A Big Pine Key resident who is fighting a landmark downstairs enclosure case against Monroe County has asked the 3rd District Court of Appeal to rehear her case.

The county won the latest round in the legal battle with Sandra Carter, with the appeals court ruling that the county does not have to prove when an enclosure was built in order to enforce rules against it. Monroe County Circuit Judge David Audlin had ruled it did.

Attorney Lee Rohe requested the rehearing on the grounds that the county's law prohibiting downstairs enclosures has changed. When Carter's enclosure was built, which was before she bought the house, the then-existing law imposed a misdemeanor penalty known as "willful violations," which emphasized "flood proofing" the room, not removing it, Rohe said.

"Once Ordinance 3-1975 was appealed by enactment of another ordinance, civil and/or criminal liability for the erection of the enclosure should have been extinguished," Rohe wrote. "Without stating the date of the offense, the county cannot be held liable for the retroactive application of the law to occurrences that happened before the law existed."

The house was built in 1975 or 1976, and the enclosure was built about the same time, Rohe said. She bought the home from her uncle in August 2001, and was cited in June 2007. Rohe argues her enclosure should be grandfathered in.

The case could determine whether the county can inspect, and in some cases call for the removal of, hundreds of rooms under stilted homes. Residents have been battling the county and the Federal Emergency Management Agency (FEMA) on the issue.

Residents who have been asking for amnesty from illegal downstairs enclosures saw Carter's initial victory in the lower court as a major blow to the county's inspection program, which requires code officers to inspect people's homes for enclosures each time they pull a building permit, even if the construction has nothing to do with the enclosure.

In certain cases, code officers cannot cite homeowners if the violations occurred more than five years' prior. County attorneys say the statute of limitations does not apply to downstairs enclosures. Carter's attorney contends it does.

County attorneys contend the lower court's ruling would have crippled enforcement efforts by code officers, as enclosures are erected in a stealthy manner so they are not detected.

The county, at the urging of FEMA, prohibits property owners from using downstairs enclosures for living space. They can have 299 square feet of storage space underneath their stilted homes.

In March, the County Commission agreed to ask FEMA for amnesty for all property owners who have had enclosures on their property since before March 14, 2002, which marks the county's start of the inspection program. County officials plan to meet with FEMA next month and discuss downstairs enclosure inspections.

tohara@keysnews.com