Crestmoor Drive Landslide

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1203-DR
ApplicantCity of San Bruno
Appeal TypeSecond
PA ID#081-65028
PW ID#20760
Date Signed2000-06-30T04:00:00
Citation: FEMA-1203-DR-CA; City of San Bruno; DSR 20760, Crestmoor Drive Landslide

Cross-Reference: Eligible Facility, Natural Features, Emergency vs. Permanent Work

Summary: As a result of the 1998 El Nino rains, a landslide occurred within the upslope hillside of Crestmoor Drive in the City of San Bruno. Five residences located at the top of the slope were damaged. The applicant requested assistance for debris removal and stabilization of the hillside. It was determined, however, that the slope failure had initiated in 1995, evidenced by a crack in the hillside and downward movement of slope materials. The residents had sued the City in 1995 to force them to provide mitigation against additional sliding. The case was being tried when the 1998 slide occurred. In May 1998, the judge presented the City with an injunction requiring them to restore the hillside. The City, in turn, requested assistance from FEMA to fund this scope of repair. FEMA prepared two DSRs. Category A DSR 27047 was prepared in the amount of $210,534 for the removal of debris, and funded accordingly. Category G DSR 20760 was prepared in the amount of $1,575,849 for the requested permanent repair of the slope. However, this DSR was found ineligible on the basis that the slope was a natural feature and, because the failure had initiated prior to the event, it could not be considered a direct result of the disaster. The applicant submitted a first appeal asserting that the slope was a man-made fill constructed in the late 1950s such that it meets the definition of a facility and should be eligible for permanent restoration. The Regional Director denied the appeal stating that the landslide damage preceded the declared disaster and that the additional damage was in part caused by the applicant's failure to take prudent measures to stabilize the hillside from further degradation after the 1995 movement. The applicant's second appeal again argues that the hillside is an eligible facility, and further requests consideration of funding the completed work as emergency work.

Issues: 1. Is the subject hillside an eligible facility?2. Are the completed slope repairs eligible for emergency work funding?

Findings: 1. No. The failed hillside does not meet the definition of an improved and maintained natural feature, such that the hillside is not an eligible facility, and therefore, is not eligible for permanent restoration funding.2. No. The completed repairs are permanent in nature and exceed the intent of emergency protective measures.

Rationale: 44 CFR 206.201(c), 206.225, 206.226

Appeal Letter

June 30, 2000

Mr. D. A. Christian
Governor's Authorized Representative
Governor's Office of Emergency Services
P.O. Box 419023
Rancho Cordova, CA 95741-9023

RE: Second Appeal- City of San Bruno, Crestmoor Drive Landslide, FEMA-1203-DR-CA, DSR 20760

Dear Mr. Christian:

This letter is in response to your January 3, 2000 transmittal of the second appeal submitted by the City of San Bruno (applicant), contesting the Federal Emergency Management Agency's decision to deny funds for the repair of the failed slope adjacent to Crestmoor Drive. The applicant's appeal asserts that the hillside consists of a man-made fill and, therefore, should be considered an eligible facility. Additionally, the applicant requests consideration for funding the completed work as emergency work.

As explained in the enclosed analysis, it is concluded that the failed hillside does not meet the definition of an improved and maintained natural feature, such that the hillside is not an eligible facility, and therefore, is not eligible for permanent restoration funding. Futhermore, the completed repairs are permanent in nature and exceed the intent of emergency protective measures. Accordingly, the applicant's appeal is denied.

Please inform the applicant of this determination. My decision constitutes the final decision on this matter as set forth in 44 CFR 206.206.

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

Enclosure

cc: Martha Whetstone
Regional Director
FEMA Region IX

Appeal Analysis

BACKGROUND
As a result of the 1998 El Nino rains (FEMA﷓1203), a landslide occurred within the upslope hillside of Crestmoor Drive in the City of San Bruno (applicant). The hillside is located on City owned property. Numerous residences are located at the top of the slope and a roadway is located near the bottom. Five of the residences located at the top of the slope were damaged and red-tagged due to the event. The applicant requested assistance from the Federal Emergency Management Agency (FEMA) for repair of the slope.

On May 5, 1998, a geotechnical site inspection was made by representatives of FEMA, the California Office of Emergency Services (OES) and the applicant to observe the site conditions. It was reported at the site visit that the slope failure had initiated in 1995 when a crack formed in the slope and the surface soils set down 3 to 4 feet. The residents upslope of the crack had sued the City to force them to provide mitigation against additional sliding. The case was being tried when the 1998 slide occurred. In May of 1998, after the recent movement occurred, the judge presented the City with an injunction requiring them to restore the hillside downslope of the residences. The injunction required the City to complete the work by November 1, 1998. The scope of repair proposed in response to the injunction is that for which the applicant is requesting Public Assistance funding.

At the time of the May 1998 site visit, the applicant had removed approximately 4,000 cubic yards of slide materials, largely to create a catchment area for loose soil that remained higher on the slope. This effort was performed to reduce the potential for the loose materials to be deposited on the roadway below the slope. The applicant requested funding for the debris removal efforts and for the proposed reconstruction of the hillside using an engineered buttress fill. Construction of the buttress wall had not begun at the time of this site visit.

On November 10, 1998, a second site visit was made by a FEMA, OES, and applicant team, resulting in the preparation of two Damage Survey Reports (DSRs). At this time, repair efforts had been initiated and it was estimated that 30 percent of the project was complete. Category A DSR 27047 was prepared in the amount of $210,534 for the removal of debris described above, and funded accordingly. A second DSR, Category G DSR 20760, was prepared in the amount of $1,575,849 for the requested permanent repair of the slope based on the contractor bid price and related engineering services. However, based on a review of the geotechnical site visit, it was concluded that the slope was a natural feature and, because the failure had initiated prior to the event, it could not be considered a direct result of the disaster. Funding was denied for the permanent repair of the slope.

First Appeal
The applicant submitted a first appeal of FEMA's determination of ineligibility for DSR 20760, transmitted by OES in a letter dated April 8, 1999. The applicant concurred that the site experienced visible movement in 1995, but asserted that no damage to a city facility, nor any of the adjacent properties, occurred at that time. Further, the applicant stated that the slope was a man-made fill constructed in the late 1950s in conjunction with the surrounding subdivision. The property was later deeded to the city. Based on their assertion that the slope is a man-made facility, the applicant requested reconsideration of the permanent repair efforts. OES supported the appeal and requested that the work be considered for emergency work assistance.

The Regional Director denied the appeal in a letter dated August 16, 1999. The basis for the denial was that the landslide damage preceded the declared disaster and that the additional damage was in part caused by the applicant's failure to take prudent measures to stabilize the hillside from further degradation after the 1995 movement. OES's request for consideration as emergency work was not addressed in the Region's appeal response.

Second Appeal
The applicant submitted a second appeal of FEMA's determination, transmitted and supported by OES in a letter dated January 3, 2000. Again, the applicant asserts that the hillside is a man-made facility due to placement of fill during the subdivision development. Additionally, the applicant requests consideration for funding as emergency work. No new information is provided with this appeal.

DISCUSSION
The primary issue of this appeal is regarding the eligibility of restoration of the failed hillside. The eligibility of Public Assistance funding for this hillside, considering both permanent work and emergency work eligibility, is discussed below.

Permanent Work, Eligible Facility
DSR 20760 was prepared as Category G, requesting permanent restoration of the failed hillside. To be eligible for permanent work funding, a damaged site must be an eligible facility. Natural hillsides may only be considered eligible facilities when certain improvements are designed, constructed, and maintained within the hillsides themselves. The improvement should be based on a documented design that changes and improves the natural characteristics of the hillside. The improvement must be maintained to ensure it continues to provide the purpose of its design. For example, fill materials designed to provide structural support of a constructed building, road, or utility, would be considered eligible for assistance. It would, however, be necessary for an applicant to demonstrate that the fill materials were adequately providing their intended design at the time of the disaster event.

The applicant asserts that fill materials were placed during the development of the area in the 1950s such that the hillside should be considered a facility. However, the applicant stated in its second appeal letter that the city engineer evaluated the site after the movement in 1995 and determined that there was no evidence of eligible damage having occurred to either a city facility nor any of the adjacent private properties in spite of the appearance of the 3 to 4 ft. scarp. This statement contradicts the applicant's current position that the hillside should be considered an eligible facility.

While we do not dispute that some fill materials may have been placed during the 1950s development, the applicant has not provided any documentation to identify the specific purpose of the fill materials, whether it was for general site grading purposes or for structural support of development infrastructure. Additionally, the information that has been provided by the applicant does not quantify the specific location or extent of any fill materials that may have been placed. The applicant does reference its geotechnical engineer's April 16, 1998, report, asserting that this report determined that the hillside fill materials were man-made. However, review of this report finds no reference to the nature of the hillside materials or the extent or purpose of any fill materials that may have been present. Rather, the engineer's geologic cross-section that details the proposed slope repair only identifies natural soils within the remaining slope.

Further, as stated above, to be eligible for assistance, a constructed improvement must be maintained as necessary to ensure that it continues to provide the purpose of its design. The applicant was aware that the slope showed visible movement in 1995, yet no actions were taken to maintain the integrity of the slope. Therefore, it cannot be said that the applicant took necessary actions to "maintain" any slope improvements that may have been present.

Accordingly, the hillside does not meet the criteria of an improved and maintained natural feature, cihillside itself is not eligible for permanent restoration.

Emergency Work
FEMA assistance regarding natural features is limited to providing debris removal and emergency protective measures (categories A and 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. As described earlier, after the slope failure occurred in 1998, the applicant completed certain emergency type work activities. This work included removal of approximately 4,000 cubic yards of slide materials, largely to create a catchment area for loose soil that remained higher on the slope. DSR 27047 was prepared in the amount of $210,534 for this work. The FEMA geotechnical review team concluded that this effort was sufficient to reduce the threat of additional damage from the failed slope conditions. The applicant has not demonstrated that a continued threat existed that would specifically necessitate additional emergency type measures beyond the catchment construction.

After completing the removal of the slide debris, the applicant initiated the permanent repairs of the slope as required by the judge's ruling. The scope of work consisted of reconstructing the slope using an engineered buttress wall. It should be noted, however, that for eligible emergency work projects, emergency protective measures are limited only to those that 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 20760 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.

CONCLUSION
The failed hillside does not meet the definition of an improved and maintained natural feature.
As such the hillside is not an eligible facility and is not eligible for permanent restoration funding. In addition, the completed repairs are permanent in nature and exceed the intent of emergency protective measures. Sufficient emergency protective measures were provided in the Category A DSR 27047. Accordingly, the applicant's appeal is denied.
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