Debris Removal from Private Roads

November 20, 2013

Michael Sprayberry
Director
North Carolina Division of Emergency Management
4713 Mail Service Center
Raleigh, North Carolina 27699-4713

Re: Second Appeal–Dare County, PA ID 055-99055-00-00, Debris Removal from Private Roads, FEMA-4019-DR-NC, Project Worksheet (PW) 1938

Dear Mr. Sprayberry:

This is in response to a letter from your office dated November 8, 2012, which transmitted the referenced second appeal on behalf of Dare County (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of $275,477 in funding for debris removal from roads within the private, gated communities of Colington Harbor and Martin’s Point.

Background

In August 2011, Hurricane Irene made landfall along the North Carolina coast causing significant wind damage and local flooding.  On September 15, 2011, in response to a request from your office, the FEMA Federal Coordinating Officer approved FEMA reimbursement for costs associated with debris removal from non-state system roads classified as Public Vehicular Area (PVA) roads that “are not gated or have restricted access by guards or other means of limiting public access.”  The Applicant hired a contractor to remove debris from the roads within two private, gated communities, Martin’s Point and Colington Harbor, and requested FEMA fund $275,477.22 for the costs of removal and disposal of the debris.  FEMA prepared PW 1938 to document the debris removal and disposal, but upon review determined the work was ineligible because the debris was removed from a gated community with limited public access.

First Appeal

In a first appeal, submitted on June 10, 2012, the Applicant asserted that there is no basis within Disaster Assistance Policy DAP9523.13 Debris Removal from Private Property for FEMA’s denial of debris removal from private roads based on gates or restricted access.  The Applicant stated that the roads within the communities are PVA roads, and property owners are taxed at the same rates for sanitation services as all other property owners in unincorporated areas of Dare County.  The Applicant provided routine garbage collection and other municipal services to the communities.  Further, the Applicant asserted that North Carolina General Statute §153A-292, which authorizes county commissioners to establish and operate solid waste collection and disposal services outside the corporate limits of a city, establishes the Applicant’s legal responsibility for the debris removal from the two communities.  On August 31, 2012, the FEMA Region IV Regional Administrator denied the Applicant’s first appeal stating that the Applicant did not demonstrate its legal responsibility for removing the debris from the two communities.

Second Appeal

The Applicant submitted its second appeal on November 7, 2012, and increased its request for funding to $331,437.  The Applicant states that the removal and disposal of the debris from the two communities was in the best interest of the public, because it was necessary to eliminate the immediate threats to life, public health and safety, and to ensure the expedient economic recovery of the affected community.  Additionally, the Applicant noted that it levies and collects a uniform sanitation collection and disposal tax on the at-large community, including Martin’s Point and Colington Harbor, and does not limit the amount of refuse, including disaster-generated debris, collected from the curbside.  Lastly, the Applicant states that the debris removal was in the best interest of the public, because the Applicant uses the roads to provide safety services to the residents of the two communities.

Discussion

According to Title 44 of the Code of Federal Regulations (44 CFR) §206.223(a)(3) General work eligibility, to be eligible, an item of work must be the legal responsibility of an eligible applicant.  Further, legal responsibility, with respect to private property debris removal, is defined in Disaster Assistance Policy DAP9523.13 Debris Removal from Private Property as that authority which is provided by a statute, formally adopted State or local code, or ordinance that gives local government officials the responsibility to enter private property to remove debris or to perform work to remove an immediate threat.  North Carolina General Statute §153A-292, which the Applicant cites as the statute establishing its legal responsibility for removal of disaster debris, addresses the disposal of solid waste, but does not establish legal responsibility for the removal of debris from the two private, gated communities.  The Applicant has not demonstrated that it has the legal responsibility to remove debris from the roads within the two private, gated communities; therefore, the debris removal is not eligible.

Further, the by-laws and covenants of the two gated communities establish that it is the owners’ associations responsibility to maintain and repair roads and common areas ( see Article 6, Section 4 of the Martin’s Point Homeowners’ by-laws, and the Collington Harbour Declaration of Protective Covenants and Agreements.)

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Accordingly, I am denying the second appeal.

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

Sincerely,

/s/

Deborah Ingram
Assistant Administrator
Recovery Directorate

cc:  Major P. May
      Regional Administrator
      FEMA Region IV