On July 11, 2017, Hernando Beach resident and attorney (licensed in Kentucky)Charles Greenwell spoke to the BOCC during public comment on consent agenda items.
He was specifically concerned with the Hernando County non-conversion agreement for structures in the floodplain (not specifically on consent agenda). Basically, the agreement is for properties where a portion of the structure may not meet flood zone height requirements and the county wishes to ensure that the property owner does not convert that space into living square footage, which would then be prone to flooding. However, the agreement states that a county official has the right to inspect the property at any reasonable time as a condition granting certificate of occupancy. The non-conversion agreement is part of the zoning department’s attempt to meet the FEMA requirements that provide a discounted rate in flood insurance for residents of the county.
“As I stand here, I do not know whether this agreement is actually being contemplated as an agreement to use in this county, but I respectfully submit that this agreement is part of the FEMA flood mitigation strategy,” said Greenwell.
The Hernando Sun can confirm that the agreement is currently being used by the county.
The nonconversion agreement is as follows,
“Whereas, the permitted building has the lowest floor elevated above the base flood elevation plus 1 (one) foot and the design and construction of the building meets current building code and flood damage prevention ordinance requirements; and
Whereas, as a condition of a Certificate of Occupancy, the owner must agree to not alter the building at a later date so as to violate the building code or flood damage prevention ordinance requirements.
Now therefore, the undersigned owner of said property hereby agrees to the following:
1. That the enclosed area below the lowest floor shall be used solely for parking of vehicles, limited storage, or access to the building and will never be used for human habitation without first becoming fully compliant with the flood damage prevention ordinance in effect at the time of conversion.
2. That all interior walls, ceilings, and floors below the base flood elevation plus 1 (one) foot shall be unfinished or constructed of flood-resistant materials.
3. That mechanical, electrical, or plumbing devices that service the building shall not be installed below the base flood elevation plus 1 (one) foot, except the minimum electric service required to address life safety and electric code requirements that conform to the provisions of the electrical part of the building code for wet locations.
4. That the openings in the walls of the enclosed area below the lowest floor shall not be blocked, obstructed, or otherwise altered to reduce the size of the openings or restrict the automatic entry and exit of floodwater.
5. That any variation in construction beyond what is permitted shall constitute a violation of this agreement.
6. That the owner and subsequent owners understand that Hernando County has a right to inspect inside the premises at any reasonable time to verify compliance with this agreement.
7. That this agreement shall be recorded with the deed to the above property so that subsequent owners are made aware of these restrictions.”
Greenwell was concerned with the agreement infringing on property rights of Hernando County residents.
He explained, “Based on my research so far, the agreement is not constitutional in its current form. A warrantless administrative search based on an advanced coerced consent requirement for a certificate of occupancy is unconstitutional.”
Commissioners thanked Greenwell for bringing this matter to their attention and stated that they would like it to appear on a future agenda for discussion after staff has a chance to review it.
Attorney Garth Coller referred to it as a stick and carrot approach where the federal government is requiring the county to take certain measures in order to receive financial benefits. He stated that there is often no way around the requirements. Mr. Greenwell was more optimistic and stated he would be glad to work with the legal department in order to find a solution that would preserve property rights while keeping insurance costs down.