Willow Pond Apartments

Appeal Brief Appeal Letter

Appeal Brief

Disaster1292
ApplicantWilmington Housing Authority
Appeal TypeSecond
PA ID#129-UCM8U-00
PW ID#Various PWs
Date Signed2007-11-19T05:00:00
Citation:

FEMA-1292-DR-NC; Wilmington Housing Authority (Applicant)

Cross-reference:

Work Eligibility
Summary:

Hurricane Floyd in 1999 damaged the Willow Pond Apartments. The Applicant requested assistance from FEMA to repair the apartments. FEMA obligated several project worksheets totaling $529,596. During closeout of the project in November 2005, FEMA determined that the Applicant managed the apartment on behalf of the Willow Pond Limited Partnership (Owner), a for-profit corporation. Based on review of the Management Agreement between the Applicant and the owner, FEMA determined that the Applicant did not have legal responsibility for the repairs as required by 44 CFR §206.223. FEMA subsequently de-obligated the funds. The Regional Director denied the first appeal in a letter dated November 30, 2006.

The Applicant submitted a second appeal to the State in a letter dated January 12, 2007. It included a copy of the Management Agreement between the Applicant and the Owner dated September 12, 1994, and the Management Plan for the Willow Pond Apartments dated September 12, 1994. According to these documents, the Owner, a private for-profit corporation, is the owner of the apartments. The documents indicate that the Owner did not convey legal responsibility to the Applicant for disaster-related repairs to the apartments. The Owner retains all rights and responsibilities regarding the apartments that it did not explictly convey to the Applicant.

Issues:
1) Did the Applicant perform eligible work under the Public Assistance Program?

Findings:

1) No, the Applicant did not have the legal responsibility for disaster-related repairs to the apartments.

Rationale:

44 CFR §206.223(a)(3).

Appeal Letter

November 19, 2007

Mr. Doug Hoell
Director
North Carolina Department of Emergency Management
4713 Mail Service Center
Raleigh, North Carolina 27699

Re: Second Appeal – Wilmington Housing Authority, PA ID 129-UCM8U-00
Willow Pond Apartments, FEMA-1292-DR-NC, Various Project Worksheets

Dear Mr. Hoell:

This is in response to a letter dated January 25, 2007, from your office, which transmitted the referenced second appeal on behalf of the Wilmington Housing Authority (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny reimbursement of $529,596 for the repair of the Willow Pond Apartments.

Hurricane Floyd in 1999 damaged the Willow Pond Apartments. The Applicant requested assistance from FEMA to repair the apartments. FEMA obligated several project worksheets totaling $529,596. During closeout of the project in November 2005, FEMA determined that the Applicant managed the apartment on behalf of the Willow Pond Limited Partnership (Owner), a for-profit corporation. Based on review of the Management Agreement between the Applicant and the owner, FEMA determined that the Applicant did not have legal responsibility for the repairs as required by 44 CFR §206.223. FEMA subsequently de-obligated the funds. The Regional Director concurred with this determination in a letter dated November 30, 2006.

The Applicant submitted a second appeal to the State in a letter dated January 12, 2007. It included a copy of the Management Agreement between the Applicant and the Owner dated September 12, 1994, and the Management Plan for the Willow Pond Apartments dated September 12, 1994. According to these documents, the Owner, a private for-profit corporation, is the owner of the apartments. The Wilmington Housing Finance & Development, a 501(c)(3) corporation, is the general partner. The Applicant is the Owner’s agent. Section 10, Maintenance and Repair, of the Management Agreement states in pertinent part, “Notwithstanding any of the forgoing provisions, the prior approval of the Owner will be required for any expenditure which exceeds one thousand dollars ($1,000) in any one instance…for the maintenance and repair of the Project….” Section F.1., Owner Responsibilities, of the Management Plan states in pertinent part, “The Owner assumes the
responsibility and has the obligation to:…Accept financial responsibility for the Project….the Owner will enter into a Management Agreement with the Applicant for the day-to-day operation
of the project.” A review of the documents indicates that the Owner did not convey legal responsibility to the Applicant for disaster-related repairs to the apartments. The Owner retains all rights and responsibilities regarding the apartments that it did not explicitly convey to the Applicant. Based on the above, I have determined that the Applicant did not have legal responsibility for the repairs to the Willow Pond Apartments. Therefore, I am denying the appeal.

Please inform the Applicant of my determination. My determination is the final decision on this matter pursuant to 44 CFR §206.206.

Sincerely,
/s/
Carlos J. Castillo
Assistant Administrator
Disaster Assistance Directorate

cc: Major P. May
Regional Administrator
FEMA Region IV
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