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Commercial Property Demolitions

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster1603-DR-LA
ApplicantSt. Bernard Parish
Appeal TypeSecond
PA ID#087-99087-00
PW ID#19466
Date Signed2013-08-09T00:00:00

Citation:   FEMA-1603-DR-LA, St. Bernard Parish, Commercial Property Demolitions, Project Worksheet (PW) 19466

Cross- Reference:   Emergency Protective Measures; Emergency Work

Summary:   St. Bernard Parish (Applicant) requested Public Assistance funding for the demolition of 290 privately-owned commercial buildings damaged during Hurricane Katrina.  FEMA inspected the properties and found 184 of the buildings to be in immediate danger of collapse and posing a threat to public health and safety.  FEMA approved funding for these structures as part of PWs 3070 and 15804, which also provided funding for the demolition of residential structures.  FEMA prepared PW 19466 to document the Applicant’s request to demolish the remaining 106 private commercial buildings, but determined the buildings did not meet the criteria of posing an immediate threat to life, public health and safety and obligated PW 19466 for zero dollars.  In a first appeal letter, the Applicant agreed that 84 of the 106 properties were not eligible for Public Assistance funding.  However, the Applicant claimed that the demolition and debris removal of the remaining 22 structures were eligible at a cost of approximately $1 million.  The Applicant argued that the structures continued to present an immediate threat to public health and safety, and demolition of the buildings was essential to the economic recovery of the major thoroughfare into St. Bernard Parish and the surrounding community.  The Regional Administrator denied the first appeal stating that after several inspections, FEMA had determined that none of the 22 buildings experienced a loss of structural integrity as a result of the disaster and therefore, did not qaulify as an immediate threat to life, public health and safety.  The Regional Administrator explained that denial for requested funding of the demolition did not constitute a hindrance to the economic recovery of the community as the majority of the 22 buildings were demolished more than 4 years after the disaster.  The Applicant argues in the second appeal that FEMA’s applicable policies and guidance did not require that a damaged building be structurally unsound in order to be eligible for demolition.  One property was found by FEMA to be eligible for demolition, but was incorrectly included on PW 19466.

Issues:  1.) Did the 21 commercial buildings pose an immediate threat to public health and safety? 

               2.) Is the demolition of the 21 commercial buildings essential to the economic recovery of the community?

Finding:  1.) No. 

                 2.) No.

Rationale:  Stafford Act, Section 403, Essential Assistance; 44 CFR §206.225, Emergency work; 44 CFR §206.224(a), Debris removal, Public interest; R&R Policy 9523.4, Demolition of Private and Public Facilities, (11/09/99); PA Debris Management Guide, FEMA 325 April 1999

Appeal Letter

August 9, 2013

Kevin Davis
Director
Governor’s Office of Homeland Security and Emergency Preparedness
7667 Independence Boulevard
Baton Rouge, LA 70806

Re:  Second Appeal–St. Bernard Parish, PA ID 087-99087-00, Commercial Property Demolitions, FEMA-1603-DR-LA, Project Worksheet (PW) 19466

Dear Mr. Davis:

This is in response to a letter from your office dated August 24, 2012, which transmitted the referenced second appeal on behalf of St. Bernard Parish (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny $400,000 in funding for the demolition of 22 commercial properties.

The Applicant maintains that the damaged structures continue to present an immediate threat to public health and safety, and that demolition of the commercial properties is essential to the economic recovery of the major thoroughfare into St. Bernard Parish and the surrounding community.  I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision in the first appeal is consistent with Public Assistance regulations and policy.  Based on the information provided with the appeal, the demolition of the structures in question is not eligible for Public Assistance funding. 

Accordingly, I am denying the second appeal.  However, due to an administrative error, I am approving the costs associated with the demolition and the resulting debris removal for

436 De La Ronde Drive.  By copy of this letter, I am requesting that the Regional Administrator take appropriate action to implement this determination.  Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Elizabeth Zimmerman
Deputy Associate Administrator
Office of Response and Recovery

Enclosure

cc:   George A. Robinson
        Regional Administrator
        FEMA Region VI


 

Appeal Analysis

Background

In 2005, Hurricane Katrina caused extensive damage throughout Louisiana.  St. Bernard Parish (Applicant) requested Public Assistance funding for the demolition of 290 privately-owned commercial buildings.  FEMA inspected the sites and found 184 of the structures to be in immediate danger of collapse.  FEMA funding for the demolition of these buildings was included in PW’s 3070 and 15804, which also provide funding for the demolition of private residential structures.  FEMA found that the remaining 106 structures had undergone renovations, were reoccupied and in use, were unoccupied with no visible signs of structural integrity loss, or had already been demolished.  As a result, FEMA determined that the 106 commercial buildings did not pose an immediate threat to life, public health and safety, and were not eligible for demolition.  FEMA documented the Applicant’s request for funding for the 106 buildings on PW 19466, and on March 17, 2011, obligated the PW for zero dollars.

First Appeal

In its first appeal dated September 6, 2011, the Applicant conceded that 84 of the 106 commercial properties were not eligible for Public Assistance funding.  However, the Applicant claimed that demolition and debris removal for 22 structures were eligible at a cost of approximately $1 million.  The Applicant argued that FEMA had not considered that the demolition of these commercial properties was essential to the economic recovery of the major thoroughfare into St. Bernard Parish and its surrounding community.  In addition, the Applicant claimed that the structures continued to present an immediate threat to public health and safety.  The support documentation submitted with the first appeal included copies of the Applicant’s damage assessment reports, photographs of damaged buildings, copies of demolition inspection reports, and copies of FEMA Demo Eligibility Reviews.

On March 23, 2012, the Regional Administrator denied the first appeal stating that none of the 22 commercial buildings met FEMA’s criteria for eliminating immediate threats to life, public health and safety pursuant to Title 44 of the Code of Federal Regulations (44 CFR) §206.224(a)(1), Debris removal, Public interest.  For demolition of private structures to be eligible for FEMA funding, the structure must be so damaged or structurally unsafe that partial or complete collapse is imminent.  The Regional Administrator concurred with FEMA’s initial eligibility determination that the 22 buildings were upright, with exterior walls and roofs intact, and that the structures showed no visible signs of loss of structural integrity.

In response to the Applicant’s argument that demolition of the buildings were necessary for the economic recovery of the surrounding community, the Regional Administrator cited FEMA Response and Recovery Policy 9523.4, Demolition of Private and Public Facilities, dated

November 9, 1999, “Generally, the removal of debris is in the public interest only when it is necessary to ensure economic recovery of the affected community to the benefit of the community at large.”  The Regional Administrator explained that the intent of FEMA eligibility is to allow the removal of debris in the immediate aftermath of the disaster to enable the community at large, not just areas along transportation routes, to be capable of functioning adequately.  The Regional Administrator further explained that the denial to reimburse cost for the demolition of the 22 buildings did not hinder the economic recovery of the community at large because the majority of the 22 buildings identified by the Applicant were demolished more than four years after the disaster.

Second Appeal

The Applicant submitted a second appeal on June 25, 2012, and reiterates that the structures posed an immediate threat to life, public health and safety, and that demolition is necessary for the economic recovery of the surrounding community.  The Applicant claims that FEMA previously approved demolition of the buildings; that two residential properties were improperly categorized as commercial; that several structures are so damaged or structurally unsafe that partial or complete collapse is imminent; and that several structures do not face imminent collapse, but present an immediate threat to life, health or public safety.  The Applicant reduced the requested cost for demolition and debris removal from $1 million to $400,000.  The support documentation includes copies of letters to FEMA from the St. Bernard Parish Government requesting continued FEMA funding to demolish remaining Hurricanes Katrina and Rita-damaged structures.

On July 30, 2012, the Applicant submitted a second appeal addendum directing FEMA to the Public Assistance Debris Management Guide, FEMA 325 April 1999, Chapter 6, Special Demolition and Debris Removal Situations (page 35).  The Applicant states that unlike FEMA’s 2007 guidance, which the Regional Administrator cited in the response to the first appeal, the guidance applicable to FEMA-1603-DR-LA did not require that the disaster damage compromise the structural integrity of the building, or that a structure be unstable prior to demolition.  The State of Louisiana Governor’s Office of Homeland Security and Emergency Preparedness transmitted the second appeal to FEMA on August 24, 2012.

Discussion

Section 403(a)(3)(E), Essential Assistance, of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), provides for the demolition of unsafe structures that endanger the public.  FEMA has approved and obligated funding for the demolition of private structures in St. Bernard Parish after Hurricane Katrina, including 184 of the 290 privately-owned commercial buildings. 

The Applicant references Public Assistance Debris Management Guide, FEMA 325 April 1999, Chapter 6, Special Demolition and Debris Removal Situations as the applicable guidance on demolition of the commercial structures and points out that it does not contain a requirement that damaged structures be unsound in order to be eligible for demolition.  However, the section titled FEMA Building Demolition Criteria on pages 8 and 9 of Chapter 1 addresses eligible work criteria for unsafe structures, stating that “[a]n inspection team may inspect each facility to make a determination on the structural integrity [of a facility, and those] structures that are in danger of collapse, thus representing an immediate threat to life and safety, are documented and recommended as eligible for demolition.”  Chapter 1 further addresses the structural integrity of damaged buildings in the subsection, Attractive Nuisance, which states that “private” structures that are found to be structurally sound but require extensive repair are normally not eligible for demolition… [and] Eligible work under this category is limited to securing the perimeter of the structure to prevent entrance into the structure and may include fencing, where necessary.”  Thus, the guidance that was applicable to declaration FEMA-1603-DR-LA clearly recognizes that structures that posed an immediate threat to life, public health and safety by virtue of a danger of immediate collapse are generally eligible for demolition, while structurally sound buildings are eligible for mechanisms to restrict access in order to address threats to life, public health and safety.

Additionally, after several extended deadlines to complete emergency work under Categories A and B for Hurricanes Katrina, FEMA granted a final extension deadline for debris removal and demolition activities of August 29, 2008, for structures that posed an immediate threat to public health and safety.

In the second appeal, the Applicant identifies 22 commercial buildings that it maintains are eligible for demolition and debris removal.  The majority of the buildings were demolished more than four years after the disaster, and subsequent to the August 29, 2008, extended deadline for debris removal and demolition activities.  Below, are responses to each of the groupings of properties provided by the Applicant.

  1. Properties that FEMA previously approved for demolition

The Applicant states that FEMA approved the demolition and removal of associated debris from these [4] specific properties.  However, there are conflicting determinations by FEMA on these properties.  The specific properties are located at: 1234 Mehle Avenue; 1900 Mehle Avenue; 1932 Todd Drive; 436 De La Ronde Drive. 

Three buildings are ineligible for demolition: 1234 Mehle Avenue; 1900 Mehle Avenue; and 1932 Todd Drive.  The Applicant did not provide sufficient documentation to support its claim that it received FEMA approval prior to demolishing the buildings, and that the structures were unsafe and endangered the public.  The buildings were upright with the walls and roof intact and there was no visible sign of structural integrity loss prior to demolition.  It should be noted that the Todd Drive property was repaired by the owner.  FEMA also approved and reimbursed the Applicant for costs related to the demolition of a shed that was at the rear of 1234 Mehle Avenue property.

With regard to the 436 De La Ronde Drive property, review of the appeal documentation revealed a FEMA administrative oversight.  The demolition and debris removal costs for this property are eligible for Public Assistance funding.

  1. Properties are not commercial, but are residential properties

The Applicant states that two residential properties were improperly categorized as commercial.  The demolition of residential properties throughout St. Bernard Parish had been widely accepted as eligible work by FEMA.  The specific properties are: 2304(½) Farmsite Road and 3121 E. St. Bernard Highway.

Residential properties are held to the same standard for eligibility of demolition as private commercial properties.  FEMA determined that the buildings were upright with the walls and the roofs intact and there was no visible sign of loss of structural integrity.  The Applicant did not provide sufficient documentation to support its claim that it received FEMA approval prior to demolishing the structures and that the structures were unsafe and endangered the public.

  1. Properties so damaged or structurally unsafe that partial or complete collapse is imminent

The Applicant states that the demolition and removal of associated demolition debris from eight properties are eligible work due to the fact that the properties are so damaged or structurally unsafe that partial or complete collapse is imminent.  The properties are as follows: 3608 DeLaRonde Drive; 521 Oak Tree Lane; 6600 St. Claude Avenue; 6612/6614 St. Claude Avenue; 2120 Pakenham Drive – not demolished; 307 W. Judge Perez Drive – not demolished; 4908 E. Judge Perez Drive (shed only) – not demolished; 8901-8911 W. Judge Perez Drive – not demolished.

Private structures that are found to be structurally sound but require extensive repair are normally not eligible for demolition.  FEMA determined that the eight properties were upright with the walls and the roofs intact and there was no visible sign of loss of structural integrity.  The Applicant did not provide sufficient documentation to support its claim that partial or complete collapse of the buildings was imminent.  The Applicant did not comply with FEMA demolition eligibility criteria.

  1. Properties not faced with imminent collapse, but present an immediate threat to life, health or safety of the public.

The Applicant states that the demolitions and removal of associated demolition debris are eligible work for the following  properties: 101 W. St. Bernard Highway, 1101 Friscoville; 321 W. Urghart; 8321 W. Judge Perez Drive; 1055/1057 Lebeau Avenue – not demolished; 404/408 Palm Avenue; 330 W. Genie Street – not demolished; 4200-4300 E. Judge Perez Drive.

Private structures that are found to be structurally sound but require extensive repair are normally not eligible for demolition.  FEMA determined that the eight properties were upright with the walls and the roofs intact and there was no visible sign of structural integrity loss.  The Applicant did not provide sufficient documentation to support its claim that the damaged buildings presented an immediate threat to public health and safety.  The Applicant did not comply with FEMA demolition eligibility criteria.

With regard to the Applicant’s argument that the demolitions are necessary for the economic recovery of the surrounding community, the economic recovery criterion normally is restricted to large commercial areas where it is necessary to expedite restoration of the economic viability of the affected community.  The Applicant has not demonstrated how the demolition of the identified structures was necessary for the community’s economic recovery.  The razed buildings were demolished in 2009 and 2012, after the August 29, 2008, deadline and four years after the date of declaration of the disaster.

Conclusion

Demolition is only authorized as an emergency protective measure where there are immediate threats to life and property and the unsafe structures endanger the public.  Demolition of private structures is eligible when the structures are found to be unsafe due to the imminent threat of partial or complete collapse.  FEMA will consider alternate measures to eliminate threats to life, public health and safety posed by disaster-damaged unsafe structures, including fencing off unsafe structures and restricting public assess.  With the exception of the demolition and removal of resulting debris from 436 De La Ronde Drive, the Applicant has not demonstrated that the remaining 21 of the 22 properties posed an immediate threat to public health and safety that would substantiate eligibility of the demolition.

Last updated May 28, 2020