McCrory v. Adm'r of the Fed. Emergency Mgmt. Agency of the U.S. Dep't of Homeland Sec.
| Decision Date | 22 May 2014 |
| Docket Number | No. 13–CV–872 CS.,13–CV–872 CS. |
| Parties | Suzanne McCRORY, Plaintiff, v. ADMINISTRATOR OF the FEDERAL EMERGENCY MANAGEMENT AGENCY OF the U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Suzanne McCrory, Mamaroneck, NY, pro se.
Shane P. Cargo, New York, NY, for Defendant.
Before the Court is the Motion to Dismiss for lack of subject matter jurisdiction filed by Defendant Administrator of the Federal Emergency Management Agency (“FEMA”). (Doc. 17.) For the reasons set forth below, Defendant's Motion is GRANTED.
Before describing the facts at issue, it is necessary to provide an overview of the statutory and regulatory framework pursuant to which the case arises: the National Flood Insurance Program (“NFIP”). The NFIP is a “program by means of which flood insurance ... can be made available on a nationwide basis through the cooperative efforts of the Federal Government and the private insurance industry.” 42 U.S.C. § 4001(d). The NFIP was created pursuant to Congressional directive through the National Flood Insurance Act (NFIA), 42 U.S.C. § 4001 et seq., and is administered by FEMA. Under the NFIA, FEMA Paul v. Landsafe Flood Determination, Inc., 550 F.3d 511, 513 (5th Cir.2008) (internal citation omitted).
As part of this mandate, FEMA creates and maintains maps, called Flood Insurance Rate Maps (FIRMs), of any area that is subject to naturally occurring floods. See 42 U.S.C. § 4101(a). These maps categorize flood-prone areas into different risk zones based on the severity of the flooding to which the area is susceptible and establish the “base flood elevation”—that is, the measure of how high flood waters are expected to rise in a flood of a certain likelihood (the “base” flood)—for these areas. The FIRMs are then used to assess premiums for flood insurance policies regulated by the NFIP, and many municipalities impose construction requirements based on the flood risk zones and base flood elevations shown on the FIRMs. For purposes of this case, it suffices to understand that a “V Zone” denotes an area subject to more damaging, high-velocity wind-driven waves than areas classified as “A Zones.” (See Second Amended Complaint (“SAC”), (Doc. 15), ¶ 18; see generally 44 C.F.R. § 59.1.) It follows that insurance premiums are higher, and construction requirements stricter, for property located in a V Zone as compared to an A Zone.
FEMA is required to update these maps every five years, 42 U.S.C. § 4101(e), which involves recalculating the base flood elevation and reassessing the risk zone designation for each such area, id. §§ 4102, 4104. The NFIA establishes procedures for how FEMA makes these periodic calculations and zone designations, including a public notice and challenge system. Id. The NFIA also recognizes that the flood risk characteristics of a particular property or area may need to be updated between FEMA's periodic re-mappings, whether due to altered physical conditions or the availability of improved data or scientific methods. Accordingly, a procedure exists for individuals, organizations and municipalities to request a localized update to a piece of a FIRM. See id. § 4101(f). These localized map modifications are called Letters of Map Revision (LOMRs).
FEMA regulations impose a series of requirements on those seeking LOMRs. For example, applicants must submit detailed supporting data that includes “all the information FEMA needs to review and evaluate the request,” 44 C.F.R. § 65.6(a)(1), and said data and any analysis must be certified by a “registered professional engineer or licensed land surveyor,” id. § 65.6(f). Any new analysis must be sufficiently geographically extensive to prevent abrupt discontinuities between the revised areas and adjacent unrevised areas. Id. § 65.6(a)(2). The regulations outline four different bases for the issuance of an LOMR, with different submission requirements for each: correcting errors in FEMA's original analysis; changed physical conditions; improved underlying topographical or hydrological data; and improved scientific methodology. Id. §§ 65.6(b) -(e). Once FEMA receives an LOMR application, it must take action on the application within ninety days. Id. § 65.9.
When an LOMR application is approved, FEMA is required to publish the proposed change in both the Federal Register and a local newspaper prior to the LOMR becoming finalized. 42 U.S.C. § 4104(a). An administrative appeal may be filed by “any owner or lessee of real property within the community who believes his property rights to be adversely affected by the Administrator's proposed determination.” Id. § 4104(b). But the statute lays out a narrow basis for any such appeal: “The sole grounds for appeal shall be the possession of knowledge or information indicating that [the base flood elevations or flood zone designations] being proposed by the Administrator ... are scientifically or technically incorrect.” Id. A party seeking to file an administrative appeal of a proposed LOMR is required to submit the appeal to the chief executive officer of its local municipality (e.g., the mayor), who then compiles all the appeals for a given LOMR and forwards them to FEMA. 44 C.F.R. §§ 67.5, 67.7. FEMA regulations impose a series of data requirements on administrative appeals that are similar to those imposed on the original LOMR application, including the requirement that any data submitted must be certified by an engineer or land surveyor. See id. § 67.6(b).
Finally, the statute provides that any administrative appellant “aggrieved” by FEMA's decision on the appeal may seek judicial review of that decision in the District Court. See 42 U.S.C. § 4104(g). Such an action is governed by the standards of review set forth in the Administrative Procedure Act. Id.; see 5 U.S.C. § 706.
For purposes of the instant Motion to Dismiss, I accept as true the facts, but not the conclusions, as set forth in the Second Amended Complaint.
Plaintiff lives in a coastal area in the Village of Mamaroneck that is subject to regulation under the NFIP. (SAC ¶ 1.) In essence, Plaintiff complains that other members of the community have received beneficial LOMRs that have rendered the flood map inaccurate, and she alleges that FEMA ignored the administrative appeals she filed in connection with those LOMRs. (Id. ¶¶ 12–14, 25.)
The first of the two LOMRs at issue was applied for by Plaintiff's neighbors, Richard and June Ottinger. Like Plaintiff's property, the Ottingers' property was located partially in a V Zone and partially in an A Zone. (Id. ¶ 26.) The Ottingers built a new home on their property in the mid–2000s, but they were denied occupancy because the design of the home did not meet local construction requirements for V Zones. (Id. ¶¶ 26–29.) Instead of modifying the construction of the home, the Ottingers applied for an LOMR that would redraw the boundary between the V Zone and the A Zone so that their house would fall entirely within the A Zone. (Id. ¶¶ 30–34.) The Ottingers initially applied for the LOMR in December 2008. FEMA approved the application, LOMR # 09–02–0465P (the “2009 Ottinger LOMR”), on August 31, 2009, to take effect on March 1, 2010 absent any appeals from the community. (Id. ¶ 33.) This application was allegedly based on the existence of better topographical data. (Id. ¶¶ 31–32, 34.) When the LOMR was published, Plaintiff submitted an appeal, arguing that FEMA had used an inaccurate data point in its calculations. When FEMA corrected the error and redid the analysis, it concluded that the Ottingers' home remained in the V zone, and it therefore rescinded the 2009 Ottinger LOMR. (Id. ¶¶ 36–38.)
The Ottingers then filed a second application for an LOMR, # 10–02–1072P (the “2012 Ottinger LOMR”), based on both improved topographic information and changed physical conditions resulting from an improved seawall they had constructed on their property. (Id. ¶ 39.) Plaintiff claims that the supposedly “improved” topographical data submitted by the Ottingers with this application was actually the same data that had been used in the prior LOMR application that FEMA rescinded. Plaintiff also claims that the application exaggerated the dimensions and characteristics of the seawall. (Id. ¶¶ 40–50.) After some back-and-forth between FEMA and the Ottingers, the Ottingers made further improvements to the seawall in response to FEMA's concerns. (Id. ¶¶ 54–58.) FEMA thereafter approved the application on June 19, 2012, and notice to the community was published in June and July of that year. (Id. ¶¶ 62, 65.)
On September 12, 2012, Plaintiff filed an administrative appeal with the Mayor of the Village of Mamaroneck, arguing that the 2012 Ottinger LOMR application relied on inaccurate data and misrepresented the dimensions and characteristics of the seawall. (Id. ¶¶ 67–68.) Plaintiff's appeal paperwork spanned 175 pages and included multiple datasets, surveys, drawings and photographs. (Id. ¶¶ 69–83; see also Norton Decl. Ex. 3 (Plaintiff's appeal submission).)1 The thrust of Plaintiff's argument was that “[b]y using the wrong elevation data and an exaggerated wall configuration, the LOMR had falsely distinguished the Ottinger property from those nearby to develop a revised map favoring that particular property and no others.” (SAC ¶ 82.) FEMA received Plaintiff's submission but declined to recognize it as a proper appeal for two reasons: first, the submission did not meet the data certification requirements outlined in 44 C.F.R. § 67.6(b) ; and...
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