Damage Retaining Wall

August 11, 2000

Mr. David L. Smith
Disaster Assistance and Preparedness
Illinois Emergency Management Agency
110 East Adams Street
Springfield, Illinois 62701

Dear Mr. Smith:

Re: Second Appeal - Village of Orland Hills; FEMA-1129-DR-IL; P.A. ID 031-56627; DSR 18024

This is in response to your February 24, 2000 letter forwarding the February 18, 2000 second appeal from the Village of Orland Hills. The Village is appealing the Federal Emergency Management Agency's (FEMA's) December 9, 1999 denial of its request to re-obligate funds under Damage Survey Report (DSR) 18024.

In the aftermath of the severe storms, high winds and flooding that occurred July 17 - August 7, 1996, FEMA prepared DSR 44630 for the Village of Orland Hills in the amount of $18,495 to replace a damaged retaining wall. A Public Assistance Officer in your organization subsequently reported in a January 6, 1999 letter that it had been brought to his attention that the repairs to the retaining wall were not the responsibility of the Village. FEMA conducted an investigation after which it approved DSR 18024 on July 7, 1999 to deobligate the funding that had been approved under DSR 44630.

The Village submitted a September 30, 1999 appeal of the deobligation in which it claimed that the wall was installed as part of a drainage system within the public improvements of the development. The appeal, however, did not include any additional information to support the claim. Although the Village did not submit its appeal within the regulatory timeframe, the Regional Director evaluated the merits of the case. The Regional Director denied the appeal in a December 9, 1999 letter because the Village Administrator and the former Village Trustee had submitted contradictory information contesting the Village's legal responsibility for the repairs to the wall. The Village also did not provide adequate additional information to support its contention that the wall was its legal responsibility.

I have carefully considered the representations made in the applicant's appeal letter and the Regional Director's denial of the first appeal. The issue in this case is whether a retaining wall adjacent to the Village is the legal responsibility of the Village. Ownership of the wall or an agreement assigning responsibility for the wall to the Village would render the wall eligible for federal assistance. The available documentation indicates that the wall was originally constructed outside the limits of the Village on a utility easement on private property. The applicant has not produced any records or documentation to show that the Village was party to an agreement accepting responsibility for the wall. I concur with your observation that because a wall sits on a public utility easement does not necessarily mean that the local government has a legal responsibility for the wall.

In a May 15, 1996 letter to one of the private property owners on whose properties the wall was built, the Village Administrator wrote that Building Commissioner Hermansen and the Administrator had collectively determined that the wall was part of adjoining private property. The Administrator is now disclaiming this collective determination. However, the Administrator is unable to produce any documentary evidence in support of the claim.

In view of the above and in the absence of documented evidence to the contrary, I have determined that the repair of the retaining wall adjacent to the Village of Orland Hills is not the legal responsibility of the Village. Therefore, I am denying this appeal. Please inform the subgrantee of my 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

cc: Dale W. Shipley
Regional Director
FEMA Region V