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Second Appeal Letter
PA ID# 071-U8M7N-00; Hosuing Authority of New Orleans
DSR ID# Project Worksheets 4999, 5273, 5280, 5289, 5317, 5323, 5444, 5469, 5481, and 10238; Demolition of Public Housing
April 14, 2009
Colonel Thomas Kirkpatrick (Ret.)
State Coordinating Officer
Governors Office of Homeland Security and Emergency Preparedness (GOHSEP)
415 North 15th Street
Baton Rouge, LA 70802
Re: Second AppealHousing Authority of New Orleans, PA ID 071-U8M7N-00Demolition of Public Housing
, FEMA-1603-DR-LA, Project Worksheets (PWs) 4999, 5273, 5280, 5289, 5317, 5323, 5444, 5469, 5481, and 10238
Dear Colonel Kirkpatrick:
This is in response your letter dated December 7, 2007, which transmitted the referenced second appeal on behalf of the Housing Authority of New Orleans (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMA) decision to deny funding for the emergency demolition of public housing units owned by the Applicant and damaged by Hurricane Katrina.
Hurricane Katrina caused varying degrees of damage to several of the Applicants structures, which are comprised of public housing units primarily in the form of duplexes and quadplexes. As a result, FEMA performed assessments on hundreds of structures and initially prepared PWs 4999, 5273, 5280, 5289, 5317, 5323, 5444, 5469, and 5481 to fund the demolition of 54 structures. Following a review of the PWs, FEMA determined these costs were ineligible for Public Assistance funding on the basis that the structures did not pose an immediate threat to public health and safety. FEMA also prepared PW 10238 to document 262 structures that sustained damage, but were structurally intact and did not represent a threat to public health and safety. FEMA did not approve any funding for PW 10238.First Appeal
On March 8, 2006, (PW 5280) and June 30, 2006, (PWs 4999, 5273, 5289, 5317, 5323, 5444, 5469, 5481) the Applicant submitted its first appeals requesting that FEMA approve funding to demolish 36 of the 54 structures covered under the subject PWs. Of these 36 structures, 27 were also included in PW 10238. On July 14, 2006, the Applicant submitted its appeal of PW 10238 for all 262 structures. The appeals cover a total of 271 structures.
The Applicant claimed that the buildings were severely damaged, could not be repaired, and presented an immediate threat to public health and safety, and therefore needed to be demolished. Additionally, the Applicant argued that FEMA was inconsistent in its determinations, claiming that FEMA approved demolition for some units but disapproved it for
others that were in similar condition and in the same apartment complex. In support of its appeal, the Applicant cited a report by ECM Consultants, Inc., an engineering firm that determined that the Applicants Florida duplexes were structurally unsound due to degradation of the glued finger jointed wood studs that could no longer support the upper floor of the structures. In addition, the Applicant claimed that the demolition of the buildings was essential to the economic recovery of the area.
In three separate letters dated August 29, 2007, FEMAs Regional Administrator denied the first appeals. The Regional Administrator found that the Applicant had enclosed the structures with chain link fences and security screens and determined that these measures eliminated the immediate threat posed by the structures. The Regional Administrator also stated that the economic recovery criteria usually relates to debris removal from large commercial areas and is typically not applicable to residential areas. Second Appeal
On December 7, 2007, GOHSEP transmitted the Applicants second appeal dated October 26, 2007. The second appeal consisted of all 10 PWs that were presented as three separate first appeals. In its second appeal, the Applicant states that many of the properties are not enclosed by fences. The Applicant also argues that it should be reimbursed for demolition of the buildings because (1) the properties pose an immediate threat to public health and safety, (2) neither the Stafford Act nor FEMAs regulations require a structure to be in danger of collapse, (3) the fences and security screens do not eliminate the immediate threat, and (4) FEMAs demolition determinations have been arbitrary, capricious, and contrary to the Stafford Act. In support of its second appeal, the Applicant provided a report from its consultant, Julien Engineering and Consulting, which recommends that the demolition of the duplex units in the Florida Phase I Development. The report states that the structural integrity of the finger-jointed timber studs in the structures had been compromised.Discussion
In accordance with 44 CFR §206.225 (a)(3), Emergency Work
, FEMA may fund emergency protective measures that are necessary in order to eliminate or lessen an immediate threat to life, public health or safety. In terms of disaster-damaged structures, FEMA typically only funds demolition when the structures are severely damaged and in imminent danger of collapse. Otherwise, FEMA will provide funding for fencing, security screens, or other measures to abate the threat to public health and safety when the structures are damaged but structurally intact.
FEMA assessed the structures in question and determined that the damaged structures did not pose an immediate threat to public health and safety. In most instances, FEMA found that the
structures sustained damage but were not in imminent danger of collapse. In other cases, FEMA found that the immediate threat was abated by the security screens and fencing and funded those measures.
However, it should be noted that FEMA has approved funding for the permanent repair or replacement of the Applicants housing units that do not fall under the statutory authority of the Department of Housing and Urban Development. This includes demolition if the structure was destroyed or if the estimated repair cost exceeds 50 percent of the replacement cost in accordance with FEMA Policy 9524.4 Eligibility of Facilities for Replacement under 44 CFR 206.226(d)(1)
dated September 24, 1998. In these cases, the demolition work is considered part of the Category E permanent restoration work. FEMA has also approved Category B (emergency protective measures) demolition for some of the units in question following further evaluation. The following chart summarizes the properties that have been approved for demolition in the PWs under appeal.Appeal PW Address PW Approving Demolition Comments
4999 6641-47 Old Gentilly 17887 PW 4999 shows address as 2541 -2543 Alvar
5273 6646-52 Chef Menteur 17893, 17142
5273 6678-84 Chef Menteur 18022, 17142 PW 5273 shows address as 6649-6655 Chef Menteur
5273 & 10238 6654-60 Chef Menteur 18010
5273 6662-68 Chef Menteur 17891, 17142
5273 & 10238 6686-92 Chef Menteuer 17884
5280 2916-22 Higgins 16660
5280 2924-30 Higgins 16660
5280 2917-23 Higgins 16666
5280 2925-31 Higgins 16666
5280 3301-07 Press 16668
5280 3309-15 Press 16668
5280 2909-15 Higgins 16648
5289 & 10238 6670-76 Chef Menteur 17895
5317 & 10238 2601 Alvar 17142
5323 & 10238 1800 & 1802 Gordon 17871
5323 & 10238 1804 & 1806 Gordon 17875
5323 & 10238 1808 & 1810 Gordon 17861
5323 & 10238 1410 & 1412 Caffin 17142
5444 & 10238 6601-07 Old Gentilly 18003, 17142 Structure is included in PW 4999 as 2517-2519 Old Gentilly
5444 6609-15 Old Gentilly 18040, 17142 Structure is included in PW 4999 as 2525-2527 Old Gentilly
5444 & 10238 6630-36 Chef Menteur 18005
5444 & 10238 6638-44 Chef Menteur 17889
5481 2901-07 Higgins 16648 PW 5481 shows address as 2901-07 n<-07 Press 16663
5481 3409-15 Press 16663
5481 3317-23 Press 16672
5481 3325-31 Press 16672
10238 1830-1836 Poland 17142 CONCLUSION
Excluding the structures above, there is no basis to approve demolition of the structures under appeal. The Applicant has not provided sufficient documentation demonstrating that the structures pose an immediate threat or that it has taken appropriate action to address any such threat. The engineering reports provided by the Applicant only address 33 buildings, including 25 duplexes in the Florida Development. The reports do not provide specific addresses or structure-specific documentation of damages. The reports state that the buildings are not structurally sound, but they do not indicate that they are in immediate danger of collapse or present an immediate threat to public health and safety. The reports were the only supporting documentation provided by the applicant and no information was provided for the more than 200 additional structures included in the appeal. The Applicant also did not provide any information to show that it has taken action to demolish the structures in the two years between the disaster and its second appeal submittal.
I have reviewed the information submitted with the appeal and have determined that the Regional Administrators 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. My determination constitutes the final decision on these matters as set forth in 44 CFR §206.206 Appeals.
James A. Walke
Acting Assistant Administrator
Disaster Assistance Directorate
cc: Gary Jones
Acting Regional Administrator
FEMA Region VI
LA Transitional Recovery Office