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Second Appeal Summary
PA ID# 035-UALRK-00; Hammock Dunes Owners' Association, Inc.
ID# RPA; Private Nonprofit
Conclusion: Hammock Dunes Owners’ Association, Inc. (Applicant) is not an eligible Private Nonprofit (PNP) because it is a property owners’ association and its dunes are neither a utility nor an emergency facility. In addition, the dunes are not a critical facility nor an essential governmental type facility. Accordingly, the appeal is denied.
On October 7, 2016, Hurricane Matthew damaged 2.3 miles of engineered beach and dunes owned by the Applicant, and located in Flagler County, Florida. The Applicant submitted a RPA to FEMA for the restoration of its dunes, claiming the dunes provided health and safety services of a governmental nature. FEMA found the Applicant ineligible for Public Assistance (PA) because its dunes did not meet the definition of a public facility or critical facility, nor did they perform a critical function under the PA program. The Applicant appealed and argued the engineered dunes (located on beaches open to the public) protected public roads and utilities, and the restoration was necessary to reduce an immediate threat. The FEMA Region IV Regional Administrator denied the appeal, finding that though the Applicant is a PNP, it did not own or maintain a facility that directly provided a critical or essential government-type service to the general public, as outlined in 44 C.F.R. § 206.221(e). On second appeal, he Applicant again argues its dunes were designed to perform permanent flood protection for Florida’s citizens and important natural resources, and also provided a direct service to the public by protecting the public utilities and other critical services.
Authorities and Second Appeals
- Stafford Act § 406.
- 44 C.F.R. §§ 206.221(e), 206.222(b).
- PAPPG, at 11-14, 43, 59-60, 155.
- Duxbury Beach Reservation, Inc., FEMA-4110-DR-MA, at 4, 5.
- Neringa Inc., FEMA-4022-DR-VT, at 2.
- PNP applicant and facility eligibility determinations are intertwined, meaning a PNP is only an eligible applicant if it has an eligible facility. According to Stafford Act § 406, as implemented by 44 C.F.R. § 206.221(e), FEMA may reimburse costs associated with the repair, restoration, replacement, or reconstruction of an eligible PNP facility that provides critical services or non-critical services after certain conditions are met.
- A critical service is defined as one that provides education, utility, emergency, or medical service.
- A facility that provides non-critical, but essential governmental service, includes community centers, rehabilitation programs, assisted living, libraries, etc.
- FEMA policy states that property owner associations with facilities such as roads and recreational facilities (except those facilities that could be classified as utilities or emergency facilities), and recreation are PNP ineligible services.
- The Applicant is a property owners’ association, and the dunes in this instance are neither a utility nor an emergency facility.
- In addition, the dunes do not provide a critical service nor a non-critical, but essential governmental type service.