Posted by: Patricia Salkin | June 23, 2019

FL Administrative Court Rules Building Official Lacked Authority to Make a Determination as to Vested Rights on Land in FEMA Flood Zone

Peter G. Giampaoli and Elizabeth C. Giampaoli, Individually and as Trustees of the Giampaoli Family Trust have been engaged in an ongoing effort to build an oceanfront residence on Sugarloaf Key in the Florida Keys. Monroe County has regulatory jurisdiction over the development of the subject property and issued a building permit for same. Dalk Land owns the parcel directly adjacent to the subject property’s southwest border. On September 25, 2018, Dalk Land, LP filed an appeal with Monroe County, pursuant to the Monroe County Land Development Code, contesting the Building Official’s approval of the Giampaolis’ revised certification of elevation, an approval which in turn prompted the concomitant lifting of a stop-work order that the Building Official had previously issued after having “failed” Giampaolis’ original elevation certificate. At the heart of the dispute is a line—the line which divides the two flood zones wherein the seaward portion of the property lies.

 

The Federal Emergency Management Agency (“FEMA”) establishes and defines flood risks and flood zones. FEMA determines, as well, the levels of flood risk existing in communities nationwide, demarcating geographic areas of similar risk, which it classifies according to flood zone. FEMA creates, stores, and updates Flood Insurance Rate Maps that depict these zones. The two flood zones of interest here are especially high risk “velocity zones” (“VE”), namely VE-13 and VE-15, which latter is, as between them, the more hazardous coastal area. As part of the agreement for making flood insurance available in a community, FEMA requires adoption of floodplain management regulations that specify minimum requirements for reducing flood losses—one such requirement is for the community to obtain the elevation of the lowest floor of all new buildings. Less than two years ago, nearly 1,200 residential and commercial structures in Monroe County were destroyed by a Category 4 hurricane.

 

The ALJ found that, as a matter of ultimate fact, the structure is located in both the VE-13 and VE-15 flood zones. The Giampaolis failed to satisfy the condition of achieving compliance specified in the stop-work order and the County therefore erred when it approved the second elevation certificate and lifted the stop-work order. These administrative actions were reversed and vacated. The ALJ reasoned that because Monroe County’s Land Development Code does not grant the Building Official the authority to determine whether or when an owner’s rights have vested on account of having demonstrated reasonable development expectations whose destruction would be highly inequitable and unjust, thus, the Building Official’s vested rights determinations are ultra vires and void ab initio. The County’s Building Official was without jurisdiction to decide whether, under the doctrine of vested rights, the County is estopped from imposing upon the Giampaolis the consequences that follow from a determination that the structure is, in fact, in the VE-13 and VE-15 flood zones.

 

 

Dalk Land, LP v. Monroe County Planning Commission and Peter Giampaoli, Elizabeth Giampaoli, Individually and as Trustees of the Giampaoli Family Trust, DOAH Case No. 18-5255 (5/22/2019)


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