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Second Appeal Brief
PA ID# 103-68473-00; Town of Southampton
PW ID# PW 3917; Beaches - Environmental Compliance
During the incident period from October 27, 2012 through November 8, 2012, storm surge, flooding, and wind caused by Hurricane Sandy inundated and damaged the Tiana Beach Recreation Area owned and operated by the Town of Southampton (Applicant). FEMA wrote Project Worksheet 3917 to address repairs to five structures damaged by storm conditions and wave action. FEMA determined that none of the facilities except for the wooden shed were covered under the existing facility exception to the Coastal Barrier Resources Act (CBRA) and are therefore not eligible for permanent work funding. Under the CBRA only existing facilities that were constructed prior to October 18, 1982, are eligible for federal assistance. FEMA obligated funding for the wooden shed in the amount of $7,761.98 and considered $237,194.43 to be ineligible repairs to the remaining structures. The Applicant filed a first appeal by letter dated October 28, 2016 opposing FEMA’s determination that the fixed dock and wood decking structures were ineligible. FEMA issued a first appeal decision on September 14, 2017, denying the Applicant’s appeal because the fixed dock and wood decking do not satisfy the existing facility exception of the CBRA, based on the photographs and other documents reviewed on appeal. The Applicant filed a second appeal via letter dated October 27, 2017 arguing that the structures in question were not new construction, rather they were structures that existed prior to 1982 that were renovated in 2005.
Authorities and Second Appeals
- Title 44 Code of Federal Regulations (C.F.R.) §§ 206.342(c), 206.347(c)(5).
- Public Assistance Guide, FEMA 322, at 133-134.
- Existing roads, structures, or facilities that are consistent with the purposes of CBRA may be eligible for permanent work funding. An existing facility is defined as a publicly owned or operated facility on which construction started on or before October 18, 1982. For any unit added to the Coastal Barrier Resource System (CBRS) by amendment to the CBRA, the enactment date of such amendment is substituted for October 18, 1982.
- Tiana Beach was added to the CBRS on November 16, 1990.
- The Applicant has not substantiated that the structures in question were present prior to November 16, 1990.
- If a facility has been substantially improved or expanded since the date of enactment, it is not an existing facility.
- The Applicant submitted design plans which indicated that the existing structure was expanded in 2005.
Conclusion (Appeal decision issued 5/30/2019)
Due to the expansion in 2005, the fixed dock and wood decking are not existing facilities as described in the CBRA and are not eligible for federal disaster assistance in the amount of $155,384.58. Therefore, the appeal is denied.