As mighty oaks from little acorns grow, so do avalanches develop from one tiny snowflake. Sarasota County’s plan to improve its ordinance regulating building activity in the flood plain is more like "snowflake" than "acorn."
It began as a benign effort to make county regulations more transparent – the snowflake. It resulted in a crowd of angry lawyers, upset coastal – and wealthy – residents, a threatening federal agency and a widow worried about the demolition of her home. The avalanche. Underneath lay five bewildered county commissioners.
The snowfall is not over. A lengthy public hearing on Dec. 8 was continued until Jan. 27. In the meantime, private and public lawyers will huddle, commissioners will talk with federal regulators, legal records will be researched and the solutions of nearby counties will be explored. Snow will fly from professional shovels. How did this happen?
THE OLD HOMESTEAD
More than 47,000 homes in the county enjoy the protection of federal flood insurance. Because coastal properties tend to be more valuable, the total insurance value is $10 billion in policies. Simple math makes that average $200,000 per policy. However, federal flood insurance only insures up to $250,000 per property no matter how many rooms are in the mega-mansion – which means there are plenty of properties worth less than $200,000 to balance out the mega-mansions on the coast. All of them need federal flood insurance to make the mortgage companies happy.
Keep that thought in mind. This is not about mega-mansions. It’s about old Florida shacks on the coastline. Take it from no less an authority than Michael Saunders, the local real estate doyenne who grew up in exactly that kind of home on the north end of Flood Longboat Key.
She offered an example. "I have a charming, historic beach house [for sale]. You’d like to know if you could hurricane-harden the house. You don’t want a starter castle," she told the commissioners last week. "So I take you to our building department."
Maybe you want hurricane-proof windows. And doors. And a modern kitchen with a dishwasher. And maybe you bought the house for $90,000 – the recent sale price of a "shack" on Casey Key. But under federal regulations, you can spend only $45,000 to upgrade your shack. That fact is killing sales all over the keys and ringing alarm bells in real estate agents’ offices. "No wonder we’ve lost three sales this year," said Saunders.
WHAT FEMA WANTS,
FEMA GETS
The Federal Emergency Management Agency manages the Federal Flood Insurance Program. It sets the rules, and any county that does not toe the line gets bumped out of the program. Exclusion carries significant penalties: no more federal grants for community development and no post-hurricane federal disaster assistance.
The FEMA edict causing local heartburn is the so-called "50 Percent Rule." It bans spending more than half the value of a home on repairs or improvements. As property values plummet on the islands, the amount of money that can be spent on upgrades is plummeting, too. And that’s killing sales.
The rule has been on the books for decades. Only recently did it become a very hot issue with real estate professionals.
The crux of the issue is "the value of a home." Appraisers are among several types of real estate professionals who have been clobbered by the recession. County building officials are scrutinizing homeowner appraisals, looking for values inflated so more can be spent on remodeling.
County Commissioner Joe Barbetta told Paul Radauskas, a county building official, "We’re hearing from some appraisers out there that are not happy with you. What happened in the past year?"
Radauskas was making the staff presentation on a proposed revision to the "Flood Damage Prevention Ordinance." Before he could reply, Commission Chairman Jon Thaxton jumped in. "Property values plummeted."
"Property values do play a big part in this," said Radauskas. "One Casey Key property sold for $270,000 two years ago. It was sold later for $90,000."
ELEVATION IS THE ISSUE
FEMA is tired of paying again and again for beachfront buildings destroyed by natural disasters. Any new construction now must be elevated on pilings. The height of the living-room floor is set by state agencies. In Sarasota, the Florida Department of Environmental Protection says the elevation is 19.4 feet above sea level. Any modification of an existing building beyond the 50-percent rule must be elevated – a very costly proposition.
Thus, owners of buildings at ground level are severely constrained on the cost of modification, even if their changes increase storm resistance. The term in state law is "substantial improvement," but it is not defined in the state statute or the Florida Building Code.
"We need to get an interpretation of the Florida Building Code," said Commissioner Nora Patterson. County Attorney Stephen DeMarsh replied, "That does not affect this FEMA flood ordinance."
BRING ON THE BULLDOZERS
The structures at greatest risk are the historic beach cottages that dot Casey and Manasota keys. If an owner is willing to bulldoze the shack, he can pour as much money as he likes into a new building as long as it is elevated 19.4 feet.
"Everything historic will be scrapped," said Saunders. "Nobody knows what they can or can’t do, so they do nothing."
She was the first of many to speak at the public hearing, which dragged on for hours. Lawyer after lawyer came forward to speak, as did many Casey and Manasota Key residents. Not one spoke in favor of the proposed ordinance.
One lawyer – Casey Coburn – spoke of a widowed client who faces the demolition of her house after making "substantial improvements" in excess of the fifty-percent rule. He appealed her case through the county’s administrative proceedings without success and took the issue before a circuit judge, who granted summary judgment in favor of the county.
Attorney David Levin – representing the Manasota and Casey Key associations – cited language from a 1989 Federal Register demonstrating the legislative intent behind the law. "It was never the intent of FEMA to exclude the cost of code compliance, to fix sub-standard conditions," he said. ""We could exclude code compliance from substantial improvements."
County Attorney DeMarsh rebuffed his logic. "There is no law requiring people to meet current codes [in existing structures]," he said. "The Federal Register is not the law."
WAGONS CIRCLED;
SCOUTS DISPATCHED
The critical speakers, amplified by more than a thousand unflattering e-mails, caused the county commissioners to squirm in the no-win quagmire. Should the commissioners give in to the critics and watch FEMA yank federal flood insurance? Or keep FEMA happy and face the outrage of wealthy key residents? Or should they stall?
Senior county staffers rode to the rescue. County Administrator Jim Ley suggested Thaxton visit FEMA officials. "Tilt at this windmill and maybe knock it over," he suggested.
Ley asked the public to frame questions for Thaxton to put on FEMA’s table.
DeMarsh said he would look at the Florida Administrative Code to determine the scope of building officials’ activities. And he was instructed to work with Attorney Levin to examine possible modifications to the language in the proposed ordinance.
Never once mentioned in the lengthy public hearing was the global rise in sea levels. In the coming weeks, the county commissioners will be presented with a "post-disaster recovery plan" developed over the past year by citizens and county staff.
No commissioner mentioned a Mote Marine Laboratory symposium this year the examined the anticipated inundation of the southern half of the county in future tropical storms, as old hurricane models give way to new realities.
Despite the political backpedaling, the issue remains real. How should the county manage development and redevelopment in the flood plains?
More than one-quarter of county territory qualifies as a flood plain. The political heat is coming from the barrier islands residents. After the new flood maps are unveiled in the coming month, expect to hear from the inland folks too. The "big muddy" is going to get wider and deeper.
December 22nd 2009 - 5:13PM