DEC REQUEST DS-2015-055 STAFF ANALYSIS

ISSUE: DS2015-055. Petitioner, Belmar Development Associates, LLC (Paramount), represented by Robert S. Fine of Greenberg Traurig, P.A., seeks a Declaratory Statement on section 3109.4.2 of the Florida Building Code, Building.

Petitioner seeks clarification of the following questions:

Question 1: May Petitioner (and the Building Official) rely on past consistent interpretations by the Florida Department of Environmental Protection (“DEP”) and the DEP’s predecessor agency, the Florida Department of Natural Resources (“DNR”), of identical regulatory language that is now set forth in Section 3109 to determine whether the Paramount is allowed to have intermediate structural slabs below the wave crest elevation? If yes, do the past consistent interpretations of DEP and DNR allow intermediate structural slabs below the wave crest elevation?

Question 2: Declaratory Statement DCA07-DEC-179 provides, for example, that a dining area located seaward of the CCCL is allowed at elevations in between base flood elevation and the elevation of the lowest horizontal structural member but the associated kitchen must either be above the lowest horizontal structural member or be located landward of the CCCL. Does this mean that only portions of the structure that are located seaward of the CCCL, but not the remaining portions of the structure landward of the CCCL, must comply with Section 3109 of the FBC?

Question 3: When any portion of the project structure falls seaward of the CCCL, does Section 3109.1.1 require that the entire structure comply with the requirements of Section 3109?

Question 4: For any major structure that falls within Exception 4 of Section 3109.4.2, are the slabs that are constructed below the level of the wave crest elevation required to be frangible, or may they be of more permanent construction?

Question 5: For the purposes of determining the applicability of Exception 4 to Section 3109.4.2, is the Paramount a low-rise building as that term is used in Exception 4?

Background:

Situation: The Petitioner, Belmar Development Assoc., LLC is a developer of high-rise residential properties (Group R Occupancies) in South Florida. At least one such property in question is being constructed on an oceanfront parcel where the site and the proposed structure, is transected by the CCCL. This structure is known as the “Paramount” located at 900 N. Atlantic Blvd, Ft. Lauderdale, Florida. Paramount is a high-rise multifamily dwelling comprised of a seventeen story tower. The base of the tower is integral to, and extends the full depth of, the tower and continuing eastward to provide space for an elevated pool deck. Because the proposed Paramount project extends, in part, seaward of the CCCL, Section 3109 of the FBC is implicated. As part of amicable discussions between Petitioner and the Building Official, who has jurisdiction over this project, regarding the applicability of certain provisions of Section 3109 of the 2010 Florida Building Code (FBC) to the project, the Building Official and Petitioner agreed that Petitioner should seek a declaratory statement. Petitioner seeks a declaratory statement only to help both Petitioner and Building Official in determining the appropriate code requirements for this current project and other subsequent projects that contain the same or similar conditions and configurations as set forth in this Petition.

2010 Florida Building Code, Building

SECTION 3109 STRUCTURES SEAWARD OF A COASTAL

CONSTRUCTION CONTROL LINE

3109.1 General. Swimming pools shall comply with the requirements of this section and other applicable sections of this code.

3109.1.1 Scope. The provisions of Section 3109 shall ensure that structures located seaward of the coastal construction control line are designed to resist the predicted forces associated with a 100-year storm event and shall apply to the following:

1. All habitable structures which extend wholly or partially seaward of a coastal construction control line (CCCL) or 50-foot (15.3 m) setback line.

2. Substantial improvement of or additions to existing habitable structures.

3. Swimming pools that are located in close proximity to a habitable structure or armoring. An environmental permit from the Florida Department of Environmental Protection, requiring special siting considerations to protect the beach-dune system, proposed or existing structures and public beach access, is required prior to the start of construction. The environmental permit may condition the nature, timing and sequence of construction of permitted activities to provide protection to nesting sea turtles and hatchlings and their habitat, including review, submittal and approval of lighting plans.

Exception: The standards for buildings seaward of a CCCL area do not apply to any modification, maintenance or repair of any existing structure within the limits of the existing foundation which does not require, involve or include any additions to, or repair or modification of, the existing foundation of that structure.

3109.4.2 Walls below the 100-year storm elevation.

No substantial walls or partitions shall be constructed below the level of the first finished floor of habitable structures. All other walls shall be designed to break away.

Exceptions:

1. Stairways and stairwells;

2. Shear walls perpendicular to the shoreline;

3. Shear walls parallel to the shoreline, which are limited to a maximum of 20 percent of the building length in the direction running parallel to the shore;

4. Shear walls parallel to the shoreline, which exceed 20 percent of the total building length (including any attached major structure) when they meet the following criteria:

a. A certification is provided by a Florida-registered professional engineer that certifies that the increased length of shear walls, over 20 percent, are located landward of the 100-year erosion limit;

b. A hydraulic analysis is provided and certified by a Florida-registered professional engineer that evaluates the potential impact of flow increase on the subject parcel and adjacent properties;

c. The hydraulic analysis demonstrates that although the overall shearwall coverage is more than 20 percent, the increased shearwall length will not result in substantial increase of flow velocities and drag forces on the structural components of the proposed structure and neighboring structures; and

d. The provisions under Section 3109.4.2 (Exception 4) do not include any low-rise building as defined in Section 1609.2.

5. Wind or sand screens constructed of fiber or wire mesh;

6. Light, open lattice partitions with individual, wooden lattice strips not greater than 3/4 inch (19 mm) thick and 3 inches (76 mm) wide;

7. Elevator shafts;

8. Small mechanical and electrical rooms; and

9. Break-away or frangible walls.

HIGH-RISE BUILDING. A building with an occupied floor located more than 75 feet (22 860 mm) above the lowest level of fire department vehicle access.

2001

Staff Analysis:

Note: DEP’s staff reviewed this request of Declaratory Statement and concurred with the Petitioner’s answers to the said questions as outlined herein.

Answer 1: Yes. As the Florida Building Commission (the "Commission") held in Declaratory Statement DCA07-DEC-179, "[t]he Petitioner is entitled to rely on past consistent interpretations of the DEP and DNR to the extent that the historical application of the regulation is consistent with the current context of the FBC." The provisions of Section 3109 of the FBC that are germane to the issues and questions set forth in the Petition are for all practical purposes identical to the corresponding provisions of Rule 62B-33.007, F.A.C. (2001 and 2004). As such, the contexts are consistent. Petitioner has provided evidence of consistent practice of the DEP and DNR in connection with allowing the presence of intermediate structural slabs located below the wave crest elevation in a manner comparable to how such slabs are located in the Paramount project, thereby demonstrating that the intermediate structural slab location is consistent with the historical application of DEP's (and DNR's) regulation.

Answer 2: The areas of a structure located seaward of the CCCL are subject to the requirements and limitations of Section 3109 and those areas of the structure that are landward of the CCCL are not subject to Section 31 09's requirements.

Question 3: When any portion of the project structure falls seaward of the CCCL, does Section 3109.1.1 require that the entire structure comply with the requirements of Section 3109?

Answer 3: The areas of a structure located seaward of the CCCL are subject to the requirements and limitations of Section 3109 and that areas of the structure that are landward of the CCCL are not subject to Section 31 09's requirements.

Answer 4: Walls and partitions that are constructed below the level of the wave crest elevation are required to be frangible as mandated by Section 3109 .4.2 (see Exception 9). Structural slabs that are constructed below the wave crest elevation are not required by Section 3109.4.2 to be frangible or break- away. Section 3109.4.2 is a restatement of the Rule 62B-33.007(4)(f) of the DEP regulations. As demonstrated by the examples of permits issued by DEP that allowed for the presence of structural slabs below the wave crest elevation provided with the Petition, DEP's interpretations of its regulation allowed for the presence of such structural slabs. This interpretation is consistent with the language of Section 3 109.4.2 and Rule 62B-33.007 which expressly either prohibit, or significantly limit, built elements with significant vertical dimension

running parallel to the shoreline that would impede the flow of waves and dynamic storm surge. On the other hand, a slab, by its dimensional nature, would not impede or alter the flow of waves and storm surge significantly.

Question 5: For the purposes of determining the applicability of Exception 4 to Section 3109.4.2, is the Paramount a low-rise building as that term is used in Exception 4?

Answer 5: Because the mean roof height at Paramount does not fall within the parameters contained in the definition of low-rise building, Paramount is not a low-rise building as that term is used in Exception 4 to Section 3109 .4.2.