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Castellammare Drive Landslide
Appeal Brief
Appeal Letter
Citation: FEMA-0979-DR-CA; City of Los Angeles DPW, Castellammare Drive Landslide
Cross-Reference: Time Limitations for Appeal Submittal
Summary: As a result of the 1993 winter storms, a landslide occurred within the downslope hillside adjacent to Castellammare Drive, damaging portions of the roadway section. DSR 85229 was prepared to repair damages to the roadway and adjacent hillside ($425,637), but the scope of work was found ineligible on the basis that the road was under the authority of the Federal Highway Administration (FHWA). Over two years after notification of this denial of funding, the applicant filed a first appeal, asserting that the road was not an FHWA road. The Regional Director denied this appeal on the basis of timeframes, stating that no justification had been provided for such a late submittal of a first appeal. A second appeal of this determination was submitted by the applicant (again late by seven months), asserting that the first appeal was late because (1) the applicant's efforts were directed to repairs from subsequent disasters (Northridge Earthquake and 1995 Winter Storms), and (2) that the actual costs of repairs were not available until late 1995. The applicant provided no justification for submitting the second appeal after the regulatory deadline.
Issues: Has the applicant provided sufficient justification to support accepting an appeal that was submitted more than two years after the regulatory timeframe for submitting an appeal?
Findings: No. The onset of subsequent disasters (which were declared after the first appeal was due) is not sufficient justification considering that the relatively simple basis of the first appeal - road is not FHWA - and noting that the applicant otherwise had sufficient staff to administer the actual repair work. Additionally, it is not necessary to provide actual costs for a project in order to conduct a review of project eligibility.
Rationale: An applicant's appeal of any determination made by FEMA must be made in writing and submitted to the State within 60 days notice of the action which is being appealed. Late submittals may be considered if the applicant can demonstrate that extenuating circumstances prohibited them from submitting the appeal within the regulatory timeframe. 44 CFR 206.206
Appeal Brief
| Disaster | FEMA-0979-DR |
| Applicant | City of Los Angeles Department of Public Works |
| Appeal Type | Second |
| PA ID# | 037-91080 |
| PW ID# | 85229 |
| Date Signed | 1997-11-24T05:00:00 |
Cross-Reference: Time Limitations for Appeal Submittal
Summary: As a result of the 1993 winter storms, a landslide occurred within the downslope hillside adjacent to Castellammare Drive, damaging portions of the roadway section. DSR 85229 was prepared to repair damages to the roadway and adjacent hillside ($425,637), but the scope of work was found ineligible on the basis that the road was under the authority of the Federal Highway Administration (FHWA). Over two years after notification of this denial of funding, the applicant filed a first appeal, asserting that the road was not an FHWA road. The Regional Director denied this appeal on the basis of timeframes, stating that no justification had been provided for such a late submittal of a first appeal. A second appeal of this determination was submitted by the applicant (again late by seven months), asserting that the first appeal was late because (1) the applicant's efforts were directed to repairs from subsequent disasters (Northridge Earthquake and 1995 Winter Storms), and (2) that the actual costs of repairs were not available until late 1995. The applicant provided no justification for submitting the second appeal after the regulatory deadline.
Issues: Has the applicant provided sufficient justification to support accepting an appeal that was submitted more than two years after the regulatory timeframe for submitting an appeal?
Findings: No. The onset of subsequent disasters (which were declared after the first appeal was due) is not sufficient justification considering that the relatively simple basis of the first appeal - road is not FHWA - and noting that the applicant otherwise had sufficient staff to administer the actual repair work. Additionally, it is not necessary to provide actual costs for a project in order to conduct a review of project eligibility.
Rationale: An applicant's appeal of any determination made by FEMA must be made in writing and submitted to the State within 60 days notice of the action which is being appealed. Late submittals may be considered if the applicant can demonstrate that extenuating circumstances prohibited them from submitting the appeal within the regulatory timeframe. 44 CFR 206.206
Appeal Letter
November 24, 1997
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex. Third Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to the second appeal you submitted on behalf of the City of Los Angeles Department of Public Works (applicant). As a result of the disaster event (FEMA-0979-DR-CA), a landslide occurred within a hillside between Castellammare Drive (upper road) and Porto Marina Way (lower road), damaging portions of both roadway sections, utilities and other associated structures. The FEMA inspector prepared damage survey report (DSR) 85229 for repair of the damages to Castellammare Drive and the adjacent slope ($425,367). Porto Marina Way was reported to be a Federal Highway Administration (FHWA) road. During eligibility review, FEMA determined that Castellammare Drive was also under the authority of the FHWA, such that repairs of the associated damages were not eligible for FEMA assistance. DSR 85229 was, therefore, found ineligible for funding. The applicant was notified of this determination on or about November 11, 1993.
The applicant's first appeal of FEMA's determination was submitted to the Regional Director through your office in a letter dated May 10, 1996. The basis of the applicant's appeal was that Castellammare Drive is a "local street," such that its repair is not eligible for FHWA assistance. The Regional Director denied the first appeal on the basis that the appeal was received after the regulatory timeframe for submission. In accordance with section 206.206 of Title 44 of the Code of Federal Regulations (44 CFR), an applicant's appeal must be submitted to the State within 60 days after notification of the determination which is being appealed. The applicant's first appeal letter to the State, dated March 11, 1996, exceeded this deadline by more than two years, providing no justification for the delay. FEMA responded to this appeal in a letter to the State dated June 25, 1996, which was then forwarded to the applicant by the State in a letter dated August 1, 1996.
The applicant filed a second appeal to the State in a letter dated May 6, 1997, which was then forwarded to the FEMA regional office in a letter dated July 3, 1997. In their second appeal letter, the applicant discussed the circumstances which resulted in their first appeal being late. It is noted however that the second appeal was again submitted after the regulatory deadline for submission of an appeal (seven months late), with no specific justification for this delay.
The primary reason cited by the applicant for the delay in submitting their first appeal is that their staff was involved with the processing of repair work caused by the Northridge Earthquake (FEMA-1008), followed by the 1995 winter storms (FEMA-1044/1046). It is noted that having been notified that the DSR had been found ineligible in early November 1993, the applicant's deadline for submitting an appeal was early January 1994, just prior to the Northridge earthquake. Although FEMA recognizes the impact that subsequent disaster events may have on an applicant's staff, such occurrences are not necessarily considered justification for a delay of over two years time. The basis of the applicant's appeal - that the damaged road was not an FHWA road - is a relatively simple issue which not have involved significant effort to submit to FEMA. Further, it is noted that despite the subsequent disasters, the applicant had sufficient staff to complete the applications for FHWA funding and administer the actual repair work to both roadways and the damaged slope (completed in June of 1994). Therefore, the onset of the other disasters is not sufficient justification for the two year delay in submitting the first appeal for this project.
The applicant's second reason for having submitted their appeal late was that the FHWA reimbursement was not finalized until late 1995, and that they believed that an appeal filed after the project closed out would save time and effort, and reduce the paper work required by the appeal process. The purpose of the appeal process is typically to reassess general eligibility and scope of work issues. It is not necessary to provide actual costs for a project in order to conduct a review of project eligibility, particularly when the appeal issue is one of funding authority. Therefore, the applicant's delaying submittal of their appeal until actual costs could be reported in not sufficient justification.
Based on the above discussion, I have determined that the information submitted with the second appeal does not provide sufficient justification for accepting an appeal that was submitted more than two years after the regulatory timeframe for such submittal. Therefore, the second appeal is denied.
Please inform the applicant of this determination. The applicant may appeal this determination to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Ray Williams
Acting Regional Director
FEMA Region IX
Mr. Gilbert Najera
Governor's Authorized Representative
Governor's Office of Emergency Services
74 North Pasadena Avenue, West Annex. Third Floor
Pasadena, California 91103
Dear Mr. Najera:
This letter is in response to the second appeal you submitted on behalf of the City of Los Angeles Department of Public Works (applicant). As a result of the disaster event (FEMA-0979-DR-CA), a landslide occurred within a hillside between Castellammare Drive (upper road) and Porto Marina Way (lower road), damaging portions of both roadway sections, utilities and other associated structures. The FEMA inspector prepared damage survey report (DSR) 85229 for repair of the damages to Castellammare Drive and the adjacent slope ($425,367). Porto Marina Way was reported to be a Federal Highway Administration (FHWA) road. During eligibility review, FEMA determined that Castellammare Drive was also under the authority of the FHWA, such that repairs of the associated damages were not eligible for FEMA assistance. DSR 85229 was, therefore, found ineligible for funding. The applicant was notified of this determination on or about November 11, 1993.
The applicant's first appeal of FEMA's determination was submitted to the Regional Director through your office in a letter dated May 10, 1996. The basis of the applicant's appeal was that Castellammare Drive is a "local street," such that its repair is not eligible for FHWA assistance. The Regional Director denied the first appeal on the basis that the appeal was received after the regulatory timeframe for submission. In accordance with section 206.206 of Title 44 of the Code of Federal Regulations (44 CFR), an applicant's appeal must be submitted to the State within 60 days after notification of the determination which is being appealed. The applicant's first appeal letter to the State, dated March 11, 1996, exceeded this deadline by more than two years, providing no justification for the delay. FEMA responded to this appeal in a letter to the State dated June 25, 1996, which was then forwarded to the applicant by the State in a letter dated August 1, 1996.
The applicant filed a second appeal to the State in a letter dated May 6, 1997, which was then forwarded to the FEMA regional office in a letter dated July 3, 1997. In their second appeal letter, the applicant discussed the circumstances which resulted in their first appeal being late. It is noted however that the second appeal was again submitted after the regulatory deadline for submission of an appeal (seven months late), with no specific justification for this delay.
The primary reason cited by the applicant for the delay in submitting their first appeal is that their staff was involved with the processing of repair work caused by the Northridge Earthquake (FEMA-1008), followed by the 1995 winter storms (FEMA-1044/1046). It is noted that having been notified that the DSR had been found ineligible in early November 1993, the applicant's deadline for submitting an appeal was early January 1994, just prior to the Northridge earthquake. Although FEMA recognizes the impact that subsequent disaster events may have on an applicant's staff, such occurrences are not necessarily considered justification for a delay of over two years time. The basis of the applicant's appeal - that the damaged road was not an FHWA road - is a relatively simple issue which not have involved significant effort to submit to FEMA. Further, it is noted that despite the subsequent disasters, the applicant had sufficient staff to complete the applications for FHWA funding and administer the actual repair work to both roadways and the damaged slope (completed in June of 1994). Therefore, the onset of the other disasters is not sufficient justification for the two year delay in submitting the first appeal for this project.
The applicant's second reason for having submitted their appeal late was that the FHWA reimbursement was not finalized until late 1995, and that they believed that an appeal filed after the project closed out would save time and effort, and reduce the paper work required by the appeal process. The purpose of the appeal process is typically to reassess general eligibility and scope of work issues. It is not necessary to provide actual costs for a project in order to conduct a review of project eligibility, particularly when the appeal issue is one of funding authority. Therefore, the applicant's delaying submittal of their appeal until actual costs could be reported in not sufficient justification.
Based on the above discussion, I have determined that the information submitted with the second appeal does not provide sufficient justification for accepting an appeal that was submitted more than two years after the regulatory timeframe for such submittal. Therefore, the second appeal is denied.
Please inform the applicant of this determination. The applicant may appeal this determination to the Director of FEMA. The appeal must be submitted through your office and the Regional Director within 60 days of receipt of this determination.
Sincerely,
/S/
Lacy E. Suiter
Executive Associate Director
Response and Recovery Directorate
cc: Ray Williams
Acting Regional Director
FEMA Region IX