A circuit judge has granted Monroe County's request to rehear a high-profile downstairs enclosure case.

Judge David Audlin on Thursday agreed to rehear arguments in the code enforcement case against Sandra Carter on Dec. 4, after having ruled against the county twice in the past year, most recently earlier this month.

In the county's request for a new hearing, Assistant County Attorney Bob Shillinger said Carter should have known downstairs enclosures were prohibited when she bought the house from her uncle in 2001 because she was a real estate agent.

Carter's attorney, however, said he remained confident Friday the judge would not change his ruling.

"He's being very careful," Lee Rohe said. "He probably doesn't want there to be any justification to overturn this if the county files an appeal. ... Ninety percent of the time judges don't change their minds."

The county in June 2007 cited Carter for having an illegal downstairs enclosure. Audlin in October 2007 overruled the county, saying it waited too long to cite the Big Pine Key homeowner and could not pinpoint when the violation occurred. The county appealed the 3rd District Court of Appeal ruling, which overturned Audlin and sent the case back to him for a new hearing.

Audlin earlier this month once again ruled in favor of Carter and ordered the case be dismissed, saying Property Appraiser's Office records have long shown the existence of the downstairs enclosure. The county was aware of the downstairs enclosure in 1983 when it levied taxes on it, but took no action, Audlin said. The county's comprehensive land use plan prohibiting construction at ground level went into effect in 1986, he noted. Additionally, the county in 1975 was required to pass an ordinance prohibiting habitable construction below mean-flood elevation in order to participate in the National Flood Insurance Program, a federally subsidized insurance program.

"We took issue with his determination that the flood plain ordinance was being applied retroactively since the county first adopted a flood plain ordinance in 1975, well before the house was built," Shillinger said of the judge.

While attorneys continue battling the Carter case, the county is asking for amnesty for other people in similar situations. The Monroe County Commission passed a resolution asking the Federal Emergency Management Agency (FEMA) to change its policy regarding mandatory inspections of downstairs enclosures.

The County Commission approved a proposal granting amnesty for illegal downstairs enclosure rooms created before 2002, when the county launched the inspection program. Under that proposal, property owners would not be allowed to rebuild enclosures if 50 percent of the structures were destroyed in a hurricane or some other natural disaster. The county prohibits bedrooms and living space below homes in the flood plain.

County Mayor George Neugent, Commissioner Mario Di Gennaro and the county staff met with FEMA earlier this summer to discuss the proposal. The two sides planned to meet again in August, but FEMA has postponed it.

Neugent is concerned FEMA did so because it's being lobbied by a citizen-based group, Citizens Not Serfs, which wants amnesty for all Florida Keys property owners. Citizens Not Serfs has hired the high-powered Washington, D.C.-based lobbying and legal firm Patton Boggs to lobby FEMA and the county.

Neugent said he was told that either the Patton Boggs firm or Citizens not Serfs met with FEMA officials to talk about amnesty. The group's representatives said they were not aware of any recent meetings with FEMA, and said the Patton Boggs firm would most likely be in discussions with FEMA.

Citizens Not Serfs has paid for a barrage of radio and newspaper advertisements lobbying for amnesty for all residents. The accuracy of the ads has been questioned. One advertisement claims Islamorada and Marathon are not subject to downstairs enclosures inspections, which they are.

tohara@keysnews.com