Legal Responsibility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4339
Applicant	Caguas (Municipio)
Appeal Type	Second
PA ID#	025-99025-00
PW ID#	GMP 243239
Date Signed	2023-05-12T16:00:00

Summary Paragraph

Hurricane Maria caused damage throughout Puerto Rico in 2017. The disaster damaged a brick retaining wall near a public road in Caguas. The Municipality of Caguas (Applicant) stated it owned the brick retaining wall but would be requesting permission from private property owners to access their property and complete the work. FEMA issued a request for information, seeking maintenance records and clarification of the location of the damages. The Applicant provided a rough sketch of the site; claimed the damages are on a public right of way; provided maintenance records unrelated to the brick retaining wall; and submitted a letter certifying it is legally responsible for the road. FEMA denied eligibility in a Determination Memorandum, finding the Applicant did not establish legal responsibility for the brick retaining wall at the time of the disaster. The Applicant appealed, submitting an aerial map, a roadway drawing with its estimated location of the brick retaining wall, and a certification letter stating it is legally responsible for the road and a 36-foot right of way. FEMA denied the appeal, finding the Applicant did not demonstrate it had legal responsibility for the brick retaining wall based on the submitted unofficial drawing and a certification that did not mention the brick retaining wall. The Applicant submits its second appeal, maintaining its prior claims and providing the 2016 ownership deed of the public road, the official road inscription drawing, and a sworn statement claiming maintenance and legal responsibility for the brick retaining wall.

Authorities and Second Appeals

• Stafford Act §§ 102(10), 403(a)(1)(A).
• 44 C.F.R. §§ 206.221(h), 206.223(a)(3).
• PAPPG, at 15, 19-21.

Headnotes

• To be eligible for funding, work must be the legal responsibility of the applicant requesting assistance and the applicant must provide proof that it owns or is otherwise legally responsible for the repairs at the time of the incident.  FEMA evaluates ownership and legal responsibility based on the terms of any written agreements, including deeds, title documents, and local government tax records.
  • The Applicant has provided a road deed, official inscription drawings, notated site drawings, sworn statements, and site inspection photographs supporting its legal responsibility claim. When viewed collectively, the record substantiates the Applicant’s claim of legal responsibility for the brick wall located within the property transferred by deed prior to the disaster on February 11, 2016.

Conclusion

The Applicant has demonstrated that it had legal responsibility for repairing disaster-related damage to the brick retaining wall at the time of the disaster. Therefore, this second appeal is granted. FEMA Region 2 will review the project on its merits to determine whether the work and/or costs are eligible.

Appeal Letter

Appeal Analysis

Background

From September 17 to November 15, 2017, Hurricane Maria caused severe damage throughout Puerto Rico.[1] The Municipality of Caguas (Applicant) requested Public Assistance (PA) funding to repair a damaged brick retaining wall in the Turabo neighborhood of Caguas, located near a public road providing access to four private houses.[2] FEMA conducted a site inspection and identified damages to the claimed brick retaining wall located alongside the public road.

The Applicant sent an email to FEMA stating it owned the brick retaining wall, but the required work would be done on private property so it would be requesting permission from the owners to access the property and complete the construction. FEMA issued a request for information (RFI), asking that the Applicant provide maintenance records relevant to the damaged areas to help demonstrate legal responsibility, clarify the exact location of the claimed damages and their relation to the public road in a sketch with dimensions, and clearly identify whether claimed damages are located on private or municipal property as the damages appeared to be on private property. In response to the RFI, the Applicant provided a rough sketch of the site, without measurements or clear delineation between public and private property. The Applicant also claimed the brick retaining wall damages were located on a public right of way but did not provide supporting documentation clarifying that the brick retaining wall was not located on private property.[3] The Applicant provided municipality-wide maintenance records for concrete deposits, asphalt deposits, and drainage maintenance, but no maintenance records related to the brick retaining wall. The Applicant also submitted a letter dated October 6, 2021, certifying that the interior street in the Sector Los Acueductos of the Turabo neighborhood was under the legal responsibility of the Applicant.

FEMA issued a Determination Memorandum denying eligibility for the claimed work, finding the Applicant did not establish legal responsibility to repair disaster-related damage to the brick retaining wall at the time of the disaster. FEMA noted that the claimed damages appeared to be located on private property and the Applicant did not provide documentation clarifying that the brick retaining wall is located on public property.

First Appeal

The Applicant submitted its first appeal on December 23, 2021, contending claimed repairs to the brick retaining wall were the Applicant’s legal responsibility. To support its claim, the Applicant submitted an aerial map and roadway drawing with notations of the estimated location of the brick retaining wall. The Applicant submitted a certification letter dated December 23, 2021, stating “the road section on Sector Los Acueductos on Turabo Ward, that starts at coordinate 18.193484°, -66.062987°, and ends at coordinate 18.193676°, -66.062438°, with a concrete surface roadway width of 12 feet, and a Public Right of Way of 36 feet (11 meters), is under the maintenance and legal responsibility of the [Applicant].”[4] The Applicant argued the brick retaining wall is located within the 36 feet (11 meters) that comprised the public right of way. On February 22, 2022, the Puerto Rico Central Office of Recovery, Reconstruction, and Resiliency (Recipient) transmitted the first appeal in support of the Applicant’s request.

On August 5, 2022, the FEMA Region 2 Regional Administrator denied the appeal, finding the Applicant did not establish it had legal responsibility to repair the brick retaining wall at the time of the disaster. Specifically, FEMA noted that the Applicant submitted: (1) an unofficial drawing indicating that the brick retaining wall is located just beyond the concrete pavement of the public right of way; and (2) a statement from its Director of Public Works that spoke only to legal responsibility for the public road and did not address the brick retaining wall. FEMA stated that, based on the documentation submitted by the Applicant, the Agency could not conclude that the Applicant had legal responsibility for the brick retaining wall.

Second Appeal

The Applicant submits its second appeal dated October 4, 2022, maintaining it is legally responsible for the repair of the brick retaining wall. To support its claim, the Applicant provides the 2016 ownership deed of the public road[5] and the road inscription drawing approved by the Puerto Rico Permits Management Office.[6] The Applicant also states that the brick retaining wall was built when the municipality received the road from its owner, so the brick wall became a municipality facility along with the road and publicly owned right of way. Along with its appeal, the Applicant submits a certification letter from its Director of Public Works dated October 4, 2022. The letter reiterates the Applicant’s previous certifications, with the addition of a sworn statement indicating that the brick retaining wall located within the publicly owned right of way is also under the maintenance and legal responsibility of the Municipality of Caguas.[7] The Recipient transmits its support for the Applicant’s second appeal.

 

Discussion

FEMA may provide PA funding for the repair of a public facility damaged by a major disaster.[8] To be eligible for funding, work must be the legal responsibility of the applicant requesting assistance and the applicant must provide proof that it owns or is otherwise legally responsible for the repairs at the time of the incident.[9] FEMA evaluates ownership and legal responsibility based on the terms of any written agreements, including deeds, title documents, and local government tax records.[10]

The deed and inscription drawing provided by the Applicant on second appeal indicate the roadway, designated “USO PUBLICO,” is the legal responsibility of the Applicant.[11] Although neither of these documents explicitly depict the location or ownership transfer of the brick retaining wall in question, the Applicant provides comments on drawings of the site to indicate the approximate location of the brick retaining wall. While the Applicant’s assertion alone is insufficient to substantiate its claim, its sworn statement that the brick wall is located within the identified 11-meter width of transferred property is supported by the submitted inscription drawing[12] and FEMA site inspection photographs.[13] When viewed collectively, the record includes substantiating documentation supporting the Applicant’s claim of legal responsibility for the damaged brick wall located within the property transferred by deed on February 11, 2016.[14]

 

Conclusion

The Applicant has demonstrated that it had legal responsibility for repairing disaster-related damage to the brick retaining wall at the time of the disaster. Therefore, this second appeal is granted. FEMA Region 2 will review the project on its merits to determine whether the work and/or costs are eligible.