FEMA Forces Storm-Wrecked Homeowners to Choose: Build Up or Move Out?

After the storm, we rebuild. That’s the mantra repeated by residents, businesses and elected officials after any big storm. Hurricane Milton may have avoided the worst case scenario of a direct hit on the Tampa Bay area, but communities south of Tampa experienced heavy flooding just a couple weeks after being hit by Hurricane Helene.

While the damage is still being assessed in Sarasota County’s barrier islands, homes that require extensive renovations will almost certainly run up against what is known as the 50% rule — or, in Southwest Florida, the “ dreaded 50% rule.”

In flood zone-situated communities eligible to receive insurance from the National Flood Insurance Program, any renovations to repair “substantial damage” — defined as repairs whose cost exceeds 50% of the value of the structure (not the land, which can often be quite valuable due to its proximity to the water) — must bring the entire structure “into compliance with current local floodplain management standards.” In practice, this typically means elevating the home above what FEMA defines as the area’s “ base flood elevation ,” which is the level that a “100-year-flood” would reach, plus some amount determined by the building code.

The rule almost invites conflict. Because just as much as local communities and homeowners want to restore things to the way they were, the federal government doesn’t want to insure structures that are simply going to get destroyed. On Siesta Key, where Milton made landfall, the base flood elevation ranges from 7 feet to 9 feet, meaning that elevating a home to comply with flood codes could be beyond the means — or at least the insurance payouts — of some homeowners.

“You got a 1952 house that’s 1,400 square feet, and you get 4 feet of water,” Jeff Brandes, a former state legislator and president of the Florida Policy Project, told me on Wednesday, explaining how the rule could have played out in Tampa. “That means new kitchens and new bathrooms, all new flooring and baseboards and drywall to 4 or 5 feet.” That kind of claim could easily run to $150,000, which might well surpass the FEMA threshold. “Now all of the sudden you get into the 50% rule that you have the entire house up to current code levels. But then you have to do another half-a-million above what [insurance] paid you.”

Simple probability calculations show that a 100-year flood (which is really a flood elevation that has a 1-in-100 chance of occurring every year) has a more than 25% chance of occurring during the lifetime of a mortgage. If you browse Siesta Key real estate on Zillow, much of it is given a 100% chance of flooding sometime over the course of a 30-year mortgage, according to data analysis by First Street.

Sarasota County as a whole has around 62,000 NFIP policies with some $16.6 billion in total coverage (although more than 80% percent of households have no flood insurance at all) . Considering that flood insurance is required in high-risk areas for federally-backed mortgages and for new homeowners insurance policies written by Florida’s state backed property insurer of last resort , Citizens, FEMA is likely to take a close interest in whether communities affected by Milton and Helene are complying with its rules.

If 2022’s Hurricane Ian is any indication, squabbles over the 50% rule are almost certain to emerge — and soon.

Earlier this year, FEMA told Lee County , which includes Fort Myers and Cape Coral, that it was rescinding the discount its residents and a handful of towns within it receive on flood insurance because, the agency claimed, more than 600 homeowners had violated the 50% rule after Hurricane Ian. Following an outcry from local officials and congressional representatives, FEMA restored the discount .

In their efforts to avoid triggering the rule, homeowners are hardly rogue actors. Local governments often actively assist them.

FEMA had initiated a similar procedure in Lee County the year before, threatening to drop homeowners from the flood insurance program for using possibly inaccurate appraisals to avoid the 50% rule before eventually relenting . The Fort Myers News Press reported that the appraisals were provided by the county, which was deliberately “lowering the amount that residents could use to calculate their repairs or rebuilds” to avoid triggering the rule.

Less than a month after Ian swept through Southwest Florida, Cape Coral advised residents to delay and slow down repairs for the same reason, as the rule there applied to money spent on repairs over the course of a year. Some highly exposed coastal communities in Pinellas County have been adjusting their “lookback rules” — the period over which repairs are totaled to see if they hit the 50% rule — to make them shorter so homeowners are less likely to have to make the substantive repairs required .

This followed similar actions by local governments in Charlotte County. As the Punta Gordon Sun put it, “City Council members learned the federal regulation impacts its homeowners — and they decided to do something about it.” In the Sarasota County community of North Port, local officials scrapped a rule that added up repair costs over a five-year period to make it possible for homeowners to rebuild without triggering elevation requirements.

When the 50% rule “works,” it can lead to the communities most affected by big storms being fundamentally changed, both in terms of the structures that are built and who occupies them.The end result of the rebuilding following Helene and Milton — or the next big storm to hit Florida’s Gulf Coast — or the one after that, and so on — may be wealthier homeowners in more resilient homes essentially serving as a flood barrier for everyone else, and picking up more of the bill if the waters rise too high again.

Florida’s Gulf Coast has long been seen as a place where the middle class can afford beachfront property. Elected officials’ resistance to the FEMA rule only goes to show just how important keeping a lid on the cost of living — quite literally, the cost of legally inhabiting a structure — is to the voters and residents they represent.

Still, said Brandes, “There’s the right way to come out of this thing. The wrong way is to build exactly back what you built before.”

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