There are a variety of requirements (federal, state, local) that need to be followed regarding rebuilding, and different properties have different situations in terms of how the construction came to be. This means that the answer to that question is “it depends on the situation.”
The 50% rule applies first to any improved or damaged primary building, regardless of the use or occupancy. The cost to repair the entire building to its pre-damaged condition is compared to 50% of the calculated market value of the entire structure prior to sustaining damage.
Step 1:
The first question that must be answered is whether the building has been “substantially damaged,” meaning that the cost to repair the entire structure to its pre-damaged state will exceed 50% of the building’s pre-damaged market value (aka the 50% rule).
You must first determine the total repair costs to return the building to its pre-damaged condition. This is usually done by obtaining bids from one or more general, building, or residential contractors. Compare the total cost of these estimates to 50% of the pre-damaged building market value. If the total cost (labor and materials) to repair the building to its pre-damaged condition is less than 50% of the market value of the pre-damaged structure (the entire building), you can generally repair the existing construction in place under the stipulations provided in the Town’s Post-Disaster Buildback Ordinance without having to bring the entire building up to the currently enforced building codes and floodplain management regulations. However, see more information below in step 2, and note that it must have been a code-compliant and permitted installation in your flood zone originally.
However, buildings that are substantially damaged (over 50% of the pre-damaged building market value) need to meet the currently enforced building codes and floodplain management regulations. There are many floodplain regulations but the most notable is that new buildings, or substantially damaged or improved buildings (over 50% of their pre-damaged building value), must have their lowest-floor elevation raised to at least the base flood elevation shown on the Flood Insurance Rate Map (FIRM) plus one additional foot of freeboard (BFE + 1’).
For more information, see also the 50% Rule FAQ page:
https://www.fortmyersbeachfl.gov/1254/FEMAs-50-Rule
Step 2:
If the building’s repair costs do not exceed the 50% threshold, the second consideration is whether the existing construction (e.g. a living area built below the current flood protection level of BFE + 1’ freeboard) was a legally built structure, and an approved use, and whether it was legally built prior to the jurisdiction’s adoption of the flood information rate maps (“pre-FIRM) and regulations in 1984.
For the property to be rebuilt the same as it was prior to Hurricane Ian, the property owner must provide documentation that shows that it was legally built and there are various other stipulations outlined in the Town’s “Post Disaster Build Back Ordinance:”
https://library.municode.com/fl/fort_myers_beach/codes/code_of_ordinances?nodeId=PTIIICOOR_CH34ZODIDESTNO_ARTVNO_DIV2NOBU_S34-3238POSABU
In the Town’s Comprehensive Plan (Policy 4-D-1), it states, “The Land Development Code may also establish procedures to document actual uses, densities, and intensities, and compliance with regulations in effect at the time of construction, through such means as photographs, diagrams, plans, affidavits, permits, appraisals, tax records, etc.”
Property owners who are making these decisions are welcome to reach out to the Town’s planning staff at zoningpermits@fmbgov.com. Property owners should assemble as much documentation as they can which supports their assertion that their building is not “substantially damaged,” and that the construction was a legally existing pre-FIRM structure (a structure legally in place prior to the adoption of the Flood Insurance Rate Map). The planning staff are happy to look into the specific situation and provide a determination for the property owner.
