Resolution 449-2010Resolution 449 -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
REESTRICTIVE 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 DARREN 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 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;
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, there is an apparent conflict between the Americans with Disabilities
Act, the Fair Housing Amendments Act, and Monroe County Code Section 122 -5 which
was adopted pursuant to FEMA's technical guidelines; 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
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 Cuonty
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 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 Jr. 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 who was the Brown's only child still living at
home, 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 permit to refurbish the downstairs enclosure to make it more
accessible for Darren; Jr. 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 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 Jr. 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 Board 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 Jr.
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 herein.
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 for 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 or victimization of the public, or conflict with existing laws or ordinances
other than Section 122 -5 of the Monroe County Code.
5
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 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 17 day of November,
2010.
Mayor Heather Carruthers
.._..__ n__ T_— r%-..:.j n;ce
urphy
Jeugent
ngton
Danny L. Kolhage, CLERK
Yes
Yes
No
Yes
Yes
A.D.,
C
C
o CD
N �
CD
;V
M
N CJ
O
BOARD OF COUNTY COMMISSIONERS
OF MONROE)COUNTY, FLORIDA
By:
Carruthers
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
SUSAN M. G61MSLEY J
ASSISTANT COUNTY ATTORNEY
Date )f_oZ - 1 :2 eZ
G
Adapted jorAccess, Incorporated
1329SW 7Y
Aftemi, FL 33144 -504
786-554.1099 TEL
305- 613 -7498 FAX
e -mail: lexreinaemaboarom
September 27, 2010
Rory & Debra Brown
23048 Sailfish Lane
Cudjoe Key,FI 33042
RE: Darren Brown
Dear Mr. and Mrs. Brown:
I was involved in finding accessible solutions fDr 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 (Ike 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 8o 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. Reins, MSBE, PE, ATP, RET, CBC
Donm Bro..,49a p
Brown, Darmn HM "7-2010
Page 14 1 1
Exhibit A toBrown. Resolution
1
i
Prepared by: Return to:
Lee Rohe Susan M. Grimsley
PO Box 42059 Assistant County Atorney
Summerland Key 1111 12th Street, Suite X6408
33042 -0259 Key West, FL 33040
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
2. 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
Page 1 of 2
I
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.
"�4
Executed on this I I -- day of A0 iq �{ 5 2010.
WITNESSES AS TO BOTH:
(Signature)�,,. l
(-Q-Q— Cam- v!Q
Print/Type Name
Address: 2,<0w O
(Signature)
-SU S A L. f-Ohs'
Print/Type Name
Address: OQQ d ✓C?r'5d qS
f-4w y , si, t7 d4!%
dr
OWNERS
c
1
(J
(Signature)
POI - �
Print/Type Name 2 1 0 44 42
E ,21i L_FISW LA
Address: K � 3 -304
(Signature)
bel*a � - B ton
Print/Type Name
Address: &Ikk to
P I . 03 ( N
STATE OF FLORIDA
COUNTY OF MONROE
The foregoing instrument was acknowledged before me this ay of & L CLI , 2010 by Rory and
Debra Brown who are personally know� me or have produced
as identification.
SEAL
Notary Public
My Commission E �'% SUSAN L ROHE
•. _ ssier�BB 894103
Expires August 8, 2012
s �Rr„ • .'- BwdedThruTmyF&Wko anoeWmw7o19
2
EXHIBIT B. TO BROWN RESOLUTION
Page 2 of 2