Monroe County Removes Enclosure Size Rule

County commissioners voted unanimously on Wednesday, Oct. 15, to eliminate floodplain construction requirements adopted two decades ago after FEMA threatened to withhold federally subsidized flood insurance due to the county's failure to prevent illegal living space in unincorporated Monroe.

To be stricken from county code are the 299-square-foot size restriction of enclosed areas below elevated buildings, required inspections of those enclosed areas prior to the transfer of ownership and a floodplain certificate of compliance program.

In 2023, a group of local real estate agents, contractors and title company representatives told county officials that the floodplain rules, which they described as burdensome, were negatively impacting residents and people trying to sell homes, prompting an effort to remove the restrictions.

The restrictions on the size of downstairs enclosures were first established after the county in 2002 was put on probation by Federal Emergency Management Agency for not doing a good enough job restricting people from using downstairs enclosures as living space.

FEMA oversees the National Flood Insurance Program (NFIP), which provides coverage to thousands of homes and businesses in the Florida Keys. The agency wanted illegal structures removed or brought into compliance because of the potential for flood damage to the enclosures, which FEMA, through the NFIP, would have to pay to replace.

Monroe County Administrator Christine Hurley and staff met with FEMA District IV Regional Administrator Robert Samaan in March, who agreed to end what is known as the 2014 Implementation Plan. The county has since tightened its regulations dealing with downstairs enclosures and adopted a program to identify illegal improvements to future buyers.

In other action, the commission directed planning staff to create a backup plan to award remaining Rate of Growth Ordinance (ROGO) allocations to owners of vacant residential lots in the event the Florida Department of Commerce issues a finding that a county Comprehensive Plan amendment to distribute a pool of new allocations approved this year by the Florida Legislature is more restrictive than the existing distribution system and therefore not legal.

Included in the same bill awarding the allocations to the Keys is a rule that prohibits local governments from adopting new language for three years that makes it more difficult for property owners to obtain building permits in Florida counties where federal emergencies were declared after recent hurricanes. Monroe is included among those counties.

Senate Bill 180 directs the state to issue up to 900 permit allocations for the entire island chain to be awarded over a period of at least 10 years. Those allocations must be distributed to the county and municipalities based on the number of vacant buildable lots within each jurisdiction. The county anticipates receiving 588 of those allocations and is drafting language to issue 40 allocations per year.

According to the bill, those permits must be issued for vacant, buildable parcels, with only one permit being awarded to any individual parcel. The distribution also must prioritize allocations for owner-occupied residences, affordable housing and workforce housing.

Monroe County planning staff, however, is concerned that Commerce, which reviews and approves changes to comp plans and land development regulations, could interpret the new requirements for issuing the permits as more restrictive than the current distribution system, despite those restrictions being required under the same law.

Until state officials provide further guidance, staff recommended that the commission earmark 62 of the county's existing set-aside market-rate ROGO allocations known as "administrative relief" for building permit awards through July 2027. This ensures the county can continue issuing building permits after July 2026, when the existing ROGO allocations expire.

Additionally, Growth Management Director Emily Schemper informed the commission that Commerce has raised concerns about the commission's decision in August to set aside 107 workforce housing early evacuation units for the Lower Keys subarea, which the county defines as stretching from Long Key to Key West.

The one-time pool of special building allocations from the state require occupants to evacuate 48 hours in advance of a hurricane unlike other residents.

Schemper said reserving the units for a specific area, rather than the entire Keys, was being interpreted as more restrictive by Commerce given the SB 180 rule, though denial of the new language had not been received as of meeting time last week.

Of those 107 units, 40 were awarded for proposed housing during the August meeting.

Schemper and county legal staff, who have been in communication with Commerce, hope to have an update for the commission by the Nov. 12 meeting.

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