Request for Public Assistance

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

Disaster	4086-DR-NJ
Applicant	Ocean Grove Camp Meeting Association
Appeal Type	Second
PA ID#	025-UXURL-00
PW ID#	N/A
Date Signed	2013-12-19T00:00:00

Conclusion: The Ocean Grove Boardwalk is an eligible private nonprofit (PNP) facility because the facility is designated as a “public highway,” connects neighboring townships and supports the execution of mutual aid agreements, and is available at all times to provide health and safety services of a governmental nature.

Summary Paragraph

Hurricane Sandy caused severe damage to the eastern section of Ocean Grove, including the Ocean Grove Boardwalk facility, which the Ocean Grove Camp Meeting Association (Applicant) owns and operates.  On February 6, 2013, FEMA determined that the Boardwalk was not an eligible PNP facility because the facility is used for recreational purposes and does not provide essential government services.  On first appeal, the Applicant contended that the facility provides a “critical service” because it serves as a thoroughfare between municipalities and as the only access point to the beachfront for emergency and police vehicles.  The FEMA Acting Regional Administrator denied the appeal, asserting that the Applicant failed to establish that, as a multiuse facility, the primary (over 50% of space or time used) function of the Boardwalk was to provide critical emergency services.  On second appeal, the Applicant further explained and documented the health and safety services of a governmental nature its facility provides.

Authorities Discussed

• Stafford Act §§102(10)(B), 406(a)(3)(A)(ii); 42 U.S.C. §§ 5122(10)(B), 5172(a)(3)(A)(ii)
• 44 CFR 206.221 (e)(7) Definitions; 206.226(c)(2) Restoration of damaged facilities
• PA Guide, FEMA 322 (June 2007), at 19

Headnotes

Stafford Act Section 102(10)(B) and 44 CFR 206.221 (e)(7) provide that eligible PNP facilities include those PNP facilities that provides essential health and safety services of a governmental nature to the general public.

• The Applicant was chartered by the State of New Jersey to establish Ocean Grove as a private non-profit.  Prior to being merged into Neptune Township, Applicant provided law enforcement, fire and rescue services for Ocean Grove. 
• The Boardwalk is recognized by New Jersey as a public highway, is not used for commercial purposes, is part of a continuous stretch of boardwalk connecting townships, and is essential to the proper functioning of mutual aid agreements with other municipalities.
• The Boardwalk employs special ambulances and regularly serves as an ad hoc command center for the Ocean Grove Beach Patrol.

PA Guide, FEMA 322’s “PNP Mixed-Use Facilities” section provides that “facilities with mixed uses must be primarily used for eligible activities.  ‘Primarily used,’ means that over 50 % of the facility space or over 50 percent of the time is used for eligible activities.” 

• This facility is always available to provide eligible health and safety services of a governmental nature.  Moreover, such services are provided in a similar fashion as and in collaboration with neighboring municipalities.   

 

Appeal Letter

Appeal Analysis

Background

The Ocean Grove Camp Meeting Association (Applicant) applied for Federal Emergency Management Agency (FEMA) Public Assistance funding for the disaster-related repair and reconstruction of the Ocean Grove Boardwalk.  The facility is one-half mile long and thirty-feet wide, lies within the Township of Neptune, and is part of a continuous stretch of boardwalk with portions to the north and south owned by Asbury Park and Bradley Beach, respectively.  On February 6, 2013, FEMA determined that the Boardwalk was not an eligible nonprofit (PNP) facility pursuant to Chapter 44 of the Code of Federal Regulations (44 CFR) § 206.221(e) and Disaster Assistance Policy DAP9521.3 Private Nonprofit Facility Eligibility.  Further, FEMA categorized the Boardwalk as a recreational facility owned by a PNP and PNP recreational facilities are ineligible for assistance under DAP9521.3.  Accordingly, FEMA denied the Applicant’s Request for Public Assistance. 

First Appeal

On April 2, 2013, in a letter from the Applicant to the State of New Jersey Office of the Governor (Grantee), the Applicant requested that FEMA reconsider its decision regarding the eligibility of the facility.  In its appeal, the Applicant sought to clarify the primary use of the Boardwalk, claiming that it was primarily used as an emergency facility to provide “critical services to the general public.”  The Applicant claimed the facility served as the community’s only public access way to the shoreline and neighboring municipalities of Ashbury Park and Bradley Beach.  Further, the Applicant contended that the Boardwalk served as a public thoroughfare that provided emergency access and life-saving operations.  In support of that contention, the Applicant provided the OGCMA Aquatic Supervision Plan, Training, and Safety Manual, which indicates that the Boardwalk serves as the headquarters for the Ocean Grove Beach Patrol’s (OGBP) operations, and information about the Area Network of Shore Water Emergency Responders (ANSWER), which is utilized by the Township of Neptune and neighboring municipalities in order to patrol and respond to public safety incidents.  Finally, the Applicant explained that after-hours OGBP lifeguards functioned “in surveillance mode from the boardwalk or the beach,” and the Boardwalk was also critical to the Neptune Police Department’s “ability to patrol and respond to public safety incidents in this section of Neptune Township.”  On May 31, 2013, the FEMA Region II Acting Regional Administrator denied the Applicant’s first appeal.  According to the Acting Regional Administrator’s decision, the Applicant failed to establish that the primary use (over 50% of space or time used) of the Boardwalk was that of an emergency facility providing an essential service of a governmental nature; therefore, the Boardwalk was not an eligible PNP facility.   

Second Appeal

In its second appeal, dated July 30, 2013, the Applicant reiterates that the primary use of the Ocean Grove Boardwalk is to serve as a critical public thoroughfare between the towns of Bradley Beach and Asbury Park on the eastern side of Ocean Grove.  In support of this assertion, the Applicant notes that the Boardwalk “serves this role 100 percent of the time,” provides documentation of the facility’s actual usage in emergency situations—detailing how the facility was used by ambulances to provide emergency care 35 times over the past three years and as a headquarters for the beach patrol to perform over 50,000 emergency rescues during the past decade—and suggests that the absence of the Boardwalk is currently creating safety hazards for pedestrians. The Applicant also evinces that the Boardwalk serves as a “public highway” and has so since the County of Monmouth Board of Taxation designated it as such in 1908.

Additionally, for the first time, the Applicant opines that Neptune Township (Neptune) might be an appropriate Applicant, given the public-private partnership between the two entities.  This somewhat unusual assertion highlights an extremely unique, 135-year history between Ocean Grove and Neptune Township, which initially saw Ocean Grove, a private non-profit organization, chartered by the State of New Jersey in 1869 and authorized to provide governmental functions for citizens within its area of responsibility including fire, law enforcement, and emergency response activities.  Since 1921, the Applicant has acted as a partner with Neptune on a variety of levels to provide essential services to the residents of Ocean Grove.  In 1979, a Supreme Court of New Jersey decision transferred much of the overall governance of Ocean Grove to Neptune Township.  As a result, the Applicant still owns all of the land over which it previously exercised this jurisdiction, but Neptune provides municipal services— such as judicial, law enforcement, and fire—to it.  Regardless of the details of this unique and historic relationship, the Applicant contends that it owns and operates the Boardwalk and is responsible for maintaining and repairing it.

Discussion

Legal Responsibility

According to 44 CFR §206.222 Applicant Eligibility, both local governments and certain PNP organizations which own or operate private nonprofit facilities are eligible to apply for Public Assistance.  PNPs must meet specific eligibility criteria beyond that of State and local government applicants.  For all applicants, eligible work must “be the legal responsibility of an eligible applicant.”

FEMA provided Public Assistance funding for the repairs of sections of boardwalks on both ends of the OGCMA facility, but found the OGCMA facility ineligible because it was deemed an ineligible recreational PNP facility.  The surrounding local governments own and operate their respective sections of their boardwalks and are, therefore, legally responsible for these facilities. Here, however, OGCMA, a PNP organization, owns and operates the Boardwalk at issue. Although this situation is unique because of both the public-private partnership between the Applicant and Neptune Township and the neighboring sections boardwalks being owned by localities, FEMA finds that OGCMA is legally responsible for the facility in question and is therefore the correct applicant.

PNP Eligibility

Private nonprofit organizations owning and operating facilities that provide certain essential governmental type services, such as health and safety services of a government nature, are eligible to apply for Public Assistance funding.  To be eligible, the facility must be primarily used (over 50 percent of space or time is dedicated to an eligible purpose/mission) for eligible services.  Space is the primary consideration in determining if a facility is eligible; where certain spaces are used for both eligible and ineligible purposes, eligibility is determined by comparing the time the facility is used for eligible activity versus ineligible services.  Pursuant to Section 406(a)(3)(A)(ii) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), as amended, applicants that qualify for FEMA funding because they provide health and safety services of a governmental nature are “non-critical,” and, when requesting reimbursement for permanent work on these facilities, the Applicant must first apply for funding through the U.S. Small Business Administration (SBA).  If the SBA declines funding to the PNP or only grants the PNP partial funding, the PNP may then apply for FEMA assistance.

In assessing the eligibility of the OGCMA facility consideration must be paid to the unique relationship between OGCMA and Neptune Township, the historic evolution of OGCMA, OGCMA’s property interest in the facility, the quasigovernmental role it has played, the State of New Jersey’s designation of the facility as a public thoroughfare, and the role the facility plays in providing an essential governmental service. Moreover, it is noteworthy that OGCMA prohibits the facility’s use for commercial and recreational purposes. 

The basis for the Regional Administrator’s first appeal decision was sound and applicable to most situations.  However, the Applicant’s provision of additional information that establishes an extremely unique factual situation requires clarification.  Here, the facility is a public thoroughfare available 100 percent of the time to citizens and visitors of Ocean Grove, Neptune and its neighboring localities to provide essential health and safety services of a governmental nature.  According to representatives of these neighboring localities, the Boardwalk is essential to the proper functioning of a mutual aid agreement between the Township of Neptune, Asbury Park, Bradley Beach and Avon-by-the-Sea ANSWER Squad.  This represents a collaborative effort of these ocean-side communities, which, with the exception of Applicant, are all government bodies.  The mutual aid agreement was designed to protect the health and safety of their citizens and visitors.  Also, local governments as well as State and Federal legislatures corroborate, through correspondence and formal resolutions, the vital role of the facility in protecting the health and safety of the general public, noting that the emergency services provided on the Ocean Grove section of the boardwalk mirror those essential government services provided by beachfront municipalities.  The Boardwalk also employs special lightweight ambulances to traverse the Boardwalk to access the beachfront and neighboring communities and then transfers victims to larger, more typical emergency vehicles at the intersections between the Boardwalk and the roads.  Not only does the boardwalk provide ease of use for emergency vehicles, but it also houses the OGBP command center and serves as a surveillance point for after-hours lifeguards.  Further, the boardwalk provides the only direct route for emergency service vehicles between Ocean Avenue and the beach.  Accordingly, the OGCMA facility is an eligible PNP facility because it is available 100 percent of the time as a part of a network, in conjunction with neighboring governmental bodies, to support evacuations and emergency responses when necessary.  Additionally, Neptune Township validated that the Boardwalk’s current disrepair and unavailability for usage has created increased safety risks to residents and individuals transiting the area.

In accordance Stafford Act Section 406(a)(3)(A)(ii), the Applicant must apply for SBA funding for this facility.  If the Applicant is declined for an SBA loan, the Boardwalk facility will then be eligible for FEMA assistance.  If the SBA does not fully cover the eligible damages, the excess damages are eligible for FEMA assistance.  Finally, if the Applicant is approved for an SBA loan but does not accept it, FEMA will reduce its funding by the amount of the approved SBA loan. 

Conclusion

The Boardwalk is designated by the State as a public highway, connects neighboring townships, supports the execution of mutual aid agreements, and is available at all times to provide health and safety services of a governmental nature.  Therefore, the Boardwalk meets FEMA’s definition of an eligible PNP facility and consequently the Applicant is an eligible PNP Applicant.  The Applicant must first apply for funding from the SBA.  Should the SBA decline funding, the Applicant is eligible to apply for reimbursement from FEMA for permanent repairs necessary to restore the boardwalk to its pre-disaster condition.