It was such a quiet little vote last month, coming near the end of Monroe County's regular commission meeting in Key West. But it appears it will have loud, long-lasting ramifications to the owners of homes with downstairs enclosures.
Commissioner Sonny McCoy said he thought the meeting was already over and had stepped outside, thereby missing a chance to cast his vote on a measure that would pass 4-0.
But Sugarloaf attorney Lloyd Good described the vote as "a slap in the face to Judge Richard Payne."
The vote ratified a new twist on an old county law to require among other things, "any parcel with an unlawful use or improvement shall be brought into code compliance prior to the issuance of a building permit."
The large media outlets either covered it with a one-word statement or ignored it altogether. But it didn't escape the attention of Good, the attorney responsible for a ruling by Judge Payne last October, which set officials with the county's code enforcement and the Federal Emergency Management Agency back on their heels.
What that ruling did, until FEMA says otherwise, was to bar the county from using its enforcement hammer to force homeowners to spend thousands of dollars to demolish their downstairs enclosures, if they were built more than four years ago.
These enclosures, built under stilt houses within the county's flood-hazard areas, had been among the several thousand homes FEMA has targeted as violators of the county's flood-plain ordinance.
That county law had been ordered by FEMA, which according to the agency's mantra, is based on the worst-case, once-every-100-year mythical flood that its computer models say might cause the stilted homes to be undermined, topple, take out themselves and, like so many dominoes, take out their neighbors as well.
McCoy said this week that the commission's recent vote "is probably an unreasonable burden to place on these people." But he would reserve his "full rhetorical response" until the September meeting.
Commissioner Dixie Spehar, one of the four who voted for the ordinance, said she intends to ask the full commission to revisit the measure when they meet at the Marathon Government Center Sept. 19-20.
Spehar said she understood the effort by Tim McGarry, director of Growth Management, was to allow homeowners to get a building permit for repairs and replacement of the roof and other building components "to address imminent risks to property damage that could affect public health and safety."
Spehar is sensitive to such issues, since back in the mid-90s she was forced by the county to tear out the downstairs enclosure within her Big Coppitt home at a total cost of $17,000.
Her home had been built in 1984, and had gone through three previous owners. When it got to her, she was unable to produce any permits that might have been passed down. So, while she would have fit under the present Payne umbrella, back then she had no choice but to rip it all out.
"The situation aggravated me so much, I don't even live there anymore. I rent it out," she said.
The county's recent action, however, was aggravating to Good. "What it did was to make all the downstairs enclosures, except for (his client) Janis Beattie's, unmarketable," he said. It was Beattie's case, which led to the Payne ruling. But since it was not a class-action suit, it technically only applies to her.
Good said you can try to sell your house under the recent county action, "but by the time you tell them the only way they can do any improvements, such as putting in a swimming pool, they would have to tear out their downstairs enclosure, you'll be talking to the trunk of their car as they drive away."
McGarry, however, doesn't agree entirely with Good. "I think he is over-dramatizing the ordinance. We're not going to use code enforcement action every time you do an improvement."
He did say that if you have an illegal downstairs enclosure, "you may need to caution a prospective buyer." But he said his inspectors wouldn't use the opportunity to permit a new pool, for example, as an excuse to try and inspect the enclosure.
"It's enclosed, after all, and we can't see it." On the other hand, he did allow that "other than people telling (code enforcement) on each other, there shouldn't be any problem."
Commissioner Spehar is well aware of that possibility. She said it was an "anonymous tipster" who turned in her and several other county employees all at the same time.
The impact of the Payne ruling was to effectively kill an earlier countywide inspection program FEMA wanted, which would have required all potential enclosure violators to pay for a county inspector to look inside and check the legality of their enclosure before they could renew their flood insurance.
The commission's refusal to follow the advice of its attorney, Jim Hendrick, and fight the Payne ruling came as a shock to both FEMA and those who worried the action would cause FEMA to drop its subsidized flood insurance for county residents.
Good says the county's new ordinance "is just the staff saving face and trying to show FEMA that it's doing something."
Meanwhile, Commissioner Murray Nelson is trying to place the older homes out of reach of the enforcers by grandfathering them. But everyone is still awaiting FEMA's weighing in on the issue. Officials have said their ruling was imminent three months ago. One hint of what their eventual response will be might be gleaned from how they first reacted to the Payne ruling, when they referred to it as "an abomination."
On the other hand, Nelson said he is confident that President George W. Bush would not do anything to hurt his little brother, Florida Gov. Jeb Bush, by cutting the Keys' flood insurance.