Redington Beach Appeal Options
Regarding Substantial Damage/Improvement Determinations
As the initial FEMA-required Substantial Damage/Substantial Improvement (SD/SI) process has passed its initial phase (the Tidal Basin determinations), and many owners have undertaken the administrative appeal step with the Building Official, the Town has continued to receive questions from owners who are not yet clear on the steps and their options to dispute SD/SI determinations. In an effort to assist and educate residents and owners, the Town is providing this overview.
Step 1(A). Substantial Damage Initial Determination. Pursuant to FEMA regulations and the Town’s floodplain code, after a storm, the Town is required to determine if a structure was “substantially damaged” by the storm. The initial determination for the 2024 storms which hit the Town were performed by the FDEM-funded, County-provided services of Tidal Basin workers. This initial assessment of each structure in Town was then compiled by Tidal Basin and ultimately that entity produced the initial SD determinations for each structure.
Step 1(B). Substantial Improvement Initial Determination. If the determination of Tidal
Basin was that a structure was not SD, then having cleared that hurdle, many owners
submitted building permit applications. The FEMA rules and floodplain code also require
the Building Official to make a determination of whether the value of the work being sought in the application exceeded 50% of the structure’s value. If so, this would be a Substantial Improvement and would also trigger the need to elevate.
Step 2. Building Official Administrative Appeal. FEMA’s SD/SI Manual provides that a local
government afford opportunities for owners to challenge both SD and SI determinations.
The Town’s Building Department implemented its administrative appeal process, posted the appeal form, and has been processing appeals from many owners. While that “Step 2” appeal process is still ongoing for some owners, other owners were able to receive new
determinations from the Building Official during this Step 2 process. The Town continues to encourage owners who are not satisfied with their initial (Step 1) determinations to make use of the Step 2 process, provide the Building Official with the documents and other information needed, so the Building Official can complete reviews as soon as possible.
Step 3. Appeal of Building Official determination to Board of Adjustment. If an owner
receives the Building Official’s final determination in the Step 2 process, but still does not
agree with it, there are two options left.
First, Town Code § 10-7(b) provides that the Town’s Board of Adjustment may hear appeals “when it is alleged there is an error in any requirement, decision, or determination made by the floodplain administrator in the administration and enforcement of” the floodplain code.
Obviously, an SD/SI determination is such a determination. If an owner desires to make use of this Step 3 option, the owner must first have completed the Step 2 appeal and received a final determination from the Building Official after a complete appeal has been made.
Appeal to the BOA cannot occur until the Step 2 process is completed, and an owner
cannot, for instance, simply refuse to provide necessary information to the Building Official such that the Building Official cannot make an effective determination, in hopes of better luck at Step 3. There must first be a final determination by the Building Official.
Assuming that determination is in hand, the owner would then complete the BOA SD/SI
appeal application and submit it, along with all necessary information set out in the
application form, to the Town Clerk. The Clerk will then coordinate with the BOA and
provide notice to each applicant of the date and time their appeal will be heard.
It is important for owners to understand that in this setting, the BOA will not be issuing a
“variance” of any kind, and so issues of “hardship” and the like will not be relevant. Rather, the BOA would be reviewing the factual and legal basis of the Building Official’s determination, and hearing each owner’s legal or factual challenges to such determination.
This proceeding would be quasi-judicial, with testimony taken under oath. And so an owner wishing to use this Step 3 process will need to ensure that any witnesses he or she desires to rely on (contractors, architects, etc.) are present at the hearing and prepared to testify.
Of course, copies of any documentary evidence an owner would want to submit should
also be brought to the hearing, with copies for the Town and BOA members.
Optional Step 3: Judicial Declaration. Owners not wishing to use the Step 3 BOA process
may also elect to file a Declaratory Judgment Action in circuit court seeking a declaration
from a Circuit Judge that the Building Official’s determination under Step 2 was in error. The Town cannot provide legal advice to owners, and so if an owner has questions of that
nature, the Town encourages the owner to consult with her or his legal counsel.
The Town hopes that this overview helps to clarify the steps in the process.