehensive Plan. (Policy 101.8.1 prohibits the expansion of nonconforming uses. Policy 217.1.6 mandates enforcement of federal, state and local setback and elevation requirements to promote protection and safety of life and property. Policy 217.1.5 envisions participation in the Community Rating System and seeks to improve the current CRS rating.) The proposed use is inconsistent with the Monroe County Floodplain Management Program. Sec. 122- 4(b)(7) prohibits habitable space below base flood elevation. The purpose and intent of the program is to insure that the county is at all times eligible for and receive the benefit of participation in the National Flood Insurance Program. (Sec. 122-1(b)) k The safety and access to the property for ordinary and emergency vehicles in times of flooding; Coastal floods are generated by hurricanes in Monroe County. In the event of flooding from hurricane conditions, the property would not be accessible for emergency vehicles. L The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters and the effects of wave action, if applicable, at the site; There is a 1 % chance in any given year this site could experience flood waters reaching 9 (AE 9) feet above mean sea level. The average ground elevation at this site is 3.99 MSL. With the slab, the finished floor elevation is 4.32 feet. This site including the downstairs enclosure could be inundated with up to 5.1 feet of flood water. (The structure could be inundated with up to 4.68 of floodwater.) The velocity of the water would be that which is associated with coastal AE zone base flood elevations including up to three feet of breaking waves. The rate of rise and sediment transport is associated with riverine flood conditions. Additionally, debris impact and flood borne contaminants associated with coastal flooding would be expected. M. The cost of providing governmental services during and after flood conditions, including maintenance and repair of public utilities and facilides such as sewer, gas, electrical and water systems and streets and bridges. If a variance is granted, the cost of emergency services would increase in the event that the downstairs enclosure is flooded and the occupants are unable to evacuate. (3) When the board of county commissioners shall consider the property of granting a variance as permitted by this chapter, the following factors shall not be considered relevant: a. The physical disabilities or handicaps and health of the applicant or members of his family; b. The domestic difficulties of the applicant or members of his family; Page 5 of 6 G The financial difficulty of the applicant t in complying with the floodplain management provisions of this chapter; or d The elevation of surrounding structures CONCLUSIONS: In conclusion, the staff has determined that the applicant does not meet the criteria for a variance established in Section 122-5 of the Monroe County Code. RECOMMENDATION• 1. Deny the variance request under the parameters set forth in the Monroe County Code and FEMA guidelines for local variance and appeal board, or alternatively, 2. Submit the variance request to FEMA, prior to consideration of variance, to determine whether the variance may be granted. Page 6 of 6 2003 FEMA llllq�jjj�;:: . :; i ... ... i IIIIIIIIIJI ....... IVEMS Federal Emergency Management Agency Federal Insurance & Mitigation Division Region IV 3003 Chamblee -Tucker Road Atlanta, GA 30341 FEMA GUIDELINES FOR LOCAL VARIANCE AND APPEAL BOARDS In circumstances where compliance requirements set out in a community's regulations pose an exceptional hardship, the community may, after examining the applicant's hardship, approve or disapprove a request for variance. Although FEMA does not set forth absolute criteria for granting variances from the provision of Title 44, CFR, §60.3, 60.4, and §60.5, the following general standards have been established in §60.6 (a): 1. An applicant has good and sufficient cause for requesting a variances; 2. An applicant will suffer exceptional hardship should a variance be denied; 3. A variance will not cause increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; and 4. A variance is the minimum necessary, considering the flood hazard, to afford relief. The granting of variance is a local decision that must be based on local ordinance, NFIP regulations, State law, and any other provisions the community may wish to require. The Nature of the Variances A variance represents a community's approval to set aside floodplain regulations that it adopted to reduce the loss of life and property damage due to flooding. While the impact of a single variance on a flood hazard may not be significant, the cumulative impact of several variances may be severe. The NFIP variance criteria are based on the general principal of zoning law that variances pertain to a piece of property and are not personal in nature. Though standards vary from State to State, in general a properly issued variance is granted for a parcel of property with physical characteristics so unusual that complying with the ordinance would create an exceptional hardship to the applicant or the surrounding property owners. Those characteristics must be unique to that property and be shared by adjacent parcels. The unique characteristics must pertain to the land itself, not to the structure, its' inhabitants, or the property owners. A variance should be considered on an individual, case -by -case, basis and never on a multi -lot or subdivision basis. Examples of the kinds of characteristics that might give rise to a hardship that might justify a variance to certain other building or zoning ordinances would include an irregularly shaped lot, a parcel with unstable soils, or a parcel with an unusual geologic condition below the ground surface. It is difficult, however, to imagine any physical characteristic that would give rise to a hardship sufficient to justify a variance to a flood elevation requirement. A frequently encountered example is the case of a very small undeveloped lot surrounded by lots on which buildings have been constructed at grade, and an ordinance that requires new structures be constructed at a level several feet above grade. If the owner were to elevate on fill, the lot might drain onto neighboring property. In this case, the size of the lot and its' status as the only undeveloped lot in the vicinity are characteristics that could result in a hardship. However, this situation still probably would not warrant a variance because, as discussed below, the owner does not face an exceptional hardship since there are many ways to alleviate the drainage problem (elevation on pilings or a crawl space, grading the fill to drain away from adjoining properties, etc.). Our manual, Elevated Residential Structures and the USACE Floodproofing Systems and Techniques, illustrate ways in which various site -specific problems can be overcome when designing and building structures that must be elevated. Individual Hardship vs. Community Goals In determining whether or not an applicant has established an exceptional hardship sufficient to justify a variance, the local board weights the applicant's hardship against the purpose of the ordinance. In the case of variances from a flood elevation requirement, this would mean asking which variance is more serious: the hardship that this individual applicant would face, or the community's need for strictly enforced regulations that protect its citizens from the danger and damages of flooding? Only a truly exceptional, unique hardship on the part of an individual applicant would persuade local officials to set aside provisions of an ordinance designed to with the whole community's safety in mind. The hardship might not have to be so severe if the applicant were seeking a variance to a setback ordinance, for instance, which was intended merely to simplify street repair and modifications. In the course of considering variances to flood protection ordinances, however, local variance and appeals boards must face the more difficult task of frequently having to deny requests from applicants whose personal circumstances evoke compassion, but whose hardships are simply not sufficient to justify deviation from community -wide flood damage prevention requirements. Hardship — Title 44 CFR § 60 6(a) (3) (u) 44 CFR Section 60.6(a)(3)(ii) states that "Variances shall only be issued by a community upon a determination that failure to grant the Variance would result in exceptional hardship to the applicant." The hardship that would result from failure to grant a requested variance must be exceptional, unusual, and exclusive to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot qualify as exceptional hardships. All of these problems can be resolved through other means without granting a variance. This is so, even if the alternative means are more expensive or complicated than building with a variance, or if they require the property owner to put the parcel to a different use than originally intended, or to build his or her home elsewhere. For example, a situation in which it would cost a property owner several thousand dollars more to elevate a house to comply with the ordinance and an additional several thousand to build a wheelchair ramp or an elevator to provide access to that house for a handicapped member of the family at first glance seems like the sort of problem that could be relieved by variance. 2of10 However, while financial considerations are always import to property owners, and the need of the handicapped person certainly must be accommodated, these difficulties do not put this situation in the category of "exceptional hardships" as they relate to variances. This is because: 1. The characteristics that result in the hardship are personal (the physical condition and financial situation of the person proposing to live on the property) rather than pertaining to the property itself. 2. The problem of day-to-day access to the building can be alleviated in any one of a number of ways (going to the additional expense of building ramps or an elevator), without granting a variance. 3. The situation of handicapped persons occupying flood -prone housing raises a critical public safety concern. If a variance is granted and building is constructed at grade, it will be critical that the handicapped or infirmed person evacuate when floodwaters begin to rise. Even though he or she may be helpless to do so alone. Not only does this pose an unnecessary danger to handicapped persons but it also places extra demand on the community's emergency services personnel who are called upon and placed at risk during rescue. In contrast, if the building is properly elevated, the handicapped person can still be evacuated if there is sufficient warning and assistance available. If there is not, that person can, in all likelihood, survive the flood simply by remaining at home safely above the level of the floodwaters. More simply, the property owner's difficulties would not really be relieved by the variance, more likely only postponed, and perhaps ultimately increased. It would be more prudent over the long run for both the property owner and the community, if the variance were denied and the home built at the proper elevation with handicapped access. This will ensure the safety of all family members when floodwaters rise and protect the individual and community investment in the property, as discussed below. Public Safety and Nuisances — Title 44, CM §60.6 (a) (3) CU Variances must not result in additional threats to public safety or create nuisances. As mentioned above, local flood damage prevention ordinances (including elevation requirements) are intended to help protect the health, safety, well-being, and property of the local citizens. This is a long- range community effort usually made up of a combination of approaches such as adequate drainage systems, warning and evacuation plans, and participating in the NFIP. These long-term goals can only be met if exceptions to the laws are kept to a bare minimum. Fraud and Victimization — Title 44. CM §60.6 (a) (3) iii) Properly granted variances must not cause fraud on or victimization of the public. In examining this requirement, local boards should consider the fact that each new structure adds to local government responsibility and remains a part of the community for the life of the structure. Structures built below the base flood elevation are subject to the increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, 3of10 future owners may purchase the property, unaware that it is subject to potential flood damages, and can be insured only at very high flood insurance rates. Minimum Necessary to Afford Relief — Title 44 C 60.6 a 4 The variance that is granted should be for the minimum deviation from the local requirements that will still alleviate the hardship. In the case of variances to an elevation requirement, this means the board should not grant permission for the applicant to build at grade. Insurance Rates — Title 44 CF _ § 60 6(a) (5) While the building standards in a local ordinance may be altered by means of a variance, the flood insurance purchase requirement, which must be enforced by lending institutions, cannot be waived and thus may create severe financial consequences for the property owners. Insurance rates for structures build below BFE can be substantially higher than those for elevated structures. In many instances, the rates will be so high as to make the structure essentially uninsurable because the owners cannot afford the premium. This may not matter to the original owner who applied for the variance in the first place, but it may matter a great deal to subsequent potential owners. The potential buyer might be forced to forgo purchase of the property. Subsequent owners may not find buyers because of the high insurance rates, or the community may finds it has a large number of un-salable houses. In addition, if the property is not insured and cannot be insured due to high actuarial rates, there may be no funds available to repair the structure if seriously damaged by flood. Even disaster loans may not be obtainable if the flood insurance coverage required as a condition of the loans was available only at very high rates. The result may be that the present owner or a future owner may chose to abandon the damaged house rather than repair it since the damages may exceed the equity in the house. The local government and/or the holder of the mortgage are than left with the problem of one or more vacant, flood -damaged, and essentially uninsurable houses. Technical Staff Assistance In considering variances, the variance board should utilize local technical expertise and recommendations from the Building Department, Planning and/or Zoning Department, Engineering Department, etc. The local technical staff should consider alternatives available such as relocation of the structure on the lot, slope or fill, retention walls, proper drainage away from adjoining structures, and other less drastic variances such as set back or lot coverage variances as previously mentioned elsewhere in this guideline and in other publications. Summary Because the duty and need of local governments to help protect their citizens from flooding is so compelling, and the implications of the cost of insuring a structure built below flood level are so serious, variances from the flood elevation or from other requirements in the flood ordinance should be quite rare. This is why the NFIP variance guidelines at §60.6 are so detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate. It is not surprising that, when these publications are followed, very few situations qualify for a variance. 4 of 10 ri'llelgl .1 • 2003 CODIFIED FEDERAL REGULATIONS (CFR) 60.6 VARIANCE CRITERL4 AND 2003 GUIDANCE FOR LOCAL VARIANCE AND APPEAL BOARDS Page 23 of 23 Reviewed by WABuilding\Working FoldeIS\Bair-Dianne\Variances to Flood\BROWN convert to living area for handicap 2010.doc REFERENCE - 44 CFR §60.6 [Code of Federal Regulations] [Title 44, Volume 1 ] [Revised as of October 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 44CFR60.6] [Page 260-262] TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE CHAPTER I --FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND SECURITY PART 60--CRITERIA FOR LAND MANAGEMENT AND USE --Table of Contents Subpart A --Requirements for Flood Plain Management Regulations Sec. 60.6 Variances and Exceptions. (a) The Administrator does not set forth absolute criteria for granting variances from the criteria set forth in Sec. 60.3, 60.4, and 60.5. The issuance of a variance is for flood plain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance. The community, after examining the applicant's hardships, shall approve or disapprove a request. While the granting of variances generally is limited to a lot size less than one-half acre (as set forth in paragraph (a)(2) of this section), deviations from that limitation may occur. However, as the lot size increases beyond one-half acre, the technical justification required for issuing a variance increases. The Administrator may review a community's findings justifying the granting of variances, and if that review indicates a pattern inconsistent with the objectives of sound flood plain management, the Administrator may take appropriate action under Sec. 59.24(b) of this subchapter. Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. Procedures for the granting of variances by a community are as follows: (1) Variances shall not be issued by a community within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result; (2) Variances may be issued by a community for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the procedures of paragraphs (a) (3), (4), (5) and (6) of this section; (3) Variances shall only be issued by a community upon (i) A showing of good and sufficient cause, (ii) A determination that failure to grant the variance would result in exceptional hardship to the applicant, and (iii) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; (4) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; (5) A community shall notify the applicant in writing over the signature of a community official that (i) The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage and (ii) Such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions as required in paragraph (a)(6) of this section; and (6) A community shall (i) Maintain a record of all variance actions, including justification for their issuance, and (ii) Report such variances issued in its annual or biennial report submitted to the Administrator. (7) Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that (i) The criteria of paragraphs (a)(1) through (a)(4) of this section are met, and (ii) The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. (b) (1) The requirement that each flood -prone, mudslide (i.e., mudflow)-prone, and flood - related erosion prone community must adopt and submit adequate flood plain management regulations as a condition of initial and continued flood insurance eligibility is statutory and cannot be waived, and such regulations shall be adopted by a community within the time periods specified in Sec. 60.3, 60.4, or Sec. 60.5. However, certain exceptions from the standards contained in this subpart may be permitted where the Administrator recognizes that, because of extraordinary circumstances, local conditions may render the application of certain standards the cause for severe hardship and gross inequity for a particular community. Consequently, a community proposing the adoption of flood plain management regulations which vary from the standards set forth in Sec. 60.3, 60.4, or Sec. 60.5, shall explain in writing to the Administrator the nature and extent of and the reasons for the exception request and shall include sufficient supporting economic, environmental, topographic, hydrologic, and other scientific and technical data, and data with respect to the impact on public safety and the environment. (2) The Administrator shall prepare a Special Environmental Clearance to determine whether the proposal for an exception under paragraph (b)(1) of this section will have significant impact on the human environment. The decision whether an Environmental Impact Statement or other environmental document will be prepared, will be made in accordance with the procedures set out in 44 CFR part 10. Ninety or more days may be required for an environmental quality 6of10 clearance if the proposed exception will have significant impact on the human environment thereby requiring an EIS. (c) A community may propose flood plain management measures, which adopt standards for floodproofed residential basements below the base flood level in zones Al-30, AH, AO, and AE, which are not subject to tidal flooding. Notwithstanding the requirements of paragraph (b) of this section the Administrator may approve the proposal provided that: (1) The community has demonstrated that areas of special flood hazard in which basements will be permitted are subject to shallow and low velocity flooding and that there is adequate flood warning time to ensure that all residents are notified of impending floods. For the purposes of this paragraph flood characteristics must include: (i) Flood depths that are five feet or less for developable lots that are contiguous to land above the base flood level and three feet or less for other lots; (ii) Flood velocities that are five feet per second or less; and (iii) Flood warning times that are 12 hours or greater. Flood warning times of two hours or greater may be approved if the community demonstrates that it has a flood warning system and emergency plan in operation that is adequate to ensure safe evacuation of flood plain residents. (2) The community has adopted flood plain management measures that require that new construction and substantial improvements of residential structures with basements in zones Al-30, AH, AO, and AE shall (i) Be designed and built so that any basement area, together with attendant utilities and sanitary facilities below the floodproofed design level, is watertight with walls that are impermeable to the passage of water without human intervention. Basement walls shall be built with the capacity to resist hydrostatic and hydrodynamic loads and the effects of buoyancy resulting from flooding to the floodproofed design level, and shall be designed so that minimal damage will occur from floods that exceed that level. The floodproofed design level shall be an elevation one foot above the level of the base flood where the difference between the base flood and the 500-year flood is three feet or less and two feet above the level of the base flood where the difference is greater than three feet. (ii) Have the top of the floor of any basement area no lower than five feet below the elevation of the base flood; (iii) Have the area surrounding the structure on all sides filled to or above the elevation of the base flood. Fill must be compacted with slopes protected by vegetative cover; (iv) Have a registered professional engineer or architect develop or review the building's structural design, specifications, and plans, including consideration of the depth, velocity, and duration of flooding and type and permeability of soils at the building site, and certify that the basement design and methods of construction proposed are in accordance with accepted standards of practice for meeting the provisions of this paragraph; (v) Be inspected by the building inspector or other authorized representative of the community to verify that the structure is built according to its design and those provisions of this section, which are verifiable. 7of10 [41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, as amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30308, Aug. 25, 1986; 54 FR 33550, Aug. 15, 1989] 8Of10 ADDITIONAL REFERENCE The authority to award variances is limited. Administrative boards are restricted in providing relief within the review standards contained in the regulation. • They are not empowered to change the ordinance or grant variances. • Such actions are misuse of authority, injurious to property owners, and an affront to community regulatory and planning efforts. The Standard State Zoning Enabling Act prepared by the U. S. Department of Commerce in 1926 has served as the basis of many State -enabling acts. The standards for grating variance contained in the 1926 model have been copied by many States, as well. The concept of "unnecessary hardship" is the cornerstone of all variance standards, and is widely used through the country in limiting the granting of variances. Defined as: • Loss of all beneficial or productive use • Deprivation of reasonable return on property • Deprivation al all or any reasonable use • Rending property valueless • Inability to develop property in compliance with the regulations • Reasonable use cannot be made consistent with regulations The applicant has the burden of proving an unnecessary hardship. The proof must be compelling and reasons for granting the variance substantial. A variance is a waiver of one or more of the specific standards required in ordinance. Concerning the floodplain ordinances, variance requests should be considered very carefully. It is possible that FEMA's enforcement action could result in placing the community on probation or being suspended from the NFIP for issuing excessive variances. This would result in the loss of flood insurance for the entire community. When a variance is granted, the local administrator must provide written notification to the applicant that a project granted a variance is not exempt from the insurance requirements. In some instances, a variance may result in increased insurance premium rates that could go as high as $25 per $100 of coverage and increased risk to life and property. Variance Records - Title 44, CFR, § 60.6 a (6) The community shall maintain records and report all variance actions to FEMA as requested and/or as a part of the biennial report. The records should, at a minimum, include the variance action, board justification, and property owner notification. Functionally Dependent Structures - Title 44. CFR. §60.6(a) (7) Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided: (i) The criteria of paragraphs (a)(1) through (a)(4) of this section are met, and The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. 10 of 10 7 v 0 w 0 T mztol UKM �Co-w Sec. 122-5. Vedances ted1 FaDgN�AGEMENTtohf pmaemrequirements- - (c) Conditions. seC- 122-5. Varlances to the floodplain management requirements. (a) GenerallY Where, owing to special conditions, a literal enforcement of Provisions of the plan would result in exceptional hardship unique to that rope oodplao management the board of county commissioners may grant variances from the terms of those POf roperty as will nproject, be contrary to the public Interest, will be In harmony with the general Purposewill not and will be the minimum variance that will allow reasonable use of the roand intent of this chapter, (b) Procedures: p (1) An application for a variance from the provisions of this chapter for development in an area of special flood hazard shall be filed with the building official In a form provided by the director of planning at the time of application for a building permit. (2) Within ten days of recelpt of a complete application for a variance from the terms of floodplain management provisions of this chapter, the building official shall forward the the application to the director of planning, review the application, and submit recommendation to the board of county commissioners. a report and i submit a report and recommendation to the board of (3) The director of planning, or his designee, also shall review the application fora variance commissioners within flue p after receipt from the building official. county commdays (4) The board of county commissioners shall review the application and the reports and recom- mendations of the building official and director of planning and consider granting the varian in accordance with the conditions set forth in this section. ce (c) Conditions. (�) Variances shall be issued only upon a necessary, considering the flood hazard, conditions: (2) determination that the variance is the minimum to afford relief, and only upon all of the following A showing of good and sufficient cause: A determination that failure to grant the variance would result In exceptional hardship to the applicant; A determination that the granting of a variance will not result in increased flood heights; result in additional threats to public safety; result in extraordinary public expense; create nuisance; cause fraud on or victimization of the public; or conflict with other provisions of this chapter or this Code; and Specific written findings linked to the criteria below The following factors shall be relevant in the granting of a variance: a• Physical characteristics of construction; b• Whether it is possible to use the Property C. The Possibility that materials may be swept onto other lannds to the of construction; d• The danger to life and roe the injury of others; e• The susceptibility of the proposed facility and its con ooding or ion damage; effects of such damage on the individual owner, tents to flood damage and the t The importance to the community of the services provided by the proposed facility; 9• The necessity to the facility of a water -dependent location, where applicable; h• The availability of alternate locations less subject to flooding; i• The compatibility of the proposed use with existing and anttrinnfea -- -..-w[..N1neni; LDC122:13 FI n01101 Aw AAA L..i._- -- Chapter 122 FLOOOPLAIN MANAGEMENT Sea 122-5. Variances to the floodplain management requirements. (c) CondiNona J. r no, reianonship of the proposed use` to the comprehensive regulations and the floodpiain management pplan, d development rograrrl. for that area, lan k The safety of access t¢ the propO*br ordinary and emergency vehicles.1 'times of flood; .n i• The expected heights, VelocltX duratlQn, rate of risk and sediment trans floodwaters and the ects of Wave action, if applicable, ex Port of then M. The costa of rovtdin ' Pied at the alter and P 9 governmental service& during and offer Hood .coriditCons, lriclErdfng meintenarict and repair of pubs f U jjld� and facilities such as sewers gads elecricai and wafer sysdhtk and street& arid bridges, (3) Who" tfte board. of cou ' ' r, commissioners shall consider the propelriy of granting a varfartc& as permitted by ttris chapter, the fol%wing fdctaie shall ro be: considered relevant: a. The Physical disablitueS of handicaps and health of the appitcarit or memo ` family; ers-of his TN ddsnestiadifflbtiitie$ of the appilc&nto ' r members of his family; 'ifji ftnanclat difilci lly-of th& appiicant.in com s oP proyfs of- this chapter, or, Rh�ng with,the food lal" management_ d: TH4 el.do tfori•of suriv oding structures. (4) Any applicant to whom a variance is grarrtedshali be given written Notice the board Of coun commissioners specifying the difference between the base flood elevationrand the elevation to which the $tructivals;to be WIN and stating, that the cast of floact Insurance will be commen- surate with the Increased risk resuiling from .ths reduced lowest floor elevatio (5) Ali variances (n. is shall. requli a that an affidavit be to � the circuit- court, Whicfr shows. that the P Pared. and recorded with the clerk of area, the.numtier of feet that the lowest flooPf of tfi proposQd s will lctbure located below the bone flood level, and that acNarlat flood Insurance rates increase as the flood elevation decreases: (6) The building official shall •mail cola records of all variance actions and annu variances to the Federal Emergency Management Agency, ally report any (Code 19791 § 9.5-31 A; Ord. Na 39-20()0, § 6) County of Monroe Growth Management Division Building Department 2798 Overseas Highway Suite #300 Marathon, FL 33050 Voice: (305) 289-2501 FAX: (305) 289-2515 We strive to be caring, professional and fair 8/20/08 Rory and Debra Brown 23048 Sailfish Ln. Cudjoe Key, FL 33042 RE: Enclosure inspection at Lot 16, Block B Cudjoe Ocean Shores, RE# 00188650.000000 Dear Mr. & Mrs. Brown, Board of County Commissioners Mayor Mario DiGennaro, Dist 4 Mayor Pro Tem Charles "Sonny" McCoy, Di: George Neugent, Dist. 2 Dixie Spehar, Dist. 1 Sylvia J. Murphy, Dist. 5 This letter is to address the inspection of the ground level enclosed area on 8/14//08. In researching the permitting history, I found there was one permit authorizing the enclosure: A7929, which was permitted as a 672 square foot storage enclosure, which included a recreation room and bathroom. The following are not in compliance with the Monroe County Floodplain Ordinance or permit A7929, which authorized the construction: 1. There is no flood venting. Since the original permit did not call for flood vents, none will be required to be installed, unless, the elevated building is ever substantially improved OR if any permitted improvements to the lower enclosure are requested, other than demolition.9.5- 317(b)(1)d(iii) 3. The enclosure is partitioned. The partitions that were permitted may remain, but any additional partitions must be removed. I have enclosed a copy of the floorplan provided by our inspector and have marked ip yelldw which partitions must be removbd, including closets and stud walls.(9.5- 317(b)(1)d.(v). 4. There are finishes. Because the side of the enclosure that contains finishes was permitted as a recreation room, then the finishes(drywall and tile) may remain until such time as the enclosure is damaged and in need of repair, or when the elevated house is substantially improved. Any finishes in the other side of the enclosure would need to be removed. 9.5-317(b)91)d(iv) 5. There is a bathroom and a laundry room within the enclosure. As the enclosure was permitted with those uses, they may remain until such time as the elevated house is ever substantially improved, OR such time as any improvements are permitted within the enclosure. 9.5-317(b)(7) M 6. There area is equipped as a bedroom. At the time the original single family permit was issued, only two bedrooms were authorized. The County did not consider recreation rooms and convenience baths as habitation at the time this permit was issued. Please remove all furnishings. 9.5-317(b)(7) 7. The enclosure is air conditioned. Please remove the a/c and repair the hole. 9.5-317(b)(1)D(v) I have released the elevator permit and routing it back to the Building Department for further processing. Please make the corrections noted above and call for a reinspection. I can be reached at 305 289-2866. If these issues are not resolved within 60 days, Code Enforcement will be notified. If you have any questions, please give me a call at the above number. jLcer Wingate, CFM Plans Review Technician jl� jj� fill, LEE R. ROHE ATTORNEY AT LAW P.O. BOX 420259 25000 OVERSEAS HWY SUMMERLAND KEY, FL-33042 Joe Paskalik, Building Official Monroe County Building Department 2798 Overseas Highway Marathon, FL 33050 TELEPHONE (305) 745-2254 FAX: (305) 745-4075 E-MAIL Irrlaw@bellsouth.net June 21, 2010 Re: Brown Application for variance to floodplain management requirements --- 23048 Sailfish Lane, Cudjoe Key Dear Joe: Enclosed you will find a completed Application for Variance to Flood Hazard Ordinance, check in the amount of $50, an NOV regarding Case No. CE09020237, a narrative dated May 21, 2009, signed by Debra Brown and a Memo of Law signed by me on May 26, 2010 submitted to Nicole Petrick and Lisa Granger. The exhibits referenced in the Memo of Law have been previously submitted to Nicole. On May 26`h, at the Code Enforcement hearing for the Brown's NOV hearing, it was stipulated by Lisa Granger and myself that the Browns should have an opportunity to apply for a variance under Section 122-5, Monroe Code. Section 122-5 (c) (1) requires a showing of good and sufficient cause; exceptional hardship; and no increase in flood hazard, etc. Darren is unable to maneuver his wheelchair through the doorways and to the bathroom upstairs because of the narrow doorways and wide wheelchair. The wheelchair itself is one of the smallest models made. Darren does not have an elevator as explained both in Debra Brown's narrative and the Memo of Law. Both of Darren's parents work. No one is home during the day except Darren. Because of special fittings on his car, Darren can drive a vehicle but would not be able to get to his vehicle if living upstairs and a medical emergency arose. Also, Darren would be trapped upstairs if a fire broke out. If living downstairs, he would not be subject to such risks. Although someone informed the Browns that FEMA would not allow a variance, the County provides for a variance in its Code and, as noted at page 5 of my Memo, FEMA does not have an absolute prohibition against variances. Moreover, although the FEMA regulation is silent about physical disabilities, Section 122-5 (3) directs the BOCC to consider disabilities as not relevant. It is our position that this clause within the Monroe Code flies in the face of the federal Americans With Disabilities Act as set forth on page 4 of my Memo. (The ADA has been held applicable to local governments.) Please let me know if you require any further information or explanation. I can be reached at 745-2254. Thank you for your attention and consideration. Sincerely, g--e �� ; 4 Lee Robert Rohe, Esq. cc: Lisa Granger, Assistant County Attorney client KI APPLICATION FOR VARIANCE TO FLOOD HAZARD ORDINANCE Submit to: Monroe County Building Department $ 50.00 fee for filing of application APPLICANT'S NAME yI I 'i va+ APPLICANT'S MAILING ADDRESS `t t NAME OF PERSON SUBMITTING APPLIC/ATI% MAILING ADDRESS OF ABOVE A. D L(c-x PROPERTY DESCRIPTION: KEY DATE 6:al JO/ 0 PHONE � / r •iR�e�� :vie • T BLOCK SUBDIVISION STREET OR ROAD Q I EXPLAIN REQUEST FOR VARIANCE: (Drawings or photos if necessary) BRIEFLY EXPLAIN WHY YOU BELIEVE YOUR REQUEST SHOULD BE GRANTED: AHVE UNDERSTAW THAT FLOOD INSURANCE RATES WILL RESULT IN HIGH PREMINUM RATES. DO NOT WRITE BELOW THIS LINE TO BE COMPLETED BY ZONING DIRECTOR PROPERTY INSPECTED BY COMMENTS Yi DLA't i IMPROVEMENTS BELOW THE REQUIRED ELEVATIONS Ix [�ft A APPLICANT'S SIGMA r rMONROE COUNTY CODE ENFORCED44 NOTICE OF VIOLATION/NOTICE OF HEARING TO: BROWN RORY & DEBRA 23048 SAILFISH LN - CASE NUMBER: CE09020237 CUDJOE KEY, FL 33042 RE NUMBER: 00188650000000 LOCATION 23048 SAILFISH LN CUDJOE KEY, FL 33042 DEAR PROPERTY OWNER / TENANT, You are hereby notified that an inspection of the above referenced pro;:erty on -�- found violations of the following Monroe County Section (s) : 122-4. (b) (1) (d) AS PER THE LETTER PROVIDED TO YOU FROM THE FLOOD PLAIN MANAGER DATED 08/20/08, YOUR DOWNSTAIRS ENCLOSURE IS IN VIOLATION OF THE FOLLOWING ITEMS: I. PROHIBITED FINISHES 2. TEMPERATURE CONTROLLED 3. ADDITIONAL UNPERMITTED PARTITIONS 4. HABITATION Corrective Action Required: CONTACT THE FLOODPLAIN MANAGEMENT OFFICE FOR INFORMATION TO BRING THE ENCLOSURE INTO COMPLAINCE. IF YOU HAVE ALREADY BEEN NOTIFIED BY THE -FLOOD PLAIN MANAGEMENT OFFICE OF THE CORRECTIVE ACTION REQUIRED PLEASE FOLLOW THE REQUIREMENTS AS STATED IN THE LETTER. BUIDLING PERMITS, APPROVALS AND 99 FINAL INSPECTIONS MAY ALSO BE REQUIRED. Corrective Action Required: TO AVOID FINES AND/OR COSTS of prosecution as per Chapter - 162 F.S. a��11.1 violations noted above must be corrected by If the violation is corrected and then recurs, or if the violation is not corrected by the time specified for correction by the Code Enforcement Inspector, the case may be presented to the Code Enforcement Special Magistrate even if the violation has been corrected prior to the hearing. IT IS YOUR RESPONSIBILITY TO CONTACT THE CODE ENFORCEMENT INSPECTOR AND REQUEST A RE -INSPECTION. If you fail to correct the above described violations, you must appear before the Special Magistrate as stated below. ** NOTICE OF ADMINISTRATIVE HEARING ** PLEASE TAKE NOTICE that a rublic Hearing will be condo ted by the Special Magistrate in the above case on 07/30/2009 at 9:00 AM at the Monroe County Government Regional Center, 2798 Overseas Hwy., Marathon, Florida. The purpose of this hearing is to determine if in fact, a viola- stion currently exists, the appropriate action to be taken, and any fines or penalties to be imposed. YOUR FAILURE TO APPEAR MAY RESULT IN A FINE OR PENALTY BEING IMPOSED AGAINST YOU AND A LIEN BEING IMPOSED ON YOUR PROPERTY You may appear in person and/or be represented by an attorney. If you are represented by an attorney, your attorney is required to file a written notice of appearance with this office prior to the hearing. *IF YOU DECIDE TO APPEAL any decision by the Special Magistrate, you will need to ensure that a verbatim record of the proceedings is made, which shall include the testimony and evidence upon which the appeal is to be based. Should you seek a continuance of your administrative hearing, the presiding officer may grant a continuance of a hearing for good cause shown. Except in cases of emergency, requests for continuance must be made at least FIVE working days prior to the date noticed for the hearing. A request for continuance DOES NOT GUARANTEE a postponement of your hearing. Contact the office of the Liaison for the Special Magistrate to submit your request. Pursuant to F.S. Chapter 162.09(2)(d), your failure to correct the violation(B) may result in the impositon of a fine, not to exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the Special Magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, the Special Magistrate may impose additional fines to cover all costs incurred by the local government in enforcing is codes and all costs of repairs pursuant to subsection (1). Date: 04/21/09 AtON2ELL, MIGUEL i�;;�� Code Enforcement Inspector I hereby certify that a copy hereof has been furnished to the above named addressee(s) by Certified mail, Return receipt Request No. 7008 2810 0000 7837 2010 Codd Enforcement DeVartment Please contact your inspector at the appropriate Lower Keys: 1100 Simonton St., (Rm. 1-171), Key West, FL 33040 - (305)292-4495 Middle Keys: 2798 Overseas Hwy. Marathon, FL 33050 - (305)289-2810 Upper Keys: 102050 Overseas Hwy.Key Largo, FL 33037 (305)453-8806 If you are a person with.a disability who needs any accommodation in order to participate, you are entitled, at no extra cost to you, to the provision of certain assistance. Please contact this office at (305)289-2509 within 2 days of your receipt of this notice. If you are- hearing impared, please all 711. Monroe County Code Enforcement Office of the Liaison 2798 Overseas Hwy.' Marathon, FL 33050 Phone: (305)289-2509 (305) 289-2858 -IF SERVICE IS NOT OBTAINED BY CERTIFIED RETURN ACCURATE COPY OF THIS NOTICE WILL BE POSTED AT THE MONROE COUNTY COURTHOUSE RECEIPT MAIL, A TRUE AN17' THE SUBJECT PROPERTY AND ON DECEMBER 23,2005 OUR SON DARREN WAS INVOLVED IN A MOTORCYCLE ACCIDENT WHICH LEFT HIM PARALYZED FROM THE CHEST DOWN,AS YOU PROBABLY KNOW ALL OUR UVES CHANGED AFTER THIS. WHILE DARREN WAS IN THE HOSPITAL,WE WERE INTRODUCED TO THE BRAIN & SPINAL CORD INJURY GROUP. WHEN DARREN WENT HOME FROM THE HOSPITAL WE WENT TO THE BUILDING DEPARTMENT TO GET A PERMIT TO MAKE DARREN'S ROOM DOWNSTAIRS HANDICAP ACCESSIBLE FOR HIM,WE WERE TOLD "NO".JUST IMAGINE HOW WE FELT THAT WE COULDN'T DO ANYTHING FOR OUR SON TO MAKE HIS NEW LIFE MORE COMFORTABLE. AFTER THAT, WE WERE TOLD THAT SAME DAY WE COULD GET A PERMIT FOR AN ELEVATOR. WE HAVE A PERMITTED DOWNSTAIRS ENCLOSURE ISSUED TO THE PREVIOUS OWNER AFTER HURRICANE JORGE AND HAVE BEEN TAXED FOR A "LIVING AREA" EVER SINCE WE BOUGHT THE HOME. JUST A NOTE,THE DOWNSTAIRS HAD A FULL KITCHEN IN IT WHEN IT WAS BOUGHT BY US. WE TOOK THE KITCHEN OUT YEARS AGO.THE CODE ENFORCEMENT AND BUILDING DEPT KNEW ABOUT THE KITCHEN BECAUSE WHEN THEY CAME TO THE HOUSE THE INSPECTOR ASKED,"WHERE IS THE KITCHEN?" THEY HAVE KNOWN ABOUT THIS ENCLOSURE FOR YEARS... NOW THAT WE NEED THE COUNTIES HELP AND HAVE TRIED TO DO THINGS CORRECTLY THEY ARE GOING TO PUT A FINE AGAINST US??? BRAIN & SPINAL CORD GROUP(BSCG) TRIED TO HELP WITH NUMOROUS THINGS TO GET DARREN UPSTAIRS. THEY WERE GOING TO PUT A STAIR LIFT IN BUT OUR STAIRS ARE MADE OF WOOD AND THEY FELT NOT STABLE ENOUGH . THEY DECIDED TO PUT IN AN ELEVATOR. THE PERMIT WAS ASSIGNED A CONSTRUCTION COMPANY WORKING ON THE PROJECT.THE ELEVATOR WAS DELIVERED APPROXIMATELY YEAR AGO AND STILL SITTING ON OUR SIDE YARD AS OF TODAY(7/15/2009). THE ELEVATOR IS BEING PICKED UP TODAY JULY 15,2009 AT APPROX 11:00 AM. OUR UPSTAIRS 1S A 2 BEDROOM 1 BATH. MY WIFE AND I AND ONE OF OUR DAUGHTERS LIVE UPSTAIRS -THE DOORWAYS TO THE ROOMS AND BATHROOM ARE APPROX.30" WIDE,THE DISTANCE BETWEEN THE TOILET AND THE WALL IS APPROX 32" WIDE, YOU HAVE TO TRY AND GET PAST THIS BEFORE YOU CAN GET TO THE SHOWERITUB. OUR UPSTAIRS IS NOT HANDICAP ACCESSIBLE. WE HAVE TRIED TO GET THESE THINGS DONE BUT ITS JUST NOT POSSIBLE AND WE DON'T FEEL WE SHOULD HAVE TO DO THIS SINCE DARREN HAS A PERFECT AREA DOWNSTAIRS FOR HIM. JUST THINK IF DARREN IS UPSTAIRS WHAT IS HE TO DO WITHOUT AN ELEVATOR? STAY INSIDE ALL DAY? WE ALL WORK SO IF SOMETHING SHOULD HAPPEN TO HIM HOW WOULD HE GET DOWNSTAIRS,HE WOULD HAVE TO WAIT FOR TWO PEOPLE TO GET HOME TO CARRY HIM & HIS WHEELCHAIR DOWNSTAIRS. WE DONT FEEL THAT THE UPSTAIRS IS AN OPTION FOR DARREN TO LIVE AND IT SHOULD NOT BE AN OPTION WITH HIS DOWNSTAIRS ENCLOSURE. THE DOWNSTAIRS GIVES DARREN THE OPPORTUNITY TO LIVE HIS NEW LIFE SOMEWHAT ON HIS OWN AND TO FEEL THAT HE CAN LIVE DOWNSTAIRS COMFORTABLE. IN CLOSING PLEASE KEEP IN MIND THAT NOT ONLY OUR SON BUT MANY OTHERS WITH HANDICAP DISABILITIES AND THE ELDERLY CAN NOT LIVE UPSTAIRS. NOBODY EVER ASK'S FOR THESE THINGS TO HAPPEN BUT WHEN IT DOES WE NEED TO ADJUST TO WHAT WE HAVE AND TO LIVE OUR LIVES THE BEST WE CAN. THANK YOU, RORY,DEBI,DARREN BROWN TO:MARILYN LARRIEU CC:CHARLIE DOEGE MAY 21,2009 WE WERE VERY UPSET ABOUT THE WHOLE ELEVATOR INCIDENT, FROM THE VERY BEGINNING OF THIS PROJECT IT WAS A MESS. NEEDLESS TO SAY WE DO NOT HAVE THE CASH YOU NEED FOR THE PROJECT ($21,293.52). YOU MAY COME AND PICKUP THE ELEVATOR AT YOUR CONVIENCE BUT ASAP WOULD BE APPRECIATED. THERE IS TO BE NO CHARGE TO US,(BROWN'S) FOR SHIPPING,PICKUP,STORAGE FEES,BACK CHARGE FEES FROM GARANENTA OR ANY OTHER FEES THAT HAVE ACCUMULATED DURING OR AFTER THIS PROJECT IS ALL FINISHED. REGUARDS, DEBRA BROWN 'N A- mo I ,(DEBRA BROWN) SPOKE WITH JORGE GOMEZ TODAY 5M/09. THERE WERE A COUPLE OF MISTAKES IN THE FIRST LETTER ON MAY 1,2009. I PUT THE AMOUNT IN WRONG AND I DID NOT SIGN THE LETTER,THESE TWO THINGS HAVE BEEN CORRECTED. In L�'s MONROE COUNTYCODE ENFORCEMENT SPECIAL MAGISTRATE MONROE COUNTY, Petitioner, V. RORY BROWN AND DEBRA BROWN, Respondents. CASE NO: CE 09020237 r,-E'�v �r,3- t NCn�', PETITIONMIM MOTION TO DISMISS AND MEMORANDUM OF LAW IN SUPPORT THEREOF COMES NOW, RESPONDENTS, by and through their undersigned counsel, who hereby file their Motion To Dismiss and Memorandum of Law In Support Thereof in the above -styled case based upon the following grounds: 1. On May 6, 2009, Respondents were served a Notice of Violation of Sections 1224(B)(1)(D) and 99 of the Monroe County code. Respondents are presently set for hearing on May 27, 2010. BACKGROUND Respondents intend to show the following evidence at the hearing: 2. The house was originally built in 1979. In 1981, under Permit No. A- 7929, a permit was issued to the prior owners, David Williams and Kimberly Hunt to enclose 672 square feet of the downstairs unit to allow a full bathroom and recreation room. Electrical and plumbing were included in the permit. See attached EXHIBIT A. i 3. Respondents purchased their home in 2003. On December 23, 2005, Respondents' son, Darren Brown, was involved in a motorcycle accident leaving him a paraplegic who needs to use a wheelchair for mobility. 4. Upon Darren's return from the hospital, Respondents attempted to obtain a permit from the Monroe County Building Department to make the downstairs enclosure handicapped accessible but were informed by the County they could not receive such a permit. They were also advised at that time that they could obtain an elevator permit in order to allow Darren to travel via a wheelchair from the upstairs to the downstairs or outside as necessary. 5. Since 2005, Respondents have been working with various groups, including BSCG (Brain and Spinal Cord Group) in a good faith effort to obtain funding to install a vertical platform lift and to make the required accommodations to the interior of the upstairs. Respondents were advised that installation of a stair lift (a less expensive alternative) was not possible due to the instability of the existing wooden stairs. 6. In 2008, Respondents finally secured the funding through BSCIP (the advocacy group for the disabled) to install an elevator. Permit # 081- 2155 was finally issued by Monroe County on April 21, 2009. See 4:11: ; However, due to the onerous building requirements, code violations and permit delays, the project turned out to cost an additional $21,000 over 2 what BSCIP could finance. Therefore, Respondents were faced with the overage of $21,000 to fund the project or quitting the project and returning the vertical platform lift back to the manufacturer. See EXMIT C. 7. Since Respondent could not afford the additional $21,000, the vertical platform lift was returned to the manufacturer. 8. At this time, Darren continues to live in the downstairs unit and has no means of being transported upstairs or using his wheelchair to move around within the upstairs part of the house. 9. In March 2010, Respondents hired the undersigned to represent them. The case was previously scheduled for hearing on March 26, 2010 but was continued until May 27, 2010 in order for the undersigned to have an opportunity to prepare a defense. 10. On more than one occasion during meetings with the Monroe County Code Enforcement Attorney (on March 26 and then again on May 13, 2010), the undersigned requested that the County consider issuing a variance but was told that a variance would not be possible under FEMA regulations. MEMORANDUM OF LAW In accordance with the Americans with Disabilities Act of 1990 ("ADA" ), a person may be considered disabled under the Act if, "they have a physical or mental impairment that substantially limits one or more of the person's major life activities." See 42 U.S.C.A. 12101. "Major life activities" as defined under the ADA include: (a) caring for oneself; (b) breathing; (c) doing manual tasks; (d) walking; (e) sitting ks and standing; (f) hearing and speaking; (g) seeing; (h) working; (i) lifting; 0) reaching and (k) maneuvering. 14 FLPRAC Section 18:4; 29 C.F.R. Section 1630. Darren's inability to move about without the use of a wheelchair meets the definition of a disabled individual under the ADA. The fact that he cannot walls, access his living quarters or leave his home for necessary activities outside of the home such as work, doctor's appointments and grocery shopping, without the use of a wheelchair is clear evidence of a "disability" in activities of daily living. The next question is whether the ADA applies to local government with respect to zoning decisions. A review of federal case law indicates that local government must comely with the requirements of the ADA when issuing zoning decisions. Title II of the ADA prohibits a governmental entity from discriminating in providing services, programs or activities to a disabled individual. 28 C.F.R. Section 3 5. 101 et seq; 29 U.S.CA. Section 794 (a); Americans with Disabilities Act of 1990, Section 202; and 42 U.S.C.A.12132. Municipal zoning decisions have been interpreted in the Courts to be included under the definition of "services, programs and activities" within the meaning of the ADA and Rehabilitation Act of 1973. Tsombanidis v. West Haven Fire Departua 352 F.3d 565 (2" d Cir., 2003); Kennedy v. Fitzgerald. 102 F. Supp.2d 100 (N.D. New York, 2000); Zimmerman v. State of Oregon Department of Justice 170 F.3d 1169( 9d` Cir. 1999) and Innovative Health Systems Inc., 117 F. 3d 37 (2nd Cir.1997). In spite of Monroe County's insistence that a variance is not possible in accordance with FEMA regulations, Section 60.6 under Title 44 of the Code of Federal Regulations allows for variances to be granted for "exceptional hardship." Section 60.6-states in pertinent part the following: Ell " (a) The Administrator does not set forth absolute criteria for granting variances from the criteria set forth in Sections 60.3, 60.4 and 60.5. The issuance of a variance is for flood plain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance. The community, after examining the applicant's hardships, shall approve or disapprove a request." Procedures for the granting of variances by a community are as follows: (1) Variances shall not be issued by a community within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result; (2) Variances may be issued by a community for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the procedures of paragraphs (a)(3), (4), (5) and (6) of this section; (3) Variances shall only be issued by a community upon (i) a showing of good and sufficient cause, (ii) a determination that failure to grant the variance would result in exceptional hardship to the applicant, and (iii) a determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; (4) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief. There is no evidence that granting a variance to allow Darren to live downstairs would endanger the health, safety or welfare of the community or surrounding neighbors. The fact of the matter is that Monroe County has, in the past, allowed individual homeowners to keep their downstairs enclosure as a living unit based upon the merits of their case. In the case of Arkell v. Middle Cottonwood Board of Zonin 2007 MT160 (Montana 2007), the Court found that a variance should be granted due to the physical disability of a family member. 5 In summary, the undersigned argues that application of the ADA, Rehabilitation Act of 1973, and other federal Iaws must be applied in this instance. In view of Darren's significant and permanent physical disability, Monroe County should dismiss this cause and/or grant a variance to allow the downstairs unit to be used as permanent living quarters for this property. ; i�* L RO ERT ROBE, EW.A. P.O. Box 420259 Summerland Key, F133042 (305) 745-2254/745-4075 Florida Bar Number 271365 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copygf the foregoing has been furnished by Facsimile and electronic transmission this Zb!tday of May, 2010 to: Lisa Granger, Esq., Monroe County Attorneys Office, III 112—Street, Suite 408, K We Florida 33040. LEE ROBERT ROHE, ESQ., P.A. Ci LAW OFFICE LEE ROBERT ROHE P H 0 N E 3 0 5 / 7 4 5 - 2 2 5 4 FAX 305/745-4075 EMAIL:LRRLAW@BELLSOUTH.NET FACSIMILE TRANSMITTAL SHEET TO: FROM: Nicole Petrick Lee R- Rohe COMPANY: DATE: Monroe County Code Enforcement 5/26/2010 FAX N UMBE& TOTAL NO. OF PAGES INCLUDING COVER, 289-2515 7 PHONE NUMBER: SENDER'S REFERENCE NUMBER: N/A YOUR REFERENCE NUMBER Re: Brown, Item No. 3 Please see attached MOL for tomorrow's hearing. Please give the SM a copy. Thank you. Thank you. Susan for Lee Rohe . �i�',es Fj 60 cra BUIING PERMIT c� aq BUILDING AND ZONING DEPARTMENT OF ,ZIP1KONROE COUNTY, FLORIDA DAT 8/28/78 THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER RK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIID ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARjqgm TMENT ON THE FOLLOWING PROPERTY BY THE OWNER LISTED; OFFICES) TO BE PERFORMED ~ 16 8 LO — BLOCK SUBDIVISION Cudjoe Ocean Shores ic au SEC T R au 0. STREETORROAD ON& Sailfish Lane, Cudjoe Key • OWNER- David D_ Williams and Kimberly A. . Hunt ` PHONE MAILINGADDRESS 1302 Fla er Avenue, Key West. Florida CONTRACTOR Ernest W. Johnson R00031617 . PHONE MAILING ADDRESS P•0• Box $ 302. Summerland Key WORK DESCRIPTION new single family residence 960 Sq. ft. REMARKS ESTIMATED VALUE $25, 900.00 FKAA #27796T 1 ca ov 4m Q / t 41 r7 T PERMIT CARD MUST BE DISPLAYED ON STREET SIDE F LOT IN PERMANENT. SUBSTANTIAL MANNER. AND A CONSPICUOUS, SHELTERED LOCATION, ACCESS. IBLE TO THE INSPECTOR. PERMIT MUST REMAIN DIS- PLAYED UNTLL AFTER FINAL INSPBM0NS. g OpY McjrAVLANS, BEARING BUILDING DEPART.S$EKTONTOB SITE AVAIL.: ABLE TO THE INSPECTORS AT THE TIME OF ALL IN- SPECTIONS. BUILDING FEE $75.00 PLUMBING FEE 45.00 ELECTRICAL FEE 53.50 TOTAL FEE $173.50 THIS PERMIT BECOMES NULL, AND VOID IF WORK IS NOT COMMENCED WITHIN THIRTY (30) DAYS OF ISSUANCE OR IF WORK IS SUSPENDED FOR A PERIOD EXCEEDING NINETY (90) DAYS. ALL PROVISIONS OF LAWS AND ORDINANCES GOVERNING•THIS TYPE OF WORK SHALL BE COMPLIED WITH. THE GRANTING OF A PERMIT DOES NOT PRESUME TO GIVE AUTHORITY TO VIOLATE OR CANCEL THE PROVISIONS OF ANY LOCAL. STATE OR FEDERAL LAW REGULATING CONSTRUCTION OR THE PERFORMANCE OF CONSTRUCTION THIS MPERMIT IS NON -TRANSFERABLE, NON -MARKETABLE AND NON -ASSIGNABLE AND ANY ATTEM CT' TRANS. R. SALE OR ASSIGNMENT OF SAID PERMIT SHALL RESULT IN THE AUTOMATIC TtEypCgTION OF SAID ANS. __HOWARD O SON SIGMA A OWNER. CONTRACTOR OR A R. BULL 0ob ICIAI, IZED Poi e- _ C V `1' '7' - 0 -3 cl 3 PERMIT �G �. N• PA • ';:'�r O -�A _� :s•':: f UNTY o ONROE BUILDING AND ZONING DEPARTMENT t . CER i 1FIC," T E 'OR OCCUPANCY C:-: _David D. Williams and Kimberl A. Hunt r•t�n •• y „i�..■ T �.0. 4092A HIS ?S :O CERM."I tLat tho building locac.ed at Lot 16, Block Be Cudjoe Armen ShernA_ Sailfish Lanefor which pamit has hsratafore been Cudjoe Key �..Ln issuad, h'•3 =a.,a CO." acccsdia; to plans and speci;icat.c...+ •rs i.f + ed in tli: office of the L..� I.S.CC':t):t, and that the proposed usa of the buildin;, to wit, as a le"far,11v residence ca-.12li2s wick all the buildir.- a: d iaatti la::a and ordin.:: c=s of ?:O:;;tO:.: C017, rnd .�,s app=Quad fo: this use. - ALLv.1AHU-?- g_ L;t LU +D ?!.:' ••■� ' s4i":t? F()nT jazz. OF MNSO::S FOR FM::! ?LOOZ DAIMD T:IIS 14 th RAY of Arne 79 CERTIr imirz :::r.1n:;::: 79-65 BUILD tic 0e, 5e'r.CTJR 110:1;,i;U U. JO:::'SU::, .L'COIt 1'LC".:3I::GnI:l3 FLC1JR EL..L:.1CA�CTJ;t ^1 BUILDING; PERMIT n N BUILDING AND ZONING DEPARTMENT OF MONROE COUNTY, FLORIDA 1 DATE- 3-6-81 THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DESCRIPTION BELOW AND AS SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPART ENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: 8 BLOCK SUBDIVISION Cud j oe Ocean Shores WLOT-16 BDIVISION SEC T R o. STREET OR ROAD •� li8ttE3 Sa'ilfiah Lana . Cudoe Key - • Da OWNERXld D. Willtame & Ki"berly Anne HuntpHONE 745-1891 MAILING ADDRESS Rt: • 2 box- 467 . Summerland Kiky, FL CONTRACTOR owner PHONE MAILING ADDRESS s am e WORK DESCRIPTION REMARKS 98=ATED VALUE 3 000.00 BUILDING FEE 4900 PLUMBING FEE 23.00 ELECTRICAL FEE 10.00 TOTAL FEE 75. 00 e THIS PERMIT BtCOMES NULL AND VOID IF WORK IS NOT COMMENCED WrrMN EXTHIRT ISSUANCE OR IF WORK IS SUSPENDED FOR A PERIOD EXCEEDING NINETY (90 Y (30) DAYS OF DAyjL RT PRO) VAyS OF LPERMITAW$ ANDDOES ORDINANCES GOVNING. THIS TYPE OF WORK SHALL BE CO WITH. THE GRANTING OF A NOT PRESUME TO ERGIVE THIS TO VIOLATE OR CANCEL THE PROVISIONS OF ANY LOCAL, STATE OR FEDERAL LAW REGULATING CONSTRUCTION OR THE PERFORMANCE OF CONSTRUCTION THIS PERMIT IS NON -TRANSFERABLE, NON -MARKETABLE AND NON -ASSIGNABLE AND ANY ArM&TED TRANS, FER, SALE OR ASSIGNMENT OF SAID PERMIT SMALL RESULT IN THE AUTOMATIC REVOCATION OF SAID PERT MIT. IAA F O CO R Old AUTHO& BUHMINHOWMWGOHNSON OFFICIAL "FAILURE TO COMPLY WITH THE MECHANICS' LIEN LAW CAN RESULT IN THE PROPERTY OWNER PAYING TWICE FOR BUILDING I14MV11M$NTS' BY PERMrrA. , lib QRiGMAL- BUMMO PBR M GREEN. ASSESSOR'S COPY CANARY -OFFICE COPY PINE - II11SP8CTOR9 COPY GOLD - OWNER'S COPY 6 � 9 11 r Y DATE .10 / nmz REco INSPECTOP 0 0 " TYPE PERMIT -- T SUBDIVISION OWNER ' 'z1,.. la Al-&-Y� 1 INSPECTORS SIGN. Of DATE ,DATE — nmE JiEC INSPECTOR_ TYPE INSSPECTION , PERMIT LOT BLOCK SUBDIVISION OWNER�� INSPECTORS SIGN. M DATE- ' DA 3 DAi810 -�i•D/ TTKE REC• ---_ INSPECTOR TYPE INSPECTION �'B19?IIT o - a9 LOT_ • BLOCKK ,y� SDBDIIIISYON4a/ ,�, &?,, INSPECTORS SIGN: DATE �� DATE d O 3 TIME !�Cs INSPECTOR TYPE INSPECTION PERMIT $ LOT LOCK SUBDIVISION OWNS INSPECTORS SIGN_/�,,. DATE or CIF t..k Rwq G✓q,l/S DATE '6' TIMB. � • ..-.....:.L INSPECTOR - TYPE INSPECTION PERMIT O LOT_. •V400" l ��►•�u INSPECTORS /�S.._ r INSPECTOR TYPE INSP. PERMIT / llATF. ? TIME, INSPECTOR ell TYPE INSPECTOO PERMIT # LOT BLOCKY. SUBDIVISI OWNER A4. -'? INSPECTORS SIGN r DA`P C:*r - / / w ACK BUILDING PERMIT. BUILDING AND ZONING DEPARTMENT OF MONROE COUNTY, FLORIDA z THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER • ORK DESCRIPTION BELOW AND AS -SHOWN AND SPECIFIED ON PLANS SUBMITTED AND ON FILE IN THE BUILDING DEPARTMENT OFFICES) TO BE PERFORMED ON THE FOLLOWING PROPERTY BY THE OWNER LISTED: 1., CUDJOE OCEAN SHORES LOT 16 BLOCK 8 SUBDIVISION SEC T RLu _____^ �- STREET OR ROAD SA•IL.FISH''L11NE, CUDJOE KEY OWNER _ DA v I-D o. W I � L_ f kms PHONE — — -- �u� ti 8 _ ,;: grl. MAILINGADDRESS- RT. 2•, Box 467, uMl4F!RL 1NOKEY F AOfDA 3-3042_ CONTRACTOR MAILING ADDRESS OWNER PHONE WORK DESCRIPTION ,i ?# j:jNK Fe )e e P-n-r REMARKS ESTIMATED VALUE _._. ~ ~ 700.00., PERMIT CARD MUST BE DISPLAYED ON STREET SIDE BUILDING FEE '(t2 oo OF LOT IN PERMANENT, SUBSTANTIAL MANNER, AND IN A CONSPICUOUS, SHELTERED' LOCATION, ACCES& IBLE TO THE INSPECTOR PERMIT MUST REMAIN DIS-. PLAYEWUNTIL AFTER FINAL INSPECTIONS. O_ NE COpY F APPROV D PLANS; ' BEARING BUILDING DEPART MENTST PS, _UST BE KEPT ON THE JOB SITE, AVAIL - PLUMBING FEE ELECTRICAL FEE ' ABLE TO THE INSPECTORS AT THE TIM OF ALL IN. SPECTIONS. TOTAL FEE THIS. PERMIT. BECOMES NULL AND VOID IF WORK is NOT COMMENCED WITHIN THIRTY (30)� DAYS OF ISSUANCE OR IF WORK IS SUSPENDED FOR A PERIOD EXCEEDING NINETY (90) DAYS. ALL PROVISIONS OF.. LAWS AND' ORDINANCES GOVERNING THIS TYPE OF WORK SHALL BE COMPLIED WITH. THE GRANTING OF A, : PERMIT DOES NOT PRESUME TO GIVE AUTHORITY TO VIOLATE OR CANCEL THE PROVISIONS OF.rANY LOCAL, . STATE OR FEDERAL LAW REGULATING CONSTRUCTIOIT OR THE PERFORMANCE -OF CONSTRUCTION.'THIS. PERMIT IS NON -TRANSFERABLE, NON -MARKETABLE 'AND NON -ASSIGNABLE AND ANY ATTEMPTED TRANS; SALE OR ASSIGNMENT OF SAID PERMIT SHALL RESULT IN THE AUTOMATIC REVOCATION OF SAID PERMONA •�TUitEHowARD Joinvsort WNER,'CONTRACTOR OR AUTI.IOR- MED.AGENT BUILDING G1 FICIAL "FAILURE TO COMPLY WITH THE MECHANICS' BY LIEN LAW CAN RESULT IN THE PROPERTY - OWNER PAYING TWICE FOR BUILDING IMPROVEMENTS PERMI L:1 Vr]r E .•�. �..... «... ww..v ............ ww-w.., •wwwwwnwM Mw.r nw.AV AVfrrnp MflV Ot111p iwf@pAf'-PAprC FAYV rst n. nWNppQAPV. `. PLEASE READ THE'REVHgSE OrT-H(s q Gb SI NATUR 9Y' .� AI THORM A19ONT OOMTRi4C1�R'OR BUILDING DI5PARTMC-NT ' ._INSPECT,OR$. MONROE COUNTY BUILDING DEPARTMENT BUILDING PERMIT Date ApPlled: t L 9 d Prepared by M A 5 C IDate Issued: Permit No.: Permit Type: bI1ILDTNG PERMIT - RUJF' l2�]4/98 5B 1.0t;+�4 S J(;G ?00 I.16 B8 CUDJOE OCEAN SH CINALLI DAVID A KIMBERLY Z3048 SAILFISH Ltd SUMNERLAND KEY Ff. FEE DESCRIPTION PERMIT FEE lb CI.IDJJE Z EAN Zil naJiallu UUITUM HOXE INC 30971 AVENUE A BIG PINE KEY FL 305 872-0647 FEE ANT ANT PAID .00 .00 CREDITED .00 ***SPECIAL EMERGENCY HURRTCANE PERMIT*** NOTICE OF COMMENCEMENT REQUIRED - HAVE 30 DAYS TO SUBMIT RECORDED Copy --1600 SF RE -ROOF TO SFR REPLACE SHINGLES W/SHINGLES WILL NOT EXCEED ROOFLINE OR 1191 GHT ZONE AE 9' SFR IS 10' ABOVE MSL DCA EXEMPT DATE RCPT NBR SIGNATURE OF OWNER, CONTRACTOR OR AUTHORIZED AGENT BY f � / r "�CLt—Y BUILDING DEPARTMENT QUERY NEXT PREVIOUS 2. 9 It 1 5 Display the next matching permit ZRMIT NO �66105462 __fsTATUS f I&PEN APPLY DATE f64 DOPER ibenderd MASTER- 'NO NOTES 0 PERMIT ISSUED] OPER PROJECT J CERT ISSUED iOPER CERT NUMBER TYPE 00 RE: UPDATE ADDRESS PARC ADDR BK 8 LT µ 16 66630E OCEA C/S/Z OWNER11BROWN RORY AND DEBRA OWNER2 0 ADDRJ2j646 SAILFISH LN IC/S/Z jf6UDJOE KEY FL 33N2 PERMIT TYPE50 US. C-404 TYPE OWNER PH 3057454731 USAGE I CLASS RES PERMIT FORM f0blAfT .. . ....... J, MI. MARKER 022 APPLIED VALUATION f 3800 LAND USE CALC VALUATION f y LL -0 FLD ZONE VATE NOTES (Y il- -, /N/D) f ROGO OWNERSHIP JPRI TIME SPECIAL'-CONDITIONS/NOTES DCA DATE EXEMPT ji� , A ROGO DATE . . .. . ......... . . . . EL BATHROOM HURRICANE NOTICE OF COMMENCEMENT REQUIRED IPENMiT AP.fA "V TO RE140DEL E>CSTIW MTHROOM PGR Lookup-" K - t5�,M QUERlf,;FWEXTj PREVWUS I FRMT I L j!A8WT�1 2 4 ZOOM I STAMJ EXITJ Dplaf life next Inatching permit f s Z-RMIT NO [0—SiO-215'-5- ATUS - A 16P94 tAPPLY DATE 0-6/!E-0/2008�0 PER $ender MASTER NO NOTES f-7 PERMIT ISSUED f[6/--0-372-008 IOPER ge—nde—rd CERT ISSUED iOPER1 ER f' TYPE RE: 00188650000000 UPDATE ADDRE SS PARC ALDDR CUDJOE OCEAIC/5/2 OWNER1 ROWN RORY"EB '0 WNER 1 2 0 ADDRjij&g-SfSj4- LN' fc/s/z PERMIT TYPE 91 US-C-404 TYPE j-------'-j OWNER PH USAGE CLASS yRES PERMIT FORM PERMIT J M'. 'MARKER "PLIED VALUATION IS G I S .CA -LC 'VALUATION 6 F ....... --- FlLD ZONE jjirE-qj-r 6j-jjjK- OWNERSHIP IT f-PR I VA-f E- NOTES (Y/N/D) ROGO I TIME SPECIAL CONDITION DCA DATE jiXjM-jiff ROGO DATE HURRICANE ZON OF rELF-VATOR LIFT _r!y K P43TALLAT QUERY fr (� F �L� ri 1 JLia 0 spl o all nt i es for a Sri ndow PERMIT TYPE91 US.C-404 TYPE( OWNER PH3057457431 _USAGE,C°.. FORM }PERMIT ��_ M. MARKER016 LASS�RES � PERMIT FO e APPLIED VALUATIONa 25000 LAND USE IS GIS) " 0 0 FLD ZONE AE 9 1311K CALC VALUATION; y � OWNERSHIP 1PRIVATE NOTES (Y/N/D) ROGO TIME _._ -'-, SPECIAL CONDITIONS/NOTES--"--' """' '" DCA DATE EXEMPT ��. xwxxaxxxtrxxxxxxxxxwxxxxxxxwxxxxxxaaxxxwx ROGO DATE - REVISION 'A' 04/21/09 (DB) HURRICANE ;'REVISION 'A' APPROVAL TO RENEW PERMIT FOR ENTIRE MONROE CQUNTY BUILDING DEPARTMENT BUILDING PE'MM Date Applied: 02 / 09 / 200?repared by: MaldonW Issued: 03 / 31 / 200(fermit No.: 09130465 Permit Type: POOL & SPA Section Twnshp, Ranije he # Resub 1 ResUb 2 Mile Marker 34 66 28 001886500 0000 02.3 Property Address Land Use District Reviewed by BK 8 LT 16 CUDJOE OCEAN SHORES CUDJOE KEY PB5IS Subdivision Name. Legal Address BK 8 LT 16 CUDJOE OCEAN Owner's, Name / Address 1 relephone General Contractor BROWN, RORY & DEBRA 23048 SAILFISH LN CUDJOE KEYFL 33042 3058721274 TROPICAL POOLS OF THE KEYS INC 30464 OVERSEAS HIGHWAY BIG PINE KEY, FL 33043 (305) 872-1274 07528 Sub Contractor SEE ATTACHED PAGE FOR SUBCONTRACTORS Construction 61F� FFE FLZ Approved Water Source Flood Map Parfet Ra Flood Elevation Requirement AE9' # Units Sq. Ft. Valuation improvements RES 0 829900.RESIDEN IAL Schedule of Fees FEE DESCRIPTION EDUCATION FEE ENVIRONMENTAL INCOME FROM PERMITS *** FEE TOTALS *** FEE AMT 16.00 60.00 546.00 622.00 hMT PAID 16.00 60.00 546.00 622.00 23048 SAILFISH LN,CUDJOE OCEAN SHORES, CUDJOE KEY SWIMMING POOL, DECK, NET **NOTICE OF COMMENCEMENT REQUIRED** INSTALLATION OF RESIDENTIAL SWIMMING POOL WITH ** MORE INFORMATION TO PRINT ADDITIONAL PAGE REQ'D BALANCE DUE 0.00 0.00 0.00 0.00 - PLEASE READ THE REVERSE OF THIS DOCUMENT BEFORE YOU SIGN AS OWNER, CONTRACTOR OR AUTHORIZED AGENT. .7 liq J�q 41 —Iok I `1'1'1'1� Ili Eq ORDINANCE 3-1975 AND 8-1977 AMENDMENTS TO 3-197S EFFECTIVE AT TIME OF ISSUANCE OF PERMIT A 4092 AND A 7929 3-1975 - Page 4, section 4.(a) and 8-1977 — page 3, section 1(a) stating below flood enclosures were regulated for parking and temporary storage. Page 19 of 21 Reviewed by WABuildinglWorldng FolderMair-DianneWariances to F1ood\BROWN convert to living area for handicap 2010.doc ORDINANCE NO. 3-1975 AN ORDINANCE EBGULATING DEVELOPMENT WITHIN FLOOD HAZARD DISTRICTS WITHIN To COUNTY OF MONRDE, FLORIDA; PROVIDING A STATEMENT OF LEGISLATIVE INTENT; PROVIDING UMINITIONS; REQUIRING BUILDING PERMITS.WITHIN COASTAL FLOOD HAZARD DISTRICTS; PROVIDING FOR REVIEW OF BUILDING PERMITS, SUBDIVISION PROPOSALS AND WATER AND SEWER SYSTEMS TO INSURE PROTECTION FROM FLOOD DAMAGE; SETTING STANDARDS FOR DEVELOPMENT WITHIN COASTAL FLOOD HAZARD DISTRICTS; PROVIDING FOR COUNTY WIDE APPLICATION;. PROVIDING FOR ENFORCEMENT; PROVIDING RULES FOR INTERPRETATION OF DISTRICT BOUNDARIES; PROVIDING RULES FOR INTERPRETATION; PROVIDING FOR VARIANCES AND ESTABLISHING A VARIANCE PROCEDURE; GIVING WARNING AND DISCLAIMER OF LIABILITY; PROVIDING FOR SEVERABILITY; PROVIDING PENALTIES FOR VIOLATIONS; AND PROVIDING AN EFFECTIVE DATE BE IT ENACTED by the County Commission of the County of Monroe, Florida: Section 1. Statement of leftielative intent. The coastal areas of Monroe County, Florida, are subject to flooding, resulting in danger to life, loss of property, health, and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. The County Commission at their meeting held at the County Court House in Rey West, Florida , June 11, 1974, passed unanimously Ordinance # 2-1974 and by their action duly expressed willingness to take action necessary to most the objectives of the National Flood Insurance Act of 1968. Section 2. Definitions. For the purpose of this Ordinance, the following definitions shall apply: (a) "Special Flood Hazard District", (hereinafter referred to as SFH District), means those portions of Monroe County, Florida, subject to flooding or erosion from abnormally high tidal waters resulting from severe storms or hurricanes. Said SFH District shall be comprised of those areas designated AB and A14 upon the official Flood Hazard Boundary Map issued and approved by the Federal Insurance Administrator dated July 1, 1974, and as the same may, from time to time, be amended by the Federal Insurance Administrator. (b) Special Flood Hazard with Velocity Districts, (hereinafter referred to as SFHV Districts) means those portions of Monroe County, Florida, subject to flooding or erosion from abnormally high tidal waters and wave velocities resulting from severe storms or hurricanes. Said SFHV Districts shall be comprised of those areas designated V8, V10, Vll, V13, and V14 upon the official Flood Hazard Boundary Map issued and approved by the Federal Insurance Administrator dated July 1, 1974, and as the same may, from time to %time,*be amended by the Federal Insurance Adminiscrator. (c) "Flood or Flooding" means a general and temporary condition of partial or complete inundation of normally dry land areas from abnormally high tidal Water or rising coastal waters resulting from severe storms, hurricanes, or tsunamis. (d) "Floodproofing" means structural and non-structural additions, changes or adjustments (other than elevating) to structures and utilities which reduce or eliminate flood damage to water supply and sanitary savage facilities, structures, and contents of buildings, and includes, by way of illustration, but is not limited to the following measures: 1. Anchorage to resist flotation and lateral movement. 2. Installation of watertight doors, bulkheads, and shutters, or similar methods of construction to protect against winds, wave action, or flood waters. 3. Reinforcement of walls to resist water pressures. 4. Use of paints, membranes, or mortars to reduce seepage of water through walls. 5. Addition of mass or weight to structures to resist flotation. 6. Installation of pumps to lower water levels in structures. 7. Construction of water supply and waste water treat- ment and disposal systems so as to prevent or minimise Infiltration of flood waters. a. Pumping facilities or comparable practices for sub- surface drainage systems for buildings to relieve external foundation wall and basement flood pressures. 9. Construction to resist rupture or collapse caused by water pressure on floating debris. 10. Installation of valves or controls on sanitary and storm drains which will permit the drains to be closed to prevent back-up of sewage and storm waters into the buildings or structures. Gravity draining of basements may be eliminated by mechanical devices. 11. Location of all electrical equipment, circuits and installed electrical appliances in a manner which will assure they are not subject to flooding and to provide protection from inundation by the regulatory flood. 12. Location of any structural storage facilities for chemicals, explosives, buoyant materials, flammable liquids or other toxic materials which could be hazardous to public health, safety, and'welfare in a manner which will assure that the facilities are situated at elevations above the height associated with the regulatory protection elevation or are adequately flood proofed to prevent flo- tation of storage containers, or damage to storage con- tainers which could result in the escape of toxic materials into flood waters. (a) "Regulatory Flood" (also herein referred to as the 100 year flood) means the level of flooding that, on the average, is likely to be equaled or exceeded once in any 100-year period, i.e., that has a one -percent chance of ".occurring in any year. This level of flooding f.: the County ... "nros, Florida, has been established per the Flood Insurance Administration Flood Hazard Boundary Map dated July 1, 1974, as eight(S) feet above mean sea level to twelve(12) feet above mean sea level as designated on the official Flood Hazard Boundary Maps. (f) "Substantial improvement" means any repair, re -construction, or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either (e) before the improvement is started, or (b) if the structure has been damaged and is being restored, before the damage occurred. (g) "Structure" means anything constructed or erected the use of which requires rigid location on the ground, or attachment to something having a permanent location on the ground, including buildings, walls, fences, signs, light standards, towers, tanks, etc. (h) "Accessory building" means a secondary residence, garage, or other building or structure on a lot or parcel subordinate to and not forming an integral part of the main or principal building but pertaining to the use of the main building. An accessory building may include servant's quarters unless prohibited by existing deed restrictions. (i) "Residential". The term "residential" or "residence" is applied herein to any lot, plot, parcel, tract, area or piece of land or any building used exclusively for family dwelling purposes or intended to be so used. (j) "Basement" means that portion of a building between floor and ceiling, which is so located that one-half or more of the clear height from floor to ceiling is below grade. Section 3. Development in either SFH or SFHV Districts. The County official responsible for the administration and enforcement of this ordinance shall to the extent not otherwise prohibited by Sections 4 and 5, with respect to development within SFH and GBH Districts: 1. Require building permits for all proposed construction or other improvements within said districts; and 2. Review building permit applications for repairs within said districts to determine that the proposed repair (i) uses construction materials and utility equipment that are resistant to flood damage and (U) used construction methods and practices that will minimize flood damages; and 3. Review building permit applications for new construction or substantial improvements within said districts to assure that the proposed construction (including prefabricated and mobile homes) (i) is protected against flood damage, (ii) is de- signed or modified and anchored to prevent flotation, -3- coatapse or lateral movement of the structure, uses construction materials and utility equipment that are resistant to flood damage, and also uses construction methods and practices that will minimise flood damage; and - 4. Review subdivision proposals and other proposed now develop- ments to assure that (i) all such proposals are consistent with the used to minimise flood damage, (ii) all public utilities and facilities, such as sewer, gas, electrical, and water systems are located, elevated, or constructed to minimize or eliminate flood damage, and, (iii) adequate drainage is provided so as to reduce exposure to flood hazards; and 5. Require new or replacement water supply systems and treatment plants and sanitary sewage plants and systems to be desigped to minimize or eliminate infiltration of flood waters into the systems and plants and discharges from the systems and plants into flood waters, and require onsite waste water disposal systems to be located so as to avoid impairment of them or contamination from them during flooding. . Section 4. Developgont within SFH Districts. (a) Buildings located in SFHV or "V" Districts must have their lowest floor elevated to the level of the 100-year flood. The space below must be kept free of obstructions, but may be covered with breakaway panels and used for parking and temporary storage. Elevated structures shall be serviced by electrical and mechanical equipment that is also elevated to or above the level of the 100-year flood. Panel boards and a disconnect switch moist be located above the 100 year flood level. House sewer and storm drainage systems that extend below the 100 year flood level shall be provided with automatic back flow valves or devices installed at the point where the line passes an exterior wall or slab. (b) Mobile Home.. All mobile homes in new mobile home parks, in expansions to existing mobile home parks and new mobile homes not in a mobile home park, located within the SFHV, SFH, "A" and "V' zones must be elevated to the 100-year level. A mobile home within a park can be replaced without being elevated to the 100-year level as long as the park itself was in existence before the 100 year level had been determined. If a mobile home is placed in an established park after the 100-year levaX is known, the County must require that the mobile home owner or lessee have the fact disclosed to him in a deed or lease that the mobile home is being located in a flood -prone area and that an evacuation plan indicating vehicular access and an escape route is filed with the Disaster Preparedness Authorities. (c) Existing uses located on land in SFHV, SFH, "A" or "V" Districts which is below the elevation of the regulatory flood shall not be expanded and no building permit referred to in Section 3 of this Ordinance may be issued] -4- therefore, unless the provisions of sub -section (a) hereof are complied with; how- ever, this shall not preclude routine maintenance of existing structures or Improvements thereto which are lose than substantial improvements, as herein defined, and which do not increase the physical size of said structure. Section 5. Development within SFH or "A" Districts. Non-residential structures, multi -family structures and motels located in a SFH or "A" District may make use of the space below the 100-year flood level for equipment and non -living areas, under the condition that they be floodproofed up to the level of the 100-year flood, that is, electrical equipment may be located below the level of the 100-year flood if it is protected in a waterproof vault or is of the submersible type. An office, bath, utility room, storage or laundry may be located below the level of the 100-year flood if their omission would cause extreme hardship and if they will be floodproofed. How- ever, proper recognition should be given to the existing flood hazard, and investment below the level of the 100-year flood should be mi-4-+'ed. A U.S. Corp of Engineer Manual, "Floodproofing Regulations" should be referred to in order to facilitate design and detailing of floodproof construction. Section 6. Site Utility Lines. Site Utility lines shall be made waterproof as far as possible to eliminate infiltration of flood waters into the system and discharges from the system into flood waters. Joints between sewer drain the shall be sealed with caulking, plastic, or rubber gaskets and all manhole covers shall be sealed in a similar manner. Section 7. Accessory Buildings. Nothing herein shall be construed to exclude accessory buildings from the provisions of this Ordinance. Section S. Application of Ordinance. (a) This ordinance shall apply to and be enforced in all the un- incorporated areas of Monroe County, Florida. (b) Those maps referred to in Section 2 (a) and (b) together with all explanatory matter thereof are hereby adopted by reference and are declared to be part of this ordinance; and shall be kept on file, available to the public, in the offices of the Monroe County Building & Zoning Department. Section 9. Enforcement. The Director of the Monroe County Building & Zoning Department shall administer and enforce this ordinance. -5- Section 10. Rules for Interpreting District Boundaries. The boundaries of the flood hazard districts shown on the official Flood Hazard • Boundary Maps may be determined by scaling distances. Required interpretations of those maps for precise locations of said boundaries shall be made by the Director of the Monroe County Building & Zoning Department. Section 11. This Ordinance shall supercede any conflicting ordinance, building code, or any other regulation to the extent that this ordinance imposes more stringent requirements for the use or development of any lands or structures within SFH and SFHV Districts. It is not intended to repeal, modify, or change any ordinance, building code or other regulation except as herein stated. Section 12. Interpretation. The provisions of this ordinance shall be liberally construed in favor of the County of Monroe, Florida, in order to effectuate the purposes herein stated. Section 13. Variances. (a) Authority of the County Commission. The County Commission shall have the authority and duty to consider and act upon applications for a variance from these regulations. Such Board is admonished that in granting any variances hereunder, it must consider the purposes of the National Flood Insurance Program, as specified in Title 24, Code of Federal Regulations, Chapter 10, subchapter B, Parts 1909, at seq. Further, such Board shall con- sider the fact that an annual report on variances granted most be submitted to the National Flood Insurance Administration, which report is the basis for continued availability of flood insurance to the inhabitants of Monroe County, and therefore, variances should be granted with extreme caution. (b) The Board may grant variances from the terms of this ordinance as will not be contrary to the public interest, where owing to special conditions, a literal enforcement of the provisions hereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done: provided that the variance will be in harmony with the general purpose and intent of this ordinance and that the same is the minimum variance that will permit the reasonable use of the premises. (c) Variances may be granted only upon the following conditions. (1) A new structure is to be erected on a lot of one-half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the flood protection elevation or -6- (2) If an official historic structure located below the minimum level is to be restored or re -constructed. A variance may only be issued if good and sufficient cause exists for granting it or if failure to grant the variance would result in exceptional hardship to owners of the land. In all circumstances, as a matter of policy, variances may only be issued if the County requires that a notice be placed on the dead to the property stating that the proposed construction will be located in a flood prone area. In the case of a variance for new construction or substantial improvement for which construction is to be started after December 31, 1974, and which is located in an area designated on an effective Flood Insurance Rate Map as having special flood hazards, the notice must contain a statement of the number of feet that the lowest non-floodproofed floor of the proposed structure will be below the 100-yeas flood level and that actuarial flood insurance rates increase an the first floor elevation decreases. In all cases the County must notify the Administrator of the issuance of the variance in writing, including written notification documenting the justificatioufor the issuance. A copy of the notification should be sent to the State Coordinating Agency. (d) Review and Appeal. Review and appeal of any such decision by the County Commission shall be by petition to the Circuit Court for relief. Section 14. Warning and Disclaimer of Liability. The degree of flood protection required herein is considered reasonable for regulatory purposes and is based on scientific studies. Larger floods may occur. This ordinance shall not be deemed to imply that areas inside or outside designated flood hazard districts will be entirely free from flooding or flood damages, and shall not create liability on thepart of Monroe County or any officer or employee thereof for any flood damages that results from reliance on this ordinance of any administrative decision lawfully made thereunder. Section 15. Penalties for Violation. (a) Willful violations of the provisions of thisordinance or failure to comply with any requirements hereunder (including violations of conditions established in connection with any variances) shall constitute a misdemeanor, punishable by fine or not more than 0500 or imprisonment for not more than 60 days or both. Each day such violations continues shall be considered as a separate offense. -7- (b) Notwithstanding the provisions of subsection (a), the official responsible for the enforcement of the provisions of this ordinance may secure enforcement hereof by any legal action necessary, such as application to any court for injunctive relief, revocation of any building permit issued hereunder or other appropriate means. Section 16. It is the intention of the County Commissioners and it is hereby ordained that the provisions of this ordinance shall become part of Plat Filing Law of Monroe County 1973. Section 17. Provisions of this ordinance shall not apply to those buildings for which a building permit has been issued and is in effect or for which proper and complete applications and plans have been submitted for building permits on or before the effective date of this ordinance provided that the construction under the permit shall be commenced and progressively carried to a conclusion within the time limitations for permits established by the Building Code. Section 18. All special laws, Ordinances, Resolutions, Rules and Regulations in conflict herewith are hereby repealed to the extent of said conflict. Section 19. This Ordinance shall take effect upon receipt of the official acknowledgment from the Department of State acknowledging receipt of certified copy of this ordinance and that said ordinance has been filed in said office. r, W ORDINANCE 8-1977 AMENDMENT TO 3-1975 Page 21 of 21 Reviewed by W:\Building\Worldng Folders\Bair-Dianne\Variances to Flood\BROWN convert to living area for handicap 2010.doc ORDINANCE NO. 8 - 1977 AN ORDINANCE AMENDING ORDINANCE NO. 3 - 1975 ENTITLED "AN ORDINANCE REGULATING DEVELOPffi8NT WITHIN FLOOD HAZARD DISTRICTS WITHIN THE COUNTY OF MONROE, FLORIDA; PROVIDING A STATEMENT OF LEGISLATIVE INTENT; PROVIDING DEFINITIONS; RE- QUIRING BUILDING PERMITS WITHIN COASTAL FLOOD HAZARD DISTRICTS; PROVIDING FOR REVIEW OF BUILDING PERMITS, SUBDIVISION PROPOSALS AND WATER AND SEWER SYSTEMS TO INSURE PROTECTION FROM FLOOD DAMAGE SETTING STANDARDS FOR DEVELOP- MENTS WITHIN COASTAL FLOOD HAZARD DISTRICTS; PROVIDING FOR COUNTY -WIDE APPLICATION; PROVIDING FOR ENFORCEMENT; PROVIDING RULES FOR INTERPRETA- TION OF DISTRICT BOUNDARIES, PROVIDING RULES FOR INTERPRETATION; PROVIDING FOR VARIANCES AND ESTA- BLISHING A VARIANCE PROCEDUREt GIVING WARNING AND DISCLAIMER OF LIABILITY; PROVIDING FOR SEVERABI- LITY; PROVIDING PENALTIES FOR VIOLATIONS; AND PROVIDING AN EFFECTIVE DATE; BY AMENDING SECTION 1 OF ORDINANCE NO. 3 - 1975 TO EXPAND LEGISLATIVE INTENT; BY AMENDING PARAGRAPH (a) OF SECTION 4 OF ORDINANCE NO. 3 - 1975 TO REQUIRE ALL NEW CONSTRUC- TION IN MONROE COUNTY TO BE LOCATED LANDWARD OF THE REACH OF THE MEAN HIGH TIDE, TO REQUIRE SAME TO BE ANCHORED BY PILINGS OR COLUMNS, TO PROHIBIT THE USE OF FILL FOR STRUCTURAL SUPPORT, AND TO PROHIBIT MAN_ MADE ALTERATION OF SAND DUNES AND MANGROVE STANDS WHICH WOULD INCREASE POTENTIAL FOR FLOOD DAMAGE, BY AMENDING PARAGRAPH (b) OF SECTION 4 OF ORDINANCE NO. 3 - 1975 TO PROHIBIT AFTER APRIL 1, 1977 THE PLACEMENT OF MOBILE HOMES IN MONROE COUNTY EXCEPT IN A LOT IN A THEN EXISTING PLATTED AND PROPERLY ZONED MOBILE HOME SUBDIVISION OR PARK OR LOT WITH TRAILER VARIANCE WHERE SAID LOT HAS ALL UTILITIES SERVING SAID LOT CONNECTED AND STREET OR ROAD SERVICING SAID LOT IN PLACE ALL AS OF APRIL 1, 1977; TO REQUIRE THAT ALL SUCH MOBILE HOMES AFTER APRIL 1, 1977 SO QUALIFYING FOR PLACEMENT BE ELEVATED TO THE MINIMUM HEIGHT OF EIGHT (8) FEET MEAN SEA LEVEL; PROVIDING FOR VARIANCES TO MOBILE HOMES TO BE PLACED AT BELOW 8 FEET IF SAID MOBILE HOME IS SURROUNDED BY MOBILE HOMES WHICH ARE BELOW THE REQUIRED EIGHT (8) FOOT ELEVATION; PROHIBITING THE BUILDING OFFICIAL FROM ISSUING A BUILDING PERMIT OR CERTIFICATE OF OCCUPANCY UNTIL THE MOBILE HOME OWNER OR LESSEE SHOWS TO SAID OFFICIAL A RECORDED DEED OR UNRECORDED LEASE WHEREIN THE MOBILE HOME OWNER OR LESSEE HAS THE FACT DISCLOSED TO HIM IN SAID DEED OR LEASE THAT THE MOBILE HOME IS BEING LOCATED IN A FLOOD PRONE AREA AND THAT AN EVACUATION PLAN INDICATING VEHICULAR ACCESS AND AN ESCAPE ROUTE IS FILED WITH THE DISASTER PREPAREDNESS AUTHORITIES; TO PROHIBIT THE MONROE COUNTY ZONING BOARD AFTER APRIL 1, 1977 FROM REZONING LAND FOR MOBILE HOME PARKS OR SUBDIVISIONS AND FROM GRANTING MOBILE HOME VARIANCESt BY ADDING PARAGRAPH (e) AND (f) TO SECTION 13 OF ORDINANCE NO. 3 - 1975 TO PROVIDE GUIDELINES FOR THE FACTUAL DETERMINATION OF VARIANCES AND TO REQUIRE PAYMENT OF A VARIANCE APPLICATION PER, PROVIDING AN EFFECTIVE DATE. -2- BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. That Section 1 of Monroe County Ordinance No. 3 - 1975 be and the same is hereby amended to read as follows: "Section 1. Statement of Legislative Intent The coastal areas of Monroe County, Florida, are subject to flooding, resulting in danger•to.life, loss of property, health, and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. And whereas the Board of County Commissioners of Monroe County, Florida deem it in the best interest of its citizens that said County at all times be eligible for and receive the benefits of the National Flood Insurance Program administered by the Federal Insurance Administration of the Depart- ment of Housing and Urban Development, said program providing its citizens with federally subsidized flood insurance, VA and F.H.A. mortgage insurance, conventional mortgage loans from federally insured or regulated lending institutions for purposes of purchasing and improving real property and makes available federal flood disaster assistance funds so long as said County adopts and main- tains certain flood plain management regulations consistent with Federal criteria as set forth in Title 24, Code of Federal Regu- lations Parts 1909, 1910, 1911, 1914, 1915 and 1917. And, whereas the Administrator of the Federal Insurance Administration has previously identified Monroe County, Florida as being a Coastal High Hazard Area and therefore, the provisions of Section 1910.3 (e) of Title 24, Code of Federal Regulations must be adopted and adhered to by Monroe County in order to maintain continued participation in the program. It is therefore the intent of the Board that the provisions of this ordinance will be strictly adhered to." -3- Section 2. That paragraph (a) of Section 4 of Monroe County Ordinance No. 3 - 1975 be and the same is hereby amended to read as follows: "(a) Buildings located in SFHU or "V" Districts must have the lowest portion of the lowest floor elevated to the level of the 100 year flood. The space below must be kept free of obstructions, but may be covered with breakaway panels and used for parking and temnc�rary ato E e es s all be serviced by electrical and mechanical equipment that is also elevated to or above the level of the 100 year flood. Panel boards and a disconnect switch must be located above the 100 year flood level. House sewer and storm drainage systems that extend below the 100 year level shall be provided with automatic flow valves or devices installed at the point where the line passes an exterior wall or slab. All new construction shall be located landward of the reach of the mean high tide. All such new construction shall be adequately anchored by pilings or columns and fill shall not be used for structural support. No man-made aIteration of sand dunes and mangrove stands shall be allowed which would increase potential for flood damage." Section 3. That paragraph (b) of Section 4 of Monroe County Or dinance No. 3 - 1975 be and the same is hereby amended to read as follows: "(b) Mobile Homes. Effective June 1, 1977, the placement of mobile homes (except in existing zoned and platted mobile home parks and subdivisions or on lots with existing mobile home variances) within Districts designated V1 though V30 is absolutely prohibited in accordance with Title 24, Section 1910.3 (e) (7), Code of Federal Regulations. -9- The term "existing" as used herein shall mean that on June 1, 1977, the land is properly zoned and platted for mobile homes or a mobile home variance has been granted and the lot on which the mobile home therein is to be affixed has at a minimum either final site grading or concrete pads in place, has a street or road serving said lot and all utilities servicing said lot are connected. Said definition being in accordance with Title 24, Section 1909.1, Code of Federal Regulation definition of "existing mobile home park or mobile home subdivision". After April 1, 1977, all mobile homes so qualifying for placement in existing zoned and platted mobile home parks and subdivisions. A mobile home so qualifying for placement may be placed at a height below said minimum elevation providing that a variance is granted by the Board of County Commissioners. The requirement for granting of said variance is that the mobile home to be placed will be placed on a qualified lot which is presently contiguous to and surrounded by mobile homes which are not elevated eight (8) feet. In such cases, the Board may grant a variance to allow said mobile home to be placed at an elevation equal to that of the neighboring mobile homes. No other variances shall be issued for mobile homes. An existing mobile home may in all cases be replaced without elevation and without need of variance providing the mobile home so replaced was at a height below the required eight (8) foot elevation. If a mobile home is placed in an existing park or subdivision or varianced lot, the Building Department shall not issue a Building Permit or Certificate of Occupancy unless and until the owner of the mobile home or lessee, as the case may be, shows the Building Official a recorded deed or unrecorded written lease wherein the mobile home owner has the fact disclosed to him in said deed or lease that the mobile home is being located -5- in a flood -prone area and that an evacuation plan indicating vehicular access and an escape route is filed with the Disaster Preparedness Authorities. Section 4. That paragraph (e) to Section 13 of Monroe County Ordinance No. 3 - 1975 be and the same is hereby added to read as follows: "(a) Guidelines. When the Board of County Commissioners of Monroe County, Florida shall consider the propriety of granting a variance as permitted by this Ordinance, the following factors shall not be considered: (1) The physical disabilities or handicaps and health of the applicant or members of his or her family. (2) The domestic difficulties of the applicant or members of his or her family. (3) The financial hardships of the applicant or members of his or her family and the financial difficulty of the applicant to comply with this Ordinance. The following factors shall be relevant in the granting of a variance: (4) Whether the public would suffer if the variance is granted. (5) Whether the Ordinance operates against the property so as to constitute an arbitrary and capricious interference with the basic right of private property. (6) Whether it is possible to use the property by a conforming method of construction. (7) Whether failure to grant a variance would in effect deprive the applicant of his property without compensation. (8) Physical characteristics of construction." t -6- Section S. That paragraph (f) to Section 13 of Monroe County Ordinance No. 3 - 1975 be and the same is hereby added to read as follows: "(f) Application Fee. Each application for a variance hereunder shall be accompanied by a $50.00 application fee made payable to Monroe County, Florida." Section 6. This Ordinance shall take effect upon receipt of the official acknowledgment from the Department of State acknowledging receipt of certified copy of this Ordinance and that said Ordinance has been filed in said office by the Department of Administration, Division of State Planning pursuant to the requirements of Florida Statutes Section 380.05 and Florida Statutes Chapter 120. M13V Ci W that ft dMenoet has been reviewed for IePI 2", 6507 P-''d antat ad that the emne meats ri:tu sr] approvaL WMU9- y PAYxa Ant. Core -I Attaw.Me1 ORDINANC 030ml 983 1 ORDINANCE 030-1983 IN EFFECT AFTER DATE OF FINAL INSPECTION FOR PERAHT A 7929 Page 11 and 12, section 6-180(a) stating below flood enclosures were regulated for parking and temporary storage Page 20 of 21 Reviewed by W:\Building\Worldng Folders\Bair-Dianne\Variances to Flood\BROWN convert to living area for handicap 2010.doc ORDINANCE NO. 030 -1983 AN ORDINANCE OF THE COUNTY OF MONROE, FLORIDA, PROVIDING THAT THE CODE OF ORDI- NANCES, COUNTY OF MONROR,FLORIDA, BE AMENDED BY AMENDING ARTICLE V., "FLOOD HAZARD DISTRICT.DEVELOPMENT", OF CHAPTER 6, "BUILD- INGS AND CONSTRUCTION", TO PROVIDE FOR INCORPORATION OF NEW FEDERAL EMERGENCY MANAGEMENT AGENCY REQUIREMENTS; PROVIDING FOR REPEALING OF ALL ORDINANCES OR PARTS OF ORDINANCES IN CONFLICT WITH THIS ORDINANCE; PROVIDING FOR SEVERABILITY; PROVIDING FOR INCLUSION IN THE MONROE COUNTY CODE OF ORDINANCES; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA: Section 1. That Article V, "Flood Hazard District Development" of Chapter 6, Buildings and Construction" of the Monroe County Code of Ordinances be amended to read as follows: "Sec. 6-177. Definitions. For the purpose of this article, the following definitions shall apply. Unless specifically defined below, words or phrases used in this Article shall be interpreted so as to give them the meaning they have in common usage and to give this Article its most reasonable application. Appeal means a request for a review of the Director of Planning, Building and Zoning's interpretation of any provision of this Article or a request for a variance. Area of special flood hazard is the land in the flood plain within a community subject to a one percent or greater chance of flooding in any given year. Base flood means the flood having a one percent chance of being equaled or exceeded in any given year. Basement means that portion of a building between floor and ceiling which may be partly below and partly above grade. Building means any structure built for support, shelter, or enclosure for any occupancy or storage. Coastal high hazard area means the area subject to high velocity waters caused by, but not limited to, hurricane wave wash or tsunamis. The area is designated on FIRM as Zone V1-30. Development means any man-made change ;to improved or unimproved real estate, including, but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. Dunes means naturally occurring accumulations of sand or other loose organic material in ridges or mounds landward of the beach. Existing mobile home park or mobile home subdivision means that on June 1, 1977, the land is properly zoned and platted for mobile homes or a mobile home variance has been granted and the lot on which the mobile home therein is to be affixed has at a minimum either final site grading or concrete pads in place, has a street or road serving said lot and utilities servicing said lot are connected. Said definition being in accordance with Title 44, Code of Federal Regulation, Parts 59. 60, 61, 64, 65. and 67, definition of "existing mobile home park or mobile home subdivision." Expansion to an existing mobile home park or mobile home subdivision means the preparation of additional sites by the construction of facilities for servicing the lots on which the mobile homes are to be affixed (including the installation of utilities, either final site grading or pouring of concrete pads, or the construction of streets.) Any expansion is considered "new construction". 7 Flood or flooding means a general and temporary condition of partial or complete inundation of normally dry land areas from (1) the overflow of inland or tidal waters; (2) the unusual and rapid accumulation of runoff of surface waters from any source. Flood hazard boundary map OREM) means an official map of a community,issued by the Federal Emergency Management Agency, where the boundaries of the areas of special flood hazard have been defined as Zone A. Flood Insurance Rate Map (FIRM) means an official map of a community, on which the Federal Emergency Management Agency has delineated both the areas of special flood hazard and the risk premium zones applicable to the community. Flood Insurance Study is the official report provided by the Federal Emergency Management Agency. The report contains flood profiles, as well as the Flood Boundary-Floodway Map and the water surface elevation of the base flood. Floor means the top surface of an enclosed area in a building (including basement). i.e. - top of slab in concrete slab construction or top of wood flooring in wood frame construction. The term does not include the floor of a garage used solely for parking vehicles. Highest adjacent grade means the highest natural elevation of the ground surface, prior to construction, next to the proposed walls of a structure. Mangrove stand means an assemblage of mangrove trees which is mostly low trees noted for a copious development of interlacing adventitious roots above the ground and which contain one or more of the following species: black mangrove (Avicennia Nitida); red kl mangrove (Rhisophora Mangle); white mangrove (Languncularia Racemosa); and buttonwood (Conocarpus Erects). Mean Sea Level means the average height of the sea for all stages of the tide. It is used as a reference for establishing various elevations within the flood plain. For purposes of this Article, the term is synonymous with National Geodetic Vertical Datum (NGVD). Mobile home means a structure, transportable in one or more sections, which is built on a permanent chassis and designed to be used with or without a permanent foundation when connected to the required utilities. It does not include recreational vehicles or travel trailers. National Geodetic Vertical Datum (NGVD) as corrected in 1929 is a vertical control used as a reference for establishing varying elevations within the flood plain. New construction means structures for which the "start of construction" commenced an or after the effective date of this article. New mobile home park or mobile home park subdivision means a parcel or contiguous parcels of land divided into two or more mobile home lots for rent or sale for which the construction of facilities for servicing the lot on which the mobile home is to be affixed (including, at a minimum, the installation of utilities, either final site grading or the pouring of concrete pads, and the construction of streets) is completed on or after June 1, 1977. Residential. The term "residential" or "residence" is applied herein to any lot, plot, parcel, tract. area or piece of land or any building used exclusively for family dwelling purposes or intended to be so used. 4 Start of construction means the first placement of permanent construction of a structure (other than a mobile home) on a site, such as the pouring of slabs or footings or any work beyond the stage of excavation■ including the relocation of a structure. Permanent construction does not include the installation of streets and/or walkways; nor ;does it include excavation for a basement, footings, piers or foundations or the erection of temporary forms; nor does it include the installation on the property of accessory buildings, such as garages or sheds not occupied as dwelling units or not a part of the main structure. For a structure (other than a mobile home) without a basement or poured footings, the "start of construction„ includes the first permanent framing or assembly of the structure or any part thereof on its piling or foundation. For mobile homes not within a mobile home park or mobile home subdivision, "start of construction" means the affixing of the mobile home to its permanent site. For mobile homes within mobile home parks or mobile home subdivisions. "start of construction" is the date on which the construction of facilities for servicing the site on which the mobile home is to be affixed (including, at a minimum, the construction of streets, either final site grading or the pouring of concrete pads and installation of utilities) is completed. Structure means a walled and roofed building that is principally above ground. a mobile home, a gas or liquid storage tank, or other man-made facilities or infrastructures. Substantial improvement means any repair. reconstruction. or improvement of a structure, the cost of which equals or exceeds fifty (50 percent of the market value of the structure either (1) before the 5 improvement or repair is started, or (2) if the structure has been damaged and is being restored, before the damage occurred. For the purposes of this definition "substantial improvement" is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the structure. The term does not, however, include either (1) any project for improvement of a structure to comply with existing state or local health, sanitary, or safety code specifications which are solely necessary to assure safe living conditions, or (2) any alteration of a structure listed on the National Register of Historic Places or a State Inventory of Historic Places. (Ord. No. 3-1975, 12) Variance is a grant of relief to a person from the requirements of this ordinance which permits construc- tion in a manner otherwise prohibited by this Article wbere specific enforcement would result in unnecessary hardship. Cross reference - Rules of construction and defini- tions generally, ¢ 1-2. Sec. 6-178. Statement of legislative intent. The coastal areas of the county are subject to flooding, resulting in danger to life, lose of property, health, and safety hazards, disruption of commerce and governmental services, extraordinary public expenditures for flood protection and relief, and impairment of the tax base, all of which adversely affect the public health, safety, and general welfare. The board of county commissioners deem it in the best interest of its citizens that said county at all times be eligible for and receive the benefits of the national flood insurance program administered by the P1 Federal Emergency Management Agency, said program providing its citizens with federally subsidized flood insurance. VA and F.H.A. mortgage insurance, conventional mortgage loans from federally insured or regulated lending institutions for purposes of purchasing and improving real property and makes available federal flood disaster assistance funds so long as said county adopts and maintains certain flood plain management regulations consistent with federal criteria as set forth in Title 44, Code of Federal Regulations, Parts 59, 60, 61. 649 65 and 67; and whereas the administrator of the Federal Emergency Management Agency has previously identified this county as being a coastal high hazard area, therefore, the provisions of Section 60.3(e) of Title 44, Code of Federal Regulations must be adopted and adhered to by this county in order to maintain continued participation in the program. It is therefore the intent of the board that the provisions of this article will be strictly adhered to. (Ord. No. 3-1975, 4 1; Ord. No, 8-1977, 1 1) Sec. 6-179. Development in areas of special flood hazard. The county official responsible for the administration and enforcement of this article shall, to the extent not otherwise prohibited by sections 6-180 and 6-181, with respect to development within areas of special flood hazard. (a) Require building permits for all proposed construction or other improvements within said district, containing, in addition to the requirements of Section 6-231, the following information; F (1) Elevation in relationship to the National Geodetic Vertical Datum (NGVD) of 1929 of the proposed lowest floor (including basement) of all structures. (2) Elevation in relation to NGVD to which any non residential structure will be proofed. (3) A certificate from a registered professional engineer or architect that the flood -proofed structure Mesta the flood -proofing criteria contained Section 6-181(b)(2) of this Article. (4) A flood elevation or flood -proofing certification after the lowest floor is completed, or in instances where the structure is subject to the regulations applicable to Coastal High Hazard Areas, after placement of the horizontal structural members of the lowest floor. Within twenty one calendar days of establishment of the lowest floor elevation, or flood -proofing by whatever construction means, or upon placement of the horizontal structural members of the lowest floor, whichever is applicable, it shall be the duty of the permit holder to submit to the Director of Planning, Building and Zoning a certificate of the elevation of the lowest floor, flood -proofed elevation, or the elevation of the lowest portion of the horizontal structural members of the lowest floor, whichever is applicable, as built, in relation to NGVD. Said certification shall be prepared by or under the direct supervision of a registered land surveyor or professional engineer and certified by same. When flood -proofing is utilized for a particular building, said certification shall be prepared by or under the direct supervision of a professional engineer or architect and certified by same. Any work done within the twenty one day calendar period and prior to submission of the certification shall be at the permit holder's risk. (b) Review building permit applications for repair within said districts to determine that the proposed repair meets the requirements of this Article. (c) Review building permit applications for new construction or substantial improvements within said districts to assure that the proposed construction (including prefabricated and mobiles homes): (1) Is protected against flood damage, (2) Is designed or modified and anchored to prevent flotation, collapse or lateral movement of the structure, (3) Uses construction materials and utility equipment that are resistant to flood damage, and also uses construction methods and practices that will minimize flood damages. Review the floor elevation survey data submitted under Sec. 6-179(a)(4). Deficiencies detected by such review shall be corrected by the permit holder immediately and prior to further progressive work being permitted to proceed. Failure to submit the survey or failure to make said corrections required hereby, shall be cause to issue a stop -work order for the project. (d) Review subdivision proposals and other proposed new developments to assure that: V, (1) All such proposals are consistent with the need to minimize flood damage, (2) All public utilities and facilities. such as sewer. gas, electrical, and water systems are located, elevated, or constructed to minimize or eliminate flood damage, end, (3) Adequate drainage is provided so as to reduce exposure to flood hazards. (4) All subdivisions and other proposed developments consisting of the lesser of 50 units or 5 acres, base flood elevation data shall be provided by the developer. (e) Require new or replacement water supply systems and treatment plants and sanitary sewage plants and systems to be designed and constructed in accordance with applicable Federal. State and County regulations. (f) Advise permittee that additional federal or state permits may be required, and if specific federal or state permits are known. require that copies of such permits be provided and maintained on file with the building permit application. (g) Notify adjacent communities and the Florida Department of Community Affairs prior to any alteration or relocation of a watercourse, and submit evidence of such notification to the Federal Emergency Management Agency. (h) In Coastal High Hazard Areas certification shall be obtained from a registered professional engineer or architect that the structure is securely anchored to adequately anchored pilings or columns in order to withstand velocity waters and hurricane wave wash. IF (i) In Coastal High Hazard Areas, the Director of Planning, Building and Zoning shall review plans for adequacy of breakaway walls in accordance with the provisions of this Article. W When flood -proofing is utilized for a particular structure, the Director of Planning, Building and Zoning shall require the applicant to provide certification from a registered professional engineer or architect. (k) Where interpretation is needed as to the exact location of boundaries of the areas of special flood hazard (for example, where there appears to be a conflict between a mapped boundary and actual field conditions) the Director of Planning, Building and Zoning shall make the necessary interpretation. The person contesting the location of the boundary shall be given a reasonable opportunity to appeal the interpretation as provided in this article. (1) When base flood elevation data has not been provided in accordance with Section 6-184 of this Article, then the Director of Planning. Building and Zoning shall obtain, review, and reasonably utilize any base flood elevation data available from a federal, state or other source, in order to administer the provisions of Section 6-181 of this Article. (m) All records pertaining to the provisions of this ordinance shall be maintained in the office of the Director of Planning, Building and Zoning and shall be open for public inspection. Sec. 6-100. Elevation requirements. (a) Buildings located in areas of special flood hazard must have the lowest portion of the lowest floor elevated to the level of the one hundred (100) year 11 flood. The space below must be kept free of obstructions, but may be covered as described in Section 6-181(b)(3)(f) of this Article and used for parking and temporary storage. Elevated structures shall be serviced by electrical and mechanical equipment that is also elevated to or above the level of the one hundred (100) year flood. Panel boards and disconnect switches (where used) must be located above the one hundred (100) year flood level. House sewer and storm drainage systems that extend below the one hundred (100) year flood level shall be provided with automatic back flow valves or devices installed at the point where the line passes an exterior wall or slab. All new construction shall be located landward of the reach of the mean high tide. All such new construction shall be adequately anchored by pilings or columns and fill shall not be used for structural support. No man-made alteration of sand dunes and mangrove stands shall be allowed which would increase potential for flood damage. (b) Effective June 1, 1977, the placement of mobile homes (except in existing zoned and platted mobile home parks and subdivisions or on lots with existing mobile home variances) within areas of special flood hazard is absolutely prohibited in accordance with Title 44, Section 60.3(e)(7), Code of Federal Regulations. The term "existing" as used herein shall be as defined in Section 6-177 of this Article. Said definition being in accordance with Title 44, Section 59, Code of Federal Regulations definition of "existing mobile home park or mobile home subdivision". After April 1, 1977, all mobile homes so qualifying for placement in existing zoned and platted mobile home parka and subdivisions. A mobile home so 12 qualifying for placement may be placed at a height below said minimum elevation providing that a variance is granted by the Board of County Commissioners. The requirement for granting of said variance is that the mobile home to be placed will be placed on a qualified lot which is presently contiguous to and surrounded by mobile homes which are not elevated to the base flood elevation. In such cases, the Board may grant a variance to allow said mobile home to be placed at an elevation equal to that of the neighboring mobile homes. No other variances shall be issued for mobile homes. An existing mobile home may in all cases be replaced without elevation and without need of variance providing the mobile home so replaced was at a height below the required base flood elevation. If a mobile home is placed in an existing park or subdivision or varianced lot, the building department shall not issue a building permit or certificate of occupancy unless and until the owner of the mobile home or lessee, as the case may be, shows the building official a recorded deed or unrecorded written lease wherein the mobile home owner has the fact disclosed to him in said deed or lease that the mobile home is being located in a flood -prone area and that an evacuation plan indicating vehicular access and an escape route is filed with the disaster preparedness authorities. (c) Existing uses located on land in areas of special flood hazard which is below the base flood elevation shall not be expanded and no building permit referred to in section 6-179 of this article may be issued therefore unless the provisions of paragraph (a) Of this section are complied with; however, this shall not preclude routine maintenance of existing structures 13 or improvements thereto which are less than substantial improvements, as herein defined, and which do not increase the physical size of such structure. (d) In all instances where residential subdivision deed restrictions in the County authorize only the elevation of the lowest floor of said buildings to a height less than the elevation mandated and required under this section, the minimum elevation of said lowest floor as required by this section shall become the maximum elevation allowed in said subdivision. (Ord. No. 3-1975, 1 4; Ord. No. 8-1977, 5 2, 3; Ord. No. 12-1979, 1 1) Sec. 6-181. Development within areas of special flood hazard. Nonresidential structures, and motels located in areas of special flood hazard may make use of the space below the one hundred (100) year flood level for equipment and non -living areas, under the condition that they be floodproofed up to the level of the one hundred (100) year flood, that is, electrical equipment may be located below the level of the one hundred (100) year flood if it is protected in a waterproof vault or is of the submersible type. An office, bath, utility room, storage or laundry may be located below the level of the one hundred (100) year flood if their omission would cause extreme hardship and if they will be floodproofed. However, proper recognition should be given to the existing flood hazard, and investment below the level of the one hundred (100) year flood should be minimized. A U.S. Corp of Engineers Manual, "Floodproofing Regulations" should be referred to in order to facilitate design and detailing of floodproof construction. (Ord. No. 3-1975, 1 5) (a) In all areas of special flood hazard the following provisions are required: 14 (1) All new construction and substantial improvements shall be anchored to prevent flotation, collapse or lateral movement of the structure; (2) All new construction and substantial improvements shall be constructed with materials and utility equipment resistant to flood damage; (3) All new construction or substantial improvements shall be constructed by methods and practices that minimize flood damage; (4) All new and replacement water supply systems shall be designed to minimize or eliminate infiltration of flood waters into the system; (5) New and replacement sanitary sewage systems shall be designed and constructed in accordance with applicable Federal, State and County regulations. (6) On -site waste disposal systems shall be designed and constructed in accordance with applicable Federal State and County regulations. (7) Any alteration, repair, reconstruction, or improvements to a structure which is in compliance with the provisions of this ordinance, shall meet the requirements of "new construction„ as contained in the Article. (b) In all areas of special flood hazard where base flood elevation data has been provided, as set forth in Section 6-184 of this Article, the following provisions are required: (1) Residential construction - New construction or substantial improvement of any residential structure shall the lowest floor, including basement, elevated to the bass flood elevation. 15 A T. (2) Non-residential construction - New construction or substantial improvement of any commercial, industrial or other non-residential structure shall either have the lowest floor, including basement, elevated to the base flood elevation or, together with attendant utility and sanitary facilities, be flood -proofed so that all areas of the structure below the required elevation is water tight and with walls substantially impermeable to the passage of water and with structural components having the capability of resisting hydrostatic and hydrodynamic loads and effects of buoyancy. A registered professional engineer or architect shall certify that the standards of this subsection are satisfied. Such certification shall be provided to the official as set forth in Section 6-179 of this Article. (3) Coastal High Hazard Areas (V Zones) - Located in the areas of special flood hazard established in Section 6-184 of this Article, are areas designated as coastal high hazard areas. These areas have special flood hazards associated with wave wash, therefore, the following provisions shall apply: (a) All buildings or structures shall be elevated so that the lowest supporting horizontal member (excluding pilings or columns) is located at the base flood elevation level, with all space below the lowest supporting member open so as not to impede the flow of water. Open lattice work or decorative screening may be permitted for aesthetic purposes only and must be designed to wash away 16 n A, in the event of abnormal wave action and in accordance with Section 6-181(b)(3)(f) and (g) of this Article; (b) All buildings or structures shall be securely anchored on pilings or columns; (c) Pilings or columns used as structural support shall be designed and anchored so as to withstand all applied loads of the bass flood flow; (d) Compliance with provisions contained in Section 6-181(b)(3)(a), (b) and (c) of this Article shall be certified to by a professional engineer or architect; (e) There shall be no fill used as structural support; (f) Lattice work or decorative screening shall be allowed below the base flood elevation provided they are not part of the structural support of the building and are designed so as to breakaway, under abnormally high tides or wave action, without damage to the structural integrity of the building on which they are to be used and provided the following design specifications are met: (1) No solid walls shall be allowed, and (2) Material shall consist of wood or mesh screening only. (g) If aesthetic lattice works or screening are utilized. such enclosed space shall not be used for human habitation; (h) Prior to construction, plans for any structure that will have lattice work or decorative screening must be submitted to the Director of Planning. Building and Zoning for approval; 17 (i) Prohibit the placement of mobile homes, except in an existing mobile home park or existing mobile home subdivision; and (j) Any alteration, repair, reconstruction or improvement to a structure shall not enclose the space below the lowest floor except for lattice work or decorative screening, as provided for in Section 6-181(b)(3)(f) and (g) of this Article. (k) All buildings shall comply with provisions of Chapter 4, Article II (SHORELINE PROTECTION) Section 4-18, Monroe County Code. (1) No man-made alteration of sand dunes and mangrove stands shall be allowed which would increase potential for flood damage. Sec. 6-182. Site utility lines. Site utility lines shall be made waterproof as far as possible to eliminate infiltration of flood waters into the system and discharges from the system into flood waters. Joints between sewer drain tile shall be sealed with caulking, plastic, or rubber gaskets and all manhole covers shall be sealed in a similar manner. (Ord. No. 3-1975, 6 6) Sec. 6-183. Application of article; adoption of maps. (a) This article shall apply to and be enforced in all the unincorporated areas of the County. (b) The areas of special flood hazard identified by the Federal Emergency Management Agency in its Flood Insurance Study and Wave Height Analysis for Monroe County, Florida, Unincorporated Areas, dated December 1, 1983 with accompanying maps and other supporting data, and any revision thereto are adopted by reference and declared to be a part of this Article; and shall be kept on file, available to the public, in the offices of the County Building and Zoning Department. (Ord. No. 3-1975, 4 8) E k No structure shall hereafter be located, extended, converted, or structurally altered without full compliance with the terms of this Article and other applicable regulations. Sec. 6-184. Enforcement. The director of the County Building and Zoning Department shall administer and enforce this article. (Ord. No. 3-1975, 1 9) Sec. 6-185. Rules for interpreting district boundaries. The boundaries of the flood hazard districts shown on the official flood hazard boundary maps may be determined by scaling distances. Required interpretations of those maps for precise locations of such boundaries shall be made by the director of the County Building and Zoning Department. (Ord. No. 3-1975. 4 10) Sec. 6-186. Variances. (a) Authority of the County Commission. The County Commission shall have the authority and duty to consider and act upon applications for a variance from the regulations of this article. The County Commission shall also have the authority to consider and act upon appeals when it is alleged there is an error in any requirement, decision. or determination made by the Director of Planning, Building and Zoning in the enforcement or administration of this Article. Such Board is admonished that in granting any variances hereunder, it must consider the purposes of the National Flood Insurance Program, as specified in Title 24, Code of Federal Regulations, Chapter 10, subchapter B. Parts 59, et seq. Further, such Board shall consider the fact that an annual report on variances granted must be submitted to the National Flood Insurance Administration, which report is the 19 basis for continued availability of flood insurance to the inhabitants of the County. and therefore, variances should be granted with extreme caution. (b) Variance to be in harmony with general purpose and intent of the article. The Board may grant variances from the terms of this article as will not be contrary to the public interest. where owing to special conditions. a literal enforcement of the provisions hereof will result in unnecessary hardship, and so the spirit of the regulations shall be observed and substantial justice done: Provided that the variance will be in harmony with the general purpose and intent Of this article and that the same is the minimum variance that will permit the reasonable use of the premises. (c) Conditions. Variances may be granted only upon the following conditions. (1) A new structure is to be erected on a lot of one-half acre or less in size, contiguous to and surrounded by lots with existing structures constructed below the flood protection elevation. or (2) If an official historic structure located below the minimum level is to be restored or re -constructed. (3) A determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; (4) A showing of good and sufficient cause; (5) A determination that failure to grant the variance would result in exceptional hardship to the applicant; (6) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, 20 extraordinary public expense, create nuisance, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; (7) Any applicant to whom a variance is granted shall be given written notice specifying the difference between the base flood elevation and the elevation to which the structure is to be built and stating that the cost of flood insurance will be commensurate with the increased risk resulting from the reduced lowest floor elevation. (8) The Director of Planning, Building and Zoning shall maintain the records of all appeal actions and report any variances to the Federal Emergency Management Agency upon request. A variance may only be issued if good and sufficient cause exists for granting it or if failure to grant the variance would result in exceptional hardship to owners of the land. In all circumstances, as a matter of policy, variances may only be issued if the County requires that a notice be placed on the deed to the property stating that the proposed construction will be located in a flood prone area. In the case of a variance for new construction or substantial improvement for which construction is to be started after December 31, 1974, and which is located in an area designated on an effective Flood Insurance Bate Map as having special flood hazards, the notice must contain a statement of the number of feet that the lowest uonfloodproofed floor of the proposed structure will be below the one hundred (100) year flood level and that actuarial flood insurance rates increase as the first floor elevation decreases. 21 In all cases the County must notify the administrator of the insurance of the variance in writing. including written notification documenting the justification for the issuance. A copy of the notification should be sent to the state coordinating agency. (d) Review and appeal. Review and appeal of any such decision by the County Commission shall be by petition to the circuit for relief. (e) Guidelines. When the Board of County Commissioners shall consider the propriety of granting a variance as permitted by this article, the following factors shall not be considered: (1) The physical disabilities or handicaps and health of the applicant or members of his or her family. (2) The domestic difficulties of the applicant or members of his or her family. (3) The financial hardships of the applicant or members of his or her family and the financial difficulty of the applicant in complying with this article. The following factors shall be relevant in the granting of a variance: (4) Whether the public would suffer if the variance is granted. (5) Whether this article operates against the Property so as to constitute an arbitrary and capricious interference with the basic right of private property. (6) Whether it is possible to use the property by a conforming method of construction. (7) Whether failure to grant a variance would in effect deprive the applicant of his property without compensation. EE (8) Physical characteristics of construction. (9) The danger that materials may be swept onto other lands to the injury of others; (10) The danger of life and property due to flooding or erosion damage; (11) The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner; (12) The importance of the services provided by the proposed facility to the community; (13) The necessity to the facility of a waterfront location, where applicable; (14) The availability of alternative locations, not subject to flooding or erosion damage, for the proposed use; (15) The compatibility of the proposed use with existing and anticipated development; (16) The relationship of the proposed use to the comprehensive plan and flood plain management program for that area; (17) The safety of access to the property in times of flood for ordinary and emergency vehicles; (18) The expected heights, velocity, duration, rate of rise and sediment transport of the flood waters and the effects of wave action, if applicable, expected at the site; and, (19) The costs of providing governmental services during and after flood conditions including maintenance and repair of public utilities and facilities such as sewer, gas, electrical, and water systems, and streets and bridges. (f) Upon consideration of the factors listed above and the purposes of this article, the County 23 Commission may attach such conditions to the granting of variances as it deems necessary to further the purposes of this Article. (g) Application fee. Each application for a variance hereunder shall be accompanied by a fifty dollar ($50.00) application fee made payable to the County. (Ord. No. 3-1975, 6 13; Ord. No. B-1977, 6 4, 5) Cross references - Variances under subdivision regulations, Ch. 17, Art. VII, special exceptions under zoning ordinance, Ch. 19. Art. IV. Sec. 6-188. Warning and disclaimer of liability. The degree of flood protection required in this article is considered reasonable for regulatory purposes and is based on scientific and engineering considerations. Larger floods can and will occur on rare occasions. Flood heights may be increased by man-made or natural causes. This Article does not imply that land outside the areas of special flood hazard or uses permitted within such areas will be free from flooding or flood damages. This Article shall not create liability on the part of Monroe County or by any officer or employee thereof for any flood damages that result from reliance on this ordinance or any administrative decision lawfully made thereunder. (Ord. No. 3-1975, 6 14) Sec. 6-188. Conflicting regulations. This article shall supersede any conflicting ordinance, building code, or any other regulation to the extent that this article imposes more stringent requirements for the use or development of any lands or structures within areas of special flood hazard. It is not intended to repeal, modify, or change any ordinance, building code or other regulation except as herein stated. It is not intended to repeal, abrogate, M7 or impair any existing easements, covenants, or deed restrictions. However, where this ordinance and another conflict or overlap, whichever imposes the more stringent restrictions shall prevail. (Ord. 3-1975, 4 11) Sec. 6-189. Interpretation. In the interpretation and application of this Article all provisions shall be: (1) Considered as minimum requirements. (2) Liberally construed in favor of the County, in order to effectuate the purposes herein stated. (Ord. No. 3-1975, 6 12) (3) Deemed neither to limit nor repeal any other powers granted under the laws of the State. Sec. 6-190. Effect on subdivision ordinance. It is the intention of the County Commissioners and it is hereby ordained that the provision of this article shall supplement the County subdivision ordinance. (Ord. No. 3-1975, 4 16) For subdivisions proposed in areas of special flood hazard the following provisions are required: (a) All subdivision proposals shall be consistent with the used to minimize flood damage; (b) All subdivision proposals shall have public utilities and facilities such as individual sewage disposal systems, sewer, gas, electrical and water systems located and constructed to minimize flood damage; (c) All subdivision proposals shall have adequate drainage provided in accordance with applicable rules and regulations of the South Florida Water Management District to reduce exposure to flood hazards. 25 For subdivisions and other proposed developments consisting of the lesser of fifty units or five acres, base flood elevation data shall be provided by the developer. Sec. 6-191. Effect on previous building permits. Provisions of this article shall not apply to those buildings for which a building permit had been issued and was in effect or for which proper and complete applications and plans had been submitted for building permits on or before the effective date of Ordinance Number 3-1975g provided that the construction under the permit shall be commenced and progressively carried to a conclusion within the time limitations for permits established by the building code. (Ord. No. 3-1975, $ 17) Cross reference - Building permits, Cb. 6, Art. II, Div. 2. Sec. 6-192. Effect on special laws. All special laws, in conflict with this article are hereby repealed to the extent of such conflict. (Ord. No. 3-1975. B 18) Sec. 6-193. Penalties for violation. (a) Willful violations of the provisions of this article or failure to comply with any requirements hereunder (including violations of conditions and safeguards established in connection with grants of variance or special exceptions) shall subject the offender to punishment as provided in section 1-7 of this Code of Ordinances. (b) Notwithstanding the provisions of paragraph (a) of this section, the official responsible for the enforcement of the provisions of this article may secure enforcement hereof by any legal action necessary, such as application to any court for 26 injunctive relief, revocation of any building permit issued hereunder or other appropriate means. (Ord. No. 3-1975. 1 15) Sec. 6-194. Severability. If any section. subsection, sentence, clause or provision of this Article is held invalid. the remainder of this Article shall not be affected by such invalidity. Sec. 6-195 - 6-205. Reserved." Section 2. All ordinances or parts of ordinances in conflict with this Ordinance are hereby repealed to the extent of said conflict. Section 3. If any section, subsection, sentence, clause or provision of this Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such invalidity. Section 4. The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances of the County of Monroe, Florida. as an addition or amendment thereto, and shall be appropriately renumbered to conform to the uniform numbering system of the Code. Section 5. This Ordinance shall take effect immediately upon receipt of official notice from the Office of the Secretary of State of the State of Florida that this Ordinance has been filed with said Office. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County. Florida, at a regular meeting of said Board held on the 23rd day of November , A.D. 1983. (Seal) A t t e s t: DAM 4 KOMACK clerk "CO2.C.. Clerk BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA By Mayor/Chairman 27 MEMO FROM KERMIT LEWIN aw a MEMORAND M DATE: August 1, 1979 TO: AI.L BUILDING OFFICIALS FROM: Kermit H. Lewin, Director Planning, Zoning & Building SUBJ : Breakacvay Walls Today, I attended a Meeting with the Officials of First Federal of the Florida Keys concerning breakaway walls and how the use of the space below the flood level is being abused. They provided me with specific cases where we have issued Certificates of Occupancy, even though obvious violations of the allowed use, below the flood level, existed at the time. I was embarrassed to think that this was possible, and I intend to see that this practice'is discontinued. From today forward, the following regulations will be in effect. _ 1. No plans shall be approved that reflect interior partitions, windows or glass sliding doors in the breakaway walls. 2. When inspected, special attention shall be given to the method used in placing the breakaway blocks in all openings, making certain that they are not grouted to either the foundation, the columns, or the tie -beam. 3. The space below the flood level may only be used for parking or temporary,$torage, however, you can allow a bathroom in the lower level, without a bath tub. I am charging you with the responsibility of informing all inspectors in your office of -these regulations, and the strict adherence of them. Also, if you or any of your inspectors observe any dwelling where the space below -the flood level is being used for any type of Woman habitation, you are to report it to this office ror furtheraction. L:lr ��'� KONROg COUNTY OFFICIAL RECORDS E=Bmd by and a= to Peter R Abesada, Esq. Attorney at Law Peter R. Abesada & Associates. P.A. 2725 Saimedo Street Coral Gables, FL 33134 File Number: PRA-034M Will call No.: FILE # 1 3 8 6 7 5 7 BK# 1 9 1 5 PG# 3 5 RCD Aug 01 2003 62tl2PtK DANNY L KOLGAGE, CLERK DEED DOC STA S 2338.00 P 88/01/2003 'DRP CLR (Space Above This line For Recording Warranty Deed This Warranty Deed made this 17th day of July, 2003 between The 1031 Exchange Experts, LLC as Qualified Intermediary (Qf) for: David A. Cinalti and Kimberly A. Cinaili, his wife whose post office address is 6845 SW 177 Terrace, Miami, FL 33157, grantor, and Rory Brown and Debra Brown, his wife whose post office address is 23048 Sailfish Law, Cudjoe Key, FL 33042, grantee: (Wheoever used herein the tames "grantor" and 'Santee" eulide all the parties to this inaaumad and the heirs, legal representatives, and assigns of individuals, and the successors and assigns of corpomdons. trusts and Uwtem) Witnesseth, that said grantor, for and in consideration of the stun of TEN AND N01100 DOLLARS ($10.00) and other good and valuable considerations to said grantor in hand paid by said grantee, the receipt whereof is hereby acknowledged, has granted, bargained, and sold to the said grantee, and grantee's heirs and assigns forever. the following described land, situate, lying and being in Monroe County, Florida to -wit: Lot 16, Block 8, of CUDJOE OCEAN SHORES, according to the Plat thereof, as recorded In Plat Book 5, Page 107, of the Public Records of /Mo�nroe County, Florida. Parcel Identification Number: 1. �1 C/ W ) 3 Together with all the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining. To Have and to Hold, the same in fee simple forever. And the grantor hereby covenants with said grantee that the grantor is lawfully seized of said land in fee simple; that the grantor has good right and lawful authority to sell and convey said land: that the grantor hereby fully warrants the title to said land and will defend the same against the lawful claims of all persons whomsoever; and that said land is tree of all encumbrances, except taxes accruing subsequent to December 31. 2003. DoubteTlmes FILE #JL366757 BR# 1 9 1 5 PGA 3 6 In Witness Whereof, grantor has hereunto set grantor's hand and seal the day and year first above written. Signed, sealed and delivered in our presence: (Seal) Wi Name: _ _Api avr A. Cinalli Witness Name: I &MA - Wi Name• A—W J loop" itrress State of PENNSYLVANIA County of PHILADELPHIA r rly A. Ciiaiff ZV The foregoing instrument was acknowledged before me this I ' day of July. 2003 by Kimberly A. Cinalli, who [ ) is personally known or [X] has produced a driver's license as identification. [Notary Seal] Notary lic Printed Name: i�Laz�` :' ✓ �; My Commission Expires: ti NOTA State of Florida, ELIZl1��TIiS. BIkO�' fub�c County of Miami -Dade Clq►ofPne '� The foregoing instrument was acknowledged before me this day of July, 2003 by David A. Cinalli, who U is personally known or [XI has produced a driver's license as identification. [Notary Sean Notafy Public FMLLO asle 0��R0Ai� Printed Name: war, My Commission Expires: MONROB COUNTY OFFICIAL RACORDS Warrnety Deed - Page 2 DoubleMmes County of Monroe Growth Management Division 2798 Overseas Highway Suite 400 Marathon, Florida 33050 Voice: (305) 289-2500 FAX: (305) 289-2536 November 5, 2010 Rory and Debra Brown 23048 Sailfish Lane Cudjoe Key, FL 33042 Board of County Commissioners Mayor Sylvia Murphy, Dist. 5 Mayor Pro Tem Heather Carruthers, Dist. 3 Commissioner Kim Wigington, Dist. 1 Commissioner George Neugent, Dist. 2 Commissioner Mario Di Gennaro, Dist. 4 re: Flood Variance Application for Property Located at 23048 Sailfish Lane, Cudjoe Key, RE#00188650.000000. Dear Mr. & Mrs. Brown: Pursuant to CFR 44 60.6(a)(5) I am required to notify applicants for a variance of the following: The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25.00 for every $100.00 of insurance coverage and such construction below the base flood level increases risk to life and property. I do not know if any increase in premium applies to your situation. Monroe County Ordinance 037-2003 codified in Monroe County Code Section 122-5(c)(5) requires the filing of an affidavit stating the proposed construction will be located in a flood prone area. This notice must also state the number of feet that the lowest floor will be below the one hundred (100) year flood level and that the actuarial flood insurance rates increase as the first floor elevation decreases. I understand that Mr. Rohe will be obtaining your signatures on this affidavit. Your affidavit must be recorded at the County Clerk's Office. A copy of the recorded affidavit must be provided to the Building Department, office of Floodplain Administration to be maintained with the record of the variance. If you have any questions, do not hesitate to contact this office at 305-289-2518. Siely, vianne tsatr, Floodplain Administrator Monroe County Growth Management Division Building Department Cc: Lee R. Rohe, Attorney at Law Bob Shillinger, Chief Assistant County Attorney Susan Grimsley, Assistant County Attorney Prepared by and Return to Susan Grimsley, Esq. Fourth Floor, Suite 408 1111 12'h Street Key West, F133040 FLOOD VARIANCE AFFIDAVIT STATE OF FLORIDA COUNTY OF MONROE BEFORE ME, the undersigned authority personally appeared: Rory and Debra Brown, who, being by me first duly sworn, deposes and says: 1) That affiants are the owners in fee simple and have possession of that certain real property, situate, lying and being in Monroe County, State of Florida, described as follows: RE# 00188650-000000 Legal Description: Lot 16, Block 8, Cudjoe Ocean Shores Address: 223048 Sailfish Lane, Cudjoe Key 2) That affiants acknowledge that the above described property is located in an AE 9 flood zone. 3) That a variance to the Floodplain Management provisions of the Florida Keys Comprehensive Plan and Land Development Regulations adopted by the Monroe County Board of County Commissioners on February 28, 1986, and approved by the Administration Commission of the State of Florida on July 29, 1986, has been granted to allow habitable space on the above described property. 4) That the lowest floor is 4.68 feet below the base flood elevation of Nine (9) feet required (AE 9) 5) Affiits acknowledge that the actuarial flood insurance rates increase as the flood elevation decreases. 6) This affidavit is required pursuant to Section 122-5(c)(5) of the Monroe County Code. Rory Brown Debra Brown Subscribed and sworn to before me this the day of 2010 Notary Public in and for the State of Florida SEAL MONROE COUNTY ATTORNYMy commission expires: APPROVED AS TO FORM: �ANRIMSLEY ASSISTANT COUNTY ATTORNEY Y 1/r KEYWEST S�R_OROA33o4o' (305)2944641 Suzanne A. Hutton, County Attorney** Robert B. Shillinger. Chief Assistant Count%- Attorney Pedro I Mercado, Assistant Count• Attorney '* Susan M. Grimslev- Assistant County Attorney ** Natileene W. CasseL Assistant Count• Attorney CNnthia L. Hall- Assistant County Attornev Christine Limbert Barrous. Assistant Count Attorney Derek V. Homw& Assistant Count Attomev Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law Memo To: Suzanne A. Hutton, County Attorney From: Bob Shillinger, Chief Assistant County Attorney Date: September 14, 2010 Re: Brown floodplain variance request -- S Mayor Sylvia I Murphy, District 5 Mayor Pro Tem Heather Carruthers, District 3 Kim Wigington, District 1 George Neugent, District 2 Mario Di Gennaro, District 4 Office of the CormAttorney 1111 12a` Street, Suite 408 Key West FL 33040 (305)292-3470 — Phone (305) 292-3516 — Fax (question presented: Does Monroe County face any exposure to liability for strictly enforcing the variance requirements set forth at § 122-5(c)(3)a of the Monroe County Code? Short Answer: Possibly. A disabled person denied a variance under § 122- 5(c)(3)a would appear to have a colorable claim for violating the Federal Fair Housing Amendments Act of 1988 (FHAA) and/or the Americans with Disabilities Act of 1990 (ADA) and possibly other statutes. Background: The County Commission has before it an application for a variance to the County's floodplain ordinance that is being sought by property owners who have a wheel -chair bound, disabled son who lives with them. Section 122-5(c) states that: Since 1978, NFIP policyholders in Monroe County have received in excess of $3.5 billion in benefits under their policies.3 This is to say nothing of the millions of dollars in disaster assistance the County has received from FEMA in federally declared disasters. Questions have been raised over whether section 122-5(c)(3)a of the County Code violates other laws including the Americans with Disabilities Act, especially in the context of the Browns' variance request which is based upon their son's physical disability. In short, the variance request potentially places the County in the position of having to choose between various Federal laws to comply with. The purpose of this memo is to identify colorable causes of action that might arise in the event the County denies the Brown's variance request based upon § 122- 5(c)(3)a of the County Code. To be clear, this memo does not admit liability for those claims nor assess in depth the likely outcome of such claims. Instead, it merely points out whether such claims are "colorable" or facially viable. Analysis: As a general proposition, Courts have held that local governments, in exercising their zoning authority, can be found in violation of the Federal Fair Housing Amendments Act (FHAA)5, the Americans with Disabilities Act (ADA),6 and the Rehabilitation Act. The Florida Fair Housing Act also makes it unlawful to "discriminate in land use decisions or in the permitting of development based on .. . disability.... "8 "The ADA was built on the Rehabilitation Act and the FHAA, but 3 See FEMA NFIP Policy and Claims Report for Monroe County, Florida dated 5/6/10. 4 The causes of action outlined in this memo includes those claims the County would most likely face and by no means, forecloses the possibility that a lawyer for the Browns might include additional claims not contemplated here. 5 Edmunds v. Oxford House, 514 U.S. 725,115 S.Ct. 1776, 131 L.Ed.2d 801 (1995); and Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 (11" Cir. 2008). 6 See, e.g., Wisconsin Community Services, Inc. v. Milwaukee, 465 F.3d 737, 750 (7" Cir. 2006). Id at 746. e F.S. 760.26. K! prove that the practice 'actually or predictably results in ... discrimination.' Moreover, there must be a causal connection between the policy at issue and the discriminatory effect." 14 Stated differently, the Browns would need to show by statistical evidence that the percentage of disabled County residents who are similarly situated to their son and who have a need or good reason to live in downstairs enclosures prohibited by the floodplain ordinance is significantly greater than the percentage of all people in the County who need or have good reason to live in such places.15 In algebraic terms, x% would have to be substantially greater than y%, if 'Y' is the disabled population of the County who need or have a good reason to live in an unpermitted downstairs enclosure and "y" is the general population with a need or good reason to live in an unpermitted downstairs enclosure. While no such evidence has been presented yet, it is within the bounds of reason to expect that such a claim could be articulated if sufficient statistical analysis were done of the two comparative groups.16 Reasonable Accommodation The Browns might also attempt to state a reasonable accommodation claim. To do so, the Browns would need to show that the: (1) County formally refused to make (2) a reasonable accommodation in its regulations when such accommodations (3) may be necessary to afford such person equal opportunity to use and enjoy a 14 Quad Enterprises, 369 Fed.Appx. at 206 (citations omitted). 15 Schwarz, 544 F.3d at 1217. 16 An obvious counter argument to this type of claim would be found in the position asserted by some in the community that the County's floodplain ordinances impacts thousands of community residents, including those members of the community not suffering from certain physical disabilities such as the elderly, poor and middle class, not to mention innocent purchasers who unknowingly bought homes that previous owners had illegally converted from permitted storage space. See, e.g., http://www.citizensnotserfs.com/media/articles/CNSPrinciplesGoalsREVISED pdf (as of 9/10/10). 5 program, which has, for the past 27, years prohibited habitation in the portions of structures built below base flood. Again this is a factual question that would require defense of the suit before it could be resolved. A potential weakness with this argument would be the existence of pre -firm houses and some post -firm houses that the County permitted but did not consider, from 1975 to 1983, as habitable space in downstairs enclosures, such as laundry rooms, convenience baths, and recreation rooms. Predicting the ultimate outcome on this point is impossible at this point. The third element of a reasonable accommodation claim involves whether the accommodation sought is necessary for the disabled person to enjoy equal access to the desired housing. It is important to note that when evaluating this type of claim, the availability of other housing within the community that might otherwise provide an accommodation to the disabled individual is irrelevant to the Court's consideration.20 In other words, the County would be unable to defend this element of a reasonable accommodation claim on the ground that there are other houses within the community that might also accommodate the Browns' son. Tuming to the substance of this element, in order to prevail, the Browns would have to show that the accommodation that they are requesting, i.e., permission for their son to live in the downstairs enclosure, "actually alleviates the effects of the handicap."Z1 Stated differently, the requested accommodation must "address the needs created by the handicaps" and no more for if the accommodation goes "beyond addressing the needs and starts addressing problems not cause by a person's handicap, then the handicapped person would receive not an 'equal', but rather a better opportunity to use 20 544 F.3d at 1225-6. 21 Id at 1226. N position taken by the [County] decision -makers themselves or by those to whom the decision -makers were knowingly responsive.' Once plaintiffs make out a prima facie case, then defendants must provide a legitimate, nondiscriminatory reason for their decision. Finally, the burden returns to plaintiffs to prove that they were intentionally discriminated against on a prohibited ground, which may occur via a substantial showing that defendants' proffered explanation was false or pretextual. Factors that may be considered in evaluating an intentional discrimination claim include '(1) the discriminatory impact of the governmental decision; (2) the decision's historical background; (3) the specific sequence of events leading up to the challenged decision; (4) departures from the normal procedural sequences; and (5) departures from normal substantive criteria."26 Given that the floodplain management ordinances are being applied across the board without regard to disability status, it is difficult to imagine how a claim for disparate treatment or intentional discrimination could be made in good faith. Even if the Browns were to honestly believe and therefore allege that the County's actions were the result of animus on the part of the County or public speakers at the variance hearing27 towards their son based on his disability, the County's reliance on FEMA's minimum standards and technical guidance documents clearly provides a non- pretextual basis for denying the requested variance. On balance, it appears that the Browns could state at least one if not two causes of action under the FHAA and/or the ADA. While it is far from certain that they would 26 Quad Enterprises, 369 Fed.Appx. at 206 (citations omitted). 27 Many of the ADA and FHAA cases arising from zoning disputes involve the location of drug rehabilitation centers or similar facilities which draw neighborhood opposition, a factor not experienced nor expected to be raised in the instant matter. See generally, Schwarz, supra, Wisc. Comm. Serv., supra., Tsombanidis, supra, and A Helping Hand, LLC v. Baltimore County, 515 F.3d 356 (0 Cir. 2008). unless the Browns could articulate a different constitutionally protected right. If the claim alleged only requires rational basis review, the Browns would have a difficult time prevailing on such a claim. If they can allege a claim involving a constitutionally protected right to which the Court would be required to apply a strict scrutiny analysis, the variance ordinance would have to "serve a compelling state interest through the least intrusive means possible.0,34 Another source for a possible claim is the Florida Fair Housing Act (FFHA), which prohibits discrimination on the basis of disability, inter alia, in land use decisions at F.S. 760.26. Although there are no reported decisions interpreting the meaning of F.S. 760.26, one can reasonably expect it to be interpreted similar to the Federal Fair Housing Amendments Act since the Florida Fair Housing Act essentially codifies the Federal statute into state law.35 In sum, the Browns could conceivably allege claims beyond the traditional ones that one might expect under the ADA and the FHAA. Regardless of the defenses to the claim that the County might have, any claim will require a defense, possibly through trial if not appeal. Options: The County Commission has the following options to consider at the variance hearing on September 15, 2010: Deny the variance and likely head to court as the defendant in an action brought by the Browns. 2. Grant the variance and submit it to FEMA for consideration which could result in: s Fla. Dept. of Children & Family Services v. F.L., 880 So.2d 602, 607 (Fla. 2004). Dornbach v. Holley, 854 So.2d 221, 223 (Fla. 2d DCA 2002). 11 Recommendation: The County Attorney recommends that the BOCC hold the hearing to take testimony of the Browns and the other witnesses they would like to offer and then continue the hearing thus deferring ruling on the matter until the informal discussions with FEMA's general counsel's office can be concluded. At that point, if FEMA indicates that it will penalize the County if it does not rescind the variance, consider filing a declaratory judgment action in Federal court. 13 C UNTY So�19NROE KEY WESTDA 33040 (305) 294-4641 Suzanne A. Hutton, County Attorney** Robert B. Shillinger, Chief Assistant County Attorney Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney Cynthia L. Hall, Assistant County Attorney Christine Limbert-Barrows, Assistant County Attorney Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law Memo BOARD OF COUNTY COMMISSIONERS Mayor SyMa I Murphy, District 5 Mayor Pro Tern Heather Carruthers, District 3 Kim Wigington, District 1 George Neugent, District 2 Mario Di Gennaro, District 4 Office of the County Attorney 1111 I Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 -- Fax To: File From: Bob Shillinger Date: November 4, 2010 Re: Brown floodplain variance memo dated September 14, 2010 This memo has been drafted to correct a factual error in the September 14, 2010 memorandum that I authored regarding the Brown's application for a floodplain variance. On page 3, the figure "$3.6 billion" in the first sentence should be corrected to read "$387,933,920". The $3.6 billion figure is the amount of benefits paid for the entire State of Florida under the NFIP. The first sentence on page 3 should read: Since 1978, NFIP policyholders in Monroe County have received in excess of $387,933,920 in benefits under their policies." 3 The County Commissioners was made aware of this correction prior to the September 15, 2010 hearing via an email I sent on September 14, 2010. 3See FEMA NFIP Policy and Claims Report for Monroe County, Florida dated 5/6/10. Federal Emergency Management Agency Federal Insurance & Mitigation Division Region IV 3003 Chamblee -Tucker Road Atlanta, GA 30341 FEMA GUIDELINES FOR LOCAL VARIANCE AND APPEAL BOARDS In circumstances where compliance requirements set out in a community's regulations pose an exceptional hardship, the community may, after examining the applicant's hardship, approve or disapprove a request for variance. Although FEMA does not set forth absolute criteria for granting variances from the provision of Title 44, CFR, §60.3, 60.4, and §60.5, the following general standards have been established in §60.6 (a): 1. An applicant has good and sufficient cause for requesting a variances; 2. An applicant will suffer exceptional hardship should a variance be denied; 3. A variance will not cause increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; and 4. A variance is the minimum necessary, considering the flood hazard, to afford relief. The granting of variance is a local decision that must be based on local ordinance, NFIP regulations, State law, and any other provisions the community may wish to require. The Nature of the Variances A variance represents a community's approval to set aside floodplain regulations that it adopted to reduce the loss of life and property damage due to flooding. While the impact of a single variance on a flood hazard may not be significant, the cumulative impact of several variances may be severe. The NFIP variance criteria are based on the general principal of zoning law that variances pertain to a piece of property and are not personal in nature. Though standards vary from State to State, in general a properly issued variance is granted for a parcel of property with physical characteristics so unusual that complying with the ordinance would create an exceptional hardship to the applicant or the surrounding property owners. Those characteristics must be unique to that property and be shared by adjacent parcels. The unique characteristics must pertain to the land itself, not to the structure, its' inhabitants, or the property owners. A variance should be considered on an individual, case -by -case, basis and never on a multi -lot or subdivision basis. Examples of the kinds of characteristics that might give rise to a hardship that might justify a variance to certain other building or zoning ordinances would include an irregularly shaped lot, a parcel with unstable soils, or a parcel with an unusual geologic condition below the ground surface. It is difficult, however, to imagine any physical characteristic that would give rise to a hardship sufficient to justify a variance to a flood elevation requirement. A frequently encountered example is the case of a very small undeveloped lot surrounded by lots on which buildings have been constructed at grade, and an ordinance that requires new structures be constructed at a level several feet above grade. If the owner were to elevate on fill, the lot might drain onto neighboring property. In this case, the size of the lot and its' status as the only undeveloped lot in the vicinity are characteristics that could result in a hardship. However, this situation still probably would not warrant a variance because, as discussed below, the owner does not face an exceptional hardship since there are many ways to alleviate the drainage problem (elevation on pilings or a crawl space, grading the fill to drain away from adjoining properties, etc.). Our manual, Elevated Residential Structures and the USACE Floodproofing Systems and Techniques, illustrate ways in which various site -specific problems can be overcome when designing and building structures that must be elevated. Individual Hardship vs. Community Goals In determining whether or not an applicant has established an exceptional hardship sufficient to justify a variance, the local board weights the applicant's hardship against the purpose of the ordinance. In the case of variances from a flood elevation requirement, this would mean asking which variance is more serious: the hardship that this individual applicant would face, or the community's need for strictly enforced regulations that protect its citizens from the danger and damages of flooding? Only a truly exceptional, unique hardship on the part of an individual applicant would persuade local officials to set aside provisions of an ordinance designed to with the whole community's safety in mind. The hardship might not have to be so severe if the applicant were seeking a variance to a setback ordinance, for instance, which was intended merely to simplify street repair and modifications. In the course of considering variances to flood protection ordinances, however, local variance and appeals boards must face the more difficult task of frequently having to deny requests from applicants whose personal circumstances evoke compassion, but whose hardships are simply not sufficient to justify deviation from community -wide flood damage prevention requirements. Hardship — Title 44, CFR, 4 60.6(a) (3) (ii) +4 CFR Section 60.6(a)(3)(ii) states that "Variances shall only be issued by a community upon a determination that failure to grant the Variance would result in exceptional hardship to the applicant." The hardship that would result from failure to grant a requested variance must be exceptional, unusual, and exclusive to the property involved. Mere economic or financial hardship alone is not exceptional. Inconvenience, aesthetic considerations, physical handicaps, personal preferences, or the disapproval of one's neighbors likewise cannot qualify as exceptional hardships. All of these problems can be resolved through other means without granting a variance. This is so, even if the alternative means are more expensive or complicated than building with a variance, or if they require the property owner to put the parcel to a different use than originally intended, or to build his or her home elsewhere. For example, a situation in which it would cost a property owner several thousand dollars more to elevate a house to comply with the ordinance and an additional several thousand to build a wheelchair ramp or an elevator to provide access to that house for a handicapped member of the family at first glance seems like the sort of problem that could be relieved by variance. 2of10 However, while financial considerations are always import to property owners, and the need of the handicapped person certainly must be accommodated, these difficulties do not put this situation in the category of "exceptional hardships" as they relate to variances. This is because: 1. The characteristics that result in the hardship are personal (the physical condition and financial situation of the person proposing to live on the property) rather than pertaining to the property itself. 2. The problem of day-to-day access to the building can be alleviated in any one of a number of ways (going to the additional expense of building ramps or an elevator), without granting a variance. 3. The situation of handicapped persons occupying flood -prone housing raises a critical public safety concern. If a variance is granted and building is constructed at grade, it will be critical that the handicapped or infirmed person evacuate when floodwaters begin to rise. Even though he or she may be helpless to do so alone. Not only does this pose an unnecessary danger to handicapped persons but it also places extra demand on the community's emergency services personnel who are called upon and placed at risk during rescue. In contrast, if the building is properly elevated, the handicapped person can still be evacuated if there is sufficient warning and assistance available. If there is not, that person can, in all likelihood, survive the flood simply by remaining at home safely above the level of the floodwaters. More simply, the property owner's difficulties would not really be relieved by the variance, more likely only postponed, and perhaps ultimately increased. It would be more prudent over the long run for both the property owner and the community, if the variance were denied and the home built at the proper elevation with handicapped access. This will ensure the safety of all family members when floodwaters rise and protect the individual and community investment in the property, as discussed below. Public Safety and Nuisances — Title 44, CFR, 00.6 (a) (3) (iii) Variances must not result in additional threats to public safety or create nuisances. As mentioned above, local flood damage prevention ordinances (including elevation requirements) are intended to help protect the health, safety, well-being, and property of the local citizens. This is a long- range community effort usually made up of a combination of approaches such as adequate drainage systems, warning and evacuation plans, and participating in the NFIP. These long-term goals can only be met if exceptions to the laws are kept to a bare minimum. Fraud and Victimization — Title 44, CFR, §60.6 (a) (3) (iii) Properly granted variances must not cause fraud on or victimization of the public. In examining this requirement, local boards should consider the fact that each new structure adds to local government responsibility and remains a part of the community for the life of the structure. Structures built below the base flood elevation are subject to the increased risk of damage from floods, while future owners of the property and the community as a whole are subject to all costs, inconvenience, danger, and suffering that those increased flood damages bring. In addition, 3of10 future owners may purchase the property, unaware that it is subject to potential flood damages, and can be insured only at very high flood insurance rates. Minimum Necessary to Afford Relief — Title 44, CFR, § 60.6 (a) (4)) The variance that is granted should be for the minimum deviation from the local requirements that will still alleviate the hardship. In the case of variances to an elevation requirement, this means the board should not grant permission for the applicant to build at grade. Insurance Rates — Title 44, CFR, § 60.6(a)(5) While the building standards in a local ordinance may be altered by means of a variance, the flood insurance purchase requirement, which must be enforced by lending institutions, cannot be waived and thus may create severe financial consequences for the property owners. Insurance rates for structures build below BFE can be substantially higher than those for elevated structures. In many instances, the rates will be so high as to make the structure essentially uninsurable because the owners cannot afford the premium. This may not matter to the original owner who applied for the variance in the first place, but it may matter a great deal to subsequent potential owners. The potential buyer might be forced to forgo purchase of the property. Subsequent owners may not find buyers because of the high insurance rates, or the community may finds it has a large number of un-salable houses. In addition, if the property is not insured and cannot be insured due to high actuarial rates, there may be no funds available to repair the structure if seriously damaged by flood. Even disaster loans may not be obtainable if the flood insurance coverage required as a condition of the loans was available only at very high rates. The result may be that the present owner or a future owner may chose to abandon the damaged house rather than repair it since the damages may exceed the equity in the house. The local government and/or the holder of the mortgage are than left with the problem of one or more vacant, flood -damaged, and essentially uninsurable houses. Technical Staff Assistance In considering variances, the variance board should utilize local technical expertise and recommendations from the Building Department, Planning and/or Zoning Department, Engineering Department, etc. The local technical staff should consider alternatives available such as relocation of the structure on the lot, slope or fill, retention walls, proper drainage away from adjoining structures, and other less drastic variances such as set back or lot coverage variances as previously mentioned elsewhere in this guideline and in other publications. Summary Because the duty and need of local governments to help protect their citizens from flooding is so compelling, and the implications of the cost of insuring a structure built below flood level are so serious, variances from the flood elevation or from other requirements in the flood ordinance should be quite rare. This is why the NFIP variance guidelines at §60.6 are so detailed and contain multiple provisions that must be met before a variance can be properly granted. The criteria are designed to screen out those situations in which alternatives other than a variance are more appropriate. It is not surprising that, when these publications are followed, very few situations qualify for a variance. 4of10 REFERENCE - 44 CFR §60.6 [Code of Federal Regulations] [Title 44, Volume 1] [Revised as of October 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 44CFR60.6] [Page 260-262] TITLE 44--EMERGENCY MANAGEMENT AND ASSISTANCE CHAPTER I --FEDERAL EMERGENCY MANAGEMENT AGENCY, DEPARTMENT OF HOMELAND SECURITY PART 60--CRITERIA FOR LAND MANAGEMENT AND USE --Table of Contents Subpart A --Requirements for Flood Plain Management Regulations Sec. 60.6 Variances and Exceptions. (a) The Administrator does not set forth absolute criteria for granting variances from the criteria set forth in Sec. 60.3, 60.4, and 60.5. The issuance of a variance is for flood plain management purposes only. Insurance premium rates are determined by statute according to actuarial risk and will not be modified by the granting of a variance. The community, after examining the applicant's hardships, shall approve or disapprove a request. While the granting of variances generally is limited to a lot size less than one-half acre (as set forth in paragraph (a)(2) of this section), deviations from that limitation may occur. However, as the lot size increases beyond one-half acre, the technical justification required for issuing a variance increases. The Administrator may review a community's findings justifying the granting of variances, and if that review indicates a pattern inconsistent with the objectives of sound flood plain management, the Administrator may take appropriate action under Sec. 59.24(b) of this subchapter. Variances may be issued for the repair or rehabilitation of historic structures upon a determination that the proposed repair or rehabilitation will not preclude the structure's continued designation as a historic structure and the variance is the minimum necessary to preserve the historic character and design of the structure. Procedures for the granting of variances by a community are as follows: (1) Variances shall not be issued by a community within any designated regulatory floodway if any increase in flood levels during the base flood discharge would result; (2) Variances may be issued by a community for new construction and substantial improvements to be erected on a lot of one-half acre or less in size contiguous to and surrounded by lots with existing structures constructed below the base flood level, in conformance with the procedures of paragraphs (a) (3), (4), (5) and (6) of this section; (3) Variances shall only be issued by a community upon (i) A showing of good and sufficient cause, (ii) A determination that failure to grant the variance would result in exceptional hardship to the applicant, and (iii) A determination that the granting of a variance will not result in increased flood heights, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances; (4) Variances shall only be issued upon a determination that the variance is the minimum necessary, considering the flood hazard, to afford relief; (5) A community shall notify the applicant in writing over the signature of a community official that (i) The issuance of a variance to construct a structure below the base flood level will result in increased premium rates for flood insurance up to amounts as high as $25 for $100 of insurance coverage and (ii) Such construction below the base flood level increases risks to life and property. Such notification shall be maintained with a record of all variance actions as required in paragraph (a)(6) of this section; and (6) A community shall (i) Maintain a record of all variance actions, including justification for their issuance, and (ii) Report such variances issued in its annual or biennial report submitted to the Administrator. (7) Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided that (i) The criteria of paragraphs (a)(1) through (a)(4) of this section are met, and (ii) The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. (b) (1) The requirement that each flood -prone, mudslide (i.e., mudflow)-prone, and flood - related erosion prone community must adopt and submit adequate flood plain management regulations as a condition of initial and continued flood insurance eligibility is statutory and cannot be waived, and such regulations shall be adopted by a community within the time periods specified in Sec. 60.3, 60.4, or Sec. 60.5. However, certain exceptions from the standards contained in this subpart may be permitted where the Administrator recognizes that, because of extraordinary circumstances, local conditions may render the application of certain standards the cause for severe hardship and gross inequity for a particular community. Consequently, a community proposing the adoption of flood plain management regulations which vary from the standards set forth in Sec. 60.3, 60.4, or Sec. 60.5, shall explain in writing to the Administrator the nature and extent of and the reasons for the exception request and shall include sufficient supporting economic, environmental, topographic, hydrologic, and other scientific and technical data, and data with respect to the impact on public safety and the environment. (2) The Administrator shall prepare a Special Environmental Clearance to determine whether the proposal for an exception under paragraph (b)(1) of this section will have significant impact on the human environment. The decision whether an Environmental Impact Statement or other environmental document will be prepared, will be made in accordance with the procedures set out in 44 CFR part 10. Ninety or more days may be required for an environmental quality 6of10 clearance if the proposed exception will have significant impact on the human environment thereby requiring an EIS. (c) A community may propose flood plain management measures, which adopt standards for floodproofed residential basements below the base flood level in zones Al-30, AH, AO, and AE, which are not subject to tidal flooding. Notwithstanding the requirements of paragraph (b) of this section the Administrator may approve the proposal provided that: (1) The community has demonstrated that areas of special flood hazard in which basements will be permitted are subject to shallow and low velocity flooding and that there is adequate flood warning time to ensure that all residents are notified of impending floods. For the purposes of this paragraph flood characteristics must include: (i) Flood depths that are five feet or less for developable lots that are contiguous to land above the base flood level and three feet or less for other lots; (ii) Flood velocities that are five feet per second or less; and (iii) Flood warning times that are 12 hours or greater. Flood warning times of two hours or greater may be approved if the community demonstrates that it has a flood warning system and emergency plan in operation that is adequate to ensure safe evacuation of flood plain residents. (2) The community has adopted flood plain management measures that require that new construction and substantial improvements of residential structures with basements in zones A 1-30, AH, AO, and AE shall (i) Be designed and built so that any basement area, together with attendant utilities and sanitary facilities below the floodproofed design level, is watertight with walls that are impermeable to the passage of water without human intervention. Basement walls shall be built with the capacity to resist hydrostatic and hydrodynamic loads and the effects of buoyancy resulting from flooding to the floodproofed design level, and shall be designed so that minimal damage will occur from floods that exceed that level. The floodproofed design level shall be an elevation one foot above the level of the base flood where the difference between the base flood and the 500-year flood is three feet or less and two feet above the level of the base flood where the difference is greater than three feet. (ii) Have the top of the floor of any basement area no lower than five feet below the elevation of the base flood; (iii) Have the area surrounding the structure on all sides filled to or above the elevation of the base flood. Fill must be compacted with slopes protected by vegetative cover; (iv) Have a registered professional engineer or architect develop or review the building's structural design, specifications, and plans, including consideration of the depth, velocity, and duration of flooding and type and permeability of soils at the building site, and certify that the basement design and methods of construction proposed are in accordance with accepted standards of practice for meeting the provisions of this paragraph; (v) Be inspected by the building inspector or other authorized representative of the community to verify that the structure is built according to its design and those provisions of this section, which are verifiable. 7of10 [41 FR 46975, Oct. 26, 1976. Redesignated at 44 FR 31177, May 31, 1979, as amended at 48 FR 44543 and 44552, Sept. 29, 1983; 49 FR 4751, Feb. 8, 1984; 50 FR 36025, Sept. 4, 1985; 51 FR 30308, Aug. 25, 1986; 54 FR 33550, Aug. 15, 1989] 8of10 ADDITIONAL REFERENCE The authority to award variances is limited. Administrative boards are restricted in providing relief within the review standards contained in the regulation. They are not empowered to change the ordinance or grant variances. • Such actions are misuse of authority, injurious to property owners, and an affront to community regulatory and planning efforts. The Standard State Zoning Enabling Act prepared by the U. S. Department of Commerce in 1926 has served as the basis of many State -enabling acts. The standards for grating variance contained in the 1926 model have been copied by many States, as well. The concept of "unnecessary hardship" is the cornerstone of all variance standards, and is widely used through the country in limiting the granting of variances. Defined as: • Loss of all beneficial or productive use • Deprivation of reasonable return on property • Deprivation al all or any reasonable use • Rending property valueless • Inability to develop property in compliance with the regulations • Reasonable use cannot be made consistent with regulations The applicant has the burden of proving an unnecessary hardship. The proof must be compelling and reasons for granting the variance substantial. A variance is a waiver of one or more of the specific standards required in ordinance. Concerning the floodplain ordinances, variance requests should be considered very carefully. It is possible that FEMA's enforcement action could result in placing the community on probation or being suspended from the NFIP for issuing excessive variances. This would result in the loss of flood insurance for the entire community. When a variance is granted, the local administrator must provide written notification to the applicant that a project granted a variance is not exempt from the insurance requirements. In some instances, a variance may result in increased insurance premium rates that could go as high as $25 per $100 of coverage and increased risk to life and property. Variance Records - Title 44 CFR � 60 6(_a) (6) The community shall maintain records and report all variance actions to FEMA as requested and/or as a part of the biennial report. The records should, at a minimum, include the variance action, board justification, and property owner notification. Functionally Dependent Structures - Title 44 CFR § 60 6(a) (7) Variances may be issued by a community for new construction and substantial improvements and for other development necessary for the conduct of a functionally dependent use provided: (i) The criteria of paragraphs (a)(1) through (a)(4) of this section are met, and The structure or other development is protected by methods that minimize flood damages during the base flood and create no additional threats to public safety. 10 of 10 0 c m (Avn0000 m A- mi►'m0 0 0 0 T w S a O 3 o e zm n .. n z m °00 o C O O O Z wt C _ cr V � y y Ofi to r4 ca + V wwm -A+ CI V t" A O 0 00 aV - 46 to -4 O _W en p44 N� � Ol A WIg. OVI pppp 0 0 0 0 0 0 0 Co m N M N (R V+ 0 ..8 la~ - fREr (O OI CD ? t� m cn Iny N C qco- O i i W W OI V O -► �3 m M W t� VV N W W fA i � A N I� ' L J 1p W �71 Go G) O ..► N 41 W W Co f0 01in 40 V A OI �p 01 B 01 l•P� ED CitJ.zens Not Serf s Downstairs Enclosures Principles and Goals Citizens Not Serfs aims to improve the liver of Monroe County cititens by reducing the burden placed on our community by FEMA and our local government. The following principles guide our efforts as we seek to achieve the goals below. Princiules 1) Monroe County should remain in FEMA's Flood Insurance Program — Citizens Not Serfs recognizes and appreciates the benefits of the National Flood Insurance Program ("NFIP'D. Flood insurance protects homeowners from suffering significant losses caused by hurricanes and other natural disasters and FEMA plays an essential role in any cleanup. However, Monroe County's participation in the NFIP should be an overall benefit to the community and not threaten the Keys' unique character. 2) Unincorporated Monroe County should be treated the same as the incorporated parts of the county and all other similarly situated communities participating in the National Flood Insurance Plan — Monroe County is in substantial compliance with FEMA requirements and is on par with many other communities. Its citizens should not be subjected to harsher treatment. The Pilot Inspection Program should be terminated and Monroe County should return to being governed by the same regulations as every other NFIP participant. 3) Citi.Zens who followed the lain should not be punished — Until 1986, Monroe County granted building permits for downstairs enclosures that were later found to be noncompliant with FEMA regulations. And until the mid-90s, Monroe County collected taxes on the value of nonconforming enclosures without demanding any corrective action, thus implicitly authorizing their use. The county can not now dust off old, unused regulations to penalize law-abiding citizens for their government's failure. 4) Elderly, disabled, and low and middle income citizens must be protected — The current Pilot Program has disproportionately impacted the elderly and disabled, as well as low and middle income citizens whose home values have plummeted and have seen jobs disappear. Any solution must protect these at -risk populations. 5) Innocent purchasers should not be forced to pay for someone else's mistakes — Many of the nonconforming downstairs enclosures in Monroe County are owned by people who purchased their homes without reason to know of FEMA's problems with these downstairs enclosures. They are now being punished without warning for the sins of a previous owner. These innocent purchasers should not be punished for someone else's mistake. 6) Citi.Zens have a rigbt to improve their homes without fear of downstairs enclosure -related code enforcement — Anytime a building permit is requested, Monroe County officials will inspect the home to see if there is a nonconforming downstairs enclosure, regardless if the planned construction has anything to do with downstairs enclosures. As a result, many Monroe County citizens cancel planned construction — including necessary construction to improve the safety of their home — or hire unlicensed contracts, both of which hurt our local construction industry and threaten the safety of the community. This ordinance was created by Monroe County officials and was not required by FEMA. Accordingly, the Monroe County Board of County Commissioners should change this ordinance so residents can improve their homes without fear of reprisal. 7) Any new policy should be based on the best evidence — All evidence suggests that the current pilot inspection program has been a disaster for Monroe County. However, neither FEMA nor the county government has conducted any official evaluation of the program's impact. Before attempting to create a new inspection regime that makes Monroe County a permanent outlier, economic and programmatic analysis should be carried out on the current program so we can best decide how to fix its problems. Goals 1) Keep Monroe County in FEMA's National Flood Insurance Program. 2) Terminate the Pilot Inspection Program and have Monroe County be treated like every other NFIP community. 3) Ensure that no new nonconforming downstairs enclosures are built. 4) Protect innocent purchasers and those citizens who relied on explicit or implied government permission in building their downstairs enclosures. 5) Make special accommodations for the elderly, disabled, and low and middle income residents to ensure they can stay in their homes and enjoy the full use of their property. 6) Allow safe, licensed construction to proceed without fear of reprisal. 7) Identify sources of funding to help homeowners improve the flood safety of their homes. 2