Legal Responsibility – Immediate Threat – Public Interest

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4337
Applicant	Sumter Landing Community Development District
Appeal Type	Second
PA ID#	119-UAOIO-00
PW ID#	GMP 26222, 26244
Date Signed	2020-08-28T16:00:00

Summary Paragraph

Between September 4 and October 18, 2017, wind, rain, and storm surge from Hurricane Irma caused damage throughout Florida, including to Sumter Landing Community Development District (Applicant).  FEMA prepared Grants Manager Projects (GMP) 26222 and 26244 to capture the Applicant’s claim for damage and costs for debris removal and various emergency protective measures.  FEMA issued a Determination Memorandum (DM), denying the Applicant’s request for funding because the because the Applicant had not filed an insurance claim which FEMA considered the costs a duplication of benefits and because its facilities (golf courses, pools, and recreation centers) are not open to the public.  The Applicant appealed FEMA’s DM asserting its facilities are open to the general public, but also that FEMA’s policy (that community development districts be open to the public) is not based in law or regulation.  The FEMA Region IV Regional Administrator (RA) denied the first appeal stating that the Applicant is not legally responsible for the maintenance and operation of the roads in the district and its facilities are not open to and do not serve the general public.  The Applicant filed a second appeal, claiming that FEMA’s policy guidance has exceeded its discretion in requiring that the Applicant’s facilities must be open to the general public or provide a public service.  In addition, the Applicant argues the costs for debris removal are eligible costs for the individual numbered districts that own the roads and rights of ways.  Finally, the Applicant requests costs for emergency work to repair its damaged water resource management system, arguing it provides a critical service to the general public by preventing flooding to nearby public roads.

 

Authorities and Second Appeals

• Stafford Act §§ 102(8), 403, 407.
• 44 C.F.R. § 206.2, 206.223(a)(3), 206.225(a)(3).
• PAPPG, at 10-11, 15, 133.

Headnotes

• For PA funding, a Community Development District (CDD) must be legally responsible for ownership, maintenance, and operation of an eligible facility that is accessible to the general public.

• The Applicant does not own the roads associated with its claimed debris removal; therefore, it has not demonstrated legal responsibility for debris removal.
  • The Applicant’s facilities are not accessible to the general public, as they are limited to the use of its residents and have facility access policies restricting non-residents.

• Costs for emergency protective measures conducted before, during, and after an incident are eligible if the measures are necessary to eliminate an immediate threat.
  • The Applicant has not established an immediate threat existed to require the recalibration to its water control system.

 

Conclusion

The Applicant, a CDD, is not eligible for PA funding because its Facilities are not accessible to the general public and it is not legally responsible for the roads associated with its debris removal claims.  Additionally, the Applicant has not established its work to repair its water control system was necessary to eliminate an immediate threat.  Therefore, the appeal is denied.

Appeal Letter

Appeal Analysis

Background

Between September 4 and October 18, 2017, wind, rain, and storm surge from Hurricane Irma caused damage throughout Florida, including where Sumter Landing Community Development District (Applicant) is located.  The Applicant is a special community development district (CDD) [1].  The Applicant owns and maintains golf courses, pools, and recreation centers (Facilities); which are open to residents and their registered guests.  FEMA prepared two Grants Manager Projects (GMPs) (26222 for $68,736.83) and (26244 for $27,004.16) in the amount of $95,740.99 for damage sustained to the Facilities, as well as for debris removal from the roads and rights of way in the district.  On December 11, 2018, FEMA issued a Determination Memorandum denying the Applicant’s request for funding, in part, because the Facilities were not open to the public and therefore did not meet the eligibility criteria for a CDD.[2]

 

First Appeal

On February 4, 2019, the Applicant appealed FEMA’s eligibility determination.  The Applicant stated that FEMA was only relying on the language in its Public Assistance Program and Policy Guide (PAPPG) that requires facilities owned by CDDs to be open to the general public.[3]  The Applicant stated that, since the Agency’s position set forth in the PAPPG is not based on a reasonable interpretation of a statute, it is erroneous and should not be considered regarding the eligibility of damages to the Applicant’s Facilities for FEMA reimbursement.  Specifically, it argued the Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act does not support any such limitation.  Nonetheless, the Applicant stated that its Facilities are open to the general public, and FEMA exceeded its administrative discretion in creating a limitation on the eligibility of the Facilities of CDDs to those that are open to the general public.  On April 4, 2019, the Florida Division of Emergency Management (Grantee) concurred and transmitted the appeal.

On June 14, 2019, FEMA issued a request for information (RFI), requesting documentation demonstrating that: (1) the Applicant has legal responsibility for operation and maintenance for the roads within that district; and (2) the Facilities serve the general public without exclusion to membership, and facility access is not prohibited by gates or other security features.[4]  The Applicant timely responded to FEMA’s RFI stating that: (1) it does not own, operate or maintain any roads in the district; and (2) it disagreed with the assertion that its Facilities must be open to the general public to be eligible for reimbursement.[5]

On September 25, 2019, the Region IV Regional Administrator (RA) denied the appeal.  FEMA found that: (1) the Applicant is not legally responsible for costs associated with debris removal because it does not own the roads in the district; and, (2) its facilities are not open to and do not serve the general public.

 

Second Appeal

On November 25, 2019, the Applicant filed a second appeal, claiming that: (1) the costs claimed for debris removal are eligible costs for the individual numbered districts that own the roads and rights of ways and FEMA should apportion these costs; (2) its water resource management system (Maxicom) and the adjoining road each provide a critical service to the general public by ensuring that flooding from the impoundments does not impair adjacent public road and thus endanger life and public health; and, therefore any related costs are eligible; (3) FEMA’s policy guidance has exceeded its discretion in requiring that the Applicant’s Facilities must be open to the general public or provide a public service for them to be eligible for disaster reimbursement; and, (4) notwithstanding its argument regarding the propriety of FEMA’s policy, the Facilities are, in fact, open to the general public.[6]  On December 19, 2019, the Grantee forwarded the appeal, recommending approval.[7]

FEMA issued an RFI on June 10, 2020, requesting additional documentation to substantiate that the work associated with Maxicom repairs constitutes eligible emergency protective measures.  Specifically, FEMA asked the Applicant to: (1) describe what Maxicom is; (2) explain what services or systems Maxicom provides and who or what properties does Maxicom provide services/systems to; (3) provide timesheets and specific details of all work listed on the contractor’s invoices; and (4) explain how the contracted work meets criteria for emergency protective measures.

In response, the Applicant stated that Maxicom system provides a critical service to the general public by ensuring that flooding from the Sumter Landing Community Development District (SLCDD) storm water impoundments does not impair adjacent public roads and thus endanger life, safety, public health, and/or improved property.[8]  It submitted a brochure on the Maxicom system and stated that Maxicom is a central control system for the irrigation conducted at the Applicant’s Facilities.[9]  The Applicant asserted that its system controls levels in its storm water basins by monitoring their levels and adjusting irrigation amounts accordingly.  The Applicant did not provide additional timesheets or specific details of the work associated with the costs, instead stating that it had no additional documents or comments to add.

 

 

Discussion

Accessible to the General Public

FEMA may provide PA funding to a local government for emergency work, including emergency protective measures and debris removal.[10]  Eligible local governments include special districts,[11] such as a CDD.[12]  However, to be eligible, a CDD must be legally responsible for ownership, maintenance, and operation of an eligible facility that is accessible to the general public.[13]  If a facility is maintained by a CDD and is not open to the general public or does not provide a service to the general public, the facility is not eligible.[14]

The Applicant’s Facilities are not open to the general public.  Its Facilities utilize gates and guard houses that restrict access by the general public.  The Applicant asserts that the gates only exist to control traffic flow and that anyone can open them.  However, its Guest Card ID policy[15] establishes restrictions on non-residents and requires that guest card requests come from residents.  Although the Applicant notes that its Facilities host occasional public events, this does not render its Facilities accessible to the general public.  The Applicant’s Facilities are generally limited to the use of its residents and have access policies[16] restricting non-residents.[17]  Therefore, the Applicant’s Facilities do not meet the requirement of being either accessible to or in service of the general public.[18]  As such, the Applicant is not eligible for PA funding for its Facilities.

In addition, the Applicant states it does not own, operate, or maintain any roads in the district,[19] but requests funding due to FEMA’s direction that this work be included in this project.  Under FEMA policy, the Applicant is not eligible to receive funding for debris removal associated with the roads because the Applicant is not legally responsible for any roads in the district.

 

Immediate Threat – Water Control System

Emergency protective measures to save lives, to protect public health and safety, and to protect improved property are eligible.[20]  FEMA may reimburse costs for emergency protective measures conducted before, during, and after an incident if the measures are necessary to eliminate an immediate threat.[21]  It is the Applicant’s responsibility to substantiate its claim as eligible.[22]  If the Applicant does not provide sufficient documentation to support the eligibility of its claim, FEMA cannot provide PA funding for the work.[23]

The Applicant requested funding for emergency protective measures relating to the repair of the Maxicom system and asserts it meets the criteria by providing a critical service to the general public by ensuring that flooding from the CDD storm water impoundments do not impair adjacent public roads.  In support, the Applicant submitted a brochure on the Maxicom system.[24]  Emergency protective measures, however, require that eligible work done must eliminate or lessen an immediate threat.[25]  The Applicant’s documentation does not demonstrate any immediate threat to lives, to protect public health and safety, or improved property.  Therefore, the work does not qualify as an emergency protective measure.

 

Conclusion

 

The Applicant, a CDD, is not eligible for PA funding because its Facilities are not accessible to the general public and it is not legally responsible for the roads associated with its debris removal claims.  Additionally, the Applicant has not established its work to repair Maxicom was necessary to eliminate an immediate threat.  Therefore, the appeal is denied.

 

[1] Public Assistance Program and Policy Guide, FP 104-009-2, at 10 (Apr. 1, 2018) [hereinafter PAPPG] (“Community Development Districts are special districts that finance, plan, establish, acquire, construct or reconstruct, operate, and maintain systems, facilities, and basic infrastructure within their respective jurisdictions.  To be eligible, a Community Development District must be legally responsible.)

[2] See Id., at 15.

[3] Id.

[4] Letter from Dir., Recovery Div., FEMA Region IV, to Dir., Fla. Div. of Emergency Mgmt. & Authorized Agent, Sumter Landing Cmty. Dev. Dist. (June 14, 2019).

[5] Letter from Attorney, Sumter Landing Cmty. Dev. Dist. To Dir., Recovery Div., FEMA Region IV (July 9, 2019).

[6] Letter from Attorney, Sumter Landing Cmty. Dev. Dist., to Dir., Fla. Div. of Emergency Mgmt., at 2 (Nov. 25, 2019) [hereinafter Applicant’s Second Appeal].  GMP 26222 includes two claims for reimbursement for first push debris removal from roads or rights of way in the amount of $21,731.98 and $2,731.43, respectively, for a total of $24,463.41.

[7] Letter from Compliance, Appeals, and Special Projects Officer, to Assistant Adm’r-Recovery, FEMA, through Region IV Adm’r, FEMA (Dec. 19, 2019).

[8] Letter from Attorney, Sumter Landing Cmty. Dev. Dist., to Appeals Section Chief, Pub. Asst. Div., FEMA HQ (July 10, 2020) [hereinafter Applicant’s Second RFI Response].

[9] Id.

[10] Robert T. Stafford Disaster Relief and Emergency Assistance (Stafford) Act, as amended, §§ 403, 407, 42 U.S.C §§ 5170, 5173 (2017).

[11] Stafford Act § 102(8); PAPPG, at 161.

[12] PAPPG, at 10.

[13] Id.

[14] PAPPG, at 15.

[15] Villages Cmty. Dev. Dist. Guest ID Card Program Policy (June 2, 2014).  https://www.districtgov.org/departments/Recreation/images/Guest%20ID%20Policy.pdf

[16] Id.

[17] See PAPPG, at 11.  While not prescriptive for local governments, FEMA’s guidance on evaluating whether Private Nonprofit (PNP) facilities generally meet the requirement of serving the general public is informative in this analysis of a CDD.  PNP facilities generally meet the requirement of serving the general public if all of the following conditions are met: (1) facility use is not limited to a certain number of individuals, a defined group of individuals who have a financial interest in the facility (e.g., condominium associations), certain classes of individuals, or an unreasonably restrictive geographic area (e.g., a neighborhood within a community); (2) facility access is not prohibited with gates or other security systems; and, (3) any membership fees meet certain criteria.

[18] Maxicom, a central control system for controlling water levels in storm water basins located throughout the Applicant’s property may qualify as accessible to or as serving the general public because it is ancillary to storm water management.

[19] Applicant’s Second Appeal, at 2.

[20] 44 CFR § 206.225(a)(1).

[21] 44 CFR § 206.225(a)(3).

[22] PAPPG, at 133.  See also FEMA Second Appeal Analysis, Village of Waterford, FEMA-4020-DR-NY, at 4 (Sept. 4, 2014) (stating “[t]he Applicant has the burden of substantiating its claims”).

[23] PAPPG, at 133.

[24] See Attachment to Applicant’s Second RFI Response. Rain Bird Maxicom – The Worldwide Standard in Irrigation Central Control.

[25] 44 CFR § 206.225(a)(3).