50 percent

Posted by Mark Chapman on August 31st, 2010 at 12:13 pm

Todd Tracy

By Todd Tracy

I’m not a county employee, nor do I play one on TV, but at times like this I’d really like to have some insider help. I’ve just spent nearly five hours search­ing the bow­els of the inter­net try­ing to find a way to stab the 50 per­cent rule in the back for Englewood’s 10 Har­bor Lane project. How­ever, phras­ing a com­pe­tent search for the unknown is like look­ing up a word you can’t spell in Webster’s.

What I did find was that the 50 per­cent rule was born as the National Flood Insur­ance Act of 1968; like most young it had very lit­tle power. While the nation wor­ried about Viet­nam, pot smok­ers and free love, 50 per­cent was chris­tened The Flood Dis­as­ter Pro­tec­tion Act of 1973, and given “manda­tory pur­chase pro­vi­sions.” After a cou­ple thou­sand embar­rass­ing repet­i­tive claims and bal­loon­ing deficits, 50 per­cent changed his name to the National Flood Insur­ance Reform Act of 1994, fol­lowed by The Flood insur­ance Reform Act of 2004.

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While the 50 per­cent rules devel­op­ment was embar­rass­ing, its mis­sion was noble. “In the face of mount­ing flood losses and esca­lat­ing costs of dis­as­ter relief to the gen­eral tax­pay­ers, the U.S. Con­gress cre­ated the National Flood Insur­ance Pro­gram (NFIP). The intent of Con­gress was to reduce future flood dam­age through com­mu­nity flood­plain man­age­ment ordi­nances, and pro­vide pro­tec­tion for prop­erty own­ers against poten­tial losses through a Fed­eral insur­ance mech­a­nism that requires a pre­mium to be paid for the protection.”

States com­plied with The Flood insur­ance Reform Act of 2004 by writ­ing devel­op­men­tal guide­lines that restricted improve­ments within the flood zone because com­pli­ance meant cheaper flood insur­ance pre­mi­ums to home­own­ers. Part of the deal was that lenders were required to man­date the pur­chase of flood insur­ance for any pub­licly insured or guar­an­teed loan within a flood zone which expanded the fed­eral risk pool. You can still build above the plan with­out value lim­its but a pri­vate party can’t self-insure or opt out.

If you’d take the time and visit http://www.OldeEnglewood.com to review the CRA plan for Englewood’s 10 Har­bor St. project, the con­ver­sion of a water­front home into a pub­lic open pavil­ion at the end of Dear­born Street, you’ll see why I’m upset with the 50 per­cent rule. The property’s improve­ments are lim­ited to 50 per­cent of its assessed or appraised improve­ment value! An improve­ment in the struc­ture, cur­rently assessed at $82,200 dol­lars times the 50 per­cent rule, leaves the CRA with a total pavil­ion bud­get of $41,100. The encour­ag­ing part of our dilemma is that our project design­ers, Elaine Miller of Sun­coast Archi­tects and DMK Asso­ciates Inc. in Venice, are work­ing hard to over­come our finan­cial lim­i­ta­tions through cre­ative designs, but they could use our help.

Enter Don­ald Lan­dis. He’s polit­i­cally fear­less, tire­less in his pur­suits, one of the found­ing fathers of our Green Down­town and he dri­ves a damn nice car. At the last CRA meet­ing, Don­ald sug­gested fil­ing for a 50 per­cent rule waiver. Imag­ine that! Some­where along the line, tax dol­lars became so lim­it­less and depend­able that even our gov­ern­men­tal rep­re­sen­ta­tives gave up fight­ing back; com­pli­ance was just too afford­able. I’m with Don­ald, pub­lic projects should be exempt when nec­es­sary, so I started the process of find­ing out how.

Sec. 339.4 Exemp­tions. 2–3 Appen­dix 2. FDIC Reg­u­la­tions: “The flood insur­ance require­ment pre­scribed by Sec. 339.3 does not apply with respect to: (a) Any State-owned prop­erty cov­ered under a pol­icy of self-insurance sat­is­fac­tory to the Direc­tor of FEMA, who pub­lishes and peri­od­i­cally revises the list of States falling within his exemption.”

If the fed­eral insur­ance pool isn’t at risk with our 10 Har­bor project, then why are we lim­ited to only 50 per­cent and what will it take to get a variance?

Sec­tion 120.542(2), F.S.: “Vari­ances and waivers shall be granted when the per­son sub­ject to the rule demon­strates the pur­pose of the under­ly­ing statute will be or has been achieved by other means by the per­son and when appli­ca­tion of a rule would cre­ate a sub­stan­tial hard­ship or would vio­late prin­ci­ples of fair­ness. For pur­poses of this sec­tion, ‘sub­stan­tial hard­ship’ means a demon­strated eco­nomic, tech­no­log­i­cal, legal, or other type of hard­ship to the per­son request­ing the vari­ance or waiver. For pur­poses of this sec­tion, ‘prin­ci­ples of fair­ness’ are vio­lated when the lit­eral appli­ca­tion of a rule affects a par­tic­u­lar per­son in a man­ner sig­nif­i­cantly dif­fer­ent from the way it affects other sim­i­larly sit­u­ated per­sons who are sub­ject to the rule.”

Vari­ances are also granted for projects that can’t rea­son­ably com­ply with the American’s With Dis­abil­i­ties Act. That means our cash-strapped pavil­ion project could pos­si­bly be allowed to build only one ADA restroom instead of two, which would free up resources to solve our vis­i­bil­ity and secu­rity issues. Another pos­si­bil­ity is the use of non-pervious con­struc­tion mate­ri­als below the base flood elevation.

Look, my intent behind this edi­to­r­ial is sim­ply to inter­ject the pos­si­bil­ity that Englewood’s 10 Har­bor Lane could be granted a vari­ance or a waiver from either Sara­sota County or the state. My research clearly shows that we don’t have to fight the fed­eral gov­ern­ment; we, the state and county, con­trol the waiver process. We’re talk­ing about a vari­ance for a taxpayer-funded pub­lic asset within a Com­mu­nity Rede­vel­op­ment Area!

Clearly a relief mech­a­nism is in place; let’s find a way use it.

Todd Tracy is vice chair­man of the Engle­wood Com­mu­nity Rede­vel­op­ment Area Advi­sory Board, but his opin­ions expressed in this space are his own, not those of the board.

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