Stories indexed with the term ‘Irvin Mermelstein’

Shelton to Hear Motions in FDD Case

The footing drain disconnection lawsuit filed against the city of Ann Arbor in late February has taken several procedural turns over the last six months, with virtually no issues on the merits of the case yet resolved.

Abigail Elias, Stephen Postema, Irv Mermelstein.

From left: Assistant city attorney Abigail Elias, city attorney Stephen Postema and co-counsel for the plaintiffs Irvin Mermelstein. The photo is from the July 2, 2014 hearing on a preliminary injunction in the Yu v. Ann Arbor case, which judge Donald Shelton denied.

The latest procedural issues now appear set to be decided on Aug. 27, 2014 – judge Donald Shelton’s final motion day before his retirement.

The case involves a claim of unconstitutional takings – inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city FDD program.

The procedural issues that could be decided next week include a motion to disqualify the city attorney’s office from representing the city due to conflicts; a motion to sanction city attorneys for filing documents with statements that plaintiffs allege are not well-grounded in fact; and a motion to reassign the case to a judge other than Timothy Connors. All three motions were filed with the court on Wednesday, Aug. 20.

A dispute about whether those Aug. 20 filings were properly served upon the city is one of the issues Shelton could decide at the start of the hearing.

By way of background, the case was originally filed in the Washtenaw County 22nd circuit court and assigned to Shelton in late February. The city then removed the case to federal court. However, the plaintiffs moved for remand from the federal court back to the circuit court – a motion that was granted by judge Avern Cohn in late May.

When the case returned to the circuit court, plaintiffs filed a motion for a preliminary injunction, which was heard and denied by Shelton in early July. The city had filed a motion for summary disposition on June 9, which was originally scheduled for July 30. It was subsequently rescheduled by the city for Aug. 13, and then shifted by the city again to Sept. 18 – which is after Shelton’s scheduled retirement.

According to the court administrator’s office, the case will not officially be reassigned to a different judge until Sept. 2. However, when The Chronicle inquired with the 22nd circuit court’s central scheduling office, the staff indicated that the plan was to reassign all of Shelton’s civil cases to Connors. So the city’s paperwork scheduling of the Sept. 18 hearing specifies Connors as the judge. [Full Story]

Lawsuit Filed on City Footing Drain Program

A lawsuit has now been filed in Washtenaw County’s 22nd Circuit Court challenging the legal foundation of the city of Ann Arbor’s footing drain disconnection (FDD) ordinance.

A lawsuit has been filed in the 22nd circuit court challenging the constitutionality of the city of Ann Arbor's footing drain disconnection program.

A lawsuit has been filed in the 22nd Circuit Court challenging the constitutionality of the city of Ann Arbor’s footing drain disconnection program. (Illustration by The Chronicle.)

The ordinance was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the sanitary sewer system. Its intent is to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.

In connection with that lawsuit, a motion for a preliminary injunction has also been filed, asking that the court order the city immediately to stop enforcement of its ordinance.

[FDDP-Complaint-Feb.27.2014-OCR] [FDDP-Motion-Feb.27.2014-OCR]

In September 2012, the Ann Arbor city council already took action partially to suspend the FDD program. That council decision of nearly 18 months ago came not in response to a formal legal action, but rather coincided with complaints from residents in the southeastern part of the city.

Then about a year ago, in February 2013, the city authorized a contract with an engineering firm to undertake a sanitary sewer wet weather evaluation (SSWWE) – in part to determine the impact of the FDD program to date. At a public meeting on the SSWWE held two weeks ago, on Feb. 6, 2014, the future status of the FDD program was portrayed as dubious: Even if the SSWWE study eventually identified an ongoing risk of sewage backups in Ann Arbor basements, the FDD would probably not continue “as is.”

The lawsuit claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth the requirements for a government to take private property for public use; (2) the Michigan state constitutional prohibition against taking private property for public use without just compensation; (3) the corresponding U.S. constitutional prohibition against taking private property, which is a Fifth Amendment claim; and (4) the prohibition against violating the federally protected rights of others, which is a claim under 42 U.S.C. Section 1983.

The lawsuit asks that the court declare the FDD ordinance is “unconstitutional, on its face and as implemented.”

Plaintiffs in the case are Ann Arbor residents John Boyer, Mary Jean Raab and Anita Yu. They are represented by attorneys Dan O’Brien, who’s chair of the litigation department at Woods Oviatt Gilman in Rochester, New York; Irvin Mermelstein, a local Ann Arbor attorney in private practice; and Mark Koroi, a Plymouth attorney.

Background leading up to the filing, as well as a description of the filing, has been tracked on Mermelstein is the resident agent for a2underwater, LLC.

The lawsuit was filed on Feb. 27, 2014. It has been assigned to judge Donald Shelton.

Some of the legal theories on which the lawsuit is based have already surfaced in correspondence that’s become public. And some aspects of the city’s potential defense against a lawsuit may have already been described publicly by assistant city attorney Abigail Elias. That description came at a recent meeting of a citizens advisory committee that is supposed to make a recommendation sometime in the summer of 2014 on the future of the FDD program. For additional background on the topic of the footing drain disconnection program, see Chronicle coverage: “Backups: Lawyers, Sewers, Pumps.” [Full Story]