By Quinn A. Sperry, Attorney at Morris Sperry

Most governing documents of community associations state that the association should be operated and governed to promote the health, safety, and welfare of its members and residents.  Being proactive in preparing for disasters is one way to accomplish this responsibility.  Some suggestions to prepare for disasters are:

  • Create a disaster response plan for your community association.
  • Ensure that your community’s insurance policies provide adequate coverage for potential disasters that may occur in your particular region.
  • Encourage residents to participate in Community Emergency Response Team (CERT) training, usually sponsored by your local fire department.
  • Encourage your local municipal government to adopt a post-disaster debris collection ordinance.

This writing focuses on the importance of municipalities adopting a post-disaster debris collection ordinance and how such helps community associations in their post-disaster response and recovery efforts.

The Disaster Mitigation Act of 2000 (the “Act”) set forth the legal basis for the Federal Emergency Management Agency (FEMA) mitigation planning requirements that must be satisfied as a condition of FEMA’s mitigation grant assistance for reimbursing state and local governments for expenses incurred during post-disaster response and clean-up efforts.  The Act prohibited municipalities from receiving reimbursement from removing debris from private roads unless certain conditions were met.  According to FEMA and the Act, debris on private roads is no longer considered a threat to the public because private roads are not open for public access.  In order to qualify for reimbursement of removing debris from private roads, the Act requires that municipalities show: (1) the municipality had a legal obligation to remove debris from the private road; and (2) the debris represented an immediate threat to life, public health and safety, or improved property.

In recent years, we have seen various communities across our country impacted by natural disasters, such as hurricanes, flooding, and wildfires.  In the aftermath of these disasters, areas are left with destroyed homes, debris that may block access to certain areas, and piles of garbage that may line the roadways.   It is necessary to remove the garbage and debris to allow ingress and egress for first responders, individuals providing supplies to residents, employees working on restoring utility services, etc.  If left unremoved, garbage and debris piles create unsanitary conditions and are unsafe for residents, especially children, to be around. 

 Local residents often do not have the resources and equipment to remove all of the debris and garbage from the disaster stricken area; thus, they generally rely upon the local government to assist with removal of such debris.  If residents are members of a community association where the government removes the debris, the local residents may be responsible for paying the costs incurred by the local government for removing the debris from the private roads in order to provide emergency services and reduce the health and safety risks to the community, unless the local municipality previously adopted an ordinance or entered into an agreement with the community association which legally obligates the municipality to remove debris and satisfies the FEMA requirements for reimbursement. 

Recognizing the opportunity to proactively assist the residents of my city, and especially those living in community associations, I requested that the city review this issue and adopt an ordinance allowing the city to assist with the post-disaster debris clean-up in community associations and qualifying for the FEMA reimbursement, if such is ever needed following a disaster to our area.  The city adopted such an ordinance in May 2018, and I encourage residents in community associations around the State of Utah to approach their local municipal leaders to adopt similar ordinances.  By adopting such an ordinance, a municipality can assist residents in community associations with clean-up efforts without the need to later charge such residents for the expense incurred because the municipality may seek reimbursement from FEMA.  Moreover, by encouraging local municipalities to have such an ordinance in place before a disaster occurs, the leaders in community associations are doing something to proactively promote the health, safety, and welfare of the communities’ members and residents as required in most governing documents. 

The language of the ordinance adopted in my city is as follows:

POSTDISASTER DEBRIS COLLECTION

8.12.010    Declaration of Public Emergency.

8.12.020    Authority of City Manager.

8.12.030    Debris Removal.

 

8.12.010    Declaration of Public Emergency.

In the event of a natural or manmade disaster that has been declared a public emergency by the Mayor in accordance with Utah Code Ann. §52-2a-208, as amended, the City may exercise its authority to implement the measures set forth herein.

 

8.12.020    Authority of City Manager.

The City Manager or his/her designee has the authority and responsibility to protect the public health and safety. The City Manager or his/her designee has the authority to remove debris and significant damage which poses an immediate threat to life, public health, safety, improved public and private property, and the economic recovery of the City.

 

8.12.030    Debris Removal.

The City and its agents are hereby authorized to enter upon and remove debris from public and private roads, rights-of-way, utility easements, stormwater and canal easements, and ingress/egress easements within the City’s boundaries, including private communities, for the purposes of emergency vehicle travel, stormwater conveyance, protecting public health and safety, facilitating response and recovery operations, and for any other purpose the City Manager or his/her designee determines is necessary to accomplish the purposes set forth in Section 8.12.020.