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Second Appeal Analysis
PA ID# 097-91041; Sonoma County
DSR ID# 73250; Building and Environmental permit fees
Late winter storms in March of 1995, caused flooding in Sonoma County, California. Fees for building permits were waived by the Sonoma County Permit and Resource Management Department (subgrantee). FEMA prepared damage survey report (DSR) 73250 (Category G), for $14,475, which covered the cost of processing the building permits, on June 27, 1995. This covered 50 Building Permits and 15 Environmental Health Permits. FEMA denied the DSR during review citing that the processing of permits is not eligible.
The subgrantee submitted their first appeal to the California Office of Emergency Services (OES) on October 2, 1995, contending that the work described in the DSR was eligible per 44 CFR and that FEMA had obligated funds for waived building permit fees in other disasters (DR 1005 and DR 1008). OES forwarded the subgrantee's first appeal to the Regional Director on December 5, 1995, concurring with the subgrantee. FEMA denied the first appeal on August 20, 1996. The basis for denial was that the permitting activities associated with the waived fees were not related to the permanent restoration of any eligible facility. Additionally, the First Appeal Analysis stated "Your letter (subgrantee's) is correct in noting that certain permitting fees have been reimbursed in prior disasters (1005 and 1008). However, we do not find that such exceptional cases constitute an official FEMA policy such that permitting fee waivers are generally reimbursable in all disasters."
A second appeal was filed by the subgrantee on October 21, 1996, again citing of 44 CFR 206.223 as the building permits were necessary to repair damage caused by the disaster and previous FEMA actions relative to exceptional cases from other disasters (DR 1005 and DR 1008) as the basis. The subgrantee also contended that, based on the personal knowledge of their representative gained during the above mentioned previous disasters, FEMA had not regarded certain approved cases as exceptional. By letter dated February 6, 1996, OES forwarded the subgrantee's second appeal to the Regional Director, concurring with the subgrantee.
In the Second Appeal, the subgrantee took exception with FEMA's determination of ineligibility of the original DSR and in the First Appeal Analysis based on two issues.
First, the subgrantee claims that the ineligibility determination was contrary to FEMA's past practices for other disasters (DR 1005 and DR 1008) in accordance with 44 CFR 206.223. They also noted that 44 CFR had not changed between FEMA-1008-DR-CA and FEMA-1046-DR-CA. Additionally, they cite a January 4, 1994, FEMA memorandum stating the eligibility of permit fees which had been included in the original DSR. This memorandum was specific to FEMA-1005-DR-CA. The policy which explains the eligibility of building permits is stated in a FEMA memorandum dated October 4, 1993, issued during the Midwest floods (attached). This policy established eligibility for initial health and safety inspections, but not for inspections performed during the repair and reconstruction phase. Per this policy, FEMA does not typically reimburse applicants for costs of building permit programs. Disasters 1005 and 1008 were exceptions to this policy because of the extraordinary circumstances associated with those disasters. By letter, dated July 15, 1996, the FEMA Federal Coordinating Officer of the Northridge Long-Term Recovery Area Office clarified FEMA's determination that DR 1008 created extraordinary circumstances which required certain FEMA policies to be waived. The rationale used for these exceptions were specific to those disasters, and cannot be applied to all disasters. Therefore, to be consistent with the 1993 policy, the waived building permit fees are ineligible.
Second, the subgrantee's representative claimed he had personal knowledge that FEMA officials, in certain cases, did not view DR 1005 as extraordinary. Again the rationale for this exception to policy cannot be applied to other disasters.
The Second Appeal is denied. Pursuant the 1993 FEMA policy, the reimbursement of costs to process building permits is ineligible. Instances where exceptions were made to policy do not create precedent.