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Second Appeal Analysis
PA ID# 099-54075-00; City of Palm Beach Gardens
DSR ID# Project Worksheets 4917 snf 5130; Debris Removal from Private Property
Hurricane Frances (FEMA-1545-DR-FL) struck Florida on September 4, 2004, causing damage to trees and structures in the City. The City had a pre-positioned contract with Grubbs Emergency Services, LLC, to remove debris from roadway rights-of-way and public facilities within the City. Project Worksheets (PWs) 4917 and 5130 were prepared for a total of $664,561.70 to fund eligible debris removal expenses for the period of September 8-24, 2004. Expenses associated with ineligible debris removal, including debris hauled from private roads, Federal-aid roads and unspecific load locations, and for debris hauled by trucks whose truck certification papers were not available for review at the time the PW was written, were deducted prior to obligation. The following table describes the ineligible costs related to debris removed from private roads.
PW # Type of Debris Removed from Private Roads Cost per Cubic Yard Ineligible Cost
4917 Vegetative 52,423.01 cy $20 $1,048,460.20
4917 Mixed/C&D 2,852.70 cy $15 $42,790.50
5130 Vegetative 30,871.25 cy $20 $617,425.00
Total Ineligible Cost: $1,708,675.70First Appeal
The City submitted its first appeal on July 22, 2005. It stated that its contractor invoiced a total of $1,817,206 associated with PW 4917, and that FEMA reimbursed $541,873. It also mentioned PW 5130, but did not provide specific monetary figures associated with this PW. It included resolutions passed by the City Council that waived procedures and formalities to ensure the safety and welfare of the community. It stated that removing debris from private roads was essential to reduce threats to life, health and safety of the citizens of the City.
The State of Florida forwarded the first appeal by letter dated September 30, 2005, specifying that the costs in dispute were $1,091,250.70 associated with PW 4917, for removing vegetative and mixed/construction and demolition (C&D) from private roads. FEMA denied this appeal by letter dated February 22, 2006. It identified the amount in dispute as $1,665,885 for ineligible expenses associated with PW 4917 and 5130, based on the costs of vegetative removal from private roads for both PWs. The basis of the appeal denial was the fact that the City did not demonstrate that it had the legal responsibility to remove debris from private roads. The documentation presented by the City showed only that it had the authority to take actions necessary to ensure the safety, health, and welfare of the community. Furthermore, the City had not demonstrated that the health and safety threats on private roads impacted the public. Second Appeal
The City submitted its second appeal on April 7, 2006. As documentation supporting its claim, it included its Code of Ordinances, specifically Article V Section 5-2, which grants the City the power to collect garbage. It also submitted Executive Order No. 02-2004, signed September 9, 2004, which declared and required that City debris removal crews and contractors enter into all public and private streets and rights-of-way within the City to remove debris. DISCUSSION
FEMA regulations authorize assistance for debris removal when it is in the public interest (see 44 CFR§206.224(a)) and the work is performed by an eligible applicant who has legal responsibility to do so. Generally, debris removal from private property is not eligible for Public Assistance funding. In order to be eligible, an applicant must show that it meets the preceding criteria and that it has obtained right-of-entry/hold harmless agreements from property owners. If these criteria have been met, FEMA will determine eligibility on a case-by-case basis.
Disaster Specific Guidance # 8 helps to explain the criteria that must be met in order for an applicant to demonstrate that debris removal from private property was necessary to address an immediate threat to life, public health, and safety. It states, in part, that an applicant claiming legal responsibility for debris removal on private property must demonstrate the method it used to determine the existence of a threat to life, public health and safety. The City has not provided any information to indicate how the debris it removed from private property was a threat to the general public.
The basis for the denial of the Citys first appeal was the issue of legal responsibility. The City must demonstrate that it took steps, through its legal processes, to gain legal responsibility for debris removal on private property. The documents provided by the City regarding garbage collection and trash pick-up do not establish legal responsibility for removing storm-related debris. There is nothing in the Citys Article V or trash pick-up documents that specifically addresses the responsibility for removing storm-related debris. But rather, these documents relate to routine garbage and trash removal, without reference to extraordinary circumstances.
The Citys Resolutions 195, 199, and 202, declare states of emergency and empower the City of Palm Beach Gardens to waive the procedures and formalities otherwise required of the political subdivision by law pertaining to certain actions that can be taken to ensure the health, safety, and welfare of the community. The Citys Executive Order No. 02-2004, dated September 9, 2004, directs the City to remove all vegetative debris within the City on both public and private property. The Executive Order states that the city manager declares and requires that City debris removal crews and contractors shall enter into any and all streets and rights-of-way within the City, both public and private, to remove vegetative and other debris. This order was enacted after the disaster and does not specify the circumstances in which the City would take legal responsibility to remove debris from private property.
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 City did not meet this standard.
The third requirement for private property debris removal is obtaining right-of-entry/hold harmless agreements from property owners or relevant homeowners associations prior to commencing debris removal work on private property. These agreements indemnify the Federal government from any claim arising from the removal of debris, in accordance with 42 U.S.C §5173(b). The City has not provided evidence that it obtained such agreements. CONCLUSION
The City has not met the established criteria to demonstrate that it was legally responsible for removing debris from private property, nor did it demonstrate the method it used to determine the existence of a threat to life, public health and safety. Furthermore, it did not provide rights-of-entry/hold harmless agreements from pr