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Madeira Beach wants permission to inspect his waterfront home. He’s suing.

In nonconversion agreements, the city demands consent for possible inspections every year. One resident believes it’s an unconstitutional ‘taking’ of his property rights.
Clifford Smith owns this home on Bay Point Drive in Madeira Beach. He is suing the city over a provision in flood zone regulations that he says violates his constitutional rights. [ZACHARY T. SAMPSON | Tampa Bay Times]

MADEIRA BEACH — If a hurricane hit Tampa Bay, the water would not need to go far to reach Clifford Smith’s house. His property on a barrier island, with views of the Intracoastal, is unsurprisingly in a flood zone.

When Smith, 60, sought to move to his newly built three-story last year, the City of Madeira Beach made him sign paperwork pledging that he would never finish the ground level, using it only for parking or storage but not a living area. The so-called nonconversion agreement is standard for homes in the most risky floodplain.

One particular provision stood out to Smith, though, something he thinks few other residents notice or have the means to fight: A city representative, at least once a year, can request to look at his property with two days notice to “verify compliance” with the agreement. Smith, who runs an in-flight catering company, believes the requirement is unconstitutional, and now he’s suing the city.

“I’m improving their tax base and they can search my house any time they want?” he said. “Forget it.”

The lawsuit, filed late last year, alleges that the city would not provide Smith a certificate of occupancy allowing him to live at the house on Bay Point Drive unless he signed the nonconversion agreement. Smith’s argument is that the provision amounts to an illegal “taking” of his property rights without fair compensation, prohibited by a clause in the U.S. Constitution.

Related: Interactive: Pinellas County flood maps are changing. Here’s what’s different.

A spokesman for Madeira Beach said the city does not comment on pending lawsuits. Speaking generally, Linda Portal, the community development director, said inspections are rare.

“We don’t do a lot of those unless we have some indication or complaint that somebody has been using (the ground floor) improperly,” she said.

The nonconversion agreements, she said, are crucial in notifying future buyers of restrictions on homes because the forms are attached to deeds.

The city has asked a judge to dismiss the lawsuit.

Smith’s case is a long shot, said Paul Boudreaux, a professor at the Stetson University College of Law. If somehow successful, it could call into question similar policies all across the coast.

“Property rights advocates say that ownership of property is a bundle of rights, and one of the rights you get is to exclude people,” he said. Any legal decision could hinge on interpretation of this idea. “It’s not a permanent occupation, but it’s still having government people come onto your property.”

Smith argues the need for a nonconversion agreement stems from a voluntary, not required, part of the National Flood Insurance Program — the Community Rating System — that provides credits to cities for increased regulation of the floodplain. In cities with more credits, people get flood insurance at a lower cost.

Related: Proposed Florida law a ‘nuclear bomb’ to local control of zoning, attorney says

In a court filing, Smith’s lawyer, Charles Gallagher III, alleges that at least one representative from Madeira Beach told Smith the system “means millions of dollars to the City.” Smith said he travels often for work and the property is a second home; he cannot always be there to allow a representative inside.

The Federal Emergency Management Agency’s guidelines for the National Flood Insurance Program explain that houses in flood zones like Smith’s must have the lowest floor raised above base flood elevation. A ground level can be enclosed for parking or storage, but it cannot have finishings like carpet or drywall. Smith said he uses his as a garage.

“If the lower area is enclosed, there is a tendency for the owner to forget about the flood hazard and convert the enclosure to a bedroom or other finished room,” FEMA warns. “This must be prevented.”

Nonconversion agreements help. The stricter they are, according to FEMA, the more credits a community gets: 90 points for agreements that include at least annual inspections, 60 points if inspections can happen any time but not necessarily each year and 30 points for agreements that have no mention of inspections. Madeira Beach uses FEMA’s example for the strictest form, which simply states representatives of the city can enter “the premises.”

“It’s not limiting it to the first floor,” Smith said.

Portal said inspectors would have no interest in going through other parts of the house.

Lisa Foster, Pinellas County’s floodplain administrator, said it’s important to make sure homeowners are following the rules. The county’s nonconversion agreement also mentions inspections with reasonable notice. If federal officials visited and saw a house finished below base flood elevation, Foster said, it could place an entire community’s standing (and ability to get insurance) at risk.

The inspections are basic, Foster said, with regulators looking only for obvious touches.

“It could be inspected in a matter of minutes unless you have a big gigantic mansion, I suppose, and then it might take a half hour,” she said. “The premise of all of this is to protect people and property.”

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