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.
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 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.”
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.
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 remedial 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.”
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.
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.
Several others, including Coral Reef Title Company president Carla Bahn, noted that buyers are already provided with a due diligence period while a property is under contract, and that sellers are already legally required to disclose any illegal unpermitted work, rendering the inspections redundant and an “onerous responsibility on professionals.”
Shillinger cautioned that FEMA was unlikely to agree to wholesale changes to the scrutinized clauses in the ordinance, and that allowing living spaces in enclosures was “probably not going to fly.”
Nonetheless, the commission directed staff to schedule meetings with the agency as quickly as possible to pursue: a change to the county’s Flood Insurance Rate Map effective date from June 15, 1973 to Jan. 1, 1975 in order to provide protections to currently-noncompliant pre-FIRM enclosures built during that 18-month window; an allowance for increased storage space under homes to align with other jurisdictions in the Keys, including a full-footprint enclosure if allowed; and alteration or removal of the Transfer of Ownership Inspection Program to the maximum extent that would still allow the county’s participation in the NFIP. The commission also supported a change in the ordinance to once again allow breakaway walls in enclosures.
County Administrator Roman Gastesi said meetings with FEMA will take place as soon as possible at the agency’s Atlanta regional offices or headquarters in Washington, D.C., noting that, fortunately, many of the agency’s current administrators were not in place when the county’s original probation and threat of removal occurred.
“We have been behaving. More than half of the closings … in municipalities aren’t required to go through this process; we would like to be on the same page as them,” he said. “Based on how well we have done … we should not be on FEMA’s ‘naughty list’ anymore.”
