Item P01
Federal Emergency Management Agency
Region IV
3003 Chamblee-Tucker Road
Atlanta, Georgia 30341
December 12, 2000
James T. Hendrick
County Attorney
County of Monroe
Office of the County Attorney
P.O. Box 1026
Key West, FL 33041-1026
Dear Mr. Hendrick:
This is in response to your November 6, 2000, letter. In your letter you stated that Jim Roberts,
County Administrator, asked you to respond to our October 18, 2000, letter. Our letter stated that
we are continuing to assess the impact of the recent Circuit Court ruling holding that a 4-year statute
of limitations applies to County code enforcement and its implications for implementing the
inspection procedure.
In your letter you stated that "Although the Court may yet clarify or revise its ruling in some
particulars (based on your motion for rehearing), we are of the opinion that the holding in LaTorre
would not significantly affect the inspection procedure. " You further stated that "Although the
ruling apparently bars County code enforcement and judicial proceedings against owners of non-
conforming structures built more than four years prior to initiation of an enforcement action, it
should not preclude the cancellation or non-renewal of insurance policies issued to owners whose
structures are in violation of NFIP requirements." You also indicated the Monroe County Board of
County Commissioners directed you to follow-up on the status ofFEMA's re-examination of the
policy concerning residential floodproofing.
From what we understand of this case, we believe that it could affect not only the inspection
procedure, but also Monroe County's ability, in general, to enforce its floodplain management
ordinance on buildings in the Special Flood Hazard Area (SFHA) older than four years.
With respect to the inspection procedure, we are concerned that as a result of the Circuit Court
ruling one of the major purposes of establishing the inspection procedure would not be
accomplished. The pilot inspection procedure was established for the following purposes:
I) To help the communities verify that structures comply with the community's floodplain
management ordinance and to initiate enforcement actions on those structures that do not
comply; and
2) To ensure that property owners are paying flood insurance premiums commensurate with their
flood risk.
f. \
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If as a result of this case, the County cannot enforce its floodplain management ordinance on
buildings with illegally built enclosures that are older than four years, then the first objective of this
procedure cannot be fully achieved. The major reason for developing this inspection procedure is to
provide the County an additional means to identify whether buildings are in compliance with the
community's floodplain management ordinance so that your community can identify and remedy
violations of illegally built enclosures below elevated buildings. The Federal Emergency
Management Agency (FEMA) developed this inspection procedure in response to a citizen's task
force recommendation. We would not have gone forward with the inspection procedure without the
enforcement component as a part of this process.
However, the County should be aware of a much larger implication of this case with respect to its
participation in the National Flood Insurance Program (NFIP). You indicate in your letter that the
ruling is somewhat unclear and therefore the County had filed a motion for rehearing. If the Circuit
Court refuses the motion for rehearing or holds a rehearing and affirms its ruling prohibiting
enforcement on buildings older than four years, we would view the prohibition on enforcement as a
defect in the County's floodplain management program. A prohibition on enforcing the minimum
NFIP requirements in SFHAs for buildings that were built after the County adopted its floodplain
management ordinance is not in compliance with the legislation establishing the NFIP and Title 44
Code of Federal Regulations Section 60.2 with respect to a community's participation in the NFIP.
Therefore, should the results of the rehearing confirm the prohibition on enforcement, FEMA would
expect the County to appeal the decision.
In response to your question as to the status ofFEMA's re-examination of the policy concerning
residential floodproofing, we addressed this issue comprehensively in the Final Rule dated June 27,
2000, for the inspection procedure (Federal Register/ Vol 65. No. 124. Pages 39730-39733). As we
indicated in the Final Rule, dry floodproofing is a technically complex flood protection method that
can fail due to poor planning, design, construction, and maintenance. This would result in
significantly greater damages to the building than if the building were built in compliance with
current NFIP minimum requirements for residential buildings. Allowing residents to sleep, work,
recreate, or otherwise occupy the space below the Base Flood Elevation would conflict with sound
floodplain management by significantly subjecting people who may live in these areas to adverse
health and safety risk should the floodproofed system fail. As described in the Final Rule, there are
significant constraints associated with dry floodproofing homes that may compromise the level of
public safety and property protection envisioned in the NFIP's objectives for people who choose to
live in floodplains. FEMA has re-examined the policy on dry floodproofing and our response is
addressed in the Final Rule. This policy is consistent with communities' overall responsibility to
ensure that the health, safety, and property of their citizens are protected.
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We look forward to hearing the results of the rehearing and what actions the County intends to take
should it be unsuccessful at the rehearing.
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Brad G. Loar, Chief
Community Mitigation Programs Branch
Mitigation Division