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by David M. Levin, Esq.
Waterfront Property & Environmental Law
Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A.

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NEW In this issue:
NEW LAW REQUIRES COASTAL PROPERTIES DISCLOSURE STATEMENT 

In this issue:
What All Waterfront Property Buyers Should Know
Court Reaffirms Broker and Agent Liability For Misrepresentations
City of Sarasota Shrinks "Mega-Houses"
Daylight Plane Ordinance Now In Effect
Innocent Purchasers Now Liable For Code Violations
Confusion Over Swimming Pool Safety Act
Sarasota County Adopts Amendments to Gulf Beach Setback Ordinance
Use of New FEMA Elevation Certificate Now Mandatory
Sarasota County Redefines "Story"
Florida Legislature Relaxes Limitations Upon Rebuilding

Beginning July 1, 2006 all Buyers of properties either partially or totally seaward of the State Coastal Construction Control Line MUST be provided a Coastal Properties Disclosure Statement upon execution of the contract.  This new statement is required to indicate that the coastal property may be: a) subject to coastal erosion; b) subject to federal, state and local regulations concerning coastal construction; c) affected by beach renourishment activities; and/or d) restricted by marine turtle regulations. 

Along all of Florida ’s sandy beaches, the Florida Department of Environmental Protection has an established a jurisdictional line called the Coastal Construction Control Line (“CCCL”).  The CCCL is intended to define the areas of Florida shoreline which are subject to severe fluctuations due to: storm surge, storm waves, flooding or other predictable weather conditions.  Once the CCCL has been established within a coastal county, almost all construction seaward of the CCCL is regulated by the state and requires special permitting from the Florida Department of Environmental Protection.

Prior to this new law becoming effective, a Seller of coastal property was merely required to inform a Buyer whether the property being purchased was located partially or totally seaward of the CCCL.  This information was allowed to be disclosed as late as the time of closing.  Typically, by the time the existence of the CCCL was disclosed, it was too late to halt a transaction or seek additional information regarding the suitability of the property for development.

Under the old law a Buyer was permitted to waive their right to be informed of the location of the CCCL.  This waiver was typically agreed to by unwitting Buyers who did not understand the significance of the restrictions imposed upon properties located seaward of the CCCL.

Under the new law, an amendment to Section 161.57, Florida Statutes, (which is reprinted in its entirety below), the following disclosure statement must be included, either in the contract, or as a separate document, prior to the execution of the contract by both parties (the Effective Date) for any property located totally or partially seaward of the State Coastal Construction Control Line:

“THE PROPERTY BEING PURCHASED MAY BE SUBJECT TO COASTAL EROSION AND TO FEDERAL, STATE, OR LOCAL REGULATIONS THAT GOVERN COASTAL PROPERTY, INCLUDING THE DELINEATION OF THE COASTAL CONSTRUCTION CONTROL LINE, RIGID COASTAL PROTECTION STRUCTURES, BEACH RENOURISHMENT, AND THE PROTECTION OF MARINE TURTLES.  ADDITIONAL INFORMATION CAN BE OBTAINED FROM THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, INCLUDING WHETHER THERE ARE SIGNIFICANT EROSION CONDITIONS ASSOCIATED WITH THE SHORELINE OF THE PROPERTY BEING PURCHASED.”

While the new law makes it clear that the failure to provide the required disclosure statement will not impair the enforceability of a contract or create a right of rescission, the Florida Department of Business and Professional Regulation has advised that a broker or real estate agent who had actual knowledge that the property was located in an area requiring the disclosure, and who failed to make such a disclosure, may be found guilty of violating Section 475.25(1)(b), Florida Statutes for committing misrepresentation or concealment, and may be punished under the provisions of Section 475.42, Florida Statutes.

This new disclosure law reinforces the need to have due diligence inspections and the property closing performed by an attorney with specialized expertise in waterfront property and coastal construction law.  Providing a prospective Buyer of coastal property with a clear understanding of how to comply with federal, state, and local regulations will ensure that the sale or purchase of property located in the Coastal Zone takes place both quickly and seamlessly.

As always, any real property closing performed by David M. Levin, Esq. includes the due diligence inspection, involving an evaluation of federal, state, and local coastal construction regulations, AT NO EXTRA CHARGE.

FULL TEXT OF NEW LAW
Florida Senate - 2006                     SB 1948
CODING: Words stricken are deletions; words underlined are additions.
16   161.57  Coastal properties disclosure statement.--
17   (1)  The Legislature finds that it is necessary to
18  ensure that the purchasers of interests in real property
19  located in coastal areas partially or totally seaward of the
20  coastal construction control line as defined in s. 161.053 are
21  fully apprised of the character of the regulation of the real
22  property in such coastal areas and, in particular, that such
23  lands are subject to frequent and severe fluctuations.
24   (2)  At or prior to the time a seller and a purchaser
25  both execute a contract for sale and purchase of any interest
26  in real property located partially or totally seaward of the
27  coastal construction control line as defined in s. 161.053,
28  the seller must give a written disclosure statement in the
29  following form to the prospective purchaser which may be set
30  forth in the contract or in a separate writing:

1   The property being purchased may be subject to
2   coastal erosion and to federal, state, or local
3  regulations that govern coastal property,
4  including the delineation of the coastal
5   construction control line, rigid coastal
6  protection structures, beach nourishment, and
7  the protection of marine turtles. Additional
8  information can be obtained from the Florida
9  Department of Environmental Protection,
10 including whether there are significant erosion
11 conditions associated with the shoreline of the
12 property being purchased.
13  
14  (3)(2)  Unless otherwise waived in writing by the
15  purchaser, at or prior to the closing of any transaction where
16  an interest in real property located either partially or
17  totally seaward of the coastal construction control line as
18  defined in s. 161.053 is being transferred, the seller shall
19  provide to the purchaser an affidavit, or a survey meeting the
20  requirements of chapter 472, delineating the location of the
21  coastal construction control line on the property being
22  transferred.
23  (4)  A seller's failure to deliver the disclosure,
24  affidavit, or survey required by this section does not impair
25  the enforceability of the sale and purchase contract by either
26  party, create any right of rescission by the purchaser, or
27  impair the title to any such real property conveyed by the
28  seller to the purchaser.

What All Waterfront Property Buyers Should Know

I am often asked, "Why should a Buyer of waterfront property hire an attorney to do the closing, and what are the benefits of hiring an attorney who limits his practice to waterfront property law?"

First and foremost, only an attorney is qualified to provide legal advice!!!

If an attorney is hired to issue the title insurance and perform the closing, this legal advice is included in the service.

An attorney can answer questions of utmost importance to all Buyers, such as,

Is the recorded legal description accurate?

What is the nature of any deed restrictions upon the use
of the property?

Will the title to the property be marketable for future sales or refinancing?

What is the zoning of the subject property and how will local zoning laws affect the use of the property?

The purchase of waterfront property requires a higher level of due diligence than other properties. An attorney experienced in waterfront property law can assist the Buyer in answering important questions such as,

What federal, state and local governmental restrictions will affect the development or redevelopment of the property?

Does the existing structure comply with applicable Flood Zone requirements?

Is the property suitable for the Buyer’s intended purposes?

Who owns the submerged lands adjacent to the uplands?

Can I build a new dock or modify an existing dock?

Do riparian rights come with the property?

Unlike a Title Company, having an attorney on the Buyer’s side can help make sure the Buyer’s interests are faithfully upheld. One of the greatest benefits of using an attorney is that the attorney has an ethical obligation to work on behalf of the Buyer’s interest.

Buyers should understand that there is a difference in the level of service between closings performed by an attorney and those performed by a Title Company. They should also be advised that with respect to waterfront property, not all real estate attorneys have the same level of experience.

To gain a better appreciation for the issues to be resolved prior to the purchase of waterfront property, Buyers are encouraged to review the two-part brochure entitled, "What Every Waterfront Property Owner Should Know". These brochures, containing comprehensive checklists, can be obtained by contacting, DAVID M. LEVIN, ESQ.

Court Reaffirms Broker and Agent Liability For Misrepresentations

In a decision rendered by the Florida Second District Court of Appeal on October 31, 2003, the Court in Syvrud v. Today Real Estate, Inc., 28 Fla.L.Weekly D2505, reiterated the respective duties of sellers and their representatives in regard to the sale of residential property. In particular, the Court held that an "as is" clause in a contract for the sale of residential real property does not waive the duty imposed by Johnson v. Davis to disclose hidden defects which materially affect the value of the property.

In Johnson v. Davis, 480 So.2d 625 (Fla. 1985) the Florida Supreme Court denounced the ancient concept of "Let the Buyer Beware" as related to residential real estate, and declared the law in Florida to be:

"Where the seller of a home knows of facts materially affecting the value of property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used."

Following the Florida Supreme Court’s decision in Johnson v. Davis, the Florida Third District Court of Appeal in Revitz v. Terrell, 572 So.2d 996 (Fla. 3^rd DCA 1990) held that a real estate broker could be held liable for the failure to disclose to the Buyer that the subject structure was in a FEMA Flood Zone and that the ground floor living area was built in violation of local building codes. The Court suggested that a real estate agent may be held liable for nondisclosure or misrepresentation even if the agent did not have actual knowledge of the legal status of the structure, but based upon the circumstances, should have known that the structure was non-conforming.

The Court in the recent decision in Syvrud v. Today Real Estate, Inc. emphasized that the duty of disclosure announced by the Florida Supreme Court in Johnson v. Davis extends to a seller’s real estate broker, and that a seller’s broker may also be liable to a buyer on the theories of negligence and fraudulent misrepresentation.

Under Florida law, a real estate broker or agent may be held liable for damages under a theory of fraudulent misrepresentation when the broker or agent makes a material false representation without knowledge of its truth or falsity. Young v. Johnson, 538 So.2d 1387 (Fla. 2^nd DCA 1989).

With respect to waterfront property, there are way too many issues that may materially affect the value of property to enable a Broker or Agent to correctly inform Buyers about the status of the property. Frequently there are FEMA concerns, questions regarding the legality of existing structures such as docks or seawalls, the suitability of the property for development or redevelopment under coastal construction regulations or the extent to which mangroves or other wetland plants may be altered.

Thus, to avoid potential liability, Brokers and Agents should resist the temptation of offering answers regarding the legal status of waterfront properties. Buyers and Sellers must assume the burden of establishing the factual and legal status of waterfront property.

To accomplish this important task, Sarasota environmental and waterfront closing attorney David M. Levin has prepared a very valuable tool; a two part Checklist entitled, "What Every Waterfront Property Owner Should Know". Part 1 contains a comprehensive list of questions which should be answered to ascertain the condition of property in relation to applicable FEMA regulations. The questions are to be answered by the Seller and/or appropriate public and private professionals to ascertain the legal status of existing structures.

Part 2 contains a comprehensive list of questions concerning a variety of environmental considerations. These too are to be answered by the Seller and/or appropriate public and private professionals.

The Checklists should be used by Sellers to assist them in the preparation of their disclosure statements and by Buyers to evaluate the completeness of the Seller’s disclosures.

A fully informed Buyer and Seller reduces the incidence of misrepresentation and nondisclosure. Informed Buyers and Sellers reduce the potential for conflict, and hence, reduce the potential for real estate broker and agent liability.

These Checklists were prepared as part of Mr. Levin’s continuing efforts to be of service to Buyers and Sellers of waterfront properties. They are available free of charge and can be obtained by contacting Mr. Levin at (941) 629-6319 or by e-mail at dlevin@icardmerrill.com.

It is recommended that the Checklists be used in conjunction with this website.

In the furtherance of his efforts to serve the community, you may be interested to know that Mr. Levin has recently expanded his practice to include waterfront property closings.

City Shrinks "Mega-Houses"

Responding to a perceived proliferation of so-called "Mega-houses" within established neighborhoods, the City of Sarasota City Commission recently adopted a comprehensive Ordinance limiting the height and mass of single-family residences. The Ordinance also imposes new requirements for single-family homes pertaining to stormwater drainage, noise from mechanical equipment, and trees. The new Ordinance is effective as of February 21, 2002.

Prior to the new amendments, the City of Sarasota Zoning Code allowed the maximum height limits to be measured from the required FEMA or State minimum building elevations. For example, in a zoning district which has a maximum height limit of 35 feet, if the proposed house was located in a FEMA "V" flood zone with a required base flood elevation of 15 feet, the total building height, after making allowances for the FEMA requirements would be 35 feet above the bottom of the first horizontal beam supporting the first habitable floor, or approximately 50 feet above sea level.

The new Ordinance does not allow full "credit" for the elevation requirements mandated by FEMA or State regulations. Instead, under the formula created by the new Ordinance, using the previous example, a proposed house located in a flood zone with a base flood elevation requirement of 15 feet could only be built to 40 feet above sea level.

The new Ordinance also imposes restrictions on the mass of new single-family residences by establishing a "daylight plane". Somewhat similar to Sarasota County’s daylight plane restrictions, the City’s new Ordinance limits the width of the upper stories of new houses.

Key elements of City’s Ordinance are new definitions for the terms "reference level" and "recovery elevation".

The term "reference level" is defined as, "the elevation on a property to begin measurements for determining the overall allowable height of a single-family structure". The new Ordinance provides that the reference level "shall be the average elevation of all abutting properties at finished grade of existing structures or buildable areas of a vacant lot."

The term "recovery elevation" is defined as "the baseline for the measurement of the maximum height limitation for the measurement of residential single-family dwellings in FEMA flood zones. The Recovery Elevation shall be equal to fifty percent (50%) of the height between the Reference Level and the Minimum Flood Elevation for such properties."

New provisions relating to Daylight Plane regulations read as follows:

"All single-family dwellings shall not be of such height or size that they penetrate the daylight plane, which is an angle of forty-five degrees (45^o) measured above horizontal from the side yard setback lines, and beginning twenty-five feet (25') above the greater of the Reference Level or the allowed Recovery Elevation, said plane projecting upward toward the center of the parcel. The daylight plane requirements above shall not apply to: (i) Roof overhangs, chimneys, antenna and elevator shaft enclosures; (ii) Dormers or other architectural features that do not exceed a combined thirty percent (30%) in length of the roof on the side of the structure upon which the dormers or architectural features are located."

The following graphics depict the how the new Ordinance is to be implemented both in and outside of FEMA flood zone areas:

With little fanfare, on August 10 a new Sarasota County Ordinance went into effect which should send shivers down the spine of all current and prospective property owners. Sarasota County Ordinance No. 2000-052 now makes the current owner of real property "strictly liable" for violations of County Codes which remain uncorrected upon the property, even if the violation occurred before the current owner took title to the property, and even if the County never previously sought to have the violation corrected.

Prior to its amendment on August 10, Sarasota County’s Code Enforcement Ordinance defined the term "violator" to mean "a person or entity legally responsible for the violation". This meant that before a property owner could be held responsible for a violation of a County Code, the County would have to demonstrate that the property owner caused the violation or hired someone to commit the violation on the owner’s behalf. A few County Ordinances, such as the County’s Zoning Code, make a subsequent purchaser legally responsible for a violation if the subsequent purchaser "maintains" the violation. In such cases, it has been held that the violation "runs with the land". That is why consideration of zoning requirements has always been an important aspect of an appropriate due diligence review. Remember, title insurance does not cover zoning code violations.

As amended, the Sarasota County Code Enforcement Ordinance no longer limits its application to persons or entities "legally responsible" for violations, but now includes as "violators" any person or entity who owns, occupies, or controls property on which a "code violation has occurred or remains uncorrected".

I have been involved in two recent cases which demonstrate the practical and dire consequences of the amendment.

Ms. S. recently purchased waterfront property. Sometime prior to her purchase, a former owner planted numerous "Beach Naupaka" plants for landscaping purposes. For many years, Sarasota County’s Natural Resources Department listed Beach Naupaka as a salt tolerant plant suitable for beach landscaping and included said plant in its list of species appropriate for mitigation purposes.

In 1997, Sarasota County adopted Ordinance 97-024 prohibiting the importation, transportation, sale, propagation, or planting of several plants, including Beach Naupaka.

Sarasota County has cited Ms. S. for violating Ordinance 97-024 notwithstanding the fact that the County acknowledges that Ms. S. neither imported, transported, sold, propagated, or planted the subject plants. Ms. S. has been ordered to remove the plants or pay a fine of $250 for each plant for each day that such plants remain on her property.

Mr. M. recently purchased waterfront property with an appurtenant boat dock. The property was specifically purchased because the dock was large enough to accommodate Mr. M.’s boat. The seller provided Mr. M. with a copy of the County’s permit for the subject dock. Mr. M. neglected, however, to compare the approved plans for the dock with the dock as actually built. In reality, the dock was constructed 10 feet longer than approved. When Mr. M. sought a permit to install a boat lift, the County discovered the discrepancy and has cited Mr. M. for violating the County’s dock construction ordinance. The County will not issue an after-the-fact permit and is requiring Mr. M. to remove the additional 10 feet of dock. The shorter dock is not suitable for Mr. M.’s purposes.

In neither of these cases was there any enforcement action of record to put the buyer on notice that a violation existed on the property. The County is holding these innocent property owners responsible for correcting violations discovered after the purchase.

Unlike zoning code violations, the Ordinance "violations" involved in these examples do not "run with the land" by virtue of specific language in the underlying ordinance. In fact, most code violations do not "run with the land". Nevertheless, by virtue of the County’s new Ordinance, unsuspecting property owners are now being held liable for violations they did not commit, and in some cases, for violations which were not violations at the time they were committed.

In the face of the County’s new Ordinance, what’s to be done?

First, greater attention must be given to due diligence inspections. Whenever feasible, such inspections should include consideration of the County’s "dock ordinance", zoning regulations, Gulf Beach Setback ordinance, exotic plant ordinance, flood control (FEMA) ordinance, building code, and water pollution ordinance. Consultation with an experienced waterfront lawyer during such due diligence inspections is highly recommended. While this may be a time consuming and expensive process, unless or until the new Ordinance is amended, all purchasers of improved property run the risk of being held responsible for violations they did not commit.

Second, the new Ordinance must be changed. I firmly believe that the County’s new Ordinance is unconstitutional. At the very least, it may be unconstitutional as an ex post facto law. The Board of County Commissioners of Sarasota County should re-write the new Ordinance to protect innocent purchasers from liability for violations which occurred prior to their purchase. If the County must impose liability upon subsequent purchasers, such liability should be limited to violations of record. To impose liability upon subsequent purchasers, the County must agree to record Notices of Violations and Code Enforcement Orders so that such notices and orders will be found during a title search. The County should also impose a statute of limitations with respect to Code Enforcement violations.

The County has the option to enforce its ordinances in Court, or by means of a Code Enforcement Special Master. If the County chooses to enforce violations in the Courts, pursuant to State law, its case must be brought within one year of the date of the offense. Unfortunately, if the County chooses to enforce violations administratively by means of a Code Enforcement Special Master, there is no limit as to when the case must be brought. In fairness to innocent purchasers, the County should impose a one year statute of limitations on violations to be enforced administratively.

The only way that these important changes may be brought about is if the Sarasota County Board of County Commissioners hears your concerns. Just as with the recent adoption of the County’s amendments to its Gulf Beach Setback Ordinance, the County has unwittingly lengthened the time between contract and closing of real property. More time than ever before is now needed for due diligence inspections, particularly with regard to waterfront property.

If you are concerned about this situation, E-mail the following County Commissioners and request that Sarasota County Ordinance No. 2000-052 be amended such that innocent purchasers of real property are not unfairly held liable for Code violations which were caused or committed by prior owners and without the purchaser’s knowledge.

District 1 – Paul Mercier

District 2 – David R. Mills

District 3 – Shannon Staub

District 4 – Nora Patterson

District 5 – Jon Thaxton

Confusion Over Swimming Pool Safety Act

Beginning October 1, a new State law requires all NEW residential swimming pools, spas, and hot tubs to be equipped with "pool safety features". Much confusion has been generated concerning the scope of the new legislation. Early drafts of the bill approved by the Florida Legislature required "pool safety features" on ALL pools, old and new. The final version of the law signed by the Governor clearly applies ONLY to NEW residential swimming pools, spas, and hot tubs constructed after October 1, 2000.

Section 515.27, Florida Statutes provides that in order to pass final inspection and receive a certificate of completion, a residential swimming pool must meet at least one of the following requirements relating to pool safety features:

1) The pool must be isolated from access to a home by a swimming pool barrier;

2) The pool must be equipped with an approved safety pool cover;

3) All doors providing direct access from the home to the pool must be equipped with an audible exit alarm; or

4) All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor.

Click here to view the full text of Chapter 515, Residential Swimming Pool Safety Act.

Sarasota County Amends Gulf Beach Setback Ordinance

    In the first major amendment to Sarasota County’s Gulf Beach Setback Ordinance in over 20 years, on October 11 the  Sarasota County Board of County Commissioners adopted provisions significantly limiting the existing exemptions to the County’s prohibition against coastal construction.

    Sarasota County Ordinance No. 79-03 establishes a setback line along the Gulf of Mexico, New Pass, and Big Pass. The Ordinance PROHIBITS construction and excavation seaward of said setback line.

    Since its inception, Ordinance No. 79-03 EXEMPTS from the prohibition against coastal construction any modification of any existing structure, provided such activity took place within the limits of the existing foundation. Thus, for example, second story additions were exempt from the prohibition.

    Ordinance No. 2000-069, the Ordinance amending Ordinance No. 79-03, now states that to be exempt, the modification must not require, involve or include any additions to, or modification of, the existing foundation of the structure.

    The new Ordinance expressly excludes from the exemptions modifications that include the construction of additional stories placed on top of an existing structure.

    Prior to its amendment, the existing Ordinance exempted footbridges (dune walkover structures), decks, and other similar structures (such as privacy walls and fences, gazebos, and spas).

    The new Ordinance no longer exempts footbridges (dune walkover structures) and other similar structures (such as privacy walls and fences, gazebos, and spas).

    The new Ordinance limits exempt decks to 144 square feet and provides that there can be no more than a total of 144 square feet of exempt decking per lot.

    The new Ordinance no longer exempts driveways of less than 500 square feet undertaken landward of existing residential structures or hard surfaced public travelways.

    Activities that were previously exempt from the prohibition against coastal construction, now may be approved by County Staff as "Written Conditioned Exceptions". Upon receipt of an application together with a fee to be specified by Resolution, under the new Ordinance County Staff will have ten working days to either approve or deny an application for Written Conditioned Exception. Within the ten day period, the County Staff may also request that the applicant provide engineered construction and site plans, written information from other State and local agencies, or other pertinent information. There is, however, no time limit provided in the new Ordinance within which County Staff must approve or deny the Written Conditioned Exception following receipt of the requested information.

    Written Conditioned Exceptions may be issued for the following activities:

• Additional stories constructed on the top of an existing structure, provided that the existing foundation is not added to or modified.
  
• Residential additions of less than 300 square feet to be used only for the purpose of housing a stairway, entryway, or elevator. Only one such addition will be approved for a given residential structure. The addition must be located landward of the State’s Thirty Year Erosion Projection Line and within the shore-parallel shadow of the residence. Both of these limitations are further defined in the new Ordinance.
  
• The placement of less than 100 cubic yards of beach compatible sand on a lot.
  
• The repair of expansion of an existing septic system.
  
• Wooden and metal fences, entry gates, and professionally engineered breakaway privacy walls that are not installed on a beach or dune.
  
• Hard-surfaced driveways, sidewalks, and parking areas totally less than 500 square feet per lot. Such structures must be located landward of the seaward most point of an existing habitable residence, or landward of an existing hard-surfaced travelway.
  
• Dune walkover structures and decks designed to minimize impacts to lateral pedestrian access and dune vegetation. The width of dune walkover structures on residential property is limited to 4 feet.

    The new Ordinance authorizes County Staff to issue Written Conditioned Exceptions provided that the proposed construction will not adversely affect lateral pedestrian access and the project is not located within a beach or dune, coastal hammock, mangrove swamp, or tidal marsh. Unfortunately, the issuance of Written Conditioned Exceptions is subject to the discretion of County Staff since these terms are not defined in the new Ordinance.

    The new Ordinance provided a time limit of "approximately 45 working days" within which County Staff is to complete a written staff report and recommendation to the Board of County Commissioners from receipt of a complete application for a Variance from the prohibition against coastal construction. No such time limit existed within the existing Ordinance. The new Ordinance does not, however, provide a time within which the Board of County Commissioners would consider the Variance request.

    The new Ordinance also requires the County Staff to make a specific recommendation either to approve or deny the Variance. Presently, Staff can make a "neutral" finding which makes it difficult to prepare for the Variance hearing.

    The existing Ordinance requires the completion of construction authorized by a Variance within three years. Extensions needed to be considered by the Board of County Commissioners at a public hearing. The new Ordinance authorizes the County Staff to grant a one-year extension for issued Variances.

    The existing Ordinance authorized the Board of County Commissioners to grant Emergency Class I Variances following calamitous meteorological events. The Board must be in public session to grant such emergency variances.

    The new Ordinance now authorizes the County Staff to grant Class I Variances for the temporary placement of sandbags caused by recent storm events. Thus, such emergency Variances can be issued more promptly in response to a storm event.

    The new Ordinance remains effective only within the unincorporated areas of Sarasota County, i.e., Siesta Key, Casey Key, and Manasota Key. Properties within the City of Sarasota, Venice, and the Town of Longboat Key are unaffected by the County’s prohibition against coastal construction.

    The new Ordinance goes into effect upon receipt by the Office of the Secretary of State. It is anticipated such will be accomplished the week of October 16. Copies of the new Ordinance may be obtained from the Sarasota County Clerk to the Board, 1660 Ringling Boulevard, Sarasota.

Use of New FEMA Elevation Certificate Now Mandatory

    After a ten month postponement, FEMA's new Elevation Certificate must now be used to satisfy National Flood Insurance requirements.  Effective October 1, 2000 existing Elevation Certificates may no longer be utilized.

    The requirement to use FEMA's new Elevation Certificate will result in significant changes in the way due diligence determinations are conducted with respect to waterfront properties.  No longer can a surveyor be relied upon to identify whether a structure is conforming or non-conforming for FEMA purposes.

    As a result of major changes in FEMA's Elevation Certificate, it may now be necessary to consult with waterfront professionals, such as an attorney experienced in FEMA matters, to review the information on the new FEMA Elevation Certificate, to conduct a site inspection, and to review approved building permits to appropriately advise a buyer regarding the legal status of a property from a FEMA perspective.

    FEMA Elevation Certificates serve a number of purposes;  they provide elevation information necessary to determine the proper flood insurance premium rate, they verify whether a property is likely to become flooded, and most importantly, Elevation Certificates provide information necessary to ensure compliance with local floodplain management ordinances.

    Upon the adoption of a local ordinance implementing FEMA flood zone regulations, all new construction and substantial improvements to existing structures must meet FEMA's elevation requirements.  This means that the top of the first habitable floor of structures within a FEMA "A" Flood Zone must be at or above the established base flood elevation.  For structures within a FEMA "V" zone, the bottom of the lowest horizontal structural member must be at or above the required base flood elevation. [Click here for a more in depth discussion of FEMA requirements]

    Structures that do not comply with current FEMA elevation requirements are considered to be "non-conforming".  "Illegal" non-conforming structures are structures built or modified after the effective date of FEMA regulations and which were built or modified without meeting FEMA structural requirements.  "Illegal non-conforming structures" are considered to be "public nuisances" and may, by government order, be made to come into compliance with FEMA requirements, or be demolished.

    "Legal non-conforming structures" are structures which were either built before FEMA elevation requirements were adopted, or are structures which met FEMA requirements at the time of their construction, but have become non-conforming as a result of subsequent changes in the FEMA requirements.  Legal non-conforming structures may be maintained, repaired, or improved, provided that the cost of such repairs or improvements do not exceed 50% of the fair market value of the structure.

    The "old" FEMA Elevation Certificate was a very useful tool to ascertain during the due diligence period of a real estate transaction whether the existing structure was conforming, legally non-conforming, or illegally non-conforming with FEMA requirements.  The "old" FEMA Elevation Certificate required a surveyor to determine the applicable FEMA flood zone, to determine the applicable FEMA base flood elevation, and to determine the elevation of the top of the first habitable floor for structures in an "A" Zone, or the elevation of the bottom of the lowest horizontal structural member below the the first habitable floor.

    Since space below the required FEMA base flood elevation can only be lawfully used for the parking of vehicles, storage, or building access, any use of such space for "living" purposes would be non-conforming.  Under the "old" FEMA Elevation Certificate, the surveyor would be required to make a determination as to whether the space below the required FEMA base flood elevation was being utilized for purposes other than parking, storage, or building access.  If so, that floor would be considered the "lowest floor" for the purposes of the FEMA Elevation Certificate.

    If the surveyor indicated on the "old" FEMA Elevation Certificate that the lowest floor was at an elevation below the required FEMA base flood elevation, a determination could be made during the due diligence period that the structure was "non-conforming" and, with further investigation, a determination could be made whether the structure was "legally" or "illegally" non-conforming.

    Obviously, such a responsibility upon the surveyor created the potential for professional liability if the surveyor was not familiar with FEMA requirements.  As a result, the surveying community was able to prevail upon FEMA to remove this obligation in the "new" Elevation Certificate.

    In discussing the new Elevation Certificate, a FEMA official has stated, "the old form asked whether or not the structure was in compliance with local flood plain management ordinances.  That is not something that the surveyor or engineer filling out the form should have to do.  It should be done by the local community official -- the person who is most likely to have a proper background in flood plain management ordinances."

    Thus, the new Elevation Certificate no longer requires the surveyor to provide the elevation of the "lowest" habitable floor.  The new Elevation Certificate only requires the surveyor to identify the elevation of the "bottom" floor and the top of the "next higher" floor.  The bottom floor may or may not be the lowest habitable floor.  DO NOT ASSUME THAT IF THE ELEVATION OF THE TOP OF THE BOTTOM FLOOR IS BELOW THE REQUIRED BASE FLOOD ELEVATION, THAT THE STRUCTURE IS NON-CONFORMING!!

    Similarly, if the top of the bottom floor is below the required base flood elevation and the top of the "next higher" floor is above the base flood elevation, DO NOT ASSUME THAT THE STRUCTURE IS CONFORMING.

    The new Elevation Certificate has a new section to be completed by the local government imposing the FEMA requirements.  This new section provides a space for the local government official to identify the "as-built" elevation of the lowest habitable floor.  It also provides a space for the local official to identify building permits which can be compared with the as-built elevation to determine compliance.

    Unfortunately, the new section to be completed by the local government is merely optional.  Recent conversations with Sarasota County's FEMA official has confirmed that the County will not be providing information on the new FEMA Elevation Certificate.

    Therefore, the new FEMA Elevation Certificate is no longer very useful for determining during the due diligence period whether or not a structure conforms to FEMA's elevation requirements.

    Buyers of residential and commercial properties located within FEMA "A" or "V" Zones will now have to consult with waterfront professionals, such as an attorney experienced in FEMA matters, to review the information on the new FEMA Elevation Certificate, to conduct a site inspection, and to review approved building permits to appropriately advise a buyer regarding the legal status of a property from a FEMA perspective.

CLICK HERE TO OBTAIN A COPY OF FEMA'S NEW ELEVATION CERTIFICATE.

Sarasota County Redefines "Story"

        In an effort to minimize the proliferation of so-called "Mega Houses" on Casey Key,
the Sarasota Board of County Commissioners recently amended the Ordinance establishing the "Casey Key Conservation District" to provide a new definition of the term "story".
       
      Sarasota County imposes a maximum 35 foot height restriction on residential structures.  Structures within the Casey Key Conservation District are limited to two "stories".  In order to comply with both requirements, for the purposes of measuring height, the measurement has traditionally started at the level of the first habitable floor.  The space below the first habitable floor was not considered as a "story".

        For structures that are landward of the State Coastal Construction Control Line, the new Ordinance specifies that a "story" shall include the following:

        In a FEMA "A" Flood Zone, the space between the base flood elevation and the top of the lowest floor.

        In a FEMA "V" Flood Zone, the space between the base flood elevation and the bottom of the horizontal structural support of the first habitable floor.

        For structures that are seaward of the State Coastal Construction Control Line, the new Ordinance specifies that a "story" shall include the space between the required "wave crest elevation" and the bottom of the lowest horizontal structural member.

        Typically, the State's wave crest elevation will be approximately 3 feet higher than FEMA's base flood elevation.  Thus, for example, if the base flood elevation for a "V" Flood Zone is 15 feet above sea level, the State will require the bottom of the lowest horizontal structural member to be at or above 18 feet for State Coastal Construction permitting purposes.

        In the example presented above, Sarasota County will begin the measurement for height limitation purposes at 18 feet above sea level.   A maximum of two stories will be permitted above the 18 foot elevation.

        If the property owner, however, elects to set the bottom of the lowest horizontal structural member at 22 feet above sea level, instead of the required 18 feet, the 4 feet of space between the required and elected elevation of the lowest horizontal structural member will be considered as a "story".   Thus, the structure would be limited to one story in addition to the 4 foot story just described.

        The ultimate effect of the new Ordinance will be a disincentive for raising residential structures above the minimum elevation set by the State.  Structures designed to meet the State minimum elevation requirement will be allowed to construct two stories for a maximum combined height of 35 feet above the State required elevation.

        The Sarasota Herald-Tribune erroneously reported that the new Ordinance would require the space above the base flood elevation and below the bottom of the lowest habitable floor as a "story".  This statement would not be correct for structures located seaward of the State Coastal Construction Control Line.

Florida Legislature Relaxes Limitations Upon Rebuilding

    Significant legislation was passed this year that will help soften the hardship of "picking up the pieces" following damaging storm events.  In order to understand the scope of the new law, it is important to review pre-existing laws relating to construction within coastal high hazard zones.

    Section 161.55, Florida Statutes requires that beginning March 1, 1986, all major structures (defined to include all types of residential, commercial and public buildings) shall be designed, constructed, and located in compliance with FEMA regulations or the local flood damage prevention ordinance, whichever is more restrictive.  Section 161.55, Florida Statutes further provides that the foundation design and construction of a major structure shall consider all anticipated loads resulting from a 100-year storm event, including wave, hydrostatic, and hydrodynamic loads.

    Section 161.55(5), Florida Statutes defines the term "construction" to mean the carrying out of any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land.

    Prior to this year's amendment of Section 161.55(12), Florida Statutes, the term "substantial improvement" meant "any repair, reconstruction, rehabilitation, or improvement of a structure where the actual cost of the improvement or repair of the structure to its pre-damage condition equals or exceeds, over a 5-year period, a cumulative total of 50 percent of the market value of the structure either: (a) Before the improvement or repair is started; or (b) If the structure has been damaged and is being restored, before the damage occurred."

   In practice, in order to remodel non-conforming residences without the necessity of complying with the costly design standards mandated by Section 161.55, Florida Statutes, such improvements were conducted in a manner so that the cost of said improvements would not equal or exceed 50 percent of the market value of the structure.  Commonly, such remodeling would cost just under the 50 percent limitation.

    When Hurricane Opal devastated the Florida Panhandle several years ago, the practice of maximizing improvements under the "50% Rule" prevented the repair of storm damaged structures.  Having "maxed out" under the "50% Rule", unlucky property owners found that any repair to their damaged structures constituted a "substantial improvement".  Therefore, no repairs could be made without retrofitting the existing non-conforming structure to current design standards.   In many cases, this requirement was economically unfeasible, so storm damaged structures were abandoned.

    In response to such hardships, the 1998 Florida Legislature amended the definition of "substantial improvement".  As amended, Section 161.54(12), Florida Statutes now defines the term "substantial improvement" to exclude from the total cost "nonstructural interior finishings including, but not limited to, finish flooring and floor coverings, base molding, nonstructural substrates, drywall, plaster, paneling, wall covering, tapestries, window treatments, decorative masonry, paint, interior doors, tile, cabinets, moldings and millwork, decorative metal work, vanities, electrical receptacles, electrical switches, electrical fixtures, intercoms, communications and sound systems, security systems, HVAC grills and decorative trim, freestanding metal fireplaces, appliances, water closets, tubs and shower enclosures, lavatories, and water heaters, or roof coverings."

    It is self-evident that by excluding the cost of such "nonstructural interior finishings", a significant amount of dollars can be applied to exterior repairs without exceeding the 50% limitation.

    There is one notable "catch" to the implementation of the 1998 amendment, however. The exclusion of "nonstructural interior finishings" only applies after a structure has been damaged and is being restored.  The exclusion does not apply to voluntary, elective improvements.

CLICK HERE FOR A LIST OF WATERFRONT REALTORS

 

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