Item J1BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: April 20, 2011 Division: Growth Management
Bulk Item: Yes No X Department: Building
Staff Contact Person: Dianne Bair, CFM 289-2518
AGENDA ITEM WORDING:
Discussion and direction to staff as a result of FEMA's March 29, 2011 recommendation to Monroe
County to rescind the variance granted September 15, 2010 under Monroe County Code Section 122-5
granted Rory and Debra Brown, in Resolution 449-2010, to convert the use of their below base flood
elevation enclosure from recreation room, storage area, laundry and convenience bath to one bedroom,
storage area, laundry and convenience bath for property located at 23048 Sailfish Lane, Cudjoe Key,
RE#00188650.000000.
ITEM BACKGROUND:
The BOCC approved the variance, referenced above, with conditions on September 15, 2010. The
approved variance and supporting documentation was submitted to FEMA's Regional IV office on
December 10, 2010 for review in accordance with the County's agreement (letter dated October 29,
1987). The variance authorizes the Brown's paraplegic adult son to live in the downstairs living area,
most of which had received County permits when the enclosure was built in 1981.
On March 29, 2011, the attached review from FEMA was received. Staff is seeking direction from the
Commission:
Options include:
Option A) Comply with the March 29, 2011 review and reschedule the rescission of the variance for
the June 15, 2011 Board meeting with a new resolution to rescind resolution 449-2010 and undo the
restrictive covenant;
Option B) Maintain the variance and send a courtesy letter to FEMA stating the County decision. Risk
of maintaining the variance: FEMA may notice the County of possible probation and suspension from
the NFIP or FEMA may monitor the County to determine it does not re-establish a history for granting
variances inconsistent with the criteria
PREVIOUS REVELANT BOCC ACTION:
BOCC held a public hearing on September 15, 2010, where after Board authorized staff to draft a
resolution approving the variance. On November 17, 2010, the Board formally adopted Resolution
449-2010 approving the variance.
CONTRACT/AGREEMENT CHANGES:
None
STAFF RECOMMENDATIONS:
Direct staff to prepare documents for rescinding variance for future BOCC meeting
TOTAL COST: -0- INDIRECT COST -0-
DIFFERENTIAL OF LOCAL PREFERENCE
BUDGETED: Yes No -0-
COST TO COUNTY: -0- SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH
in
Year
APPROVED BY: County Atty N/A OMB/Purchasing N/A Risk Management N/A
DOCUMENTATION: Included X Not Required
DISPOSITION:
AGENDA ITEM #
Bair -Dianne
From: Inmula, Prasad [prasad.inmula@dhs.gov]
Sent: Tuesday, March 29, 2011 11:23 AM
To: Bair -Dianne
Cc: Wilson, Susan; Duperault, Joy
Subject: Variance request for 23048 Sailfish Lane, Cudjoe Key (Debra & Rory Brown)
Good morning. This is to provide you with our review of the subject variance.
Background: Debra and Rory Brown, through their agent and attorney, requested a variance from Monroe County
Floodplain Management Code, in accordance with Section 122-5, to permit a lower level living area in an enclosure that
is approximately five feet below the BFE for their son on the basis of his physical limitations. On 10 September 2010, the
County issued such variance against the staff recommendation (after thoroughly analyzing the variance request for all of
County variance criteria outlined in Section 122-5).
This variance also appears to be inconsistent with the FEMA requirements that were specifically listed in its letter of 29
October 1987 to Mayor Fernandez after a finding of Monroe County had established a pattern of issuing unjustified
variances. These, among other criteria, included (quoted below):
The County immediately must cease issuing variances which do not meet FEMA and County variance criteria.
Research and review all variances previously issued where construction has not yet commenced. Rescind such
variances and reanalyze them on a case -by -case basis in accordance with appropriate criteria.
Submit to this office on a monthly basis, a Floodplain Management Variance report (copy enclosed).
Finding: We determine that this variance was issued not only against the valid recommendation of County staff for not
meeting the County Code requirements but also is inconsistent with the specific requirements required of FEMA that
County agreed to implement. We also emphasize that the life and safety issues were afforded such critical role by the
NFIP that the requirements of the ADA were not exempted in the NFIP requirements. Therefore, this variance should be
rescinded and the lower level enclosure be brought into compliance with the Monroe County codes and the NFIP
floodplain management regulations.
Please feel free call or write if you have any questions or comments. Best regards,
Pad
Prasad Inmula, Ph.D., PE, CFM
DHS I FEMA I Region IV
Atlanta, Georgia
(770) 220-8841
7T
Federal Emergency Management Agency
Region IV
1371 Peachtree Street, NE, Suite 100
Atlanta, CA 30309
October 29, 1987
rRECEIVED
CERTIFIED MAIL tic. N 6i0-:2.12-418RETURN RECEIPT R1 QUE-STED'
The Honorable' Jerry- Hernandez 119V
Mayor, Monroe County Commission
Post Office Bnv 1680
Key ►vest, Florida :1,30 i0
Dear Mayor Hernandez:
During the Week Of Sl�ptcmher 1.1, 1987, representatives of this
office conducted a Community .-assistance Visit (CAA) in Monroe
County. Our visit. included a preliminary meeting with the Counts -
Commissioners can September 14, and subsequent visits by our CAV
Teams to each of the Building Offices in the County. On September
1.8.,_.._the...G�IL_.T�am--kte-1+#--aft-r_:�crt-.meet_irrg tiri;,th__Ctte _County ._CommiS- _._
sioners at which time preliminary findings were discussed.
This is to inform you that Monroe County will be placed on
probationary status with the National Flood Insurance Program
(NFIP) on March 1, 1988, unless measures are taken prior to that
date to correct the identified deficiencies in your local flood -
plain management program and remedy all known violations of your
Ordinance 004-1986, Monroe County Flood Hazard District Regula-
tions, to the maximum extent possible. NFIP criteria establishes
procedures for community probation at 44 CFR 59.24(b). Probation
serves as formal notice that implementation of the County's
floodplain management program is regarded as non -compliant with
the minimum criteria of the NFIP. All new or renewal flood
insurance policies in a community on probation will be subjected
to a $25.00 surcharge. Probation is the first step in the
process to suspend community eligibility to participate in the
NFIP, the result of which is the loss of available flood coverage
Within the community. a notice will be sent to all flood
insurance Policyholders in the County regarding the impending
probation.
As noted during the meeting on September 18, 1987, with the
County Commissioners and County staff, and in our previous
meeting with the County Commission on July 29, 1387, the follow-
ing program deficiencies and violations were found and det,-rmined
significant:
A.
MRS
Program Deficiencies
1• VFIP variance critt..•ria at
tha1.1 CFR 60.11)(6)
ire uirr_
t communties 6
maintain a rAcord of all variance
actions, including the issuance. justification for their
Sectiun 60.6(•i) further states
review of the community's findings hat if a
t
inconsistentwith the objet.t. ive
management, the communits of indicates
sound flootlpla pattern
y i•; Subject to probation :ir:•.l
Possible suspension from the NFIP.
The t;ounty has established a pattern variof granting
�sr.cr.s for r_ommerrial striAot.ures anti for enclusures
used for habitable purpose~ which are irtc'onsistr+n:. c.ith
Floo f Odom ce management, regulations and they .Ciuntt.'s
Flood Ordinance .Vo. 004-1986. Since September 198;,,
ther►! have been an estimated 45 variances. "sue<d for -
commercial structures with no ....
FE`1A variance criteria or the County'stificavariantion 8eed ore
criteria in Section 6-195. Vote also that the County's
ordinance expressly prohibit Note
issuing variances based
on physical and financial hardship. Furthermore, no
technical analyses, discussions, or determinations,
have been identified in any minutes of variance board
meetings indicating why any of the commercial
structures could not meet either elevation or
structural flood -proofing standards. During the past
twelve veers of this office's communications with
County officials either by correspondence, telephone or
in person, the County has been advised periodically
that the general rule of law for granting variances
from the floodplain management criteria is that a
parcel of property has physical characteristics o s
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 be shared by
adjacent parcels. The unique characteristic must
pertain to the land itself, not to the structure.,'its
inhabitants, or the property owners.
In addition, during the same time period, we determined
that several of the variances issued for residential
structures were not justified under the criteria set
forth in your ordinance. For example, on august 13,
1986, the Commission issued a variance for a nes. Single
-3-
family st.ruct.urr, on the grutrnd (two feet above mean
sea level (MSL)),, at Lot No. lour, Lincoln Gardens,
w• Stock Island,. with no technical justification. On
December 6, 1985, the Commission issued a variance for
a new residential structure in a V17 zone, six feet
below the base flood elevation (BFE) located on Lot No.
Four, Hawaiian Village, Fat. Deer Key, with no technical
justification. Likewise, on April 21, 1987, a %ariance
was issued for a crematorium in a V12 zone, six feet
below BFE with no technical justification. These are
but a few examples of the Commission's disregard of
FEMA and the County's variance criteria. At no puint
in any of the minutes of the Board's hearings are there
any indication of a technical determination that the
elevation allowed is the minimum necessary to afford
relief as required in 44 (: R 60.6(a)(i) and County
criteria in Secticm &-195X.('2f.
g, Pres-ent -adm i, i i s t L irtZz-e--prau ed u re-s- it
relative to determining substantial improvements are
inappropriate in that square footage is not the basis
upon which substantial improvements are determined.
Such procedures are in direct conflict with FE`A and
County floodplain management criteria.
Furthermore, the County has failed to inspect construc-
tion that was determined to be less than substantial,
in order to verify that the improvement was constructed
in accordance with applicable permits.
Construction at the following locations
are potential
substantial
improvements and should be
reviewed:
a.
Lots 23
and 24, Block 4, Lime Grove
Estates, hey
Largo.
b.
Marathon
Liquors, 51st Street and U.S.
1
C.
Permit
No. 020398, Angel Fish Cay,
Ocean Reef
d.
19 Sombrero
Road, Sombrero Resort
e.
Permit
No. 11136
,
f.
Permit
No. 11466
'
g.
Lot 59,
Outdoor Resorts
h.
Lot 75,
Outdoor Resorts
i.
Monroe
County Circuit Court Office,
Key Largo
j.
Permit
No. B12492, Burger King
k.
Permit
No. B12482
-4-
1. Permit No. 12358
M. Permit ,No. 8121.10, Marine Park
n. Permit No. 1.1994
. Failure to inspect enclosures of structures below BFE
to determine compliance with the County's flood
ordinance. The following structures were specifically
identified:
a. Lot 174, Plaza Del Sol, Port Antiqua
b. Lot 31, 191ock 16, Sunset. Cary Rd, Ocean Reef, Key
Largo.
C. Lot 15, Block 8, Coco Plum Rd, Marion Park Sub-
d;,vision
d. Lot 2, Block 1, Garden Cove Drive, Ocean Isle,
Key Largo
e. Lot 9, Ocean Shores Addition, Key Largo
f. tract A, Porpoise Point Est., Bi¢ Coppi.tt Key
Tract B, Porpoise_ Point Est. , _Big. Coppitt Key
h. Lots 12, 13, 14 and 15, Paradise Point Cove,
Key Largo
i. Lots 2, Block 9, Eden Pines'Colony, Big Pine Key
j. Lot 6, Mates Beach, Berry Avenue, -Little Torch Key
k. Tract B, Bat Tower Rd, Lower Sugarloaf Key
1. Lot 1, Block 15, Cutthroat Harbour Estates, Cudjoe
Key
4. Failure to inspect structures for which variances were
issued, to determine compliance with conditions of
variance or other ordinance requirements. Presently,
no such structures are inspected to verify compliance
with regulations, nor are any certifications required.
B. Violations
1. Several structures were observed in V zones which had
fill material placed below the structure, held in
place by retaining walls. This condition creates an
obstruction which is in direct violation of NFIP and -
County floodplain management criteria (Reference:
44 CFR, 60.3(e)(5) and County Ordinance No. 004-1986,
Section 6-196, B. (4)(s) and (c)(3)).
The following structures were specifically identified:
a. 266 West Seaview Drive
b. 258 West Seaview Circle _
-5-
c. 230 west Seaview Circle
d. 324 Stirrup Key Boulevard
.`' e. 366 Stirrup Key Boulevard
f. Lot No. 77, Punta del Vientos, Stirrup Key
g. Lot No. 15, Block 27, Venetian Shores
h. Lots No. 68 and 69, Block 1, Yacht Club Island
2. Failure to obtain "as -built." elevation certifications
on all structures for which variances have been issued,
in accordance with 44 CFR, 60.3(b)(5) and County
criteria in Section 6-192.E. No certifications have
been required for structures on which variances were
issued. (See Item A.4. above).
3. Failure to require the elevaL ion of manufactured homes
(new and replacement) outside of existing manufactured
. ... bom��,irks,.. fur_.. obs�r.Yat.i.nns___tterms_..Shat_...li.b_crc......�.[c.. �► m....... ,._.
number of mixed use areas where manufactured homes and
---------c�ces�lianal- Lructttres-a.+era_.�Lace�_side_-bY. aide....
These areas would not qu,%lify as "existing manufactured
home parks", therefore, new construction requirements
including the elevation requirements of CFR 60.3(c)(12)
would be applicable in these areas.
4. Recreational vehicles located in recreational vehicle
parks are in large part "permanent" and are not
being elevated. We have verified this at Venture Out
on Cudjoe Cay and at Outdoor Resorts. Recreational
vehicles, as defined in the FF.MA regulations, must not
be on site for more than 180 consecutive days, perma-
nently anchored, or attached to permanent additions.
To correct these program deficiencies and remedy the violations
to the maximum extent possible, the following actions must be
taken:
1. The t;ouccc.y immediately must crease issuing variances
which do not meet FEMA and County variance criteria.
2. Research and review all variances previously isaded ,
where construction has nbt yet commenced. Rescind such
variances and reanalyze them on a case -by -case basis in
accordance with appropriate:criteria.
3. Submit to this office on a monthly basis, a Floodplain
Management Variance Report (copy enclosed).
4. For those eight structure, listed in B.I. above, obtain
individual certifications from a Registered _
Professional Engineer that fill material and other
obstructions will wash away by tidal surge or wave
action. If certifications cannot be obtained the
County must take appropriate action to assure that
violations are corrected.
5. Require. County code enforcement personnel to inspect
structures listed in A.3, above, for compliance.
Advise us of your findings and follow-up actions on
violations.
6. Obtain elevation certifications for all new structures
or substantial improvements listed in Floodplain
Management Variance Reports covering the period from
Jan-usry-1985 to the present.
_ 1d-errt+fy_ -a1-1- marrvfactuz ed—tromp parks that--a-re _
exclusively used for the placement of manufactured
homes. The identification list must include parks
established prior to June 1, 1977 as well as parks
established on or after .June 1, 1977. Submit both
lists to this office. Furthermore, require that. all
manufactured homes placed in new parks (June 1, 1977 or
later) or outside of existing manufactured home parks
(established prior to June 1, 1977) comply with
elevation requirements.
8. Develop a set of procedures to assure that RV Parks do
not allow permanent structures without complying with
appropriate NFIP floodplain management criteria. Such
procedures must include a systematic code enforcement
inspection program.
9. Begin utilizing correct procedures for determining
substantial improvements as contained on page nine of
County- Ordinance No. 004-1986 and 44 CFR, Part 59 and,
60.3.
10. Implement administrative procedures which will enure
that construction permitted as less than substantial,
or that which receives -a variance, is inspected and
determined to be compliant -with NFIP floodplsin
management requirements.
11. Submit a Resolution of Intent to comply With actior►g
one through ten -of this letter. Submit evidence of
.r issuance of an Administrative. Directive by the Chief
Executive Officr_c• to appropriate County staff that
these actions shall be implemented.
Action number one should be implemented immediately. Art Lur►i
number three and eleven should b, implemented rind effecti�v no
later than December 1, 1987.
Evidence of accomplishment of rill ot.hor actions must be received
by February 29, 1988. If remedial measure_; are not taker., NFIP
probation will become effective on March 1, 1988.
During the probation period, flood insurance coverage will remain
available within Munroe Count.v. However, a $25.00 surcharg,, will
� a,deiecl--te- �h-r - gems try -crf- e-arc:-h- zre-s,r nr rend . f l-cmd � rnsu rarrc-e_. ° ° -
policy sold ir. the County for a period of no less than one year
from- the -ofsba-t-J'un '- PrOiT i-t7 a-n wttt
effect until all program deficiencies have been corrected and all
violations remedied to the maximum extent possible. Furthermore,
the $25.00 annual surcharge will continue "to be added to the
premium of all new or renewal flood insurance policies sold
during any extended or successive probation periods. There are
approximately 16,000 flood policies in force in Monroe Count:;
with a total of $1.06 billion of property coverage.
If the remedial measures are not taken during the specified
probation period, Monroe County will become subject to suspension
from the NFIP. In NFIP suspended communities, where flood
insurance coverage is no longer available, the Flood Disaster
Protection Act of 1973 prohibits Federal agencies from making
grants, loans, or guarantees for the acquisition or construction
of structures located in an identified flood hazard area. This
restriction applies to assistance from the Federal Housing
Administration (FHA), Veterans Administration (VA), and the Small
Business Administration (SBA), among others. Lending
institutions insured or regulated by a Federal agency may,
however, continue to make conventional loans in these areas at
their own discretion. If a flood disaster occurs in a suspended
community, Federal disaster assistance for the acquisition,
construction, or repair of insurable structures within an
identified flood haz4r•d area will not be available. Furthermore.
Individual and Family Grant assistance for housing and personal
property located in an identified flood hazard area will not be
available.
-a -
You are encouraged to take the necessary remedial measures to.
avoid the impending probation action and possible subsequent
suspension from the National Flood Insurance Proiram.
If you have any questions or at any time need technical assist-
ance to address these issues, please contact Glenn C. Woodard,
Chief, Natural and Technological Hazards Division in Atlanta, at
(404) 347-2391.
Fj
c or P. Mayrely,tr
Regional Director
Enclosure
cc: Mr. Tom H_ro_kn.,,__Adp_
Monroe County
CERTIFIED MAIL NO. P-650-242-424
RETURN RECEIPT REQUESTED
cc: Mr. Thomas G. Pelham, Sec.
Department of Community Affairs
Resolution 449 - 2010
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA APPROVING A VARIANCE OF 4.68CA
FEET FROM THE NINE FOOT ELEVATION REQUIRED PURSUANT TO o
§ 122-5 OF THE MONROE COUNTY CODE OF ORDINANCES FOR a
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
floodpiain 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
• EXHIBIT
1 A.
to Best tive
Covenant Brown
(Totalm9pages)
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 goo
allowed to stay; and w a
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 (1) a showing of
good and sufficient cause, (11) a determination that failure to grant the
variance would result in exceptional hardship to the applicant, and (lid) 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 floodpiain 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 fesolution 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);
r,
2. The subject property consists of a two story, single family house with two
bedrooms, one bathroom upstairs and a downstairs enclosure measuring approximately
m
a S
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
n
Property Record Card);
1
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 (Tr. 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 (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 (Tr. 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; (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 (Tr. 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 (Tr. 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 hdmes 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);
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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 . S
configured and legally permitted with a large room and bathroom (see variance a o
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. p
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 (Tr. 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 17th day of November, A.D.,
2010.
' o
Mayor Heather Carruthers- Yes
Mayor Pro Tern David Rice Yes ry
Commissioner Sylvia Murphy
Commissioner George Neugent
Commissioner Kim Wigington
Danny L. Kolhage, CLERK
�opy is a True Copy i
�1 on Fite in this OH
i -id rnd Official Seal.
Z i at, day
,o
1ii, NY L. OLHAGE
Cier Ci l Court
I D.C. 6
No
Yes
Yes N
T.;
rn
BOARD OF COUNTY COMMISSIONERS
OF MONROEiCOUNTY, FLORIDA
By:
Carruthers
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
SUSAN M. G&USLEY 13
ASSISTANT COUNTY A TORNEY
Da1,2 vt�
N � ;
OacN 1814748 11/29/2010 2:10PN
Filed 8 Recorded In Official Recorda of
MONROE COUNTY DANNY L. KOLHAGE
Prepared by: Return to: Doc* 1814748
Lee Rohe Susan M. Grimsley BkN 2493 PON 1998
PO Box 42059 Assistant County Attorney
Summerland Key 1111 12th Street, Suite #408
33042-0259 Key West, FL 33040
RESTRICTIVE COVENANT
RELATED TO VARIANCE FROM FLOODPLAIN REGULATIONS
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.
3. W>9EREAS9 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
•X
�F .
DacN 1814748
BkN 2493 PgN 1999
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 i� day of o ,� 2010.
WITNESSES AS TO BOTH:
(Signature)
Print/Type Name
Address: So e (Signature)
StL.CC�rI L• r be
Print/Type Name
Address: ?.SjZ(.Oryg0 S
/4w 4 •, S u i7��d (1
STATE OF FLORIDA
COUNTY OF MONROE
OWNERS
(Signature)
lay guwt�
Print/Type Name 30 4
Address: eV9.30 P. may,
J 6 / AA
(Signature)
T)�� AA, n
Print/Type Name
Spot—Fls4i I—tl
If- L 33o47--
Address: k A
6idSle4119- 3360-
The foregoing instrument was acknowledged before me this / /"Lday of iJ0%. 2010 by Rory and
Debra Brown who are personally known to me or have produced
as identification.
SEAL
Notary Public
My Commission E p' S LVOHE�i E)#= Au012
emawnnTmmn
2
EXHIBIT B. TO BROWN RESOLUTION
I Poon 1 -0 1
OocV 1814749 11/29/2010 2:101211
Riled i Recorded in orn lal Reeorda of
MONROE COUNTY DANNY L. KOlJiAGE
Prepared by and
Return to DOCH 1814749
Fourth
t Grimr, S to 4EsqBkN 2493 PRN 2009
Fourth Floor, suite 409
1111 it street
Key west, F7 33040
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; )03048 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) Affiants acknowledge that the actuarial flood insurance rates increase as the flood elevation
decreases.
6) is affidavit is required pursuant to Section 122-5(cx&kh
5) of the Monroe County Code.
'r SUSAN L Debra Brown
flan DO 804103
AAug ustA2012
d sworn to before me this�the da of 2010
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BOARD OF COUNTY COMMIISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:_ S12tember 15 201 n
Division: Growth Manaoement
Bulk Item: Yes ' No _X
Department: Buildin
Staff Contact Person: Dianne Bair CFM 289-2518
AGENDA ITEM WORDING:
,*request by Rory and Debra Brown, for a floodplain variance under Monroe Coup
122-5 to convert the use of their below base flood elevation enclosure from County Code Section
area, laundry area and convenience bath to one bedroom, storage area,la recreation room, storage
y area and
bath for property located at 23048 Sailfish bane, Cudjoe Key, RE# 00, 8650.000000. convenience
ITEM BACKGROUND: see attached
PREVIOUS REVELANT BOCC ACTION:
None
CONTRACT/AGREEMENT CHANGES:
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 bo
2. Submit the variance request to F �' °r alternatively,
the variance ma be EMA, prior to consideration of variance, to determine whether
Y granted.
TOTAL COST:_ 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 #
ITEM BACKGROUND
County of Monroe
Growth Management Division
We sbive to be cadnZ profaffsknal and fair
To: Board of County Commissioners
From: Joe Paskalik, Building Official
Townley 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 F000dplain 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 a# 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,
1 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 exlsdng 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 after 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 no be considered relevant.
a. The physical disablildes or handicaps and health of the applicant or members of his
family;
b. The domestic difficulties of the applicant or members of his family,
c. The financial difficulty of the applicant in complying with the floodplaln 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". Asa 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 atmlication 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 unprovemeats 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
Au" 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 Floodplaia Variance Request
STAFF REPORT
MONROE COUNTY PLANNING DEPARTMENT
We strive to be caring, professional and fair
To: Christine Hurley, AICP
Director, Growth Management Division
Through: Townsley 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# 00188650.000000.
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 the flood hazard, to afford relief, and only upon all of the following conditions:
a. Showing ofgood and sufj4cient 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.
l� 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
c. 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 victimigadon of the
public, or conf iict 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 su,,B`icient 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.
a 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/f uniture and other materials and items associated with living in the enclosure would further
exacerbate these possibilities.
d. The danger to life and property due toflooding looding 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.
IL The availability of alternative locations less subject to flooding;
The elevated building and the enclosure are already in place. The only available alternative location less
subject to flooding is the existing elevated home.
L 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, floodplain 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 ofJlooding;
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 the1loodwaters
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 facilities 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
C. 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
GUIDELINES
Federal Emergency Management Agency
Federal Insurance & Mitigation Division Region IV
3003 Chamblee -Tucker Road
Atlanta, GA 30341
FEMA GuIDELpm FoR LOCAL VARIANCE AND APPEAL Bomws
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
t Iaws 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
µ - 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. CM § 60 6(a) (3) (ii)
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.
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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 Iikelihood, 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. 660 6 (a) (-A1 tiii)
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 00.6 (a) (3)iiQ
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,
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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 Out, 6 60.6 la) (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 § U.& (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 nutter 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.
Summate
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.
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2003 CFR 60e6
Page 23 of 23
2003 CODIFIED FEDERAL REGULATIONS (CFR) 60.6 VARIANCE
CRITERIA AND 2003 GUIDANCE FOR LOCAL VARIANCE AND APPEAL
BOARDS
Reviewed by
W:\Building\Working Folders\Bair-DianneWariances to Flood\BROWN convert to living area for handicap 2010.doc
REFERENCE - 44 OR §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
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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, A0, 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, AK 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.
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[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]
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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 CF _ § 6. 0 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 6 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
MONROE COUNTY
CODE
Sec 1224L Variances Chapter
the fl odplain moannagementea(3EMENT
requlremenK
(c) Co witlonc
Sea 122-& Variances to the floodplain management requirements.
(a) Generally Where, owing to special conditions, a Ilterel enforcement of the floodplain management
provisions of the plan would result In exceptional hardship unique to that property ar pro sad pro,
the board of county commissioners may grant variances from the terms of those provisions d will ^mot
be contrary to the public interest, will be In harmony with the general purpose and Into of this chapter
and will be the minimum variance that will allow reasonable use of the property
(b) Procedures
(1) An application for a variance from the provisions of this chapter fordevelopment In an area of
special flood hazard shall be flied 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 the
floodplain management provisions of this chapter, the building official shall forward the
application to the director of planning, review the application, and submit a report and
recommendation to the board of county commissioners.
(3) The director of planning, or his deeig^ee, also shall review the application for a variance and
submit a report and recommendation to the board of county commissioners within five days
after receipt from the building official.
(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 variance
in accordance with the conditions set forth In this section.
(c) Condiffons
(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 sufficle^t cause;
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 orvlctlmization 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;
L The compatibility of the proposed use with existing and anticipated development;
LOC122:13
FLOOOPLAIN MANAGEMENT
s
Chapter 122 FLOOOPLAIN MANAGEMENT
Sea 1224 Varianoee to the floodpiain management requGements
(a) Conditlona
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pe
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(5)
(8)
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e s and ilia ffoodplal mt>agdtnentPbg ihaf� Land development
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fTodwa a dTheel�eb` VeloGii�lt.dlua4on� fats orl tisgy alt.sedlm
n tlt eff of VV06 acrid ri, if appltt able ,ax'' sift tranC9port of then
Thtp col �p drd - petted at llie s0r, and.
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e1' g mAin. nartc �f pailr pabJ o'rrfrihiea Of* 114cid UVoiie;
ac,gds .a cY{+tatteE did sUeota y ilNff#asc as sewq�
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ant jncirtE djfijli p (l1e apphcanl'In -'vt hlh%nii;'
proirte%hslr of Ischaptei .. . _ a. lit management..
Tlie elevetiR'o'sG[roUjid�iilCttubs�
AnY aPPI)cant t9 whom a Xarlan4ij (s
commiit9ssioneta's A.! ed'hall bigONSA*r<ttdn h
Pec"*g the difference bemi6 the bas 9tice by the board o/county
Which the ;tructtrrtt•ta{; to ba bul a good, gi&S lon and the elevat�n to
surate with- tha.liicreased risk reed 8t 9 et the ccW'--off' f i�u�d6 will be commen.
AIE varlances Isaiudd, shall riducid to ffedr elevation:
regirli+a that'an'affldavit be prepared, and
the circuit court; which 'show* that the pro retarded with the clerk of
area, the.numberof fleet tha the • conab"b8ojt will be'located in a tioodprona
Road level. artd that a f bftd fl of•t`hg PtoPcsed' structuss will be below the base
• ct�rarlal tildod Ir't»urarice rates increase as the flood elevation decreases:
The building ofticlal shal!'maintatn�recordebt all variance action* and annuaflyr
varlances to the• Federal Emerges M"
(Code 19798 § 9.5-318; Ord, Nob 39-2000, 8) - anagement Agency report any
08/20/2008 LETTER
County of Monroe
Growth Management Division
Building Department
2798 Overseas Highway
Suite #300
Marathon, FL 33050
Voice: (305) 289.2501
FAX: (303) 289-2513
We stove to be caring, professional and fair
8/20/08
Rory and Debra Brown
23049 Sailfish Ln.
Cudjoe Key, FL 33042
RE: Enclosure inspection at Lot 16, Block B Cudjoe Ocean Shores,
RE# 00188650.000000
Dear Mr. dt Mrs. Brown,
Board of Coanti CommInlonera
Mayor Mario DiGennaro, Dist 4
Mayor Pro Tom Charles "Sonny" McCoy, Dist.
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. Singe 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 iµ yellow which partitions must be remavbd, 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)
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 rei"nspection. 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
qudstions, please give me a call at the above number.
4aryce -
Wingate, CFM
Plans Review Technician
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VARIANCE
APPLICATION
LEE R. ROHE
ATTORNEY AT LAW
( P.O. BOX 420259
— 250M 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
Melno 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 i�� ;�4
Lee Robert Rohe, Esq.
cc: Lisa Granger, Assistant County Attorney
client
N
APPLICATION FOR VARIANCE TO FLOOD HAZARD ORDINANCE
Submit to: Monroe County Building Department
APPLICANT'S NAME -
APPLICANT'S MAILING ADDRESS
NAME OF PERSON SUBMITTING APPLICA
MAILING ADDRESS OF
PROPERTY DESCRIPTION:
$ 60.00 fee for filing of application
STREET OR ROAD
DATE . -6-Al JO/ 0
FOii VARIANCE: (Drawings or photos if necessary)
. h _A .
BRIEFLY EXPLAIN WHY YOU B,ELIEVEIYOUR REQUEST SHOULD BE GRANTED:
_ . -fia , _ A. _ A u -
U
I ESA THAq FLOOD INSURANCE RATES FOP IMPROVEMENTS BELOW THE REQUIRED ELEVATIONS
WILL RESULT IN HIGH PREMINUM RATES.
APPLICANT'S SIGNATUR
DO NOT WRITE BELOW THIS LINE
TO BE COMPLETED BY ZONING DIRECTOR "
PROPERTY INSPECTED BY
COMMENTS
r
r LONROR COUNTY CODE ENFORC
` NOTICE OF VIOLATION/NOTICE OF HEARING
TO: BROWN RORY & DEBRA CASE NUMBER: CE09020237
• 23048 SAILFISH IN
CUDJOE KEY, FL 33042
RE NUMBER: 00188650000000
LOCATION 23048 SAILFISH IN
CUDJOB 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:•
1. 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 THB'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. all violations noted above must be corrected by
-a3 - . 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.
F ` ** NOTICE OF ADMINISTRATIVE HEARING **
1
P' ..,
PLEASE TAKE NOTICE that a Oublic Hearing will be condudted 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-
�tfon 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 BRING 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(s) 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
IMMMONELL, M GUEL
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 .
Q
Cod 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
ill 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
m
RECEIPT MAIL, A TRUE ANII
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 LIVES CHANGED AFTER THIS. WHILE DARREN WAS IN THE
HOSPITAL,WE WERE INTRODUCED TO THE BRAIN S 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 APERMITTED 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 INSPECTORASKED,"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 A 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 IS A 2 BEDROOM 1 BATH. MY WIFE AND I AND ONE OF OUR
DAUGHTERS LIVE UPSTAIRS.THE DOORWAYS TO THE ROOMS AND BATHROOM ARE
APPROX30' 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 DONT 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 ASICS 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
INA
(!`-
1 ,(DEBRA BROWN) SPOKE WITH JORGE GOMEZ TODAY 5R1/09. THERE WERE A
COUPLE OF MISTAKES IN THE FIRST LETTER ON MAY 1.2009. 1 PUT THE AMOUNT IN
WRONG AND I DID NOT SIGN THE LET ER,THESE TWO THINGS HAVE BEEN
CORRECTED.
MONROE COUNTYCODE ENFORCEMENT
SPECIAL MAGISTRATE
MONROE COUNTY,
Petitioner,
V. CASE NO: CE 09020237
RORY BROWN AND DEBRA
BROWN,
Respondents.
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 122-gB)(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.
3. Respondents purchased their home in 2003. On December 231,2005,
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
III
However, due to the onerous building requirements, code violations and
permit delays, the project turned out to cost an additional $21,000 over
z
N
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 EXIIIBIT 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
Copportunity 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 I990 ("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. 12 10 1. "Major life activities" as defined under the ADA include:
(a) caring for oneself; (b) breathing; (c) doing manual tasks; (d) walking; (e) sitting
M
and standing; (f) hearing and speaking; (g) seeing; (h) working; (i) lifting; 0) reaching
and (k) maneuvering. 14 FLPRAC Section 18A 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 walk, 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
comply 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 35.101 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 Department. 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 Jastice. 170 F.3d 1169( 91, Cir.
1999) and Innovative Health Systems, Inc., 117 F. 3d 37 (2" d 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:
" (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,resuR4
(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 Iots 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 Zoning 2007 MT160
(Montana 2007), the Court found that a variance should be granted due to the physical
disability of a family member.
I
5
In summary, the undersigned argues that application of the ADA, Rehabilitation Act
of 1973, and other federal laws 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.
Lff R E"ESQ.,,
P.O. Box 420259
Summeland Key, F133042
(305) 745-2254/745-4075
Florida Bar Number 271365
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy I If the foregoing has been
furnished by Facsimile and electronic transmission this 76 —day of May, 2010 to: Lisa
Granger, Esq., Monroe County Attorneys Office, I I 1112`T' Street, Suite 408, K We
Florida 33040.
LEE ROBERT ROBE, ESQ., P.A.
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:
Monroe County Code Enforcement
FAX NUMBER:
C 289-2515
DATE
5/26/2010
TOTAL NO. OF PAGES INCLUDING COVER:
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
. Al.�r'.QS
1981 A7929
BUILDING DETAIL
BUILDING PERMIT
BUILDING AND ZONING DEPARTMENT
OF
MONROE COUNTYv FLORIDA
DATIr._. 8/n/78
THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER Ex 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:
16 8 Cudjoe Ocaaa Shores
L0r BLOCK SUBDIVISION _ SEC __ T R__
STREETORROAD em Sailfish. Lane, Cudjoe Key
OWNER WilliMs aUd b-r A Hunt PHONE
MAILINGADDRESS - 1302 Flager Avenue, Key West, Florida
CONTRACTOR Ernest W. Johnson RC0031617 PHONE
MAILING ADDRESS P.O. Box $ 302. Summerland Key
WORK DESCRIPTION new single family residence 960 Sq. ft.
REMARKS ESTIMATED VALUE $ 23.900.00
7-78
&11z
ef y yel --- /o - a q r
PERMIT F LOTTN DMUST ESTREET SIDE
E. SUB TANTI IDIPSP
MYED0 MAN_ NER, AND
A CONSPICUOUS, SHELTERED LOCATION, ACCES&
IBLE TO THE 1NSPECTOL PERMIT MUST REMAIN DIS.
PLAYED UNTIL AFTER FINAL INSPECTIONS. ONK gm
it AMMUA-M&M BEARING BUILDING DEPART-
MENTPTAMMMU B N THE B AVAU.:
ABLE TO THE INSPECTORS AT THE TIME OF ALL IN-
SPECTIONS.
BUILDING FEE - - $ 75.00
PLUMBING FEE 45.00
ELECTRICAL FEE 53.50
CAI, 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
PERMIT IS NON —TRANSFERABLE, NON —MARKETABLE AND NON —ASSIGNABLE AND ANY ATTEMPTED TRANS-
FER, SALE OR ASSIGNMENT OF SAID PERMIT SHALL RESULT IN THE AUTOMATIC REVOCATION OF SAID PER.
MIT.
SIGMA OWNER. CO CCTTOR OR AUTijOA_� tzED a _
c Q Cu `> j —1 6 —3 7 PEAMIT, 4092
7 f A/A + -Z-t-#X I-c-P
01,
le y
.
7`0
• M �T . .u.�rr-�
AUNTY o "MO "
BUILDING AND ZONING DEPARTMENT
. r
CER 1FICA- E *OF OCCUPANCY
O•++-•• avid-D. Williams and Kimberly A. Hunt •YE3.:1IT NO. 4092A
a 11S IS TO CERYi:Y that the building located at Lot 16, Block 8, Cudjoe
��eAn Rhere.s Sailfish Lane. , for which o
Cudjoe Key ar.it has h=ret►Mora saes issuad,
h-3 baen cca?l=ter+ acccrdin- to Flans and specificatiu:.s ftSad in tlt. oE:iea of t:�a
.SO::;taw COL::3'r BUILDING j::S2EM& .t, and that tha ?ropasad usa of the buildin;,, to wit,
a3 a new einrle' family residence , cL`»121ias with a1I t:tz builrlir.3 a;.d
izal:ti la::s and nrdttumcos of ,fO::ROT C017.11 and •?s approvad for this usa.
r. ",� LOW
r�►L'•v.1, iSLr ..mot, . ?!.ltiI::� `'UMM OF PEiSO.IS
'a �i' :tom �tM'r FOX ! A%ti 7 E00Z
L
D,I:ED T!Ru 14 th Q1Y OF Au-n4 19 79
C."RTIiIC.1Z= ::J1D::I: 79-65 '
—A
QL /"z' BUI LD ItiS:'r.CNR
t'LL':•:3II:G�I::3i'E:C1JZ �!
EL_:MI Ci AL IiISPF'C1Ja
BUILDINGS PERMIT n
N BUILDING AND ZONING DEPARTMENT
OF
MONROE COUNTY, FL0RIDA
1
3-6-81
/
THIS PERMIT SHALL ALLOW WORK (AS DEFINED UNDER WORK DES RIPTI N 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: '
44
•Cudjoe Ocean Shares
oll. -
L16 BLOCK a SUBDIVISION SEC T R__:
s am 11112X •BaYIlieh Lou&..~Cudoa Key' f ''
STREET OR ROAD -
OWNER 4APHON1 745-1891
•MAILINGADDRESS Rt. 2 box-467.• Summerlaad Ray. FL '
CONTRACTOR '-- pyONg
MAILING ADDRESS flame
l,,"A
WORK DESCRIPTION s e a t - A a ern a f- A iy s A 7 9 g_ F_ A 1 w w
i�
REMARKS ESTIMATED VALUE 3.000.00
+L C� ; i _' �Lt . 'f A► •r is o
;ram` ;_ . - .17,i'"z �ll'Y���� �!� •l� Mi_ • .r�4: r 1
joLl
ILA:- a
BUILDING FEE
PLUMMo FEE
ELECTRICAL FRE 1000
SPECTIONS. TOTAL FEE 75.00 e
TMB PERlaT BECOMES NULL AND VOID IF WORK IS NOT COMMENCED WITIUN THIRTY (30) DAYS OF
ISSUANCE OR IF WORK IS SUSPENDED FOR A PERIOD EXCEEDING NINETY (90) DAY& ALL PROVISIONS OF
LAWS AND ORDINANCES GOVERNING -THIS TYPE OF WORK SHALL BE COMPLIED WITH- THE GRANTINGOF A
PERhUT 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 CONSTRUC170N. THIS
PERMIT IS NON -TRANSFERABLE NON -MARKETABLE AND NON -ASSIGNABLE AND ANY ATTEMPTED TRANS.
FE SALE OR ASSIGNMENT OF SAID PERMIT SHALL RESULT IN THE ID PERT
AUTOMATIC REVOCATION OF SAID
GNATURB OF owim coNTRAeThR 401k AUTHORr xowARD JOfnvsON
IZED AGE BUILDING OFFICIAL
"FAILURE TO COMPLY WITH THE MECHANICS'
LIEN LAW CAN RESULT IN TIN PROPERTY
OWNER PAYING TWICE FOR BUILDING
IDUWVEDABPITS'.
BY
PERMIT A. N,
9RIGMAL - sUiLDING nRMP! GREEN • MSUWR'! COrY CANARY • OFFICE COPY PMR . [NSIIF.CI OR'S COPY GOLD •OWNER'S COPY
•� . ..+
°o
70
r
�O
am
� v
P
. , I
F
`_TMILRell�j-- .....
INSPECTo Q� e'
TYPE INSPbe=lu
PEEMT,�-
SUSDII1ISIoe
OWNBR
INSPECTORS 82cNt
Dnta fXCLs�L
DAIS 4 '- LIME REC:
ID18Pa
'TYPE INSPSCTJ
.rayar i 9
LOT• , DLOCJC .
9UEDIVISt011�a/�.s•�. �/J/Yft• _ fL_
INSPECTORS Sips_
DATE �d
,DATE - ME niEC: 21?4d
INSPSCIOR�,,
YI98PE�TOR
j ,
TTPE IN$ncnoN Oaf-
!! ' �
'P7P!'! INSPE
PEEMT �♦ i9,,A
PER1lIT
LOT Swcyi
',
LOT
. CYC
SUSDIYISION L�11� �
looll
SOBDI'VIS
OWNER A&aO1PEIBR
INSPECIORS 9IG12
►„
INSPECTORS
p
DA72 - A G r /� •f
DA
f '
DATE O 0 Tum
ven 1
�iAln
TYPE
PERMIT v7 a
LOT LOCK
SUBDIVISION
OWN '
INSPECTORS SIGN
DATS_����TIMS t r
INSPECTOR
TYPS =NSPECTIO
PERMIT 6
INSPECTORS
0 ACK y
DATR A
INSPECTOR
TYPE INSPECTIO
PERMIT
LOT B
SUBDIVIS
OWNER
INSPECTORS SIGN1
lot ,! A
+�nf�„er.• !!r.�flt��............... .+.n r.�n�....
�.•• �.1 BUILDING PERMIT •
BUILDING AND ZOONING DEPARTMENT '
:Ao
MONROE COUNTY. FLORIDA
• DATE----gr�2.i •• �q--
V w
THIS PERMIT SHALL ALLOW WORK (A8 DEBINFD UNDER.WO DFSC�}PTION BELOW AND AS SHOWN AND
SPECIFIED ON PMS SUMTTED AND ON FILE IN THS BUILDING
DEPARTMi OFFICES) TO BE PgRFORMED
ON THE FOLLOWING PROPERTY BY THS OWNER LISTED:
CUDJOE OCEAN SHORES
~ LOT1.6 -BLOCK _ 8 SUSDIVIstoll SEC _r T R'"_-
o. CUt>JOC KEY
STREET $A•IL.FtSH''LaNE
PHONE---s-8r�-
OWNER
3304.._.
MAILING ADDRESS._ AT, Box' ,
CONTRACrOR
OWNER. PHONE -
MAULING ADDRESS
WORK DESCRIPTION
3STMTED VALUE 700.00.
�ARQMUST BE DISLPLAYED ON ST = ®E
swLDn'IO FEE-1'2�.00
AND
OP FERLOrTZIO IANENT TLRED TIALLOCATIO�ACCM PLUMBING FES '
IN A CONSPICUOUS
IBLB To THE INSPECTOR. PERMTr MUST RMNAIN Dom''
pI,AYED:U& NS ELECTRICAL FEE
F � FINAL
RING BUiILDING D .
1ViENTSTAMPS, ,diiis: na KElT ON TH1's J�1 SIT>;. A
ABLE TO THE INSPS AT 'rliEITINIE OF ALL IN• ,I.O•TAL FES
SPEgnON3 IF, woRic is Nor
THIS. PERMIT' BECOMES NULL ANDS FORA PERIOD EXCEEDING NINETY (90 DA MMENCED wTwN 9 ALLPROVISIONSOF.
ISSUANCE OR IF WORK IS SUSPEND Big
ERMITDOES N RESLThQB GA�O�EOTO VIOLATE O CANCEL THE PROVISIONS OF.AW LOCAL', •
P
STATE OR FEDERAL L%LE NON-trIARKh`rABLE�AND NOi�I-ASSA18�L8 AND ANY ADD TRANS
PERMIT 13 NON -TRAM
FER. SALE OR ASSIGNMENT OF SAID PERbIIT SHALL. RESULT IN THB AUTOMATIC REVOCATION OF SAID
MIT.
HOWARD JoHNSON
$IGNATUJRB OF OWNER. CONTRACTOR OR AUTHO& BUILDING O CIAL
IZED AGENT
'FAILURE TO COMPLY WITH THE MECHANICS'
LIEN LAW CAN RESULT IN THE PROPERTY c�+')
OWNER PAYING TWICE FOR BUILDING PERMI •
IMPROVEMENTS' • .
oauv �uavvrrnv�e rnov rsr n. naHs►a!vrnvv '
w��r�.• w�w�wwM ���.� _••w•w. •ww••wwwwM MMI A.M�wV gy01I•v MAV . _y -_ .__w_
a •' �C nor suun oo- wARTIV IM.
%
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MAN
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fs•�
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i •;•1•f'r � .r' t .�r, .. r',Y•. :L 4�t rL4,L� �4t: _ii r:
SFd
PLEASE READ THEAMASE &THIS
� 4`r
l BUILDING. SI NATURE, CONTFtAC1QR' OR a. OIrPARTM
AUTHORIZEDAG.dNT 1N$P•ECTflR5
MONROE COUNTY BUILDING DEPARTMENT
BUILDING PERMIT
Data APPOert '; L: 14 / 9 a Prepared bY• H A S C IDate Issued: 1 Z/ 14 / 9 8 Pem* N': 98 10 U U v S, 4 C c. O O 0
PWMNTypx bUtLDTNG PERMIT - ROOF
e...r,.x 7Gmaini snQ/r .
., R Z Mb Marker
s-4�� 66 28
Addreee ~
L16 98 CUDJOS OCEAN SH
CINALLI DAVID A KIMBERL`l
Z3648 SAILFISH LN
SUMMERLAND KEY Ff. 33042
018865 100000 1 00
G22
FTUSE JP
AK -8 ..T 16 CIIDJJB OCEAN. ZH
ARTISTIC CUSTOM HOMES INC
30971 AVENUE A
BIG PINE KEY FL 33043
305 87Z-0647
3,800 1 ROOFING
FEZ DESCRIPTION FEE ANT ANT PAID CREDITED DATE
PERMIT FEE .00 .00 ;00
***SPECIAL BMERGZ-NCT HURRICANE PZRNITite"
NOTICE OF COMMENCEMENT REgUIRED - HAVE
30 DAYS TO SUBMIT RECORDED COPY
---1500 SF RZ-ROOF TO SFR
REPLACE SHINGLES W/SHINCLBS
WILL NOT EXCEED ROOFLINE OR FF97 ;I'.T
ZONE AE 9'
SFR IS 10' ABOVE MSL
DCA EXEMPT
RCPT NBR
'l PL E F IS UMENT RE AS OWNER, Q]NT£I MR OR AUTMRIZEU AUM 1.
JCS BY I
SIGNATURE OF OWNER, CONTRACTOR OR BUILDING DEPARTMENT
AUTHORIZED AGENT INSPECTORS
MONROE CQUNTY BUILDING DEPARTMENT
BUILDING P9�IlW
repredby Issued. 03/31/200(fe"n1NO'• 09130465
oats Applred: 02 / 09 / 2@@�amaldon��
Permit Type. POOL & SPA
• ' °p � Reeub 1 R'esU6,� M8e•Martaer
Sodom �� R�� �
34
2
66 8 001886500 0000 023
7
Pronerty Address
BK 8 LT 16 CUDJOB OCEAN SHORES CUDJO® KEY PB5IS
bdlvislon Name
BK 8 LT 16 CUDJOi:; OCEAN �
M,eda; Nem� �/iddre'As r 1'elepllgne .
. t3enerat c;oMraceor ' . � .
TROPICAL POOLS OF THIS KEYS INC
BROWN, RORY & DEBRA
23048 SAILFISH LN 30464 OVERSEAS HIGHWAY
CUDJOE KLYFL 33042 BIG PINE KEY, FL 33043 07528
3058721274 (305) 872-1274 —
Water
$EB ATTACHED PAGE FOR SUBCONTRACTORS
Flood
AE9'
RES @ .32990@.RESIDEN IAL
Schedule of Fees
FEE p� hmT PAID
FEE DESCRIPTION 16.00 16.00
EDUCATION FEE 60.00 60.00
ENVIRONMENTAL 546.00 546.00
INCOME FROM PERMITS ------- -------------
* * * FEE TOTALB ** 622.00 622.00
23048 SAILFISH LN,CUDJOE OCEAN SHORES, CUDJOE KEY
SWIMMING POOL, DECK, NET
**NOTICE OF COMMENCEMENT REQUIRED**
INSTALLATION OF RESIDENTIAL SWIKmING POOL WITH
** MORE INFORMATION TO PRINT ADDITIONAL PAGF, REQ'D
BALANCE DUE
0.00
0.00
0.00
0.00
11 ,
AGENT.
PLEASE READ THE REVERSE OF THIS DOCUMENT BEFORE YOU SIGN AS OWNER, CONTRACTOR OR AUTHORIZED
BY
BUILDING -DEPARTMENT
SIGNAT RE OF OWNER, CON ACTOR OR
ORDINANCE
003ml 975
ORDINANCE 31975 AND 8-1977 AMENDMENTS TO 3-1975 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
W:\Building\Working Folders\Bair-Dianne\Variances to Flood\BROWN convert to living area for handicap 2010,doc
F
. ORDINANCE rD. 3 1975
w
AN ORDINANE BgCOLATM DEVSLOpnW W1WN FLOOD HAZARD DISTRICTS
WITS 799 CMIUN Of WNM, FLDR,IDAi pBOVIDZHB A STATBMM OF
LRGISLATIM IIflaNT, P10VIDING MaIRITmESi ISqUIRM YJ101 t.
MMU Of MUMM nmfas,nWD SnMVISMN PROPOSALS AND WATER AND
SRWER, SIMTSMS TO IIr MnCTION FROM FLOOD DAMAGE; S222IN
STANDARDS FOR DBVB ABSN! WaM COASTAL FLOOD HAZARD DISTRICTS:
PROVIDING FOR CODNT! WIDE AMICATION1 PROVIDING FOR, RNiORCEHNlf ;
PROVIDIa saus FOR, NATION Of DISTRICT BOUNDARIES;
PROVIDING RDL88 FOR TATION. PBOVIDns FOR VARIANCSS AND
gSTABLISEM A VARIANCE PROCEDOSR; GTlTIIiGVAIN= AND DISCLMM
OF LUNU. ., PROVIDING FOR, SR : 136=30 y1Sn=US FOR,
VIOLATIONS= AND PROVIDING AN HFINC7192 DATA
Bg IT gNACTSD by the County Commission of the. County of Monroe,
F loridat
Section 1. Statement of laztelative intent. The coastal Argue of
Monroe County,
Florida, no subject to flooding, resulting in danger to life,
loss of property. health. and safety hasards, disruption of cowearce 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 hold at the County Court House in Key West, Florida . JUna 11, 1974,
passed unanimously Ordinance # 2-1914 and by their action duly ampressed
willingness to too action necessary to newt the objectives of the National
Flood Insurance Act of 1965.
Section 2. Definitions. For the purpose of this Ordinance, the
following definitions shall apply:
(a) "Special Flood Hazard District". (hereinafter referred to as
SPH District). means those portions of Monroe County, Plorida, subject to flooding
or erosion from abnormally high tidal meters resulting from savers storms or
hurricanes. Said SIR District shall be comprised of those areas designated AS
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. free
time to time, be amended by the Federal Insurance Administrator.
(b) Special Flood Hazard with Velocity Districts, (berainaftsr
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 VS, V10, V11, V13, and V14 upon
the official Flood Hazard Boundary Map issued and approved by the Federal
Insurance Administrator dated July 1, 19146 and as the same mayq from time to
:tin;@,'be emended by the Federal tneuranee Adminiserator.
(a) 'Tlood or Ploodine means a general and temporary condition of
partial or complete imandation of normally dry land areas from abnormally high
tidal water or rising coastal waters resulting from severe @tot=, hurricanes,
or tsnnamis.
(d) "Floodproofine means structural and non-struatural addition&,
changes or adjustments (other than elevating) to structures and utilities which
reduce or eliminate flood damage to water supply and sanitary smogs facilities,
structures, and cantons of buildings, and includes, by way of illustration, but in not
limited to the following msasurest
1. Anchorage to resist flotation and lateral movement.
2. installation of watertight doors, bulkheads, and shutters,
or similes 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 wells.
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 -
went and disposal systems so as to prevent or minimtaa
Infiltration of flood waters.
g. 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 savage and storm waters into the buildings
or structures. Gravity draining of basesents may be
aliminated 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
ebamicals, explosives, buoyant materials, flammable
liquids or other toxic materials which could be bazaardcus
to public health, safety, and'velfare 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 tow the 100 year
flood) =a 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
2-
I
:occurring in any Year. This level of flooding fu: the County •...aurae, Florida,
ties been established per the Flood Insurance Administration Flood Basard Boundary
Map dated July 1, 1974, as eight(g) fast above mews sea level to twelve(12) feet
t above mean Rea level as designated on the official Flood Aasard 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 (a) before the improvement is started,
or (b) if the structure has been damaged and is being restored. before the damage
occurred.
(g) ,Structnra" means anything constructed or erected the use of which
requires rigid location on the grauud, 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 residents. garage, or other
building or structure on a lot or pares' subordinate to and not forming an integral
part of the main or principal building but pertaining to the nos of the main
building. An accessory building may include servant'a 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.
(i) ,Bssemepje, means that portion of a building between floor and
ceiling$ which is so located that one-half or moss of the clear height from
floor to ceiling is below grade.
Section 3. Development in either OR or SYKV 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 SYR and GFU Districter
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 (ii) used construction methods
and practices that will minimise 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-
11
coiaapse or later" moveonat of th► structure, %&".. uses
construction materials and utility equipment that are
rssistsat to flood deas , and also uses constsuctioa
methods and practices that Will minimise flood damage{ and
4. Bevi o subdivision proposals and other pro sad new develop-
ments to asaw s that (i) all such proposals are consistent
with the need to minimise flood damage, (11) all public
utilities and facilities, such as sewer, gas, electrical,
and water systems are located, elevated, or eoastrueted to
minimise or eliminate flood damage-. and, (ill) adequate
draiosga is provided to as to reduce exposure to flood
hazards= and
S. Require new or replacement water supply systems and treatment
plants and sanitary swage plants and systems to be desigped
to minimise or aliminsta infiltration of flood waters into
the systems and plants and discharges from the systems and .
plants into flood waters, and require onsite vast@ rater
disposal systems to be located so as to avoid impairment of
them or contamination from them during flooding. •
Section 4. Development within SFH Districts.
(a) Buildings located in SFHV or "V' Districts must have their•
Lam Mt floor elevated to the level of the 100-gsae flood. The nee below
must be kept free of obstructions, but may be covered with breakaway panels
and used for parking and teseporary storage. elevated structures shall be
serviced by electrical and mechanical equipment that is also elevated to or
above the level of the 100-3ear flood. Panel boards and a discount switch
must be located above the 100 year flood level. House sawar and storm drainage
systems that extend below the 100 year flood level shall be provided With
automatic back flow valves or davieas installed at the point Where the line
passes an exterior wall or slab.
(b) Mobile Bowes. All mobile homes in new mobile home parks, in
expsasions to existing mobile home parks and new mobile homes not in a mobile
hams park, located within the SPHVs SFH, "A" and "V" souse must be elevated
to the 100-year level. A mobile hams within a park can be replaced without
being elevated to the 100-year level as long as the park itself was is existence
before the 100 year level had been determined. If a mobile home is placed in an
established park after the 100-year level is known, the County must require
that the mobile home owner or lessee have the fact disclosed to his 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.
(a) Existing uses located on land in SPSV, SFH, "A" of "P' 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; haw-
ever, this shall not preclude routims maintenance of existing structures or
improvements thereto which are less than substantial improvements, as herein
defined, and which do not increase the physical sise of said structure.
Section 5. Devalopment within SFR or "A" Districts.
Zion-reaidential structures, multi -family structares and motel located in a
SIR or "0 District may make use of the space below the 100-yeas flood level
for equipment and non■liviag , under the condition that they be floodproofed
up to the level of the' 100-yeas 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 to of the submersible type. An office, bath, utility roc®, 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 floodproofsd. Bow -
ever, proper recognition should be given to the existing flood hazard, and
Investment below the level of the 100-year flood should be minimf ad. 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. Sita Utility Linea. 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
sever drain the shall be sealed with caulking, plastic, or rubber gaskets
and all asaboIs 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 A Zoning Department.
Section 9. Enforcement. The Director of the Monroe County Building
& Zoning Department shall administer and enforce this ordinance.
-5-
I
Section 10. Rules for Interpreting District Boundaries. The
boundaries of the flood hasard districts shown on the official Flood Renard
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 b Zoning Department.
section 11. This Ordinance shall supercade any conflicting ordinance.
building code, or any other regulation to the extent that this ordinance imposes
more stringent regniremaats for the use or development of any lands or structures
within Sys and SFW Districts. It is not intended to rapid, modify, or change
any ordinance. building code or other ragalation'asnept 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 Faderal Rpguletines.
Chapter 10, subchapter B, Parts 1909, at asq. Further, such Board shall con-
sider the fact that an annual report on variances granted must 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 axtrema caution.
(b) The Board may grant variances from the tastes of this ordinance
as will not be contrary to the public interest, where owing to spacial
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 donee 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 end 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 rastorad or re -constructed.
w
A variance may only be Leaned if good and sufficient came exists
for granting it or if failure to grant the variance would result in exceptional
hardship to owners of the laud.
In all circumstances, as a matter of policy, variances may only be
issued if the County requires that a notice be placed an 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
Sate Map os having special flood hasards, 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-year flood level and that actuarial flood
insurance, rates increase as 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
justification Sbr 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 Disclaim= 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 say 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 $500 or imprisonment for not more than
60 days or both. Each day such violations continues shall be considered as a
separate offense.
-7-
A
(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 Comeissionars and it
is hereby ordained that the provisions of this ordinance shall became part of
Plat Filing Lea. 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 affect 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 co -owed and Progressively
carried to a conclusion within the time limitations for permits established
by the Building Code.
Section 18. All special lava, Ordinances, Resolutions, Rules and
Regulations in conflict heath are hereby repealed to the astent of said
conflict.
Section 19. This Ordinance shall take affect 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
ORDINANCE
008-1 977
Page 21 of 21
ORDINANCE 8-1977 AMENDMENT TO 3-1975
Reviewed by
W:\Building\Working Folders\Bair-Dianne\Variances to Flood\BROWN convert to living area for handicap 2010.doc
0 ---NCR NO 8 - 1977
AN ORDINANCE AMENDING ORDINANCE NO, 3 - 1975
ENTITLED -AN ORDINANCE REGULATING DBVELOPNEBT
WITHIN FLOOD HAZARD DISTRICTS WITHIN THE COUNTY
OF MONROB, FLORIDA, PROVIDING A STATEMENT OF
LEGISLATIVE INTBNTI PROVIDING DEFINITIONS, RB-
QUI42NG BUILDING PERMITS WITHIN COASTAL FLOOD
HAZARD DISTRICTS? PROVIDING FOR RBVIBW OF
BUILDING PBRMITB, SUBDIVISION PROPOSALS AND
WATER AND SBWER SYSTEMS TO INSURE PROTECTION.
Fi00M FLOOD DAMAGE BETTING STANDARDS FOR DEVELOP-
MENTS WITHIN COASTAL FLOOD HAZARD DISTRICTS,
PROVIDING FOR COUNTY -WIDE APPLICATION, PROVIDING
FOR ENFORCEMENT? PROVIDING RULBB FOR INTERPRETA-
TION OF DISTRICT BOUWDARIBBt PROVIDING RULES FOR
INTERPRETATION? PROVIDING FOR VARIANCES AND ESTA-
BLISHING A VARIANCE PROCEDURE, GIVING WARRING.A®
DISCLAIMRR OF LIABILITY, PROVIDING FOR BBVERABI-
LITYr PROVIDING PENALTIES FOR VIOLATIONS, AND
PROVIDING AN EFFECTIVE DATE, BY AMENDING SECTION
1 OF ORDINANCE NO. 3 - 1975 TO EXPAND LEGISLATIVE
INTENTf HY AMENDING PARAGRAPH (a) 08 SECTION 4 OP
ORDINIINCB NO. 3 - 1975 TO REQUIRE ALL NEW CONSTRUC-
TION IN MONROE COUNTY TO B$ LOCATED LANDWARD 08 THE REACH OF THE MEAN HIGH TIDE, TO REQUIRE SAME TO BE
ANCHORED BY PILINGS OR COLUMNS, TO PROHIBIT THE USE
OF PILL FOR STRUCTURAL SUPPORT, AND TO PROHIBIT MAnT-
MAD$ ALTERATION OF BAND DUNES AND MANGROVE STANDS WHICH WOULD INCRBAS$ POTENTIAL FOR FLOOD DAMAGE,
NY AMENDING PARAGRAPH (b) OF SECTION 4 OF ORDINANCE
O. 3 - 1975 TO PROHIBIT AFTER APRIL 1, 1977 TER
PLACEMENT OF MOBILE HOMES IN MONROB COUNTY BXCEPT IN A LOT IN A THEN EXISTING PLATTED AND PROPERLY ZONED MOBILE HOME SUBDIVISION OR PARR OR LOT WITH
TRAILER VARIANCE WHERE SAID LOT EMS ALL UTILITIES
SERVING SAID LOT CONNECTED AND STREET OR ROAD SERVIOING SAID LOT IN PLACE ALL A8 OF APRIL 1, 19771
TO REQUIRE THAT ALL POUCH MOBILE HOMES AFTER APRIL 1,
1977 30 QUALIFYING A PLACEMENT BB ELEVATED TO THB
MINIMUM HEIGHT OF EIGHT (8) FEET MEAN SEA LEVEL,
MINI
PROVIDING FOR VARIANCES S
AT BELOW 8 FEET 2F SAID MOBILETOMOBILE HOMTO HB PLACED
E 2SHOMESURROUNDED BY MOBILE HOMES WHICH ARE BELOW THE REQUIRED SIG,
(8) FOOT ELEVATION, PROHIBITING THE BUILDING OFFICIAL
FROM ISSUING A BUILDING PERMIT OR CERTIFICATE OF
OCCUPANCY UNTIL THE MOBILE HOME OWNER OR LESSER SHOWS TO SAID OFFICIAL A RECORDED DEED OR UNRECORDED
LEASE WHEREIN THE MOBILE BOMB OWNER OR LESSEE HAS THE
FACT DISCLOSED TO HIM IN SAID DEED OR LEASE THAT THE
MOBILE BOMB I9 BEING LOCATED IN A FLOOD PRONE AREA
AND THAT AN EVACUATION PLAN INDICATING VEHICULAR
ACCESS AND AN ESCAPE ROUTE Ie FILED WITH TER DISASTER
PREPAREDNESS AUTHORIT288, 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 VARIANCES, BY ADDING PARAGRAPH
(e) AND M TO SBCTION 13 TO PROVIDE GUIDELINES OF ORDINANCE NO. 3 - 1975
FOR THE FACTUAL DETERMINATION
OF VARIANCES AND TO REQUIRE PAYMENT OF A VARIANCE
APPLICATION PER, PROVIDING AN EFFECTIVE DATE,
-2-
BR IT ORnAnW BY THE HOARD OF COUNTY COMMISSIOU" OF
MONROB COUNTY, FLORZDA t
Section 1. That Section l of Monroe County Ordinance
No. 3 - 1975 be and the same is hereby amended to read as follows:
"section I. statement of Legislative Intent The coastal
areas of Monroe County, Florida, are subject to flooding, resulting
in danger•to.lifs, 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 regtilations 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."
S
-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 followas
"(a) Buildings located in sBHO or "V" Districts must
have the lowest portion of the lowest floor alevated to the level
Of the 100 year flood. The space below mustbe kept free of
obstructions, but may be covered with breakaway panels and used
for parking and t +x rare skQLUe_ e s a all be
serviced by electrical and mechanical equipment that in 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
f 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 columna
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."
Section 3. That paragraph (b) of Section 4 of Monroe
County Or dinance No. I - 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.
-4-
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
lip
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 (B) 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 (a) 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,
shown 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
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zo queaTTdde eqq ;o seTgTn*T;3TP aTgsemop eqy (Z)
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ggTeeq pue sdeaTpuag xo aeTgTTTgeBTP TeaTeAgd egti (T)
tpezepTsuoa aq you ZTege
szogaa; buT^OTTo; eqq leaueuTpzo o7gq-Aq peggTmzed se eaueTzen e
buTguexb ;o AgeTxdoxd eqq zapTsuoa TTege epTzOTg •A4uno3 aozuow ;o
sxeuoToxFou o Agtmoo ;o pxeog eqq uegM 'BeuTTepTnO (e)„
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zegsaeTQ aqq ggTM PBTT; sT egnox adease us pue sevaae xeTnaTgen
buTgeaTperT ueTd uoTganaeee ue gegq pue ooze auoxd-pool; a uT
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pug eaueaTpxo eTgq ;o Moo PeT;Tgxea ;o gdTeoex baT'bpeTaouKoe
e48g6 ;o guemgxedeQ eqg mox; guembpeTMowtoo TeTaT;;o eqg ;o
gdTeoex aodn goe;;e exeq TTege soaeuTpxO eTgs '9 aoT40e6 .
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apsm so; aoTgeoTTdds OO'OS$ s Aq peTuedm000e eq TTegs•xepunexeq
eoasTxen a xo; uoTgeoTTdde Bova -eea uoTgeoTT Y Wo
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886 6-OCO
30NVNIGHO
I
ORDINANCE 030-1983 IN EFFECT AFTER DATE OF FINAL
INSPECTION FOR PER UT 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
WABuildinglWorking FoldersWair-DianneWariances to Flood\BROWN convert to living area for handicap 2010.doc
ORDINANCE N0. 030 -1983
AN ORDINANCE OF THE COUNTY OF MONROE,
FLORIDA, PROVIDING THAT THE CODE OF ORDI-
NANCES. COUNTY OF MONROB,FLORIDA, BE AMENDED
BY AMENDING ARTICLE V., "FLOOD HAZARD
DISTRICT.DEVELOPMENT", OF CHAPTER 6, "BUILD-
INGS AND CONSTRUCTION". TO PROVIDE FOR
INCORPORATION OF HEW FEDERAL EMERGENCY
MANAGEMENT AGENCY REQUIREMENTS; PROVIDING FOR
REPEALING OF ALL ORDINANCES OR PARTS OF
ORDINANCES IN.CONFLICT WITH THIS ORDINANCE;
PROVIDING FOR SBVERABILITY; PROVIDING FOR
INCLUSION IN THE MONROE COUNTY CODE OF
ORDINANCES; AND PROVIDING AN EFFECTIVE DATE.
BS 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. Definition*.
For the purpose of this article, the following
definitions shall apply. Unless specifically defined
below. words or phrase* 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.
q 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 rave wash or tsunamis. The area is
designated on FIRM as tone V1-30.
Development mean■ 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
monads 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 mobil• 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 hose 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".
Flood or flooding means a general and temporary
condition of partial or coaplate 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 (FHBM) means an official
map of a community.isaued by the Federal Emergency
Management Agency, where the boundaries of the areas of
special flood hazard have been defined as Zone A.
Flood Insurance Bata Map (FIRM) means an official
map of a community, on which the Federal Emargancy
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-s. - 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,
nest 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 (Avicannia Nitida); red
3
mangrove (Hhisophora Mangle); white mangrove
(Languncularia Bacemosa); and buttonwood (Conocarpus
Brecta).
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 i■ 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 on or after the
effective date of this article.
New mobile home park or mobile hams 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.
Sasidautial. 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
permanant construction of a structure (other than a
mobile homa) 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 basemantg footings, piers or
foundations or the erection of temporary formsg 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 thi 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 Bits 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 (SO percent of the
market value of the structure either (1) before the
i
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
spacifieations which are solely necessary to assure
safe living conditions. or (2) any alteration of a
structure listed on the National Register of Historic
Placed or a State Inventory of Historic Places. (Ord.
No. 3-1973, 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
where epscific enforcement would result in unnecessary
hardship.
Cross reference - Rules of construction and defini-
tions generally. 1 1-2.
Sec. 6-178. Statement of legislative intent.
The coastal areas of the county 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 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
7
Federal Emergency Management Agency, said program
providing its citizens with federally subsidised flood
insurance. VA and F.B.A. mortgage insurance,
eonvanticnal 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 ragulationa coasistsut with federal
criteria as set forth in Titls 44, Code of Federal
Regulations. Farts 59. 60, 61, 64, 65 and 67; and
whereas the administrator of•tha 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, 1 1;
Ord. No. 6-1977, 1 1)
See. 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;
7
(1) Elevation in relationship to the National
Geodetic Vertical Datum (NGVD) of 1929 of the
proposed lowest floor (including basement) of
all structures.
(2) Blavation 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 meats 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
comp lated, 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
LI
by or under the direct supervision of a
professional engineer or architect and certified
by sane. Any work done within the treaty 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 meats the requirsmsuts of this
Article.
(a) 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
Cprevent 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 minimise flood damages.
Review the floor elevation survey data submitted
under see. 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:
U
(1) All such proposals are consistent with the
used to minimise flood damage.
(2) All public utilities and facilities. such
as sewere gase electrical, and water systems are
located. elevated, or constructed to minimise, or
eliminate flood damage. and.
(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 5o
units or S acres. bass flood elevation data
shall
be provided by the developer.
(a) 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 parmittae that additional federal or
state permits may be, raquiredp 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 ouch 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.
10
(1) In Coastal High Hazard Areas, the Director of
Planning, Building and Zoning shall review plans
for adequacy of breakaway walls in accordance with
the provision■ of this Article.
(J) 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.
(it) 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, than 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. 6-180. 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
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 dunae 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(s)(7). Coda 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 parks 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
house.
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 varianeed 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 authorise
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.4o. 3-1975. 1 4; Ord. No. g-1977.
1 2. 3; Ord. No. 12-1979. f 1)
Sec. 6-181. Development within areas of special flood
hazard.
Nonresidential structures, and motels located in
area■ 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 O.S. Corp of Engineers Manual.
"Ploodproofing 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 requiredt
14
(1) All nav construction and substantial
improvements shall be anchored to prevent
flotation. collapse or lateral movement of the
structural
(2) All new construction and substantial
improvements •hall be constructed with materials
and utility equipment resistant to flood damage3
(3) All new construction or substantial
improvements shall be constructed by methods and
practices that minimise flood damagal
(4) All nav and replacement water supply
systems shall be designed to minimise 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 -sits 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 alevation data has been provided. as set
forth in Section 6-184 of this Articles 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.
L
(2) Hon -residential construction - New
construction or substantial improvement of any
commercials industrial or other non-residantial
structure shall either have the lowest floor,
including basement, elevated to the bass 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
screaming may be permitted for aesthetic
purposes only and must be designed to wash away
M
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;
(o) Pilings or columns used as structural
support shall be designed and anchored so as to
withstand all applied loads•of the base 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;
(a) There shall be no fill used as structural
support;
(f) Lattice work or decorative screening shall
be allowed below the bass 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 matt
(1) No solid walls shall be allowed. and
(2) Material shall consist of wood or mesh
screening only.
(a) 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
(1) Prohibit the placement of mobile homes,
except in an existing mobile home park or
existing mobile home subdivision= and
Q) Any alteration, repairs reconstruction or
improvement to a structure shall not enclose the
space below the lowest floor except for lattice
work or decorative screenings as provided for in
Section 6-181(b)(3)(f) and (6) of this Article.
(k) All buildings shall comply with provisions
of Chapter 4s Article II (SHORILINE P80TBCTION)
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.
See. 6-182. Site utility lines.
Site utility lines shall be made waterproof as far
as possible to eliminate infiltration of flood water•
into the system and discharges from the system into
flood waters. Joints between sever drain tile shall be
sealed with caulking, plastics or rubber gasket■ and
all manhole covers shall be sealed in a similar manner.
(Ord. No. 3-1975. 1 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. f 8)
18
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. Bnforesmant.
The director of the County Building and Zoning
Department shall administer qnd enforce this article.
(Ord. No. 3-1975, 1 9)
Sac. 6-185. Rules for interpreting district
boundaries.
The boundaries of the flood hasard districts shown
on the official flood hazard 4oundary maps nay 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. 1 10)
Sac. 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 S. Parts 59. at 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 terns 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
promises.
(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 ralief;
(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 bass 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 eircumstancess 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 Rate Map as having special
flood hazards, the notice must contain a statement of
the number of feet that the lowest nonfloodproofad
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 eases 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.
(a) Guidelines. When the Hoard 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 bar
family.
(2) The domestic difficulties of the applicant
or member■ of his or bar family.
(3) The financial hardships of the applicant or
members of him 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.
21
(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 eompatability 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 sever, 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
HE
Commission may attach such conditions to the granting
of variances as it deems necessary to further the
purposes of this Article.
(g) Application fee. Bach application for a
variance hereunder shall be accompanied by a fifty
dollar ($50.00) application fee gads payable to the
County. (Ord. No. 3-1975. 1 13; Ord. No. 8-1977, ! 4.
5)
Cross references - Variances under subdivision
regulations, Cb. 17, Art. VII, special exceptions under
zoning ordinance. Ch. 19. Art. IV.
Sec. 6-ile. Warning and die.claimar 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. 1 14)
Sec. 6-18g. 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.
24
or impair any existing easements. covenants, or dead
restrictions. gowever, where this ordinance and
another conflict or overlap. whichever impose* the more
stringent restrictions shall prevail. (Ord. 3-1973,
11)
Sec. 6-189. Interpretation.
In the interpretation and application of this
Article all provisions shall bet
(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.
Sac. 6-190. affect 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, ! 16) For subdivisions
proposed in areas of special flood hazard the following
provisions era requireds
(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 savage
disposal systems, sewer, gas, slacirical 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
t
consisting of the lesser of fifty units or five acres,
base flood elevation data shall be provided by the
developer.
U
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 3-1975. 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, Ch. 6,
Art. II. Div. 2.
Sec. 6-192. Effect on special lava.
All special laws, in conflict with this article
are hereby repealed to the extent of such conflict.
(Ord. No. 3-1975. 1 18)
Bee. 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 spacial 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, f 15)
Sac. 6-194. Saverability.
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.
See. 6-193 - 6-205. Reserved."
Section 2. All ordinances or parts of ordinances in
conflict with this Ordinance are hereby repssled: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 Coda.
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 icy the Hoard of County Commissioners of
Monroe County. Florida. at a regular meeting of said Hoard held
on the 23rd day of November , A.D. 1983.
(Seal)
Attest; DAMFIa. X01,11ACM, clerk
f Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By •
Mayor Chairman
27
MEMO FROM
KERMIT LEWIN
11
DATE: August 1, 1979
TO: ALL BUILDING OFFICIALS
FROM: Kermit H. Lewin, Director
Planning, Zoning & Building
SUBJ: Breakaway 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 i5 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 b-e 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 usedin 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 storage, 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 hi'man
habitation, ycu are to report it to this office 'for further action.
L: lr �� `_