Public Interest

Appeal Brief

Appeal Letter

Appeal Analysis

Background

From September 4 through October 18, 2017, Hurricane Irma caused damage in the Town of Davie (Davie), Broward County, Florida, the location of the Belmont Lakes Community Development District (Applicant).  On October 10, 2017, FEMA determined the Applicant, a Community Development District (CDD), to be an eligible Applicant.[1] 

Thereafter, FEMA prepared Project Worksheet (PW) 2665 as a permanent work project for this Applicant to capture disaster-related damages and work.  In PW 2665, FEMA noted that high winds from the disaster caused trees to fall and damaged the Applicant’s perimeter fencing (fencing).  FEMA documented that by July 28, 2018, the Applicant had completed in-kind repairs to the fencing and conducted incidental debris removal of trees, totaling $52,420.31.  However, FEMA determined the damaged fencing was ineligible for Public Assistance (PA) funding.

On January 8, 2019, FEMA issued a determination that denied the requested work and costs.  FEMA noted that the Applicant managed roads, streets, and other facilities for the gated community of Blackhawk Reserve, which did not appear to be open to the general public.  As the fencing was neither accessible to the public, nor provided a service to the general public, FEMA found the Applicant had not demonstrated it was eligible for PA.

First Appeal

The Applicant appealed FEMA’s denial through a March 5, 2019 letter, asserting that the fencing was either open to the general public, provided a service to the general public, or both.  The Applicant first stated that the fencing and landscaping along its northern boundary, parallel to 14^th Street and a commonly used public walkway, were a requirement from Davie to shield the public from the development behind it and provide community beautification to people who use the public facilities within the Applicant’s jurisdiction.  The Applicant stated Davie also required the fencing to protect the property of the public and the property of the abutting homeowners, because without it, the landscaping would be destroyed over time from people and animals traversing it.[2] 

The Applicant next stated that the fencing along the Applicant’s eastern border, which runs parallel to conservation and open space land, provides a public benefit to protect open spaces that wildlife can inhabit and therefore fulfills a public need.[3] 

The Florida Division of Emergency Management (Grantee) transmitted the appeal to FEMA by way of a concurrence letter dated May 1, 2019. 

On July 17, 2019, FEMA transmitted a Request for Information (RFI) to the Applicant and the Grantee stating that the fencing repairs and vegetative debris removal may be ineligible for PA.  FEMA requested that the Applicant or the Grantee provide documentation verifying the Applicant’s boundary lines.

The Applicant responded on August 19, 2019.  It provided a map denoting the Applicant’s boundaries and the locations of the fencing’s damages.  On the northern boundary, the map showed that the fencing was abutted on one side by a sidewalk and 14^th Street, and on the other side was directly abutted by bushes, trees, and shrubbery lining the perimeter behind the community’s homes.  The Applicant explained that the perimeter of the northern boundary included a sidewalk, fence, and landscape buffer.  On the eastern boundary, the map showed the fencing was abutted on one side by massive wall-to-wall trees and shrubbery situated behind the community’s homes, and was abutted on the other side by grass and trees.  The Applicant explained that the eastern boundary encompassed an open space/conservation easement maintained by the Applicant, that included a twenty-foot open space buffer and the fencing.  The Applicant noted that its southern boundary also included a fence, but instead of a roadway or open space area, it ran parallel to a canal bank.

On December 3, 2019, the FEMA Region IV Regional Administrator denied the appeal.  FEMA determined that: (1) the Applicant had not demonstrated the fencing was either open to or provided a service to the general public; and, (2) even if the fencing was an eligible for PA, removal of the vegetative debris was ineligible because the Applicant had not demonstrated the debris posed an immediate threat, or a hazard to public use areas or improved property.

Second Appeal

The Applicant submitted an appeal on January 30, 2020, reiterating its assertion that the fencing was either open to the general public, benefitted the general public, or both.  Regarding its northern boundary running along 14^th Street, the Applicant states it is located on a landscaping easement that the Applicant is required to maintain.  It also states that Davie required the landscaping and sidewalk buffer, and these types of buffers, required by the previously referenced portions of sections 12-282 and 12-285 are built for the enjoyment of the entire public, not just the abutting property owners.  The Applicant emphasizes that it maintains the fencing so that both the property owners and the public are prevented from traversing the landscape easement. 

Concerning the eastern boundary located along a conservation easement, Davie requires that the Applicant maintain the area in a natural state.  The Applicant notes that no one has access to the easement, neither the Applicant’s residents nor the general public.  However, the Applicant states this is done to benefit the public welfare per the previously referenced portion of section 12-298, so that open spaces, wildlife habitat, and other natural resources are preserved.  The Applicant additionally argues that this area does not, in fact, benefit the community’s residents, as abutting property owners have filed complaints with the Applicant that the easement is wild and overgrown. 

Regarding the debris removal, the Applicant stresses that it was disaster-related incidental work necessary to repair the fencing.  The Applicant does not argue the debris removal is eligible separate and apart from any determination on the eligibility of the fencing repairs.  Instead, the Applicant states it had to remove certain disaster-related vegetative debris that was in the way in order to allow equipment and workers proper access to repair the fencing. 

The Grantee transmitted the appeal to FEMA with an accompanying letter of support dated March 25, 2020.  It states that for the northern boundary fencing, the Applicant created the buffers to prevent the visual encroachment of buildings and structures along scenic roadways.  For the eastern boundary fencing, the Grantee states that the Applicant protects the conservation area for the benefit of the general public, not just the community’s residents.  Concerning the debris removal work, the Grantee echoes the Applicant’s statement that the Applicant was required to remove the debris in order to repair the fencing.

Discussion

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[4]  Local government includes special districts,[5] such as a CDD.[6]  Eligible public facilities include a public structure.[7]  However, when a facility maintained by a CDD is not open to the general public or does not provide a service to the general public, the facility is not eligible.[8] 

An appeal must contain documented justification supporting an applicant’s position.[9]  The burden to substantiate appeals with documented justification falls exclusively to the applicant and hinges upon the applicant’s ability to produce not only its own records, but to clearly explain how those records are relevant to the appeal.[10]

Open to the General Public

A fence is defined as a barrier intended to prevent intrusion or to mark a boundary.[11]  Here, it is reasonable to infer that the Applicant, which manages the security of the Blackhawk Reserve, maintains the fencing along 14^th Street to clearly mark the boundary and prevent intrusion onto the community’s property.[12]  In addition, the Applicant acknowledges that, with respect to the conservation area, the main intent behind the fencing is to mark a boundary and prevent the public from intruding onto the area.  Therefore, based on the above, it is clear the fencing at both the northern and eastern boundaries is not intended to be open to the general public.  

Provides a Service to the General Public

i.  Northern Boundary

The Applicant repeatedly references the intent of section 12-282 to support its assertion that the Applicant maintains the fencing along the northern boundary for the benefit of the general public, i.e., to preserve landscaping that is required by a local code pertaining to scenic corridors.  However, the Applicant has not demonstrated that the northern boundary running along 14^th Street actually constitutes a scenic corridor.  For example, the “Definitions and Boundaries” portion of section 12-282 (not previously provided in either appeal), defines the scenic corridor overlay district as all property (on each side of the rights-of-way) lying within: (1) 100 feet of Flamingo Road, Orange Drive, and Shotgun Road; and, (2) 50 feet of Boy Scout Road, Davie Road, Peaceful Ridge Road, Hiatus Road, SW 70 Avenue, and SW 76 Avenue.[13]  Yet the Applicant has not established the northern boundary falls within any of the aforementioned areas to support its assertion that sections 12-282 and 12-285 required it to install the landscaping or buffers that purportedly serve as the basis for maintaining the fencing. 

Additionally, even if the northern boundary sits within a defined scenic corridor that requires buffers, the Applicant has not provided legal provisions that require the fencing.  Section 12-285 requires that a scenic corridor buffer must be landscaped at a minimum with trees; it does not reference perimeter fencing.[14]  Similarly, sections 12-283 and 12-284 permit certain fencing as a scenic corridor buffer, but again, do not require it.[15]

Further, the Applicant has not demonstrated the fencing, on its own, satisfies either intended goal of section 12-282.  The fencing is clearly intended more to be a barrier that benefits the community’s homeowners (i.e., to clearly mark boundaries and prevent intrusion) rather than a way to maintain existing desirable vegetation and enhance vegetation along designated roadways. 

Finally, the Applicant has not explained how satisfying either of the cited local code sections actually results in the fencing providing a service to the general public at this location.  Based on the above, the Applicant has not demonstrated the fencing at this location provides a service to the general public. 

ii.  Eastern Boundary

The map provided in the RFI response depicts massive landscaping lining its eastern border, but the Applicant does not clearly delineate the location of the fencing in relation to its eastern border, the easement, and that landscaping.  Regardless, whether the fencing is located on the front or back portion of the easement does not affect FEMA’s final determination.  If the fencing is located at the back-end of the Applicant’s property line (with the open space area located in front of it), then members of the community and visitors can still access the land, which dispels the Applicant’s argument that the land is protected from intrusion by community members.  If the fencing is located with the open space easement behind it, then the general public can access the land, thus again dispelling the argument the land is safe from intrusion.  There is a road that runs perpendicular to the eastern boundary, parallel to the area behind the Applicant’s boundary line, that has no noticeable barrier present on the map that would prevent intrusion onto the land behind the eastern boundary.  Based on the above, the Applicant has not established the fencing completely protects the land from any intrusion; thus, the Applicant has not demonstrated the fencing located along the Applicant’s eastern boundary provides a service to the general public.

Conclusion

The fencing maintained by the Applicant, a CDD, is ineligible for PA funding as it is neither open to nor provides a service to the general public.  Consequently, all claimed work and associated costs are ineligible for PA.  Accordingly, this appeal is denied.