Issue: DS 2014-116. The Petitioner requests clarification with regard to the applicability of a prior declaratory statement to a current and unrelated project whose material facts are consistent with the corresponding underlying material facts in DCA07-DEC-179.

Question: Is the Building Official of the City of Miami Beach authorized by the applicable statutes, rules and law, to utilize and apply the Hollywood Dec. Statement to the Shore Club and its proposed development project if, in his (the Building Official’s) opinion, the relevant, underlying, material facts of the Hollywood Dec Statement are consistent with the corresponding material facts of the Shore Club’s proposed project and he otherwise feel the application would be appropriate?

Background:

Situation: The Petitioner intents to make improvements to the existing buildings and facilities on the Shore Club site and add addition buildings and facilities (the Project). Some aspects of the Project are located seaward of the Coastal Construction Control Line (CCCL). For those components of the Project that lie seaward of the CCCL and have a floor elevation above FEMA’s base flood elevation but below the One Hundred Year Storm Elevation (100-year Elevation) as defined in Section 3109.2 of the Florida Building Code- 2010 Building volume, Petitioner wishes to utilize the Commission’s holding in Declaratory Statement DCA07-DEC-179 in executing the Project.

2010 Florida Building Code, Building:

SECTION 3109 STRUCTURES SEAWARD OF A COASTAL CONSTRUCTION CONTROL LINE

3109.2 Definition.

HABITABLE STRUCTURE. Structures designed primarily for human occupancy and are potential locations for shelter from storms. Typically included within this category are residences, hotels and restaurants.

ONE-HUNDRED-YEAR STORM ELEVATION. The height of the breaking wave crest or wave approach as superimposed on the storm surge with dynamic wave set-up of a 100-year storm. This 100-year storm elevation is determined by the Florida Department of Environmental Protection based on studies published as part of the coastal construction control line establishment process and an analysis of topographic and other site specific data.

3109.3 Elevation standards.

All habitable structures shall be elevated at or above an elevation which places the lowest horizontal structural member above the 100-year storm elevation as determined by the Florida Department of Environmental Protection in the report titled “One-Hundred-Year Storm Elevation Requirements for Habitable Structures Located Seaward of a Coastal Construction Control Line.”

….

DCA07-DEC-179 (Based on the 2004 FBC)

- Whether the Petitioner is entitled to rely on the past consistent interpretations of the Florida Department of Environmental Protection (DEP), and its predecessor agency, the Florida Department of National Resources (DNR), regarding the application of the same regulatory language that is now set forth in section 3109 of the FBC (as evidenced by the past consistent history of permits issued) to determine what uses may occupy an enclosed space in the project that exists seaward of the CCCL and in between the FEMA/NFIP established base flood elevation and the lowest horizontal structural member as described in section 3109.3 of the FBC;

- Whether section 3109.3, Florida Building Code, Building (2004), applied in light of the historical application of language by the predecessor agencies permit use of enclosed space that exists seaward of the CCCL and in between base flood elevation and the lowest horizontal structural member to include retail shops, pool and other bars, snack bars, grills with portable cooking equipment, dining areas where the permanent kitchen is located landward of the CCCL or above the lowest horizontal structural member, toilet rooms and bathrooms, cabanas, recreational spaces such as gyms and card rooms and service/storage/back-of-house facilities.

- The Commission affirmatively answered both of the Petitioner’s inquires. The Petitioner is entitled to rely on the past consistent interpretations of the DEP and DNR to the extent that the historical application of the regulation is consistent with the current context of the FBC. The Petitioner has demonstrated that the contexts are consistent and that, under the particular circumstances of the proposed development, the regulations now contained in Section 3109.3 of the FBC, Building (2004) prohibit restaurants, residences and hotels; and permit use of enclosed space that exists seaward of the CCCL and in between base flood elevation and the lowest horizontal structural member to include retail shops, pool and other bars, snack bars, grills with portable cooking equipment, dining areas where the permanent kitchen is located landward of the CCCL or above the lowest horizontal structural member, toilet rooms and bathrooms, cabanas, recreational spaces such as gyms and card rooms and service/storage/back-of-house facilities, subject to appropriate permitting as required by law.

Note: Section 3109 of the FBC 2010, as relevant to the question posed, has not substantively changed from Section 3109 of the 2004 FBC.

Staff analysis:

Question: Is the Building Official of the City of Miami Beach authorized by the applicable statutes, rules and law, to utilize and apply the Hollywood Dec. Statement to the Shore Club and its proposed development project if, in his (the Building Official’s) opinion, the relevant, underlying, material facts of the Hollywood Dec Statement are consistent with the corresponding material facts of the Shore Club’s proposed project and he otherwise feel the application would be appropriate?

Answer/petitioner: Yes. If the Building Official determines that the underlying material facts and conditions in the Declaratory Statement DCA07-DEC-179 are consistent with the corresponding material facts and conditions in the Shore Club’s project, he may apply the holding of Declaratory Statement DCA07-DEC-179 to the Project.