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Item I9BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: July 15, 2009 Division: Growth Management _____________ Bulk Item: Yes x No Department: _ _________ Staff Contact: Andrew O. Trivette AGENDA ITEM WORDING: Discussion and approval of continued exploration of the Downstairs Enclosure Pilot Inspection Program Modification Proposal with both the State of Florida as a partner and with FEMA ITEM BACKGROUND: Pursuant to BOCC direction the Growth Management Division crafted the Downstairs Enclosure Pilot Inspection Program Modification Proposal in the hopes of achieving needed improvements to the current inspection program. These improvements would allow for better local awareness, enforcement and lessen the burden for many of the County’s homeowners subject to the inspection requirement. This proposal is currently in its second and final draft. Mayor Neugent, Commissioner Di Gennaro, and the Growth Management Director presented the proposal to both the Florida Department of Emergency Management and FEMA at a meeting in Orlando, Florida on June 10, 2009. This meeting served as the opening of the discussion to determine if a modification of the program is possible. Currently the proposal is being reviewed by FEMA representatives at the Region IV offices in Atlanta, Georgia as well as FEMA Headquarters in Washington, D.C. The County has requested a follow-up meeting with the parties to review their findings and answer any additional questions. If the follow-up meeting ends in a positive result the Growth Management Division in conjunction with the BOCC will begin the public process of revising the County’s implementation plan. This process will involve several open public meetings as well as an adoption process by the BOCC. PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: n/a _________________________________________________________________________________ STAFF RECOMMENDATIONS: Approval TOTAL COST:BUDGETED: N/A______ Yes X No COST TO COUNTY: SOURCE OF FUNDS: N/A _______________ REVENUE PRODUCING:AMOUNT PER MONTHYear ____ Yes No APPROVED BY: County Atty OMB/Purchasing Risk Management ____ DOCUMENTATION: Included Not Required_____ DISPOSITION:AGENDA ITEM # Ü±©²¬¿·® Û²½´±«®» Ð·´±¬ ×²°»½¬·±² Ð®±¹®¿³ Ó±¼·º·½¿¬·±² Ð®±°±¿´ Ö«²» îìô îððç Ë²·²½±®°±®¿¬»¼ Ó±²®±» Ý±«²¬§ô Ú´±®·¼¿ Ó±²®±» Ý±«²¬§ ¸¿ ¾»»² ¿½¬·ª»´§ »²¹¿¹»¼ ·² ¬¸» Ð·´±¬ ×²°»½¬·±² Ð®±¹®¿³ º±® ±ª»® »ª»² øé÷ §»¿®ô ½±³°´»¬·²¹ ³±®» ¬¸¿² ïôèèé ¾»´±© ¾¿» º´±±¼ ·²°»½¬·±² ¿²¼ ¹¿·²·²¹ ´±½¿´ ¿²¼ º»¼»®¿´ ®»¹«´¿¬·±² ½±³°´·¿²½» º±® èðû ±º ¬¸±» «²·¬ ·²°»½¬»¼ò Ì¸» Ý±«²¬§ °®±°±» ¬¸» ³±¼·º·½¿¬·±² ±º ¬¸» °®±¹®¿³ ¬± ·²½´«¼» ¿² ±°¬·±²¿´ ´·³ó ·¬»¼ ¿³²»¬§ ©·¬¸ ¿² »²®±´´³»²¬ ¿²¼ ¿°°´·½¿¬·±² º»»ò Ó±²®±» Ý±«²¬§ Ù®±©¬¸ Ó¿²¿¹»³»²¬ Ü·ª··±² Î±³¿² Ù¿¬»· Ð¸±²»æ íðëóîçîóìììï Ý±«²¬§ ß¼³·²·¬®¿¬±® Ú¿¨æ íðëóîçîóìëìì ïïðð Í·³±²¬±² Í¬®»»¬ Ûó³¿·´æ ¹¿¬»·ó®±³¿²à³±²®±»½±«²¬§óº´ò¹±ª Õ»§ É»¬ô Ú´±®·¼¿ ííðìð Ý¿®·²¹ô °®±º»·±²¿´ ¿²¼ º¿·®ò [DOWNSTAIRS ENCLOSURE PILOT INSPECTIONN PROGRAM MODIFICATION PROPOSAL] June 24, 2009 Statement of Commitment: Monroe County remains committed to the intent of the Pilot Inspection Program and continues to implement the requirement for compliance. We estimate a total of 8,000 downstairs enclosures have been constructed since 1975, with only about 2,500 (32%) of those belonging to flood insurance policy holders. In the seven years since the inspection program was initiated, Monroe County has inspected 1887 (75%) of the estimated 2,500 enclosures belonging to policy holders with the following results: 426 inspected units were found to be in compliance 923 owners complied voluntarily following notification 194 owners brought their enclosures into compliance following code enforcement action 344 inspected enclosures remain as outstanding violations Approximately 600 properties have not yet been inspected [you said 411, but if estimated 2500 enclosure, minus 1887, leaves balance of about 600? Summary of Existing Inspection Program: March 14, 2002 marks the County’s initiation of the flood insurance inspection program in an effort to heighten awareness and to provide better enforcement of the regulations. This program is scheduled to be complete in 2011 and will result in a complete catalog of downstairs enclosures. The County looks forward to that time, which will serve as a new starting point for the County’s participation in the NFIP and, potentially, in the NFIP’s Community Rating System. The existing inspection program, approved by FEMA, includes the following components: 1.Property owners are required to obtain an inspection report in order to purchase an NFIP flood insurance policy. Inspection reports can be prepared by the County or by approved third parties. 2.Property owners are required to obtain an inspection report if they sell or transfer title to a property. 3.Property owners with a below base flood enclosure are required to obtain an inspection report if they seek a building permit and to remediate any identified noncompliant aspects of enclosures prior to issuance of a building permit. Proposal Summary: Our proposal to modify implementation of the inspection program consists of the following components: 1.Retain the requirement that property owners obtain an inspection report in order to purchase an NFIP flood insurance policy. This will continue to identify noncompliant and nonconforming downstairs enclosures, and continue to provide the NFIP with information necessary to rate the policies. 2.Tighten the County’s code to require the Clerk of the Court to record the compliance inspection report prior to transfer of any real property within unincorporated Monroe County. This will strengthen the intent of the program that buyers are informed of the requirement to bring enclosures into compliance and the limitation on use of such enclosures. Monroe County Growth Management Division Page 1 [DOWNSTAIRS ENCLOSURE PILOT INSPECTIONN PROGRAM MODIFICATION PROPOSAL] June 24, 2009 3.Modify the requirement to obtain an inspection report as a condition of obtaining a building permit, replacing it with an Optional Limited Amnesty Program (explained below). Background: Monroe County has participated in the National Flood Insurance Program since 1975. The National Flood Protection Act of 1968 provides that flood insurance shall not be sold or renewed under the program within a community unless the community has adopted floodplain management regulations consistent with Federal criteria. Since 1975 the Monroe County Code has required that foundation columns be augured three feet into cap rock. This regulation coupled with the geological conditions of the Florida Keys coral rocky surface lends strength to Keys construction not shared by most coastal floodplain communities. . Monroe County’s first encounter with a Community Assistance Visit (CAV) was in 1983 where it was discovered that the County had permitted “convenience baths” and recreational rooms. . At the time the County did not consider these as “habitational”. These enclosures authorized by benefit of a permit are “nonconforming” enclosures. Following that visit, the County amended the floodplain management ordinance to only allow lattice enclosures. That was in effect for three years, until the 1986 Comprehensive Land Use Plan was implemented which allowed enclosures of 299 square feet with breakaway walls. Between 1983 and 1987 the County gave variances to non-residential structures that allowed them to construct at ground level. The justification was that no life would be in jeopardy at a business location, because the owners and workers would be home with their family or evacuated during a hurricane. In 1987, the second CAV was conducted. One of the results of that visit was an order to rescind all variances that didnot fit the criteria established in federal regulation. If the variances did not meet the criteria, they could not be granted. In 1995, the third CAV addressed the County’s enforcement efforts or lack thereof. This is the CAV that generated the “Insurance Inspection Procedure”, the “Remedial Plan” and all regulations currently in effect. Also in 1995, an organization called “Concerned Citizens of Cudjoe Key and Big Pine Key, Florida” sent 500 multiple listings from the real estate industry to Senator Bob Graham and FEMA to illustrate that existing and post-FIRM (Flood Insurance Rate Map) homes were being openly advertised with such things as “mother in law apartment below”, “spare bedroom below”, “spare bathroom below” (some even contained a caveat “may not be legal”). This situation prompted the October 10, 1995 letter in which FEMA advised the County that “this was a problem that cannot be ignored”. As a result, the FEMA Task Force was appointed. One of the recommendations of the Task Force was the Flood Insurance Inspection Procedure currently implemented by the County. Because this effort involved the National Flood Insurance Program and the Federal Insurance Administration, the onus of enforcement is shared by multiple entities. Monroe County Growth Management Division Page 2 [DOWNSTAIRS ENCLOSURE PILOT INSPECTIONN PROGRAM MODIFICATION PROPOSAL] June 24, 2009 Limitations of the Current Inspection Program: Monroe County’s current inspection program is hampered by lack of property owner awareness, limited shared awareness of all properties that are sold or transferred, an adversarial situation with certain owners, and a number of local court rulings. Nonconforming enclosures built with permits are not illegal and are protected from enforcement action. (The County’s regulations do specify that such enclosures may not be improved or repaired unless brought into compliance.) In addition, the Clerk of the Court has no authority to require owners to demonstrate that an inspection has been performed prior to recording property transfers. The existing inspection program creates an adversarial situation with property owners who do not currently have NFIP flood insurance policies. An unintended consequence of requiring an inspection – and remediation of noncompliant enclosures – as a condition of receiving a building permit has been a considerable increase in illegal construction activity because many property owners undertake work without first obtaining permits. There is evidence that even owners who have compliant enclosures are undertaking work without seeking permits because they view the requirement to have an inspection an invasion of privacy and a violation of their private property rights. Other factors have contributed to the County’s inability to fully adhere to the federal requirements. In 1996, code enforcement proceedings were commenced against citizens Louis Latorre and Donna Hexter for an illegal downstairs enclosure. The Code Enforcement Special Master that handles such proceedings determined that a violation existed. These were the appellants in Lattore and Hexter vs Monroe County which was the basis for Judge Payne’s ruling on the 4 year statute of limitation. Since that ruling on October 6, 2000, local courts have inhibited enforcement and to a greater extent inhibited public awareness of regulatory requirements. Between 1996 and late 2000, many property owners purchased their homes fully confident that the illegal enclosures were protected from enforcement. In many cases, it appears the continued use of the enclosures for habitable space was a deciding factor in the purchase of the home. In 2005, the 2000 ruling was effectively overturned by the Second District Court of Appeals. The 2005 ruling, while removing a major impediment to the County’s enforcement efforts, also created additional issues which the County must now overcome in its efforts to implement the inspection program. Although the Judge who authored the LaTorredecision retired in 2006, his successor has demonstrated a willingness to create additional issues with which the County must contend. For example, last fall, Judge David Audlin reversed a finding of a violation for the flood plain ordinance because the County did not allege the precise date and time when the illegal structure was constructed. While the County was recently successful in overturning that reversal on appeal, the case will nevertheless be remanded back to Judge Audlin for further disposition. In other cases, Judge Audlin has raised his own issues as well as demonstrated a willingness to allow additional issues to be argued which were not initially preserved for appellate review before the Code Enforcement Special Magistrate. Monroe County Growth Management Division Page 3 [DOWNSTAIRS ENCLOSURE PILOT INSPECTIONN PROGRAM MODIFICATION PROPOSAL] June 24, 2009 Improve Awareness and Formalize Requirement Related to Real Property Transfer Although the current inspection program calls for inspections prior to sale, there are weaknesses that result in some homebuyers not being aware that a home they intend to purchase has an illegal downstairs enclosure. To rectify this situation, the County proposes to modify the code to require the Clerk of the Court to record evidence that a compliance inspection has been performed and the report is on file with the County prior accepting a new deed in the transfer of any real property. Optional Limited Amnesty Program Explained: Optional Limited Amnesty (OLA) is envisioned as a mechanism that will significantly address concerns with the continued presence of noncompliant and nonconforming downstairs enclosures that were constructed prior to March 14, 2002. It is important to note that the County is not advocating a total amnesty. Under the proposed modification: 1.The County will offer OLA to real property owners whose property contains an illegal downstairs enclosure which existed prior to March 14, 2002. The OLA relieves current owners from the burden of enforcement action while imposing on them other requirements intended to alleviate future cost liability and provide a basis for future compliance based on a triggering event. 2.The terms of OLA will specify that substantial improvements (defined in Monroe County Code) to enclosures trigger a requirement to bring enclosures into compliance. 3.Owners will be required to apply for OLA, pay an enrollment fee, allow the County to perform a compliance inspection to document the baseline conditions of the enclosure (size, materials, usage), and apply for a special use permit. 4.Each year owners will be required to apply for a special use permit and pay a special use permit fee. 5.A portion of the OLA fees will pay for the County’s costs of managing the program. Deflected Debris Removal Cost Liability: Monroe County acknowledges that the presence of illegal and nonconforming downstairs enclosures contributes to the cost of debris removal after damaging flood events. The annual special permit fee is proposed to be determined by the Board of County Commissioners based on 1% of the cost of debris removal from the last significant storm event. The fee will be established annually in the month of November. Monies received from the annual special permit fees will be deposited in an account to be utilized to reduce by 1%, the federal cost share of debris removal costs after future storm events. Because it will take several years before the account has sufficient balance to cover debris removal costs, the Board of County Commissioners proposes to pre-fund the account by an amount equivalent to the fee income anticipated to be collected over three years. Monroe County Growth Management Division Page 4