Debris Removal from Private Property
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1545-DR-FL, Town of Juno Beach, FL, Debris Removal from Private Property
Cross-reference: Private Property Debris Removal, Legal Responsibility, Immediate Threat
Summary: As a result of Hurricane Frances, (FEMA-1545-DR-FL, 09/04/04), the Town of Juno Beach (Applicant) sustained damages associated with downed trees and debris on public and private property. FEMA prepared Project Worksheets (PWs) 3944 and 3947 for a total of $98,494.42 to provide funding for the removal of storm-generated debris from public roadways and facilities. However, FEMA did not authorize funding for debris removal from private property as it did not meet eligibility criteria as stated in 44 CFR 206.224 and 44 CFR 206.223. The Applicant appealed $16,280.00 in costs incurred removing 1329.57 CY of debris from private roads in gated communities. The Applicant submitted a copy of its Solid Waste and Recyclable Collection Services Agreement to demonstrate its legal responsibility for this work in the first appeal letter dated May 27, 2005. The appeal letter also asserts debris was removed from private property to eliminate health risks, minimize hazardous driving conditions, and eliminate impediments to public safety response. In a letter dated November 1, 2005, the Regional Director denied the Applicants appeal stating that the Agreement establishes that the Town may require vegetative waste collection and disposal prior to a storm event, but does not demonstrate the legal responsibility to remove debris from private property. The response also states that the Applicant had not demonstrated that the debris posed a threat to public health and safety. The Town filed a second appeal on March 10, 2006, claiming that its solid waste collection and recycling ordinance provides the Town with the legal responsibility to remove debris from private property, including gated communities.
Issues: 1. Has the Applicant demonstrated that it is the legal responsibility of the Town to remove debris from private property?
Findings: 1. No.
As a result of Hurricane Frances in September, 2004, the Town of Juno Beach sustained damages associated with downed trees and debris on public and private property. FEMA prepared Project Worksheets (PWs) #3944 and #3947 for a total of $98,494.42 to provide funding for the removal of disaster-related debris from public property. However, FEMA did not authorize funding for debris removal from private property as it did not meet eligibility criteria as stated in 44 CFR §206.224 and 44 CFR §206.223.
The Applicant removed approximately 1,329.57 cubic yards of debris from private roads in several private gated communities in the amount of $16,280.00. FEMA prepared PW #3692 to document work performed and associated costs, but FEMA did not approve any funding because the work was determined to be ineligible for reimbursement as it was not the legal responsibility of the Applicant.
First Appeal
In its first appeal dated May 27, 2005, the Applicant submitted a copy of its Solid Waste and Recyclable Collection Services Agreement to demonstrate its legal responsibility for the work. The appeal letter also asserts debris was removed from private property to eliminate health risks, minimize hazardous driving conditions, and eliminate impediments to public safety response.
In a letter dated November 1, 2005, the Regional Director denied the Applicants appeal stating that the Agreement establishes that the Town may require vegetative waste collection and disposal prior to a storm event, but does not demonstrate the legal responsibility to remove debris from private property. The response also states that the Applicant had not demonstrated that the debris posed a threat to public health and safety.
Second Appeal
The Applicants second appeal asserts that the Towns solid waste collection ordinance provides the legal responsibility to remove debris on private property by mandating solid waste collection and recycling programs for all uses within the corporate boundaries of the town. The Applicant also asserts that FEMA should reverse its eligibility determination because FEMA approved debris removal from private property in the Town of Juno after Hurricane Wilma in October 2005.
DISCUSSION
The documentation provided in the Applicants second appeal does not provide any additional information which supports the claim that it is the Town of Junos legal responsibility to remove debris from private property through use of nuisance or other similar ordinance. Although the Applicant claims that its solid waste collection and recycling ordinance gives its contractors the right to enter the gated communities to removed solid waste, this does not constitute the legal responsibility to enter private property to remove disaster-related debris.
Also, Disaster Specific Guidance # 8 dated September 20, 2004, states in part, in order for FEMA to make a case-by-case determination of eligibility on the basis of legal responsibility, each interested eligible applicant will be required to show its legal process for taking responsibility for debris on private property, and demonstrate how it followed that process. We required eligible applicants to show that they had adopted an ordinance that addresses the abatement of public health nuisances on private property, and taken action under that ordinance, as evidence of their legal responsibility to remove debris from private property. Typically, nuisance abatement ordinances require local governments to adhere to due process requirements, such as providing notice to property owners of a violation and an opportunity to be heard on the violation. If the property owner does not comply with an order to abate the nuisance, the local government is authorized to take actions to abate the nuisance and bill the property owner for costs incurred or place a lien against the property. The Applicant did not meet this standard.
The Applicant argues that FEMA recognized that the Applicant had legal responsibility to remove debris from gated communities when it provided assistance for this purpose following Hurricane Wilma in 2005. Therefore, FEMA should use the same reasoning to assist the Applicant with private property debris removal costs related to Hurricane Jeanne, which occurred the previous year. Following the 2004 hurricane season, FEMA reviewed its policy on debris removal from private property, in particular gated communities, and determined that it would be onerous for local governments to strictly follow their nuisance abatement ordinances in a post-disaster environment. Therefore, on October 21, 2005, FEMA published a Fact Sheet on Debris Removal from Private Property, which stated in part, FEMA may not require applicants to precisely apply their pre-disaster abatement process when disasters cause a high concentration of debris on private property over a widespread area presenting an immediate health and safety threat. We also determined that widespread debris on roads in gated communities poses an immediate health and safety threat as it does on public roads. Further, the standard for demonstrating legal responsibility for removing debris from roads in gated communities is not as stringent as it is for removing debris from individual private lots.
These determinations apply to disasters declared after October 21, 2005. Therefore, we cannot apply these standards retroactively to the 2004 hurricanes. The applicable guidance for Hurricane Jeanne required the Applicant to precisely implement its nuisance abatement ordinance to demonstrate that it had the legal responsibility to effect debris removal on private property.
CONCLUSION
The Applicant has not provided any documentation to support its claim that it was the legal responsibility of the Town of Juno to remove debris from private property, including private roads within gated communities. Therefore, this appeal is denied.
Appeal Brief
| Disaster | FEMA-1545-DR |
| Applicant | Town of Juno Beach, Fl |
| Appeal Type | Second |
| PA ID# | 099-35850-00 |
| PW ID# | XXXX |
| Date Signed | 2007-02-13T05:00:00 |
Appeal Letter
February 13, 2007
Mr. W. Craig Fugate
Director, Florida Division of Emergency Management
2555 Shumard Oak Blvd
Tallahassee, FL 32399-2100
Re: Second Appeal Town of Juno Beach, FL, PA ID#099-35850-00, Debris Removal from Private Property , FEMA-1545-DR-FL
Dear Mr. Fugate:
This is in response to a letter from your office dated March 10, 2006, transmitting the referenced second appeal on behalf of the Town of Juno Beach (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMAs) denial of reimbursement for costs associated with debris removal from private roads in gated communicates and demolition on private property.
For the reasons explained in the enclosed analysis, I have determined that the claim of $16,280 for debris removal from private property is not eligible for FEMA assistance. Therefore, this appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.
Sincerely,
/s/
David GarrattActing Director of Recovery
cc: Major Phil May
Regional Director
FEMA Region IV
Mr. W. Craig Fugate
Director, Florida Division of Emergency Management
2555 Shumard Oak Blvd
Tallahassee, FL 32399-2100
Re: Second Appeal Town of Juno Beach, FL, PA ID#099-35850-00, Debris Removal from Private Property , FEMA-1545-DR-FL
Dear Mr. Fugate:
This is in response to a letter from your office dated March 10, 2006, transmitting the referenced second appeal on behalf of the Town of Juno Beach (Applicant). The Applicant is appealing the Department of Homeland Securitys Federal Emergency Management Agencys (FEMAs) denial of reimbursement for costs associated with debris removal from private roads in gated communicates and demolition on private property.
For the reasons explained in the enclosed analysis, I have determined that the claim of $16,280 for debris removal from private property is not eligible for FEMA assistance. Therefore, this appeal is denied.
Please inform the Applicant of my decision. My determination constitutes the final decision on this matter as set forth in 44 CFR § 206.206.
Sincerely,
/s/
David GarrattActing Director of Recovery
cc: Major Phil May
Regional Director
FEMA Region IV
Appeal Analysis
BACKGROUNDAs a result of Hurricane Frances in September, 2004, the Town of Juno Beach sustained damages associated with downed trees and debris on public and private property. FEMA prepared Project Worksheets (PWs) #3944 and #3947 for a total of $98,494.42 to provide funding for the removal of disaster-related debris from public property. However, FEMA did not authorize funding for debris removal from private property as it did not meet eligibility criteria as stated in 44 CFR §206.224 and 44 CFR §206.223.
The Applicant removed approximately 1,329.57 cubic yards of debris from private roads in several private gated communities in the amount of $16,280.00. FEMA prepared PW #3692 to document work performed and associated costs, but FEMA did not approve any funding because the work was determined to be ineligible for reimbursement as it was not the legal responsibility of the Applicant.
First Appeal
In its first appeal dated May 27, 2005, the Applicant submitted a copy of its Solid Waste and Recyclable Collection Services Agreement to demonstrate its legal responsibility for the work. The appeal letter also asserts debris was removed from private property to eliminate health risks, minimize hazardous driving conditions, and eliminate impediments to public safety response.
In a letter dated November 1, 2005, the Regional Director denied the Applicants appeal stating that the Agreement establishes that the Town may require vegetative waste collection and disposal prior to a storm event, but does not demonstrate the legal responsibility to remove debris from private property. The response also states that the Applicant had not demonstrated that the debris posed a threat to public health and safety.
Second Appeal
The Applicants second appeal asserts that the Towns solid waste collection ordinance provides the legal responsibility to remove debris on private property by mandating solid waste collection and recycling programs for all uses within the corporate boundaries of the town. The Applicant also asserts that FEMA should reverse its eligibility determination because FEMA approved debris removal from private property in the Town of Juno after Hurricane Wilma in October 2005.
DISCUSSION
The documentation provided in the Applicants second appeal does not provide any additional information which supports the claim that it is the Town of Junos legal responsibility to remove debris from private property through use of nuisance or other similar ordinance. Although the Applicant claims that its solid waste collection and recycling ordinance gives its contractors the right to enter the gated communities to removed solid waste, this does not constitute the legal responsibility to enter private property to remove disaster-related debris.
Also, Disaster Specific Guidance # 8 dated September 20, 2004, states in part, in order for FEMA to make a case-by-case determination of eligibility on the basis of legal responsibility, each interested eligible applicant will be required to show its legal process for taking responsibility for debris on private property, and demonstrate how it followed that process. We required eligible applicants to show that they had adopted an ordinance that addresses the abatement of public health nuisances on private property, and taken action under that ordinance, as evidence of their legal responsibility to remove debris from private property. Typically, nuisance abatement ordinances require local governments to adhere to due process requirements, such as providing notice to property owners of a violation and an opportunity to be heard on the violation. If the property owner does not comply with an order to abate the nuisance, the local government is authorized to take actions to abate the nuisance and bill the property owner for costs incurred or place a lien against the property. The Applicant did not meet this standard.
The Applicant argues that FEMA recognized that the Applicant had legal responsibility to remove debris from gated communities when it provided assistance for this purpose following Hurricane Wilma in 2005. Therefore, FEMA should use the same reasoning to assist the Applicant with private property debris removal costs related to Hurricane Jeanne, which occurred the previous year. Following the 2004 hurricane season, FEMA reviewed its policy on debris removal from private property, in particular gated communities, and determined that it would be onerous for local governments to strictly follow their nuisance abatement ordinances in a post-disaster environment. Therefore, on October 21, 2005, FEMA published a Fact Sheet on Debris Removal from Private Property, which stated in part, FEMA may not require applicants to precisely apply their pre-disaster abatement process when disasters cause a high concentration of debris on private property over a widespread area presenting an immediate health and safety threat. We also determined that widespread debris on roads in gated communities poses an immediate health and safety threat as it does on public roads. Further, the standard for demonstrating legal responsibility for removing debris from roads in gated communities is not as stringent as it is for removing debris from individual private lots.
These determinations apply to disasters declared after October 21, 2005. Therefore, we cannot apply these standards retroactively to the 2004 hurricanes. The applicable guidance for Hurricane Jeanne required the Applicant to precisely implement its nuisance abatement ordinance to demonstrate that it had the legal responsibility to effect debris removal on private property.
CONCLUSION
The Applicant has not provided any documentation to support its claim that it was the legal responsibility of the Town of Juno to remove debris from private property, including private roads within gated communities. Therefore, this appeal is denied.
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