COUNTY WORKS TO GET OFF FEMA’S ‘NAUGHTY LIST’ FOR DOWNSTAIRS ENCLOSURE CHANGES

Special Workshop Details Probation Driving The Scrutinized Ordinance

ALEX RICKERT alex@keysweekly.com

An April 6 workshop to address concerns from increasingly agitated title companies, contractors and real estate agents over provisions in unincorporated Monroe County’s newly-effective floodplain ordinance shed further light on its origins as county officials and commissioners vowed to pursue remedies with FEMA.

Several items in the ordinance, some of which are either new or established but historically rarely enforced, drew the ire of industry professionals who said they were unaware of the changes, including the limiting of construction materials for some enclosures below flood elevation to screen or open lattice walls; the restriction of enclosures below flood elevation to 299 square feet or less; and inspections of downstairs enclosures during home sales.

informed by the NFIP that unless the county took immediate corrective action, it would be placed on probation in May of the same year due to “deficiencies in the administration and enforcement of the County’s floodplain management ordinance that have resulted in a large number of noncompliant enclosures being constructed under elevated buildings in special flood hazard areas.” medial plan,’” said Shillinger. “A lot of these questions we were going to ask once we got that report back. … Now, we’re going to advance that schedule, and hopefully it won’t have adverse consequences.”

In order to avoid the probation and withdrawal of disaster relief, Bursa said, the county entered into its remedial plan in 2002, including, as the notice stated, “an enclosure inspection procedure developed jointly by the County and FEMA.” The square footage restriction was added via a subsequent resolution in 2003.

Though most public speakers thanked the commission for calling the special meeting, they said the intent of the ordinance as presented was a far cry from the reality experienced by the industry over the past month.

“Since last month’s BOCC meeting, I can honestly say things have gotten more confusing for all of us in this industry,” Key Largo title agent Marlen Weeks told the commission.

“I respect the issues you have here in the Upper Keys from the daytrippers from Dade County, which you don’t have in the Lower Keys,” Cates said.

County officials have spent more than a year dealing with the overcrowding of Bay Drive property. Commissioners aimed to curb the cars parked along the roads and people packing the park by closing between July and September 2021.

The park eventually reopened but closed to visitors during the busier times of the week. People can only visit the park by foot, bike or dropoff Tuesdays to Thursdays from 7:30 a.m. to sunset. No-parking signs were posted in front of the park and surrounding areas.

Last July, county officials discussed minor improvements to the bayside park to allow for some off-street, paid parking for nonresidents. Specifically, the county sought to move the park fence back 50 feet to provide eight to 10 parking spaces. Another option detailed some 20 parking spaces by moving the fence back 100 feet. County commissioners opted for smaller parking numbers.

Talks last year also revolved around parking through the Waze application and making the park available to local residents for free.

Known as the Transfer of Ownership program since its adoption in 2012, the last item requires buyers and sellers to request an inspection upon sale of a property if there is an enclosed structure below flood elevation. Documentation provided by the county would certify whether the enclosure complies with county standards, and though work identified as illegal and unpermitted would theoretically not result in a code case brought against the current owner, it would affect the new owner’s ability to pull a permit later on.

With confusion throughout the industry about the inspections and impacts on closings, the BOCC passed a resolution to temporarily shield both buyers and sellers from lawsuits relating to the inspections. But as the commission noted on Thursday, the resolution was a short-term Band-Aid rather than a long-term fix.

As detailed by senior floodplain administrator Karl Bursa, most of the onerous aspects of the ordinance stem from the county’s remedial plan established with FEMA after numerous violations of the National Flood Insurance Program (NFIP).

In a notice dated Feb. 27, 2002, Monroe County policyholders were

As pointed out by commissioner David Rice, Marathon and Islamorada both incorporated in the midst of the county’s back-and-forth with FEMA, and thus established new municipalities without a documented history of violations, thereby avoiding inclusion in the same remedial plan.

“They didn’t get busted,” he said. “We did.”

County Commissioner Michelle Lincoln and County Attorney Bob Shillinger said the county’s plan was to use what it hoped would be a strong report from its most recent audit by FEMA as a bargaining chip for removal from the remedial plan. But with Hurricane Ian demanding much of the agency’s attention last fall, Lincoln said, the county has been kept waiting for nearly a year.

On a scale of 1-10, with lower numbers favorable, Monroe County currently sits at a Class 3 in the Community Rating System, a program created to incentivize floodplain management practices that exceed minimum NFIP requirements by offering flood insurance discounts. Since joining the program in 2017, unincorporated Monroe County has dropped from a Class 6 to Class 3 and currently receives a 35% discount.

“The first ask (to FEMA) is going to be, ‘Look, we’re done. We’ve shown everything, we’ve come into compliance, and you’ve given us a high rating in the Community Rating Service, so we believe we can get past the re-

Case in point: Although the transfer of ownership inspection was billed as unable to trigger an immediate code case, she said one of her buyers’ agents reached out to the county for an inspection, only to be told via phone, “You really don’t want us inspecting the property. If I go over there, I may find something that shouldn’t be there, and then I’ll have to open a code case and make the seller take everything out that shouldn’t be there.”

“The response from this building official left us all shocked, paralyzed and wondering, what do we do now?” Weeks said. “The public has a right to get a straight answer from those in power, and the answer should be the same no matter who we reach out to. Anything short of this is chaos.”

Weeks also said that as news of the ordinance spread, buyers’ agents have begun to limit showings to homes in incorporated areas of Monroe County such as Key West, Islamorada and Marathon, which do not fall under the same restrictions. Turnaround times for inspections are also affecting transactions that are on the clock to lock in a mortgage rate.

“The situation you’ve created is causing property owners and real estate professionals in unincorporated Monroe to be discriminated against, whether you realize it or not,” she concluded.