By Community Association Law ShareJanuary 30, 2020 Posted in
Like it or not, our climate is changing. The number of hurricanes and tropical storms has grown over the last several decades in number and intensity. Here is a brief summary:
Period: Number of Major Storms
1900 – 1949 (50 years) 2 (on average)
1950 – 1979 (30 years) 10 (on average)
1980 – 1989 (10 years) 12
1990 – 1999 (10 years) 18
2000 – 2009 (10 years) 23
2010 – 2019 (10 years) 25
With regard to storm intensity, in the New York/New Jersey area, in some places, we are still rebuilding from Superstorm Sandy, which occurred in 2012. We have had 100-year storms (severe storms of the kind we used to only have every 100 years) nearly every year for the past 5 years. In 2017, in March and April, there were three severe Nor’easters in three weeks.
The number of major snowstorms has likewise increased.
What has traditionally kept New Jersey safe from these storms is its relatively cool temperatures. Today, with the oceans warming and our temperatures climbing, these storms are coming up from the south, extending farther north, and are holding so much more moisture than in the past, resulting in more devastating effects. We are having tornadoes now, which were unheard of in New Jersey 20 years ago.
It is time to face the need to be more prepared for major storms. People who live farther South on the east coast, in such places as Myrtle Beach, SC and Vero Beach, FL will tell you that they were not as prepared as they should have been for major storms, and that they suffered the consequences.
Where To Start:
- Identify those who may need assistance in an evacuation. This must be done delicately. Asking people to be on record that they have a disability is not appropriate. Is it, however, appropriate to ask unit owners and residents if in an evacuation they would need help and what kinds of help they would need.
- It is very helpful to know who is living in the community, if an evacuation must occur, or if a disaster strikes and people are missing. This means record-keeping with respect to tenancies and owners, in a handy place, that is portable, such as on a flash drive.
- The ability to access records in a storm that, for example, leaves the Association clubhouse under water, is essential. The kinds of things that records will be needed for will include such things as insurance information, a list of unit owners, tenants, residents and pets, at a minimum. Storage on the cloud may not be good enough. The community may not be able to access the internet for days or weeks. The community may have to print things for a while and deliver notices by hand.
- Get a “go-bag” together. Yes, batteries, flashlights, flares, first aid kit, a flash drive with essential data, a battery-operated radio, walkie talkies or disposable phones, and perhaps an emergency battery system, solar or otherwise, a computer and a printer may be necessary. Get creative. One community in South Carolina’s go-bag included a shotgun to combat looting, though you may think this is over the top, and a chain saws to cut downed trees, along with a can of gasoline.
- Think about what essential services it will be necessary to provide, such as toilets, first aid, essential medications, gasoline (service stations cannot pump gas when power is out.) generators (stored above the floor surface), etc.
- Coordination with Municipal agencies should be occur BEFORE the storm begins. Often the municipality already has an emergency plan. It would be helpful to know what it says, in advance. Your community may have certain special needs that have not been considered. Often, the municipality offers training in such things as CPR and first aid. The Red Cross, likewise, has considerable resources available.
- There should be an emergency plan, which is in writing, reviewed from time to time and kept up to date. This plan should have a chain of command, and everyone involved should already know what to do. Who coordinates and communicates with the municipality? Who interacts with the insurance company? Who addresses downed trees so that emergency personnel can access the site? Who has a CB radio? How will information be spread, such as what roads are open, where shelter may be sought, and how to find utility restoration information. There are “Incident Command System” rules used by the national system for emergency response, which may be helpful. Key community staff and volunteers should have basic ICS training. (www.training.fema.gov/EMIWeb/IS/ICSResource/index.htm)
- Once the emergency plan is finalized, the whole community should be educated as to what to do, and how they can get information. The plan should clearly identify the manner in which the community can contact the emergency team and get or share information.
- There should be a generator policy and education as to where generators should not be used. In Superstorm Sandy, a man ran his generator under a vent to the attic, and the carbon monoxide killed him and his family. It would be helpful to know who has a generator and who does not, but needs power for, for example, to keep essential medical equipment operable.
- Have designated contractors, arranged-for in advance, for such things as tree removal from streets, debris removal, office relocation, generator and fuel storage and portable restroom rental.
- The firm of McCarter and English, following Hurricane Sandy, put together a “Handbook for Victims of a Disaster”, which is amended annually by the New Jersey Statewide Disaster Team. This is a great resource for those attempting to help people who have been victims of disasters. It can be obtained at: https://tcms.njsba.com/PersonifyEbusiness/Default.aspx?TabID=1998.
- It will be helpful to have several copies of the Community’s site plan and governing documents available in a waterproof container. There are going to be insurance claims. Someone should be delegated to take and/or collect photos of the damage and make a record of where this damage has occurred on a site plan. It would be helpful to provide a contractor who is asked to remove trees that are blocking roadways with a map of where those trees can be found.
- Most owners in community associations don’t store such things as chain saws in their Units, but once evacuation is over, Unit Owners often come back with the resources of relatives, which can be a great help in marshalling resources.
- Financial preparations – Many associations don’t set aside enough money in operating or reserve funds for clean-up and recovery, or they don’t have a line of credit to cover crucial expenses. There are usually expenses that are not recoverable by insurance.
The Foundation for Community Association Research, 6402 Arlington Blvd. Suite 500, Falls Church, VA 22042, has a “Best Practices Report #11, on Natural Disasters, which is well-written and insightful. Many of the resources referred to in the Handbook require web site access. This illustrates the importance of restored internet access in a storm, in order to efficiently assist those displaced or experiencing hardship.
FEMA: FEMA has many requirements, including confirmation of the following to remove debris from private communities:
- Legal responsibility and legal authority through a municipal ordinance or a formal pre-existing agreement before a storm requiring each to maintain a high level of disaster readiness; and
- Documentation that indemnifies and holds harmless the federal and local government.
This means that cooperation with the municipality before the storm occurs is an essential element in getting federal funding when disaster strikes. The agreements acknowledge the need to re-establish downed public and private transportation networks following a disaster to engage in significant debris removal and disposal and to restore emergency vehicle and utility access. This advance agreement allows municipalities automatic authority to enter private properties to clear roads and help in emergencies. Part of what is required in these agreements is indemnification of both the municipality and FEMA, proof that the community owns its own roads (if it does) and information that private insurance would not cover areas in need of disaster relief. Each community in order to obtain FEMA relief is required to provide the municipality with a copy of the Deed to their roads, or the Master Deed showing that the roads are private.
FEMA has two plans for debris removal and reimbursement, and they are time sensitive.
- Plan 1. The agency will reimburse 85% of debris cleanup, but only if the submission is approved within 30 days after the storm. After 6 weeks, the reimbursement drops to 80% and then within 90 days, the number drops again to 75%. Once 180 days passes, there is no reimbursement at all.
- Plan 2. FEMA offers 75% reimbursement if the work is accomplished within 180 days and will routinely grant extensions. How quickly a municipality is reimbursed, depends upon when the applications are submitted. Pushing debris out of the way and picking it up are FEMA’s first priorities. The municipality is required to exhaust other avenues first for stormwater clean-up such as a Department of Architecture grant.
Be careful – Towns must wait for assessment by a FEMA case manager before conducting clean-up activities, in order to be eligible for any relief at all. Associations and municipalities can’t destroy the evidence by cleaning up before the Township or FEMA have gotten a chance to evaluate the situation. Case Managers can only move so fast, and your community is likely one of many, harmed by the disaster. An association may have to clear some streets knowing that FEMA will not reimburse if the evidence is removed or destroyed.
Preparation for major storm events can go a long way toward keeping a community safe and functioning in and after a disaster. The old adage rings true. An ounce of prevention is worth a pound of cure.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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