DEC REQUEST DS-2014-097 STAFF ANALYSIS

ISSUE: DS-2014-097. Petitioner David G. Karins, seeks a Declaratory Statement on section 3109.1.1 Exception of the Florida Building Code, Building.

Petitioner seeks clarification of the following questions:

Question 1: Does [FBC-Building] 3109.1.1 apply to the work described in the above petition information? The work is not substantial improvement of or additions to existing habitable structures and was legally designed and constructed prior to the establishment of the CCCL.

Question 2: Does 3109.1.1 Exception require (contrary to the regulatory scheme within the jurisdiction of the DEP) that the subject existing buildings constructed before the establishment of the CCCL requirements be brought into conformance with FBC 3109.4 Construction Standards, if repair work is performed at above-grade foundation components comprised of replacing hurricane straps, repairing cracks, repairing spalls or densifying concrete or masonry, assuming such repair work has no measurable interference with the coastal system and such work does not constitute "rebuilding" and is less than "substantial"?

Background:

Situation:

This petition concerns a project on Longboat Key that is seaward of the Coastal Construction Control Line, was constructed at various times between 1950 and 1974 and is non-compliant as to current flood elevation requirements. The project includes repairs to buildings of the earlier vintage that are constructed on reinforced masonry piers. These piers are weathered, in some cases cracked and their connections to the wood framing above are in various stages of deterioration including fully compromised. The buildings of the later vintage (early 1970's) that are constructed on spread footings under reinforced concrete columns/piers below the first living level. The reinforced concrete columns/piers are spalled and cracked due to corrosion of the reinforcing steel but are readily repairable in accordance with International Concrete Repair Institute guidelines and the American Concrete Institute Repair Code (ACI 562). All of the required repairs are readily achievable without any appreciable impact on the existing coastal system. The project does not constitute substantial improvements or substantial repair and does not involve correcting substantial structural damage.

The Petitioner states in his Dec. submittal that FDEP has made it clear that repair/additions to foundations are permissible within the regulatory scheme without triggering construction standards requirements even though they do not fall within the exemption in 161.053(11)(a), which is the source document for FBC 3109.1.1 Exception. He further stated that DEP has issued exemptions for repairs to concrete piers/columns below the first living level as well as for repairs to columns directly supported by footings below grade at beachfront properties. Karins Engineering Group, Inc. Similar projects on which such exemptions have been issued include Gulf Place Condominium on Holmes Beach, FL, Fisherman’s Gove Condominium on Siesta Key, FL, and Dunes Chalet Condominium on Boca Grande, FL.

2010 Florida Building Code, Building

Section 3109.1.1.

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.

(EMPHASIS ADDED)

3109.4 Construction standards.

3109.4.1 Pile foundations. All habitable structures shall be elevated on, and securely anchored to, an adequate pile foundation. Pile foundations for habitable structures shall be designed to withstand all reasonable anticipated erosion, scour and loads resulting from a 100-year storm including wind, wave, hydrostatic and hydrodynamic forces acting simultaneously with typical structural (live and dead) loads. All habitable structures should be anchored to their pile foundation in such a manner as to prevent flotation, collapse or lateral displacement. The elevation of the soil surface to be used in the calculation of pile reactions and bearing capacities for habitable structures shall not be greater than that which would result from erosion caused by a 100-year storm event. Calculation of the design grade shall account for localized scour resulting from the presence of structural

components. Design ratio or pile spacing to pile diameter should not be less than 8:1 for individual piles located above the design grade. Pile caps shall be set below the design grade unless designed to resist increased flood loads associated with setting the cap above the design grade, but at or below the natural grade. Pile penetration shall take into consideration the anticipated loss of soil above the design grade.

Exceptions:

Additions, repairs or modifications to existing nonconforming habitable structures that do not advance the seaward limits of the existing habitable structure and do not constitute rebuilding of the existing structure.

Habitable structures located landward of existing armoring which is capable of protecting buildings from the effects of erosion from a 100-year storm surge. The applicant shall provide scientific and engineering evidence that the armoring has been designed, constructed and maintained to survive the effects of the design storm and provide protection to existing and proposed structures from the erosion associated with that event. Evidence shall include a report with data and supporting analysis, and shall be certified by a professional engineer registered in this state, that the armoring was designed and constructed and is in adequate condition to meet the following criteria: [Emphasis added]

The top must be at or above the still water level, including setup, for the design storm plus the breaking wave calculated at its highest achievable level based on the maximum eroded beach profile and highest surge level combination, and must be high enough to preclude runup overtopping.
The armoring must be stable under the design storm including maximum localized scour, with adequate penetration and toe protection to avoid settlement, toe failure or loss of material from beneath or behind the armoring.

c. The armoring must have sufficient continuity or return walls to prevent flanking under the design storm from impacting the proposed construction.

d. The armoring must withstand the static and hydrodynamic forces of the design storm.

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.

3109.2 Definition.

SUBSTANTIAL IMPROVEMENT. See Section 1612.

REBUILDING. See definition of “Substantial improvement.”

SUBSTANTIAL IMPROVEMENT. Any repair, reconstruction, rehabilitation, addition or improvement of a building or structure, the cost of which equals or exceeds 50 percent of the market value of the structure before the improvement or repair is started. If the structure has sustained substantial damage, any repairs are considered substantial improvement regardless of the actual repair work performed. The term does not, however, include either:

1. Any project for improvement of a building required to correct existing health, sanitary or safety code violations identified by the building official and that are the minimum necessary to assure safe living conditions.

Any alteration of a historic structure provided that the alteration will not preclude the structure’s continued designation as a historic structure.

202 Definitions:

Repair - The reconstruction or renewal of any part of an existing building for the purpose of its maintenance. (Emphasis added)

2010 Florida Building Code, Existing Buildings Section 202 Definitions:

Repair - The patching, restoration and/or minor replacement of materials, elements, components, equipment and/or fixtures for the purposes of maintaining such materials, elements, components, equipment and/or fixtures in good or sound condition.

ALTERATION. Any construction or renovation to an existing structure other than a repair or addition. Alterations are classified as Level 1, Level 2, and Level 3.

SECTION 403

ALTERATION—LEVEL 1

403.1 Scope.

Level 1 alterations include the removal and replacement or the covering of existing materials, elements, equipment, or fixtures using new materials, elements, equipment, or fixtures that serve the same purpose. Level 1 alterations shall not include any removal, replacement or covering of existing materials, elements, equipment or fixtures undertaken for purpose of repair as defined in Chapter 2 and described in Section 402. [Emphasis Added]

[F] SECTION 1409

WATER SUPPLY FOR FIRE PROTECTION

1409.1 When required. An approved water supply for fire protection, either temporary or permanent, shall be made available as soon as combustible material arrives on the site.

DCA07-DEC-179 (Based on the 2004 FBC)

- Whether the Petitioner is entitled to rely on the past consistent interpretations of the Florida Department of Environmental Protection (DEP), and its predecessor agency, the Florida Department of National Resources (DNR), regarding the application of the same regulatory language that is now set forth in section 3109 of the FBC (as evidenced by the past consistent history of permits issued) to determine what uses may occupy an enclosed space in the project that exists seaward of the CCCL and in between the FEMA/NFIP established base flood elevation and the lowest horizontal structural member as described in section 3109.3 of the FBC;

- Whether section 3109.3, Florida Building Code, Building (2004), applied in light of the historical application of language by the predecessor agencies permit use of enclosed space that exists seaward of the CCCL and in between base flood elevation and the lowest horizontal structural member to include retail shops, pool and other bars, snack bars, grills with portable cooking equipment, dining areas where the permanent kitchen is located landward of the CCCL or above the lowest horizontal structural member, toilet rooms and bathrooms, cabanas, recreational spaces such as gyms and card rooms and service/storage/back-of-house facilities.

- The Commission affirmatively answered both of the Petitioner’s inquires. The Petitioner is entitled to rely on the 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 Petitioner has demonstrated that the contexts are consistent and that, under the particular circumstances of the proposed development, the regulations now contained in Section 3109.3 of the FBC, Building (2004) prohibit restaurants, residences and hotels; and permit use of enclosed space that exists seaward of the CCCL and in between base flood elevation and the lowest horizontal structural member to include retail shops, pool and other bars, snack bars, grills with portable cooking equipment, dining areas where the permanent kitchen is located landward of the CCCL or above the lowest horizontal structural member, toilet rooms and bathrooms, cabanas, recreational spaces such as gyms and card rooms and service/storage/back-of-house facilities, subject to appropriate permitting as required by law.

Staff Analysis: Based on the above facts and circumstances, staff provides the following analysis:

Answer/Option 1: Yes, the proposed level of work constitutes a “repair” to the foundations of the subject existing building which the exception (3109.1.1 Exception) does not allow without conforming with the requirements of Section 3109.4 of the Florida Building Code, Building.

Answer/Option 2: No, historically, DEP/DNR had permitted several projects with similar circumstances to that of the project in question without requiring conformance with the elevation and design requirements of the “Coastal Construction Control Line” provisions as depicted in Section 3109.4 of the 2010 Florida Building Code, Building.

Answer/Option 1: Yes, the proposed level of work constitutes a “repair” to the foundations of the subject existing buildings and therefore, compliance with Section 3109.4 of the Florida Building Code, Building would be required.