Public Interest

Appeal Brief

Summary Paragraph

From September 23, 2022, to November 4, 2022, Hurricane Ian impacted Florida. The Habitat Community Development District (Applicant), a special district government authorized by state law, submitted a request for Public Assistance (PA) funding for repair or replacement of, among other items, road signs, an emergency egress gate, privacy and fence screens, and a clocktower (Facilities) within its gated community. The community’s security staff denied FEMA entry to the community. The Applicant stated the denial was an error and that it had revised the gatehouse post orders to clarify that the public must have access to the community. FEMA denied the Applicant’s request for funding in a Determination Memorandum (DM), noting that while the Applicant showed the community was accessible to the public, the only facility within the community open to the public was the roads. FEMA found that except for work to repair road signs, work on facilities inside the community was not eligible for PA funding. FEMA also found that while the claimed road signs served the public purpose of traffic control, the costs claimed for the work fell below the minimum project threshold, therefore, the work was ineligible. The Applicant submitted a first appeal asserting FEMA previously funded work to restore some of the Facilities; that the DM acknowledged the community was accessible to the public; and that the community’s stormwater system served the general public, therefore the Facilities were likewise eligible. The FEMA Region 4 Regional Administrator denied the appeal, finding the Applicant did not demonstrate that it owns or operates a facility that is both open to, and provides an eligible service for, the general public. The Applicant submits a second appeal, reiterating its first appeal arguments and asserting FEMA found in the DM that board meeting minutes which predate the disaster show the community is open to the public. 

Authorities

• Stafford Act §§ 102(8), (10); 406(a)(1)(A).
• PAPPG, at 42-43, 56, 101, 179.
• Simplifying the Public Assistance Program, Part 2, at 2-3.
• Heritage Bay Cmty. Dev. Dist., FEMA-4337-DR-FL, at 3; Sumter Landing Cmty. Dev. Dist., FEMA-4337-DR-FL, at 3; Habitat Cmty. Dev. Dist., FEMA-4673-DR-FL; Los Angeles Cnty. Internal Services Dept., FEMA-1008-DR-CA, at 3.

Headnotes

• To be eligible, a Community Development District must own and be legally responsible for maintenance and operation of an eligible facility that is open to and serves the general public.
  • The claimed Facilities were neither open to nor served the general public at the time of the disaster, therefore, they are ineligible for PA funding.

Conclusion

The Applicant has not demonstrated that the claimed Facilities were open to and served the general public at the time of the disaster. Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

From September 23, 2022, to November 4, 2022, Hurricane Ian impacted Florida. Habitat Community Development District (Applicant), a special district government authorized by state law, is also known as Bella Terra, a gated residential community in Lee County, Florida. The Applicant submitted a request for Public Assistance (PA) funding for the following work associated with Bella Terra’s roads, irrigation system, and other facilities (Facilities): (1) restoring road signs and posts, an emergency egress gate, and privacy walls around irrigation pump; (2) replacing and installing clocktower hands, a privacy hedge, and a fence screen around an irrigation pump, (3) sod work; and (4) grinding 17 tree stumps within the community.

In an April 25, 2023 email, FEMA asked the Applicant: (1) if it is a gated community; (2) if so, how does the public access the community and what facilities can they use; and (3) if it is open to the general public. On May 1, 2023, the Applicant replied, stating it is a gated community but is open to the public and that anyone who shows a driver’s license can access the community. The Applicant also stated it owns and maintains Bella Terra’s stormwater system, roads and some sidewalks. Later, the Applicant clarified that security staff are told not to deny access to anyone who presents a legal form of identification; and if someone refuses to provide identification, they can still enter because an image is taken of all vehicles entering and exiting the community. 

On April 27, 2023, a security guard denied FEMA entrance to the community, stating that it is 100 percent private and not accessible to the public.^[1]During a September 19, 2023 board meeting, a District Manager informed the Applicant’s Board of Supervisors that security staff had denied FEMA access to Bella Terra. In the meeting, the District Manager stated that he had previously told the (Bella Terra) homeowners association (HOA) that the public is allowed access to the community and that the Board asked staff to send a letter to the HOA reminding of them of the gate orders.^[2] Subsequently, the Applicant submitted an undated letter, stating: (1) security staff erred when they denied FEMA entry; (2) it had revised the gatehouse post orders to clarify that the public cannot be denied access; and (3) many roadways inside the community are publicly owned roads. The Applicant submitted the revised gatehouse post orders to FEMA.

On April 10, 2024, FEMA denied the Applicant’s request in a Determination Memorandum (DM), noting that while the Applicant had shown the community was open to the public, the only facilities accessible to the public were the roads.^[3] FEMA found (1) the egress gate maintains access control in service of only members of the community and not the general public; (2) the privacy walls, clocktower and fence screen provide aesthetic views for the benefit of the community, not the general public; (3) the privacy hedge was cosmetic and therefore ineligible; (4) the sod work was ineligible because it was not an integral part of an eligible recreational facility nor necessary to restore the function of a facility; and (5) the Applicant had not demonstrated the claimed stumps posed an immediate threat. Therefore, work associated with these items was not eligible for PA funding. FEMA also found that even though the community roads were open to the public and the road signs served the public purpose of traffic control, the cost claimed to repair the road signs ($2,795.00) fell below the minimum project threshold. Therefore, the cost was not eligible for PA funding.

First Appeal

In a letter dated June 3, 2024, the Applicant submitted a first appeal, as well as photographs of the claimed damages, a completed work contract summary with supporting invoices, Grants Portal screenshots showing work approved in prior disasters, and documentation related to Bella Terra’s stormwater system.[4] The Applicant asserted FEMA was acting inconsistently since it had previously funded work to restore many of the Facilities.^[5] The Applicant stated that FEMA found in the DM that the community is open to the general public. 

The Applicant also asserted that since the community’s stormwater management system serves the general public and should be eligible for PA funding, the Facilities are also eligible. The Applicant stated its stormwater management system is interconnected with the systems of neighboring communities which, together, serve southwest Florida and that it is not logical to require the system to be open to the public since the service it provides is not associated with public use. In a letter dated July 24, 2024, the Florida Division of Emergency Management (Recipient) transmitted the first appeal to FEMA. 

In a letter dated December 16, 2024, the FEMA Region 4 Regional Administrator denied the appeal, noting the revised gatehouse policy allowing access to the public was dated after the disaster and did not indicate that it was valid at the time of the disaster. FEMA found that the Applicant did not demonstrate that it owns or operates a facility that is both open to, and provides an eligible service for, the general public. 

Second Appeal

In a letter dated February 14, 2025, the Applicant submits a second appeal reiterating its first appeal arguments. The Applicant asserts that the gatehouse post orders show the community is accessible to the public and that FEMA noted this was recorded in board meeting minutes which predate the disaster. In a letter dated March 18, 2025, the Recipient transmitted the second appeal to FEMA.

Discussion

FEMA may provide PA funding to a local government for repair of a public facility damaged by a major disaster.^[6] Local government includes special districts, such as a Community Development District (CDD).[7] To be eligible, a CDD must own and be legally responsible for maintenance, and operation of an eligible facility that is open to and serves the general public.^[8] When a facility maintained by a CDD is not open to the general public or does not serve the general public, the facility is not eligible for PA funding.^[9] 

The Applicant asserts that Bella Terra is open to the public as shown by its board meeting minutes and gatehouse post orders. However, the Applicant held the board meeting and revised the gatehouse post orders after FEMA documented that it was denied entry to Bella Terra.^[10] While the Applicant took corrective action to address FEMA being denied entry, neither the meeting minutes nor the revised gatehouse orders demonstrate Bella Terra was open to the public at the time of the disaster. Further, Bella Terra’s rules and regulations state the community’s roads are private.[11] As such, FEMA finds that Bella Terra and its facilities are not open to the public.^[12]

As to the service provided to the public by the Facilities, while road signs generally serve the public purpose of traffic control, the service here is limited to the community since the roads are private. Similarly, the claimed emergency egress gate restricts public access while allowing community members to rapidly exit Bella Terra during an emergency; as such, it too serves the community. As for the privacy walls, clocktower, and fence screen, these items beautify the community for its members and thus serve only the community. In addition, sod replacement is eligible for PA if it is an integral part of the restoration of an eligible recreational facility or necessary to restore the function of the facility.[13] The submitted photographs indicate the sod at issue does not meet this criteria; however, even if it did, the work would still be ineligible because any such facility within the community is not open to the public. 

Regarding the claimed stump grinding, eligible vegetative debris removal may include stumps or trees that are still in place, but damaged to the extent they pose an immediate threat.[14] Such items are ineligible if the hazard existed prior to the incident, or if they are in a natural area and do not extend over improved property or public-use areas.^[15] Aside from the submitted invoice, the Applicant provided no information about the stump removal work to demonstrate it meets FEMA requirements. Lastly, the Applicant’s request for replacement of a privacy hedge is ineligible because cosmetic or aesthetic vegetation is ineligible for replacement.^[16] 

Finally, while not among the Facilities on appeal, the Applicant claims that its stormwater management system provides a service to the general public because it connects to county-wide stormwater systems, so the claimed Facilities should likewise be eligible. However, the record does not show that the stormwater system is a flood control, irrigation, reclamation, sewage treatment and collection, water supply and distribution, or watershed development that provides a service to the general public.[17] Rather, as documented in the South Florida Water Management District (SMFWD) Environmental Resources Permit, the stormwater management system was constructed to manage stormwater as a service to the Applicant’s community.^[18] As a stormwater management system, it may have an indirect impact on other critical facilities; however, a tenuous relationship between a facility and other emergency or critical facilities is not enough to find the facility eligible.[19]

FEMA finds the Applicant has not demonstrated the Facilities were open to and served the general public at the time of the disaster.^[20]

Conclusion

The Applicant has not demonstrated the claimed Facilities were open to and served the general public at the time of the disaster; thus, they are not eligible for PA funding. Therefore, the appeal is denied.