Change in Scope of Work/Result of Declared Incident/Work Completion Deadlines

Appeal Brief

Appeal Letter

Appeal Analysis

Background

During the incident period of October 27-November 8, 2012, Hurricane Sandy caused extensive damage throughout New York. A Very Special Place, Inc. (Applicant) is a Private Nonprofit (PNP) that provides services to developmentally disabled individuals. The Applicant owns, among other buildings, a single-family residence located at 694 New Dorp Lane in Staten Island (Facility). FEMA prepared Project Worksheet (PW) 3080 for repair of damages to the Applicant’s buildings during the declared incident, including damages to the Facility’s interior and exterior components and contents. FEMA approved a total of $43,503.23 for the Facility’s repairs, replacement of contents, and hazard mitigation between the years 2014 and 2017.[1]

On June 21, 2019, the Applicant requested a scope of work (SOW) change with hazard mitigation proposals for multiple buildings, including removal and replacement of the Facility’s exterior stone veneer to include mortared joints along the entire 140 square feet (SF) perimeter and three feet above grade, at a cost of $129,671.00. The Applicant stated that its architect first identified the stone veneer damage during a July 18, 2019 site inspection, discussed in a December 22, 2020 letter.

FEMA issued a Request for Information noting that the type of damage claimed to the Facility’s stone and grout wall typically occurs over a long period of time.  FEMA therefore requested: (1) the locations/sides of the Facility with damaged exterior stone; (2) an explanation for why these damages had not been previously captured in the project; (3) photographs of the damage; and (4) a narrative of how the flood waters damaged the exterior stone and grout wall. 

The Applicant responded on June 11, 2020, providing post-disaster photographs and explaining that the damage was not previously discovered because it was on the side of the Facility with minimal walk space, it was difficult to see and therefore not detected during FEMA’s original inspection, and was only identified when its engineer and architect revisited the Facility to explore additional mitigation possibilities, at FEMA’s suggestion. The Applicant also explained that the Facility was reconstructed two years prior to the disaster, and although the Applicant believed the damage came from pressure and salty flood waters from the incident, it acknowledged that the damage could have developed or worsened over time.

FEMA issued a determination on May 11, 2022, approving funding related to hazard mitigation measures, but denying $129,671.00 in Applicant-requested repairs to the exterior perimeter stone veneer. FEMA found that, regarding the exterior perimeter stone veneer, the Applicant did not demonstrate that the damage was disaster-related, specifically noting that the Applicant’s architect did not assign a cause of this damage.

First Appeal 

The Applicant submitted a first appeal in a letter dated June 20, 2022. The Applicant included the letter from its architect, dated June 17, 2022, to support its claim that the damages were a direct result of the disaster. The architect assessed that the damages were consistent with the result of wave action during the height of the disaster, during which flood waters reached 6 to 8 feet above the ground, and that saltwater infiltration was also a contributing factor as was water-borne debris, particularly given the Facility’s location one quarter of a mile from the shore. The Applicant noted its architect also stated that flood waters caused damages as a result of both the storm surge and possibly projectile-like objects from the storm and included photographs it took on July 18, 2019.[2] The New York State Division of Emergency Services (Recipient) forwarded the Applicant’s appeal, with its support, on August 15, 2022. The Recipient states, that based on the additional documentation from the Applicant’s architect, the damage was caused by the declared event and is eligible for repair under FEMA’s Public Assistance program. 

FEMA Region 2 denied the appeal on November 29, 2022. FEMA found that the Applicant did not provide predisaster photographs or maintenance records that would have enabled FEMA to verify the Facility’s predisaster condition. In addition, FEMA found the architect’s letters did not conclusively identify the declared incident as the cause of the damages, instead listing multiple probable theories of causation without explaining any of them in detail. Regarding the Applicant’s claim for replacement of the stone veneer on the entire perimeter of the Facility, FEMA found that the Applicant has not documented damage to the entire perimeter; rather FEMA found that there is an undetermined length of damage on the Facility’s right side. FEMA stated that a 2018 Google Earth photograph showed the Facility’s left side with no visible damage. FEMA concluded that the Applicant did not demonstrate that the work to repair the claimed damage was required as a result of the declared incident and denied the appeal.

Second Appeal

The Applicant submitted a second appeal letter dated January 27, 2023. The Applicant references its architect’s June 2022 letter, to support its claim that the damages to the exterior perimeter stone veneer at the Facility were a direct result of the declared event rather than due to failure to maintain the Facility. The Applicant also submits a January 18, 2023 letter from a Professional Engineer (PE) (PE Letter). The PE Letter contains photographs of the Facility, which, the PE states, show damages consistent with the saltwater intrusion from the declared incident. The PE describes damages to the ground on the west wall of the Facility, stating that it has “sunken … as the base stone veneer has completely cracked and now separated along most of the length of wall.” The PE concludes that the primary cause for the damages was the consistent presence of salty water from the storm and that the repairs are reasonable and necessary.[3] The Applicant restates first appeal arguments and also cites to the PE’s letter to shows that it has documented the damage was a direct result of the declared incident and not due to a lack of maintenance. The Recipient forwarded the Applicant’s appeal, with its support, in a letter dated March 24, 2023. The Recipient argues that FEMA did not properly defer to the architect’s opinion, even though the architect is a licensed professional, and instead, inappropriately dismissed the validity of the architect’s statement that the damages are consistent with the result of wave action that occurred during the height of the disaster.

Discussion

FEMA may reimburse eligible applicants for the repair, restoration, reconstruction, or replacement of a public facility damaged or destroyed by a major disaster on the basis of the facility’s design as it existed immediately prior to the disaster and in conformity with other provisions.[4]Applicants have 60 days following their first substantive meeting with FEMA to identify and report damage to FEMA, unless FEMA grants a time extension.[5] During the performance of work, the applicant may discover hidden damage or additional work that is necessary to properly complete the project.[6] For large projects, when a change in scope or a need for additional funding is discovered, the applicant should notify the recipient as soon as possible.[7]The applicant must establish that all work items for which funding is requested are required as a result of the disaster, and must provide documentation differentiating those disaster-related work items from work to repair damage caused by a predisaster event, a post-disaster event, or inadequacies that existed prior to the disaster.[8]It should not be assumed that such costs can be reported at the end of the project and that the additional funds will be approved automatically.[9] The request should contain justification for the eligibility of the additional work or costs.[10] If additional damage to the facility is involved, it may be necessary to show how that damage is disaster-related.[11] The state forwards the request to FEMA with a written recommendation.[12] On appeal, it is the applicant’s burden to substantiate each of its claims with documentation and clearly explain how that information supports each claim.[13]

Here, the Applicant reported damages to the exterior perimeter stone veneer of the Facility approximately seven years after the declared incident, and nearly five years after the extended deadline for identifying Hurricane Sandy-related damage expired. During the review, FEMA requested information regarding why these damages had not been previously captured and noted that these types of damages typically occur over a prolonged period of time. However, the Applicant did not justify the eligibility of the additional work requested or explain why this damage was not discovered previously other than stating that the area was difficult to access. This explanation is unconvincing, considering that the Applicant had previously claimed damage to a fence outside of the Facility, and had previously inspected both the interior and exterior of the Facility for damage. In addition, the letter from the Applicant’s PE references undated and unlabeled photographs, which the PE characterizes as revealing damages consistent with salt water intrusion due to the incident but the PE does not explain how that damage can be differentiated from any other potential damage. The Applicant, its architect, and its PE’s opinions do not provide any information regarding the predisaster condition of the Facility or the condition of the damage to the exterior perimeter stone veneer shortly after the incident. Accordingly, FEMA cannot distinguish incident-related damage from pre-existing damage or post-disaster damage reported almost seven years after the disaster. 

Conclusion

The Applicant has not demonstrated that the work requested is required as a result of the declared incident. Therefore, this appeal is denied.