Appeal Brief | Appeal Letter | Appeal Analysis | Back
Second Appeal Analysis
PA ID# 035-UFHET-00; Cuyahoga County Department of Public Works
PW ID# 37; Codes and Standards
In October 2012, Superstorm Sandy caused damage to floating docks at Whiskey Island Marina (Facility) owned by the Cuyahoga County Department of Public Works (Applicant). FEMA prepared Project Worksheet (PW) 37, and on June 27, 2013 obligated $1,729,343.83 in Public Assistance (PA) funding to rebuild the docks, which were damaged beyond repair. On October 16, 2014, the Ohio Emergency Management Agency (Grantee) requested final costs and FEMA prepared PW 37 Version 1 to closeout the project for a total cost of $1,150,152.51.
On August 7, 2015, the Grantee forwarded a request from the Applicant for additional funding. The request stated that the Ohio Fire Code (OFC) required the installation of a fire suppression system and the Americans with Disabilities Act (ADA) required the Applicant to make additional upgrades. On November 20, 2015, in a determination memorandum, FEMA denied the request because the work was not completed by the approved deadline. Specifically, the Applicant had until July 3, 2014 to finish the work and accordingly, the newly requested work to comply with the OFC and ADA was not eligible. FEMA also stated that the Applicant was responsible for acquiring all permits and FEMA’s original cost estimate included funds to assist with applicable fire suppression codes.
The Applicant appealed FEMA’s determination on December 21, 2015, and requested funding for the additional work. The Applicant disagreed with FEMA’s inference that it did not obtain necessary permits because it received the appropriate building permits from the City of Cleveland, though the permits did not reveal deficiencies in the project specifications. The Applicant contended that the FEMA Public Assistance Coordinator (PAC) Crew Leader was responsible for ensuring project specifications comply with all applicable laws, regulations, and policies, and did not identify the ADA and OFC requirements.
The Grantee concurred in a letter dated February 12, 2016 and clarified that the question was not whether the Applicant obtained the appropriate permits, but rather if the costs of work omitted from the PW are eligible. The Grantee noted that the Applicant immediately notified it upon discovering the compliance requirements. While the notification occurred after closeout, the Applicant complied with FEMA policy to notify the Grantee as soon as possible.
During the adjudication of the appeal, FEMA Region V sent the Applicant three Requests for Information (RFI). In those requests, FEMA asked the Applicant to provide more information regarding noncompliance with the OFC, evidence that the OFC was uniformly enforced, whether the Applicant had received notification that it was in violation of the OFC or a variance, and associated costs and constructions plans.
The Applicant, in its responses, explained that it transferred ownership of the Facility to Cleveland Metroparks (CM), but noted that the variance being sought would exempt CM from having to construct only one component of the fire suppression system. The same variance was granted to CM at the nearby Edgewater Marina, without sacrificing safety standards. The Applicant confirmed it has not received a formal notice of violation for its noncompliance with the OFC, and it did not have verification that the OFC had been uniformly enforced at other marinas.
The RA partially granted the Applicant’s appeal in a decision dated September 15, 2016. The RA determined that the Applicant failed to provide any evidence that the OFC requirement was enforced at other marinas within the City. He also determined that if the variance was granted, it would exempt CM from complying with the OFC, which would waive all or most of the upgrade costs. As such, the Applicant was premature in appealing for PA for a project that may not take place. Because the OFC was not enforced at the time of the disaster and the code allowed for a variance, the RA found the upgrades ineligible for PA funding.
The Applicant appeals the RA’s decision and requests $388,359.00 in previously denied PA funding. The Applicant claims that Section 4504.2 of the OFC mandates the fire suppression system, and this requirement is not subject to discretionary enforcement. The Applicant points out that the absence of a notice of violation from the City of Cleveland does not mean that the City was not enforcing the code. Rather, the City is overwhelmed with inspections and is slow to enforce in some areas. The Applicant argues that the OFC has been uniformly applied and enforced, as evident from the completion of another FEMA project at the nearby Edgewater Marina that incorporated the OFC requirements. Furthermore, the Applicant states that it is only seeking a variance on one part of the fire suppression system; which, if granted, would reduce costs by $82,500.00, and the amount appealed of $388,359.00 would still be the amount associated with completing the fire suppression system.
The Grantee concurred in a letter dated January 24, 2017, and reiterates that the OFC was enforced at the time of the disaster, but due to a backlog, the City of Cleveland was slow to enforce, but could inspect the Facility at any time and find it non-compliant.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406 and implementing regulations authorize FEMA to provide federal assistance to a local government for the repair, restoration, or replacement of a facility damaged by a declared disaster and in conformity with current applicable codes, specifications, and standards. The regulations define “standards” as codes, specifications, or standards required for the construction of facilities. Pursuant to Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226(d), FEMA may reimburse costs of federal, state, and local repair or replacement of facilities in accordance with codes or standards, if the codes or standards: (1) apply to the type of repair or restoration required; (2) are appropriate to the predisaster use of the facility; (3) are found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date or be a legal federal requirement applicable to the type of restoration; (4) apply uniformly to all similar types of facilities within the jurisdiction of owner of the facility and; (5) were enforced during the time they were in effect. All five prongs must be met in order to be eligible for PA funding.
FEMA Disaster Assistance Policy (DAP) 9527.4, Construction Codes and Standards, further explains that, regarding 44 C.F.R. § 206.226(d)(4), “[t]he code cannot be subject to discretionary enforcement by building or permitting officials, it must provide for uniform accountability in the event of noncompliance.” The code or standard cannot be merely a recommendation.
The OFC requires that “[m]arinas and boatyards shall be equipped throughout with standpipe systems... located such that no point on the marina pier or float system exceeds [150 feet] from a standpipe hose connection.”  The OFC also includes code sections detailing noncompliance, including notice of violations, citations, civil penalties, injunctions, and court orders to repair, demolish or otherwise correct the violation, and the fire marshal’s authority to take possession and sell the building and remedy the dangerous conditions in the event compliance orders are unaddressed. The OFC also contains a provision allowing for variances. Specifically, it states that [w]henever there are practical difficulties involved in carrying out the provisions of the state fire code, the state fire marshal, in the state fire marshal’s discretion, may modify any provision of the state fire code or any other administrative rule promulgated by the state fire marshal by issuing a variance upon written application by an affected party…
The Applicant explains that the variance being sought only relates to one component of the fire suppression system, and the Applicant is still required to install all other components. The code affords the fire marshal with the discretion to overcome “practical difficulties” by issuing variances regarding “any provision of the state fire code” so long as public health, safety or welfare is not threatened and substantively equivalent alternative measures is employed. In examining other state and local fire codes, it is clear that all such codes include provisions allowing for variances in similar circumstances, providing that public health and safety is not endangered. Accordingly, there is nothing to suggest the OFC requirement is not uniformly applied to all similar types of facilities in accordance with 44 C.F.R. §§ 206.226(d)(4)-(5).
The Applicant also argues that the state enforces the OFC, but that due to a backlog it has been unable to do so to date. To be eligible, the OFC requirement must be enforced at the time of the disaster. FEMA is persuaded by the Applicant’s argument in this instance and accepts that the City of Cleveland has been delayed in enforcing the OFC rather than concluding that the OFC is not being enforced.
The Applicant has substantiated that the OFC is uniformly applied and enforced pursuant to 44 C.F.R. §§ 206.226(d)(4)-(5). Accordingly, contingent upon the Applicant’s (1) demonstration within six months of the date of this decision that the enforcing authority directed it to comply with the fire suppression provisions (to include possible requirements associated with a variance), (2) incurrence of actual costs to address the matter within one year of this decision, and (3) compliance with federal procurement requirements and other conditions of the grant for the work performed, the fire suppression system is eligible for PA reimbursement.
 On second appeal, the Applicant is not appealing costs associated with the ADA code requirements and as such, this appeal addresses only the OFC requirement.
 The Applicant explained that the variance applied only to the “off line” fire storage area due to space challenges that exist at the Facility and that the fire storage areas would result in a loss of dock fingers and negatively impact the economic viability of the Facility.
 Letter from Chief Corporate Counsel, Cuyahoga County Dept. of Law, to Dir., Ohio Emergency Mgmt. Agency, at 1 (Dec. 16, 2016).
 Letter from Asst. Law Dir., Cuyahoga County Dept. of Law, to Dir., Ohio Emergency Mgmt. Agency, at 2 (Nov. 14, 2016).
 The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, § 406, 42 U.S.C. § 5172 (2006); See also Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.226 (2012).
 44 C.F.R. § 206.221(i) (2012).
 Id. §§ 206.226(d)(1)-(5).
 Disaster Assistance Policy DAP9527.4, Construction Codes and Standards, at 3 (Feb. 5, 2008); Public Assistance Guide, FEMA 322, at 33-35 (June 2007).
 FEMA Second Appeal Analysis, City of Gulfport, FEMA-1604-DR-MS, at 3 (Sep. 25, 2012) (determining that Design Criteria for public water systems published by the Mississippi Department of Health did not meet FEMA’s requirements for uniform application because the criteria provided recommendations, not requirements, and allowed for variances in application).
 Ohio Admin. Code § 1301:7-7-45(D)(2) (2011).
 Id. §§ 1301:7-7(I), 3737.43.
 Id. § 3737.42 (stating that if the fire marshal or other inspector “believes that the state fire code…has been violated [he or she] shall, with reasonable promptness, issue a citation.”).
 Id. § 3737.51 (detailing different types of violations and depending on the severity, the penalty for such violation).
 Id. § 1301:7-7(D)(8).