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Second Appeal Brief
PA ID# 051-38082-00; Town of Jean Lafitte
PW ID# 1378; Debris Removal – Construction and Demolition
Conclusion: The request for funding the demolition of 18 private structures is denied because the Applicant has not sufficiently demonstrated that the structures were damaged to the point of imminent partial or complete collapse as a result of the declared event; FEMA was not provided an opportunity to concur with the demolitions; and FEMA Environmental and Historical Preservation staff was not afforded a chance to conduct an investigation before the demolition occurred.
The Town of Jean Lafitte (Applicant) is appealing the Region VI Regional Administrator’s (RA) first appeal decision that the demolition of 18 private residential structures is not eligible for funding because the structures were not in imminent danger of partial or total collapse as a result of the declared event, the Applicant did not provide FEMA the opportunity to concur with the demolition before the work was completed, and FEMA Environmental and Historical Preservation (EHP) staff was not afforded the opportunity to complete a compliance review. In 2012, Hurricane Isaac’s flood water and wind driven rain damaged 19 structures. The Applicant’s building inspector evaluated each residence, determined them structurally unsafe and recommended demolition. Project Worksheet (PW) 1378 was written for zero dollars because: FEMA was not provided an opportunity to concur with the demolitions prior to the completion of the work; the structures did not fit the definition of “unsafe” as a direct result of the declared disaster; and, EHP staff was not notified before demolition. The Applicant filed a first appeal arguing that the structural damage met the required imminent collapse standard, that FEMA preapproval was not required, and EHP regulatory compliance had been satisfied. The RA denied the appeal based on DAP9523.4, finding that the documents provided did not establish the structures were in danger of imminent collapse, prior approval was required, and EHP must be given the opportunity to conduct its own pre-demolition investigation. To correct a procedural mistake, the RA rescinded that first appeal decision to properly close the administrative record and requested further information from the Applicant. The Applicant supplemented the record with affidavits from its building inspector and withdrew one structure because it was outside of the town’s limits. The RA again denied the appeal. The Applicant filed a second appeal reiterating the arguments from the first appeal. This decision denies the second appeal because the documentation provided by the Applicant does not substantiate that the 18 structures were unsafe in accordance with FEMA regulation and DAP9523.4 and FEMA was precluded from conducting an EHP review prior to the Applicant’s actions.
Authorities and Second Appeals
Stafford Act § 403(a)(3)(E) authorizes FEMA to provide assistance to meeting immediate threats to life and property resulting from a major disaster, including the demolition of unsafe structures which endanger the public.
Under 44 C.F.R. § 206.225(a), emergency protective measures to save lives, to protect public health and safety and to protect improved property are eligible.
DAP9523.4 defines an unsafe structure as one so damaged or structurally unsafe as a direct result of the declared disaster that partial or complete collapse is imminent.
DAP9523.4 states that the Public Assistance Group Supervisor must concur that the demolition of unsafe structures and the removal of demolition debris are in the public interest.
DAP9523.4 states that eligible demolition activities must satisfy environmental and historical preservation compliance review requirements.