–Appeal Timeliness, Scope of Work, 50 Percent Rule, Codes and Standards
Appeal Brief
Appeal Letter
Appeal Analysis
Appeal Brief
| Disaster | FEMA-4086 |
| Applicant | Department of Environmental Protection |
| Appeal Type | Second |
| PA ID# | 000-UCT2E-00 |
| PW ID# | (PW) 4504 and 4510 |
| Date Signed | 2018-02-28T00:00:00 |
Conclusion: The State of New Jersey Department of Environmental Protection (Applicant) did not receive prior approval for a change in scope of work (SOW) before demolishing three buildings. In addition, the Applicant failed to demonstrate that two of the buildings were eligible for replacement.
Summary Paragraph
The Applicant requested Public Assistance (PA) to repair three buildings after Hurricane Sandy. FEMA prepared PW 4510 to document damage and repairs to a Concession Building, and PW 4504 to document damage and replace a Maintenance Office and repair an Office/Toilet building. The Applicant’s consultants prepared cost estimates for the repair and replacement of the three buildings. FEMA used agency cost codes that reflected lower repair estimates and found the consultants’ cost estimates to contained work for items that were not damaged by the disaster. The Applicant requested an improved project designation from the State of New Jersey Office of Emergency Management (Grantee) to demolish the facilities and consolidate the three buildings into one. FEMA requested a detailed SOW for the improved project in October 2014. However, prior to obtaining approval, the Applicant demolished the buildings in May 2015. In June 2015, the Applicant submitted a request for a SOW change, and designations of an improved and an alternate project for the three buildings. FEMA denied the request as untimely because applicants must file an appeal within 60 days of a PA determination and the Applicant did not receive approval to change the SOW prior to demolition of the facilities. The Applicant appealed and argued that FEMA was afforded the opportunity to reevaluate the facilities before they were demolished. The FEMA Region II Regional Administrator denied the appeal, and determined that the SOW was an untimely appeal. He also found that FEMA determined the facilities were not eligible for replacement, and after the Applicant demolished the buildings, it deprived FEMA of the opportunity to re-evaluate damages. The Applicant again appeals and states that damage was missing from the PWs, which also would have made the facilities eligible for replacement.
Authorities and Second Appeals
- Stafford Act § 406(e)(1), 423.
- 44 C.F.R. §§ 9.11(d)(3), 13.30, 60.3(c)(3); 206.206(c)(1), 206.223(a), 206.226(d) and (f).
- PA Guide, at 36-38, 79, 140.
- DAP 9524.4, at 2-3.
- DAP 9525.5, at 1.
- DAP 9527.4, at 3.
- Pulaski Cty., FEMA-4144-DR-MO, at 6.
- PA Program Appeal Procedures, at 11.
Headnotes
- Pursuant to 44 C.F.R. § 13.30(d)(1), applicants or grantees must obtain prior approval from FEMA whenever there is a revision of the scope of a project. Additionally, 44 C.F.R. § 13.30(c)(2) requires applicants and grantees to obtain prior written approval from FEMA for any budget revision that would require additional funds.
- Per the PA Guide, when an applicant discovers additional work necessary to complete a project, a SOW change request should be made “as soon as possible so that damages can be inspected before they are covered up or repaired”
- The Applicant failed to obtain prior approval from FEMA before the demolition.
- 44 CFR § 206.206 (c) allows Applicants 60 days after the date which the Applicant is notified of a decision to appeal it. FEMA’s procedures require the agency to provide notice of appeal rights to an applicant in an eligibility determination.
- FEMA did not notify the Applicant of its appeal rights in the PWs. The Applicant’s request to change the SOW was not an appeal.
- Upgrades required by a code or standard are eligible for funding only if all five elements of 44 C.F.R. § 206.226(d) are satisfied.
- The Applicant claimed codes and standards did not meet all five prongs identified in 44 CFR § 206.226(d) or that structural repairs affecting ADA accessibility of the building were required.
Appeal Letter
Mr. Jeffrey Mottley
Assistant Deputy State Director
State of New Jersey Office of Emergency Management
PO Box 7086 River Road
West Trenton, NJ 08628-0068
Re: Second Appeal –Department of Environmental Protection, PA ID 000-UCT2E-00, FEMA-4086-DR-NJ
Project Worksheets (PW) 4504 and 4510 – Appeal Timeliness, Scope of Work, 50 Percent Rule, Codes & Standards
Dear Mr. Mottley,
This is in response to a letter from your office dated November 21, 2016, which transmitted the referenced second appeal on behalf of the State of New Jersey Department of Environmental Protection (Applicant). The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of the change in scope of work (SOW) for PWs 4504 and 4510.
As explained in the enclosed analysis, I have found that the Applicant’s request for a change in the SOW was not an untimely appeal. However, the Applicant failed to obtain approval to change the SOW before it demolished the facilities. In addition, the Applicant did not demonstrate that the Office/Toilet Building and Concession Building were eligible for replacement. Finally, the Applicant did not demonstrate that any codes or standards would trigger floodplain management compliance, nor did it prove that structural repairs required the Americans with Disabilities Act accessibility modifications to occur in conjunction with the eligible SOW for the Office/Toilet Building. Therefore, this appeal is denied.
Please inform the Applicant of my decision. This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.
Sincerely,
/S/
Christopher Logan
Director
Public Assistance Division
Enclosure
cc: Thomas Von Essen
Regional Administrator
FEMA Region II
Appeal Analysis
Background
During the incident period from October 26, 2012, to November 8, 2012, Hurricane Sandy’s high and straight line-winds, tidal surge and flooding caused damage in the State of New Jersey.
On November 14, 2012, the New Jersey Department of Environmental Protection (Applicant) requested Public Assistance (PA) for repair costs to address damages to its public buildings at the Leonardo State Marina. The three buildings damaged included a Concession Building, an Office/Toilet Building, and a Maintenance Office Building (Facilities).
The Applicant hired Ronald A. Sebring Associates, LLC (Sebring) to complete a damage assessment and report (Sebring Report) for the Facilities.[1] Using the 2013 R.S. Means Construction, Inc. Edition (2013 R.S. Means Edition) data, the Sebring Report estimated:[2]
- The Concessions Building would cost $143,120.00 to repair and $166,118.00 to replace
- The Office/Toilet Building would cost $283,543.16 to repair and $375,000.00 to replace
- The Maintenance Office Building would cost $309,625 to repair and $377,295 to replace
FEMA inspected the Facilities and created Project Worksheets (PW) 4504 and 4510 to capture the damage. FEMA also used the 2013 R.S. Means Edition to generate cost estimates and evaluated whether the Facilities should be repaired or replaced:
- The Office/Toilet Building[5] would cost $50,764.44 to repair. FEMA accepted the Applicant’s estimate of $375,000.00 for the replacement cost, and determined the cost to repair was less than 50 percent of the cost to replace the facility, which was therefore not eligible for replacement ($50,764.44/$375,000 = 13.5 percent). In addition, FEMA determined that the Applicant’s estimate of the Office/Toilet Building included replacement of items that were not damaged by Hurricane Sandy, such as replacement of exterior simulated brick facades, demolishing and replacing the roof, and repairing the second floor.
- The Maintenance Office Building cost to repair was $104,405.00 and $163,875.00 to replace. Since the repair cost was greater than 50 percent of the replacement cost, the facility was eligible for replacement.
On October 28, 2013, the Applicant requested an improved project from the State of New Jersey Office of Emergency Management (Grantee). The improved project proposed to demolish the Office/Toilet Building, Concession Building, and Maintenance Office and consolidate the three buildings into a single new structure. On August 11, 2014, the Grantee forwarded the Applicant’s design plans to FEMA. FEMA responded on October 6, 2014, noting that the demolition and associated costs were not included in the scope of work (SOW), and requested a detailed SOW based on the design drawings, with a cost estimate.[6]
On May 4, 2015, the Applicant demolished the Concession Building and Office/Toilet Building.[7] On June 25, 2015, the Grantee transmitted the Applicant’s request to FEMA for: (1) a SOW change for PW 4510 to reflect additional interior and exterior building damage, including code and standard upgrades that would trigger replacement of the Concession Building and Office/Toilet Building; (2) an improved project designation to consolidate the functions of the Office/Toilet and other Facilities into a single new building; and (3) an alternate project designation for the Concession Building that would apply funding toward construction of the new consolidated services building.[8]
FEMA prepared and sent the Applicant a Determination Memorandum that denied the Applicant’s request to revise the damage description, SOW, and costs to repair the Concession Building and Office/Toilet Building. FEMA found the request to revise the SOW was untimely as applicants must file an appeal within 60 days of a PA determination. PW 4510 was awarded October 4, 2013, and the Applicant did not request a revision until June 25, 2015. FEMA also noted that the Applicant demolished both structures before FEMA could reevaluate the damage pursuant to FEMA’s 50 Percent Rule. FEMA approved additional funding associated with eligible design/engineering and project management fees, as well as the Applicant’s alternate and improved project requests. The Applicant received FEMA’s Determination Memorandum on September 29, 2015.
First Appeal
The Applicant appealed FEMA’s determination on October 6, 2015, which the Grantee supported and forwarded to FEMA in a letter dated November 4, 2015. The Applicant argued that FEMA was afforded the opportunity to reevaluate the Facilities before they were demolished, evidenced by at least six site visits over a period of three years. The Applicant stated in its attached memorandum that it requested approval for the improved/alternate project in September 2013 and waited almost 20 months before the buildings were razed.
The Applicant claimed that the PWs left out several eligible items of work for the Concession Building, described in the Sebring Report, and believed that including these items in the repair costs estimate would have exceeded 50 percent of the replacement costs. Moreover, the Applicant noted that if the Office/Toilet Building were to be replaced, PA funding would have been available to comply with current codes and standards, such as Americans with Disabilities Act (ADA) and raising the buildings above flood levels.[9]
FEMA denied the appeal in a letter dated September 13, 2016. The FEMA Region II Regional Administrator (RA) determined that the appeal was untimely, as the PWs were prepared in July 2013, and PW 4510 was signed on July 23, 2013. The RA stated that the award of the PWs in August and October 2013 constitutes the required notice to the Applicant regarding eligibility and amount of assistance awarded. The Applicant had 60 days to appeal that action, but did not formally request a revision of the SOW until June, 2015. The RA also determined the appeal failed on the substantive issues, noting that the PWs reflected FEMA’s decision to reject several items of damage and cost assumptions in the Sebring Report, as well as noting that the Office/Toilet and Concession Buildings were not eligible for replacement.
In addition, the RA determined that the Applicant incorrectly included costs from the Sebring Report associated with codes and standards upgrades, in order to support its assertion that the Concession Building was eligible for replacement (because including those additional costs for the repair would make the total cost to repair the building more than 50 percent of the cost to replace it). However, in determining whether repair costs total more than 50 percent of the replacement costs, FEMA will not include codes and standards upgrades to undamaged elements, design work, demolition, site work, or applicable project management costs. Moreover, the RA found that claimed costs associated with repair of the Concession Building’s deck and canopy were not considered part of the structure when determining whether to fund repair or replacement of the structure. With respect to the Applicant’s arguments concerning the Office/Toilet Building, the Sebring Report assumed elevation of the whole building was necessary, but the RA noted this is only true if the building was substantially damaged. Since FEMA found the building was repairable, the costs associated with floodplain compliance work were properly denied. Finally, the RA determined that the Applicant had not demonstrated that the structural repairs affecting ADA accessibility or usability of the Office/Toilet Building were required to be completed in conjunction with the approved eligible SOW.
Second Appeal
The Applicant submitted its second appeal on November 14, 2016. The appeal reiterates that the Applicant informed FEMA starting in October 2013 that there were missing damaged items from PW 4504 and 4510. The Applicant clarifies that it was appealing the Determination Memorandum dated July 9, 2015, which was not received until September 29, 2015. The Applicant contends that it did not deprive FEMA of the opportunity to reevaluate damage, and FEMA has been aware of the Applicant’s intent to demolish the structures since October 2013. In addition, the Applicant believes that the Sebring Report provided a valid calculation to justify replacement of the Facilities. Specifically, the Applicant maintains that the cost to repair the deck and canopy at the Concessions Building should have been included with the numerator portion of the 50 Percent Rule calculation. The decking roof structure and deck were affixed to a permanent structure, and should therefore be considered part of the building. The Applicant also argues that damaged concession equipment was improperly left out of the SOW, and such items should have been included in the repair versus replacement calculation.
The Applicant cites to a New Jersey building code[10] as evidence that it needed to expand the bathrooms in the Office/Toilet Building in accordance with the ADA. Furthermore, the Applicant notes that in order to obtain a permit to repair or replace the Office/Toilet Building, or to obtain a Certificate of Occupancy (CO), the building codes require ADA compliance. In addition, the Applicant claims it needed to elevate of the Office/Toilet Building for floodplain management. The Grantee transmitted the Applicant’s second appeal to FEMA along with a letter of support dated November 21, 2016.
Discussion
Appeal Timeliness/Change in Scope of Work Request
Pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) § 406, FEMA may fund the cost of repairing, restoring, reconstructing, or replacing an eligible facility on the basis of the design, function and capacity of the facility as it existed immediately prior to the major disaster.[11] However, when an applicant changes the SOW or needs additional funding, it must obtain the prior approval of FEMA.[12] In these cases, an applicant should notify the grantee as soon as possible and should not assume that unapproved costs can be reported at the end of the project and that it will receive the funds automatically.[13] Moreover, the timing of the request should be such that the damaged element can be inspected before it is covered up or repaired.[14]
In addition, the Stafford Act provides that “[a]ny decision regarding eligibility for, from, or amount of assistance under this title may be appealed within 60 days after the date on which the applicant for such assistance is notified of the award or denial of award of such assistance.”[15] FEMA’s implementing regulations require that applicants file an appeal with the grantee within 60 days after receipt of notice of the action that is to be appealed.[16] The Recovery Directorate Manual, Public Assistance Program Appeal Procedures (Appeals Manual), requires that upon issuance of a formal eligibility determination, FEMA must provide applicants notice of their appeal rights, and in doing so, use specific language referencing the format, content, and timeframe requirements outlined in Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.206. This language includes an instruction that “[i]f the applicant elects to appeal, the first appeal must: (1) contain documented justification supporting the appeal position; (2) specify the monetary figure in dispute; and (3) cite the provisions in federal law or policy with which the applicant, subgrantee, or grantee believes the determination was inconsistent.”[17] The Appeals Manual further specifies the inclusion of language outlining the routing of the appeal to the appropriate FEMA regional administrator through the grantee within 60 days of receiving the eligibility determination.[18]
Here, FEMA inspected and captured the damages to the Facilities in PWs 4504 and 4510. FEMA’s cost estimates differed from the Applicant’s, but nevertheless FEMA recognized the Applicant’s improved project request to demolish the Facilities and consolidate the buildings into a single structure. FEMA informed the Applicant that demolition and associated costs were not included in the SOW, and requested a detailed SOW from the Applicant with a cost estimate in October 2014. However, the Applicant failed to provide the detailed SOW and demolished the Concession and Office/Toilet Buildings without receiving approval from FEMA. The Applicant should have received approval from FEMA for the requested change in SOW and for the demolition, both of which were necessary before proceeding. Moreover, by demolishing the building, FEMA cannot inspect the old buildings to verify the Applicant’s claims for errors and omissions in the original SOW. Thus, the work and its associated cost in the Applicant’s SOW change request are ineligible for PA funding.
While the Applicant failed to obtain approval for the change of SOW from FEMA, it did, however, timely appeal FEMA’s determinations. The Applicant was not advised of its appeal rights when PWs 4510 and 4504 were awarded, nor at any time over the following two years while the Applicant was actively communicating with FEMA about the Applicant’s intentions to demolish and consolidate the Facilities. FEMA then issued a Determination Memorandum after receiving the Applicant’s request for the SOW change, improved/alternate project designations, which was received by the Applicant on September 29, 2015 and submitted its appeal to the Grantee on October 6, 2015, within the 60 day timeframe. While the appeal was timely, it nonetheless fails for substantive issues as noted above, and also below.
50 Percent Rule
According to FEMA regulations and policy, a facility is considered repairable when disaster damages do not exceed 50 percent of the cost of replacing the facility to its predisaster condition.[19] The costs associated with whole building upgrades, such as elevating the facilities, are not included in the repair cost (numerator) for FEMA’s 50 Percent Rule calculation.[20] The numerator in the calculation is limited to the cost to repair damaged components only.[21] It does not include code and standard upgrades to non-damaged elements, demolition, site work, or applicable project management costs.[22]
The Applicant claims that FEMA’s calculation of the 50 Percent Rule for the Concession Building and Office/Toilet Building did not account for certain omitted costs (such as design permit costs, project management costs, concession equipment costs, repair costs for the deck and canopy, or costs to update the building to current codes and standards). However, while FEMA correctly complied with policy by excluding certain work items, such as elevation, demolition, project management, and content costs from its 50 Percent Rule analysis, FEMA is unable to determine or verify that certain damaged items were incorrectly omitted because the Applicant demolished the facilities. Accordingly, the buildings are not eligible for replacement.
Codes and Standards
For the costs of Federal, state, and local repair or replacement standards which change the predisaster construction of a facility to be eligible, the standards must: (1) apply to the type of repair or restoration required; (2) be appropriate to the predisaster use of the facility; (3) be 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; and (5) must have been enforced during the time of the disaster.[23] FEMA has the authority to determine which repairs, code-mandated or otherwise, are eligible for assistance, and generally does not fund code-mandated work that does not meet all five criteria, regardless of whether the work is needed to obtain a building, occupancy, environmental, or other permit.[24] For a code or standard to be eligible, it must contain objective, specific design criteria, and may not offer only general guidance or recommendations.[25]
In its appeal the codes and standards that the Applicant asserts are triggered by the disaster damage include asbestos abatement, elevation above flood elevation, and ADA compliance. The Applicant failed to identify any codes or standards requiring asbestos abatement, and therefore the Applicant has not demonstrated the associated costs would be eligible. The other codes and standards are discussed below.
- Floodplain Management
The Applicant claims that the Concession Building’s and Office/Toilet Building’s flood elevation is below current flood elevation requirements. Though floodplain ordinances are treated as a code or standard for eligibility purposes, they are not considered in the cost to repair a structure under FEMA’s 50 Percent Rule.[26] Therefore, any potential cost to elevate the two buildings would not factor into the determination to replace the buildings.
While the cost to elevate buildings may be considered eligible, the Applicant must demonstrate that the five criteria outlined above are met. Unfortunately, here the Applicant fails to cite to any code or standard which would have required the elevation of the buildings - that was in writing, in effect, and uniformly applied and enforced in accordance with 44 C.F.R. § 206.226(d).
Nonetheless, FEMA’s National Flood Insurance Program (NFIP) and Executive Order 11988 created minimum standards for communities to adhere to if a project involves new construction or involves work that is considered to be a substantial improvement (such as to repair a substantially damaged structure), as outlined in 44 C.F.R. Parts 9.11 and 60.3. In part, the regulations require that new construction or buildings that are substantially damaged (and where substantial improvements are made), be elevated to the level of the base flood or flood proofed to the 100 year flood level.[27] To meet this requirement, the Applicant must have a letter from the local floodplain administrator which determines that the buildings were substantially damaged or the Applicant must otherwise show that the buildings were substantially damaged as defined in the NFIP regulations.[28] The Applicant has not submitted any documentation demonstrating such a determination was made by its local floodplain administrator nor any other documentation to show the buildings were substantially damaged. Therefore the requirement to comply with floodplain management was not triggered.
- Americans with Disabilities Access Requirements
The ADA applies to restoration of damaged facilities under the Stafford Act, and requires that any building or facility that is accessible to the public or any residence or workplace containing persons with disabilities be accessible to and useable by persons with disabilities.[29] FEMA has the authority and responsibility to determine which repairs, code-mandated or otherwise, are eligible for assistance.[30] FEMA generally does not fund code-mandated work that does not meet all five prongs of 44 C.F.R. § 206.226(d), regardless of whether the work is needed to obtain a building, occupancy, or environmental permit.[31] An ADA relevant repair must affect both the structural element of the facility and affect the usability or accessibility of the facility.[32] Here, the SOW to repair the Office/Toilet Building concerns changes to mechanical and electric systems, replacing shower stalls and partitions, floor and ceiling tiles, and replacing contents.
The Applicant argues in order to obtain a building permit and CO, it needed to comply with ADA requirements to expand the bathroom and shower area. Specifically, the Applicant contends that the Office/Toilet Building was built in 1940, and the shower and bathroom areas did not contain enough square footage, or barrier free area, to allow for ADA compliance. The Applicant argues that the NJ building code triggered ADA compliance in that no work can be taken that diminishes accessibility below that which is required by the Barrier Free Sub code and the bathrooms did not contain enough square footage, or barrier free area to allow for ADA compliance.[33]
The Applicant demolished the buildings and as such, FEMA was unable to re-evaluate the building and estimate costs for ADA compliance. Furthermore, the Applicant requested ADA upgrades in order to obtain a CO and a building permit and those conditions, alone, without meeting the five prongs of 206.226(d), is an insufficient basis for FEMA to fund the work. The Applicant did not demonstrate that the first prong of 44 C.F.R. § 206.226(d) was met, because it failed to show ADA compliance applied to the repair work in the SOW (i.e., that expanding the bathrooms applied to the approved SOW to repair the mechanical and electric systems, replacing shower stalls and partitions, floor and ceiling tiles, and replacing contents). Accordingly, the requested ADA compliant work is not eligible for PA funding.
Conclusion
Although the Applicant’s first appeal was timely filed, the Applicant did not receive prior approval for a change in SOW before demolishing the Facilities. In addition, the Applicant did not demonstrate that the Office/Toilet Building or the Concession Building were eligible for replacement. Finally, the Applicant did not identify codes or standards that would trigger floodplain management compliance, nor did it prove that structural repairs required ADA accessibility modifications to occur in conjunction with the eligible SOW approved for the Office/Toilet Building repair. Accordingly, this appeal is denied.
[1] Flood Damage Assessment, Leonardo State Marina, Ronald A. Sebring Assocs., LLC, (Jan. 14, 2013) [hereinafter Sebring Report].
[2] Id. at 9-17.
[3] This figure includes the flood damage to the building only; an exterior deck and canopy, damaged by the disaster, were calculated as wind damage separately for $10,522.95 to replace.
[4] The SOW for PW 4510 noted that the Sebring Report used a one-story fast food restaurant for the premise of the project cost report of the Concessions Building, when FEMA found a one story convenience store model to be a more accurate representation of what existed.
[5] This building was originally labeled PW 4510 site 2; it was moved to PW 4504 to address the Applicant’s subsequent Improved Project request.
[6] Letter from Dir., N.J. Sandy Recovery Field Office, to Pub. Assistance Unit Head, State of N.J., at 1 (Oct. 6, 2014).
[7] Second Appeal Memorandum from Dir., Div. of Parks and Forestry, Dept.t of Envtl. Prot., at 4 (Nov. 14, 2016).
[8] Letter from Pub. Assistance Unit Head, State of N.J., Office of the Attorney Gen., Dept. of Law and Pub. Safety, to Sandy Recovery Officer, at 1 (June 25, 2015). The Applicant’s request was revised on July 30, 2015, to include costs associated with PW 4504, such as claimed omitted engineering services, design, and project management fees
[9] On March 29, 2016, FEMA transmitted a request for information (RFI) to the Grantee and Applicant in order to complete FEMA’s review of the appeal. The RFI asked the Applicant for any additional information to prove the appeal was timely, the approved SOW and estimated cost for PW 4510 did not reflect that which was necessary or reasonable to repair the facilities to pre-disaster condition, and that FEMA incorrectly calculated the 50 Percent Rule for the Concession Building. On April 8, 2016, the Grantee requested an additional 60 days to respond to the RFI, which FEMA approved. The Applicant submitted a response to the RFI on June 28, stating that since the Determination Memorandum was not received by the Applicant until September 29, 2015, the October 6, 2015 appeal was timely. The RFI response repeated the Applicant’s position that FEMA failed to include all eligible items in the PW, and applying the additional damages claimed would make the 50 Percent Rule applicable. The Applicant also included a comparison of costs that FEMA included in the PW versus what the Applicant provided and copies of the design documents and project cost analysis for the improved project.
[10] The N.J. Building Code the Applicant cites to is N.J.A.C. 5:23-6.7(c)(3) (stating in part, “[n]o work shall be undertaken that diminishes accessibility below that which is required by [the Barrier Free Sub code of the Uniform Construction, NJ N.J.A.C. 5:23-6.7”).
[11] The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988, Pub. L. No. 93-288, §§ 406(a)(1)(A), (e)(1)(A), 42 U.S.C. §§ 5172(a)(1)(A), (e)(1)(A) (2011); Public Assistance Guide, FEMA 322, at 79 (June 2007) [hereinafter PA Guide].
[12] Title 44 Code of Federal Regulations (44 C.F.R.) § 13.30(c)(2), (d)(1) (2012); PA Guide, at 140.
[13] PA Guide, at 140.
[14] Id.
[15] Stafford Act § 423.
[16] 44 C.F.R. § 206.206(c)(1).
[17] Recovery Directorate Manual, Public Assistance Program Appeal Procedures, Version 1, at 11 (July 26, 2013).
[18] Id.
[19] 44 C.F.R. § 206.226(f); Disaster Assistance Policy DAP 9524.4, Repair vs. Replacement of a Facility under 44 CFR § 206.226(f) [50 Percent Rule], at 2-3 (Mar. 25, 2009); PA Guide, at 36-38 (this calculation, commonly referred to as the “50 Percent Rule,” takes the repair cost and divides it by the replacement cost. If the quotient is more than 50%, then replacement of the facility is eligible for PA funding.).
[20] DAP 9524.4, at 2-3.
[21] Id; PA Guide, at 36-38.
[22] Id.
[23] 44 C.F.R. § 206.226(d).
[24] Disaster Assistance Policy DAP 9527.4, Construction Codes and Standards, at 3 (Feb. 5, 2008);
[25] FEMA Second Appeal Analysis, Pulaski Cty., FEMA-4144-DR-MO, at 6 (Aug. 7, 2017) (quoting and citing FEMA Second Appeal Analysis, City of Petaluma, FEMA-1628-DR-CA, at 4 (Aug. 13, 2012)).
[26] DAP 9524.4, at 2-3.
[27] 44 C.F.R. Pt. 9.11(d)(3)(i) and (iii), 60.3(c)(3).
[28] FEMA Substantial Improvement/Substantial Damage Desk Reference FEMA P-758, Section 4.3 “Making [Substantial Improvement/ Substantial Damage] Determinations” (May 2010).
[29] Disaster Assistance Policy DAP 9525.5, Americans with Disabilities Act (ADA) Access Requirements (2000), at 1 (Oct. 26, 2000).
[30] DAP 9527.4, at 3.
[31] Id.
[32] DAP 9525.5, at 1.
[33] N.J.A.C. 5:23-6.1[e] and N.J.A.C.5:23-6.7
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