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Second Appeal Analysis
PA ID# 041-23168-00; Town of Fairfax
PW ID# 2121 & 2122; ADA Upgrades to City Hall and Police Department
Project Worksheets 2121 and 2122
As a result of severe rainstorms from December 17, 2005, to January 3, 2006, floodwater seeped into the Town of Fairfax (Applicant) Town Hall and Police Station, two structures that are connected as one building. Standing water saturated the floors and lower portions of the drywall in the main reception room, hallway, bathrooms, utility closets, and a number of offices.
The Department of Homeland Security’s Federal Emergency Management Agency (FEMA) prepared two project worksheets (PWs), PWs 2121 and 2122, for repairs of the flood-damaged facilities. PW 2121, which addressed eligible work at the Police Department, was obligated at $64,543 on May 24, 2006, for the removal and replacement of carpeting, remediation of mold and bacteria, repair of electrical outlets, sealing of cracks in the roof, replacement of the lower portions of flood-damaged drywall, and repainting.
PW 2122, which addressed eligible work in Town Hall, was obligated at $33,121 on May 24, 2006, for flood damages similar to those in the Police Station, plus repair of damages to telephone and network equipment.
At the time the PWs were being prepared, the Applicant requested that FEMA approve work items and costs associated with certain upgrades to the facilities to comply with the Americans with Disabilities Act (ADA). The estimated amount for ADA upgrades on PW 2121 was $10,328 and on PW 2122 was $19,894. On August 21, 2006, the Applicant received notice through the California Governor’s Office of Emergency Services (OES) that FEMA had denied Public Assistance funding because the nature and extent of the repairs themselves did not trigger FEMA assistance for the ADA upgrades.
In a letter dated October 16, 2006, the Applicant filed a first appeal of FEMA’s denial of funding for ADA compliance upgrades. On December 15, 2006, the Governor’s Office of Emergency Services (OES) transmitted the Applicant’s appeal to FEMA Region IX. OES did not support the Applicant’s appeal.
In its first appeal the Applicant argued that FEMA regulations at Title 44 Code of Federal Regulations (CFR) §206.226(d) require that FEMA fund the cost of upgrades mandated by Federal, state, and local codes and standards. In support the Applicant pointed out that, under the California Building Code, the scope of approved repair work in PWs 2121 and 2122 triggers Americans
with Disabilities Act (ADA) compliance upgrades. In addition, the Applicant provided a letter from its independent architectural firm, Sally Swanson Architects, Inc., which made the following points:
• Repair of the flood damages constitutes an “alteration” as defined by the ADA and its implementing regulations;
• The building was rendered “unusable” by the disaster and that the resulting change from “unusable” to “usable” is “…unquestionably an ‘alteration’ that affects or could affect the usability of the building;” and
• Alterations to the “primary function” areas triggers upgrades to the “path of travel” and other key facilities.
In a letter dated February 6, 2007, the Deputy Regional Director of FEMA Region IX denied the Applicant’s first appeal. FEMA’s appeal response pointed out that the use of the word “usability” in the ADA definition of an “alteration” refers to a change in the use of a facility after completion of an alternation. The appeal response went on to state that since restoration of the damaged facilities does not affect the usability of the facilities as they were designed and used prior to the disaster, the work is not considered an “alteration.”
On April 6, 2007, the Applicant filed a second appeal which was transmitted by OES in a letter to FEMA dated June 8, 2007. OES did not support the Applicant’s second appeal. FEMA Region IX transmitted the second appeal to FEMA headquarters on July 5, 2007.
In its second appeal the Applicant argued that California law required that it make the buildings ADA accessible because the damages sustained during the flooding triggered the need for such compliance. In support of its argument the Applicant stated that the ground floors of the facilities are currently unusable, and that the resulting change from “unusable” to “usable” is an alternation that could affect the usability of the facilities.
Furthermore, the Applicant argued that FEMA Recovery Policy 9525.5, at Section 7, Paragraph B.1.c. triggers ADA compliance because the eligible repairs “…affect the usability of, or access to, and area containing a primary function.”
A decision on this appeal requires an understanding of FEMA’s policy as it relates to meaning of the term “alteration” as defined in ADA’s regulations. The Applicant argues that the eligible repairs in PWs 2121 and 2122 constitute an “alteration” as defined in ADA Standards for Accessibility. ADA’s implementing regulations at 28 CFR 36, Section 3.5 defines “alteration” as “…a change to a building or facility …for the use of a public accommodation…that affects or could affect the usability of the building or facility…” (Emphasis added.) FEMA Recovery Policy 9525.5, Americans with Disabilities Act Access Requirements, uses the term “ADA relevant repairs” to describe repairs that meet the ADA definition of an “alteration,” and, therefore, may trigger ADA upgrades that are eligible for FEMA assistance. FEMA recognizes “ADA relevant repairs” as those that change a damaged building or facility, such as repairs or replacement of structural components or load-bearing elements of a facility. Repairs of a non-structural nature, including repair of facades such as dry wall, windows, and electrical outlets, may trigger ADA upgrades that are not eligible for FEMA assistance.
The repairs in PWs 2121 and 2122 fall into the category of repairs that may trigger ADA upgrades but that are not eligible for FEMA funding. In the case of Town Hall and the Police Department, repairs included water extraction from carpets and flooring, mold and bacterial decontamination, re-carpeting, replacement of damaged drywall at or below 4-feet from the floor, repair of phone and computer lines, and replacement of electrical outlets. None of these repairs were structural in nature. Therefore, FEMA policy does not allow the funding of any associated ADA upgrades.
Furthermore, none of the eligible repairs to Town Hall and the Police Department affect or could affect the usability of the building. The usability criteria is not intended to apply to a facility in its damaged state or during the conduct of necessary repairs, but rather is relative to how the repairs, once accomplished, affect the usability of the building by individuals with disabilities. Since none of the repairs in PWs 2121 and 2122 would represent changes that affect the usability of the facilities, FEMA policy does not permit the funding of the ADA upgrades.
The eligible repairs to the Applicant’s facility, as documented in PWs 2121 and 2122, are not “ADA relevant repairs” under Recovery Policy 9525.5 Americans with Disabilities Act Access Requirements, and, therefore, are not eligible for FEMA Public Assistance funding.