Item O04 04
BOARD OF COUNTY COMMISSIONERS
COUNTY of MONROE Mayor Craig Cates,District 1
The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5
Michelle Lincoln,District 2
James K.Scholl,District 3
David Rice,District 4
Board of County Commissioners Meeting
July 19, 2023
Agenda Item Number: 04
2023-1198
BULK ITEM: No DEPARTMENT: County Attorney
TIME APPROXIMATE: STAFF CONTACT: Kelly Dugan
N/A
AGENDA ITEM WORDING: Report following County staffs June 23, 2023 meeting with incoming
FEMA Region IV Administrator and FEMA staff in Atlanta regarding the County's request to seek
changes to certain floodplain regulations and solicitation of public input for suggestions on potential
changes. 11:00 A.M. TIME APPROXIMATE.
ITEM BACKGROUND:
The BOCC held a public workshop on April 6, 2023 to discuss the County's floodplain regulations.
Following public discussion, the Board of County Commissioner's directed staff to begin a discussion
with FEMA about changing certain regulations: 1) the County's FIRM date, 2) the restriction that
downstairs enclosures cannot be over 299 square feet("299 rule"), and 3) the Inspection upon Transfer
of Ownership program. The 299 rule and Inspection upon Transfer of Ownership program were
adopted by the County as part of its remedial plan to maintain its eligibility for the National Flood
Insurance Program(NFIP) after a history and pattern of non-compliance led to the County being placed
on probation and threatened with expulsion from the NFIP.
County staff met with representatives of FEMA Region 4 in Atlanta on June 23, 2023, and discussed all
three issues. The acting FEMA Region IV Administrator and his staff expressed a willingness to
consider alternatives to the 299 rule and the inspection upon transfer requirement as set forth in the
remedial plan but also expressed concerns that, without such measures, the community may backslide
into a state of non-compliance similar to that which led to the imposition of the remedial plan in the
first place. FEMA's concern is based in part upon the existence of 1,913 properties located in
unincorporated Monroe County that are listed on the agency's National Violation Tracker. Those 1,913
properties constitute roughly 16% of the 11,796 properties in unincorporated Monroe that have flood
insurance policies through the NFIP.
The County is soliciting ideas from the public on alternatives to the 299 rule and the inspection upon
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transfer program aimed at ensuring continued community compliance with the minimum requirements
of the NFIP such that there will be no habitable living space below base flood elevation in homes built
after the County entered in the NFIP. The Board will consider those ideas and may incorporate them
into future negotiations with FEMA and possible code changes. Note, any actual code changes will be
considered at afuture public hearing or hearings that will be held pursuant to the requirements of F.S.
125.66.
With respect to the conflicting FIRM dates of 1973 vs 1975, County and FEMA staff will continue to
discuss the basis for the County's FIRM date(s) and what it applies to.
PREVIOUS RELEVANT BOCC ACTION:
A public workshop was held on April 6, 2023, to discuss the County's floodplain regulations. The
Board of County Commissioner's directed staff to begin a discussion with FEMA about changing
certain regulations: 1) the County's FIRM date, 2) the restriction that downstairs enclosures cannot be
over 299 square feet("299 rule"), and 3) the Inspection upon Transfer of Ownership program.
Prior resolutions and ordinances related to the remedial plan:
Resolution 115-2002
Resolution 187-2002
Resolution 397-2002
Resolution 152-2003
Ordinance 037-2003
Resolution 440-2011
Ordinance 010-2012
Resolution 193-2014
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION: Discussion and direction
DOCUMENTATION:
Resolution 193-2014.pdf
FINANCIAL IMPACT:
N/A
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A,
RESOLUTION 193-2014
A RESOLUTION AMENDING EXHIBIT 1 OF RESOLUTION NO. 440-2011
OF THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
APPROVING A 2014' IMPLEMENTATION PLAN FOR THE FLOOD
INSPECTION AND COMPLIANCE PROGRAM FOR SUBMITTAL'TO THE
FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)
WHEREAS; the Board .of County Commissioners ("BOCC") :adopted Resolution No.
440-2011. on December 14, 2011, approving a revised remedial plan for submittal to-the Federal
Emergency Management Administration (FEMA), to address a change made, by the State of
Florida Legislature, adopted in House Bill 407; and,
WHEREAS;the"2011 Revised Implementation Plan for Monroe County Flood
Insurance Inspection and Compliance Program"was subsequently approved by FEMA; and,
WHEREAS, On. May 23, 2011 FEMA notified the County of its findings from a
Community Assistance Visit(CAV)performed in late February,2013; and,
WHEREAS, those findings indicated the Federal Pilot Inspection Procedure had
accomplished the submittal of 5,686 structures for inspection. Inspections were conducted on -
2,888 downstairs enclosures of which 2,645 downstairs enclosures , were found to be in
compliance and 469 .downstairs enclosures were found to be not in compliance. Of the non-
compliant structures 40 were given a 1316'declaration letter,, effectively terminating flood
insurance on those properties. There are 2,798 structures that still need to'be inspected; of those .
41 structures are currently scheduled for inspection. The County. has been requested to identify
how the 2,798 structures that did not.seek an inspection would be shifted to"another program;
and
WHEREAS, On June 4, 2013 County staff met with FEMA officials in Washington DC
and FEMA and the -County'staff discussed and agreed to maintain the following 5 primary
programs under the Remedial Plan including:.
1. Inspection on Transfer.of Ownership (sale) Program — sellers are required to obtain
inspections prior to selling their homes so buyers are aware of any illegal
improvements;
2. Maximum of 299 square feet storage enclosure below base:flood elevation will be
permitted for new construction(originally implemented by the county in 2004);
3. Certificate of Compliance Program—whereby,a compliant structure can be awarded a
certificate demonstrating it is compliant based on the floodplain regulations in.place .
at the time it was constructed which is recorded in the County Land records to
indicate the structural improvements that`are permitted.at the site;
4. Existing floodplain Regulations in Chapter 122 of"the Monroe County code will be:
maintained or amended in the future to be compliant with Federal Regulations.
5. Inadvertent observation of illegal structures below base flood elevation in accordance
with Florida;Statute 553.79 Section (a). .
WHEREAS, On, June- 13, 2013 FEMA notified the County that the Pilot Inspection
Procedure (Title 44 of the Code of Federal Regulations, Section 59.30) for Monroe County;
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would conclude on July 1, 2013 and correspondingly requested the County continue to use all
existing compliance and code enforcement options available to them through the adopted flood
damage prevention ordinance (Chapter 122 of the Land Development Code) and the National
Flood Insurance Program (NFIP) regulations and those permitted in Florida Statutes Chapter
553.79 Section 17 (a) that limited local enforcement agencies from requiring an inspection of
any portion of a building, structure, or real property that is not directly impacted by the
construction being proposed, except and unless the proposed construction is:
1. A substantial improvement as defined in Florida Statutes Chapter 161.54 or as
defined in the Florida Building Code;
2. A change of occupancy as defined in the Florida Building Code;
3. A conversation from residential to nonresidential or mixed use pursuant to Florida
Statutes Chapter-553.507 (2) or as defined in the Florida Building Code;
4. An historic building as defined in the Florida Building Code; and
5. Any violation that is inadvertently observed in plain view during the ordinary course
of an inspection conducted in accordance with the prohibition in Florida Statutes
Chapter 553.79 Section 17a.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY,FLORIDA:
Section 1. The BOCC hereby adopts Exhibit 1 attached hereto "2014 Implementation
Plan for Monroe County Flood Insurance Inspection and Compliance Program".
Section 2. The County Administrator is directed to expeditiously transmit this Resolution
and attached exhibit to the Region IV Office of FEMA.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a regular meeting held on the -20th day of Augdst, 2014..
Mayor Sylvia Murphy Yes .
Mayor Pro Tem.Danny Kolhage Yes
Commissioner Heather Carruthers Yes
Commissioner George Neugent Yes
Commissioner David Rice Yes,
BOARD OF COUNTY COMMISSIONERS.OF MONROE COUNTY,FLORIDA
BY
;A Mayor Sylvia Murphy
y ti°
°'A TEST Amy Heavilin Clerk
E COU ATTORNEY
D O FO
Deputy Cler
USA GRANGER
AM$T OU TTORNEY
DMA
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P EXHIBIT 1
2014 IMPLEMENTATION PLAN FOR THE MONROE COUNTY
FLOOD INSPECTION AND COMPLIANCE PROGRAM
Flood Insurance Inspection Program
Monroe County has 5 Flood Inspection Programs including:
1. Inspection on Transfer of Ownership (Sale)
2. Limited Square Footage Below Base Flood Elevation (Maximum of 299 square feet)
3. Chapter 122 Land Development Code Floodplain Regulations, as may be amended from time to time to maintain
consistency with FEMA Federal Regulations and State of Florida.Building Code Regulations
4. Certificate of Compliance Program
5. Inadvertent observation of illegal structures below base flood elevation in accordance with Florida Statute 553.79
Section 17 (a)
Actions to Ensure No New Additional Illegal Structures
The County through its County Growth Management Division will implement the following actions, consistent with the
Florida Statutes, to ensure that any new conflicts between the way structures were originally permitted and with the
floodplain regulations are resolved timely:
1) Inspection on Transfer of Ownership Program. Maintain the existing floodplain regulations and appropriate
sections of the County Code to require that any residential structure having a downstairs enclosure with an opaque
wall covering have a County compliance inspection prior to transfer of property (sale); and to provide that such
inspections required prior to the transfer of property can be conducted, at the discretion of the property owner, by
either the County staff or a registered architect or professional engineer. [The requirement for an inspection prior to
the transfer of property does not also require that the property be brought into compliance prior to transfer or,
subsequent to transfer. The sole intent of this inspection is to provide information for recording and monitoring
improvements to downstairs enclosures subject to the County's floodplain regulations. This inspection is not intended
to be used to identify or prosecute any other unpermitted improvements that are not subject to the floodplain
regulations.]
2) Limited Square Footage Below Base Flood`Elevation (Maximum of 299 square feet) — implemented in
2004. The County floodplain regulations and appropriate sections of the County Code require that any construction
that occurred after the implementation date in 2004, within unincorporated Monroe County, limit the amount of
square footage that can be used for storage to 299 square feet below base flood elevation.
3) Chapter 122 Land Development Code Floodplain Regulations, as may be amended from time to time to
maintain consistency with FEMA Federal Regulations and State of Florida Building Regulations. Maintain
the existing floodplain regulations to allow the expansion or structural alteration of the elevated portion of any
residential structure non-conforming with the floodplain regulations contingent upon the following conditions as
appropriate: a) the improvement is not substantial as defined under the floodplain regulations; b) a pre-permitting
inspection is completed by the County to document the extent of the non-conformity; and, c) if within a"V"zone, the
submittal of a professional engineer's or registered architect's sealed certification that the non-conforming
improvements to the downstairs enclosure do not subject the elevated portion of the structure to increases structural
damage.
4) Certificate of Compliance Program. This program has been established to provide a proactive approach to
recognizing compliant structures within the County to assist buyers in real estate transactions. The process for the
program is found below:
a. Obtaining data from the Monroe County Property Appraiser which will identify all single family residences
which contain enclosures that are identified as living area on the ground floor. Once this data is captured,
technical staff will deduct all the parcels that have already received inspections via the pilot program, transfer
of ownership program, or the previously applicable inspection on building permit program, and been made
compliant.
b. The remaining property owners will be notified via mail that an inspection is required in order to verify
compliance with the Monroe County Floodplain Ordinance.
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c. Once the owners obtain this inspection, and are compliant, they will receive a Certificate of Compliance. This
is a proactive opportunity for property owners to receive evidence that they have a compliant structure which
will create a positive market condition. If an owner has a non=compliant structure, they will be notified of all
the required corrections to the enclosure to become compliant with the permit authorizing the construction,
OR the violation will be forwarded to the Code Compliance Department for prosecution.
d. Once a property is compliant, the County will provide a non-conversion agreement (with a corresponding
drawing attached) to be signed by the property owner and recorded by the county in the County land records
so buyers of properties understand what has been approved for areas below base flood elevation.
e. This non-conversion agreement will provide protection to future buyers through title work. Every two years
an updated potential ground floor enclosure list will be reviewed, and any changes to the Property Record that
indicate illegal construction below base flood elevation will go through the inspection process outlined above
again.
f. The County may also consider obtaining a list of all properties that have transferred ownership and any such
property that failed to obtain the required inspection will be contacted for inspection.
g. New construction that contains any type of below base flood elevation enclosure, will be required to record a
"Notice of Non-Conversion"to the property, which should alleviate this problem in the future.
h. Conduct required inspections of downstairs enclosures as stipulated in Actions #1 - #3 above.
i. Continue to vigorously pursue code enforcement action for violation of the County floodplain regulations,-for
properties developed after the Flood Insurance Rate Maps were implemented, through code enforcement and
the normal permitting process, including prosecution of owners of structures, where property tax records
and/or evidence from inspections provide probable cause of a violation.
j. Request that FEMA provide the County with a "Submit to Rate" for any applications for new flood insurance
policies on previously uninsured properties with a possible violation, so that the County may pursue
compliance under code enforcement proceedings, or through a Section 1316 declaration.
k. Maintain existing floodplain regulations to only allow enclosing with opaque materials of downstairs enclosures
of 299 square feet or less in area.
I. Request the Monroe County Appraiser to provide the County Growth Management Division with an annual
update by residential property owner from the County property tax records of the changes in the habitable
floor area of downstairs enclosures, if feasible and practical.
m. Identify and compile for Monroe County's flood insurance inspection and compliance program a list of all
structures that fail to come into compliance and submit a quarterly progress report to FEMA beginning July,
2003.
n. Evaluate Monroe County's Flood Insurance Inspections and Compliance Program by July 1, 2012, and if
necessary, develop and implement further remedial actions with FEMA's approval, to ensure enforcement of
the County's floodplain regulations.
5) Inadvertent observation of illegal structures below base flood elevation - Florida Statute 553.79 Section 17
(a) that limited local enforcement agencies from requiring an inspection of any portion of,a building, structure, or real
property that is not directly impacted by the construction being proposed, except and unless the proposed
construction is:
1. A substantial improvement as defined in Florida Statute 161.54 or as defined in the Florida Building Code;
2. A change of occupancy as defined in the Florida Building Code;
3. A conversion from residential to nonresidential or mixed use pursuant to Florida Statute 553.507 (2) or as
defined in the Florida Building Code;
4. An historic building as defined in the Florida Building Code.
Any violation that is inadvertently observed in plain view during the ordinary course of an inspection conducted in
accordance with the prohibition in Section 17 of F.S. 553.79 may be issued a notice of violation for an illegal
improvement.
The County Growth Management Division staff has the sufficient resources to implement the above program.
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