Item L17BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: January 28, 2009
Bulk Item: Yes No X
Division: BOCC
Department: Commissioner Di Gennaro
Staff Contact Person #: Tamara Lundstrom
305 289-6000
AGENDA ITEM WORDING: Discussion and Board authorization of a written request to FEMA
introducing Resolution #513-2008 and requesting a meeting following the next BOCC Regular
meeting on February 18, 2009. Letter from BOCC will be accompanied by letters of support
from Congresswoman Ileana Ros-Lehtinen and State Representative Ron Saunders. County
staff is asked to compile revised implementation options and work with interested parties, as per
the aforementioned resolution, for BOCC approval to propose to FEMA by the next BOCC
meeting. A formal meeting with FEMA will not occur until that time.
ITEM BACKGROUND: The County, in response to FEMA's mandate in 2000 to implement
permanent compliance policies, subsequently in 2002 approved a three-part inspection program which
was accepted by FEMA. Many of the affected properties with downstairs enclosures have changed
ownership several times over the years and current owners in these very difficult economic times are
facing major expenses and loss of property values in meeting the FEMA code requirements of the
Monroe County NFIP Pilot Program.
PREVIOUS RELEVANT BOCC ACTION: The BOCC approved Resolution #513-2008 on
December 17, 2008 supporting beginning negotiations with FEMA to find resolutions to hardships
faced by property owners with downstairs enclosures converted to living space.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
TOTAL COST: INDIRECT COST: BUDGETED: Yes No
COST TO COUNTY:
REVENUE PRODUCING: Yes _ No
APPROVED BY: County Atty
DOCUMENTATION: Included
DISPOSITION:
Revised 1 /09
SOURCE OF FUNDS:
AMOUNT PER MONTH Year
OMB/Purchasing
Not Required
Risk Management
AGENDA ITEM #
Commissioner DiGennaro
RESOLUTION NO. 513-2008
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA, AFFIRMING SUPPORT FOR
RENEGOTIATIONS WITH THE FEDERAL EMERGENCY
MANAGEMENT AGENCY REGARDING THEIR PILOT
INSPECTION PROGRAM FOR DOWNSTAIRS ENCLOSURES,
WHEREAS, on the 20th day of March 2002, the Board of County Commissioners
("BOCC") passed and adopted Resolution #115-2002 approving the Flood Insurance Inspection
and Compliance Implementation Plan; and
WHEREAS, the BOCC adopted Resolution No. 187-2002 in order to address FEMA's
response to Resolution No. 115-2002 requiring the County to pursue State legislation to alter
the four year statute of limitations on code enforcement of violations of land use regulations
(particularly floodplain); and
WHEREAS, Resolution No. 187-2002 committed to the efforts for statutory change
and to inspections of dwellings with restrictive covenants; and
WHEREAS, the BOCC approved Resolution No. 152-2003 to amend Resolution No.
187-2002 after efforts for statutory change were unsuccessful and to adopt a Revised
Implementation Plan for the flood insurance inspections & compliance, and included
commitments for inspections, vigorous code enforcement of violations, and working to change
the floodplain regulations such as, for example, to allow expansion of elevated portions of non-
conforming structures if there was an engineer certification the non -conforming part of the
structure would not increase potential for structural damage to conforming parts of the
structure; and
WHEREAS, the FEMA Regional Director in a letter dated March 23, 1998, responded
in the negative to many of the Monroe County Citizens Task Force recommendations; and
WHEREAS, approximately ten years have passed since the Citizens Task Force made
recommendations such as changes in the permitted uses, sizes, and construction standards for
permittable downstairs enclosures, resulting in residents of fewer years being unaware of the
efforts which were previously expended on this issue and desiring to re -address it; and
WHEREAS, the County will not take any actions, without expressed written consent by
FEMA ("FEMA"), that would compromise the county's standing in the National Flood
Insurance Program; and
WHEREAS, the County will continue to honor all components of the Final Rule
published in the Federal Register on June 27, 2000 by the Federal Emergency Management
Agency: 44 CFR Parts 59 and 61 National Flood Insurance Program (NFIP); Inspection of
Insured Structures by Communities, Final Rule; and the County commitments under Resolution
No 152-2003; and
FEMA inspxn Prog Res 12-17-8
WHEREAS, the County will continue to administer, implement and enforce all
components of its Floodplain Management Ordinance, Sections 9.5-315, 9.5-316 and 9.5-317,
Monroe County Code; and
WHEREAS, given the many economic hardships homeowners are experiencing both in
Monroe County and nationwide, the BOCC wishes to resume dialogue with FEMA to establish
a better solution to the pre-existing problem of structures below the Base Flood Elevation
("BFE") which is less financially abrasive to homeowners and more conducive to recognizing
and appreciating current economic conditions; and
WHEREAS, Congresswoman Ileana Ros-Lehtinen and State Representative Ron
Saunders have pledged support to work with the BOCC in facilitating dialogue with FEMA
officials to meet a better resolution for all affected parties; now, therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA:
Section 1. The BOCC reaffirms its gratitude in recognition for all the benefits the
County receives as a participant in the NFIP.
Section 2. The BOCC affirms support for renegotiations with FEMA regarding their
Pilot Inspection Program for Downstairs Enclosures.
Section 3. The BOCC directs appropriate County staff to work in conjunction with
FEMA, DCA, and other interested agencies, and to gather public input via a series of meetings,
at least 1 in each of the 3 major areas of the Keys, to develop a revised inspection and
compliance program that will continue to safeguard the community's participation in the NFIP
while offering a better remedy to addressing downstairs enclosures constructed after January 1,
1975.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, : }
Florida, at a regular meeting of said Board held on the 17th day of December, 2008
Mayor George Neugent
Mayor Pro Tern Sylvia Murphy
Commissioner Heather Carruthers
Commissioner Mario DiGennaro
Commissioner Kim Wigington
By:7'
Depu Clerk
FEMA Inspxn Prog Res 12-17-5
Yes
Yes
e��
Yes
Y C.9
BOARD OF COUNTY COMMISSIONERS OF
MONK COUNTY, FLORIDA
CIQlwy: 4. �)4-44,5
Mayor George Neugent
MONROE COUNTY ATTO EY
APP OVED AST M:
S ZAN E A. UTTON
COUNTY ! 77�R�pFy
MEMORANDUM
MONROE COUNTY GROWTH MANAGEMENT DIVISION
We strive to be caring professional and fair
To: Mayor Mario Di Gennaro
1e. ss
From: Andrew Omer Trivette
Growth Management Division Director
AilDate:
October 31, 2008am+
RE: Permitted Downstairs Enclosure Improvements
The intention of this memorandum is to provide clarification of the County's policy
regarding permitted downstairs enclosure improvements as they relate to the National
Flood Insurance Inspection Program.
Early into the County's participation in the National Flood Insurance Program and
implementation of the Flood Damage Prevention Ordinance in January 1, 1975 the
County authorizdd construction and uses in the downstairs enclosures that were not in
compliance with the codified federal regulations. The County was ordered to cease and
desist this practice, and did so. The County did not require compliance for any use or
construction authorized by benefit of a permit, and on April 13, 1999 the County entered
into a settlement agreement with that provision. FEMA acquiesced that given the
practical and legal constraints of the settlement agreement the County would not have to
require compliance for anything previously authorized by a permit.
In summary, Monroe County issued building permits authorizing the construction of
downstairs enclosures with improvements beyond what was authorized by the codified
federal regulations. While this is no longer the practice of the County, we do recognize
the validity of those authorizations, as does FEMA. If one of those approved enclosures
requires an inspection and is found to be compliant with the original approval, it will be
allowed to remain as permitted.
Page I ot• 2
Lundstrom-Tamara
From: Trivette-Andrew
Sent: Thursday, July 24.. 2008 6:29 PM
To: County Administrator; County Attorney; County Commissioners and Aides. Growth Management
Subject: Fema Inspection Program Information
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Inogtalo plan and tilt rt,ultant late stal t Hatt fill- in-sprttion,
1'Ita,'. ht ;m;u-t' that tilt In o"l and ,inlpl\ alit')\, flit FIE,\1.\ ;lsslstanrl- in iraclliml; sul,stautial cotnpli;ultr With utn r\i,tin
dil%N mlt;tll, rat lu,urt,' \1 t t illtntl\ ImI114 ipatr In flutt, t\'prs of inspl.t6)II,
III,Iu't tl()It 1'114Ill ti;tll' .AII lll,ptttltnl Is 11]1IJattvl 1) It Afollrt)l. ( multV' ;It all oN llt'I, 1-1twNt vvlltll a pl oprrly
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n;mrn .
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l'rtltlr'tttl h\ till- llt,lltallcv (•olllpall\' to IN• ;it 1-I-d ollt: 1)� Main or Cmiltt\ cflahhlll� contlllllod I)ollt 1'
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phn d,•tallttl till.;lrtioll, Nlt�urot Cotml[N would tal.r to rmsurt',trio tomlpliautr with trlltral rc't;uhition' Ic"illdin" hclttvv
hitsr flood tlt\alum t on,u utntul. It 1, \I t\' inlluu taint to it,diit, thal tht,t t\\o t\pt, ofin,ptttiou' \\ill Ilitt eiltl with
III rail') rnuy)Icfion in 2tlufl .\ Itttrr fitun 11':\I \ ill Jan of 21n) � inditatrtl that it \\t lailttl Ill iuitialiit pl-rnrultut
urfnl)lianrt in'pt" tion nu thotltllo its \\t \\wind Ix ul]nit'diatt•I\ plated (Ili Iuoh;uion it `' status \\Itln11 flu' provraml.
['hr othrl nunlik-Tahtirs I vtti', ttl similar rortt,,pondrnrt antf iIIItiatttI the ,;.unt IIIt-thodolot,ir, to leach conlphatct . Till-
onl\' difttrrntl-, \\rl r tilt' numlhrt of Will, \\ Milli nrrtlrtl iflsptctinlf to }it, ('twilit and the sf;m-t Matt' \lost of tilt,
InIllIWipalitits ,t;lrti'd tilt prol;r;tu on tiler. Him t\ tl , oil iufi)rnlatiolt indicate' that Marathon has not toulplrted tier
mlitial in'pectinn pha,l.
I'Itase tall lilt a ith an% tlur.,tiolls.
10.129. 2008
Page 1 of 1
Lundstrom-Tamara
From: Shillinger-Bob
Sent: Friday, May 27, 2005 4:17 PM
To: zz-County Commissioners and Aides
Cc: zz-County Administrator; McGarry -Tim; Conaway -Marlene; Paskalik-Joe; Norman -Ronda;
Bair -Dianne; Collins -John; Grimsley-Susan; Hutton -Suzanne; Mercado -Pedro
Subject: Judge Payne's decision in LaTorre overruled.
Attachments: Sarasota County v. National City Bank of Cleveland.pdf
Mayor Spehar & Commissioners:
The Second District Court of Appeals effectively overruled Judge Payne's decision in LaTorre v. Monroe County
in the opinion which I have attached and highlighted for your review. As you will see in the highlighted section in
the main body of the opinion, the Court specifically observed that the LaTorre decision was incorrectly decided
when Judge Payne applied chapter 95's civil statute of limitations to an administrative proceeding such as code
enforcement.
Under Florida Law, a ruling of a District Court of Appeal is binding in all courts of the state unless overruled by the
Supreme Court of Florida or if another DCA has issued a conflicting opinion. Since no other DCA nor the
Supreme Court has addressed this issue, the Second DCA's opinion is controlling unless and until an
administrative statute of limitations is adopted.
The County has legislatively created a statute of limitation in section 6.3-14(a) of the Code, which would still
operate except on the issue of below base flood elevation (i.e. downstairs enclosures) which a prior Board
previously exempted from 6.3-14 (presumably under an agreement with/direction from FEMA). In short, under
the law as it stands as of the date of the opinion (May 13, 2005), code enforcement action could be
brought against property owners of downstairs enclosures which are older than 4 years of age but not for
any other violation of the county code.
Bob Shillinger
Assistant County Attorney
Monroe County Attorney's Office
P.O. Box 1026
Key West, FL 33041-1026
(305) 292-3470
(305) 292-3516 (fax)
Please note: Florida has a very broad public records law. Most written communications to or from the County
regarding County business are public records available to the public and media upon request. Your e-mail
communication may be subject to public disclosure
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Replyto:
90311 Overseas Highway, Suite A
Post Office Box 699
Tavernier, FL 3307o
305/853.1947
203 House OHlce Building
402 South Monroe Street
Tallahassee, FL 32399.13oo
850/488.9965
ton.saundws®nlyHoridalumse.gov
COYObri
Democratic Ranking Member
Appropriations Council
Legislative Budget Commission
Florida House of Representatives
Ron Saunders
state RepreBeeative, Dlseela IF"
January 27, 2009
Dear Mr. Loar,
I am contacting you as the State Representative for the 120th House District in Florida which
includes all of Monroe County.
The issue regarding your office's PILOT Inspection procedure for downstairs enclosures greatly
concerns many of my constituents and I am writing you to offer my support in finding a better
resolution.
The Board of County Commissioners in Monroe County recently passed a resolution
unanimously calling for renegotiations with your office and our Congresswoman Ileana Ros-
Lehtinen has pledged her support for facilitating a productive dialogue.
Having attended several meeting with the community group Citizens Not Serfs, I have listened
to hundreds of residents throughout the past few months about their hardships regarding
downstairs enclosures and I am very sympathetic to their cause.
As a state legislator, I know this is mainly a federal issue but I will do whatever I can to help and
assist these efforts in working with you.
I hope you favorably consider what the Monroe County Commissioners present to you as
alternatives that can address the concerns of our residents and uphold the basic principles of the
National Flood Insurance Program which are very important and appreciated by this community.
Sincerely,
Ron Saunders I �I
State Representative 1 1
District 120 V
C
UNTYSMONROE
KEY WEST FLORIDA 33040
(305)294-4641
District 4 Office:
9400 Overseas Highway
Florida Keys Marathon Airport
Suite 210
Marathon, FL 33050
Ph: 305 289-6000
Fx: 305 289-4610
Em: boccdis4 monroecoun -fl, ov
Brad Loar, Chief
Community Mitigation Programs Branch
Flood and Mitigation Division
FEMA, Region IV
3003 Chamblee Tucker Road
Atlanta, GA 30341
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tem Sylvia 7. Murphy, District 5
Kim Wigington, District 1
Heather Carruthers, District 3
Mario Di Gennaro, District 4
Dear Mr. Loar,
The Board of County Commissioners of Monroe County, Florida, would like to thank you and your office for the
cooperation you have extended concerning the inspection program for nortc aformmg downstairs enclosures. We are
confident that you recognize that Monroe County has made significant stridesto meet FEMA standards in hope of
achieving full compliance and gaining the best rates possible for residents to receive federally subsidized flood insurance
through the National Flood Insurance Program
Unfortunately, this process has not been without stumbling blocks which have recently been exacerbated by our
nation's current economic conditions. Through the current inspection program, we are prosecuting older homes - - those
that have existed for decades. The impacts of the current process pose great financial difficulties for homeowners, in what
is already an unstable economic climate, relating to costs of inspections, demolitions, devalued homes, etc. Furthermore,
the cost to the county is becoming increasingly demanding especially in consideration of increasing litigation which will
continue to grow as more suits are filed. Many members of our community have reached out not only to us as their county
officials but also to their State Representative and Congresswoman in hopes that all of us can come together and devise a
better solution that can be mutually agreed upon.
On December 17, 2008 the Board of County Commissioners unanimously adopted Resolution #513-2008 (please
see attached). Over the course of the next month, the BOCC will be working in conjunction with county staff and other
interested parties on a revised implementation program to present to your office. We'd like to coordinate a formal meeting,
following our next regular meeting on February 18, 2009, to work with your office and review some of the
recommendations for addressing your concerns while offering a better solution to our homeowners who are facing severe
financial hardships. Please let us know if this is acceptable.
Sincerely,
Mario Di Gennaro, Monroe County Commissioner
Cc: Board of County Commissioners
Roman Gastesi, County Administrator
Drew Trivette, Growth Management Division Director
i/.2 8/oq
#L17
L•I 7