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Public Interest, Result of Declared Incident

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster4420
ApplicantSID #5-Timberwood
Appeal TypeSecond
PA ID#053-U86XF-00
PW ID#GMP 103252, 103242, 99881
Date Signed2021-09-02T16:00:00

Summary Paragraph

Beginning March 9, 2019, a severe winter storm and flooding submerged roads and other infrastructure and deposited debris and caused damage to SID#5-Timberwood’s (Applicant)’s roads, culvert, and boat ramp.  The Applicant, a Community Development District (CDD), requested Public Assistance (PA) to address claimed disaster damage.  FEMA found the repairs were ineligible because other than 425 feet of a public entrance road, its roads, culvert, and boat ramp were not open to the general public, and it did not show that work was required as a result of the declared incident.  The Applicant submitted first appeals, asserting its roads, culvert, and boat ramp were open to the general public, that it performed maintenance, and that the declared incident caused the claimed damages.  The Applicant responded to a Request for Information from FEMA with information to support its claims.  The FEMA Region VII Regional Administrator (RA) denied the first appeals, finding that although the Applicant met the FEMA definition of a CDD, facilities maintained by CDDs must be open to or provide services for the general public to be eligible for funding.  FEMA also found the repairs to the 425 feet of public entrance road were ineligible because the Applicant did not show the damages were the result of the declared incident.  The Applicant submits second appeals reiterating earlier arguments. 

Authorities and Second Appeals

  • Stafford Act §§ 102, 406(a)(1)(A).
  • 44 C.F.R. § 206.223(a)(1).
  • PAPPG v 3.1, at 15, 19, 116, 133.
  • Village Center Cmty. Dev. Dist., FEMA-4337-DR-FL, at 4; Sumter Landing Cmty. Dev. Dist., FEMA-4337-DR-FL, at 3; Duxbury Beach Reservation, Inc., FEMA-4110-DR-MA, at 5; Belmont Lakes Cmty. Dev. Dist., FEMA-4337-DR-FL, at 4.

Headnotes 

  • Per the PAPPG, to be eligible for financial assistance, a CDD must be legally responsible for the ownership, maintenance, and operation of an eligible facility that is open to the general public. 
  • The Applicant’s roads, culvert, and boat ramp are not open to the general public.   
  • Section 406 of the Stafford Act authorizes FEMA to provide assistance for the repair, restoration reconstruction or replacement of facilities damaged by a major disaster.  Such work must be required as a direct result of the declared major disaster or emergency.  It is the Applicant’s responsibility to substantiate its claim. 
  • The Applicant has not substantiated that the claimed repairs were required as a result of the declared incident.   

Conclusion 

FEMA finds that the facilities, with the exception of 425 feet of public road, are not open to the general public and, because the Applicant is a CDD, are not eligible for PA funding.  For the 425 feet of public road at issue, the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Therefore, the appeal is denied. 

Appeal Letter

Bryan Tuma               

Assistant Director                                                                  

Nebraska Emergency Management Agency             

2433 N.W. 24th Street                                               

Lincoln, NE 68524

 

Re:  Second Appeals – SID #5-Timberwood, PA ID: 053-U86XF-00, FEMA-4420-DR-NE, Grants Manager Projects (GMP) 103252, 103242, 99881, Public Interest, Result of Declared Incident

 

Dear Mr. Tuma:

This is in response to your letter dated May 19, 2021, which transmitted the referenced second appeal on behalf of SID#5-Timberwood (Applicant).  The Applicant is appealing the U.S. Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) denial of Public Assistance (PA) funding and is requesting $622,230.20 for work to repair its roads, culvert, and boat ramp and for hazard mitigation.

As explained in the enclosed analysis, I have determined that the facilities, with the exception of 425 feet of public road, are not open to the general public and, because the Applicant is a Community Development District (CDD), are not eligible for PA funding.  For the 425 feet of public road at issue, the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Therefore, the appeal is denied. 

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 C.F.R. § 206.206, Appeals.

 

                                                                      Sincerely,

                                                                          /S/

                                                                      Ana Montero

                                                                     Division Director

                                                                     Public Assistance Division

 

Enclosure

cc:  Kathy D. Fields

Regional Administrator (Acting)

FEMA Region VII

Appeal Analysis

Background

Beginning March 9, 2019, Nebraska experienced a severe winter storm, flooding, and straight-line winds.  Flooding of the Platte River during the incident period submerged roads and other infrastructure and deposited debris in the jurisdiction of Sanitary and Improvement District (SID) #5-Timberwood (Applicant).  The Applicant is a SID organized under Nebraska Laws to service the geographical area of the Timberwood development, which consists of approximately 25 homes situated around the Timberwood Lake.  On March 13, 2019, flood waters began to rise along Timberwoods Drive, the sole access to the Applicant’s jurisdiction, and the Applicant closed the road due to the danger to the residents.  The Applicant was able to access the area to make emergency road repairs on March 22, 2019. 

The Federal Emergency Management Agency (FEMA) wrote multiple projects to document work for the Applicant to repair its roads and for hazard mitigation, to replace a corrugated metal pipe (CMP) culvert under the access road leading to the Timberwood development and for hazard mitigation, and to repair its boat ramp, dock, gravel drive, fill and associated landscaping.  The boat dock and ramp provided access to Timberwood Lake in the Timberwood development.

In Determination Memoranda (DMs) dated July 20, 2020, FEMA advised the Applicant that the work was not eligible for Public Assistance (PA) funding.  FEMA first found that the Applicant was a Community Development District (CDD) and its facilities needed to be open to the general public to be eligible for funding.  FEMA concluded a private road sign[1] located in front of the development stating that the road was a “Private Road” and limited right-of-way easements demonstrated the CDD’s facilities were not open to the general public.  FEMA concluded that the majority of the roads, as well as the culvert and boat ramp, were associated with the private portion of the access road and as such were ineligible.  FEMA found that only the first 425 feet of its road were open to the general public and deemed an eligible facility.  FEMA then found the Applicant had not established that it routinely maintained and repaired the roads; therefore, the Applicant had not demonstrated that the claimed work was required as result of the disaster. 

 

First Appeal

The Applicant submitted three first appeals dated September 17, 2020.  For all three appeals, the Applicant stated that the actual use of the roads demonstrated that the roads, culvert, and boat ramp were open to the general public and eligible for PA funding.  In support, the Applicant provided an affidavit of a resident attesting to the same, cited the U.S. Postal Service’s use of the roads to deliver mail, and attached photographs of the entry gates to the development to show that they did not prevent public access.  The Applicant also provided records showing it performed snow removal and mowing and stated that the roads did not require any substantial repairs from 2003 until the time of the flood.[2]  The Applicant referenced an aerial photo attached to its first appeal to support its contention the pavement does not show cracking or other damage, only farm equipment tire tracks.  The Applicant also stated that there was  “significant truck traffic on the road” because “adjacent properties are still being excavated for sand and gravel.”[3]  The Nebraska Emergency Management Agency (Grantee) transmitted the Applicant’s first appeals without including a recommendation to FEMA.

FEMA Region VII issued a Request for Information (RFI) to the Applicant on December 22, 2020.  FEMA sought information to support the Applicant’s claim that the roads, culvert, and boat ramp are open to the general public and were maintained.  The Applicant responded to the RFI on January 21, 2021, providing information about the gate along the entrance road, and stated that no sign along Highway 30 indicates the presence of the development or any access to the Platte River.  The Applicant stated it did not install the gate nor was it responsible for the gate.  The Applicant also provided a summary of damages and costs for repairs to the first 425 feet of the entrance road.  The Applicant stated that the road was “overtopped” prior to the declared incident but had sustained “little to no damage.”[4]  The Applicant indicated the road was flooded again in 2020, which caused damage to some of the ongoing work to repair the 2019 damages.

The FEMA Region VII Regional Administrator denied the first appeals on March 18, 2021.  Although FEMA found the Applicant met the FEMA definition of a CDD and facilities maintained by CDDs must be open to or provide services for the general public to be eligible for funding.  With the exception of 425 feet of entrance road, FEMA found the roads, culvert and boat ramp were not open to the general public and were not eligible.  In addition, FEMA found the repairs to the 425 feet of public road were not eligible because the Applicant’s documentation was insufficient to show that the damages were the result of the declared incident.

 

Second Appeal

On second appeal, the Applicant resubmits its attachments from its first appeals, and primarily reiterates its arguments from its first appeals.  The Grantee transmitted the appeal with a letter of support.

 

Discussion

Public Interest

FEMA may provide PA funding to a local government, including special districts, such as CDDs, for the repair of a public facility damaged by a major disaster.[5]  However, when a facility a CDD maintains is not open to the general public or does not provide a service to the general public, the facility is not eligible for PA funding.[6]

Here, with the exception of the 425 feet of the Timberwoods entrance road designated as public, the Applicant’s roads, culvert, and boat ramp are not open to the general public.  The road sign in front of the development states “Private Road, Homeowners and Guests Only”[7] in large red lettering and the sign is located in front of gates that can swing closed.[8]  Neither the resident’s affidavit nor the U.S. Postal Service’s use of the roads substantiate the Applicant’s claim that the general public was not deterred from entering the community and accessing the Roads.[9]  Rather, it is reasonable to infer that the main intent behind a road sign that states “Private Road, Homeowners and Guests Only” is to mark a boundary and prevent the public from intruding into the area.[10]  Therefore, with the exception of the 425 feet of the Timberwoods entrance road designated as public, the Applicant’s roads, culvert, and boat ramp do not meet the requirement of being either accessible to or in service of the general public, and are not facilities that are eligible for PA funding.

 

Result of Declared Incident

FEMA may provide PA funding to a local government for the repair of a public facility damaged by a major disaster.[11]  To be eligible for financial assistance, an item of work must be required as the result of the declared incident.[12]  FEMA requires documentation to support that the work is eligible.[13]  The applicant is responsible for providing documentation to support its claim as eligible and show that work is required to address damage caused by the disaster.[14]  When evaluating eligibility of reported road damage, FEMA may review invoices and maintenance records to establish that the Applicant has a routine maintenance program.[15]  Such documentation may be helpful to establish the predisaster condition of a facility and demonstrate that the damage was directly caused by the incident.[16]  FEMA does not provide PA funding for normal maintenance or the repair of damage caused by deterioration.[17]      

Here, the repairs to the first 425 feet of road included concrete paving and patching to address pavement that was cracking.  Although the Applicant states that it maintained the roads by mowing and removing snow and provides a list of corresponding expenditures, these activities do not allow FEMA to distinguish the claimed damage from normal deterioration.  The Applicant states that the road, which was paved in 2003, “remained in sufficient operational condition” until the declared incident, it also acknowledges that the road was “overtopped”[18] before the declared incident and that “there is significant truck traffic on the road” because of ongoing sand and gravel excavation work on adjacent properties.[19]  Accordingly, the documentation provided by the Applicant’s does not establish that the claimed work was required as a result of the declared incident rather than from previous flooding, heavy truck traffic, normal deterioration, lack of maintenance, or other causes. 

 

Conclusion

FEMA finds that the facilities, with the exception of 425 feet of public road, are not open to the general public and, because the Applicant is a CDD, are not eligible for PA funding.  For the 425 feet of public road at issue, the Applicant has not demonstrated that the claimed work was required as a result of the declared incident.  Therefore, the appeal is denied. 

 

 

[1]The road sign was identified during a meeting between FEMA and the Applicant, and a photo of a road sign going into the community was obtained. The sign is posted on the entrance road and states in red, capital lettering: “PRIVATE ROAD HOMEOWNERS & GUESTS ONLY TIMBERWOOD HOMEOWNERS ASSOCIATION.”  See Memorandum from Infrastructure Branch Dir., FEMA Region VII, at 3 (July 20, 2020) [hereinafter Determination Memorandum, PN 103252]A copy of the photograph is attached to the Determination Memorandum, PN 103252.  The Applicant stated in its first appeal letters that the Applicant has never implemented the policy stated on the road sign.

[2] See Letter from Clerk, SID #5 – Timberwood, to Assistant Dir., Neb. Emergency Mgmt. Agency, Attachment 6 (Sept. 17, 2020) (first appeal for PN 103252).

[3] Id. at 3.

[4] See Letter from Clerk, SID #5 – Timberwood, to Assistant Dir., Neb. Emergency Mgmt. Agency, at 4 (Jan. 21, 2021) (hereinafter RFI Response).

 

[5] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act § 406(a)(1)(A), 42 U.S.C. 5172(a)(1)(A) (2018); Stafford Act § 102(8)(A), 42 U.S.C. 5122(8)(A); Public Assistance Program and Policy Guide, FP 104-009-2, at 10 (Apr. 2018) [hereinafter PAPPG].  The Applicant agrees it meets the definition of a CDD.  See Letter from Clerk, SID #5 – Timberwood, to Assistant Dir., Neb. Emergency Mgmt. Agency, re: GM 103242 – Culvert Perm Repair, at 5 (Sept. 17, 2020).

[6] PAPPG, at 15.

[7] See Determination Memorandum, PN 103252, photo attachment.

[8] See FEMA Second Appeal Analysis, Village Center Cmty. Dev. Dist., FEMA-4337-DR-FL, at 4 (Sept. 16, 2020), and FEMA Second Appeal Analysis, Sumter Landing Cmty. Dev. Dist., FEMA-4337-DR-FL, at 3 (Aug. 28, 2020), (finding that the use of gates and guard houses restrict access to the general public for applicants’ facilities, including their streets and rights-of-way, despite applicants’ assertions that the gates only exist to control traffic flow and can be opened by anyone, and their facilities host occasional public events).

[9] See FEMA Second Appeal Analysis, Duxbury Beach Reservation, Inc., FEMA-4110-DR-MA, at 5 (May 15, 2017) (rejecting the Applicant's argument that, by simply being available to emergency vehicles 100 percent of the time, its roadway provides an essential service of a governmental nature because this “interpretation would allow any private road to be eligible for PA funding because all roads are ‘available’ access points for emergency vehicles, even those in gated communities.”).

[10] See FEMA Second Appeal Analysis, Belmont Lakes Cmty. Dev. Dist., FEMA-4337-DR-FL, at 4 (June 8, 2020) (inferring that the Applicant, which managed security for a gated community, maintained fencing along its northern boundary to clearly mark the boundary and prevent intrusion onto the community’s property).

[11] Stafford Act § 406(a)(1)(A).

[12] Title 44 Code of Federal Regulations (44 C.F.R.) § 206.223(a) (2018).

[13] PAPPG, at 133.

[14] PAPPG at 19, 116, 133.

[15] Id, at 116.

[16] Id.

[17] Id. at 19, 116.

[18] RFI Response at 4.

[19] See Letter from Clerk, SID #5 – Timberwood, to Assistant Dir., Neb. Emergency Mgmt. Agency, at 4, 9

(May 17, 2021) (second appeal for PN 103252).

 

Last updated September 8, 2021