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Second Appeal Analysis
PA ID# 121-UJIIS-00; Erwinville Fire Department Sub District 5
PW ID# 4837; Training Hall
In September 2008, wind and rain from Hurricane Gustav caused damage to the metal roof and interior of the Erwinville Fire Department Sub District 5’s (Applicant) training hall facility. A FEMA representative conducted a site visit in November 2008 to inspect the damage but did not prepare a Project Worksheet (PW) at that time. The Applicant demolished the training hall in April 2009 because it determined the facility was an attractive nuisance, a safety hazard, and a liability. In September 2009, FEMA conducted a follow-up site visit and prepared PW 4837 for $13,329 for the repair of disaster damage based on a contractor’s cost estimate dated September 22, 2009 the Applicant submitted to FEMA.
In May 2011, the Applicant requested a version to the PW to fund the replacement of the facility. FEMA found the replacement ineligible because the cost estimate of the repair was less than 50 percent of the cost estimate to replace the facility and prepared Version 1 to PW 4837 to document the request and determination. FEMA did not approve additional funding.
The Applicant submitted a first appeal on December 19, 2011, requesting additional funding for the replacement of the training hall based on a cost estimate of $55,211. The Applicant asserted that FEMA did not include the repair of all disaster damage in PW 4837 and that FEMA personnel indicated in November 2008 that the training hall qualified for replacement. The Applicant maintained that FEMA should have considered the pictures taken during the initial site visit in developing a damage description and scope of work for repair and not the information in the contractor cost estimate. The Applicant stated that it obtained that cost estimate for initial insurance purposes and the estimate did not account for the cost of the repair of all interior damage, including electrical repairs, mold remediation, and structural repair to load bearing walls. The Applicant concluded that if FEMA had considered the repair costs of all disaster damage shown in the photographs in its repair versus replacement calculation, the facility would qualify for replacement.
The FEMA Region VI Regional Administrator denied the appeal on November 14, 2012, because the Applicant had not provided documentation quantifying the additional damage claimed to support its assertion that the repair cost estimate exceeded 50 percent of the cost of replacement. The Regional Administrator also indicated that FEMA personnel did not make an eligibility determination regarding the facility replacement at the initial site visit.
The Applicant’s May 17, 2013, second appeal reiterates its position that Hurricane Gustav damaged the training hall beyond repair; the facility should be eligible for replacement; and a FEMA representative stated the facility would be eligible for replacement. The Applicant objects to FEMA’s determination in Version 1 to PW 4837 that the Applicant demolished the facility without notifying FEMA. The Applicant states that prior to proceeding with the demolition it contacted the FEMA representative who conducted the initial site visit and he reiterated that the building replacement would be eligible for funding. The Applicant also notes that it demolished the training hall for safety reasons and to reduce liability to the fire department, not for “convenience” as stated in Version 1 to PW 4837. The Applicant requests that if FEMA still finds that the building repair cost is less than 50 percent of the replacement cost, FEMA consider the eligibility of the demolition and replacement of the facility for safety reasons. Further, the Applicant objects to the following statements made in the Regional Administrator’s response to its first appeal:
“On October 16, 2009, a draft PW was written and was limited to repairs. No objection was made to the PW at this time or at the exit briefing in December 2009. The applicant also signified their acceptance of the repair PW and exit briefing indicated by their signatories of these documents.”
The Applicant states by signing the documents it never intended to indicate it agreed with the funding approved in PW 4837 and maintains that FEMA policy and procedure support that while signatures on these documents are required procedurally, the signatures do not necessarily indicate concurrence.
The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness (Grantee) transmitted the Applicant’s appeal to FEMA, supporting the appeal and stating that FEMA has the responsibility to develop a scope of work for repair based on its own photographic evidence and not by relying solely on the contractor’s cost estimate. With the appeal, the Grantee submits a new repair cost estimate ($27,881) based on the damage it asserts is supported by the photographs, which is greater than 50 percent of the replacement cost estimate ($55,212). The Grantee’s cost estimate includes removing and replacing all damaged elements (including 100 percent of the roof and ceiling, the wall paneling and insulation, and electrical outlets, switches and wiring), painting, and mold remediation.
Repair versus Replacement
“A facility is considered repairable when disaster damages do not exceed 50 percent of the cost of replacing a facility to its predisaster condition, and it is feasible to repair the facility so that it can perform the function for which it was being used as well as it did immediately prior to the disaster.” In reviewing the Applicant’s initial request for a version to PW 4837, FEMA escalated the value of the contractor quote provided by the Applicant to $14,334 to account for inflation. This increased repair cost equates to 25 percent of the replacement cost ($55,211). As such, the replacement of the facility is not eligible for funding.
The Applicant contends that FEMA did not account for all disaster damage in PW 4837. FEMA based its repair cost estimate on the September 2008 contractor estimate which indicates that 600 square feet (SF) of roof requires replacement. The Applicant and Grantee maintain that additional damage is documented in the photographs taken during the initial site visit, including mold and electrical damage. Although mold and other damage can be seen in these photographs, the photographs do not provide adequate information needed to quantify all of the damage. The alternative repair estimate provided by the Grantee includes the removal and replacement of the entire roof and ceiling, all wall paneling and insulation, and all outlets, switches, and wiring. Neither the Applicant nor the Grantee provide a sufficient explanation as to the significant difference in damage quantities shown in the contractor estimate and the Grantee’s cost estimate submitted with the second appeal. Specifically, neither the Applicant nor the Grantee explain why the contractor’s estimate references 600 SF of roof damage, but the Grantee asserts that the entire 1200 SF roof was damaged. Further, the pictures do not support the Grantee’s assertion that 100 percent of the roof and walls were damaged by the event.
The Applicant has not provided sufficient documentation of damage caused by the event. While informative, the photographs alone cannot be used to develop a detailed damage description. Notwithstanding the Applicant’s assertion that FEMA informed it that the replacement would be eligible for funding, the Applicant demolished the facility without obtaining clear evidence from which to base a revised scope of work and repair cost estimate.
Eligibility of Demolition as Emergency Work
Emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible if the measures eliminate or lessen immediate threats to life, public health or safety, or significant additional damage to improved public or private property through measures which are cost effective. For demolition of structures posing an immediate public safety threat to be eligible as an emergency protective measure, “the threat must be identified by local officials according to established local ordinances and verified by State and Federal officials. In some instances, securing a damaged building from access is sufficient to alleviate the threat and demolition is not necessary.” The Applicant indicates the facility was demolished because it was a safety hazard and an attractive nuisance. The Applicant maintains that the structural damage to the walls prevented the door from closing, and the Applicant was not able to secure the facility so that children would not enter. Further, as a section of the damaged roof blew into a neighbor’s yard, the Applicant asserts that the damaged training hall posed a threat to the neighboring property.
Based on the documentation and information provided by the Applicant, it is not clear that the damaged training hall, located in an open field, posed an immediate threat to the general public. Even if an immediate threat was present, the attractive nuisance doctrine is reliant upon a standard of reasonableness. The Applicant could have taken more reasonable measures other than demolishing the facility, such as boarding up the door and frame and installing a fence around the perimeter of the facility, to eliminate the threat. While the Applicant states that its Board of Directors agreed to condemn and demolish the building, it has not provided documentation supporting that a local official verified the threat nor that it was verified by a state or federal official. Therefore, the demolition of the facility is not eligible as an emergency protective measure.
The Applicant has not demonstrated the eligible building repair cost exceeds 50 percent of the building replacement cost and, therefore, the funding for the building replacement is not eligible under the Public Assistance program. Furthermore, the Applicant has not provided sufficient documentation to support its claim that the damaged building posed an immediate threat to the general public and, therefore, its demolition is not eligible as emergency work.
 The Applicant originally obtained a cost estimate prior to demolishing the facility. The contractor updated its original estimate, dated December 1, 2008, in September 2009 to reflect current costs.
 Title 44 of the Code of Federal Regulations (44 CFR) §206.226(f).
 See 44 C.F.R. § 206.225(a).
 Public Assistance Guide, FEMA 322 at 73 (June 2007).
 See Black's Law Dictionary 130 (6th ed. 1991).