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Debris Removal from Private Property

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1561-DR
ApplicantMartin County, FL
Appeal TypeSecond
PA ID#085-99085-00
PW ID#282
Date Signed2007-01-24T05:00:00
Citation: FEMA-1561-DR-FL, Martin County, FL, Debris Removal from Private Property

Cross-reference: Private Property Debris Removal, Legal Responsibility, Gated Communities

Summary: As a result of Hurricane Jeanne, (FEMA-1561-DR-FL, September 26, 2004), Martin County sustained damages associated with downed trees and debris on public and private property. FEMA approved ten Category A project worksheets (PWs) for debris removal from public rights of way for a total of $1,465,088.51. However, FEMA did not approve funding for debris removal from private property as it did not meet eligibility criteria as stated in 44 §CFR 206.224 and 44 CFR §206.223. The Applicant appealed the ineligible determination in the amount of $3,454,897 for the removal debris located on non-system roads within private gated communities. On April 15, 2005, the applicant submitted its first appeal stating that provisions within the Stafford Act, Florida statute, and Martin County ordinances provide for the legal responsibility to enter private property to removed debris. In a letter dated November 1, 2005, the Acting Regional Director denied the Applicant’s appeal citing 44 CFR §206.223(a)(3) which states, “[t]o be eligible for financial assistance, an item of work must:…[b]e the legal responsibility of an eligible applicant.” The response from the Acting Regional Director states that the Applicant had not provided the documentation necessary to demonstrate it was the legal responsibility of the County to enter private property to remove debris. The County submitted a second appeal on April 12, 2006, which claims that the combined application of State statute and local ordinance provides for the legal responsibility of the County to remove debris from private property in an emergency.
Issues: 1. Has the Applicant demonstrated that it is the legal responsibility of the city to remove debris from private property?

Appeal Letter

January 24, 2007

W. Craig Fugate, Director
Division of Emergency Management
Department of Community Affairs, State of Florida
2555 Shumard Oak Blvd
Tallahassee, FL 32399-2100

Re: Second Appeal – Martin County, FL, PA ID#085-99085-00, Debris Removal from Private Property, FEMA-1561-DR-FL

Dear Mr. Fugate:

This is in response to a letter from your office dated April 12, 2006, transmitting the referenced second appeal on behalf of Martin County (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA’s) denial of reimbursement for costs associated with debris removal on private property within gated communities following Hurricane Jeanne.

For the reasons explained in the enclosed analysis, I have determined that the claim of $3,454,897 for debris removal from private property is not eligible for FEMA assistance. Therefore, this appeal is denied.

Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.

Sincerely,
/s/
John R. D’Araujo, Jr.Director of Recovery

cc: Major Phil May
Regional Director
FEMA Region IV

Appeal Analysis

BACKGROUND

As a result of Hurricane Jeanne, (FEMA-1561-DR-FL, September 26, 2004), Martin County sustained damages associated with downed trees and debris on public and private property. FEMA approved ten Category A project worksheets (PWs) for debris removal from public rights-of-way for a total of $1,465,088.51. However, FEMA did not approve funding for debris removal from private property including gated communities, as it did not meet eligibility criteria as stated in 44 CFR §206.224 and 44 §CFR 206.223.

The Applicant removed approximately 150,000 cubic yards of vegetative debris and 24,000 cubic yards of construction and demolition debris located on non-system roads within private gated communities in the amount of $3,454,897. FEMA prepared PW #282 to document work performed and associated costs, but FEMA did not approve any funding.

First Appeal

On April 15, 2005, the applicant submitted its first appeal of PW #282 to the Florida Department of Community Affairs, Division of Emergency Management. This appeal was forwarded to the Acting Regional Director on April 29, 2005. The appeal argued that debris removal on private property, including non-system roads within gated communities, is the responsibility of the local government. The Applicant claimed that provisions cited within the Stafford Act, Florida statute, and Martin County ordinances provide for this legal responsibility.

In a letter dated November 1, 2005, the Acting Regional Director denied the Applicant’s appeal citing 44 CFR §206.223(a)(3) which states, “[t]o be eligible for financial assistance, an item of work must:…[b]e the legal responsibility of an eligible applicant.” The response from the Acting Regional Director stated that the Applicant had not provided the documentation necessary to demonstrate it was the legal responsibility of the County to remove debris from private property.

Second Appeal

In a letter dated April 12, 2006, the Florida State Department of Community Affairs, Division of Emergency Management forwarded Martin County’s second appeal to FEMA. The second appeal, outlined in a letter from the Martin County Board of County Commissioners Chairman dated March 20, 2006, responds to the initial denial letter and expands the Applicant’s discussion of the eligibility of PW #282.

The Applicant’s second appeal argues that the combined application of State statute and local ordinance provides for the legal responsibility of the County to remove debris from private property in an emergency. The appeal cites the same State statute (Fla. Stat. §252-36) referenced in the first appeal which delegates emergency responsibilities and authorizes the Governor to assist citizens in cleanup and recovery operations on private property. It also re-states Fla. Stat. §252-38 which authorizes political subdivisions to provide for the health and safety of persons and property in an emergency, and adds that, according to Fla. Stat. §252-38, state law declares that “safeguarding the life and property of its citizens is an innate responsibility of the governing body of each political subdivision of the state.” The Applicant again references local ordinance establishing the definition of unsanitary nuisance which include any solid waste or hazardous wastes on any property which threatens or impairs human health, safety or welfare.

The Applicant argues that the combination of State statute and local ordinance make debris removal on private property the responsibility of the County. The Applicant claims that, according to local ordinance, disaster-related debris on private property constitutes an unsanitary nuisance which threatens public health and safety and that the authorities and responsibilities provided for in State statute makes this debris removal the legal responsibility of the Applicant.

The Applicant’s second appeal also argues that the same legal responsibility and threats to public health and safety existed when FEMA approved debris removal from private property including gated communities in Martin County after Hurricane Wilma (FEMA-1609-DR-FL, October 24, 2005). It argues that this approval indicates that FEMA determined that debris removal from private property including gated communities in Martin County met the same eligibility criteria in question, and confirms that it is the legal responsibility of the County.

DISCUSSION

The documentation in the Applicant’s second appeal does not provide any additional information to support the claim that it is the legal responsibility of Martin County to remove debris from private property. The second appeal only restates the same statutes and ordinances addressed in the first appeal, and expands the discussion of the interpretation of the statutes and ordinances.

The Applicant’s second appeal argues that the combination of State statute and local ordinance establish the legal responsibility of Martin County to remove debris from private property. However, the authorities provided to the Governor by State statute during emergency declarations and general statements regarding “innate” responsibilities to safeguard life and property do not translate to the specific legal responsibility of Martin County to enter private property to remove disaster-related debris. Fla. Stat. §252-36(5)(I) authorizes the Governor to use of forces to assist private citizens in cleanup and recovery operations when proper permission from private property owners has been obtained. However, this statute does not explicitly provide the Applicant with the legal responsibility to enter private property to remove disaster-related debris. And, although State statute states that it is a political subdivision’s “innate responsibility” to safeguard the life and property of its citizens, the statute does not explicitly state that it is the County’s legal responsibility to remove debris from private property.

Also, Disaster Specific Guidance # 8 dated September 20, 2004, states in part, “…in order for FEMA to make a case-by-case determination of eligibility on the basis of legal responsibility, each interested eligible applicant will be required to show its legal process for taking responsibility for debris on private property, and demonstrate how it followed that process.” We required eligible applicants to show that they had adopted an ordinance that addresses the abatement of public health nuisances on private property, and taken action under that ordinance, as evidence of their legal responsibility to remove “debris” from private property. Typically, nuisance abatement ordinances require local governments to adhere to due process requirements, such as providing notice to property owners of a violation and an opportunity to be heard on the violation. If the property owner does not comply with an order to abate the nuisance, the local government is authorized to take actions to abate the nuisance and bill the property owner for costs incurred or place a lien against the property. The Applicant did not meet this standard.

The Applicant argues that FEMA recognized that the Applicant had legal responsibility to remove debris from gated communities when it provided assistance for this purpose following Hurricane Wilma in 2005. Therefore, FEMA should use the same reasoning to assist the Applicant with private property debris removal costs related to Hurricane Jeanne, which occurred the previous year. Following the 2004 hurricane season, FEMA reviewed its policy on debris removal from private property, in particular gated communities, and determined that it would be onerous for local governments to strictly follow their nuisance abatement ordinances in a post-disaster environment. Therefore, on October 21, 2005, FEMA published a Fact tes to precisely apply their pre-disaster abatement process when disasters cause a high concentration of debris on private property over a widespread area presenting an immediate health and safety threat.” We also determined that widespread debris on roads in gated communities poses an immediate health and safety threat as it does on public roads. Further, the standard for demonstrating legal responsibility for removing debris from roads in gated communities is not as stringent as it is for removing debris from individual private lots.

These determinations apply to disasters declared after October 21, 2005. Therefore, we cannot apply these standards retroactively to the 2004 hurricanes. The applicable guidance for Hurricane Jeanne required the Applicant to precisely implement its nuisance abatement ordinance to demonstrate that it had the legal responsibility to effect debris removal on private property.

CONCLUSION

The Applicant has not provided any documentation to support its claim that it had the legal responsibility to remove disaster-related debris from private property. Therefore,