Application Procedures, Codes and Standards

Appeal Brief

Summary Paragraph

In February 2017, rain eroded a cliff abutting the City of Santa Cruz’s (Applicant) beach access area, threatening sections of sidewalks and guardrails. FEMA prepared Project Worksheet 882 for $48,546.12 to relocate portions of impacted sidewalk, curb, gutter, and W-beam guardrails away from the erosion areas. On October 29, 2018, the Applicant requested a scope of work (SOW) change for $217,244.00 to replace damaged and undamaged sidewalks with concrete, upgrade W-beam guardrails to pedestrian handrails, landscape the cliff face, and build a retaining wall. FEMA denied the request, finding the Applicant did not show that repair of disaster-related damages required the additional work and it had not previously identified the claimed damage along the beach access staircase. The Applicant appealed, asserting its proposed SOW restored the area to predisaster condition in accordance with codes and standards. The California Governor’s Office of Emergency Services (Recipient) transmitted the appeal with its support for all proposed SOW changes except for the retaining wall. FEMA partially approved the appeal, awarding $2,062.88 for 29 linear feet of sidewalk for transitions between the existing sidewalk and the relocated sidewalk. FEMA denied funding for all other work as the Applicant did not demonstrate codes and standards required the changes and did not timely identify damage related to a retaining wall. The Applicant submits its second appeal for $176,092.12, reiterating prior arguments and providing a zoning permit to support the landscaping that it states is for erosion control. The Recipient transmits the appeal, supporting only the landscaping.

Authorities

• Stafford Act §§ 406(a)(1)(A), 406(e)(1).
• 44 C.F.R. §§ 206.202(d)(1)(ii), 206.202(f)(2), 206.206(a), 206.226(a),(d).
• PAPPG, at 89, 95, 127, 134-35.
• Twp. of Pultney, FEMA-4424-DR-OH, at 3.

Headnotes

• Costs of upgrades required by codes or standards that change the predisaster construction of a facility must meet the five eligibility criteria found at 44 C.F.R. § 206.226(d).
  • The Applicant has not substantiated that codes and standards require the increased quantities and upgraded materials for the sidewalk, curb, gutter, and guardrail.
• Plantings may be eligible when they are part of the restoration of an eligible facility for the purpose of erosion control, to minimize sediment runoff, or to stabilize slopes. Long-term monitoring to ensure vegetative growth is not eligible, even if it meets this requirement.
  • With the exception of identified long-term maintenance to ensure vegetative growth, the landscaping to control erosion and minimize sediment runoff is eligible.
• Applicants must identify and report all disaster-related damage to FEMA within 60 days.
  • The Applicant did not timely identify claimed disaster-related damage necessitating the retaining wall and has not demonstrated extenuating circumstances for this delay.

Conclusion

The Applicant has not substantiated that codes and standards require the proposed improvements to the sidewalk, curb, gutter, and guardrail. The Applicant also did not identify claimed disaster-related damage to the beach access staircase until after the required 60-day deadline and has not demonstrated extenuating circumstances justifying the delay. However, the Applicant has demonstrated that the landscaping work required for the purpose of erosion control is eligible. Therefore, this appeal is partially granted in the amount of $18,350.00.

Appeal Letter

Appeal Analysis

Background

From February 1 to 23, 2017, winter storms, flooding, and mudslides impacted areas of California, including the City of Santa Cruz (Applicant). The President issued a major disaster declaration on April 1, 2017. The Applicant owns and maintains a public beach access area located at East Cliff Drive and Third Avenue, which includes an asphalt parking lot, park benches, a concrete curb and gutter around an asphalt sidewalk that leads to a set of stairs for beach access, and a W-beam guardrail bordering the sidewalk. Flooding from the disaster caused erosion at three locations of the cliff abutting the southern border of the beach access area, threatening the stability of the public sidewalks and guardrails. FEMA prepared Project Worksheet (PW) 882 for an estimated total of $48,546.12 to relocate 107 linear feet (LF) of the sidewalk, curb, and gutter three feet to the north, away from the areas of erosion, and install galvanized guardrails with wood posts.

In a letter dated October 29, 2018, the Applicant requested a scope of work (SOW) change for a revised estimate of $217,244.00, citing errors or omissions in the design, SOW, and cost estimate. The Applicant requested the following changes: (1) replacing all sidewalks in the area using concrete for the repairs to maintain surface consistency, to bring the materials up to current engineering standards, and to avoid disrupting the flow of pedestrian and vehicular traffic; (2) replacing W-beam guardrails with pedestrian handrails to comply with a California Building Code; (3) adding landscaping for the areas sloped away from the bluff face to prevent future erosion; and (4) adding 30 feet of soldier pile/wood lagging wall (Retaining Wall) along a portion of the stairs leading to the beach to address damage to the cliff. 

On September 13, 2019, FEMA denied the SOW change request. FEMA found that the Applicant did not demonstrate repair of disaster-related damages required the additional portions of sidewalk, curb, gutter, and guardrails. Furthermore, FEMA stated the Applicant had not previously identified the claimed damage along the stairs leading to the beach as having occurred as a result of the disaster. FEMA informed the Applicant that if it wished to proceed with the proposed SOW changes, it could submit a request for an improved project.

First Appeal

The Applicant submitted its first appeal in a letter dated November 18, 2019. The Applicant argued that its proposed SOW change was required to restore the function of the beach access area to predisaster condition in accordance with applicable codes and standards and was not an improved project. The Applicant repeated its request that the entire length of sidewalk, curb, and gutter be replaced with concrete, and the park benches in the added sidewalk portions be relocated. It also argued that a minimum of 56 additional LF should be included in the SOW to account for transitions between the existing sidewalk and the new relocated sidewalk. The Applicant argued that the length of eligible guardrail should be increased from 107 LF to 260 LF and the W-beam guardrails should be upgraded to pedestrian handrails for optics/visuals and to comply with the California Building Code.[1] The Applicant requested $15,000.00 to prepare the site “for landscaping required by the City Coastal Permit.”[2] The Applicant also reiterated its request for approval to build the Retaining Wall adjacent to the beach access staircase. In a letter dated January 16, 2019,[3] the California Governor’s Office of Emergency Services (Recipient) transmitted the Applicant’s appeal. The Recipient confirmed that the Applicant’s requested change in SOW would amount to an additional $178,155.00 in Public Assistance (PA) funding. The Recipient stated it supported the Applicant’s proposed SOW related to all items except the Retaining Wall ($46,000.00) as the PW did not identify this damage.

On April 7, 2022, the FEMA Region 9 Regional Administrator partially approved the appeal.[4] FEMA determined the Applicant identified 136 LF of new sidewalk in its design to accommodate the necessary transitions between existing and new sections of sidewalk and approved $2,062.88 for an additional 29 LF of sidewalk, curb, and gutter. However, FEMA determined the Applicant did not demonstrate that codes and standards required the use of concrete and, accordingly, denied the Applicant’s request to replace the entire sidewalk system and upgrade the materials from asphalt to concrete. FEMA also determined the park benches did not require relocation because those associated areas of asphalt sidewalk remained outside the scope of the project. In its denial of the proposed guardrail SOW modifications, FEMA noted that the California Building Code the Applicant cited did not require pedestrian handrail upgrades because the disaster site, a sidewalk providing pedestrian access to a beach staircase, was not a building or structure for occupancy or shelter to which the California Building Code applied.[5] FEMA denied PA funding for the proposed landscaping because the Applicant did not provide a copy of the Coastal Zoning Permit (Zoning Permit) or other support to document its claim that codes and standards required the landscaping and the restoration area remained outside the jurisdiction of the California Coastal Commission. FEMA also denied funding for the proposed Retaining Wall because the Applicant did not timely identify the claimed erosion at the beach access staircase until its SOW change request on October 29, 2018, more than 16 months after the 60-day deadline to report damages, and additionally did not provide an extenuating circumstance to justify the delay.

Second Appeal

The Applicant submits its second appeal in a letter dated June 8, 2022, requesting approval of $176,092.12 for its proposed SOW changes. The Applicant reiterates its claim that the entire sidewalk and guardrail systems need to be replaced with upgraded materials based on applicable codes, standards, and industry practices, citing a City Council Resolution (NS-26,464) from January 13, 2004, a 2002 Standard Specifications from its Department of Public Works (2002 Standard Specifications),[6] and a nearby project completed using concrete. In support of its proposed landscaping work, the Applicant provides a Zoning Permit and states the intent of the landscaping work is to mitigate runoff and control erosion. The Applicant also asserts that the Retaining Wall is eligible, contending the requirement to report all damage within 60 days of the kickoff meeting applies only to new sites not included on the list of projects rather than to newly identified damages at sites already included on the list of projects.

In a letter dated July 12, 2022,[7] the Recipient transmits the Applicant’s appeal with its partial support for SOW changes related to landscaping work for erosion control as a requirement of the City Coastal Permit ($22,250.00).[8] The Recipient states that it requested the codes and standards documentation the Applicant cited but the Applicant did not provide specific codes and standards that were formally adopted before the disaster, applied uniformly, and enforced that required the proposed improvements to the sidewalk, curb, gutter, and guardrail. The Recipient supports FEMA’s denial of eligibility for the proposed Retaining Wall as the Applicant did not timely report the claimed disaster-related damage to FEMA. The Recipient notes that damage or erosion around the stairs for beach access had not been identified during the site inspection nor at any other time (e.g., when project design was 70 percent completed in May 2017, when the Applicant received Notification of Obligation on June 13, 2018, or when the Applicant requested a time extension on September 26, 2018) prior to the Applicant’s SOW change request on October 29, 2018.

Discussion

Codes and Standards

FEMA may provide PA funding to eligible applicants for the repair, restoration, reconstruction, or replacement of facilities damaged or destroyed by a major disaster based on predisaster design and function in conformity with current applicable codes, specifications, and standards.[9] FEMA may reimburse the costs of upgrades required by codes or standards that change the predisaster construction of a facility only if the codes or standards: (1) apply to the type of repair or restoration required; (2) are appropriate to the predisaster use of the facility; (3) are found reasonable, in writing, and formally adopted and implemented by the state or local government on or before the disaster declaration date; (4) apply uniformly to all similar types of facilities within the jurisdiction of the owner of the facility; and (5) for any standards in effect at the time of the disaster, were enforced during the time they were in effect.[10] Upgrades recommended by design standards, guidelines, policies, industry practices, or other non-mandatory provisions are not eligible if the provisions do not meet all of these criteria.[11]

Plantings of trees, shrubs, cosmetic or aesthetic vegetation, and other vegetation are ineligible for replacement.[12] In certain instances, plantings (such as trees, shrubs, and other vegetation) may be eligible when they are part of the restoration of an eligible facility for the purpose of erosion control, to minimize sediment runoff, or to stabilize slopes.[13] Long-term monitoring to ensure vegetative growth is not eligible even if it meets these requirements.[14] It is the applicant’s responsibility to provide documentation to substantiate its claim as eligible and to clearly explain how those records support the appeal.[15]

Although the Applicant states that industry practices and applicable codes and standards require the proposed changes to the SOW, the Applicant does not substantiate this claim with specific codes and standards requiring the proposed improvements to the sidewalk, curb, gutter, and guardrail. City Council Resolution NS-26,464, cited by the Applicant to support its claim, approves the Public Works Department Standard Details and authorizes the Director of Public Works to make revisions as required to comply with applicable government regulations and standards. However, the resolution does not identify any applicable code or standard. Similarly, the 2002 Standard Specifications describe standards for design, installation, and material sourcing when installing a concrete sidewalk but do not include a requirement that all sidewalks be constructed with concrete. To the contrary, the 2002 Standard Specifications indicate that concrete is not uniformly required because it states that sidewalks, curbs, gutters, or other structures shall be of the same type and dimensions as the original structure when damaged during the construction of sanitary sewers, storm drains, and appurtenances.[16] Thus, the Applicant has not demonstrated that a formally adopted, uniformly applied, and enforced standard requires sidewalks to be uniform and made of concrete. Because portions of the sidewalk that the disaster did not damage are ineligible for PA funding, the proposed work to relocate the associated park benches located on those portions of sidewalk is also ineligible for PA funding. As FEMA noted in its first appeal decision, the California Building Code the Applicant cites to support its guardrail upgrade claim is not applicable to this project because the beach access area is not a building or structure for occupancy or shelter as defined by the California Building Code. The Applicant has not provided documentation substantiating that codes and standards require its proposed upgrade to the guardrails in the SOW.

The Zoning Permit the Applicant provides on appeal states that final plans for the project shall include: engineered grading, draining, and erosion control; landscape maintenance notes and requirements; and native, drought-tolerant plantings on areas of the slope that have been disturbed. In accordance with the Zoning Permit, the Applicant completed the landscaping to control erosion and minimize sediment runoff on the bluff face of the beach access area. Therefore, the landscaping work, minus the $3,900.00 identified as long-term maintenance to ensure vegetative growth, is eligible in the amount of $18,350.00.

Application Procedures

Applicants are required to identify and report all of their disaster-related damage to FEMA within 60 days of the Kickoff Meeting.[17] FEMA may extend the deadline for identifying and reporting damage if the recipient submits a request in writing with justification based on extenuating circumstances beyond the recipient’s or applicant’s control.[18] FEMA, the recipient, and the applicant should reach agreement on the disaster-related damage description and dimensions before proceeding with the SOW development.[19]

The Applicant did not report the claimed damage to the beach access staircase until October 29, 2018, 16 months after the 60-day deadline to report disaster-related damage to FEMA. The Applicant does not demonstrate the existence of any extenuating circumstance beyond its or the Recipient’s control justifying this delay. Therefore, the proposed Retaining Wall to address this claimed damage is ineligible for PA funding.

Conclusion

The Applicant has not substantiated that codes and standards require the proposed improvements to the sidewalk, curb, gutter, and guardrail. The Applicant also did not identify claimed disaster-related damage to the beach access staircase until after the required 60-day deadline and has not demonstrated extenuating circumstances justifying the delay. However, the Applicant has demonstrated that the landscaping work required for the purpose of erosion control is eligible. Therefore, this appeal is partially granted in the amount of $18,350.00.