Gr: 0 RG[ l\1ERL IN ASSOCIATES INC

:\ RCHI II: CT LRF I1\T ERIO R DES I(j\"

7729 Hol:day Drive SntJg Harner \,Itliage phone 941 923 8868 fax 941 923 9148 George ~",'eriir.Arcrutect #AR10~;23 Sarasota Florida 3.1;3 ~ gmeri1r,@;meriinarchitec!ure corn Corcorancn #AAC024:·S

Florida Buildil1~ Commission Florida Dept. ll( community Affairs Building Codes and Standards

2555 Shumard Oak BI\d.

Tallahassee. Fl. ] 23'J9-2I 00

.:\ItI1.Mr. \10 Madani Emai I:c !1_1~!..:..!.!1..0.dan i~d(·'l.St<D~:ll:_us Ph: 85()-()2 J -2247

\lr, Madani

Per our telephone discussion this letter is to request a declaratory statement from the Florida Building Commission. lam a Florida licensed architect and Ircquemly design single l~lI)lil: homes on the gullcoasr barrier islands that are in the area seaward of the FDEP.'fBC coastal construction control line. \·1y request relates [0 two scenarios lor two future projects in the CCCL zone.

The first ca:-e consists or a single story single family dwelling and proposed renovations to such. including a vertical second story addition: wherein all renovations. including the new second storv. art: all within the footprint/perimeter of the existing foundation and wherein the cx isting foundation has been inv cstigatcd and proven by engineering calculations to be: adequate [0 support the proposed rcnov ations per the requirements of the F'Be Ior Existing Buildiug-, (i.e. gr;'l\ily and wind loadxj.vc irhout moJit~ ing or adding to the original existing foundation in :m) \\ay.

.

/.;

The second case is similar. except the proposed renovations involve horizontal additions outside the exi sti111,; Ioundat ion footprint.perimeter. .

Third and la:-;tl~ I'm requesting clarification regarding the priority l,i'FBC or local govcmmcrn

~~.II,;>.l.il~!f_L:':'

\lJJJ)!.\:.Prior to vlarch J. 200:. the Florida Department (If Lrn ironmcntal Protection f !·TlI-Pi. Burc.u: ,It' bcuchcs and ('11;1:-.1:11S: ~tell1<;, -:11 ,; irccd and interpreted the <tandards i~lr construction ;;ea\\ ard (ij' tflL'('( ·CI. purxuant III the pnl\ isions III' Ilorida Statutes Chapter I()I .ind the rules it established in Chuptcr (,213-.''; FS (,harkr 16J .053( 1.2I contains all exemption \(1 the: Jc:;ign and construction -;tandarJs i( «thcrwisc irJlf'\)sl:~ IHl construction seaward (It' the ceer.. for "any mod ifcati 1)0. maintenance. or repair td ~Jl1:c.Xi;-;tjll~!structure within the limits or the ~'xi:.titlg Iound.uion w hich doe-. nor require. involve. or include an~ additions to. or repair Ill' modification or till' nisring Iound.uion 'It" th.u

<rruciurc. ThL: historic interpretation PI"this exemption language by the FDF]>. Bureau Ill' Ikach.:s .md (',\;bI:i1 Sy stcm-; has :t11()\\L'd repairs and modifications [0 existing structures SL:•.rwanl nlthc eeeL to have Ill' limit on the Cllst or the \\IHk provided the work stay cd within lhe limits Ill" the c'\iSling foundation and die! 11\)t modify that foundation

Similarlv, the I·DI·Y. Bureau of Beaches and Coastal Systems has provided lor another cxcmprion to the l'I(;\ ution and piling foundation standards it otherwise imposes on construction sC:l\\-md Ill' the Ceef. in Charter 6:2B-33.007(4 i(c). in which it states ... the Department shall authorize the construction of additions. repairs. or modifications to existing nonconforming habitable structures that do not meet the elevation or foundation standards of this paragraph, provided that the addition. repair. or modification docs not advance the seaward limits or the habitable construction at the site. does not constitute rebuilding of the existing structure. or docs not otherwise comply \\ ith the requirements of this rule chapter. ,.

The historic. interpretation or this exemption language by the FDEP, Bureau of Benches and Coastal Systems has been that ifthe work on an existing habitable structure involves all addition outside the existing foundation and/or a repair or modification of the existing foundation the \\01").; is still exempt from the otherwise imposed standards unless it constitute a "substantial improvement as defined by FS I()1.54( 12I.

Alter March I. ~002. the enforcement and interpretation of the standards for construction seaward of the CCCL \\.LtS transferred to local governments. The applicable standards arc still those prescribed in FS Ch. 161 and Ch 6213-3.1. but also include the standards in pne Ch ~109.

It is our understanding that the provisions of FBC Ch 3109 are consistent with those in I"S Ch 161.

FBC ell 3109.1.1 contains all exception ro the design and construction standards it otherw ise imposes \)11 construction seaward or the ('eel... for "any modification. maintenance. or repair to any existing structure within the limits or the existing foundation which docs not require. involve. or include any additions to. or repair or modi Iication 'if. the ex iSling foundation of that structure." This is identical to the' .excrnption from construction standards prov ided in FS Ch 161.0:;~( 12) Similarly. FBCCh]I09..1andl-B'C Ch 3 J09.4 contain exceptions toelevation andpile foundation

. requirements. respectively, for "additions, repairs, or modifications to existing nonconforming habitable structures that do not advance theseaward limits of the t'xistjn~ structure and donot constiiuu. rebuilding 01' the cx.isting structure."

This j.~ identical III the exemption from construction standards provided 111 "f)LP Ch o2B.~~.O(m 4)(c).

Questions for Ded:lraton' Action:

1. Is the application of the exception in FBC Ch 3109.1. J the same as the historical application and interpretation (If the exemption in FS Ch 16U)53( 12) i.e., repairs and modifications to existing structures seaward of the ('CeL have nil limit nn the cost of the work provided that the work stays" ithin the limits of the existing foundation and docs not modify that foundation and also meets the requirements of the Flnridu Building Code for Existing Buildings'!

2:1. Istheapplication andintcrpretatiun oftheexceptions inFBCCh3109.3and J109..1to be the same as the historical application and interpretation of the exemption in FDEP Ch 62B-.l3.1W7(.t)((,), i.e. if the work on an exixtinj; hahitahle structure involves an

,

;.

addition outside the nisting Inundation. the work isstill cxcrnpt from the nthcr» isc

imposed clevurion and pill' foundation standards unless the addition outside the existing
foundation constitutes a "substantial improvement" to the existing structure, as defined
hy FS 1615 ..t(12)'?

20. Is the application and interpretation of the exceptions in FBe Ch 3109.3 and .3J OI}A to he the sumc liS the historical applicatiun and interpretation of till' exemption in FDEP Ch(,2 B-,33.f)()7( ••){c). i.e., ifthe work Oil an existing habitable structure involves an addition outsidethe existing foundation or a repair Of' modification to the existing foundation, the work is still exempt from the otherwise imposed clevatinn and pile foundation standards, unless the addition outside the existing foundation and modifications above and within the existing foundation together constitute a "substantial improvement" tn the existing structure. as defined by FS 161.5 ..t(11)'!

3. The FBe code within section 3110.1..2 defines that the f'BC defers to local g()ycrnmcnt~ floodplain management for FE:\lA codes and local floodplain. The FHC code as stated says "the FEe defers to local governments for all floodplain management construction regulations for all structures that arc NOT seaward of the CCeL". (Emphasis lidded to the word NOT). noes this mean that when local codes arc in conflict with File relating to requirements for projects that ARE seaward of the CeCL, that the state code takes prioriry over local codes?

irepartment ot

Environmental Protection

.'1.3rio(; ):onC::T1Jn [!C~Jl)';S B;.:j!dl~£

3900 CCi1··HT.on\ve~;~hgovh~"4!rc' U31r"ic e S~I'ur~~

T.!lllhd5see. Flor da ]7399-30C"l~ Sc-:C\!;;' .';

]a.:HJary 27, 2003

.

t'....·,

George Merlin, President George Merlin Associates, Inc. 7719 Holiday Drive. Snug Harbor Village Sarasota. Florida 34231

Dear Mr. Merlin:

SUBJECT: DEP Consultation File CNS-ST0478

This letter is if. response to your letter of November 15, 201.12, regarding exemptions, design standards, and permitting requirements for improvements to an existing residential dwelling

(i.e. habitable major structure) located seaward of the coastal construction control line (CCCL). Please be advised that the building design standards enforced by the Department of Environmental Protection (DEP) under Rule 62B-33.007, Florida Administrative Code, only ell;;]Y to those projects received prior to the effective date of the Florida Building COOe.. I-(l;;owi;lg are responses \0 the questions raised i:J your letter:

Q If 211 existing.building's roof and walls arc removed to the foundation level, but the foundation itself is unmodified, the construction of new walls, floors and roof over that unmodified foundation is exempt from DEP permitting requirements and elevation requirements. This is correct or not?

A. ExemntioD Determi!1?tion -According to Paragraph 161.053(12)(a), Florida Statutes. the C02S~.l construction control line permiuing requirements, including the requirements of the thirty-year erosion projection pursuant to Subsection 161.053(6), Florida S:;\lJ:e.s, do not apply to any modification, maintenance, or repair to any existing structure within the limits of the existing foundation which does nN require. involve. or .nclcde ;!ny additions to, or repair or modificauon of, the existing foundation of t~2.i structure. Therefore, the proposed construction described above woi.ld not require a pcrrni: f~om this agency if it me: this criteria, regardless of building height, number of :'1oors or CCS1.s involved. TIlt; design standards of Rule 628-33.007, Florida :\drninis:2.ti\e Code, cannot be enforced by DEI' (IIi proposed proja~~.~wh.cb are exempted from permitting ..

Gc('rge Merlin, President

January 2'"7, 2(x)3

Pilge 2

Conversely, proposed improvements to <U1 existing structure would not be exempted from the DEP permitting requirements if the improvements extended outside the limits-of the existing foundation or involved modification of the foundation. Additions tilar are attached to an existing foundation constitute an extension and modification of [he foundation, and therefore, would not be exempt from the DEP permitting requirements.

Detached additions obviously require a permit as they would clearly be outside the limits of the existing foundation. However, in this case, the existing building structure

and improvements inside the existing structure will remain exempt [rom permitting
provided they met the exemption criteria aforementioned, there-fore, and would not
have to comply with the design standards of the rule.

In the above cases both attached (whether they are structurally attached or not) and detached additions require permits from DEP for the same reasons.

Q. Additions to an existing structure are exempt from p.ling and elevation requirements if they are non-substantial improvements to the existing structure. This is correct or nor!

A.. PC;;J.,.g11Sta1dards -The elevation and pile foundation standards (along with all other stancards) of Rule 62B-33'(YJ7(5)(c), F.A.C., apply only to all proposed habitable major structures and aU proposed non-exempt improvements to existing habitable structures, except improvements to an existing structure which do not advance farther seaward than the existing building and improvements which do not constitute rebuilding of the structure. Rebuilding is defined as a substantial improvement to the building as defined under S. 161.54(12), F.S.

Please note that these standards apply to dwellings (i.e. habitable major structures &:) defined by rule) only and not other buildings or structures.

Non-•exempt improvements have to meet the appropriate design standards of the ;-:Jk including pile. foundation and elevation standards, jf required. The elevation ~nd pik .ounda.ion standards would apply only if the improvements, including additions, were ("...cnsidcred rebuilding (i.e. a substantial improvement) or extend farther seaward t:iJ.r tilt: existing dwelling. Otherwise, the additions would not be required to meet :b .• elevation and pile foundation requirements.

Detacbed additions which extend farther seaward or constitute rebuilding of the ~x..i$tinJ: s:..ructure also have to meet pile foundation and elevation standards.

George Merlin. Prcsidcn: Januar'T 2i I 200J Page :5

The pile foundation and elevation requirements for habitable major structures do not
apply to garages or porches, or other non-habitable major structures which are
separated structurally from the main dwelling if the structural separation demonstrated from the foundation up to and including the roof system. is clearly
3,
Q, DEP permits as well as local permits arc required for any construction outside the limits
of an existing foundation. This is correct or not?
A. Permitting Recuiremems..: An proposed activity seaward of the CeCL requires a permit
from this Department unless it is exempted by law or rule. Moreover, the FBC also
requires an applicant to obtain an environmental permit from the Department in aocirion
to a local building permit for structures seaward of the CeeL.

If you have any additional questions concerning this matter, please call Dr. Muthuswamy Subouswamy (aka Dr. Swamy) or me at (850) t87-4475, extensions 143 and 1~7, respectively, or you may write to us at the leuerhead address. Moreover, we are available to assist the local building department in interpreting 'Jie design standards of Rule 62B· 33.007. r.:'\.C" tk: Were transferred to and are specified under Section 3107 of the Florida Building Code.

TDM.ijg

cc: [Jr. Swamy, Engineer

~ :: t\ /,

[.'"\.-'

-tiE- L: ICARD MERRILL

2033 Main Street Suite 600 Sarasota, FL 34237 941 .366.8100 Fax: 941 .3666384 icardmen illcom

~

James E Aker E DustyAker Charles J. Bartlett Paul D Beitlich

G. Matthew Brockway Bruce P.Chapnkk

Andre K R Charbonneau Maureen C 01iofnlo Michael W COChlM

Stacy Dillard-Spahn William H. Drumm Mark C. Dungan Michael L. Foreman Michael J Puren

Arthur D Ginsburg Steven R Greenberg F Thomas Hopkins Thomas F. Icnrd.]r

Todd D Kaplan Io Ann M Koontz

Jason A. Lessinger David M Levin, LLM Robert K Lincoln Robert G Lyons Patricia C Meringer Williilnl W Merrill, m Robert E Messick Troy H Myers, Jr.

Al}'SS<1 M Nohren J Geoffrey Pflugner Stephen.D Rees Stephen Douglas Rees, Jr.

Lindsey A Schneider Jaime L Wallace John J Waskom

Richard 5 Webb. TV

Anne L Weinballb

ATTORNEYS & COUNSELORS

October 28, 2008

George Merlin Associates, Inc. 7729 Holiday Drive Sarasota, FL 34231

RE: Substantial Improvements and 2nd Story Additions Over Existing Foundations Pursuant to Florida Building Code Section .3109 and Floodplain Management Section 3110

Dear George:

This letter provides the requested research regarding coastal properties in FEMA and CCCL zones where substantial improvements and 2nd story additions over existing unmodified foundations are proposed:

1. FBC General Rule: Substantial Improvements Must Be Elevated to Meet FDEP & FEMA Requirements.

FBC Section 3109 1.1 requires that structures located seaward of the Coastal Construction Control Line (CCCL) be designed to resist the predicted forces associated with a lOu-year storm event. This section is applicable to "substantial improvement of or additions to existing habitable structures" pursuant to Section 3109. 1.1.2.

2. FBC Exception: Substantial Improvements Within the Limits of Existing Foundation Are Exempt from FDEP Requirements.

However, the FBC also provides an exception to this general rule as part of FBC Section 3109.1.1. The exception states "the standards for building seaward of a CCCL area do not apply to any modification, maintenance or repair to an existing structure within the limits of the existing foundation which does not require, involve or include any additions to, or repair or modification of, the existing foundation of that structure." Based on the plain and simple language of this exception, the provisions of Section .3109 do not apply to modifications of an existing structure within the limits of the existing foundations which does not require, involve or include any additions to, or repair or modification of, the existing foundation of that structure. All subsequent requirements of Section 3109.1.2 through 3'109.8 therefore should not apply in such a case.

Icard, Merrill, Cullis, Timm, Furen & Ginsburg, PA -Established 1953 Offices in Sarasota, Manatee and Charlotte Counties George Merlin Associates, lnc

October 28, 2008

Page 2 of 4

3. The FBC Commentary Supports the Exception.

Nonetheless, the FBC commentary to this exception provides:

This exception allows modifications contained within the

existing and unmodified foundation of a legally

nonconforming structure an exemption from the provisions

of Section 3109. Care and attention must be given to

consideration of total improvement costs since they may

trigger substantial improvement regulations, mandating

that the entire structure be brought into compliance with

current floodplain management regulations.

Floodplain management regulations are covered in Section 3110 and clearly refer to FEMA regulations as differentiated from CeCL regulations pursuant to section 3110.1.2.

a. Inconsistency of Some Agencies with the FBC Exception.

Clearly, the first sentence ofthe commentary confirms the position that this type of structure is exempt from Section 3109 based on the exception. Some agencies have suggested that the second sentence of the FBC commentary takes away the exception when the proposed work "may trigger substantial improvement regulations". They argue that "such proposed work exceeds the substantial improvement threshold as defined in Section 3109 of Building Code, and as such doesn't qualify for exemption."

This position. if implemented. would make the FBC exception meaningless. The exception a110\',,'5 all or peut of the existing structure to be modified, provided the existing foundation is retained as described in the exception. The exception expressly applies to. among other things, subsection .::! of 3109.1.1, which specifically and expressly deals with "substantial improvement of or additions to existing habitable structures." Therefore, the exception clearly provides in plain language that the standards for buildings seaward of a eeCL area do not apply to any modification. maintenance. or repair to any existing structure. illciudimt substantial improvement of or veltical lldditiollS to existinQ: habitable structures. within the limits of the existing foundation as provided ill the exception. A contrary interpretation makes no sense and is 'not reasonable because it takes away precisely what the exception in the FBC provides. That is. the FBe i'lIIOW5 substantial improvements tel existing structures provided the existing foundation of that structure is not modified or added to.