Staff Analysis for Declaratory Statement Request DS2017-046

July 31^st, 2017

Issue: DS2017-046 by Neil Hedrick of DALK Land LP. The Petitioner seeks a declaratory statement concerning a permit which was issued for fill placement as per the local Floodplain Management Ordinance.

Background:

The previous Owner/Builder, Peter and Elizabeth Giampaoli, applied for and received a single-family residence (SFR) building permit, Number #09100217, from Monroe County, FL. The project is located in AE and VE flood zones on the Atlantic Ocean.

The permit allowed 3,160 CY of landscape and structural fill. Fill was to be used to support an elevated driveway, an elevated swimming pool and establish grades around these structures. A hydraulic engineering study was included in the permit application based upon specific land contours and fill locations.

The fill was hauled in and placed during September 2014. Contrary to the specific permit drawings and language, it was placed as a level pad with sloping ramps at the North and South ends. Fill was placed over a large portion of the property. A large amount of the fill, perhaps 50% or more, was placed in locations never contemplated for fill placement by the permit. The Owner never submitted revised construction documents to the Building Department for approval. A hydraulic engineer designed the fill pad so that subsequent calculations would support a Letter of Map Revision (LOMR). A LOMR is the official process for modifying the flood insurance rate map, or flood zone. This particular LOMR application did not disclose that it was based upon fill, but instead indicated that FEMA's topographical mapping was incorrect.

In this case the Owner/Builder wanted to change his Flood zone designation from VE-13 to AE-11. This would allow him to build a less expensive structure at a lower elevation and also bring in additional fill.

During November 2014 the LOMR was submitted to Monroe County for approval. Without review, Monroe County approved the LOMR submission. It was then sent to the Federal Emergency Management Agency (FEMA) for final approval. FEMA approved the LOMR in June 2015 subject to appeal and Petitioner appealed the LOMR in July 2015. FEMA subsequently ordered rescission of the LO MR Approval.

As part of the building permit approval process, on June 9, 2009, Monroe County sent the Owner a letter stating that the building permit application met the standards of the flood plain management ordinance but with the following admonition. "Fill may not be used for structural support in the V zone. Fill may not be used to alter the existing grade that the current flood insurance study base flood elevations were based on."

Petitioner sampled the fill in November 2014 and found it to be contaminated with a carcinogen at four times the allowable level for Florida State standards for residential purposes. Petitioner forwarded the sample results to Florida Department of Environmental Protection (FLDEP) on February 6, 2015. FLDEP forwarded the lab results to Monroe County on Feb 9, 2015 and FLDEP conclusions on Feb 20th to Monroe County. FLDEP decided that jurisdiction lay with Monroe County as the fill had been placed pursuant to the building permit issued by Monroe County. FLDEP suggested that the fill be resampled to confirm results. In response, Monroe County visually inspected the fill on February 27th, 2015, and without any further investigation, approved the fill inspection of that same date.

The Owner/Builder in anticipation of the eventual LOMR approval and flood zone change, from Veto AE, substantially redesigned his SFR and landscape fill contours and submitted a permit revision application to Monroe County.

Owner/Builder did not respond to the Petitioner's letter request of March 17, 2015, for removal of the contaminated fill, Owner did in fact secretly sample the fill and confirmed its contamination exceeded FL State standards by many times over. Petitioner filed suit in Monroe County District Court in June 2015.

During early July 2015 the Owner /Builder removed the fill in its entirety and restored the lot to its original contours and elevation.

The permit, issued on April 9, 2010 received its first approved inspection on October 7, 2014 for a temporary power pole. The permit received its second approved inspection on Feb 27, 2015 for fill and received its third and fourth approved inspections on July 22, 2015 for temporary power pole and underground electric. Electrical power was not attached to the temporary power pole until after the second inspection of it.

Between October 7, 2014 and July 22, 2015 there was no net progress on construction of this SFR except the underground electric and temporary power pole inspections of July 22, 2015.

Questions

1) Contrary to FBC 106.4 and the actual permit conditions, the fill, which was authorized in the building permit, was not used as permitted, but instead, all of it was used in a manner that was explicitly not allowed. The Owner made a very major deviation in construction from the approved construction documents. The Owner should have sought a revision to his permit for the actual fill placement was the fill legally placed according to the Florida Building Code?

2) FBC Section R232 specifically does not allow the FBC to supersede the local floodplain management ordinance. Did the building inspector, in approving the fill placement in areas and uses not permitted by the building permit and not allowed by the local flood plain management ordinance, exceed his authority under the Florida Building Code?

3) After notification and referral by FLDEP to the Monroe County Building Department, that the fill had been placed pursuant to a building permit and may have been contaminated and may have exceeded the limits of FS Chapter 62-777, the building inspector made a visual inspection of the fill but made no further investigations into the allegations. Did the building inspector exceed his authority under the Florida Building Code by approving the fill?

4) Is the approved inspection of Feb 27,2015 of the fill still considered valid?

5) Between October 7, 2014 and July 22, 2015 there was no net progress on construction of the SFR. Did the permit expire 180 days after October 7, 2014?

6) There are no Local Amendments by Monroe County, on file with the Florida Building Commission, to the Administrative Sections of the 2007 Florida Building Code,. Does Monroe County have the authority to deviate from the published Florida Building Code?

Staff Analysis:

Because the petition is requesting an answer based on past conduct/decision that Monroe County already addressed, answering this petition for declaratory statements would be legally improper.