Obispo Street Slope Failure
Appeal Brief
Appeal Letter
Appeal Analysis
Citation: FEMA-1203-DR-CA; City of Dana Point, California; Del Obispo Street Slope Failure, DSRs 03726 & 06640
Cross-reference: Legal responsibility; landslide policy; net small project overrun (NSPO)
Summary: During the El Nino storms, a retaining wall failure and slope failure occurred at Del Obispo Street and Blue Fin Drive in the City of Dana Point. As a result of the failures, damage occurred to the masonry retaining wall, sidewalk, curb, and gutter at the base of the slope; a concrete-lined terrace drain; and a storm drain pipe that ran from the top of the slope to the bottom of the slope. FEMA reviewed the initial request and the request of the first appeal and concluded that repairs to the retaining wall, sidewalk, curb and gutter, drain, and pipeline in the public right-of-way were eligible for funding, but that repairs to the slope on private property were not eligible. FEMA raised some questions about NSPO request submissions not meeting established deadlines. The Applicants second appeal contends (1) the City is legally responsible for repairs to the slope based on a court ruling, (2) the slope was engineered and therefore is an eligible facility, and (3) they complied with NSPO timeline requirements.
Issues: (1) Was the Applicant legally responsible for damage to the slope on private property at the time of the disaster?
(2) Was the slope engineered, thus constituting an eligible facility?
(3) Did the Applicant meet NSPO timeline requirements?
Findings: (1) No. Although by court order the Applicant was later required to repair damages to the private property, this decision does not meet FEMAs criteria for being legally responsible at the time of the disaster.
(2)
(3) No. The Applicant has not provided sufficient documentation to support their claim that the slope was engineered.
(4)
(5) Yes. The Applicant met NSPO submission timeline requirements.
Rationale: Stafford Act Section 406; Public Assistance Guide (FEMA 322), page 16; Recovery Policy #9524.2, Landslide Policy relating to Public Facilities.
During the El Nino storms (FEMA-1203), a retaining wall and slope failure occurred at Del Obispo Street and Blue Fin Drive in the City of Dana Point. As a result of the failures, damage occurred to the masonry retaining wall, sidewalk, curb, and gutter at the base of the slope; a concrete-lined terrace drain; and a storm drain pipe that ran from the top of the slope to the bottom of the slope. The City of Dana Point (Applicant) requested the Federal Emergency Management Agency (FEMA) fund repairs on both public and private property associated with the damage.
The City owns a 10-foot wide easement for a 24-inch corrugated metal storm drain pipe that runs approximately 204 feet down the slope and crosses two residential properties. The City also owns the bottom 3 to 5 feet of the slope as part of an easement for Del Obispo Street. The balance of the slope is privately owned. The City had constructed a masonry retaining wall in the easement at the base of the slope. A timber pile retaining wall was located immediately north of and adjacent to the masonry wall. Del Obispo Street is located east of the retaining walls.
On August 10, 1999, FEMA prepared Damage Survey Report (DSR) 03726 for $6,632 for emergency measures to remove debris from Del Obispo Street and repair 25 linear feet (LF) of 36-inch corrugated metal pipe that was dislodged.
In a letter dated June 11, 2002, the City of Dana Point requested supplemental funding for DSR 03726 in the amount of $88,255 based on an estimate to complete permanent repair work. On December 19, 2002, FEMA responded that it would delay approval of supplemental funding until a re-inspection of the site could be made.
First Appeal
The City completed their work and filed their first appeal on October 8, 2003, requesting supplemental funding in the amount of $425,609 for repairs completed on public and private property. The owners of the two residential properties that were impacted by the slide sued the City, and the Courts found in favor of the plaintiffs. As a result of mediation completed on August 24, 2001, the City agreed to undertake the repair of the slope on private property according to plans prepared by Ninyo & Moore. The final construction cost of the repairs was $307,213.37, and the costs of engineering, geotechnical, and contract management services were $118,395.79. The total project cost assumed by the City was $425,609.02. The City maintained that all of the project costs were eligible in accordance with 44 CFR §206.223, which states that to be eligible, the work must: (1) be required as the result of the disaster event; (2) be located within a designated disaster area; and (3) be the legal responsibility of an eligible applicant.
On October 22, 2003, FEMA prepared DSR 06640 as a supplement to DSR 03726 to document the scope of work and estimated costs associated with permanent repairs to the street and drainage pipe in the public right-of-way. Eligible work included temporary diversion of the pipe; repairs to the retaining wall, sidewalk, street, curb, and gutter; installation of a catch basin; hydroseeding the slope within the public right-of-way; and a pro-rata (24%) share of soils testing, design, permits, traffic control, and contractor mobilization costs. The cost of repairs made on private property was specifically excluded. The total amount of DSR 06640 was $125,225. The combined approved total of the DSRs related to the slide damage was $134,857.
In a letter dated October 7, 2004, the Regional Director supported the additional funding provided to the City in DSR 06640, but denied any additional funding. The appeal analysis determined that the work performed by the Applicant on private property did not meet eligibility requirements because the Applicant was not legally responsible for the slope on private property at the time of the disaster, which is required per page 16 of the Public Assistance Guide: An eligible applicant must be legally responsible for the damaged facility at the time of the disaster. The appeal analysis also determined that work to stabilize a landslide does not constitute eligible work per 44 CFR § 206.208, §206.222, §206.224, page 46 of the Public Assistance Guide (FEMA 322), and the Landslide Policy 9524.2. The appeal analysis raised some questions about net small project overruns (NSPO) and if the Citys appeal met the 60-day submission deadline. The Regional Director approved the supplemental funding provided in DSR 06640 for $125,225, which was based on FEMAs determination of the portion of the work that was completed on public property. The request for funding of the work completed on private property was denied.
Second Appeal
On October 7, 2004, the City of Dana Point submitted a second appeal to the State requesting funding for the full $425,609 paid by the City for the repairs to both public and private property. The State transmitted and supported the request in a letter dated December 10, 2004. The Applicant and the State assert that:
(1) The City was legally responsible for the repairs per the Courts verdict.
(2)
(3) The slope was an engineered slope and not a natural slope, and therefore is not subject to the Landslide Policy.
(4)
(5) The City complied with the NSPO requirements and FEMA acknowledged and partially approved these requests, stating that the original scope of work was inadequate because it did not describe a scope of work that would return the storm drain to its pre-disaster function.
The Applicant also requested FEMA provide an analysis of how it arrived at the $125,225 approved as part of the first appeal.
DISCUSSION
The primary issues of the Applicants appeal are associated with whether the Applicant was legally responsible for repairs to the slope on private property, if the slope is subject to the Landslide Policy, and if the Applicant met the deadline to apply for a NSPO. The issues are discussed in the following paragraphs.
Legal Responsibility
The Applicant contends that they are legally responsible for repairing and paying for all of the work to restore the slope on private property because of the courts ruling on the private property owners lawsuit. The Robert T. Stafford Act does not make provisions for court determinations in its definition of legal responsibility. Section 406 of the Stafford Act states, The President may make contributions to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility which is damaged or destroyed by a major disaster Furthermore, page 16 of the Public Assistance Guide (FEMA 322) clearly states that An eligible applicant must be legally responsible for the damaged facility at the time of the disaster. The City was not legally responsible for the private property at the time the disaster occurred, and therefore is not eligible to receive funding for work performed on private property. FEMA already has reimbursed the City for eligible work performed on public property.
In its letter supporting the Applicants second appeal, the State cites a second appeal by Humboldt County for FEMA-1044-DR-CA in which FEMA states that it will not make a funding determination until after the court had made its decision regarding legal responsibility, and that the Applicant could submit a third appeal for consideration after the case was resolved. However, Humboldt County did not submit a third appeal, so no precedent for FEMA making an eligibility determination based on the outcome of a court case was ever established. Nowhere in the laws, statutes, or policies that govern the Public Assistance program, is there a provision for legal responsibility being determinedbe work at the time the disaster occurs.
Landslide Policy
The City claims that the slope was engineered, and therefore, constitutes an eligible facility. FEMA has requested backup documentation in the form of plans, specifications, drawings, construction documents, etc., to demonstrate that the slope was engineered. The Citys response to this request is that, The slope was part of the development of Tract Number 4072, developed in 1964 under permit through the County of Orange as the City incorporated in 1989. The City was unable to locate information as to how the grading of the pads and associated slope was accomplished. The construction of Del Obispo occurred as well, but the date of construction is unknown. Information that has been provided to FEMA to date does not demonstrate that any subsurface drainage, geotextile reinforcement, slope flattening, or other engineering measures were accomplished on the slope prior to the disaster. Therefore, FEMA disagrees with the Citys claim that the slope is engineered. FEMAs Landslide Policy (Recovery Policy #9524.2) states that permanent earth repair that is not integral to the restoration of a public facility on a stable site is not eligible for reimbursement. Historically, the site has not experienced sliding in the past, and therefore may be considered stable. According to the landslide policy, only the ground necessary to restore a public facility, in this case the right-of-way/easement for a drainage pipe, is eligible for restoration funding. The rest of the hillside on private property does not constitute a facility according to FEMAs regulations, nor does it support a public facility, and therefore, is not eligible for restoration funding.
NSPO Requirements
The first appeal analysis raised the question of whether or not the Applicant met the programs timeline requirements for submitting a net small project overrun request. While the resolution of this issue has no real bearing on the outcome of this second appeal, a summary of the issue is provided as follows:
August 24, 2001 Mediation concluded for lawsuit settlement
January 8, 2002 Time extension requested to January 31, 2003
September 17, 2002 Follow-up letter submitted to OES
October 10, 2002 OES transmits and submits Citys follow-up extension request
December 3, 2002 City completes repairs on slope in accordance with FEMA-approved deadline extension
January 9, 2003 City submits final claim to State/FEMA
January 27, 2003 City submits NSPO request
February 3, 2003 Last day to appeal NSPO for DSR 03726
Based on the timeline summary, it appears that the Applicant met the timeline requirements for requesting NSPO supplemental funding.
First Appeal Funding Determination
The total eligible project cost was determined based on the following:
24% of the cost of soils testing, design, permits, contractor mobilization, and traffic control
Temporary diversion of pipe
Removal and replacement of 150 LF of reinforced concrete retaining wall
Installation of 150 LF of concrete lined ditch behind retaining wall
Removal of 18 CY of debris
Replacement of 144 LF of storm drain pipe
Removal and replacement of 150 LF of sidewalk and curb and gutter
Asphalt repair in the public right-of-way
Hydroseeding, estimated at 7% of total stabilization cost
The costs associated with DSR 03726 were deducted from the costs outlined above to arrive at the total of $125,225. A copy of the spreadsheet is attached.
CONCLUSION
Based on a review of the information provided in the Applicants second appeal, we have determined that (1) the Applicant was not legally responsible for damage to private property at the time the disaster occurred, (2) only the portion of the slope that supports the failed portion of the pipeline constitutes an eligible facility, and (3) the Applicant complied with the timeline for submitting a NSPO funding request. Based on these determinations, the Applicant is not eligible to receive additional funding for repairs to the slope completed on private property.
The Applicants appeal is denied.
Appeal Brief
| Disaster | FEMA-1203-DR |
| Applicant | City of Dana Point |
| Appeal Type | Second |
| PA ID# | 059-17946 |
| PW ID# | 03726/06640 |
| Date Signed | 2005-08-27T04:00:00 |
(2) Was the slope engineered, thus constituting an eligible facility?
(3) Did the Applicant meet NSPO timeline requirements?
(2)
(3) No. The Applicant has not provided sufficient documentation to support their claim that the slope was engineered.
(4)
(5) Yes. The Applicant met NSPO submission timeline requirements.
Appeal Letter
August 27, 2005
Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
State of California
Post Office Box 419047
Rancho Cordova, CA 95741-9047
Re: Second Appeal City of Dana Point, PA ID 059-17946, Del Obispo Street Slope Failure, FEMA-1203-DR-CA, , Damage Survey Reports (DSR) 03726/06640
Dear Mr. Jacks:
This letter is in response to your letter dated December 10, 2004, regarding the referenced second appeal on behalf of the City of Dana Point (Applicant). The Applicant is requesting funding for repairs constructed to a failed slope on private property. FEMA denied funding for this work on the basis that (1) the Applicant was not legally responsible for the slope on private property at the time of the disaster, and (2) the slope is natural ground and therefore does not constitute an eligible facility according to FEMAs landslide policy.
As explained in the enclosed analysis, I have determined that the Applicant was not legally responsible to repair damage to private property on the slope at the time of the disaster. Their responsibility was determined after-the-fact by the court. Further, the documentation provided by the Applicant does not support that the slope is an engineered slope and does not otherwise meet the criteria of an eligible facility. Accordingly, I find that the repairs to the slope completed by the City on private property do not meet eligibility requirements of the Public Assistance program, and the costs incurred by the Applicant for this work are not eligible for assistance. The Applicants appeal is denied.
Please inform the Applicant of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.
Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
Enclosure
cc: Acting Karen Ames
Regional Director
FEMA, Region IX
Paul Jacks
Governors Authorized Representative
Governors Office of Emergency Services
State of California
Post Office Box 419047
Rancho Cordova, CA 95741-9047
Re: Second Appeal City of Dana Point, PA ID 059-17946, Del Obispo Street Slope Failure, FEMA-1203-DR-CA, , Damage Survey Reports (DSR) 03726/06640
Dear Mr. Jacks:
This letter is in response to your letter dated December 10, 2004, regarding the referenced second appeal on behalf of the City of Dana Point (Applicant). The Applicant is requesting funding for repairs constructed to a failed slope on private property. FEMA denied funding for this work on the basis that (1) the Applicant was not legally responsible for the slope on private property at the time of the disaster, and (2) the slope is natural ground and therefore does not constitute an eligible facility according to FEMAs landslide policy.
As explained in the enclosed analysis, I have determined that the Applicant was not legally responsible to repair damage to private property on the slope at the time of the disaster. Their responsibility was determined after-the-fact by the court. Further, the documentation provided by the Applicant does not support that the slope is an engineered slope and does not otherwise meet the criteria of an eligible facility. Accordingly, I find that the repairs to the slope completed by the City on private property do not meet eligibility requirements of the Public Assistance program, and the costs incurred by the Applicant for this work are not eligible for assistance. The Applicants appeal is denied.
Please inform the Applicant of my decision. My determination constitutes a final decision of this matter pursuant to 44 CFR § 206.206.
Sincerely,
/S/
Daniel A. Craig
Director
Recovery Division
Emergency Preparedness and Response
Enclosure
cc: Acting Karen Ames
Regional Director
FEMA, Region IX
Appeal Analysis
BACKGROUNDDuring the El Nino storms (FEMA-1203), a retaining wall and slope failure occurred at Del Obispo Street and Blue Fin Drive in the City of Dana Point. As a result of the failures, damage occurred to the masonry retaining wall, sidewalk, curb, and gutter at the base of the slope; a concrete-lined terrace drain; and a storm drain pipe that ran from the top of the slope to the bottom of the slope. The City of Dana Point (Applicant) requested the Federal Emergency Management Agency (FEMA) fund repairs on both public and private property associated with the damage.
The City owns a 10-foot wide easement for a 24-inch corrugated metal storm drain pipe that runs approximately 204 feet down the slope and crosses two residential properties. The City also owns the bottom 3 to 5 feet of the slope as part of an easement for Del Obispo Street. The balance of the slope is privately owned. The City had constructed a masonry retaining wall in the easement at the base of the slope. A timber pile retaining wall was located immediately north of and adjacent to the masonry wall. Del Obispo Street is located east of the retaining walls.
On August 10, 1999, FEMA prepared Damage Survey Report (DSR) 03726 for $6,632 for emergency measures to remove debris from Del Obispo Street and repair 25 linear feet (LF) of 36-inch corrugated metal pipe that was dislodged.
In a letter dated June 11, 2002, the City of Dana Point requested supplemental funding for DSR 03726 in the amount of $88,255 based on an estimate to complete permanent repair work. On December 19, 2002, FEMA responded that it would delay approval of supplemental funding until a re-inspection of the site could be made.
First Appeal
The City completed their work and filed their first appeal on October 8, 2003, requesting supplemental funding in the amount of $425,609 for repairs completed on public and private property. The owners of the two residential properties that were impacted by the slide sued the City, and the Courts found in favor of the plaintiffs. As a result of mediation completed on August 24, 2001, the City agreed to undertake the repair of the slope on private property according to plans prepared by Ninyo & Moore. The final construction cost of the repairs was $307,213.37, and the costs of engineering, geotechnical, and contract management services were $118,395.79. The total project cost assumed by the City was $425,609.02. The City maintained that all of the project costs were eligible in accordance with 44 CFR §206.223, which states that to be eligible, the work must: (1) be required as the result of the disaster event; (2) be located within a designated disaster area; and (3) be the legal responsibility of an eligible applicant.
On October 22, 2003, FEMA prepared DSR 06640 as a supplement to DSR 03726 to document the scope of work and estimated costs associated with permanent repairs to the street and drainage pipe in the public right-of-way. Eligible work included temporary diversion of the pipe; repairs to the retaining wall, sidewalk, street, curb, and gutter; installation of a catch basin; hydroseeding the slope within the public right-of-way; and a pro-rata (24%) share of soils testing, design, permits, traffic control, and contractor mobilization costs. The cost of repairs made on private property was specifically excluded. The total amount of DSR 06640 was $125,225. The combined approved total of the DSRs related to the slide damage was $134,857.
In a letter dated October 7, 2004, the Regional Director supported the additional funding provided to the City in DSR 06640, but denied any additional funding. The appeal analysis determined that the work performed by the Applicant on private property did not meet eligibility requirements because the Applicant was not legally responsible for the slope on private property at the time of the disaster, which is required per page 16 of the Public Assistance Guide: An eligible applicant must be legally responsible for the damaged facility at the time of the disaster. The appeal analysis also determined that work to stabilize a landslide does not constitute eligible work per 44 CFR § 206.208, §206.222, §206.224, page 46 of the Public Assistance Guide (FEMA 322), and the Landslide Policy 9524.2. The appeal analysis raised some questions about net small project overruns (NSPO) and if the Citys appeal met the 60-day submission deadline. The Regional Director approved the supplemental funding provided in DSR 06640 for $125,225, which was based on FEMAs determination of the portion of the work that was completed on public property. The request for funding of the work completed on private property was denied.
Second Appeal
On October 7, 2004, the City of Dana Point submitted a second appeal to the State requesting funding for the full $425,609 paid by the City for the repairs to both public and private property. The State transmitted and supported the request in a letter dated December 10, 2004. The Applicant and the State assert that:
(1) The City was legally responsible for the repairs per the Courts verdict.
(2)
(3) The slope was an engineered slope and not a natural slope, and therefore is not subject to the Landslide Policy.
(4)
(5) The City complied with the NSPO requirements and FEMA acknowledged and partially approved these requests, stating that the original scope of work was inadequate because it did not describe a scope of work that would return the storm drain to its pre-disaster function.
The Applicant also requested FEMA provide an analysis of how it arrived at the $125,225 approved as part of the first appeal.
DISCUSSION
The primary issues of the Applicants appeal are associated with whether the Applicant was legally responsible for repairs to the slope on private property, if the slope is subject to the Landslide Policy, and if the Applicant met the deadline to apply for a NSPO. The issues are discussed in the following paragraphs.
Legal Responsibility
The Applicant contends that they are legally responsible for repairing and paying for all of the work to restore the slope on private property because of the courts ruling on the private property owners lawsuit. The Robert T. Stafford Act does not make provisions for court determinations in its definition of legal responsibility. Section 406 of the Stafford Act states, The President may make contributions to a State or local government for the repair, restoration, reconstruction, or replacement of a public facility which is damaged or destroyed by a major disaster Furthermore, page 16 of the Public Assistance Guide (FEMA 322) clearly states that An eligible applicant must be legally responsible for the damaged facility at the time of the disaster. The City was not legally responsible for the private property at the time the disaster occurred, and therefore is not eligible to receive funding for work performed on private property. FEMA already has reimbursed the City for eligible work performed on public property.
In its letter supporting the Applicants second appeal, the State cites a second appeal by Humboldt County for FEMA-1044-DR-CA in which FEMA states that it will not make a funding determination until after the court had made its decision regarding legal responsibility, and that the Applicant could submit a third appeal for consideration after the case was resolved. However, Humboldt County did not submit a third appeal, so no precedent for FEMA making an eligibility determination based on the outcome of a court case was ever established. Nowhere in the laws, statutes, or policies that govern the Public Assistance program, is there a provision for legal responsibility being determinedbe work at the time the disaster occurs.
Landslide Policy
The City claims that the slope was engineered, and therefore, constitutes an eligible facility. FEMA has requested backup documentation in the form of plans, specifications, drawings, construction documents, etc., to demonstrate that the slope was engineered. The Citys response to this request is that, The slope was part of the development of Tract Number 4072, developed in 1964 under permit through the County of Orange as the City incorporated in 1989. The City was unable to locate information as to how the grading of the pads and associated slope was accomplished. The construction of Del Obispo occurred as well, but the date of construction is unknown. Information that has been provided to FEMA to date does not demonstrate that any subsurface drainage, geotextile reinforcement, slope flattening, or other engineering measures were accomplished on the slope prior to the disaster. Therefore, FEMA disagrees with the Citys claim that the slope is engineered. FEMAs Landslide Policy (Recovery Policy #9524.2) states that permanent earth repair that is not integral to the restoration of a public facility on a stable site is not eligible for reimbursement. Historically, the site has not experienced sliding in the past, and therefore may be considered stable. According to the landslide policy, only the ground necessary to restore a public facility, in this case the right-of-way/easement for a drainage pipe, is eligible for restoration funding. The rest of the hillside on private property does not constitute a facility according to FEMAs regulations, nor does it support a public facility, and therefore, is not eligible for restoration funding.
NSPO Requirements
The first appeal analysis raised the question of whether or not the Applicant met the programs timeline requirements for submitting a net small project overrun request. While the resolution of this issue has no real bearing on the outcome of this second appeal, a summary of the issue is provided as follows:
August 24, 2001 Mediation concluded for lawsuit settlement
January 8, 2002 Time extension requested to January 31, 2003
September 17, 2002 Follow-up letter submitted to OES
October 10, 2002 OES transmits and submits Citys follow-up extension request
December 3, 2002 City completes repairs on slope in accordance with FEMA-approved deadline extension
January 9, 2003 City submits final claim to State/FEMA
January 27, 2003 City submits NSPO request
February 3, 2003 Last day to appeal NSPO for DSR 03726
Based on the timeline summary, it appears that the Applicant met the timeline requirements for requesting NSPO supplemental funding.
First Appeal Funding Determination
The total eligible project cost was determined based on the following:
24% of the cost of soils testing, design, permits, contractor mobilization, and traffic control
Temporary diversion of pipe
Removal and replacement of 150 LF of reinforced concrete retaining wall
Installation of 150 LF of concrete lined ditch behind retaining wall
Removal of 18 CY of debris
Replacement of 144 LF of storm drain pipe
Removal and replacement of 150 LF of sidewalk and curb and gutter
Asphalt repair in the public right-of-way
Hydroseeding, estimated at 7% of total stabilization cost
The costs associated with DSR 03726 were deducted from the costs outlined above to arrive at the total of $125,225. A copy of the spreadsheet is attached.
CONCLUSION
Based on a review of the information provided in the Applicants second appeal, we have determined that (1) the Applicant was not legally responsible for damage to private property at the time the disaster occurred, (2) only the portion of the slope that supports the failed portion of the pipeline constitutes an eligible facility, and (3) the Applicant complied with the timeline for submitting a NSPO funding request. Based on these determinations, the Applicant is not eligible to receive additional funding for repairs to the slope completed on private property.
The Applicants appeal is denied.
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