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03/06/2012 BUILDING/FLOOD BOARD OF ADJUSTMENT AND APPEALS MEETING MINUTES CITY OF CLEARWATER March 6, 2012 Present: Pankaj Shah Board Member Gary Richter Board Member Steven L. Klar Board Member Earle Cooper Board Member Absent: John H. Logan, Jr. Chair Also Present: Gina Grimes Attorney for the Board Leslie Dougall-Sides Assistant City Attorney Kevin Garriott Building Official Patricia O. Sullivan Board Reporter The Acting Chair called the meeting to order at 2:00 p.m. at City Hall. To provide continuity for research, items are in agenda order although not necessarily discussed in that order. Member Richter moved to appoint Pankaj Shah as Vice-Chair. The motion was duly seconded and carried unanimously. 2 - Approval of Minutes – February 7, 2012 Member Richter moved to approve the minutes of the regular Building/Flood Board of Adjustment and Appeals meeting of February 7, 2012, as submitted in written summation to each board member. The motion was duly seconded and carried unanimously. 3 – New Request : Variance Case: BAA2012-01001 – 1104 Mandalay Point Road – Legal Description: Mandalay Point Sub Lots 2 & 3 & Lots 2A & 3A - Appellant Name: Dr. James Gills, Jr. - Agent Name: Robert Sprinkle, P.E. – Sprinkle Consulting, Inc – Request: Declare existing seawall obsolete and non- functional See Staff Report: BAA2012-01001 2012-03-06 Robert Sprinkle, representing the property owner of 1104 Mandalay Point Road, requested that the Board declare the existing seawall, which is more than 500 feet from the high water line, to be obsolete and non-functional. He discussed property setbacks and his desire to measure them from the CCCL (Coastal Construction Control Line). Building Official Kevin Garriott said the Building-Flood Board is not authorized to rule on Community Development Code requirements. Discussion ensued with comments that the board previously approved similar requests. Building - Flood 2012-03-06 1 Member Richter moved that with regard to the request for a Variance from Flood Insurance Regulation in Case BAA2012-01001, to find action on the request to be within the Board’s authority and to grant the request based on the evidence and testimony presented in the application, the Staff Report and at today’s hearing, and after due consideration of criteria set forth in Code of Ordinances Section 51.11. The motion was duly seconded and carried unanimously. 4 – Continued Requests: Appeal of Building Official’s decision Case: BAA2011-12006 – 1 Windward Island – Legal Description: Island Estates of Clearwater Unit 4 Lot 18 – Appellant Name: David & Aileen Bair – Agent Name: Johnson, Pope, Bokor, Rupel & Burns, LLP Katherine E. Cole – Request: Appeal Stop Work Order issued for construction of non-substantial improvement to residential home. See Staff Report: BAA2011-12006 2012-03-06. Attorney for the Board Gina Grimes said this hearing is an appeal of Building Official Kevin Garriott’s November 22, 2011 letter, which found that proposed work constitutes “substantial improvement.” Appellant representative Attorney Katherine Cole reviewed her 2011 timeline for the subject improvement project at 1 Windward Island: 1) April 28 – after discussions with staff and Building/Flood Board approval of variance, permit application submitted; 2) July 14 - after Building Department comments addressed, City issued permit: 3) August 12 – demolition began consistent with plans; 4) August 23 - City issued Stop Work Order; 5) August 30 – City email misstated law related to substantial improvements; 50% of market value can be rebuilt; 6) September 12 – City identified issues to resolve previous plans; 7) September 16 - City provided specific instructions regarding revised plan; 8) September 23 - amended application submitted; 9) October 3 - City response that amended application did not comply with FEMA (Federal Emergency Management Agency) regulations; 10) October 31 - executed contract re additional evidence of project costs provided City; and 11) November 29 – received City letter indicating project did not comply with FEMA regulations. Attorney Cole said the January 20, 2012, letter from David Brandon, President of Brandon Construction Company, stated the demolition was consistent with the scope of work outlined on demolition plan sheet A-2 dated April 7, 2011 and revised June 1, 2011, and estimated the value for a similarly sized structure, including contractor overhead and fee, excluding design professional fees: 1) Sitework - $3.50 - $4.50/square-foot; 2) Utility roughs - $1.25 - $2/square-foot; 3) Concrete - $12.50 - $15/square-foot; and 4) Masonry - $7.50 - $8.50/square-foot. She said staff perceived the project did not meet FEMA regulations but provided no specific information except for the need to scale back the project and provide written explanation of costs. She said revised plans removed the stairwell to the second floor, windows, and doors. She said the applicant submitted a new appraisal; the original was incorrect. She said in October, the Building Official opined the improved structure should be more than 1,000 square-feet smaller than the current one. She said the applicant submitted an executed contract with evidence that improvements will not exceed 50% of the structure’s market value and meets FEMA’s requirement for a reasonable estimate. Attorney Cole requested the Board accept Joseph Faw as an expert witness. Building - Flood 2012-03-06 2 Member Klar moved to accept Joseph Faw as an expert witness in the fields of estimating and construction. The motion was duly seconded and carried unanimously. Joseph Faw, General Partner of Bay to Bay Properties, said removal of the roof makes new roofing easier to install. He said he followed the FEMA template, including required items such as the garage and excluding outdoor features. He said unlike new construction, this project does not require pilings, foundation, raised exteriors, etc. He said new construction in the Pinellas and Hillsborough county area sells for $72 to $92/square-foot and the submitted estimate of costs should be acceptable to the City. He said the second floor was included in the square footage but is unfinished attic space that lacks air-conditioning, doorways, or stairway access from the first floor. Property owner David Bair reviewed the project, stating City reasons for issuing a Stop Work Order changed four times. He said he had spent significant money on improvement plans and to make certain all was in order before demolition began. Attorney Cole said Mr. Bair made a large investment in the property and community and proceeded in good faith with permitted work before the City issued a Stop Work Order. Member Richter moved to accept Kevin Garriott as an expert witness in the field of building code administration. The motion was duly seconded and carried unanimously. Member Richter moved to accept Jack Fahey as an expert witness in the fields of plans examination, building inspection, and construction management. The motion was duly seconded and carried unanimously. Mr. Garriott provided a PowerPoint presentation. While he did not question the $479,000 appraisal ($250/square-foot value), he determined the project exceeds 50% of the structure’s market value. The City uses square-foot costs only as a quick comparison method. He referenced standard tables of construction costs; staff is familiar with local costs as they review hundreds of building permits each month. Based on the application, proposed project costs of $231,600 for 6,091 square-feet, or $38.02/square-foot, is significantly less than typical beach construction costs; Habitat for Humanity costs are $100/square-foot. Lower construction costs referenced by appellant representatives are based on quantity discounts and off beach construction. All information presented by the City was taken from applicant submittals to the City. In response to a question, Plans Examiner Jack Fahey said the City never received a square-foot cost estimate. He said based on applications to the City for beach construction, costs there average $119 to $175/square-foot. While the inside staircase was removed, an outside spiral staircase was added. The attic space features 10-foot ceilings. FEMA discourages fazing projects; the applicant claims no future projects for the attic space. Mr. Garriott said most attics do not have 10-foot ceilings. The City gives the benefit of the doubt regarding the authenticity of numbers submitted by licensed professionals. Following a complaint, staff reexamined the documents and determined the improvement project permit should not have been issued. Mr. Fahey said he missed the plan to remove roof trusses when reviewing the application. The City is obliged to adhere to FEMA requirements and cannot set precedent. Mr. Garriott said staff error does not change the law and the appellant needs to submit an application that limits project costs to $240,000. Building - Flood 2012-03-06 3 Attorney Cole said Mr. Garriott’s computation included exterior surfaces and the 685 square-foot attic; the project is significantly smaller. She said normal construction costs do not apply as the foundation, exteriors, etc. already exist. She said the outdoor staircase leads to a deck. Mr. Bair reviewed bids he received and said the building footprint increases from 2,600 to 3,200 square-feet. He said construction of the additional 600 square-feet will cost $100/ square-foot, while improvements will cost less. Mr. Faw said the amended application reflects City direction and shows the second floor will not be built-out with access only via attic ladder. He said International Code Council construction costs are not applicable as this is not new construction; the slab and garage exist. He said project costs are approximately $80/square-foot, the sales price of new development. Attorney Cole said the City accepted the $479,000 appraisal value. (Note: the report uses $250/square-foot to establish the value.) She said the Building Official misconstrued or misinterpreted the Code and FEMA regulations by using flawed reasoning that does not acknowledge existing improvements. She said the amended application justifies project costs. In response to a question, she said the applicant submitted a cost plus contract. In response to a question, Tulio Zuloaga said he used CAD software to prepare the estimate but was unfamiliar with a tool that estimates material costs. In response to concerns that insufficient information had been provided, Attorney Grimes said the board must base its decision on facts and evidence presented. Attorney Dougall-Sides said FEMA allows the use of standard tables when a Building Official disputes provided estimates. Concerns were expressed that applicant submittals have inconsistencies, bids are not comparable, with one nearly double another, and estimates, which approach maximum allowable costs, are out of line with local costs. It was felt a hole could easily be cut for access to the second floor. It was stated the City would have approved the project had the value been within an acceptable range. Concerns were expressed the applicant submitted a cost plus contract, which is open ended and has no set limit, instead of a fixed fee contract and expenses will increase above what is allowable. It was stated a fixed price contract would be acceptable. Mr. Few said costs differ based on finishes. He said cost plus contracts are generally acceptable based on specs and provide an allowance for potential unknowns. He said contract costs for structural elements are not up for discussion but other costs are vague to allow the homeowner time to select finishes. Attorney Cole said the applicant revised the plans as requested by the City. She said the value and project costs in the appraisal and contract should be sufficient for approval. She said FEMA requires an estimate of costs, not a final invoice. Discussion ensued with comments that final costs could change when finishes are selected, either a maximum cost contract is needed with fair numbers or the project scope should be reduced. Attorney Dougall-Sides said this appeal relates to the submitted contract; staff would need time to review a new one. Building - Flood 2012-03-06 4 The Building-Flood Board recessed from 4:52 to 5:08 p.m. Mr. Garriott said the City would not support the Board accepting a fixed cost contract that appears to be far below market costs. The City does not want to audit the cost of each piece of material in the project. Attorney Cole said the property owner declined to provide a maximum cost contract due to his concerns that City staff would not accept new professional plans, which would be expensive to produce. She said the submitted contract states what the contractor and owner expect the project to cost. Concerns were expressed that construction costs presented are not reasonable and the City must follow FEMA regulations. It was stated the board tried to find resolution to this matter but there appears to be none. Member Richter moved that with regard to the Appeal from the Building Official's decision or interpretation in Case BAA2011-12006, to find action on the request to be within the Board's authority and to deny the appeal and affirm the Building Official's decision or interpretation based on evidence and testimony presented in the application, the Staff Report and at today's hearing, and specifically the following: there is a reasonable doubt regarding the credibility of estimated construction costs presented and the City is obliged to abide by FEMA regulations, and hereby issue the Conclusions of Law that the criteria set forth in Code of Ordinances Section 47.035(1) are not met. The motion was duly seconded and carried unanimously. 5 -Adjourn The meeting adjourned at 5:20 p.m. Chair Building/Flood Board of Adjustment &Appeals Attest: „/, , '� :oard Report• Building - Flood 2012-03-06 5 EXHIBIT: Staff Report BAA2011-12006 2012-03-06 CITY OF CLEARWATER PLANNING AND DEVELOPMENT DEPARTMENT STAFF REPORT Meeting Date: March 6, 2012 Case Number: BAA2011-12006 Agenda Item: # 2 Owner/Appellant: David and Aileen Bair Address: 1 Windward Island REQUEST Appeal the Stop Work Order issued for construction of non-substantial improvement to residential home. BACKGROUND/ANALYSIS  Property located in a “V” flood zone.  Additions and remodels must be limited to < 50% of the value of the structure.  Work proposed on this structure exceeds 50% value of existing (pre-construction) structure. FINDINGS OF FACT The applicant obtained the required permit. After construction began and the existing structure was completely demolished other than a few masonry walls, a complaint was received that the work must be exceeding 50%. Upon closer examination of the submittal it was determined that the plan for renovation did exceed 50% value of the existing structure. A Stop Work Order was issued requiring the structure to be brought into compliance. CONCLUSIONS OF LAW  Flood zone properties below the base flood elevation are limited to the amount of work that can be done – 50% or less of the existing structure value.  Based on values obtained from the International Code Council and also our local Building Department data, the value of new work does not reflect a realistic value for Clearwater, Florida. The value is understated.  Work valued at greater than 50% must be built raised up out of the flood elevation. RECOMMENDATION TO THE BOARD Allow the Stop Work Order to stand until the structure and plans for renovation are brought into compliance. 1