Enclosure case opens inspection issues anew

Monroe County last week decided to appeal a downstairs enclosure case it has lost three times in the local circuit court because county attorneys are concerned that the ruling from Judge David Audlin sets a precedent and makes part of the county’s flood plain ordinance unenforceable.

Assistant County Attorney Bob Shillinger told the Monroe Board of County Commissioners last week that he would recommend the board approve an appeal of the case.

Monroe County cited Big Pine property owner Sandra Carter three years ago for what it deemed an illegal downstairs enclosure. The citation was upheld by the county’s special magistrate for code enforcement, so Carter appealed that decision to the local circuit court.

It was Carter’s contention, according to Attorney Lee Rohe, that the county had ignored the violation, even though it knew of its existence, for more than two decades.

The county had approved building permits on the property, each one requiring at least one inspection from a county building official several times since the house was built in the late 1970s. The Property Appraiser began taxing the enclosure as square footage on the house in 1983.

“You can’t just suddenly decide to cite someone for a violation that has existed, with your knowledge, for more than 20 years,” said Rohe.

Judge Audlin initially told the county to dismiss the case because they had failed to pinpoint a date when the violation started, just citing it beginning in 2007.

An appeals court determined that the county didn’t need to know when the violation occurred the first time, just that it is a violation now, and sent the case back to Audlin to rule on other defenses Rohe had raised.

Audlin again agreed with Carter, ordering the county to dismiss the case because they had indeed “slept” on their ability to bring a code case against Carter for far too long, said Rohe.

Carter also bought the home in 2001 from relatives during a time when downstairs enclosures more than four years old were barred from code enforcement proceedings by another local court ruling.

That ruling was eventually overturned by an appeals court elsewhere in Florida, leaving Carter subject to county code action.

“Carter had relied on the county’s lack of action, current regulations, and had spent money improving the property in reliance on that,” said Rohe.

The county has been told by the Federal Emergency Management Agency several times in the past that it must have an enforceable flood plain management ordinance to participate in the National Flood Insurance Program. FEMA administers the NFIP whereby coastal property owners can obtain federally subsidized flood insurance. The federal agency mandates that Monroe County control building below base flood elevation both for human safety, because many of those enclosures turn into apartments, and to alleviate some federal spending on storm recovery in the county.

Shillinger claimed that the Audlin ruling made at least parts of the county’s ordinance unenforceable, thus had to be appealed.

“I believe FEMA will want us to appeal,” he said. “They have told us that if we exhaust our appellate remedies (in enclosure violation cases) and lose, they won’t suspend us from the program.”

He also told the BOCC that he believed the judge’s opinion was wrong, applied the wrong law, “and made other procedural errors.”

Shillinger claims that the latest ruling “changes the FIRM date from Jan. 1, 1975 to the date where the county started taxing the property.”

The FIRM date is the date the NFIP came into existence in Monroe County and homes built before that date, including their enclosures, aren’t subject to the county’s enclosure inspection program.

Under that program, property owners who need to renew flood insurance must have enclosures inspected to ensure they conform to FEMA guidelines. The properties can also be inspected when homeowners pull a building permit or when the property is sold.

Rohe calls Shillinger’s claim incorrect.

“A judge cannot change legislation, a judge’s ruling can’t change legislation. The FIRM date is set by legislation,” said Rohe.

Rohe also said that the case probably isn’t precedent-setting because “similar cases would have to have a similar set of facts to use this ruling as a precedent. There are other properties out there that resemble the Carter case, but they’re not the majority.”

Law fellows from local grassroots organization Citizens Not Serfs agree with Rohe.

“As it stands now, the circuit court decision in favor of Carter is immensely beneficial to her, but has little effect on other Monroe County homeowners,” states a CNS letter. “This is because a decision from a circuit court judge does not bind all other judges in the circuit to follow his/her decision. However, a ruling from a judge at the higher appellate court in Miami will bind all circuit court judges in Monroe County to his/her decision, allowing the Carter ruling to benefit all of the homeowners in situations similar to Carter’s.”

The CNS fellows also disagree with Shillinger’s assessment that to not appeal the case would jeopardize the county’s participation in the NFIP, something the BOCC has repeatedly said it will not do.

“There is no evidence that backs up this tenuous argument,” states the letter.

CNS officials argue that Monroe County is in compliance with the NFIP guidelines right now, and can’t be subject to probation or suspension from that program as long as it fulfills the parameters of that program.

The only program mandated by FEMA is the flood insurance inspection program.

According to CNS officials, the county has successfully completed more than 75 percent of the inspections under that program, with 80 percent of those in compliance.

It is CNS’s stance that with such a high level of compliance and the county’s active enforcement of the flood insurance inspection program, FEMA has no basis to remove Monroe County from the NFIP.

The permit application inspection program and the point of sale inspection program were both county constructs after then-seated commissioners attempted to wiggle out from under the insurance inspection mandate.

Part of the reason for those programs was the county’s decision not to appeal the four-year statute of limitations ruling earlier.

“That caused us problems,” said Commissioner George Neugent. “People bought homes relying on that ruling, thinking their enclosures were safe from enforcement, they improved their enclosures. It has left us some issues to deal with now.”

The county is attempting to renegotiate its flood plain inspection program with FEMA, eliminating the permit application phase and strengthening the point of sale phase, a move which would eventually ferret out and eradicate all non-conforming downstairs enclosures.

And that said Shillinger, is another reason why the county should appeal this case.

“The last thing we should do is not take an appeal when we’re asking FEMA to approve some changes to the program,” he said.

The county has until Feb. 10 to file the appeal. Rohe said he hasn’t yet been served.

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