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Flood dispute is simmering in South Pasadena

The minute Michael and Judy Baggs bought their waterfront duplex two years ago, they were violating federal flood regulations. They say they didn't know.

The ground under their home is only about 6 feet above sea level, which is why their living area begins on the second story. Underneath is a garage and storage area, complete with washer, dryer, water heater and air handler.

Those appliances and electrical outlets, smack in a floodable zone, are taboo.

But who should fix it?

City officials, already under pressure from Washington because of lax flood enforcement, have ordered the Baggses to remove the offending fixtures. To emphasize their intent last December, city officials imposed a fine of $100 a day. The Baggses now owe more than $6,000 in fines, which is only about $2,000 less than the repairs would cost.

But the Baggses say they stand on principle.

The city inspected and approved construction of the house at 7085 Sunset Drive S seven years ago. The fixtures were in place at the time, Michael Baggs said last week.

Furthermore, he said, federal regulators first raised the flooding issue in 1990, two years before the Baggses bought the house. City officials took no action against previous owners. The appliances haven't moved. So why penalize the current owners?

"I'm a nice guy, but I won't roll over. It's not right," Michael Baggs said last week. "If they do it to me, it could be done to a little old lady, or to a young couple who couldn't afford it.

"I could have fixed it, but I would have felt bad the rest of the time I lived in the house."

Last week, the dispute spilled over into court when the Baggses sued the city of South Pasadena, asking a judge to halt the fines and approve the placement of the electrical fixtures.

The city capriciously singled out the Baggses to please federal regulators and violated the couple's right to due process, the suit says. The couple also asks reimbursement for the money they've paid St. Petersburg lawyers Ruthann O'Neill and Laura Bamond.

If the Baggses succeed with their suit, "that would be a huge problem," said South Pasadena City Attorney Linda Hallas. "The public cannot pick up the tab for you to have your house brought up to code."

Construction plans approved by the city in 1988 do not show appliances or electrical fixtures in the garage area, Hallas said. The building inspector either missed them, or some previous owner moved them down to the garage after the house was inspected.

Either way, Hallas said, the Baggses should sue the builder or previous owners, not the city.

"The courts have not gone so far as to hold the public liable for the mistakes of contractors," Hallas said.

After Hurricane Andrew, for example, some people with damaged houses discovered that their roofs were improperly tied down or improperly nailed to trusses. These errors caused millions of dollars in damage.

"If everybody could come in and say. "It was your inspector's fault, not the builder's fault,' the public could never absorb that kind of liability. Inspections . . . are there to protect the public, not to insure the individual and give them monetary relief if something is not done in accordance with the plans."

Underlying the spat is South Pasadena's ongoing trouble with the Federal Emergency Management Agency, which administers the national flood insurance program.

In low-lying areas like much of Pinellas County, securing a home loan without flood insurance is next to impossible. To qualify for flood insurance, residents must live in a community that enforces FEMA regulations, including one that sets living areas of new homes at 13 feet above sea level.

A city can grant exceptions _ known as variances _ but too many variances can draw sanctions from the FEMA.

Last year, FEMA officials decided that too much property in South Pasadena failed to comply with flood codes. As a result, FEMA revoked a discount on flood insurance within the city, which cost policyholders about $40 each, Hallas said.

More serious sanctions ultimately could force South Pasadena out of the program. "You wouldn't be able to sell real estate here," Hallas said.

That was the backdrop in 1990, when a FEMA team noticed the duplex on Sunrise Drive, half of which now is owned by the Baggses. A concern was the property's lack of foundation pilings.

City officials spent $3,500 to survey the elevation and discovered that the duplex was less susceptible to serious flooding than FEMA thought. That solved the piling problem, but during their tour, FEMA officials had also noticed the garage-level appliances.

In 1993, FEMA sent the city a list of properties _ including the Baggs home _ that did not comply with flood codes. If not fixed, these and other violations could lead to probation for the whole city, which would mean a penalty of $50 for every policyholder.

In April, city officials told the Baggses to remove the fixtures. When the couple asked for a variance, officials refused _ a stalemate that led to last week's suit.

The variance refusal was unfair, said attorney O'Neill. Other property owners received variances. FEMA has no hard and fast standards that every violation in the city must be corrected. The city has leeway, she said.

"They are protecting the city as a whole" in their concern over flood insurance, she said. "But in doing that, they are stepping on Michael and Judy Baggs."