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Second Appeal Analysis
PA ID# 071-UD1T3-00; Mount Nebo Bible Baptist Church
PW ID# 20447; Facility Eligibility
In October 2010, the Governor’s Office of Homeland Security and Emergency Preparedness (GOHSEP) requested that FEMA accept additional Requests for Public Assistance (RPAs) from PNPs for Hurricanes Katrina, Rita, Gustav, and Ike. For each new PNP request, final RPA approval was dependent upon a thorough review of the Applicant’s facilities, as required by Recovery Division Policy (RDP) 9521.3, Private Non-Profit Facility Eligibility, dated May 23, 2003, and Disaster Response and Recovery Policy (DRRP) 9521.1, Community Center Eligibility, dated August 11, 1998.
In August 2005, Hurricane Katrina caused major flooding and damage to the Mount Nebo Bible Baptist Church’s (Applicant) facility, a building located at 1720 Flood Street, New Orleans, LA. The Applicant is a private non-profit (PNP) faith-based organization. At the time of the event, the facility was a 3,753 square foot (SF), two-story brick building, providing religious activities and programs, literacy programs, clothing distribution, food and nutrition programs, teen retreats, health and wellness programs, and operating as a homeless shelter. None of the potentially Public Assistance eligible services were licensed through the state of Louisiana. Through PW 20447, issued on October 24, 2012, FEMA determined the facility was ineligible for Public Assistance funding due to lack of documentation demonstrating that it was primarily used for eligible activities.
The Applicant submitted its first appeal to the Grantee on March 22, 2013. With the appeal, the Applicant asserted that Hurricane Katrina caused severe damage to its facility which resulted in the facility being condemned and demolished. The Applicant also asserted that, prior to the disaster, the facility operated as a place of worship and a community center. The Applicant stated that, of the 3,753 SF, 30 percent was used for worship services and 70 percent was used for community service activities.
In a letter, dated July 11, 2013, the FEMA Region VI Regional Administrator (RA) denied the appeal because the Applicant failed to provide documentation to clearly demonstrate its facility was primarily used for eligible activities. While the RA acknowledged that the Applicant provided analysis of its time and space usage, he concluded that, “FEMA remains unable to justify the applicant’s claim because the applicant does not indicate where the activities were conducted, exactly what the activities were and how the activities fall within the eligibility requirements,” as set forth in FEMA regulations and policy guidance. The RA also noted that, by demolishing the facility prior to applying for FEMA assistance, FEMA was unable to visually confirm the Applicant’s claims that the facility and its contents were damaged beyond repair due to the disaster.
The Applicant’s second appeal, dated September 29, 2013, was transmitted to FEMA by the Grantee on December 23, 2013. In the second appeal, the Applicant, again, asserts that 30 percent of the building was used for worship services and 70 percent for serving the community. The Applicant provides a breakdown, with accompanying explanation, for the eligible and ineligible services it provided. The Applicant asserts that the facility was demolished for safety concerns.
Pursuant to 44 CFR §206.221(e), a private nonprofit facility (PNP) means any private nonprofit educational, utility, emergency, medical, or custodial care facility, including a facility for the aged or disabled, and other facility providing essential governmental type services to the general public. Facilities that provide services of an essential governmental nature include, but are not limited to, senior citizen centers, homeless shelters, shelter workshops, and health and safety service facilities. Further clarifying and explaining the regulation, RDP 9521.3(7)(B)(2) provides that, to be eligible, a PNP facility must be primarily used for eligible services. Where a facility is used for both eligible and ineligible activities, an applicant must show that it dedicates over 50 percent of the space to the eligible service. FEMA may also assess mixed-use facility eligibility based on the amount of time the facility is used for eligible activities, and that amount of time must also reach the “over fifty percent” threshold.
Because the Applicant asserts its facility is a community center, RDP 9521.3 must be read in conjunction with RRDP 9521.1, Community Center Eligibility. RRDP 9521.1 provides that, “An eligible community center is defined as a facility open to the general public, established and primarily used as a gathering place for a variety of social, educational enrichment, and community service activities.” The policy defines “established” as “the purpose for which a facility was instituted.” Generally, a facility that was not established as a community center would not be an eligible community center. FEMA reviews the Applicant’s pre-disaster charter, bylaws, or other well-documented evidence to determine the facility’s purpose. These documents must demonstrate “longstanding, routine (day-to-day) use of such facility as a community center” for the facility to be eligible for Public Assistance funding.
In the second appeal, the Applicant asserts that 70 percent of the facility was dedicated to eligible activities. The Applicant does not state whether it bases this calculation on space or time. The Applicant submitted a floor plan of the facility with its second appeal that includes handwritten notes of the location and duration of, both, eligible and ineligible activities. This document is dated July 23, 2012. The Applicant also submitted a “Weekly Schedule of Activities” and a “Room Usage” diagram that purport to demonstrate the time and space dedicated to possible eligible activities, including health screenings, AIDS/HIV education and counseling, academic enrichment programs, and clothing drives. It must be noted that these documents were produced several years after Hurricane Katrina. Some of them are undated, weekly/monthly schedules, and some of the described activities cannot be verified as eligible.
As such, the Applicant failed to provide pre-disaster documentation demonstrating long-standing, routine use of its facility as a community center with its second appeal. However, the RPA did include a document, classifying the Applicant as a “Non-Profit Religious Corporation,” issued by the Louisiana Secretary of State and the Applicant’s Articles of Incorporation. The Articles of Incorporation, dated November 12, 1990, state the Applicant’s purpose “to be religious, charitable, and educational… to promote the teachings of the Gospel of Jesus Christ and diffusion of the principle and philosophy of Christianity… and to establish and maintain a church and related institutions and community agencies of the Baptist faith….” FEMA acknowledges that Hurricane Katrina was a devastating disaster that destroyed many of the Applicant’s legal documents and files; however, it cannot base its determination solely on post-disaster documentation.
Finally, as the Regional Administrator noted, the Applicant demolished the facility before FEMA could conduct an onsite, visual inspection in an effort to verify primary use of the facility. The Applicant asserts the facility was demolished for safety concerns and at the urging of the State. The Applicant submitted a Damage Assessment Report issued by the City of New Orleans Department of Safety and Permits to support its claim. However, this document appears to be a permit to demolish, rather than a notice from the city instructing the Applicant to demolish the building. Regardless of whether the Applicant opted to have the facility demolished or was mandated by the local or state government to do so, FEMA was still unable to visually confirm that the facility was used as a community center prior to Hurricane Katrina. Without pre-disaster documentation, visual confirmation, or other verifiable justification, FEMA cannot conclude that the Applicant’s facility dedicated 70 percent of its time or space to eligible activities, specifically as a community center.
The Applicant failed to demonstrate that its facility was used primarily for eligible activities as set forth in RDP9521.3 and RRDP9521.1. Accordingly, the facility is not eligible for Public Assistance funding. In addition, because the Applicant’s facility is ineligible, the contents therein are also ineligible.
 See Title 44 of the Code of Federal Regulations (44 CFR) §206.221(e)(7).
 See Recovery Division Policy (RDP) 9521.3, Private Nonprofit Facility (PNP) Eligibility, dated May 23, 2003.
 See RDP 9521.3(7)(C)(1).
 Id. at 9521.3(7)(C)(2).
 See Response and Recovery Directorate Policy (RRDP) 9521.1(7)(A), Community Center Eligibility, dated August 11, 1998.
 Id. at 9521.1(7)(C)(3).
 See RRDP9521.1(7)(C)(4), which states, “… there is no substitute for personally visiting the community center and touring the facility. An on-site visit should be made whenever possible, especially if eligibility is in doubt.”