BOCC says no to criminalizing enclosures

By Steve Estes

The Monroe Board of County Commissioners Wednesday agreed to some changes in the county flood plain management regulations.

The board agreed not to criminalize a failure by sellers to get a lower level enclosure inspection upon sale of their homes, a suggestion that had been made by county staff to put some teeth into the regulation.

In the proposed version turned down by the BOCC, sellers who did not get a downstairs enclosure inspection could have been charged with a second degree misdemeanor with penalties up to $2,000 per day.

“I’m not very comfortable with charging people with a misdemeanor for failure to get an inspection that we can’t prosecute anyway,” said Commissioner Kim Wigington.

The ordinance as approved requires sellers to get the inspection, but only allows the buyer to seek civil redress if the proper inspection is not done. The stated intent of the new ordinance is strictly to gather data concerning non-conforming uses. Failure to bring the structure up to current code will not result in code enforcement action, according to Growth Management Director Christine Hurley.

Instead, she said that some homes that have already been identified as in need of a lower level enclosure inspection for flood insurance renewal and haven’t called for the inspection will be caught in that process when the policy comes up for issuance or renewal.

That means the Federal Emergency Management Agency’s pilot inspection program, which was supposed to have ended in 2009, will stay on the books.

More than 5,500 homes were identified as in need of a lower level enclosure inspection for flood insurance renewal, but more than 2,000 of them have not yet called for the inspections.

Hurley said FEMA hasn’t yet answered the county whether homes that weren’t initially identified would be added to the pilot program when the home sold and a mortgage required flood insurance.

Another method to ferret out non-conforming lower level enclosures will be when homeowners apply for a building permit to make improvements to the enclosure.

A state law passed last year prohibits the county from conducting inspections of lower level enclosures simply because a permit was applied for elsewhere on the property. But the inspections can be done for compliance with current code when a homeowner applies for a permit that affects the lower level enclosure.

Property owners may also have to submit to a lower level enclosure inspection if the home is substantially destroyed by a storm or other calamity and the repairs reach 50 percent of value, or if a homeowner applies for permits to remodel or enlarge the home and the value of the construction is 50 percent or more of the value.

Value has been redefined, however, to eliminate cost of demolition from the equation and to tag value to the market value, not the tax appraisal value, the latter of which is usually substantially lower than the actual market value.

The commission also agreed to some other changes, particularly in the definition of limited storage.

According to FEMA guidelines, lower level enclosures may only be used for parking, access and limited storage. Prior to the new regulation, county staff had interpreted a very narrow view of limited storage, primarily yard tools and plastic items that couldn’t be damaged by flood waters.

Under the new definition, limited storage covers items accessory to the residential use of the home that can be easily moved out of the flood plain during storm preparations.

The new regulation also establishes a voluntary certificate of compliance program that Hurley feels will end some of the issues involved between sellers and buyers when homes transfer with a lower level enclosure.

A property owner can request a lower level enclosure inspection and if found compliant be issued a certificate that can be filed with the deed that proves to a buyer what is permitted in the enclosure.

Any deviations from that certificate would have to be worked out between the buyer and seller prior to closing.

Commissioners decided they had little to no leverage to take sellers to code enforcement for not obtaining the inspections because most of the county’s punitive actions are based on being able to lien the property to achieve compliance. And they didn’t want to use the lack of an inspection to take punitive action against a buyer who may have been assured during the purchase process that the enclosure was allowed.