Scituate, MA, Elevation at Edward Foster Road
Appeal Brief
Appeal Letter
Appeal Analysis
Title 44 CFR Part 13.43 (Enforcement) subpart (a) Remedies for noncompliance states in part, “ If a grantee or subgrantee materially fails to comply with any term of an award…the awarding agency may take one or more of the following actions, as appropriate in the circumstances:… (2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance.”
Sandra K. Knight, PhD, PE
Deputy Federal Insurance and Mitigation Administrator, Mitigation
Title 44 CFR Part 13.43 (Enforcement) subpart (a) Remedies for noncompliance states in part, “ If a grantee or subgrantee materially fails to comply with any term of an award…the awarding agency may take one or more of the following actions, as appropriate in the circumstances:… (2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance.”
Appeal Brief
| Applicant | Massachusetts Emergency Management Agency |
| Appeal Type | 2nd |
| Date Signed | 2012-08-16T00:00:00 |
1st Appeal
• Issue
o The Town of Scituate, Massachusetts received an HMGP grant to elevate existing residential structures. Prior to elevation, a portion of one of the structures was demolished, inconsistent with the approved scope of work (SOW). The remainder of the structure was demolished (excluding the floor joists and foundation) following the completion of the elevation, and prior to the proper closeout of the project. This SOW change and subsequent demolition precluded the issuance of a Certificate of Occupancy and the closeout of the project.
o The Commonwealth submitted a 1st appeal on August 5, 2011, stating the structure on the property was raised above the identified base flood elevation and the risk of future flood damage has been minimized.
• Issue
o The Town of Scituate, Massachusetts received an HMGP grant to elevate existing residential structures. Prior to elevation, a portion of one of the structures was demolished, inconsistent with the approved scope of work (SOW). The remainder of the structure was demolished (excluding the floor joists and foundation) following the completion of the elevation, and prior to the proper closeout of the project. This SOW change and subsequent demolition precluded the issuance of a Certificate of Occupancy and the closeout of the project.
o The Commonwealth submitted a 1st appeal on August 5, 2011, stating the structure on the property was raised above the identified base flood elevation and the risk of future flood damage has been minimized.
• Reason for Denial
o Region I based the denial of the 1st appeal on a failure to materially comply with the terms of the award by impermissibly changing the SOW, failure to complete the project and failure to close out the project.
• Reference(s)
o 44 CFR 206.434 Eligibility; 44 CFR 206.440 Appeals; 44 CFR 206.436 Application Procedures; 44 CFR Part 13.30 Changes; HMGP Desk Reference Prior approval for SOW Changes; 44 CFR Part 13.43 Enforcement
2nd Appeal
• Issue
o The Commonwealth submitted a second appeal, restating grounds for the initial appeal. The appeal further contended that there had been no impermissible change to the SOW and that the project was properly completed.
• FEMA Findings
o FEMA HQ denied the 2nd appeal, supporting Region I’s decision to deny the 1st appeal.
o Rationale: Grantees are required to obtain FEMA approval prior to changing the SOW.
o Reference(s): 44 CFR 206.440 Appeals; 44 CFR 206.434 Eligibility; 44 CFR 206.436 Application Procedures; 44 CFR Part 13.30 Changes; HMGP Desk Reference - Prior approval for SOW Changes; 44 CFR Part 13.43 Enforcement
o Region I based the denial of the 1st appeal on a failure to materially comply with the terms of the award by impermissibly changing the SOW, failure to complete the project and failure to close out the project.
• Reference(s)
o 44 CFR 206.434 Eligibility; 44 CFR 206.440 Appeals; 44 CFR 206.436 Application Procedures; 44 CFR Part 13.30 Changes; HMGP Desk Reference Prior approval for SOW Changes; 44 CFR Part 13.43 Enforcement
2nd Appeal
• Issue
o The Commonwealth submitted a second appeal, restating grounds for the initial appeal. The appeal further contended that there had been no impermissible change to the SOW and that the project was properly completed.
• FEMA Findings
o FEMA HQ denied the 2nd appeal, supporting Region I’s decision to deny the 1st appeal.
o Rationale: Grantees are required to obtain FEMA approval prior to changing the SOW.
o Reference(s): 44 CFR 206.440 Appeals; 44 CFR 206.434 Eligibility; 44 CFR 206.436 Application Procedures; 44 CFR Part 13.30 Changes; HMGP Desk Reference - Prior approval for SOW Changes; 44 CFR Part 13.43 Enforcement
Appeal Letter
Mr. Kurt N. Schwartz
Director
Massachusetts Division of Emergency Management
400 Worchester Road.
Framingham, Massachusetts 01702-5399
Director
Massachusetts Division of Emergency Management
400 Worchester Road.
Framingham, Massachusetts 01702-5399
Re: Second Appeal: Town of Scituate, MA Project # DR-1614-4R, FEMA DR-1614-MA
Dear Mr. Schwartz:
This is in response to your letter dated December 30, 2011, which transmitted the referenced second appeal for the Commonwealth of Massachusetts (Commonwealth) on behalf of the Town of Scituate (Town) to the Department of Homeland Security, Federal Emergency Management Agency (FEMA). The Commonwealth requests that FEMA reimburse funds used to complete a project located at XXX Edward Foster Road.
Background:
The Town submitted a HMGP subapplication to the Commonwealth of Massachusetts following a presidential major disaster declaration (FEMA-1614-DR) approved on November 16, 2005. The proposed project was to elevate existing residential structures and utilities, including the structure at XXX Edward Foster Road in Scituate, MA (project DR-1614-4R). The Commonwealth submitted the subgrant application on May 11, 2007. FEMA approved the application on August 19, 2008. Subsequently, the Town began the building permit and construction phase of the project. FEMA Region I staff became aware of issues concerning the project DR-164-14R on or about November 30, 2010, while conducting a site visit and speaking with the State Hazard Mitigation Officer (SHMO) and community staff. The owners of the property at XXX Edward Foster Road demolished a section of the structure before elevating the remainder of the structure. After elevating the existing structure, the owners demolished the entire structure except the floor joists and foundation. FEMA determined that this project was not eligible for funding because the Town failed to materially comply with the terms of the award. The Town of Scituate impermissibly changed the scope of work, failed to complete the project, and failed to take the necessary steps to close out the project.
The Town submitted a HMGP subapplication to the Commonwealth of Massachusetts following a presidential major disaster declaration (FEMA-1614-DR) approved on November 16, 2005. The proposed project was to elevate existing residential structures and utilities, including the structure at XXX Edward Foster Road in Scituate, MA (project DR-1614-4R). The Commonwealth submitted the subgrant application on May 11, 2007. FEMA approved the application on August 19, 2008. Subsequently, the Town began the building permit and construction phase of the project. FEMA Region I staff became aware of issues concerning the project DR-164-14R on or about November 30, 2010, while conducting a site visit and speaking with the State Hazard Mitigation Officer (SHMO) and community staff. The owners of the property at XXX Edward Foster Road demolished a section of the structure before elevating the remainder of the structure. After elevating the existing structure, the owners demolished the entire structure except the floor joists and foundation. FEMA determined that this project was not eligible for funding because the Town failed to materially comply with the terms of the award. The Town of Scituate impermissibly changed the scope of work, failed to complete the project, and failed to take the necessary steps to close out the project.
The Commonwealth submitted a first appeal on August 5, 2011, stating the structure on the property was raised above the identified base flood elevation and the risk of future flood damage has been minimized. The Regional Administrator denied the appeal on November 1, 2011, because the Town failed to materially comply with terms of the Grant Award for project DR-1614-4R by impermissibly changing the scope of work for the project, failed to complete the project, and failed to take the steps.
Analysis:
The HMGP Desk Reference (page 13-12) requires States to obtain prior approval from FEMA before implementing scope of work changes, which are defined as revisions to the objectives of an approval project (regardless of budget implications). Furthermore, 44 CFR Part 13.30 (Changes) subpart (d) Programmatic changes states in part, “Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated: (1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval)…”
The HMGP Desk Reference (page 13-12) requires States to obtain prior approval from FEMA before implementing scope of work changes, which are defined as revisions to the objectives of an approval project (regardless of budget implications). Furthermore, 44 CFR Part 13.30 (Changes) subpart (d) Programmatic changes states in part, “Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated: (1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval)…”
Title 44 CFR Part 13.43 (Enforcement) subpart (a) Remedies for noncompliance states in part, “ If a grantee or subgrantee materially fails to comply with any term of an award…the awarding agency may take one or more of the following actions, as appropriate in the circumstances:… (2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance.”
Conclusion:
Based on review of all information submitted with the appeal, I have determined that the Regional Administrator’s determination on the first appeal is consistent with program regulations and guidance. Therefore, the appeal is denied.
Based on review of all information submitted with the appeal, I have determined that the Regional Administrator’s determination on the first appeal is consistent with program regulations and guidance. Therefore, the appeal is denied.
Please inform the Town of this determination. My determination is FEMA’s final decision on this matter pursuant to 44 CFR 206.440, Appeals.
Sincerely,
Sandra K. Knight, PhD, PE
Deputy Federal Insurance and Mitigation Administrator, Mitigation
cc: Don R. Boyce, Regional Administrator, FEMA Region I
Appeal Analysis
A residential structure had been part of an HMGP application for elevation of structures. The property owners demolished a part of the structure before beginning the elevation process at XXX Edward Foster Road. Also demolished prematurely was the remainder of the residential structure (with the exception of some floor joists); and then new residential construction was initiated before the Commonwealth and Town of Scituate completed a final site inspection and before the Town issued a Certificate of Occupancy for the existing structure. FEMA Region I informed the Commonwealth that the costs incurred under this project were ineligible for HMGP funding, by letter of 2/16/2011.
The basis of 1st Appeal denial was that Commonwealth and Town failed to materially comply with terms of the award because they impermissibly changed the scope of work for the project, failed to complete the project, and failed to take the steps necessary to close out the project.
According to the Region I Deputy Regional Administrator, the information provided by the Town of Scituate under the second appeal did not offer any argument or evidence that warranted a reversal of conclusions in the 1st Appeal, or detail the specific provisions of federal law, FEMA regulation, or HMGP grant guidance with which the Town of Scituate believed the previous determination was inconsistent.
The HMGP Desk Reference (page 13-12) requires States to obtain prior approval from FEMA before implementing scope of work changes, which are defined as revisions to the objectives of an approval project (regardless of budget implications). Furthermore, 44 CFR Part 13.30 (Changes) subpart (d) Programmatic changes states in part, “Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated: (1) Any revision of the scope or objectives of the project (regardless of whether there is an associated budget revision requiring prior approval)…”
Title 44 CFR Part 13.43 (Enforcement) subpart (a) Remedies for noncompliance states in part, “ If a grantee or subgrantee materially fails to comply with any term of an award…the awarding agency may take one or more of the following actions, as appropriate in the circumstances:… (2) Disallow (that is, deny both use of funds and matching credit for) all or part of the cost of the activity or action not in compliance.”
Last updated August 19, 2014