Inactive or Alternative Use Facility

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4399
Applicant	Trinity United Methodist Church
Appeal Type	Second
PA ID#	005-0AF1-00
PW ID#	PW 734/ GMP 84103
Date Signed	2022-02-17T17:00:00

Summary Paragraph

On October 10, 2018, Hurricane Michael made landfall in the Florida Panhandle.  The President declared the event a major disaster on October 11, 2018, with an incident period of

October 7-19, 2018.  Trinity United Methodist Church( Applicant), an eligible Private Nonprofit (PNP) organization, incurred damage due to the event to its Facility.  The Applicant, prior to the event, leased the Facility to Longleaf Outreach and Development Inc. (Longleaf), a PNP which provides transitional housing, education, and other resources to the community.  The Facility was not being actively used at the time of the event as the Lease expired on October 1, 2018, Longleaf vacated the Facility prior to the Lease expiration date, and the Facility was undergoing repairs, remodeling, and cleaning.  FEMA FEMA denied funding, finding the Facility did not have an active lease at the time of the event and was vacant/not in use.  The Applicant submitted a first appeal to the Florida Division of Emergency Management (Grantee), stating that the Facility should be eligible for PA funding because it was only temporarily inactive and in the process of being repaired and prepped for a new tenant at the time of the event.  The FEMA Region IV Regional Administrator denied the appeal, finding the Facility was not eligible for PA funding because it was not being used to provide eligible PNP services at the time of the event.  The Applicant submits its second appeal, reiterating its first appeal arguments. 

Authorities and Second Appeals

• Stafford Act § 406(a)(1)(B).
• 44 C.F.R. §§ 206.221(e); 206.226(k)(2).
• PAPPG, at 11, 13, 15, 18, 113.

Headnotes

• For PNP facilities, more than 50 percent of the facility had to be in active use for an eligible purpose at the time of the event in order for the facility to be eligible for PA funding.
  • Here, the prior PNP tenant had ended its lease and vacated the property prior to the event and the PNP Applicant that owned the Facility was not using it at the time of the event for an eligible purpose.  

Conclusion

FEMA finds the Facility was not in active use for an eligible PNP service at the time of the declared event.  Therefore, this appeal is denied.

Appeal Letter

Appeal Analysis

Background

On October 10, 2018, Hurricane Michael made landfall near Mexico Beach in the Florida Panhandle.  The President declared the event a major disaster on October 11, 2018, with an incident period of October 7-19, 2018.  Trinity United Methodist Church (Applicant), an eligible Private Nonprofit (PNP) organization, incurred damage from Hurricane Michael to its parsonage house (Facility).  The Applicant leased its Facility from November 1, 2017 to October 1, 2018 to Longleaf Outreach and Development Inc. (Longleaf),[1] a PNP providing transitional housing, education, and other resources.  At the time of the event, the Facility was not being actively used as the Lease had expired and Longleaf, and the occupants, had moved out before the Lease expiration date.[2]  The Applicant states that, at the time of the event, it was in the process of repairing, remodeling, and cleaning the Facility in preparation for a new tenant, intended to continue its outreach ministries, and was pursuing new tenants.[3]  FEMA prepared Grants Manager Project 84103/Project Worksheet 734 to document the damage and costs.  On

April 20, 2021, FEMA issued a Determination Memorandum notifying the Applicant that the Facility was ineligible for Public Assistance (PA) funding because it did not have an active lease at the time of the event and the Facility was vacant/not in use.

First Appeal

On May 12, 2021, the Applicant submitted its first appeal to the Florida Division of Emergency Management (Grantee), stating that the Facility should be eligible for PA funding because it was in the process of being repaired and prepped for a new tenant at the time of the disaster. 

The Applicant also provided repair invoices and proof of payment.  On July 9, 2021, the Grantee transmitted the Applicant’s first appeal to FEMA with its supporting letter which reiterated the Applicant’s arguments.[4]  On September 9, 2021, the FEMA Region IV Regional Administrator denied the first appeal, finding that the Facility was not being used to provide eligible services at the time of the event; and, therefore, the Facility was not eligible for PA funding. 

Second Appeal

In its second appeal, the Applicant states: 1) it was providing the exact same service (ministry) to the general public at the time of the disaster by continuing to operate the Facility and making active repairs to prepare it for the next client; 2) during the repair period the provided service was not discontinued nor was the building ever vacant; and 3) conversations with prospective tenants to move into the Facility only stopped due to the event.  On December 17, 2021, the Grantee transmitted the Applicant’s second appeal to FEMA with its letter recommending approval and reiterating that the Facility was owned, operated and undergoing repairs by the Applicant at the time of the event and was providing an eligible service to the general public.

 

Discussion

FEMA may provide PA funding to an eligible applicant for the repair, restoration, reconstruction, or replacement of an eligible PNP facility damaged or destroyed by a major disaster.[5]  An eligible PNP facility is one that provides educational, utility, emergency, medical, or custodial care, including for the aged or disabled, or other essential social-type services to the general public.[6]  For PNP facilities, more than 50 percent of the facility had to be in active use for an eligible purpose at the time of the incident in order for the facility to be eligible.[7]  To that end, an applicant must provide documentation to support its claim is eligible.[8]  If a PNP operates or owns multiple facilities, FEMA must evaluate each building independently.[9]

Although the Applicant’s tenant Longleaf may have potentially provided essential social type services at the Facility during the Lease period, the Lease term expired and Longleaf and its occupants vacated the Facility prior to the declared event.  The Applicant has not demonstrated, with supporting documentation, that after Longleaf vacated the Facility, more than 50 percent of the Facility was in active use for an eligible purpose at the time of the declaration.  Instead the Applicant stated that the entire Facility was undergoing repairs, remodeling, and cleaning in preparation for a new tenant which the Applicant had not yet found.[10]  Here, because the Facility was not in active use, providing an eligible PNP service it is not eligible for PA funding.[11]

 

Conclusion

FEMA finds the Facility was not in active use for an eligible PNP service at the time of the declared event.  Therefore, this appeal is denied.

 

[1] Lease between Trinity United Methodist Church (TUMC) and Longleaf Outreach and Development Inc., at 1 (Nov. 1, 2017).

[2]  Email from Lead, PA PD Task Force to Rev., TUMC (Aug, 20,2020 2:36 pm)[hereinafter Confirmation Email]; Email from Rev, TUMC to Lead, PA PD Task Force (Aug. 20, 2020 4:14 pm)[hereinafter Responsive Email]; Statement of Rev. Laughlin, TUMC, at 1 (Sept. 11, 2020)[hereinafter Rev. Statement]; Letter from Rev., TUMC, to Appeals Officer, Fla. Div. of Emergency Mgmt. (FDEM) (dated May 3, 2021, submitted May 12, 2021) [hereinafter First Appeal Letter].

[3]  Rev. Statement, at 1.

[4] Letter from Recovery Bureau Chief, FDEM, to Region IV Adm’r, FEMA (July 9, 2021).

[5] Robert T. Stafford Disaster Relief and Emergency Assistance Act § 406 (a)(1)(B); 42 United States Code of Federal Regulations § 5172(a)(1)(B) (2018).

[6] Title 44 of the Code of Federal Regulations (44 C.F.R.) § 206.221(e) (2018); Public Assistance Program and Policy Guide, FP 104-009-2, at 11, 13, 15 (Apr. 1, 2018) [hereinafter PAPPG]. PAPPG states that eligible non-critical essential social-type services may include alcohol and drug treatment, rehabilitation, and residential and other services for battered spouses.

[7] Id., at 18.

[8] Id., at 133.

[9] Id., at 15.

[10] Confirmation Email; Responsive Email; Rev. Statement; First Appeal Letter.

[11] 44 C.F.R. § 206.226(k)(2) (2018); PAPPG, at 18.  There is no exception to the requirement that a PNP facility be in active use for an eligible purpose at the time of the incident, unlike the exceptions to the general active use requirement for inactive or partially inactive facilities.