After more than a year of wrangling with city officials in an attempt to remodel 626 Key Royale Drive — including an appeal to the Florida Building Commission — the homeowner has filed suit against the city of Holmes Beach.
In their lawsuit, owner Leah Marie Enterprises LLC and corporate manager Kathleen Morgan, represented by Sarasota attorney David Johnson, Morgan’s husband, seek a court order requiring Holmes Beach to issue a permit to renovate the home.
The lawsuit asks the 12th Judicial Circuit Court to intervene.
Petitioners say they’ve exhausted their administrative remedies, and money damages are inadequate.
They allege city officials and employees handled the matter unjustly, with bad faith and malice, and with acts constituting gross negligence, fraud or misrepresentation.
At the heart of the suit is the petitioners’ contention that the city and its former building official, Tom O’Brien, erroneously told their architect and contractor they could replace only 30 percent of the roof.
Johnson explained in an email, “Prior to beginning the remodel more than a year ago, Kathy relied on the city’s now-determined-wrong building code policy.
“Had the city applied the law correctly, which is its duty, she could have removed the entire old roof, and not just 30 percent of it. Thus began the problem.”
The petitioners accuse O’Brien and the city of misleading and misinterpreting the city’s 50 percent policy related to the Federal Emergency Management Agency rules. They claim the former building official told their contractors not to make improvements exceeding 50 percent of the “structural value,” while the law restricts improvements to no more than 50 percent of the “market value.”
According to Holmes Beach building inspector/plans examiner David Greene, the problems at 626 Key Royale began when the contractor exceeded the scope of work under an October 2013 permit.
Addressing the excessive work, the city issued a notice of violation and stop work order in December 2013.
“Once you damage or modify more than 30 percent of a structural element, such as a roof, you’re required to bring the structure to current wind-load bearing, which is 150-mph exposure-D for our area,” Greene said of the Florida Building Code rules.
He said the building department repeatedly told the contractor to submit a redesign within the rule.
“Their last submittal did, but it didn’t increase the costs, and that didn’t look right,” Greene added.
“It’s very complicated. But we want to make sure there’s no problem with FEMA,” he said. The city’s flood insurance discount can be jeopardized if the city allows projects to exceed the rules.
FEMA discourages remodeling ground-level homes in the 100-year floodplain, which includes Holmes Beach. Elevating the structure is an exception.
Holmes Beach city attorney Patricia Petruff told Johnson in a Dec. 5 letter that “the total cost of improvements, including the cost of the engineering analysis, may not exceed 50 percent of the value of the structure as it existed on Oct. 12, 2013.”
In March, attorney Scott Rudacille, on behalf of Morgan, petitioned the Florida Building Commission for its interpretation of the 30 percent and 50 percent rules as they related to the project.
The FBC ruled in September in favor of Morgan.
While the city did not participate in the FBC proceeding, in June, O’Brien asked the contractor to submit the documents required by the FBC declaratory statement, according to Greene.
Johnson sent a pre-suit notice dated Sept. 2 to the city, warning of a lawsuit.
In addition to the city, the lawsuit names the superintendent of public works, Jon Betcher, and the suit requires answers within 20 days after service of summons.
According to Holmes Beach city clerk Stacey Johnston, Mayor Bob Johnson was served Dec. 23.
Betcher is on vacation until Jan. 1, and is not an employee of the city. He is acting as the building official under a contractual relationship with Manatee County. Johnston did not know whether Betcher had been served.
It’s not rocket science people. These “rules” can be pulled up on the FEMA website:
http://www.fema.gov/9500-series-policy-publications/95244-repair-vs-replacement-facility-under-44-cfr-ss206226f-50-rule
Some of the city rules on remodeling are indeed Ludacris , they should be clarified . We all know it should be property value if anything because cinder block homes were built cheaply in the 1940s. It`s very close year 2015 and these older homes should be preserve the island charm , preserving cost money and 50 % of a block house is about $30,000. You can`t get any thing done with that small amount. When it comes to roofing , who ever heard of 30% of a roof done ,its the whole roof especially in Florida with the sun and salt , any home owner knows that ,
Good luck to you Miss Morgan and thanks for standing up for the people on the island this has been long time coming a change is needed .
Thanks again Paul Horvat