FEMA Floodplain and Downstairs Enclosure Discussion Recap

MONROE COUNTY, FL – On Wednesday, Monroe County Attorney Bob Shillinger and County Administrator Roman Gastesi updated the Board of County Commissioners (BOCC) on the County’s recent meeting with the Acting FEMA Region IV Administrator Robert Samaam and his staff in Atlanta regarding the County’s request to change certain floodplain regulations. Members of the public, the construction industry, and real estate professionals were involved in the discussion and provided input, suggestions, and questions regarding the potential changes to the BOCC.

Shillinger and Gastesi relayed that the FEMA discussion focused on three issues the County faces with floodplain management: 1) the County’s FIRM date (1973 versus 1975), 2) the restriction that limits downstairs enclosures to no more than 299 square feet (299 rule), and 3) the Inspection Upon Transfer of Ownership program. Unincorporated Monroe County is the only community in the Florida Keys restricted to 299 square feet, while the municipalities allow up to the full space underneath a structure as enclosable storage space. The 299 square foot limitation was agreed to by the County in 2004 as part of a remedial plan that was adopted to avoid being placed on probation and ultimate suspension from the National Flood Insurance Program (NFIP) due to poor enforcement efforts of the minimum standards required for participation in the NFIP. FEMA’s minimum standards were adopted to minimize the loss of life and costs of cleanup that would be incurred if homeowners were allowed to convert their downstairs enclosures into habitable living spaces.

“The FEMA administrator expressed concerns that the community could backslide into a state of non-compliance similar to what led to the imposition of the remedial plan in the first place,” said Shillinger. “We want to ensure we do not jeopardize our community’s ability to participate in the NFIP.”

Currently, 1,913 (16 percent) of 11,796 NFIP-insured properties in unincorporated Monroe County are listed on FEMA’s National Violation Tracker.

At the meeting yesterday, the BOCC took input from the community about potential changes to the County’s floodplain ordinance. Those suggestions will be incorporated into future negotiations with FEMA and may lead to ordinance changes that will be considered at future public hearings.

Shillinger has been working with the National Association of Realtors legal staff regarding changes to the Inspection Upon Transfer of Ownership program that should address stakeholders’ concerns. He also said County staff is working with FEMA to resolve the dispute regarding the correct FIRM date – 1973 or 1975.

The BOCC also approved a resolution limiting liability for home sellers and buyers who may be affected by the Inspection Upon Transfer program in the ordinance to Jan. 31, 2024. The BOCC approved a similar resolution in March due to the inability of the Building Department to staff the inspection program. Since the BOCC is looking to make changes to the inspection program, they voted to extend the resolution, which was scheduled to sunset on Sept. 1, 2023. The resolution recognizes a defense to a code violation for homeowners who fail to obtain an inspection of their downstairs enclosures prior to the sale of their home. That requirement was adopted in 2012 to help ensure buyers were fully aware of the legality of the downstairs enclosures of homes they were buying.