The Key West Keynoter reports that building officials in the Keys have been put on notice: If they allow owners to build apartments below the official Base Flood Elevation, they risk losing flood insurance for the whole community (“Citing FEMA, county denies downstairs apartment,” by Kevin Wadlow).
“After the county in 2010 granted its first hardship exemption for a downstairs enclosure below the base flood elevation in 23 years, FEMA warned that similar approvals for downstairs living space could cause all of Monroe County to lose its flood insurance,” the paper reports.
In this January’s case, homeowner Beth Kuhnke had petitioned for retroactive permission to keep a downstairs apartment where relatives could stay and care for her. But county building officials say the apartment is illegal; they say no permit was ever pulled for it, and they’ve never inspected it. And FEMA has told the county that the personal or financial needs of residents cannot be used to justify construction in the flood hazard zones — whether in advance of building, or after the fact. County building official Jerry Smith said, "We have a county of 75,000 people and we cannot subject them to the loss of flood insurance for their property. It’s not on a whim. It’s the law.”
FEMA provides a general study guide and desk reference for state and local floodplain managers on the fema.gov website. Intended to help local officials administer floodplain regulations, the guide is titled “Floodplain Management Requirements,” and Unit 7, “Ordinance Administration,” discusses hardship exceptions to floodplain rules, using language that is widely quoted by state and local authorities. Says the guide, “When considering variances to flood protection ordinances, local boards continually face the difficult task of frequently having to deny requests from applicants whose personal circumstances evoke compassion, but whose hardships are simply not sufficient to justify deviation from community-wide flood damage prevention requirements.”
FEMA does make allowances for “hardship” exceptions. But so-called “hardship” variances can’t be related to the personal circumstances of the applicant, the guide says: they have to be based on some unusual characteristics of the site or the building. They attach to the property, not to people. So, for instance, the guide offers the example of a wheelchair-bound resident who would have to spend money not only to elevate his house, but to add the wheelchair ramp necessary for access. “While financial considerations are important to property owners and the needs of a handicapped person must be accommodated,” the FEMA handbook says, “these difficulties do not put this situation in the category of ‘exceptional hardships’ because: The characteristics that result in the claimed hardship do not pertain to the property but are personal; A variance is not needed to provide day-to-day access to the building, which can be provided by building a ramp or elevator; and, Having a handicapped person occupy a floodprone dwelling raises a critical public safety concern.”
In recommending a decision not to allow a variance for the Kuhnke property, the Monroe County Commission staff argued that the 1,400-square-foot apartment under the house — apparently built without permits or inspections — could pose a threat to the safety of neighboring houses, as well as to the elderly occupant, if a hurricane storm surge should strike the area. The Commission staff report and related documents are posted online here (“Board of County Commissioners Agenda Item Summary”).
Argues the Commission report: “The fact that this enclosure itself is illegal and non-conforming already leaves the possibility of the non-conforming construction materials being swept onto other lands. Because the enclosure was not permitted nor inspected, the County does not know whether the structure was built with proper materials or if it was built to the regulations and codes in effect. Additionally, those materials and household furnishings/furniture associated with living in the enclosure would further exacerbate the flood impact possibilities. A VE zone storm surge with heights of 11’ above mean sea level with higher than three foot waves on top of that makes this an extremely hazardous place to occupy. The existing unpermitted construction has not been engineered to fail at the required safe load design, meaning the existing construction could cause even further damage to the elevated portion of the house as well as to adjacent properties and structures. ... If flood waters begin to rise, and unforeseen circumstances prevent evacuations, an elderly or handicapped person may be helpless and in harm’s way. Handicapped persons are safer in an elevated home but even safer if evacuated. Additionally the risk to emergency personnel would be increased by the danger a flooded unpermitted structure with electric would pose.”
The County Commission denied the variance request and ordered Kuhnke to tear out the lower-story living space. But Kuhnke doesn’t see the sense in it. In a letter to the Commission, she said, “The existing ground floor structure with break-away walls is not new, it was part of the original building structure more than 30 years ago. The ground floor enclosure has always been an integral part of our home the same as many hundreds of homes built in the area at that time. We have experienced no problems until Hurricane Wilma, and even then the damage was not extensive and easily repaired to original condition. All similar ground floor enclosures in the area remain essentially the same as before the flood.”
And Kuhnke says that if she has to pay for a tear-out, she’ll have to sell. Her family members who live with her help to pay the bills and to care for her, she says, and she needs the space. She wrote, “All I want is to remain in my home (including the ground floor enclosure) as I have for the last 33 years. Our extended family including our doctors, schools and employment and friends are all here in Key West.” If she has to move, says Kuhnke, “at my age and physical condition, I don’t think I could survive.”
