EDITOR'S NOTE: Judge Richard Payne ruled this week that Monroe County cannot enforce its ban on downstairs enclosures. We asked one of the attorneys for the homeowners in this case to comment on the significance of this ruling.
What's the bottom line in Judge Payne's Ruling?
Circuit Judge Payne found that it would be highly inequitable for the County to reap the benefit of collecting tax revenue on enclosures but have no time limit to bring an action to remove the enclosures. Specifically, the judge ruled that the state statute of limitations involving construction of real property improvements applied to code enforcement actions. He ruled that code enforcement was barred from prosecuting owners of homes with illegal enclosures that had been assessed by the property appraiser and taxed for more than 4 years. Judge Payne also found that up until 1989 the County applied the 4-year state statute.
What's illegal?
Since 1975, the only exception in the county code ban against below flood level construct is to allow enclosures to be used for parking of vehicles or limited storage or access. Nonetheless, somewhere between 6,000 and 16,000 elevated homes have finished enclosed space below that might be used for habitation. The County taxes the units and collects increased revenue. Judge Payne found as an "undisputed fact" that, around 1982, the County, contrary to its ordinances, "routinely issued permits for entrance foyers, recreation rooms, utility rooms, offices, bathrooms without tubs, finished floors, ceilings and walls beneath the flood elevation levels established by Ordinance 3-1975." Incidentally, the County (and Islamorada) recently settled a case brought by KODE ("Keep Our Downstairs Enclosures") founders by agreeing that it would not prosecute owners of homes with non-conforming enclosures that were permitted by the County.
Didn't the County exempt enclosures from the Code's 4-year statute of limitations?
Yes. In 1991, under pressure from FEMA, the commission enacted a 4-year time period from the date of the violation for actions to be initiated, but exempted downstairs enclosures. The County took the position that there was no limitation on when an enforcement action could be taken. Judge Payne applied the 4-year state statute finding that because of a conflict with state law, the county ordinance excepting enclosures from the 4-year period was invalid.
Won't the County appeal?
The attorneys say they will if FEMA wants them to. It's really up to the Commissioners, who in 1998 asked FEMA for amnesty for enclosures built before 1995. FEMA refused. Judge Payne's ruling has the effect of barring prosecution of enclosures continuously assessed as living space since before 1997— better than what the County asked for.
So the County really got what it wanted all along?
Yes. The County could tell FEMA that it will prosecute all downstairs enclosures to the maximum extent permitted by law— 4 years. If FEMA wants to change state law it should send its lobbyists to Tallahassee, not Key West.
What's the purpose of a statute of limitation anyway?
According to one U.S. Supreme Court ruling cited by Judge Payne, "they are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from having put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost." Both the cases before Judge Payne involved enclosures built around 1982 by prior owners.
What else did Judge Payne do?
Judge Payne found that county employee Louis Latorre had been prosecuted under the land use regulations enacted in 1986 law for a violation that occurred in 1982. The judge found that the laws the code enforcement special master found to be violated and the penalties imposed were not in existence when the violation occurred. He ordered the special master to vacate and rescind the orders adjudging Latorre to be in violation and imposing penalty/lien.
Do these rulings apply to enclosure owners?
The law in Monroe County that applies to code enforcement proceedings is that state law prohibits the county from bringing actions after discovery by the county property appraiser of the enclosure. Judge Payne found that the records maintained by the appraiser are public records and that the County, in the exercise of due diligence, could have discovered code violations by simply reading the property record cards. This ruling should protect any owners of an enclosure from prosecution if their property has been assessed and taxed for more than 4 years as habitable or finished space.
What will the County do now?
The County building department will not issue any permits to a house that contains an illegal enclosure. Judge Payne, however, specifically ruled in a companion case brought by Janice Beattie that the County was forever barred by the state statute of limitations from seeking removal of her 2-bedroom enclosure, or denying any needed permit to repair or maintain the enclosure, and could not use the existence of the downstairs enclosure as a basis for denial of any other permit that the owner is otherwise entitled to.
Will the County defy Judge Payne and refuse to issue permits for houses with enclosures where the statute of limitations has run?
Let's hope not. The legally non-conforming spaces should be maintained and repaired as necessary; the main structure cannot be penalized by the withholding of permits that would otherwise be issued. County refusal to issue permits as a punitive measure will doubtless bring more litigation.
How does the ruling affect the insurance inspection program?
The program was intended to identify illegal enclosures to enable code enforcement to prosecute those who wouldn't remove them. While prosecution can't occur, expect FEMA to jack up the rates for flood insurance to a level that most people can't afford. At that point, maybe the private insurance market, smelling big profits, will undercut the FEMA rates and make insurance more affordable.
What happens next?
Tell your favorite commissioner not to authorize an appeal of Judge Payne's ruling. Tell FEMA that state law doesn't permit prosecution of the vast majority of owners with enclosures. By the way, tell the commissioners to forget the latest proposal to require inspections of homes at the time of a property transfer, and to require a buyer to sign a covenant authorizing code enforcement to inspect the homes for the next 10 years. That is an unlawful government intrusion into homes, violates the 4th amendment to the United States constitution, and Florida citizens' right to privacy guaranteed under the state constitution.
Where can I find more information?
Check out http://www.kode.org for lots and lots of info. You may want to join the fight to keep downstairs enclosures.
Who are you anyway?
The attorney for KODE who's been involved in defending various property owners charged with code violations for downstairs enclosures on the basis that the statute of limitations had run. In 1972 while at FSU law school, I interned with the State Attorney's office in Key West, where attorney Nathan Eden was my supervisor. I practice in Coral Gables. Judge Payne permitted me to argue the limitations issue as amicus curae.