Natural Hillside Landslide below Dunning Drive

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1046-DR
ApplicantCity of Laguna Beach
Appeal TypeSecond
PA ID#059-39178
PW ID#93802
Date Signed1997-08-29T04:00:00
Citation: FEMA-1046-DR-CA, City of Laguna Beach, DSR 93802

Cross-Reference: Landslides, Pre-existing Conditions, Immediate Threat, Emergency Protective Measures

Summary: Heavy rains in February and March 1995, caused two landslides on a natural slope below Dunning Drive. Category B DSR 93802 was prepared for $64,662 for studies and designs leading to the restoration of the landslides. It was intended that the DSR would be supplemented for construction costs. The work was determined to be ineligible because there was no damage to the roadway at that time, and there was no apparent immediate threat. A report prepared by the city's geotechnical consultant concluded that the recent slope instability was caused by the re-activation of ancient landslides underlying the site. In August 1995, cracks appeared in the roadway establishing an immediate threat. A category B DSR was written for $65,107 to pay for the design and construction of a caisson shoring system along Dunning Drive. The landslides were repaired in the fall of 1995. The first appeal, made in December 1995, contained no specific request, but asked that eligibility be reviewed in general. Region IX determined that there was no demonstrated immediate threat to a public facility. In the second appeal, the city requested that the net unfunded cost of $865,922 for landslide repair be declared eligible because the landslides posed an immediate threat to life, public health and safety, and significant damage to improved public and private property.

Issues:
  1. Did the caisson shoring eliminate the immediate threat to the roadway?
  2. Is the permanent restoration of the landslides eligible?
  3. Are any other costs eligible?
Findings:
  1. Yes. The caissons temporarily protected the roadway while the landslides were being repaired.
  2. No. The permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant.
  3. Yes. Certain engineering and street repair costs are eligible.
Rationale: In accordance with FEMA's Landslide Policy, the cost to restore the facility (the pavement, curbs and utilities) is eligible once the site has been stabilized. In addition, engineering costs related to the emergency protective measure are eligible.

Appeal Letter

August 29, 1997

Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
State of California
74 North Pasadena Avenue, West Annex, Third Floor
Pasadena, CA 91103-3678

Dear Mr. Najera:

This letter is in response to your December 26, 1996, transmittal of the City of Laguna Beach's second appeal of DSR 93802 under FEMA-1046-DR-CA. The applicant is requesting reimbursement for costs associated with the restoration of two landslides on the natural slope below Dunning Drive.

Based on a review of the documentation submitted, I have determined that this appeal should be denied for the reasons explained in the enclosed appeal analysis. Briefly, the instability of the slope was due to a pre-existing condition (ancient landslides). In accordance with FEMA's Landslide Policy, the permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant. However, I have also determined that certain engineering and street repair costs are eligible for reimbursement. I have requested the Regional Director to prepare DSRs for these items.

Please inform the applicant of this determination and their right to submit a third appeal pursuant to 44 CFR 206.206(e).

Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate

Enclosure

Appeal Analysis

BACKGROUND
As the result of heavy rains in February and March 1995, two nearly contiguous landslides occurred on a natural hillside below Dunning Drive. Landslide A was located beneath 1339 and 1345 Dunning Drive, and landslide B was located beneath 1315 Dunning Drive and portions of the adjacent properties. The city's geotechnical consultant, Geofirm, concluded that the recent slope failures were caused by the re-activation of ancient landslides. The landslide A occurred in late March 1995, and landslide B occurred in late April 1995. The slides damaged three houses along Dunning Drive and a storm sewer that carried water from Dunning Drive to the drainage at the bottom of the hillside. Debris from the landslides blocked this drainage. When the DSR team made their site inspection in May, 1995, there was no apparent damage to the roadway.

Two DSRs were written on May 31, 1995, under FEMA-1046-DR-CA. DSR 93802 (category B) was written for $64,662 for geotechnical and civil engineering services in connection with the landslides. A supplemental DSR for further engineering costs and landslide stabilization costs was to be written after the authorized studies and remedial designs were completed. Upon review, the entire scope of work and associated cost were declared ineligible because no damage to a public facility had been identified at that time. Geofirm's May 11, 1995, report, concludes that it would take significant further movement of the landslides to reduce lateral support to Dunning Drive, but that stabilization of the landslide(s) is considered necessary to provide long-term protection for Dunning Drive. This indicates that there was no immediate threat to Dunning Drive posed by the landslides.

DSR 34639 (category D) was written for $48,474 to replace the damaged storm drain, and to remove landslide debris from the drain. Upon review, the cost for debris removal was deleted because the work was to be done on private property, and would not affect public facilities. The final DSR amount was $10,220.

In August 1995, cracks appeared in the roadway above landslide B indicating that the sliding was progressing up the hillside. Measurements between pairs of nails located across the cracks indicated continued movement. This was confirmed by measurements in a slope inclinometer located in the roadway. No signs of distress were observed in the roadway above landslide A, and no movement was detected in two slope inclinometers located there. In September 1995, the city constructed a caisson shoring system along Dunning Drive above landslide B as an emergency protective measure to preserve the integrity of the roadway. Subsequently, the landslides were excavated and replaced with compacted fill. The drainage at the bottom of the hillside was partially filled with compacted fill to act as a buttress. A storm drain was placed beneath the buttress fill to carry the water that normally flowed down the drainage.

Two other DSRs were written for the site under FEMA-1044-DR-CA, a flood disaster which occurred in January of 1995. DSR 94255 (category B) was written on September 12, 1995, for $63,827. The scope of work consisted of engineering and construction costs for a caisson shoring system along Dunning Drive. This was in response to the uphill progression of the landslide in August 1995 as exhibited by the cracks in Dunning Drive. The reviewers declared the work ineligible because the slide occurred due to a pre-existing condition (ancient landslides). The city appealed this determination. In response to the appeal, DSR 39660 (category B) was written on August 26, 1996, for $65,107 for the actual costs of engineering and construction of a caisson shoring system along Dunning Drive. The reversal occurred because FEMA's Landslide Policy allows emergency protective measures to be taken even though the immediate threat caused by the disaster is exacerbated by a pre-existing condition.

First Appeal
On December 26, 1995, the city sent a letter to OES appealing FEMA's denial of geotechnical services on DSR 93802. The bases for the city's appeal were the obvious damages to Dunning Drive and the need to clear the obstructed drainage course to prevent future "flooding problems that would have undermined the roadway and other public facilities." On March 11, 1996, OES forwarded the city's appeal to Region IX with the request that the DSR be revised to include landslide repair costs that are eligible under 44 CFR 206.225. The Regional Director responded to the appeal in August 1996. The city had not sent any information with their appeal that demonstrated damage or an immediate threat to Dunning Drive. Therefore, the costs for repairing the landslide were determined to be ineligible. As noted above, emergency protective measures (caissons) to respond to the immediate threat to Dunning Drive were subsequently funded in DSR 39660. The costs for debris removal had already been determined to be ineligible by the reviewer of DSR 34639.

Second Appeal
On October 22, 1996, the city issued a second appeal to FEMA's denial of DSR 93802. No new information was presented by the city except for documentation supporting remedial construction costs of $976,766. After subtracting previously obligated and requested funding, the city asked to be reimbursed an additional $865,922. OES issued a letter to FEMA on December 26, 1996, that transmitted the city's appeal. OES cited 44 CFR 206.225 as the basis of eligibility, and 44 CFR 206.226 for the scope of work of the repairs. On February 25, 1997, the Regional Director transmitted the second appeal to the Executive Associate Director for resolution stating that "this information is not relevant to our denial of the emergency protective measures documented under DSR 93802."

DISCUSSION
The team that prepared DSR 93802 believed that the landslides presented an immediate threat to Dunning Drive even though the roadway was not damaged as of the May 31, 1995, inspection date. The Region IX reviewers disagreed with this decision because there had been no damage to the roadway at that time, and there was no apparent uphill progression of either landslide. The reviewers' opinion was shared by the city's geotechnical consultant, Geofirm, who stated in their May 11, 1995, report that "stabilization of the landslide is necessary to provide long-term protection for Dunning Drive (emphasis added)." However, when an immediate threat became apparent in August 1995 (cracks in the road), a DSR was written and eventually approved for emergency protective measures (caissons along Dunning Drive above landslide B). The support provided by these caissons allowed the subsequent excavation of both landslides and reconstruction with compacted fill in the fall of 1995.

The emergency protection for Dunning Drive was provided by the caissons which were funded by DSR 39660 eliminating the need for further emergency protective measures (permanent restoration) as proposed under DSR 93802. FEMA's current policy for landslide restoration reads as follows. "If the site is found to be unstable due to an identified, pre-existing condition (e.g., a deep-seated slip plane), the applicant is responsible for stabilizing the site. Once the site has been stabilized, the cost to restore the facility at the original site is eligible." The information presented by Geofirm demonstrates convincingly that the site was unstable prior to the declared disasters because the hillside is underlain by landslides that pre-date site development. Therefore, the costs claimed by the city in the second appeal for permanent landslide restoration are not eligible. As described above, the costs for emergency protective measures and the replacement of damaged facilities (storm drain) have already been approved. The remain twork in DSR 93802.

Costs for work done prior to May 31, 1995, for geotechnical evaluations of the landslides are eligible. The work included geologic background research, drilling and logging borings, installing and reading slope inclinometers, and the preparation of a report. This information was critical to developing an understanding of the stability of the site, and for designing the caisson shoring scheme. The total amount of these costs is $29,012. Although not included in the DSR, costs for reading the slope inclinometers between May 31 and August 31, 1995, are also eligible because the data was used to evaluate the depths of the caissons. The remaining costs included in DSR 93802 are not eligible because they relate to the restoration of ineligible landslides.

The roadway was damaged by landslide B as evidenced by cracking of the pavement. A category C DSR will be written for reasonable repairs of roadway damages caused by the landslide, provided that the applicant can present documentation of the cost of repairs.

CONCLUSION
The city's second appeal of DSR 93802 is denied as written because the instability of the site was due to a pre-existing condition (ancient landslides). In accordance with FEMA's Landslide Policy, the permanent repair of a slope that is unstable due to pre-existing conditions is the responsibility of the applicant. However, a portion of the original DSR amount ($29,012) is eligible because the costs were for problem definition, detection of an immediate threat, and the design of eligible emergency protective measures. Other eligible costs (not included in the $29,012) are slope indicator measurements in June through August, 1995, and any pavement, curb and/or utility repairs that can be documented.
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