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Second Appeal Letter
PA ID# 029-11000-00; City of Buffalo
PW ID# 263; Snow Removal Costs
August 4, 2003
Mr. Edward J. Jacoby
Governors Authorized Representative
New York State Emergency Management Office
Public Security Building 22, State Campus
Albany, New York 12226-5000
Re: Second Appeal: City of Buffalo, PA ID 029-11000-00, Snow Removal Costs, FEMA-3170-EM-NY, Project Worksheet (PW) 263
Dear Mr. Jacoby:
This is in response to your letter dated November 25, 2002, which transmitted the referenced second appeal on behalf of the City of Buffalo (City). The City requested reimbursement for $382,525 for the storage of snow following the snowstorm in December 2001.
A snowstorm dropped 81.5 inches of snow on the City on December 24-29, 2001. The City deposited snow on the Outer Harbor site (325 Fuhrmann Blvd.) owned by the Niagara Frontier Transportation Authority (NFTA). In February 2002, the City requested and was denied reimbursement from the Federal Emergency Management Agency (FEMA) for $382,525 for the storage of snow on the NFTA property.
The City submitted a first appeal to the Governors Authorized Representative (GAR) in a letter dated May 7, 2002, which the GAR forwarded to FEMA on May 8, 2002. The City stated that its actions were necessary, done under a contract with the NFTA, and were reasonable according to the rates published by the NFTA. The Acting Regional Director for FEMA Region II denied the appeal on August 30, 2002, because the storage of snow is not eligible under FEMA policies and regulations. Also, the City had used the same site for snow storage in previous declarations and did not request reimbursement.
The City submitted a second appeal dated November 15, 2002, stating that the portions of the site it used in previous declarations were under the control of the previous tenant to the NFTA who operated the Pier Restaurant. The only condition to the use of the property was that the City would restore the property in the spring. During the December 2001 snowstorm, the tenants were no longer in control or possession of the premises and based upon the emergency conditions, the City was unable to first obtain permission from the NFTA. The GAR supports the Citys second appeal for $382,525.
All reasonable costs associated with the removal of snow during the designated time frame are usually eligible for reimbursement. Contracts or agreements to perform eligible work must be in writing and signed prior to the commencement of the work. The City stated that it used its police powers to store snow on NFTAs property. Therefore, there was no prior agreement between the City and NFTA to use the property to store snow. Subsequent to the City storing snow on NFTAs property, NFTA requested payment from the City for using its property pursuant to its wharfage schedule. The City is requesting reimbursement from FEMA for these costs. Since there was no agreement between the City and NFTA before the City began storing snow at the site, there is no basis for reimbursing costs that the parties agreed to after the work was completed. In addition, the wharfage fee sought by NFTA is for storing cargo at the site. It does not apply to storing snow. Even if the City and NFTA had an agreement to use the property before the work began, the wharfage fee for storing snow would not be applicable. Therefore, it would not be eligible. Based on these reasons, I am denying the appeal.
Please inform the City of my determination. My decision constitutes the final decision on this matter as set forth in 44 CFR §206.206.
Laurence W. Zensinger
Acting Director, Recovery Division
Emergency Preparedness and Response Directorate
Department of Homeland Security
cc: Joseph Picciano
Acting Regional Director
FEMA Region II