Moran, Rainford rebuff Smith’s call for support of bills in Legislature that would allow individuals to build homes higher above floodplains than state code requires

Sarasota City Commission supports Arroyo’s proposal for city regulations permitting higher ‘freeboard’

This slide provides examples regarding Base Flood Elevation and freeboard. Image courtesy Sarasota County

While Sarasota County Commissioner Mark Smith has been unable to win support from his colleagues for regulations that would allow property owners to construct new homes higher above floodplain levels, Sarasota City Commissioner Erik Arroyo last week did gain unanimous approval of his fellow board members to direct city staff to work on a zoning text amendment to that effect.

The focus is freeboard, which a 2023 county staff report explained is “an extra margin of protection that requires the lowest floor of a building to be one (or more) feet above Base Flood Elevation (BFE).”

The same report defined “Base Flood” as “a regulatory standard commonly referred to as a ‘100-year’ flood or ‘1% chance’ flood. Base Flood Elevation is the highest elevation of the water surface associated with Base Flood,” the report added.

In November 2023, Smith expressed concern about new Federal Emergency Management Agency (FEMA) flood insurance rate maps, which he believed could put new residential construction in jeopardy from storm surge. (See the related article in this issue.)

As The Sarasota News Leader noted in late September, the county staff report provided to the board members in early August 2023 explained that the preliminary new FEMA maps would remove about 19,000 parcels with 2,400 structures from the county’s Special Flood Hazard Area. Numerous changes would affect Siesta Key, the report said. Specifically, for those parcels, the preliminary information showed that the Base Flood Elevation would be lowered by 4 feet in the county’s AE flood zone. The county website said the AE zone includes areas subject to a 1% annual chance of inundation. “Mandatory flood insurance purchase requirements apply,” the website points out.

Matt Osterhoudt, director of the county’s Planning and Development Services Department, told the commissioners during the November 2023 discussion that FEMA requires, at a minimum, that buildings be elevated to the Base Flood Elevation.

The Florida Building Code, Osterhoudt pointed out, calls for communities to adopt 1 foot of freeboard, at a minimum, for all occupiable buildings. “That is currently what Sarasota County has in its code,” he added.

Further, he said, the Community Rating System (CRS), in which the county participates to lower flood insurance costs for property owners, requires that communities adopt a minimum of at least 1 foot of freeboard for all occupiable buildings as a prerequisite for achieving a Class 8 rating or better.

As the FEMA website explains, “The National Flood Insurance Program (NFIP) Community Rating System (CRS) was implemented in 1990 as a voluntary program for recognizing and encouraging community floodplain management activities that exceed minimum NFIP standards. Any community fully compliant with NFIP floodplain management requirements may apply to join the CRS.”

“I think this is one of those things where we don’t want duplicity, that we should just stick with the Florida Building Code,” Commissioner Neil Rainford responded after Osterhoudt completed his remarks that day. “If it says 1 foot of freeboard,” Rainford continued, “Stick with 1 foot.”

However, Commissioner Smith explained that his concern “is the fact that with FEMA lowering the Base Flood Elevation by a foot in areas, particularly Siesta Key, that we’re actually going to be encouraging people to build lower than they are right now.”

On Jan. 30, Smith reported to his colleagues that two bills filed in the current legislative session, which began in early January, would provide “specified maximum voluntary freeboard requirements for new construction and substantial improvements to existing construction; [prohibit] voluntary freeboard from being used in the calculation of the maximum allowable height for certain construction; and [require] the Florida Building Commission to develop and adopt by rule minimum freeboard requirements by a specified date and to incorporate such requirements into the next edition of the Florida Building Code,” as the summary of Senate Bill 1766 put it.

This is a section of Senate Bill 1766. Image courtesy Florida Senate

Smith explained that if that bill and its companion House legislation were approved, state law would allow individual property owners to build higher without being penalized.

The sponsor of the Senate bill is Republican Sen. Ana Maria Rodriguez of Miami. The companion House bill is HB 749; its sponsor is Republican Rep. Fabian Basabe, who represents part of Miami-Dade County.

“I think this is something we should back and support,” Smith added. He would like to see the County Commission encourage the Sarasota County Legislative Delegation to support the bills, he told his colleagues.

“I have no interest in getting involved in state legislative movements,” Chair Michael Moran responded.

Adding that he meant no disrespect to Smith, Moran said that if the commissioners agreed to Smith’s request that day, they would not know exactly what they were supporting. Changes in the bills could be in the works, Moran pointed out, even as the commissioners were meeting.

Commissioner Michael Moran makes a point during a discussion. File image

Moreover, Moran said, “I don’t want [the legislators] in our business in local stuff for the most part, and I’m sure they don’t want us in theirs.” He added that he also did not want to put pressure on any legislator.

Then Commissioner Rainford told Moran, “I think you pretty much, word for word, said what I was going to say.” Rainford added that he had not read the bills that Smith was referencing. (The companion House legislation is House Bill 749.)

After none of the other commissioners signaled an interest in addressing the issue, Smith said, “I do believe that this is something we should support. It is voluntary. It’s nothing that we’re imposing on folks.” All he was seeking, he continued, was agreement to let the Sarasota County Legislative Delegation members know that the County Commission supports the bills.

Yet, Commissioner Ron Cutsinger replied, “I just don’t have enough information to support it at this time.”

“That’s fine,” Smith said. “If [the legislation] gets passed, then we’ll know about it.”

As of Jan. 30, the Senate bill had won unanimous approval in both the Community Affairs and Environment and Natural Resources committees, the bill’s webpage showed. On Feb. 1, it was referred to the Rules Committee.

Support at the City Commission dais

During the regular City Commission meeting on Feb. 5, Commissioner Arroyo pulled an item from the board’s second Consent Agenda of routine business matters to bring up the freeboard issue.

That item dealt with the same FEMA update that the County Commission addressed in November 2023. As noted in the backup agenda materials for the Feb. 5 session, the City Commission needed to adopt the new FEMA standards by March 27. (See the related article in this issue about the county meetings planned to inform the public about the new FEMA flood insurance rate maps.)

The County Commission unanimously adopted the maps in December 2023, with no member of the public or any of the board members offering comments prior to the vote.

On Feb. 5, Arroyo pointed out that he had spoken with several architects in the area who had expressed concern about what Arroyo described as “basically lowering the FEMA standards.” Yet, he added, some individuals are choosing to construct new homes with higher freeboard because they would like the extra protection in the event of storm surge or other flooding events.

City Commissioner Erik Arroyo. File image

“There is a concern,” Arroyo explained, “that this [City Code amendment] penalizes individuals that are building higher” because of the language in the current City Code.

With City Manager Marlon Brown absent from the meeting, Deputy City Manager Pat Robinson pointed out that the issue “is very complicated, because we don’t have a choice whether to approve or not approve [the maps].”

As Osterhoudt of Planning and Development Services explained to the County Commission last year, the adoption of the updated FEMA regulations is necessary for participation in the National Flood Insurance Program (NFIP).

After Mayor Liz Alpert called forward city staff members involved with the agenda item, Lucia Panica, director of the city’s Development Services Department, concurred with Arroyo’s concern. “There is going to be an issue if someone … does want to build to current standards …” However, Panica added, staff could review the city’s zoning regulations and try to find a way “to minimize the impact if someone does choose to build higher.”

A zoning text amendment would be the way to deal with the situation, she suggested.

“I think that would make sense,” Alpert replied. “Why not encourage them to build a little higher.”

Arroyo first made a motion to adopt the new floodplain ordinance, on second and final reading, and Commissioner Debbie Trice seconded it. That motion passed unanimously.

Then, at City Attorney Robert Fournier’s suggestion, in light of the indication of his colleagues’ support for a zoning text amendment, Arroyo called for staff to work on such a measure “to deal with the maximum height issue and discrepancy,” so individuals would not be penalized for constructing homes that were higher than required above the floodplain elevation.

Trice also seconded that motion.

Vice Mayor Jen Ahearn-Koch expressed her appreciation for Arroyo’s call for the city action. While she acknowledged that she was not aware of the pros and cons of the issue, she was eager to have staff work on it.

Then that motion also passed unanimously.