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Debris Removal from Private Property
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1539-DR-FL, City Winter Springs, FL, Project Worksheet #159, Debris Removal from Private Property
Cross Reference: Gated Communities, Legal Responsibility, Debris Removal, Private Property
Summary: On August 13, 2004, Hurricane Charley (FEMA-1539-DR-FL) struck the City of Winter Springs, Florida, causing damage throughout the City. Project Worksheet (PW) 159 was prepared for $5,538,541.74 to fund debris removal from roads and public right-of-ways. A portion of the PW, in the amount of $379,957.65, was subsequently de-obligated because some of the debris was removed from gated communities and federal-aid roads within the City. The City submitted its first appeal on August 18, 2005. FEMA denied this appeal in a letter dated April 19, 2006. It stated that the City had not shown that it was legally responsible for removing debris from private property, it was not in the public interest and the applicant had not acquired right-of-entry/hold harmless agreements from property owners. The City submitted its second appeal on July 14, 2006. It asked FEMA to reconsider its previous denial and provided additional documentation to support its position.
Issues: 1. Did the City demonstrate that it was legally responsible for debris removal from private property?
2. Is debris removal from federal-aid roads eligible for public assistance funding?
Findings: 1. No.
2. No, the Federal Highway Administration provides funding for this.
Rationale: 44 CFR §206.223(a)(3), 42 USC §5155.
On August 13, 2004, Hurricane Charley (FEMA-1539-DR-FL) made landfall in Florida, causing severe damage from coast-to-coast. The hurricane resulted in 34 deaths and became the third costliest hurricane to that date. FEMA approved Project Worksheet (PW) 159 for the City of Winter Springs (City), for a total of $5,538,541.74. The scope of work included debris removal for roads and public right-of-ways throughout the City.
As debris removal continued and contractor invoices were submitted, PW 159 was updated periodically to reflect the performance of eligible work. Version 1 of PW 159 noted that some debris removed by the Citys contractor was picked up from private roads. The total eligible amount was therefore reduced by $127,876.65 to reflect this ineligible work. Version 3 of PW 159 further reduced the eligible amount by $252,081.00 to reflect work performed on private and federal-aid roads within the City. Previous appeals and appeal responses cite the amounts of $586,855.00 or $389,979.65 as the total amount in question, but a thorough review of PW 159 indicates that $379,957.65 is the actual amount in question.
First Appeal
The City of Winter Springs submitted its first appeal to the State of Florida Department of Community Affairs on August 18, 2005. The appeal claimed that the removal of hurricane debris on private property, specifically within gated communities, was clearly the responsibility of the City and was consistent with local, state and federal statutes, codes and regulations. The City maintained that it had the authority to remove debris from private property, it was acting to eliminate threats to public health and safety, and it had obtained right-of-entry/hold harmless agreements from property owners. According to the City, it had the legal responsibility to remove storm-related debris.
The State of Florida forwarded the appeal on November 21, 2005. In the first appeal response dated April 19, 2006, FEMA denied the appeal. FEMA based its decision on 44 CFR §206.223, which states that eligible work must be the legal responsibility of an eligible applicant. Furthermore, the City had not shown that the debris removal was in the public interest, in accordance with 44 CFR §206.224. Finally, FEMA cited Public Assistance Program Disaster-Specific Guidance Memorandum #8 dated September 20, 2004, which provides criteria for removing debris from private property and includes the need for hold harmless agreements when entering private property.
Second Appeal
On September 24, 2006, the State of Florida Department of Community Affairs forwarded the second appeal. In its second appeal dated July 14, 2006, the City included additional documentation and asked that FEMA reconsider its previous denial of funding.
In order to prove that it had the legal responsibility to remove storm-related debris from private property, the City argues that because Congress authorizes the removal of debris from private property, FEMA should reimburse the cost of such debris removal when a local government determines that it is in the public interest. It further states that because the City has a code in place requiring that it provide solid waste collection, it is therefore legally obligated to provide debris removal services.
To demonstrate that debris removal from private property was in the public interest, the City cites the active 2004 Atlantic hurricane season. The City asserts that debris remaining after Hurricane Charley could have potentially become life threatening in high winds caused by predicted storms. The City explains that because of the prediction that Hurricane Frances would make landfall in Florida, it issued Resolution No. 2004-38 on August 23, 2004, which allowed it to remove debris from private property. As further evidence that the debris removal was in the public interest the City states that it was necessary to ensure utility and emergency access within gated communities. It also cites the psychological effects of disasters, and health issues related to the lack of electricity.
Finally, the City submitted forms signed by the relevant homeowners associations which were signed prior to debris removal from private property. These forms allowed right-of-entry and certified the hold harmless agreement and non-duplication of benefits.
DISCUSSION
FEMA regulations authorize assistance for debris removal when it is in the public interest (see 44 CFR 206.224(a)) and the work is performed by an eligible applicant who has legal responsibility to do so. Generally, debris removal from private property is not eligible for public assistance funding. In order to be eligible, an applicant must show that it meets the preceding criteria and that it has obtained right-of-entry/hold harmless agreements from property owners. If these criteria have been met, FEMA will determine eligibility on a case-by-case basis.
The City has shown through its examples, most specifically with reference to the possibility of flying debris that would be a threat during subsequent storms and hurricanes, and to the need to provide access for emergency vehicles, that debris removal from private property was in the public interest. In addition, it has provided right-of-entry and hold harmless agreements which were signed by the agents of each homeowners association/gated community in question. However, the City has not shown that it had the legal responsibility to remove debris from private property.
The documents regarding solid waste collection do not establish legal responsibility for removing storm-related debris. There is nothing in these ordinances or regulations that specifically address the responsibility for removing storm-related debris. But rather, these documents prescribe the very ordinary specifics of routine solid waste removal, without reference to extraordinary circumstances. Likewise, the Citys emergency management ordinances do not establish the Citys legal responsibility for debris removal. Instead, they establish certain authorities that the City may assume during an emergency, for example, declaring a curfew or suspending the sale of alcohol or firearms.
The Citys resolution, Resolution No. 2004-38, on August 23, 2004, allowed for the City to spend City funds to perform disaster relief services within gated communities. This resolution was enacted after the disaster and does not specify the circumstances in which the City would take legal responsibility to remove debris from private property.
Disaster Specific Guidance # 8 dated September 20, 2004, states in part, in order for FEMA to make a case-by-case determination of eligibility on the basis of legal responsibility, each interested eligible applicant will be required to show its legal process for taking responsibility for debris on private property, and demonstrate how it followed that process. We required eligible applicants to show that they had adopted an ordinance that addresses the abatement of public health nuisances on private property, and taken action under that ordinance, as evidence of their legal responsibility to remove debris from private property. Typically, nuisance abatement ordinances require local governments to adhere to due process requirements, such as providing notice to property owners of a violation and an opportunity to be heard on the violation. If the property owner does not comply with an order to abate the nuisance, the local government is authorized to take actions to abate the nuisance and bill the property owner for costs incurred or place a lien against the property. The Applicant did not meet this standard.
One issue that was not raised, either in this appeal or in the first appeal,omncluded debris removal from federal aid roads. Debris removal from federal-aid roads is funded through the Emergency Relief Program (which was activated during this disaster) of the Federal Highway Administration (FHWA) and is therefore ineligible for FEMA reimbursement.
CONCLUSION
The City has not established that it had the legal responsibility to remove debris from private property. In addition, some debris was removed from federal-aid roads, which is funded by the FHWA. Therefore, the appeal is denied.
Appeal Brief
| Disaster | FEMA-1539-DR |
| Applicant | City of Winter Springs |
| Appeal Type | Second |
| PA ID# | XXX-XXXXX-XX |
| PW ID# | 159 |
| Date Signed | 2007-03-01T05:00:00 |
2. Is debris removal from federal-aid roads eligible for public assistance funding?
2. No, the Federal Highway Administration provides funding for this.
Appeal Letter
March 1, 2007
Mr. W. Craig Fugate
State of Florida Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
Re: Second Appeal-City Winter Springs, FIPS# 117-78325-00,
Debris Removal from Private Property, FEMA-1539-DR-FL, Project Worksheet 159
Dear Mr. Fugate:
This letter is in response to the referenced second appeal submitted by the City of Winter Springs (City) to your office on July 14, 2006, transmitted by your letter dated September 24, 2006. The City is appealing the Department of Homeland Securitys Federal Emergency Management Agency (FEMA) denial of $379,957.65 for debris removal from private property.
As explained in the enclosed analysis, I have determined that the City is not eligible for additional funding. The City did not demonstrate that it had the legal responsibility to remove debris from private property. In addition, some costs were associated with debris removal from federal-aid roads, which is funded through the Federal Highway Administration (FHWA). For these reasons, I am denying the appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/s/
David Garratt
Acting Director of Recovery
Enclosure
cc: Major Phil May
Regional Director
FEMA Region IV
Mr. W. Craig Fugate
State of Florida Department of Community Affairs
Division of Emergency Management
2555 Shumard Oak Boulevard
Tallahassee, FL 32399-2100
Re: Second Appeal-City Winter Springs, FIPS# 117-78325-00,
Debris Removal from Private Property, FEMA-1539-DR-FL, Project Worksheet 159
Dear Mr. Fugate:
This letter is in response to the referenced second appeal submitted by the City of Winter Springs (City) to your office on July 14, 2006, transmitted by your letter dated September 24, 2006. The City is appealing the Department of Homeland Securitys Federal Emergency Management Agency (FEMA) denial of $379,957.65 for debris removal from private property.
As explained in the enclosed analysis, I have determined that the City is not eligible for additional funding. The City did not demonstrate that it had the legal responsibility to remove debris from private property. In addition, some costs were associated with debris removal from federal-aid roads, which is funded through the Federal Highway Administration (FHWA). For these reasons, I am denying the appeal.
Please inform the Applicant of my decision. This determination constitutes the final decision on this matter pursuant to 44 CFR §206.206.
Sincerely,
/s/
David Garratt
Acting Director of Recovery
Enclosure
cc: Major Phil May
Regional Director
FEMA Region IV
Appeal Analysis
BACKGROUNDOn August 13, 2004, Hurricane Charley (FEMA-1539-DR-FL) made landfall in Florida, causing severe damage from coast-to-coast. The hurricane resulted in 34 deaths and became the third costliest hurricane to that date. FEMA approved Project Worksheet (PW) 159 for the City of Winter Springs (City), for a total of $5,538,541.74. The scope of work included debris removal for roads and public right-of-ways throughout the City.
As debris removal continued and contractor invoices were submitted, PW 159 was updated periodically to reflect the performance of eligible work. Version 1 of PW 159 noted that some debris removed by the Citys contractor was picked up from private roads. The total eligible amount was therefore reduced by $127,876.65 to reflect this ineligible work. Version 3 of PW 159 further reduced the eligible amount by $252,081.00 to reflect work performed on private and federal-aid roads within the City. Previous appeals and appeal responses cite the amounts of $586,855.00 or $389,979.65 as the total amount in question, but a thorough review of PW 159 indicates that $379,957.65 is the actual amount in question.
First Appeal
The City of Winter Springs submitted its first appeal to the State of Florida Department of Community Affairs on August 18, 2005. The appeal claimed that the removal of hurricane debris on private property, specifically within gated communities, was clearly the responsibility of the City and was consistent with local, state and federal statutes, codes and regulations. The City maintained that it had the authority to remove debris from private property, it was acting to eliminate threats to public health and safety, and it had obtained right-of-entry/hold harmless agreements from property owners. According to the City, it had the legal responsibility to remove storm-related debris.
The State of Florida forwarded the appeal on November 21, 2005. In the first appeal response dated April 19, 2006, FEMA denied the appeal. FEMA based its decision on 44 CFR §206.223, which states that eligible work must be the legal responsibility of an eligible applicant. Furthermore, the City had not shown that the debris removal was in the public interest, in accordance with 44 CFR §206.224. Finally, FEMA cited Public Assistance Program Disaster-Specific Guidance Memorandum #8 dated September 20, 2004, which provides criteria for removing debris from private property and includes the need for hold harmless agreements when entering private property.
Second Appeal
On September 24, 2006, the State of Florida Department of Community Affairs forwarded the second appeal. In its second appeal dated July 14, 2006, the City included additional documentation and asked that FEMA reconsider its previous denial of funding.
In order to prove that it had the legal responsibility to remove storm-related debris from private property, the City argues that because Congress authorizes the removal of debris from private property, FEMA should reimburse the cost of such debris removal when a local government determines that it is in the public interest. It further states that because the City has a code in place requiring that it provide solid waste collection, it is therefore legally obligated to provide debris removal services.
To demonstrate that debris removal from private property was in the public interest, the City cites the active 2004 Atlantic hurricane season. The City asserts that debris remaining after Hurricane Charley could have potentially become life threatening in high winds caused by predicted storms. The City explains that because of the prediction that Hurricane Frances would make landfall in Florida, it issued Resolution No. 2004-38 on August 23, 2004, which allowed it to remove debris from private property. As further evidence that the debris removal was in the public interest the City states that it was necessary to ensure utility and emergency access within gated communities. It also cites the psychological effects of disasters, and health issues related to the lack of electricity.
Finally, the City submitted forms signed by the relevant homeowners associations which were signed prior to debris removal from private property. These forms allowed right-of-entry and certified the hold harmless agreement and non-duplication of benefits.
DISCUSSION
FEMA regulations authorize assistance for debris removal when it is in the public interest (see 44 CFR 206.224(a)) and the work is performed by an eligible applicant who has legal responsibility to do so. Generally, debris removal from private property is not eligible for public assistance funding. In order to be eligible, an applicant must show that it meets the preceding criteria and that it has obtained right-of-entry/hold harmless agreements from property owners. If these criteria have been met, FEMA will determine eligibility on a case-by-case basis.
The City has shown through its examples, most specifically with reference to the possibility of flying debris that would be a threat during subsequent storms and hurricanes, and to the need to provide access for emergency vehicles, that debris removal from private property was in the public interest. In addition, it has provided right-of-entry and hold harmless agreements which were signed by the agents of each homeowners association/gated community in question. However, the City has not shown that it had the legal responsibility to remove debris from private property.
The documents regarding solid waste collection do not establish legal responsibility for removing storm-related debris. There is nothing in these ordinances or regulations that specifically address the responsibility for removing storm-related debris. But rather, these documents prescribe the very ordinary specifics of routine solid waste removal, without reference to extraordinary circumstances. Likewise, the Citys emergency management ordinances do not establish the Citys legal responsibility for debris removal. Instead, they establish certain authorities that the City may assume during an emergency, for example, declaring a curfew or suspending the sale of alcohol or firearms.
The Citys resolution, Resolution No. 2004-38, on August 23, 2004, allowed for the City to spend City funds to perform disaster relief services within gated communities. This resolution was enacted after the disaster and does not specify the circumstances in which the City would take legal responsibility to remove debris from private property.
Disaster Specific Guidance # 8 dated September 20, 2004, states in part, in order for FEMA to make a case-by-case determination of eligibility on the basis of legal responsibility, each interested eligible applicant will be required to show its legal process for taking responsibility for debris on private property, and demonstrate how it followed that process. We required eligible applicants to show that they had adopted an ordinance that addresses the abatement of public health nuisances on private property, and taken action under that ordinance, as evidence of their legal responsibility to remove debris from private property. Typically, nuisance abatement ordinances require local governments to adhere to due process requirements, such as providing notice to property owners of a violation and an opportunity to be heard on the violation. If the property owner does not comply with an order to abate the nuisance, the local government is authorized to take actions to abate the nuisance and bill the property owner for costs incurred or place a lien against the property. The Applicant did not meet this standard.
One issue that was not raised, either in this appeal or in the first appeal,omncluded debris removal from federal aid roads. Debris removal from federal-aid roads is funded through the Emergency Relief Program (which was activated during this disaster) of the Federal Highway Administration (FHWA) and is therefore ineligible for FEMA reimbursement.
CONCLUSION
The City has not established that it had the legal responsibility to remove debris from private property. In addition, some debris was removed from federal-aid roads, which is funded by the FHWA. Therefore, the appeal is denied.