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Lake Tabor Dam

Appeal Brief Appeal Letter

Appeal Brief

DisasterFEMA-1134-DR
ApplicantTown of Tabor City
Appeal TypeSecond
PA ID#047-66520
PW ID#26942
Date Signed1997-12-08T05:00:00
Citation: FEMA-1134-DR-NC, PA 047-66520, DSR 26942 Town of Tabor City.

Cross Reference: Lake Tabor Dam, legal responsibility, Hurricane FRAN, FEMA-1134-DR

Summary: During Hurricane Fran, rainfall intensity for the area of Lake Tabor surpassed 100-year storm levels several times. The spillways were inadequate to discharge the ensuing high flows; as a result the Lake Tabor Dam was undermined and destroyed. At the time of the incident, a business corporation, the Tabor City Recreation Commission (TCRC), owned the lake and dam. This corporation, which serves as a property owners' association, purchased the lake in 1954.

Since 1960, the Town of Tabor City (Town) has voluntarily donated labor and equipment to repair and maintain the dam. In May 1991, the Town signed a contract with the TCRC to lease the dam for $1.00 per year. The lease agreement conferred repair responsibilities on the Town but did not grant replacement authority. Following the disaster, the Town applied for FEMA assistance, requesting a damage survey report be prepared for replacement of the dam. DSR 26942 was determined ineligible, for the Town did not own the dam when it was destroyed. Subsequently, the Regional Director denied the first appeal because the applicant did not possess legal responsibility for the structure. The Town provided no additional evidence substantiating their claim to have had legal responsibility for replacement of the dam at the time of the failure in the second appeal.

Issue: Do past maintenance efforts by the Town give them replacement authority? Did the lease transfer legal responsibility for the dam to the town?

Finding: No. The Town received responsibility for repairing and maintaining the dam once the lease was signed, but the Town was not legally responsible for replacement of the dam at the time of the incident.

Rationale: 44CFR  206.223 dictates that to be eligible for financial assistance, an item of work must be the legal responsibility of an eligible applicant. The lease does not specifically transfer replacement authority.

Appeal Letter

December 8, 1997

Mr. Steven N. Glenn
Infrastructure Support Coordinator
North Carolina Division of Emergency Management
116 West Jones Street
Raleigh, NC 27603-1335

Dear Mr. Glenn:

This is in response to your letter dated September 15, 1997, which forwarded the second appeal from the Town of Tabor City under FEMA 1134-DR-NC. The appeal concerned the replacement of the Lake Tabor Dam, which was destroyed by Hurricane Fran.

Review of the documentation indicates that the Tabor City Recreation Commission (TCRC) purchased Lake Tabor in 1954, thereby establishing legal responsibility for the Lake Tabor Dam. On numerous occasions since 1960, the Town of Tabor City (Town) provided labor and equipment to repair the dam. The Town was not under legal obligation to maintain the dam until 1991 when a contract, leasing the land and dam to the Town, was signed. The lease specifically transferred repair and maintenance responsibilities to the Town, but did not authorize the Town with replacement authority.

The Town applied for FEMA assistance to replace the dam, but damage survey report 26942 was denied because the Town did not own the dam. The first appeal contended that although the Town did not hold title to the dam, the Town was eligible for federal assistance because it leases the dam from the TCRC and had twice conducted major repairs to the structure. The Regional Director denied this appeal on the grounds that the applicant was not the legal owner of the facility and did not have legal responsibility to replace the dam according to the lease. In the second appeal, the Town insists that, because the Town leases the dam and has maintained it for the past thirty to forty years, it is legally responsible for the dam. No new evidence to support this claim was provided with the second appeal.

Pursuant to 44CFR206.223, to be eligible for federal assistance, a work item must be the legal responsibility of an eligible applicant. The Town did not have legal responsibility for the dam at the time of the disaster. The TCRC owned the property and was, therefore, legally responsible for replacing the dam. Consequently, I am denying the second appeal.

Please inform the applicant of my decision in the matter. The applicant may appeal my decision to the Director of FEMA. The appeal must be submitted through the State and Regional Director within 60 days of receipt of this letter.

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

cc: John B. Copenhaver
Regional Director
FEMA Region IV