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Second Appeal Analysis
PA ID# 037-00394; City of Agoura Hills
DSR ID# 49949,69160; Calle Montecillo Landslide
Due to the severe winter storms that occurred in January through March of 1993, the President declared parts of California major disaster areas. The City of Agoura Hills is an eligible applicant for Public Assistance funding. A localized landslide occurred within the downslope hillside adjacent to Calle Montecillo Road, reportedly due to rain-induced ground saturation. Private homes are located both upslope and downslope of the hillside.
On May 25, 1993, representatives from FEMA, the California Office of Emergency Services (OES) and the City of Agoura Hills (applicant) visited the site to inspect the damages. The slope failure was found to extend into the right-of-way of Calle Montecillo, damaging the sidewalk and a portion of the road. Additional tension cracks were observed in the pavement and concern was raised that the public utilities in the road may have been affected by the movement. The remaining portion of the slide, outside of the right-of-way, is located on private property. The properties of four private residences, lots 53, 58, 59 and 60, were affected by this slide. The hillside and the road were constructed in the early 1980's by a private developer as part of the Rancho Las Virgenes County Estates housing development. The road was then dedicated to the city for public use.
In response to the observed conditions, two DSRs were prepared. DSR 79777 was prepared as Category B to provide funding for emergency protective measures to protect the road and adjacent properties. This work was referred to as "temporary emergency measures" and consisted of installing soldier piles and connecting beams to support the roadway, installing hydraugers to drain the hillside, placing temporary fencing adjacent to the roadway, and other associated work efforts. This work was complete at the time of the inspection. Eligible costs for DSR 79777 were estimated at $133,981. The second DSR, DSR 79789, was prepared as Category C, for necessary engineering services to determine permanent repair options for the road, including stabilization of the hillside. Eligible costs for DSR 79789 ($49,500) were based on a proposal for this work prepared for the applicant by Bing Yen & Associates, Inc.
The resulting geotechnical report dated June 1994, provided two different methods of repair to stabilize the roadway. The first method focused on conducting the work from within the roadway right-of-way and consisted of a continuous soldier pile wall design. The cost for this option was estimated at $1,115,000. The second method, which was preferred by the applicant, consisted of grading the existing hillside. This method required access to work on the adjacent private properties. This method was preferred because it was more cost-effective (estimated cost $500,000), and because it provided both permanent stabilization for the roadway as well as reduced the threat to the downslope homes from further movement of the failed hillside materials. Based on the cost estimates provided by the applicant, FEMA agreed that this grading scheme would be more cost-effective and prepared DSR 49949 as Category B, with an eligible cost of $500,000.
The applicant began proceedings to gain access onto the adjacent properties but was unsuccessful for two of the four properties. These property owners were in turn suing the applicant for damages which occurred to their homes and property due to the slide, thus complicating the proceedings. The applicant requested a time extension in October of 1994 to provide sufficient time to gain access and complete the work. FEMA granted the time extension through August 3, 1995.
On July 3, 1995, the applicant requested a second time extension as they had still not gained access to the properties, and as such, had not begun the work. Further review of the project by FEMA concluded that Category B work which had not been begun three years after the disaster could not be categorized as work necessary to alleviate an immediate threat. As such, in a letter dated September 19, 1995, FEMA denied the request for a time extension and prepared DSR 69160 to deobligate eligible funding in DSR 49949 ($500,000).
On October 18, 1995, the applicant submitted the first appeal of FEMA's decision, contending that they had proceeded with the grading solution as FEMA had agreed was the preferred method, but that the delays were due to the necessary court proceedings to gain access to the private properties. The applicant further stated that the work in DSR 49949 should have been considered as permanent work under Category C.
FEMA denied the appeal in a letter dated April 4, 1996, because the hillside is a natural feature which is privately owned, and, therefore, is only eligible for emergency protective measures under the Public Assistance program. The work provided for in DSR 79777 was considered to be sufficient to reduce any potential threats imposed by the slide conditions. The proposed grading scheme was considered "permanent repair" and, therefore, not eligible for the hillside. Further, court documents prepared by the applicant in the efforts to gain access to the properties indicated that bad engineering and grading practices during the original grading of the development were responsible for the collapse of the hillside. FEMA, therefore, concluded that the instability could not be solely attributed to the disaster.
The applicant filed a second appeal through OES on October 23, 1996. The applicant contended that (1) the condition of the hillside continued to pose a threat to the roadway and adjacent private property, (2) that the hillside should be considered an eligible facility as it was engineered and constructed as part of the housing development, and (3) that the poor design of the hillside was not the responsibility of the city, but of the developer and the county who approved the slope design. Further, the applicant indicated that they relied upon FEMA's original obligation of DSR 49949 to enter into a contract for the design and construction of the work. It is understood that some preliminary work, involving the installation of soldier piles adjacent to one property, was completed in December of 1995. The remaining grading operations were conducted during the period of May through September of 1996.
The applicant submitted their total costs for this project ($1,682,622), including backup, in a letter dated June 5, 1997. In this letter, the applicant cites various conditions which led the cost to increase from its original estimate of $500,000.
The primary issue of appeal is whether the hillside is eligible for repair. As indicated above, the landslide occurred primarily on private property, with the upper portion of the slide extending into the Calle Montecillo right-of-way, damaging a portion of the roadway itself. As the request for repair is associated with both public and private property, we have reviewed the project eligibility relative to both properties.
Hillside Stabilization - Public Property Eligibility
The roadway itself is a public facility for which disaster-related damages are generally eligible for both emergency assistance and permanent restoration. After the disaster, the condition of the hillside was found to be unstable, posing a threat to the support of the roadway and the adjacent residences. Emergency measures were taken by the applicant shortly after the slide occurred to protect the road from further movement and to reduce the potential for further movement of the downslope material. This work was found to be eligible Category B work for which funding has been obligated (DSR 79777). Based on the scope of the work completed, and the performance of the roadway and hillsidpid sufficient temporary stabilization of the road and hillside, as intended for emergency protective measures. There is no indication that additional emergency measures were warranted for this site.
The roadway is also eligible for permanent restoration. However, on November 30, 1995, FEMA issued a Landslide Policy Relating to Public Facilities. This document was the result of a review of an existing policy that was published in 1984, and essentially was a restatement of the 1984 policy which was in effect at the time of this disaster. For consideration of funding for hillside stabilization, the Landslide Policy requires that the stability of the site be evaluated. If a site is found to be unstable due to an identified, pre-existing condition, the applicant is responsible for stabilizing the site.
The hillside at issue in this appeal has been identified as being unstable before the disaster. Studies by the city's consulting geologists and engineers concluded that bad engineering and grading practices during the original grading of the Rancho Los Virgenes Country Estates Tract between 1980 and 1981 were responsible for the collapse of the hillside slope. More specifically, the reports indicate that the slope was too steep and had inadequate drainage. Improper fill materials were used for its construction, combined with improper compaction and grading techniques. The toe of the slope was excavated on Lot 60 to make room for the structure, reducing the overall stability of the slope. Additionally, the few existing drain outlets were not maintained, contributing to a build-up of groundwater in the slope. As discussed in the geotechnical report, the grading does not comply with the minimum standards set forth in the Agoura Hills Building Code and is in violation of that code, the Los Angeles County Building Code and the California Uniform Building Code.
The applicant contends that the poor design of the hillside was not the responsibility of the city, but of the original developer and the county who approved the slope design. However, the issue of responsibility for the unstable condition is not a factor in the determination of eligibility for stabilization. Because the hillside was previously unstable, and the instability contributed to the landslide, permanent stabilization of the hillside is the responsibility of the applicant and is not eligible for funding by FEMA. Funding for this hillside, relative to the roadway, would be limited to providing emergency protective measures. As indicated above, such measures were taken by the applicant and funded by FEMA in DSR 79777.
Permanent repairs to the roadway pavement and adjacent structures are eligible for FEMA assistance, once the site has been stabilized by the applicant. Further discussion of eligible roadway damages are provided later in this analysis.
Hillside Stabilization - Private Property Eligibility
The primary portion of the landslide occurred on private property. The applicant contends that this portion of the slide area should be considered an eligible facility as it was engineered and constructed as part of the housing development. Additionally, the applicant asserts that the hillside continues to pose a threat to the adjacent private property.
It is noted that even if the hillside were considered an improved feature due to the previous grading work, the hillside itself is private property which is not eligible for restoration under the Stafford Act.
FEMA assistance regarding private property is limited to providing emergency protective measures (Category B) in the event that the condition of the hillside posed an "immediate threat" to an eligible public or private facility, such as the adjacent road or residences. Pursuant to 44 CFR 206.225(a), to be eligible for assistance, emergency protective measures must be necessary to eliminate or lessen immediate threats to life, public health or safety, or must eliminate or lessen significant damage to improved public or private property. Immediate threat is defined in 44 CFR 206.221(c) as a threat of additional damage or destruction from an event that can reasonably be expected to occur within five years.
As described above, emergency protective measures (DSR 79777) were taken by the applicant shortly after the slide occurred. The documentation provided in support of this appeal does not demonstrate that the condition of the slope is continuing to pose an "immediate threat," as defined above, to the adjacent properties. Rather, given the extent of the emergency work completed in DSR 79777, and the performance of the roadway and hillside since its installation, it is concluded that these measures provided sufficient temporary stabilization of the road and hillside. There is no basis to support that additional emergency measures were warranted for this site.
Further, for eligible emergency work projects, emergency protective measures are limited only to those which reduce the "immediate" threat to specific property, and do not include stabilization of the overall slope. Based on the information provided, the scope of work described in DSR 49949 is considered to represent permanent restoration of the slope, rather than emergency protective measures. Accordingly, FEMA is unable to provide assistance for this scope of completed work as emergency work.
As discussed above, permanent restoration funding for the roadway would be limited to repair of the roadway pavement section which was damaged as a result of the disaster. Based on a review of the documentation of damages provided in the original DSRs, the portion of the roadway damage which can be attributed solely to the disaster is generally one travel lane width of the roadway along the length of the failed hillside. Replacement of the sidewalk and other constructed features within this area are also eligible. However, repair of the roadway and other structures outside these limits, as may have been necessitated as a result of the hillside stabilization construction operations, are not eligible. Additionally, efforts to repair the failed ground beneath the roadway are considered part of the hillside stabilization efforts, and are also not eligible. It will be necessary for a FEMA inspector to meet with the State and the applicant to better identify the eligible scope of work and associated costs.
Further, it is recognized that the applicant incurred some costs in response to FEMA initially obligating funds for this project. We have reviewed the project invoices submitted by the applicant and concur that costs incurred prior to FEMA's notification of deobligation (FEMA letter dated September 19, 1995) should be reimbursed to the applicant. A DSR will be prepared in the amount of $38,440 for work performed by Bing Yen & Associates (Invoices 2/28/95 $1,632.50, 8/31/95 $2055.00, and 9/30/95 $7,192.63) and Willdan Associates (Invoices 8/9/95 $5,808.50, 9/15/95 $8,119.10, 10/18/95 $13,632.50). Costs expended after FEMA's notification of deobligation are not eligible for reimbursement, except for those attributed to the roadway repair described above.
The damaged hillside is primarily on private property for which FEMA assistance is limited to providing emergency protective measures. Based on the adequate performance of the roadway and the hillside since the installation of the soldier pile system, additional emergency protective measures are not warranted for this site. Further, although the roadway is eligible for permanent restoration assistance, the documentation indicates that the hillside has been identified as being previously unstable. As this instability was found to have contributed to the landslide, permanent stabilization of the hillside is not eligible for permanent resectirading scheme is not eligible for either emergency work or permanent restoration assistance.
Eligible permanent restoration work for the roadway is limited to repair of the roadway pavement section which was damaged as a result of the disaster, not including other work which has been done on this road. A DSR will be prepared for the eligible work. It will be necessary for a FEMA inspector to meet with the State and the applicant to identify the eligible scope of work and associated costs.
Additionally, a DSR will be prepared in the amount of $38,440 for applicable design costs incurred by the applicant prior to notification of the deobligation.