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Second Appeal Letter
PA ID# 003-U9VOU-00; Allegany Trails, Inc.,
PW ID# 1064; Time Limitations
October 4, 2007
Mr. John A. Agostino
Alternate Governors Authorized Representative
New York State Emergency Management Office
1220 Washington Avenue
Public Security Building 22, Suite 101
Albany, New York 12226-5000
Re: Second Appeal Allegany Trails, Inc., PA ID 003-U9VOU-00, Time Limitations
FEMA-1486-DR-NY, Project Worksheet (PW) #1064
Dear Mr. Agostino:
This is in response to your letter dated May 18, 2006, which transmitted the referenced second appeal on behalf of Allegany Trails, Inc. (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) denial of additional funding for the project identified in PW #1064.
In July 2003, severe storms resulted in FEMA declaring a major disaster declaration, FEMA-1486-DR-NY, on August 29, 2003. The incident produced high winds and heavy rain causing failure of a rear portion of the roof to the Kingston Hotel, a facility owned by the Applicant. The Applicants project was originally determined to be ineligible. However, FEMA approved PW 1064 for $181,073 on November 1, 2004, for the repair of the facility to its pre-disaster condition after several site visits. The amount eligible was pro-rated based on pre-existing conditions of the facility. In February 2005, the Applicant requested additional funding of $124,188 for damages that werent determined until the storm debris was removed. FEMA denied the request on April 29, 2005, determined the project to be an Improved Project and capped the dollar amount at $181,073 because the Applicant planned to complete repairs to the facility far beyond the original approved scope of work.
On September 30, 2005, the Applicant notified the New York State Emergency Management Office (NYSEMO) of its intent to appeal FEMAs decision to consider the project an Improved Project and to cap the PW funding. The Applicant did not submit its formal first appeal until November 25, 2005. The Applicants first appeal was denied by the FEMA Region II Regional Administrator on January 10, 2006, because the Applicant planned to complete the facility far beyond the original approved scope of work and it submitted its first appeal seven months after it was notified of the denial of its request.
On March 29, 2006, the Applicant submitted its second appeal letter for $124,188 claiming that the additional damage could not be discovered during the previous inspections because it was concealed by the debris.
The Applicants second appeal is based upon the idea that the damages to the roof and to the second and first floors, directly caused by the event, resulted in the basement damage which included co-mingled debris from the floors above and asbestos which now requires asbestos abatement. This increased the cost of repair to the facility, and according to the Applicant, caused the need for the asbestos abatement portion of repair by disturbing asbestos which otherwise would have been undisturbed and left in the building. At the time the original scope of work was approved for this project, a portion of the costs for the asbestos abatement was calculated as a pro-rated amount based upon the percentage of roof damage caused by the event. The Applicant has not provided any additional information with respect to the amount of damage related to the event as identified in the PW in question.
The first appeal was denied for two reasons. Over 150 days had lapsed between the time of FEMAs final determination letter and the Applicants correspondence notifying FEMA of its intent to appeal the determination. Also, the improved project status of this PW was granted based upon the Applicants desire to restore the facility well beyond the pre-disaster conditions.
After reviewing all information submitted with the appeal, I support the Regional Administrators decision in the first appeal. Therefore, the second appeal is denied.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR § 206.206.
Carlos J. Castillo
Disaster Assistance Directorate
cc: Stephen Kempf, Jr.
FEMA Region II