smart vent products v. crawl space - complaint

7/29/2019 Smart Vent Products v. Crawl Space - Complaint

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

SMART VENT PRODUCTS, INC., :

:

Plaintiff, : CIVIL ACTION NO.:

:

v. :

:

CRAWL SPACE DOOR : JURY TRIAL DEMANDED

SYSTEM INC., d/b/ a CRAWL :

SPACE DOOR SYSTEMS, INC. : ELECTRONICALLY FILED

:

Defendant. :

COMPLAINT

COMES NOW Plaintiff, Smart Vent Products, Inc. (Smart Vent), by and

through its undersigned counsel, and for its complaint against Defendant, Crawl

Space Door System Inc. d/b/a Crawl Space Door Systems, Inc. (Crawl Space

Doors), alleges as follows:

PARTIES

1. Smart Vent is a corporation organized under the laws of the State ofFlorida, with a principal place of business at 430 Andbro Drive, Unit 1, Pitman,

New Jersey, 08071.

2. Crawl Space Doors is a corporation organized under the laws of theState of Virginia, with a principal place of business at 3700 Shore Drive #101,

Virginia Beach, Virginia 23455.

Case 1:13-cv-05691-JBS-KMW Document 1 Filed 09/24/13 Page 1 of 27 PageID: 1


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JURISDICTION AND VENUE

3. This Court has jurisdiction over this matter pursuant to 28 U.S.C.

1331 because this Complaint raises claims arising under the laws of the United

States, including 28 U.S.C. 1338 and 15 U.S.C. 1121 and 1125.

4. Venue is proper in this judicial district pursuant to 28 U.S.C.

1391(b)(1) and 1391(b)(2) because Crawl Space Doors is deemed to reside in this

judicial district and because a substantial part of the events or omissions giving rise

to the claims occurred within this judicial district.

FACTS

5. Smart Vent sells flood mitigation and ventilation systems in the form offoundation flood vents.

6. The purpose of these vents is to allow flood waters to flow freely intoand out of the lower level of structures. If water pressure were to build up on either

the interior or exterior of foundation walls, in, for example, a flood situation, the

foundation walls could be compromised and significant property damage could

occur as a result, such as buckling and collapsing of a foundation wall:



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7. Crawl Space Doors is in the business of selling, among other items,flood vents.

8. Crawl Space Doors competes with Smart Vent for consumers of floodvent products.

Requirements for Engineered Flood Vents

9. With the passage of the National Flood Insurance Act of 1968, theUnited States Congress established the National Flood Insurance Program (NFIP).

The NFIP is a program of the federal government which enables property owners in

participating communities to purchase flood insurance in exchange for State and

community floodplain management regulations that seek to reduce future flood

damage.



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10. The NFIP is administered by the Federal Emergency ManagementAgency (FEMA).

11.

FEMA works closely with private insurance companies to offer flood

insurance to property owners. In order to qualify for flood insurance, a community

must join the NFIP and agree to enforce sound floodplain management standards.

12. One of the important objectives of the NFIP is the protection ofbuildings that are constructed in special flood hazard areas (SFHAs) from damage

caused by flood forces. In support of this objective, the NFIP regulations include

minimum building design criteria that apply to new construction, repair of

substantially damaged buildings, and substantial improvement of existing buildings

in SFHAs. Some of these requirements are set forth in the document Openings in

Foundation Walls and Walls of Enclosures, FEMA Technical Bulletin 1, August

2008 (hereafter TB-1). (Ex. A.)

13. TB-1, as amended, requires certain minimum building design criteria,including the use of flood vents for certain properties in flood zone areas.

14. For flood vents to meet the requirements of TB-1, NFIP recognizes twotypes of flood vents for relieving hydrostatic pressures on enclosed spaces:

non-engineered openings and engineered openings.

15. Under TB-1, as amended, a non-engineered opening is an opening ina structures wall which allows flood waters to flow inside a structure. These



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non-engineered openings must meet NFIPs requirement that 1 square inch of net

open area exists in the structures walls for every 1 square foot of enclosed area. As

examples, leaving openings in brickwork, or omitting blocks from foundation walls,

may constitute non-engineered openings. Additional NFIP regulations exist

regarding non-engineered openings.

16. Under TB-1, as amended, engineered openings are specificallydefined as:

an opening that is designed and certified by a registered designprofessional as meeting certain performance characteristics

related to providing automatic entry and exit of flood waters; the

certification requirement may be satisfied by an individual

certification or issuance of an Evaluation Report by the ICC

Evaluation Service, Inc. . Ex. A. (TB-1 at 31).

17. Engineered openings or devices may be accepted by local officials asan alternative to non-engineered openings provided the designs are certified. Ex. A

(TB-1 at 25).

18. Engineered openings can be certified in one of two methods.19. For the first option, the certification can be an Evaluation Report issued

by the International Code Council Evaluation Services, Inc. (ICC-ES). The

ICC-ES is a subsidiary of the International Code Council (ICC).

20. As set forth in TB-1, Evaluation Reports are issued only after theICC-ES performs technical evaluations of documentation submitted by a



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manufacturer, including technical design reports, certifications and testing that

demonstrate current compliance and performance. Ex. A. (TB-1 at 25).

21. For the second option, the certification can be an individualcertification.

22. Individual certifications are for individually designed openings.23. Individual certifications must be prepared by a registered design

professional and must contain certain information, including, but not limited to:

(a)information about the design professional, his or her license, signature,and applied seal;

(b)a statement certifying that the openings are designed to automaticallyequalize hydrostatic flood loads on exterior walls by allowing the

automatic entry and exit of floodwaters in accordance with the design

requirements of Engineered openings as set forth in [ASCE 24-05], which

is referenced by the International Building Code;

(c)a description of the range of flood characteristics tested or computed forwhich the certification is valid, such as rates of rise and fall of floodwaters;and

(d)a description of the installation requirements or limitations that, if notfollowed, will void the certification.

Ex. A. (TB-1 at 25).

24.

On October 23, 2008, FEMA issued NFIP Underwriting Bulletin

W-08086, which further clarified, among other items, the requirements for the

individual certifications to be used for engineered openings designed for installation

in a specific building:



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For engineered openings designed for installation in a

specific building, a copy of the certification is

requiredThe original certification statement must

include the design professionals name, title, address, type

of license, license number, the state in which the licensewas issued, and the signature and applied seal of the

certifying registered design professional. In addition,

this certification shall identify the building in which

the engineered openings will be installed and it shall

address the following:

(a) a statement certifying that the openings are designed to

automatically equalize hydrostatic flood loads on exterior

walls by allowing the automatic entry and exit of

floodwaters;

(b) description of the range of flood characteristics tested

or computed for which the certification is valid, such as

rates of rise and fall of floodwaters; and

(c) description of the installation requirements or

limitations that, if not followed, will void the

certification.

(Emphasis added.)

See Ex. B. (Memorandum W-08086, October 23, 2008, clarifying TB-1

requirements.)

25. Crawl Space Doors was, upon information and belief, formed on orabout March 27, 1998.

26. When it was formed, Crawl Space Doors sold products that providedaccess to crawl spaces in homes.



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27. At that time, Crawl Space Doors began offering for sale a door whichwas made out of plastic.

28.

Crawl Space Doors then began to develop its product line further.

These steps included adding screens and fans to the plastic doors for the purpose of

providing ventilation to crawl spaces.

29. Subsequently, Crawl Space Doors began advertising these ventilateddoors as flood vents.

30. Today, Crawl Space Doors sells a product line of Engineered FloodVents.

31. Crawl Space Doors markets its flood vents and advertises that its floodvents are FEMA compliant and that its flood vents conform to the Flood

Insurance requirements of FEMA and the NFIP.

Crawl Space Doors Flood Vents are not FEMA Compliant

32. Crawl Space Doors has not obtained an Evaluation Report issued by theICC-ES concerning the flood vents that it sells.

33. Crawl Space Doors cannot use an individual certification to meet therequirements set forth in TB-1 because the individual certifications are specifically

tailored for individually designed openings, rather than mass produced flood vents,

such as those sold by Crawl Space Doors.



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34. Despite knowledge of TB-1 regulations, Crawl Space Doors engagesengineers to sign non-specific individual certifications in 14 states, which

certifications purport to make Crawl Space Doors vents FEMA Compliant.

35. Crawl Space Doors has hired engineers to sign and placestate-registration seals on these Engineered Flood Vent Certification documents.

On information and belief, all such documents are almost identical but for the

signature and identification information at the bottom of the page.

36. While Crawl Space Doors attempts to market its products as FEMACompliant, none of Crawl Space Doors certifications are original, and none of

the certifications identify the building in which the engineered openings will be

installed, contrary to the requirements of TB-1. Ex. A. (TB-1 at 24).

37. Crawl Space Doors markets itself and its President as experts in thefield of flood risk prevention and FEMA regulations regarding NFIP insurance and

NFIP compliance.

38. Despite not complying with FEMAs NFIP and TB-1 regulations, aswell as ASCE and IBC requirements, Crawl Space Doors fills its marketing

materials with meta-tags, comments on its credentials, and misleading statements

that it provides the best products in the market, which allow maximum crawl

space ventilation [and] flood protection, and that the patented FEMA compliant

flood vents are certified by an engineer to meet FEMAs TB-1 2008 requirements.



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Crawl Space Doors further states that the products are unparalleled by industry

standards.

Crawl Space Doors Overstates its Flood Vents Coverage Areas

39. TB-1 specifies how certified design professionals must determineperformance criteria for engineered flood openings. TB-1 includes an equation,

which is used to determine how much enclosed space under a structure that each

flood vent services.

Ao = 0.033 [1/c] R Ae, where R is a worst case rate of rise andfall of flooding waters; Ao is the net open area of the flood

vent, and Ae is the enclosed area (in square feet), that the flood

vent can competently service. The flood vent services, or

protects, the enclosed area by allowing sufficient amounts of

flooding water to pass through the vent and into the interior of

the structure, in effect flooding the building or structure.

Ex. A. (TB-1 at 27).

40. In the equation above, Ao is the net open area of the engineered ventsand Ae is the amount of enclosed space within the structure that can be serviced by a

specific engineered vent.

41. As set forth in the equation above, if a vent has a larger net open area,i.e. a larger Ao value, that vent will service a larger area of enclosed space in a

building, i.e. the value of Ae will also be larger.

42. Crawl Space Doors significantly overstates the net open area of itsvents.



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43. By significantly overstating the net open area of its flood vents, CrawlSpace Doors significantly overstates the amount of enclosed space each vent can

serve.

44. For example, Crawl Space Doors offers flood vent model 816CS with acertification that states that that model has a net open area of 105 square inches,

and services an enclosed area of 205 square feet.

45. Crawl Space Doors bases this calculation on a misleading and incorrectdetermination of net open area of the 8 x 16 flood vent.

46. Smart Vent also has a flood vent product which measures 8 x 16.47. Smart Vent has obtained an Evaluation Report from ICC-ES for its

flood vent products.

48. ICC-ES evaluated this flood vent and determined that it services 200square feet of enclosed space. See Ex.C (ICC-ES Evaluation Report, ESR-2074,

reissued December 1, 2012).

49. By, among other items, improperly inflating the net open area of itsflood vents, Crawl Space Doors advertises that its 8 x 16 flood vent product serves

more enclosed space than the Smart Vent 8 x 16 flood vent.

50. Crawl Space Doors also sells its 8 x 16 flood vent at a price less thanSmart Vents 8 x 16 flood vent.



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51. The consequence of Crawl Space Doors overstatement of the areaproperly serviced by a single flood vent is that the architects, consumers, and

builders are misled, and do not know that more Crawl Space Door flood vents are

needed to service a given enclosed area.

52. One of Crawl Space Doors competitors challenged the accuracy ofCrawl Space Doors engineering certificates.

53. A third-party determined that the total enclosed area serviceable byCrawl Space Doors model FV 816 flood vent was substantially and materially

overstated by purporting to service twice as much enclosed area as it should. That is,

the proper calculations resulted in a total enclosed area of approximately 111

square-feet that could be serviced per vent, and not 230 square feet then claimed by

Crawl Space Doors. See Ex. D (L. Joseph letter dated July 18, 2011.)

54. On information and belief, after receiving this letter, Crawl SpaceDoors changed its certifications to state that model FV 816 services 205 square feet

of enclosed area, which continues to substantially and materially overstate the

enclosed serviceable area by 94 square feet more than the independent evaluator.

55. On information and belief Crawl Space Doors continues to overstatethe area serviced by its vents.

56. As referenced above, Crawl Space Doors improperly utilizescertifications from engineers licensed in various states to support its claim that its



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flood vent products are compliant with the requirements of FEMA and NFIP.

57. The certifications provided by these engineers include statements bythe engineers that they did not personally calculate the net open area of the

engineered vents themselves.

58. These certifications also include inconsistencies concerning whoprovided and/or determined the net open area of the flood vents.

59. For example, the certification for the State of New Jersey indicates thatthe engineer utilized the The net area of openings (Ao) as provided by the

manufacturer.

60. The certification for the State of Alabama, however, indicates that[t]he actual vent opening measurements were determined and certified by Mr.

Christopher Mark Looney [sic].

61. The certification for the State of Alabama also provides that theengineer utilized [t]he net area of openings (Ao) as provided by the manufacturer.

62. The Certification for the Commonwealth of Virginia is signed by anengineer named Christopher Mark Loney. Mr. Loney indicates that he utilized

[t]he net area of openings (Ao) as provided by the manufacturer. He does not

state that he determined and certified the actual vent opening measurements.

Crawl Space Doors misleading statements regarding patent protection

63. Crawl Space Doors marketing statements falsely assert that its



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products are protected by a utility patent by use of the term patented in the context

of its patented products being designed to either allow maximum crawl space

ventilation, flood protection or to encapsulate the crawl space. Our patented FEMA

compliant flood vents are certified by an engineer to meet FEMAs [TB-1]

requirements. (emphasis added) See Ex. E. (Flyer).

64. By asserting ownership of a patent for flood vents in the context ofdesigns for functional features that allow ventilation and protection, and

which encapsulate, and by immediately thereafter stating This technology is

unparalleled by industry standards, Crawl Space Doors misleads consumers into

believing there is a functional link between its patents and its products, namely, a

utility patent:

Crawl Space Door Systems has engineered, designed,

manufactured and patented a unique selection of crawl

space doors, air vents, flood vents, fans and vent covers.

These patented products are designed to either allow

maximum crawl space ventilation, flood protection or to

encapsulate the crawl space. Our patented FEMA

compliant flood vents are certified by an engineer to meet

FEMAs Technical Bulletin 1-2008 requirements.

Our products are engineered as a solution Thistechnology is unparalleled by industry standards.

See Ex. E.



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65. The word patented is used three times above, and based on thecontext of the terms engineered and designed to in close proximity to

patented, industry professionals and consumers would understand this to

correspond to utility patents, yet the patents owned by Crawl Space Doors are design

patents.

66. Design patents, by statute, and as stated on the U.S. Patent andTrademark Offices design patent application form, are limited to ornamental and

non-functional designs, and cannot protect functional aspects of a device.

DESIGN V. UTILITY: A "design patent" protects an

article's ornamental appearance (e.g., the way an article

looks) (35 U.S. C. 171 ), while a "utility patent" protects

the way an article is used and works (35 U.S.C. 101). The

ornamental appearance of an article includes its

shape/configuration or surface ornamentation upon the

article, or both.

U.S. Patent and Trademark Offices form PTO/SB/04-05.

67. On information and belief, Crawl Space Doors is referring to designpatents US D583042 S1 (Crawlspace FEMA flood louver) andUS D448489 S1

(Crawl space door and frame with interior flange) when marketing its

technology as being protected by patents.

68. Crawl Space Doors design patents acknowledge, in the sole claims foreach, that the design patents are limited to ornamental designs. See U.S. D583042 S1

(claiming The ornamental design for a crawlspace FEMA flood louver, as



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shown.); US D448489 S1 (claiming The ornamental design for a crawl space door

and frame with interior flange, as shown and described.).

69. Crawl Space Doors misrepresents its products as possessing anunparalleled technology, when it is merely protected by the U.S. governments

issuance of design patents.

Crawl Space Doors Used

Smart Vents Incontestable Trademark in Internet Marketing

70. SMART VENT is a trademark owned by Smart Vent, on the UnitedStates Patent and Trademark Offices Principle Register, under federal registration

number 2,464,134. The mark has been registered since 2001, was renewed in 2011,

and is now incontestable under 15 U.S.C. 1065. See Exh. F.

71. Upon information and belief, since at least 2012, Crawl Space Doorshas used the incontestable trademark SMART VENT in connection with its

Internet marketing, to capture Smart Vents good will and reputation, to drive more

traffic to its website, to suggest endorsement by Smart Vent, and/or to falsely

associate itself with quality products produced by Smart Vent.

72. Crawl Space Doors marketing efforts include use of a website,www.crawlspacedoors.com, which website includes a blog, or online journal that is

used to direct readers towards purchasing Crawl Space Doors products.



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73. Crawl Space Doors intentionally uses the registered trademarkSMART VENT as a tag and a meta-tag in the coding of its website in order to

(i) achieve a higher ranking and profile on Internet search engines, and (ii) to profit

from the goodwill and high quality reputation of its competitor, Smart Vent, and so

include the registered trademark on multiple websites, at least the following:

Crawl Space Doors - Foundation

Ventilation Installation

74. Crawl Space Doors use and infringement of SMART VENT injuresSmart Vents reputation, including by the capture of Smart Vents goodwill and

Smart Vents reputational investments made in connection with the mark.



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CAUSES OF ACTION

Count I

Unfair Competition, 15 U.S.C. 1125

75. Smart Vent repeats and incorporates by reference the allegations madein the foregoing paragraphs of this Complaint as if fully set forth herein.

76. This Count is for unfair competition and arises under the Lanham Act,15 U.S.C. 1051-1127 in general, and 15 U.S.C. 1125(a)(1) in particular.

77. Crawl Space Doors acts of unfair competition include, but are notlimited to, the following.

78. Crawl Space Doors has stated that its flood vents meet the requirementsof FEMA, NFIP and TB-1.

79. The statement that its flood vents meet the requirements of FEMA,NFIP and TB-1 are false and misleading statements about Crawl Space Doors flood

vent products.

80. The use of the incontestable registered trademark SMART VENT inconnection with marketing of its products, is false and misleading.

81. Crawl Space Doors has made false and misleading statements whichmisrepresent the amount of area that their flood vents will service under NFIP

regulations.



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82. Crawl Space Doors has made false and misleading statementssuggesting that it has utility patents when Crawl Space Doors owns design patents.

83.

These false statements about Crawl Space Doors products deceive and

are likely to deceive a substantial portion of the purchasers of flood vents.

84. Crawl Space Doors aforementioned statements are material in that thestatements influence the purchasing decisions of consumers and construction

professionals.

85. As a result of Crawl Space Doors actions and statements, there isactual deception of the intended audience, namely, the consumers of the flood vents

and construction professionals.

86. Crawl Space Doors advertised goods, namely, the flood vents, havetraveled in interstate commerce.

87. Smart Vent has been injured as a result of Crawl Space Doors actscomplained of herein, and there is a likelihood of continued injury to Smart Vent as

result of Crawl Space Doors acts complained of herein.



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Count II

Unfair Competition, N.J.S.A. 56:4-1 AND 56:4-2


89. This Count is for unfair competition and arises under the New JerseyUnfair Competition Statute, N.J.S.A. 56:4-1 et seq.




vent products.



regulations.




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96. These false statements about Crawl Space Doors products deceive andare likely to deceive a substantial portion of the purchasers of flood vents.

97. Crawl Space Doors aforementioned statements are material in that thestatements influence the purchasing decisions of consumers and consruction

professionals.

98. As a direct and proximate result of Crawl Space Doors actions andstatements, there is actual deception of the intended audience, namely, the

consumers of the flood vents.

99. Crawl Space Doors advertised goods, namely, the flood vents, havetraveled in interstate commerce.

100. Smart Vent has been injured as the a result of Crawl Space Doors actscomplained of herein, and there is a likelihood of continued injury to Smart Vent as


Count III

Unfair Competition, Common Law





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vent products.



regulations.



109. Crawl Space Doors aforementioned statements are material in that thestatements influence the purchasing decisions of consumers.

110. As a result of Crawl Space Doors actions and statements, there isactual deception of the intended audience, namely, the consumers of the flood vents.



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Count IV

Negligent Misrepresentation


113. Crawl Space Doors has a duty to provide non-false and non-deceptiveinformation regarding its products.

114. Crawl Space Doors has breached this duty by providing falseinformation.

115.

Crawl Space Doors has stated that its flood vents meet the requirements

of FEMA, NFIP and TB-1.


vent products.




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118. Crawl Space Doors has made false and misleading statements whichmisrepresent the amount of area that its flood vents will service under NFIP

regulations.



121. Crawl Space Doors aforementioned statements are material in that thestatements influence the purchasing decisions of consumers and construction

professionals.

122. Consumers reasonably rely on Crawl Space Doors duty to providenon-false information.



Count V

Federal Trademark Infringement, 15 U.S.C. 1114




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125. Smart Vent has made substantial investments of time, labor, and moneyto associate its good will and quality products with its trademark.

126. As a result of Crawl Space Doors above-described improper conductand unfair competition, Crawl Space Doors has unfairly deprived Smart Vent of the

fruits of its labor, causing damage.

127. Crawl Space Doors distribution, marketing, promotion, offering forsale, and sale of goods in connection with the use of the incontestable trademark

SMART VENT, a mark owned by Smart Vent, is likely to cause confusion,

mistake, or deception as to the source, affiliation, sponsorship, or authenticity of

Crawl Space Doors goods. As a result of Crawl Space Doors unauthorized use of

trademarks that are identical to and/or confusingly similar to Smart Vents mark, the

public is likely to believe that Crawl Space Doors goods have been manufactured,

approved by, or are affiliated with Crawl Space Doors. Consequently, Smart Vents

ability to gain revenue through the sale of merchandise bearing its mark is limited.

128. Crawl Space Doors unauthorized use of the mark falsely representsCrawl Space Doors website and products as emanating from, or being authorized by

Smart Vent, and places beyond Smart Vents control the quality of products bearing

the SMART VENT trademark, and the overall message associated with the

products bearing the SMART VENT trademark.



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129. Crawl Space Doors infringement of Smart Vents trademark is willful,intended to reap the benefit of the goodwill of Smart Vent, and violates Section

32(1) of the Lanham Act, 15 U.S.C. 1114(1).

130. As a result of Crawl Space Doors wrongful conduct, Smart Vent hassuffered, and will continue to suffer, substantial damages.

131. Smart Vent is also entitled to injunctive relief pursuant to 15 U.S.C. 1116(a). Smart Vent has no adequate remedy at law for Defendants wrongful

conduct because, among other items, (a) Defendants infringement constitutes harm

to Smart Vent such that Smart Vent could not be made whole by any monetary

award, (b) if Defendants wrongful conduct is allowed to continue, the public is

likely to become further confused, mistaken, or deceived as to the source, origin, or

authenticity of the infringing materials, and (c) Defendants wrongful conduct, and

the resulting damage to Smart Vent, is continuing.

WHEREFORE, Plaintiff prays for a judgment against Defendant, Crawl

Space Doors, and requests that this Court:

1. Enter a finding and a judgment in favor of Smart Vent and againstCrawl Space Doors under 15 U.S.C. 1051-1127, including 15

U.S.C. 1114 and 1125, N.J.S.A. 56:4-1 et seq., and the commonlaw, for unfair competition, infringement and negligent

misrepresentation;

2. Award actual damages, incidental damages, and consequentialdamages as permitted by law, including punitive and treble damages,



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pursuant to 15 U.S.C. 1117, N.J.S.A. 56:4-2, or the common law;

3. Award all of Defendants profits or gains resulting from Defendantswillful acts of unfair competition as provided by 15 U.S.C. 1117,

N.J.S.A. 56:4-2, or the common law;

4. Award interest, attorneys fees, costs and disbursements due to theexceptional nature of this case as provided by 15 U.S.C. 1117, by

N.J.S.A. 56:4-2, or the common law;

5. Enjoin Defendant, its affiliates, subsidiaries, officers, directors,employees, agents, representatives, licensees, successors and assigns,

and all those acting for and on their behalf, or acting in concert with

them from further acts of unfair competition and infringement;

6. Award all further and proper injunctive relief, and all such other reliefas permitted by law that this Court deems appropriate; and

7. Such other relief, at law or in equity as the Court deems just and proper.JURY DEMAND

Smart Vent Products, Inc. hereby demands a trial by jury on all issues so

triable.

Dated: September 24, 2013 Respectfully submitted,

s/ Anthony J. DiMarino, III

Anthony J. DiMarino, III, Esq.

Emmett S. Collazo, Esq.

A.J.DIMARINO,P.C.

57 Euclid Street, Suite AWoodbury, NJ 08096

(856) 853-0055

Counsel for Plaintiff,

Smart Vent Products, Inc.



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EXHIBIT A

Case 1:13-cv-05691-JBS-KMW Document 1-1 Filed 09/24/13 Page 1 of 35 PageID: 28


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Openings in FoundationWalls and Walls ofEnclosuresBelow Elevated Buildings in Special Flood Hazard Areasin accordance with the National Flood Insurance Program

Technical Bulletin 1 / August 2008



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Comments on the Technical Bulletins should be directed to:

Department o Homeland SecurityFEMA Mitigation Directorate

500 C Street, SW.

Washington, D.C. 20472

Technical Bulletin 1-08 replaces Technical Bulletin 1-93, Openings in Foundation Walls.

Photograph Credits:

Figure 3. Bill Bryant, Anne Arundel County, Maryland

Figure 4. Smart Vent, Inc.

Figure 17. North Carolina Emergency Management/T. Riddle

Table o Contents

Introduction ..................................................................................................................................1

NFIP Regulations ..........................................................................................................................4

How Openings Aect Flood Insurance Rates ..............................................................................4Documenting Elevations and Inormation About Openings .....................................................5

Enclosed Areas Below Elevated Buildings ....................................................................................5

Enclosures That Require Openings ..................................................................................6

Situations That Do Not Require Openings ....................................................................12

Requirements and Guidance or Installation o Openings.......................................................13

Minimum Number o Openings .....................................................................................13

Height o Openings Above Grade ..................................................................................14

Installation Examples ......................................................................................................15

Non-Engineered Openings and Engineered Openings ............................................................18

Unacceptable Measures ...................................................................................................19

Non-Engineered Openings .............................................................................................20

Engineered Openings .....................................................................................................24

The NFIP ......................................................................................................................................28

NFIP Technical Bulletins ............................................................................................................28

Ordering Technical Bulletins .....................................................................................................28

Further Inormation ...................................................................................................................29

Glossary ........................................................................................................................................30



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1Technical BulleTin 1 augusT 2008

Introduction

Protecting buildings that are constructed in special ood hazard areas (SFHAs) rom dam-age caused by ood orces is an important objective o the National Flood Insurance Program(NFIP). In support o this objective, the NFIP regulations include minimum building de-

sign criteria that apply to new construction, repair o substantially damaged buildings, andsubstantial improvement o existing buildings in SFHAs. The base ood is used to delineateSFHAs on Flood Insurance Rate Maps (FIRMs) prepared by the NFIP. The base ood is theood that has a 1-percent chance o being equaled or exceed-ed in any given year (commonly called the 100-year ood).Certain terms used in this Technical Bulletin are defned inthe Glossary.

The NFIP regulations require that residential buildingsconstructed in A zones have the lowest oor (including base-ment) elevated to or above the base ood elevation (BFE). In

this Technical Bulletin, the term A zones includes all zonesshown on FIRMs as Zones A, AE, A1-A30, AR, AO, and AH.

Enclosed areas (enclosures) are permitted under elevatedbuildings provided the enclosed areas meet certain use re-strictions and construction requirements related to oodresistance, including use o ood damage-resistant materialsand installation o openings to allow or automatic entry andexit o oodwaters. Enclosures under buildings in V zones(includes all Zones V, VE, and V1-V30) must meet the same en-closure requirements except that openings are not required

and walls must be non-supporting breakaway walls, open lat-tice-work, or insect screening (see Technical Bulletin 9,Designand Construction Guidance or Breakaway Walls Below Elevated

Coastal Buildings).

The NFIP regulations or new construction and substantialimprovements o existing buildings require that enclosed ar-eas under elevated non-residential buildings meet the samerequirements as those or enclosures under elevated residen-tial buildings. New non-residential buildings constructed in Azones, and substantial improvements o existing non-residen-

tial buildings, must either have their lowest oors elevated toor above the BFE or be oodprooed (made watertight) to orabove the BFE.

Many types o oundations are used to elevate buildings. Whilethe main portions o elevated buildings are above the BFE,the oundation and any enclosed areas below the BFE willbe exposed to ood orces. Enclosed areas below the BFE

Under the NFIP, the low-est oor is the oor o thelowest enclosed area o

a building. An unfnishedor ood-resistant enclo-

sure that is used solely orparking o vehicles, build-

ing access, or storage is

not the lowest oor, provid-ed the enclosure is built in

compliance with applicablerequirements.

As used by the NFIP, anenclosure is an area that

is enclosed on all sides bywalls.

The NFIP defnes a base-ment as any area that is

below-grade on all sides.

The regulations do not allowbasements to extend belowthe BFE.

Owners o existing elevatedbuildings with enclosuresbelow the BFE may wish

to retroft the enclosures.Lower NFIP ood insur-

ance rates may apply i the

retroft enclosures haveopenings that meet the re-quirements in this Technical

Bulletin and also meet otherrequirements or enclosures(limited use, ood dam-

age-resistant materials, andelevated utilities).



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2 Technical BulleTin 1 augusT 2008

(including crawlspaces) are permitted i used only or parking o vehicles, building access,and storage. Figure 1 illustrates a typical crawlspace oundation wall and a typical ramed wallsurrounding an enclosed area.

I enclosure walls are not designed with openings to relieve the

pressure o standing or slow-moving water against them (calledhydrostatic loads), the walls can be damaged or ail during aood. I the walls are load-bearing walls that support the el-evated building, ailure o the walls may result in damage to,or collapse o, the building. To address this concern, the NFIPregulations require that enclosure walls contain openings thatwill allow or the automatic entry and exit o oodwaters. Theseopenings allow oodwaters to reach equal levels on both sideso the walls, thereby lessening the potential or damage causedby a dierence in hydrostatic loads on opposite sides o thewalls. In A zones, the requirement or ood openings applies

to all enclosed areas below new elevated buildings and belowsubstantially improved buildings.

This Technical Bulletin explains the NFIP requirements or ood openings and providesguidance or prescriptive (non-engineered) openings and engineered openings. Non-engi-neered openings are used to meet the NFIPs prescriptive requirement o 1 square inch o netopen area or every square oot o enclosed area. As an alternative, engineered openings thathave characteristics that dier rom non-engineered openings may be used provided they aredesigned and certifed by a registered design proessional as meeting certain perormancecharacteristics described in this Technical Bulletin.

Areas o shallow ood-ing may be shown as AO

zones on FIRMs. Ratherthan BFEs, AO zones have

ood depths that rangerom 1 to 3 eet. In these

zones, all NFIP require-ments related to BFEsapply, including elevation o

the lowest oor to or abovethe designated ood depth

and requirements or enclo-sures with ood openings

that are located so that

oodwaters will ow in andout.

Figure 1. Typical enclosures with ood openings



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This Technical Bulletin also discusses how openings could aect ood insurance premiums,provides examples o enclosures that require openings and situations where openings are notrequired, and outlines the requirements or, and provides guidance, on the ollowing:

n Installation o openings, including the minimum number o openings and height o open-ings above grade,

n Non-engineered openings, and

n Engineered openings.

Examples are provided to illustrate types o buildings and enclosures that require openings,and to address several commonly encountered situations. Other situations may require the ad-vice o a registered design proessional. Questions should be directed to the appropriate localofcial, NFIP State Coordinating Ofce, or FEMA Regional Ofce.

Solid perimeter oundation walls and walls surrounding en-closed areas below the BFE may be damaged by orces related

to moving oodwaters and wave impacts (called hydrodynamicloads), and debris impacts. The requirement or openings isintended to reduce only ood damage associated with hydro-static not hydrodynamic loads.

Hydrodynamic loads and debris impacts may be signifcant insome ood hazard areas shown as A zones on FIRMs, includ-ing riverine areas where high ow velocities are likely (e.g.,aster than 5 eet per second) and areas where wave heights o1.5 eet or more are possible. In these areas, it is recommend-ed that a registered design proessional evaluate oundation

designs. Open oundations without enclosed areas are less vul-nerable to the type o damage that can be caused by high owvelocities and wave action.

Buildings in V zones (Zones V, VE, and V1-V30) must meet certain design and constructionrequirements that are specifed in the NFIP regulations at Section 60.3(e). The area below thelowest oors o buildings in V zones must be ree o obstruction or, i enclosed, the walls oenclosures must be constructed with non-supporting breakaway walls, open wood lattice-work,or insect screening. Openings may be provided, but are not required, in breakaway walls un-der buildings in V zones. For inormation on V-zone design and construction requirements,reer to the NFIP regulations, the Technical Bulletin series (especially Technical Bulletin5, Free-o-Obstruction Requirementsand Technical Bulletin 9, Design and Construction Guidanceor Breakaway Walls Below Elevated Coastal Buildings), the Coastal Construction Manual (FEMA55CD), Flood Resistant Design and Construction(ASCE 24), and Home Builders Guide to CoastalConstruction(FEMA 499).

This Technical Bulletin dis-cusses openings in wallsbelow the BFE. Readers

should check with thecommunity to determine

whether a higher eleva-tion standard is enorced.

For example, communi-ties may add reeboard ormay regulate to the design

ood elevation (DFE). Inthose cases, reerences to

the BFE in this TechnicalBulletin should be con-

strued as reerences tothe communitys elevationrequirement.



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NFIP Regulations

The NFIP regulations or enclosures are codifed in Title 44 o the Code o Federal Regula-tions, in Section 60.3(c)(5), which states that a community shall:

Require, or all new construction and substantial improvements, that ully enclosed ar-eas below the lowest oor that are usable solely or parking o vehicles, building access,

or storage in an area other than a basement and which are subject to ooding shall bedesigned to automatically equalize hydrostatic ood orces on exterior walls by allowingor the entry and exit o oodwaters. Designs or meeting this requirement must either becertifed by a registered proessional engineer or architect or meet or exceed the ollowingminimum criteria: A minimum o two openings having a total net area o not less thanone square inch or every square oot o enclosed area subject to ooding shall be provided.

The bottom o all openings shall be no higher than one oot above grade. Openings maybe equipped with screens, louvers, valves, or other coverings or devices provided that theypermit the automatic entry and exit o oodwaters.

Proposals or substantial improvement o existing buildings in SFHAs, and proposals to repairthose that have sustained substantial damage, must comply with the requirements or newconstruction. In A zones, the applicable requirements include openings in the walls surround-ing enclosed areas below the BFE. As part o issuing permits, community ofcials must reviewsuch proposals to determine whether they comply with the requirements. Further inorma-tion on substantial improvement and substantial damage is ound in Answers to Questions AboutSubstantially Damaged Buildings(FEMA 213).

How Openings Aect Flood Insurance Rates

Careul attention to compliance with the NFIP regulations or ood openings is importantduring design, plan review, construction, and inspection. Compliance inuences both the

vulnerability to ood damage and the cost o NFIP ood insurance. I openings are not com-pliant, the oor o the crawlspace or the oor o the enclosure becomes the lowest oor. Inthose cases, the result may be signifcantly higher ood insurance premiums, especially i theoor o the crawlspace or enclosure is more than a oot or two below the BFE.

The NFIP Technical Bulletins provide guidance on the minimum requirements o the NFIP regulations.

Community or State requirements that exceed those o the NFIP take precedence. Design proes-sionals should contact the community to determine whether more restrictive provisions apply to the

building or site in question. All other applicable requirements o the State or local building codes mustalso be met or buildings in ood hazard areas.



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Documenting Elevations and Inormation About Openings

Communities are required to collect data rom permittees to document the surveyed elevationo the lowest oors o new buildings and existing buildings that are substantially improved.Although the data may be provided in other ormats, the NFIPs Elevation Certifcate (FEMA

Form 81-31) is designed specifcally or this purpose. The current version o the Elevation Cer-tifcate is online at http://www.ema.gov/business/nfp/elvinst.shtm.

The Elevation Certifcate is designed to collect inormation that acilitates determining com-pliance o new construction and to provide data necessary or the proper rating o NFIP oodinsurance. For guidance, see the instructions that accompany the Elevation Certifcate andthe Floodplain Management Bulletin: Elevation Certifcate(FEMA 467-1).

The Elevation Certifcate has blanks that are to be completed i there are enclosures underelevated buildings, including:

n

The square ootage o the enclosed area,n The number o ood openings within 1.0 oot above adjacent grade, and

n The total net area o ood openings.

The Elevation Certifcate provides space or comments. As noted above and explained in moredetail below, the regulations provide two ways to satisy the requirements or openings. Com-ments should be provided when engineered openings are used, and when there are otheraspects o enclosures and openings that comply with the requirements but that, without closeinspection, may appear to be non-compliant. The documentation required or engineeredopenings should be attached to the Elevation Certifcate (described on page 25, Documenta-

tion o engineered openings or ood insurance).

Enclosed Areas Below Elevated Buildings

The NFIP regulations speciy that enclosed areas under elevated buildings may be allowedprovided the enclosed areas are used solely or:

n Parking o vehicles (attached garages or parking areas be-low elevated buildings)

n Building access (stairwells, oyers, elevators)

n Storage (low-value items)

Although crawlspaces are not listed explicitly as an allowableuse, buildings may be elevated using perimeter oundationwalls that create enclosed areas, typically called crawlspaces orunder-oor spaces. Crawlspaces provide access to under-oorutilities such as pipes, ductwork, and electric conduits.

Some communities require

permittees to execute anon-conversion agreement

to document their under-standing that the use oenclosures is limited, that

conversion to other uses isnot allowed, and that modi-

fcation o enclosures mayresult in higher NFIP ood

insurance rates.



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It is important to understand how an otherwise compliant en-closed area below the BFE can be rendered non-compliant byinstalling eatures that are not consistent with the limitationson uses. The ollowing are not allowed below the BFE becauseo potential damage and their presence is inconsistent with

the allowed uses: appliances, heating and cooling equipment,plumbing fxtures, more than the minimum electric servicerequired to address lie saety and electric code requirementsor building access and storage areas, and materials that arenot ood damage-resistant.

The NFIP regulations require that enclosed areas surroundedby solid walls that extend below the BFE have ood open-ings. The requirement applies whether the walls are load-bearing walls or non-load-bearingwalls. Thereore, openings are required in solid perimeter oundation walls that surroundcrawlspaces and openings are required in the walls o ully enclosed areas that meet the use

limitations (parking o vehicles, building access, or storage). The requirement applies to newconstruction and to buildings that are undergoing substantial improvement, including repairo substantial damage.

Enclosures That Require Openings

Several examples o enclosures that require openings are described below:

n Solid perimeter oundation walls (crawlspaces or under-oor spaces)

n Solid perimeter oundation walls (below-grade crawlspaces)

n Solid perimeter oundation walls (with ull-height under-oor spaces)

n Garages attached to elevated buildings

n Enclosed areas under buildings elevated on open oundations in A zones

n Enclosed areas with breakaway walls under buildings elevated on open oundations in Azones

n Solid perimeter oundation walls on which manuactured homes are installed

n Accessory structures (detached garages and storage sheds)

Solid perimeter oundation walls (crawlspaces or under-oor

spaces)The crawlspace or under-oor space that is created when abuilding is elevated on a solid perimeter oundation wall is anenclosed area below the BFE that must meet all o the require-ments or enclosed areas (reer to Figure 1). I a brick veneer,siding, or other material covers the wall, then the openingsmust completely penetrate into the enclosed area. A crawlspaceaccess with a door does not qualiy as a ood opening unless

In many parts o the coun-

try, a common practice isto build conditioned crawl-

spaces that are sealed andhave mechanical ventilation.

In SFHAs, all crawlspacesmust have ood openingsthat meet the requirements

o the NFIP and the buildingcodes.

The only exception to theopenings requirement isor non-residential build-

ings that are engineered tobe oodprooed by meeting

stringent requirements tobe watertight. For inorma-

tion on oodproofng, reerto Technical Bulletin 3, Non-Residential Floodproofng

Requirements andCertifcation.



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the door has an opening installed in it or otherwise meets the perormance requirement thatit will allow automatic entry and exit o oodwaters.

As explained on page 14 (Height o Openings Above Grade), the bottom o each opening isto be located no higher than 1 oot above the higher o the fnal interior or exterior grades

under the opening. Thereore, placement o the openings in the oundation wall requiresknowledge o the expected fnished exterior grade and the fnal interior grade o the crawl-space.

Building code requirements may call or ventilation o certain under-oor spaces. Ventilationopenings typically are positioned near the top o the oundation wall to acilitate air ow. Inmost cases, ventilation openings will be too high above grade to satisy the requirements orood openings.

Solid perimeter oundation walls (below-grade crawlspaces)

The NFIP regulations do not allow buildings to be constructed

with areas that are below grade on all sides (basements), ex-cept or certain engineered non-residential buildings that aredesigned and certifed to be oodprooed. Thereore, crawl-spaces that are below-grade on all sides are not allowed becausethey are basements. An exception is available only in shallowoodplains, and then only i certain other requirements andlimitations are met. Those requirements and limitations aredetailed in Technical Bulletin 11, Crawlspace Construction or Buildings Located in Special FloodHazard Areas: National Flood In-surance Program Interim Guidance.According to this guidance, be-

low-grade crawlspaces may beallowed provided the wall heightis less than 4 eet when measuredrom bottom o the oor joist/truss to the top o ooting, whichmust be no more than 2 eet be-low-grade (see Figure 2). Floodopenings are required in theoundation walls surroundingthese crawlspaces and, as notedabove, air ventilation may be re-quired.

Although crawlspaces that satisythe limitations in TB 11 are notconsidered basements or ood-plain management purposes, itis important to note that theyare basements or NFIP ood

Communities are requiredto adopt specifc provi-

sions in their ordinancesto be consistent with the

limitations in TB 11 in or-der to permit below-grade

crawlspaces.

Figure 2. Limitations on below-grade crawlspaces in shallow

ood hazard areas (TB 11)



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insurance purposes. Thereore, NFIP ood insurance will be more expensive i the grade insidethe crawlspace is below the exterior grade on all sides. In addition, below-grade crawlspacesmay contribute to increased humidity and mold growth. TB 11 requires that an adequatedrainage system be provided in order to minimize oodwater contact with crawlspace materi-als and related moisture damage.

Solid perimeter oundation walls (with ull-height under-oor spaces)

In SFHAs where the BFE is more than 4 or 5 eet above grade, or where owners want enoughhead room to allow or parking o vehicles and storage, solid perimeter oundation walls maybe used to create ull-height under-oor spaces (see Figure 3). The walls surrounding the un-der-oor space must meet all o the opening requirements.

It is important that ull-height under-oor spaces also meet all other NFIP requirements tominimize the likelihood o uture conversion to uses other than the allowed uses (parkingo vehicles, building access, or storage). As noted in the discussion o limitations on uses oenclosures, the ollowing are not allowed below the BFE in ull-height enclosures because o

potential damage and their presence is inconsistent with the allowed uses: appliances, heatingand cooling equipment, plumbing fxtures, more than the minimum electric service requiredto address lie saety and electric code requirements or building access and storage areas, andmaterials that are not ood damage-resistant.

Garages attached to elevated buildings

Many buildings, especially homes, are designed with attached garages. An attached garagemay have its oor below the BFE provided the garage meets all o the requirements or an en-closed area below the BFE. The use o the garage space must be limited to parking o vehicles,building access, and storage.

Figure 3. Full-height

solid perimeter walls

surrounding garage and

storage area (only two

openings visible)

Flood openings(only 2 shown)



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Openings are required in the exterior walls o the garage, and openings may be installed inexit doors and garage doors (see Figure 4). It is important to note that garage doors them-selves do not meet the requirements or openings. Human intervention would be necessaryto open garage doors when ooding is expected, which is inconsistent with the requirementthat openings allow or the automatic entry and exit o oodwaters. Similarly, gaps that may

be present between the garage door and the door jamb or walls do not guarantee automaticentry and exit o oodwaters and do not count towards the net open area requirement.

I an attached garage is built with its oor below the BFE and it does not have compliantopenings, the garage oor becomes the lowest oor. Flood insurance premiums may be sig-nifcantly higher than i the garage complies with the requirements or openings and otherrequirements, such as ood damage-resistant materials and elevated utilities.

Enclosed areas under buildings elevated on open oundations in A zones

A building that is elevated on an open oundation (e.g., piers, posts, columns, or pilings) in anA zone may have enclosed areas below the elevated oor (see Figure 5). Sometimes only parto the ootprint is enclosed, such as or a stairwell or storage room. All o the requirements orenclosed areas apply, including openings, elevated utilities, ood damage-resistant materials,and limitations on use (parking o vehicles, building access,and storage).

Open oundations are recommended in riverine ood haz-ard areas where ow velocities are expected to exceed 5 eetper second because o the anticipated hydrodynamic loadsand potential or debris impact and scour. These loads maybe sufcient to damage typical solid perimeter oundationwalls, even though ood openings are provided.

Figure 4. Attached

garage, with engineered

openings installed in the

garage door

Flood openings

ASCE 24 and several othe act sheets included in

the Home Builders Guideto Coastal Construction(FEMA 499) are excellent

resources or ood-resistantbuilding methods in coastal

A hazard areas.



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I a waterway was studied using detailed methods and a oodway is shown on a FIRM, thenthe Floodway Data Table in the Flood Insurance Study should be reviewed or data that canbe used to estimate velocities. For each cross section, the table provides the mean velocity thatcan be used to approximate velocities in the oodplain outside o the oodway. For other wa-terways in areas known to have ast-moving water, standard methods can be used to compute

an approximate velocity. Examples o other sources o inormation that should be reviewedinclude local observations and studies prepared by State and local agencies.

Enclosed areas with breakaway walls under buildings elevated on open oundations in A zones

Open oundations also are recommended in A zones in coastal areas where breaking waveheights can be between 1.5 and 3.0 eet (called Coastal A Zones). In these areas, it is recom-mended that walls surrounding enclosed areas be designed as breakaway walls. Flood openingsare required in breakaway walls in A zones in order to comply with the NFIP requirements.ASCE 24 includes specifc provisions or openings in breakaway walls.

Solid perimeter oundation walls on which manuactured homes are installed

Manuactured homes may be installed on solid perimeter oun-

dation walls that enclose space below the homes (see Figure 6).Even i it is not part o the load-bearing oundation, a solidperimeter wall is required to have openings, otherwise hydro-static loads may damage the perimeter wall, which could, inturn, damage the homes supporting oundation and anchorsystem.

Figure 7 shows an example o a ramed enclosure below an ele-vated manuactured home. In this case, the ull-height enclosed

Openings are required inrigid skirting that is attachedto rames or oundations omanuactured homes to re-

lieve hydrostatic loads andminimize transerring loads

that can damage homesand their supporting oun-

dation systems.

Figure 5. Enclosure with ood

openings, under house elevated on

pilings



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area is used or parking and storage. Openings are required because the walls surroundingthe enclosed area are solid walls. As indicated by the driveway on the let, the interior slab ishigher than the exterior grade along the side o the building. The openings shall be locatedwithin 1 oot o the interior grade.

Figure 6. Manuactured homesupported on piers; masonry perimeter

wall with ood openings (ground

anchors not shown)

Figure 7. Manuactured

home installed above

a ull-height ramed

garage (note elevation

o driveway slab on let;

the openings are within

1 oot o interior grade o

the slab)



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Accessory structures: detached garages and storage sheds

Detached garages and detached storage buildings in A zones may be permitted without requir-ing them to be elevated i they comply with all o the requirements or enclosures. Garagesand other accessory buildings must be used only or parking o vehicles and storage, utilitiesmust be elevated, ood damage-resistant materials must be used below the BFE, the require-

ments or ood openings must be satisfed, and they must be anchored to resist otation,collapse, or lateral movement under ood conditions.

Communities are required to regulate all development in SFHAs, including the placement osmall storage sheds. Storage sheds in A zones are not required to be elevated i they complywith all o the requirements or enclosures. They must be used only or storage, utilities mustbe elevated, ood damage-resistant materials must be used below the BFE, and the require-ments or ood openings must be satisfed. In addition, sheds are to be anchored to preventotation, collapse, or lateral movement under ood conditions.

Situations That Do Not Require OpeningsTwo situations that do not require openings are described below:

n Manuactured home with skirting

n Back-flled stem wall oundation

Manuactured home with exible skirting

Skirting used to enclose the area under manuactured homestypically is made o weather-resistant material and extendsrom the bottom o the home down to grade. Flexible skirt-

ing and rigid skirting that are not attached to the rame oroundation o a manuactured home are not required tohave openings. However, where oodwaters are expected torise rapidly, there may be concerns about the skirting beingpushed against oundation systems. In these areas, open lat-tice may be more appropriate to minimize the potential orood damage.

Filled stem wall oundation

A flled stem wall oundation (also called a chain wall) canlook like a solid perimeter oundation wall rom the outside,but this type o oundation is backflled with compacted struc-tural fll that supports the oor slab (see Figure 8). Because o the fll, unbalanced lateralloads against the walls will be minimized as oodwaters, and thus openings are not required.

It is important that the fnal Elevation Certifcate, or other documentation o elevations, in-clude an explanation when stem wall oundations are used to avoid the assumption that itis a crawlspace that lacks the required openings. The Elevation Certifcate diagrams do notillustrate flled stem wall oundations. A note in the comment section should describe theoundation so that insurance agents are alerted as to why there are no openings.

The National Fire ProtectionAssociations standard,

Model Manuactured HomeInstallation Standard(NFPA225), specifes that instal-

lation o skirting does nottrigger the requirement or

ood openings providedthe skirting does not pro-

vide structural support andwill collapse under wind andwater loads that are less

than those expected duringthe base ood event without

causing structural damageto the elevated home or the

oundation.



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Requirements and Guidance or Installation o Openings

The NFIP regulations speciy certain installation requirements that must be met by all oodopenings, whether non-engineered openings or engineered openings, which are describedstarting on page 18. The installation requirements address the minimum number o openingsand the maximum height o openings above grade. Additional guidance and explanations or

various situations are described below.

Minimum Number o Openings

Each enclosed area is required to have a minimum o two openings on exterior walls to allowoodwaters to enter directly. In order to meet the requirement, the openings must be locatedso that the portion o the opening intended to allow or inow and outow is below the BFE.Openings that are entirely above the BFE (or any portion o an opening that is above the BFE)will not serve the intended purpose during base ood conditions and thus are not countedtowards the compliance with the ood opening requirements.

The openings should be installed on at least two sides o eachenclosed area to decrease the chances that all openings couldbe blocked with oating debris and to allow or more evenflling by oodwater and draining o the enclosed area. It isrecommended that openings be reasonably distributed aroundthe perimeter o the enclosed area unless there is clear justif-cation or putting all openings on just one or two sides (suchas in townhouses or buildings set into sloping sites).

Figure 8. Back-flled stem wall

oundation (openings not required)

The InternationalResidential Codeand theInternational Building Code

(by reerence to ASCE 24)both require a minimumo two openings on dier-

ent sides o each enclosedarea.



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Figure 9 shows a sketch illustrating where openings could be located when an elevated build-ing has multiple enclosed areas. [Note: the number o openings shown in Figure 9 is orillustration only; the total number o openings and the adequacy o the net open area o thoseopenings depend on the type o opening, covering, and whether vent devices or engineeredopenings are installed.]

Height o Openings Above Grade

The bottom o each opening is to be located no higher than 1 oot above the grade that isimmediately under each opening. The purpose o this requirement is to satisy the peror-mance expectation that the dierence in water levels between the interior and exterior willnot exceed 1 oot as water begins to rise and as oodwaters recede rom the site. Note that theopenings (or those portions that count towards the required net open area) must be locatedbelow the BFE. In areas with shallow ood depths, this may require positioning the openingscloser to grade than the maximum 1 oot allowed.

Given the requirement that the bottom o openings shall not be higher than 1 oot abovegrade, a question arises i the interior and exterior grades are dierent: which grade shouldbe used to determine placement o ood openings? The higher o the fnal interior gradeand the fnished exterior grade that is immediately under each opening is used to make thisdetermination:

n Finished exterior grade. Care should be taken when placing backfll, topsoil, and land-scaping materials around the outside o enclosures, especially solid perimeter oundation

Figure 9. Sketch o oundation plan o home with multiple enclosed areas, each with ood openings

(number o openings or illustration purposes only)



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walls. I the fnished exterior grade is higher than the interior grade on all sides o thebuilding, then the enclosed area becomes a basement as defned by NFIP.

n Final interior grade. The trench that is excavated to construct ootings and oundationwalls must be backflled completely, otherwise a basement is created. I the interior gradeis higher than the exterior grade, the openings are to be no higher than 1-oot above the

interior grade.

Installation Examples

Interior grade higher than exterior grade

Consider a crawlspace enclosure that has its interior grade higher than the exterior grade. Aswater rises against the outside o the oundation, the ground or fll on the interior balancesthe hydrostatic load (see Figure 10). It is only when the water rises above the interior gradethat the lateral load becomes unbalanced and thereore must be equalized by openings.

When viewed rom the outside, a solid perimeter oundation wall or wall surrounding an en-closed area with the interior grade higher than the exterior grade will appear to not meet theinstallation requirements or openings. The openings will appear to be too high above the ex-terior grade (illustrated in Figure 7). Thereore, it is important that the fnal documentationo as-built elevations note the dierence in interior and exterior grades. For example, i theNFIP Elevation Certifcate is used, comments should explain that the interior grade is higherthan the exterior grade and it should be noted whether the openings are (or are not) within1 oot o the higher o the two grades.

Figure 10 . Illustration o oodopenings installed within 1 oot o the

higher o interior or exterior grade



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Sloping sites

Buildings on solid perimeter oundation walls that are set into a sloping site present anotherspecial situation with respect to installation o openings. Careul attention must be paid to theollowing:

n

The interior oor along the lower side o a building that is set into a sloping site must beat or above the exterior grade across the entire length o that side o the building, other-wise the enclosure becomes a basement.

n The bottom o each opening shall be located no higher than 1 oot above the exterior orinterior grade immediately below the opening, whichever is higher (see Figure 11).

n For openings to perorm their intended unction, sufcient open area must be below theBFE.

Townhouses with limited exterior walls

Townhouses are single-amily dwelling units constructed in a group o three or more attachedunits in which each unit extends rom oundation to roo and with exterior walls on at leasttwo sides. Openings are required i townhouses in SFHAs are constructed with solid perimeteroundation walls or with solid walls surrounding enclosed areas under the elevated portion othe building.

Because the interior townhouse units have less linear exterior wall length than the end units,it can be a challenge to meet all o the requirements, especially the requirement or adequatenet open area and the requirement that each enclosed area have openings. I openings can-not be provided in at least two walls, the NFIP allows all openings to be installed in one wall.

Figure 11. Openings in enclosure

walls, sloping site



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Design o interior townhouse units can satisy the guidance that openings should be on dier-ent sides i the walls inside the enclosed area have openings to connect enclosed spaces romront to back. Figure 12 shows suggested locations or openings. [Note: the number o open-ings shown in Figure 12 is or illustration only; the total number o openings and the adequacyo the net open area depend on the type o opening, covering, and whether a vent device is

installed in the openings.]

It may be even more challenging to provide adequate openings in enclosures under interiortownhouse units i the multi-unit building is set into a sloping site, in which case it may be ap-propriate to consider using a flled stem wall oundation or an open oundation. Use o fllacross one side o elevated townhouses may create a similar complication.

Openings that extend above the BFEOnly those portions o openings that are below the BFE can be counted towards the requirednet open area. Stacked vent devices may be installed or large-dimension openings may be pro-vided (Figure 13). In both cases, i the BFE does not reach the top o the opening, only theportion that is below the BFE will count as contributing to the required net open area. Simi-larly, i the oor o a mechanical room is below the BFE (with elevated equipment inside) anda louvered door provides ventilation, only the open portion o the louvered door that is belowthe BFE will count towards the required net area o ood openings.

Figure 12. Illustration o suggested ood openings in enclosures under elevated townhouses (number o

openings or illustration purposes only)



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Depth o water 1 oot or less

Some FIRMs show mapped SFHAs where the depth o water will be 1-oot deep or shallower.Although the dierence in water depth between the outside and inside o the enclosure un-der a building in these areas will not exceed 1 oot during the base ood, the NFIP regulations

require openings.

There are at least two solutions to this situation. The frst is to elevate the oor o the enclo-sure the necessary height so that it is at or above the BFE and there is no need or openings.The second solution is to install openings, taking care to ensure that all o the necessary openarea is below the BFE (otherwise the openings will not unction as intended). This can be ac-complished by positioning the bottom o the openings at or very close to grade, rather thanthe maximum o 1 oot above grade. In addition to complying with the regulations, the wallswill not experience excessive dierential hydrostatic pressure when oodwaters rise higherthan the BFE.

Non-Engineered Openings and Engineered Openings

The NFIP regulations identiy alternatives to provide sufcient size and number o openingsto allow or the automatic entry and exit o oodwaters. This section describes how this levelo perormance can be satisfed by use o:

n Non-engineered openings (or covers and devices) that meet the prescriptive require-ment to provide 1 square inch o net open area or each square oot o enclosed area (as

Figure 13. Stacked vents inserted in

large openings must be below the BFE



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described below, a variety o options and devices can serveas non-engineered openings).

n Engineered openings (or covers and devices) that arespecifcally designed and certifed by a registered designproessional as meeting the required perormance and

design requirements outlined below (and, i applicable,the communitys building code).

n Engineered openings (or covers and devices) or whichan Evaluation Report has been issued by the Internation-al Code Council (ICC) Evaluation Service, Inc. (ICC-ES),a subsidiary o the International Code Council, Inc.(http://www.iccsae.org).

The ollowing requirements or installation apply regardless o whether engineered openingsor non-engineered openings are used to satisy the NFIP requirements (also see page 13, Re-

quirements and Guidance or Installation o Openings):n Each enclosed area must have a minimum o two openings; i there are multiple enclosed

areas, each area must have openings in its exterior walls,

n The bottom o each opening must be no more than 1 oot above the higher o the interioror exterior grade immediately under the opening, and

n Any screens, grates, grilles, fxed louvers, or other covers or devices must not block or im-pede the automatic ow o oodwaters into and out o the enclosed area.

Unacceptable Measures

It is important to note that FEMA has determined that certain measures are not acceptable asood openings, including:

n Standard oundation air ventilation devices that can be closed manually, because they donot allow or the automatic entry and exit o oodwaters unless they are permanently dis-abled in the open position.

n Standard oundation air ventilation devices that have detachable solid covers that are in-tended to be manually installed over the opening in cold weather, because they do notallow or the automatic entry and exit o oodwaters when the cover is in place.

n Standard oundation air ventilation devices that are designed to open and close based on

temperature (unless they also are designed to allow or the automatic entry and exit ooodwaters).

n Windows below the BFE, because the automatic entry and exit o oodwaters cannot besatisfed by the expectation that windows will break under rising oodwaters.

n Garage doors without openings installed in them, because human intervention is requiredto open the doors when ooding is expected. Gaps between the garage door and the doorjamb or walls do not count towards the net open area requirement.

n Standard exterior doors without openings installed in them.

The International

Residential Code includesboth the prescriptive (non-

engineered) alternative andthe engineered openingsalternative.

The International BuildingCodealso includes both

alternatives by reerence toASCE 24.



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Non-Engineered Openings

Non-engineered openings are openings that are used to satisy the prescriptive requirementthat calls or 1 square inch o net open area or each square oot o enclosed area. A wide va-riety o options is available to satisy the prescriptive requirements.

The term net open area reers to the permanently open area o a non-engineered opening.The NFIP regulations indicate that ood openings may be equipped with coverings or devic-es provided that they permit the automatic entry and exit o oodwaters. The measuremento the net open area must take into consideration any coverings that have solid obstructions,such as grilles, fxed louvers, or aceplates. Figure 14 shows a typical standard air vent aceplateand measurements o the net open area.

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