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Plainview Elementary School

Appeal Brief Appeal Letter

Appeal Brief

ApplicantSampson County
Appeal TypeSecond
PA ID#163-015Q4
PW ID#2120
Date Signed2000-11-07T05:00:00
Citation: FEMA-1292-DR-NC, Sampson County, Plainview Elementary School, PW 2120

Cross Reference: Eligible facility, Facility under construction, legal responsibility, improved natural feature

Summary: Rain associated with Hurricane Floyd raised the water table to 0-2 feet of the surface at the site of the proposed Plainview Elementary School. The saturated soil increased site development cost by $271,000. Sampson County (Applicant) sought reimbursement from FEMA stating that the "facility" was damaged by the hurricane and it was responsible for the cost. The field staff denied the Applicant's request because it determined that the site was unstable prior to the disaster. The Regional Director sustained this decision on first appeal, stating that an eligible facility did not exist at the site. In the second appeal, the Applicant states it had signed a contract for the new school and work had begun at the site. Therefore, the facility was under construction and damages caused by the disaster were eligible under the Public Assistance Program.

Was the proposed site of the new school an eligible facility?

No. The site was an unimproved natural feature.

44 CFR 206.201(c).

Appeal Letter

November 7, 2000

Charles J. Ellstrom
Deputy Chief of Operations
North Carolina Division of
Emergency Management
205 West Cabarrus Street
Raleigh, North Carolina 20601

Re: Sampson County, PA ID 163-015Q4-00, Plainview Elementary School,
FEMA-1292-DR-NC, Project Worksheet 2120

Dear Mr. Ellstrom:

This is in response to your letter dated September 19, 2000, that transmitted the referenced second appeal on behalf of Sampson County (Applicant). The Applicant is appealing the Regional Director's first appeal decision that the cost to place fill material at the site of the proposed Plainview Elementary School is not eligible for funding under the Public Assistance Program.

The Applicant contracted with American South General Contractors to construct the Plainview Elementary School. The contractor included $329,500 for site preparation in its winning bid. The contractor began to prepare the site for construction of the school on September 7, 1999. Heavy rain associated with Hurricane Floyd raised the water table at the site to 0-2 feet from the surface. The saturated soil was not able to support the heavy equipment needed for construction or the foundation for the school. After considering various options, the Applicant concluded that the most cost-effective option was to place additional fill material at the site. The contractor accomplished this work and incurred an additional $271,000 over the amount included in the contract for site preparation. Since the Applicant was legally responsible for the additional cost, the Applicant sought reimbursement from FEMA. FEMA's field staff denied the request because the site was found to be unstable prior to the disaster. The Regional Director sustained the determination of ineligibility in a letter dated July 5, 2000, to Mr. Eric Tolbert, Director, North Carolina Division of Emergency Management. The Regional Director determined that the Applicant was not eligible for assistance because there was no eligible facility damaged at the site.

In the second appeal, the Applicant states that it is eligible for reimbursement because the work was (1) required as a result of the disaster, (2) located in the designated disaster area, and (3) the legal responsibility of the Applicant. It also stated that FEMA guidance provides for reimbursing applicants for damage to facilities that are under construction. The Applicant concluded that since the site was flooded after it had signed the contract to build the school, the repair of the flood "damage" was eligible for FEMA assistance. Also, the "facility" was under construction at the time of the disaster and the Applicant was responsible for the repairs. In its first appeal submittal, the Applicant reasoned that the cost of the additional site work was eligible under FEMA's Landslide Policy Relating to Public Facilities, dated November 30, 1995.

There is no dispute that the Applicant was responsible for the additional cost of the site work. However, the salient issue in this appeal is not one of legal responsibility. Rather, it is whether there was damage to an eligible facility as a result of Hurricane Floyd. Our policy is clearly stated in 44 CFR 206.201, Definitions, which defines an eligible facility as follows: "Facility means any publicly or privately owned buildings, works, system, or equipment, built or manufactured, or an improved and maintained natural feature. Land used for agricultural purposes is not a facility." According to information submitted with the appeal, the contractor began work at the site on September 7, 1999. The work consisted of ".clearing trees & brush for the surveyors to stake clearing limits." The removal of trees from a site does not qualify the site as "an improved and maintained natural feature." Therefore, the site of the proposed school was not an eligible facility when rain associated with Hurricane Floyd flooded the area.

The Landslide Policy states that, ".if a site is found to be unstable and the instability was exclusively caused by the disaster, the cost to restore the facility at the original site (including integral ground restoration) is eligible." This policy does not apply to this case because an eligible facility did not exist at the site. Based on these findings, I support the Regional Director's determination that the Applicant is not eligible for assistance. Therefore, I am denying the appeal.

Please inform the Applicant of my determination. My decision represents the final decision on this matter as set forth in 44 CFR 206.206.

Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Cc: John B. Copenhaver
Regional Director, FEMA Region IV
Last updated February 4, 2020