MEMORANDUM

TO: Local Planning Agency

FROM: Bill Spikowski

DATE: November 26, 1996

SUBJECT: Effect of Mandatory Flood Regulations on Future Rebuilding

 

Because of its barrier island location, Fort Myers Beach will continue to have it land uses shaped by state and federal regulations. Three programs in particular, Florida's Coastal Construction Control Line (CCCL), the National Flood Insurance Program (NFIP), and the state-mandated "coastal building zone," all will affect the evolution of your community.

During the early formulation of a community vision for this planning process, four separate issues arose where these programs may have significant impacts:  

Because of the importance of these issues, we need to carefully study the intended and incidental effects of these state and federal programs. Once they are understood, we may be in a position to alter their local application to further our goals. At a minimum, we can avoid developing any policies that simply cannot be implemented.

The impacts of these programs vary depending on the precise location of a parcel of land. Each program has a set of very specific maps or boundaries that delineate their regulatory zones. In order to help interpret these programs, Spikowski Planning Associates has created a single parcel-level map of Fort Myers Beach that incorporates the most important zonal data from each program. That map is posted in the LPA meeting room at Town Hall, where it is available for our use during meetings and also for viewing by the general public.

 

COASTAL CONSTRUCTION CONTROL LINE

The state of Florida began regulating shoreline development in 1971. Along the beachfront, the state imposes stricter construction standards to minimize damage to the natural environment, private property, and human life. The best-known state regulation is the designation of Coastal Construction Control Lines (CCCL), which are precise lines running just inland of barrier island beaches.

In 1978, the state established its first CCCL at Fort Myers Beach. With a few exceptions, new buildings could only be built on the landward side of this line. (Some existing buildings that lie at least partially seaward of that line are Pink Shell's Vacation Villas, Pier One, Ramada Inn, Lani Kai, Bahama Beach Club, Privateer Condo, and Leonardo Arms Beach Club.) Lee County's 1989 comprehensive plan incorporated the 1978 CCCL and forbade practically all development seaward of that line. (However, that policy has since been repealed.)

In 1991, the state established a new and very different CCCL. The new line averages about 200 to 300 feet landward of the 1978 line, often running right along Estero Boulevard. This new line came with quite different rules; it is definitely not a "line of prohibition." Instead the rules are more of a structural building code, administered by the engineering staff of the Department of Environmental Protection (DEP) in Tallahassee. In order to receive a permit, a proposed building must be designed to withstand the physical force of wind and waves of a 100-year storm; the water pressure of being partially submerged during flooding; and the effects of surrounding soil being lost to erosion (in addition to all normal structural requirements for buildings).

These requirements are very strict and quite complex to understand. Coastal engineers are needed to assist the building's architect and structural engineer in designing such a structure. There is considerable judgment exercised by the DEP permitting staff, because the standards preclude any alterations to the coastal system "measurably affecting the existing shoreline change rate; significantly interfering with its ability to recover from a coastal storm; [or] disturbing topography or vegetation such that the system becomes unstable, or suffers catastrophic failure. . . ." [Florida Administrative Code 62B-33].

The state statutes also forbid construction anywhere that state projections suggest will be seaward of the high-water line after 30 years' of beach erosion (unless such a line would be further inland than the new CCCL). However, the state has never created comprehensive mapping of a 30-year high-water line; its rule defines this line as "the projection of long-term shoreline recession occurring over a period of thirty years based on shoreline change rate information obtained from historical measurements." The state determines where this line falls on a case-by-case basis when a landowner applies for building permits [Florida Administrative Code 62B-33.024].

In typical circumstances, there are several specific requirements that affect the use of the ground level below buildings that are seaward of the 1991 CCCL. No substantial walls or partitions can be placed below the first elevated floor. The only obstructions allowed below the first floor are stairways, elevator shafts, pilings, and "shearwalls" up to 20% of the building's width (and only when they are essential for structural integrity).

As strict as these rules are, they do not preclude many reasonable uses of land, as was feared by many property owners when the 1991 CCCL was adopted. However, buildings must be elevated, typically even higher than buildings elsewhere on the island, and be extremely well-built (hence expensive). High-rise condominiums and hotels, as well as expensive single-family homes, can be built under these rules.

Because of these requirements, however, the only possible way to have ground-floor retail space might be to locate it on the landward side of the shearwalls. The result would be, at best, a discontinuous street frontage because of the 20% rule, hardly conducive to "window shopping" and general pedestrian amenity. The net result appears to be that, under current regulations, new or improved pedestrian-oriented ground-level retailing and restaurants are impractical seaward of the 1991 CCCL. These areas include most of Times Square and most of the Gulf side of Estero Boulevard across the entire island (but very little of the Bay side).

One possible alternative to this conclusion might be for the Town of Fort Myers Beach to seek an interpretation or rule change from the state that would allow the 20% to be calculated differently, for instance across the entire island. Under this scenario, the Town would commit through its comprehensive plan to maintain the current restrictions against high-intensity development along a significant portion of the beachfront, in exchange for some leniency that would allow the CRA master plan to be carried out in Times Square and along some nearby portions of the Gulf side of Estero Boulevard.

A similar situation was faced in the community of Long Branch, New Jersey. Long Branch was for many years a very popular beach resort outside New York City, but has fallen into a state of considerable blight. A redevelopment plan for its core area faced severe constraints from state coastal regulations. Long Branch city officials have been able to reach an agreement with state regulators to substitute their redevelopment plan for the state review process for that specific area. It is possible that a similar approach might be considered for Fort Myers Beach. (Florida's coastal program emphasis the structural strength of buildings, however, rather than New Jersey's emphasis on open space and public access to the beach.)

 

NATIONAL FLOOD INSURANCE PROGRAM

The National Flood Insurance Program (NFIP) is one of several federal disaster programs. It was begun in 1968 as a nationwide system of flood insurance for designated flood-prone areas (where there is a 1% chance of serious flooding each year). Each area is studied to produce a map that indicates how high flood waters might rise, which is known as the "base flood elevation." Local governments then adopt regulations to reduce the impacts of future flooding. In exchange for these regulations, property owners can obtain flood insurance. For our purposes, the most important regulation is that the lowest floor level of most new and improved buildings must be raised above the base flood elevation.

The base flood elevations are shown on a series of official Flood Insurance Rate Maps. Data from these maps have been excerpted for display on the same large map that shows both Coastal Construction Control Lines.

There are basically two types of flood zones at Fort Myers Beach. The first are called "A-zones," defined as areas subject to rising water from coastal flooding. Base flood elevations in the A-zones vary across the island, ranging from 11 to 14 feet above mean sea level. The finished level of the first floor must be at or above this height. For residential structures, fill or exterior walls are allowed below the floor level, but any walls must be designed to preclude finished living space and to allow floodwaters to flow freely. Parking is permitted; interior partitions are not. (Non-residential structures will be discussed later.)

The second flood zone is a "V-zone" or velocity zone, defined as areas subject to wave action on top of the rising water from coastal flooding. V-zones are found immediately along the Gulf of Mexico and inland as far as Estero Boulevard. Base flood elevations for new buildings in V-zones range from 15 to 19 feet and are measured to the bottom of the floor structure, causing new buildings to be somewhat taller there. Fill or solid construction is not allowed below minimum floor elevations in any buildings except for pilings, stairwells, or "breakaway" walls that will wash away during flooding.

Since the 1970s, flood-prone communities have been required to adopt these regulations in order for their residents to qualify for federal flood insurance. Federally insured lenders cannot provide mortgages in these communities on property that does not have flood insurance. As a result, almost no flood-prone community can exist without participating in the NFIP, since few private companies offer comparable flood insurance.

NFIP inspectors visit local governments every year to assess their enforcement of these codes. Any variances to these codes are strictly scrutinized to determine if they might jeopardize the community's continued participation in the NFIP.

Lee County began participating in the NFIP in 1984 immediately after all of its coastal areas were mapped. Fort Myers Beach is covered under the county's program until the end of 1996, at which time it must join the program by maintaining similar regulations that are acceptable to FEMA. (Lee County's regulations are currently in effect in Section 6-401 through 475 of the LDC, but the Town now has the responsibility for modifying and updating them.)

As to residential buildings, these rules have become a fact of life in all coastal communities. They cause a hardship to many elderly people who have difficulty climbing the required entrance stairs in homes; they often create a strange pattern in neighborhoods with old and new houses; and they reduce the desirable connection between indoor living space and Florida's pleasant outdoors. However, these factors are generally outweighed by the desirability of keeping new homes out of harm's way during recurring floods. There is little prospect for changing this development pattern as it applies to new homes. However, there are two areas where our current floodplain regulations may conflict with good planning practice and other public goals; these will be discussed further below.

There is a recent policy initiative in the Lee Plan related to the NFIP that will also have some impacts at Fort Myers Beach. This policy, implemented through Ordinance No. 95-14, attempts to identify individual buildings that are repeatedly damaged by flood waters and then require them to be elevated:

By 1995, county development regulations shall require that any building that is improved, modified, added on to, or reconstructed by more than twenty (20) percent of its replacement value and which has recorded one or more National Flood Insurance Program (NFIP) flood losses of $1000.00 or more since 1978 shall be brought into compliance with current regulatory standards for new construction. [Policy 80.1.7]

This type of program has the potential to identify not just individual flood prone buildings but also specific areas that may be subject to repeated damage. There might be remedial physical improvements that could alleviate flooding in such areas; or these areas might be candidates for less intense uses in the future.

To determine whether past flood damage might have implications for our land-use planning effort, data on past claims was first organized by street address and then by date of flooding (see Table 1). These locations were then mapped to more easily identify patterns (see Figure 1). However, neither analysis has yielded any positive conclusions that would shape your comprehensive plan.

Specific Changes to the Floodplain Ordinance

An important concept to keep in mind during the following discussion is "hazard mitigation." This concept has become a high priority in the field of emergency management in recent years. Essentially, this kind of mitigation means actions to prevent, avoid, or reduce the impacts of a hurricane, especially actions that can be taken in advance to reduce the vulnerability of people and property to injury from a hurricane.

Yet some current floodplain regulations actually work against pre-storm hazard mitigation. This was acknowledged recently by current FEMA director James Witt, who said that his agency's current approach:

does not provide incentives to take proactive mitigation actions. With the exception of the flood program where it is required in return for insurance, our current approach only provides for mitigation after there has been a disaster. We need to consider a more comprehensive strategy for mitigation, especially in the pre-disaster environment.

A recent publication from the Florida Department of Community Affairs (DCA) quoted Mr. Witt approvingly on this matter, and went on to observe that:

Retrofitting and flood mitigation are integral to floodplain management. However, they are also excellent forms of pre-disaster activities that involve undertaking and performing corrective and preventive measures to existing houses and businesses, electrical and mechanical equipment and water and sewer lines, as well as land areas [Retrofitting and Flood Mitigation in Florida, DCA, 1995].

DCA is taking this concept to great lengths, recognizing that post-disaster property damages can be dramatically lowered by modifying existing structures. They will be proposing a "residential construction mitigation program" to the legislature in 1997. This program would help lower-income residents to retrofit their homes to increase their safety and protect their investments before a disaster occurs. Low-interest loans or grants would be available to homeowners as an incentive to structurally harden their homes against damage [Breaking the Cycle: How Starting on Long-Term Redevelopment Can Help Florida Avoid Economic Disaster, DCA, 1996].

TABLE 1

STREET ADDRESS March 1993 (other) Nov. 1988 (other) July 1985 June 1982 (other)
417 Estero 3 13 93 11 23 88
151 Matanzas 3 13 93 11 23 88 7 23 85 6 18 82
725 Matanzas 11 23 88 7 23 85
738 Matanzas 10 12 87 6 18 82
1042 Second 11 23 88 7 23 85
1051 Fifth 7 23 85 6 18 82
1000 Estero 11 23 88 7 22 85
140 Primo 11 23 88 7 23 85
153 Primo 7 18 91 11 23 88 1 6 89
207 Primo 11 23 88 7 23 85
1400 Estero 3 13 93 6 18 82
223 Pearl 11 23 88 7 23 85
290 Pearl 11 23 88 12 31 86 10 31 85
273 Delmar 7 22 91 11 23 88 12 31 86
145 Tropical Sh. 3 13 93 5 26 90 11 23 88 1 1 87
3860 Estero 3 13 93 11 23 88
3970 Estero 3 13 93 11 23 88
120 Gulfview 11 23 88 7 23 85
4701 Estero 7 23 85 9 14 79
315 Bayland 6 25 92 11 23 88
5000 Estero 7 22 85 6 18 82
5000 Estero 3 13 93 11 23 88
5210 Estero 3 13 93 11 22 88
5607 Estero 7 23 85 9 21 79
292 Sterling 11 23 88 7 23 85
306 Seminole 3 13 93 11 23 88 7 23 85 6 16 82
395 Seminole 3 13 93 11 23 88 7 23 85
5890 Estero 3 13 93 11 23 88
75 Mound 11 23 88 7 23 85
260 Flamingo 3 13 93 11 23 88
269 Driftwood 3 13 93 11 23 88 7 23 85 6 18 82
290 Driftwood 11 22 88 7 23 85
230 Bahia Via 3 13 93 11 23 88 11 22 88 6 18 82
250 Bahia Via 3 13 93 11 23 88
258 Curlew 3 13 93 11 23 88 7 23 85 6 18 82
266 Curlew 11 23 88 7 23 85
7904 Estero 3 13 93 11 23 88
8102 Estero 3 13 93 11 23 88

 

Unfortunately, these insights have not percolated to the level of some program administrators in these very agencies. Thus we have the ironic situation of DCA considering the use of public funds to subsidize an activity that is actually restricted by existing laws and interpretations.

For instance, the current floodplain regulations that are required by federal law contain disincentives against improving older homes. Homes built in Lee County before 1984 were not required to be elevated above the base flood elevation. Since then, elevation requirements have been strictly enforced for new homes (and for "substantial improvements" that cost more than 50% of an existing home's market value) through the building permit process. This is one example of the infamous "50% rule" that causes so much difficulty for owners of older buildings when they are trying to maintain and upgrade their property.

The 50% threshold was chosen as a compromise between the extremes of (1) prohibiting all investment to older structures built below the base flood elevation, or (2) allowing buildings to be improved in any fashion without regard to the hazard that would be perpetuated by allowing these buildings to be renewed indefinitely without being elevated above the level of expected floods. The first alternative would have caused an extreme hardship on owners of nearly all existing buildings, since even normal deterioration could not be countered. The second alternative would have allowed uncontrolled continuation of a perilous situation, with buildings and people left in harm's way indefinitely. The 50% threshold is thus a compromise between competing policy goals [Answers to Questions About Substantially Damaged Buildings, FEMA, 1991].

The 50% rule is analogous to the standard zoning principles governing non-conforming buildings. Put most simply, older buildings that don't meet today's codes are legally tolerated but are expected to "wither away" over time. This withering is encouraged by rules that prevent owners from constantly renewing their buildings to counter the effects of time.

Owners of older buildings frequently rebel against the concept of forcing the deterioration of their property. Many local governments also have begun to question the wisdom of this theory, especially in light of its negative effects on affordable housing and on historically interesting buildings and neighborhoods. This questioning sometimes results in what seems to be innocuous changes to the minutiae of zoning law, changes though that mean survival or destruction to many older buildings.

These changes have moved forward in Lee County government in recent years. "Non-conforming buildings" now can be expanded (provided the addition does not increase its nonconformity). Buildings in historic districts are now provided with relief from some zoning and building codes. Redevelopment overlay districts provide new rules that are conducive to the survival and rebirth of older commercial areas. And the 50% rule in the floodplain ordinance was changed in 1992 so that the 50% applied to cumulative expenses over a five-year period, rather than over the life of the building.

Two more simple changes could be made to the floodplain ordinance to encourage healthy investment in older buildings at Fort Myers Beach. One is to provide more flexibility in determining "50% of what?" A property owner can be given the option of using the official appraised value of the building, or of submitting an independent appraisal of its value. Another change would be to exempt structural improvements that will strengthen a building before a hurricane hits (rather than waiting to provide disaster aid or expedited permitting to repair damage that could have been avoided). The following language could be inserted into Section 6-405 to accomplish both changes (with similar changes required at Section 6-333(a)):

Substantial improvement means any reconstruction, rehabilitation, addition or other improvements to a structure, the cost of which equals or exceeds, over a five-year period, a cumulative total of 50 percent of the market value of the structure before the start of construction of the improvement. Costs of alternations or improvements whose express purpose is the mitigation of future storm damage are excluded from this cumulative total provided they do not exceed 50 percent of the market value of the structure over a one-year period. Examples of such mitigation include the installation of storm shutters or shatterproof glass; strengthening of roof attachments, floors, and walls; and minor floodproofing. The market value of the structure should be (1) the value of the building prior to the start of the improvement, or (2) in the case of damage, the value of the building prior to the damage occurring. Value will be as determined (for the structure only) by the Lee County Property Appraiser or by a private appraisal acceptable to the coordinator. The is term "substantial improvement" includes structures which have incurred substantial damage, regardless of the actual repair work performed. The term does not, however, include either any project for improvement of a structure to correct existing violations of state or local health, sanitary or safety code specifications which have been identified by the local code enforcement official and which are the minimum necessary to ensure safe living conditions, or any alteration of a historic structure, provided that the alteration does not cause the structure to lose its historic designation.

Commercial Buildings

The floodplain regulations for commercial buildings are not identical to those for residential uses. In A-zones, commercial buildings are technically allowed to include space below the base flood elevation. However, their outer walls must then be "dry floodproofed" so as to be impervious to water and able to withstand complete inundation without collapsing. This is done by sealing the building walls with waterproofing compounds and some type of impermeable shielding over doors and windows to prevent floodwaters from entering at any point. Alternatively, the lower area can be "wet floodproofed" with flood waters being allowed to enter and exit the building without damaging the structure. "Wet floodproofing" is suitable for garages but obviously inconsistent with retail and office uses.

Dry floodproofing is difficult to achieve because of the obvious expense of making a building also act as an unfloatable boat. It is difficult enough to keep all water out; it is even more difficult to make a building strong enough to withstand the water pressure that will be caused by inundation, which will tend to collapse inward. Dry floodproofing is considered potentially practical for concrete block construction up to a flood depth of about three feet. Unfortunately, the practicality of dry floodproofing a storefront to greater heights is unproven. Most likely, poured concrete walls would be required, with smaller windows than are desirable for storefronts.

 

COASTAL BUILDING ZONE

The state of Florida now requires its local governments to designate a "coastal building zone" which includes all of Estero Island. Several stricter standards are mandated for this zone, including: maintenance of public accesses to beaches; increased resistance of new buildings to high wind speeds; and disclosure statements to purchasers of property seaward of the CCCL. For our present purposes, there is one troublesome provision, the apparent inclusion of the 50% rule in the state statutes through a definition of "substantial improvement" similar to the one required by FEMA [F.S. 161.54(12)]. Because of its inclusion directly in the statute, it is less amenable to refinements to carry out desired coastal policies. Interestingly, while being defined, this term is never explicitly used in the statute.

Lee County's Land Development Code was amended in 1991 to implement this statute (through Section 6-331 through 368). Lee's code explicitly makes the stricter standards apply to all new construction and to "substantial improvements" to existing buildings, using the definition just discussed from the state statute. Still, the purpose of this term in this context is not clear. State officials who monitor local compliance with state and federal coastal regulations have suggested that this definition is mandatory for flood insurance purposes everywhere in the coastal building zone. However, this is only one possible interpretation of the statute, and not the obvious one; it also conflicts with the hazard mitigation initiative of the very agency that employs these officials.

 

CONCLUSIONS

We return now to the four issues that led to this examination of the effect of coastal regulations on future rebuilding:

1. The CRA's Core Area Master Plan envisions significant mixed-use redevelopment along Estero Boulevard from Times Square to Pearl Street; a major portion of this plan calls for mixed-use development with retailing at ground level, despite state and federal policies to elevate most new construction above expected levels of flooding.

There are two separate impediments to implementing the CRA core area master plan: the "dry floodproofing" requirements in the NFIP's A-Zones, and the regulations for new buildings seaward of the CCCL.

The question is whether either of these requirements will prohibit the successful rejuvenation of Times Square, Old San Carlos Drive, and the Estero Boulevard frontage down to Pearl Street. It is important to determine whether it is technically and financially feasible to rebuild a high-quality pedestrian environment there, or not. The University of Florida's study for the CRA had suggested elevating retail spaces above the flood elevations, rather than dry floodproofing; but that approach poses many practical problems of its own (unless the existing small lots were consolidated and redesigned to accommodate an elevated system of boardwalks). If neither of these approaches are feasible, then existing buildings will continue to deteriorate, or will be rebuilt incrementally outside the current regulations (endangering the Town's participation in the National Flood Insurance Program), or will be redeveloped in some presently unforeseen manner.

From an examination of the maps depicting the various regulatory zones, the following preliminary conclusions can be drawn:

2. The current comprehensive plan contains a "build-back" provision that allows post-disaster reconstruction at existing density levels (but with improved resistance to future storms). This provision has been popular among landowners at Fort Myers Beach because of the greatly reduced density levels that would otherwise apply after a major storm; but it falls far short of a redevelopment plan that would ensure that the community would be improved in other ways during the inevitable rebuilding process.

There are no particular conflicts between these coastal regulations and the current "build-back" provision. In fact, the build-back provision mandates redevelopment in conformance to these regulations, and even offers to yield other local regulations including heights and setbacks that might stand in the way of compliance. Any modifications to the "build-back" provision should maintain this degree of compliance with state and federal regulations.

However, this does not suggest that the current post-disaster redevelopment policies should not be reexamined. The current "buildback policy" protects every landowner, but gives up the opportunity for the Town to think about how to improve the built environment after a natural disaster. For instance, what alternatives might be developed that would still reasonably protect existing landowners while laying the groundwork for redevelopment that would result in a better physical arrangement of the community?

3. Uncertainty as to how the major 1991 revisions to the CCCL will affect the reuse of beachfront land on the entire island.

Although the administration of the CCCL program offers far less certainty than the local permitting process, it is clear at this point that many of the fears expressed by landowners in 1991 have not been fulfilled. With the exception of its negative effects on the parts of the CRA master plan, the CCCL program is, as promised, a permitting program rather a new level of prohibitions against reasonable land uses.

4. Concern over the current regulations which seem to prevent a landowner from making structural improvements to strengthen buildings against the constant threat from hurricanes.

This concern is valid and has been discussed at length in this memorandum. The changes suggested above, unless rejected by state or federal agencies, should ameliorate this situation by encouraging rather than discouraging the strengthening of existing buildings.