Backups: Lawyers, Sewers, Pumps

Ann Arbor city attorney's office offers assurance to citizens advisory committee on legal backup for footing drain disconnection program, amid rumblings of possible lawsuit against the city

As part of a city study of Ann Arbor’s sanitary sewer system, a citizens advisory committee met on Jan. 9, 2014. The meeting was about backups – in several different senses.

Johanna Nader teaches a material science class at Slauson Middle School. The class projects were on display at the Slauson media center, where the most recent meeting of the city of Ann Arbor's citizens advisory committee

“Do not touch” reflects the attitude of some Ann Arbor homeowners toward their houses in the context of the city’s footing drain disconnection program. These class projects from Johanna Nader’s material science class at Slauson Middle School were on display at the Slauson media center. That’s where the most recent meeting took place for the city of Ann Arbor’s citizens committee that is advising the city’s sanitary sewer wet weather evaluation study. (Photos by the writer.)

The group’s charge includes making recommendations to the city council about the best way to manage the impact of rainfall on the city’s sanitary sewer system. Flows in the sanitary system are related to wet weather, even though the city has separate pipes for its sanitary and stormwater systems. That’s due to a variety of factors, including cracks in sanitary system pipes. Cracks can allow rainwater to soak into the pipes from above, and groundwater can come in from below.

But the factors that can increase the amount of water in the sanitary system during wet weather also include direct connections from stormwater systems into sanitary pipes. An example is a connection between a footing drain – part of a homeowner’s stormwater system running around the perimeter of basement foundations – and a sanitary sewer pipe. That’s a connection now prohibited by current building code, but still present in an estimated 16,000 houses in Ann Arbor.

If a deluge of water flowing into the sanitary system during a heavy rain becomes large enough, that can lead to two problems: (1) the extra volume can come up through the sanitary pipes in a homeowner’s basement, flooding the basement with a mixture of raw sewage and stormwater; and (2) the extra volume can overwhelm the city’s wastewater treatment facility, leading to the discharge of untreated sewage into the Huron River.

Over a decade ago, the city’s legislative response to this issue was to enact an ordinance that created a program requiring the systematic disconnection of property owners’ footing drains from the sanitary system. The city also created a way to pay for the work that uses funds from two sources – the city’s utility funds, or contributions from the owners of new developments. New developments help pay for the work because the city also created a program requiring that the developer of any new building in the city compensate for the additional load that the new building places on the sanitary sewer system. And the main way that developers choose to mitigate a new building’s added load on the sanitary system is to pay for footing drain disconnections.

So literal backups – of raw sewage in people’s basement, in the past and possibly in the future – were part of the basis for the committee’s work. But the group’s Jan. 9 meeting was devoted to “backups” in other ways as well. Assistant city attorney Abigail Elias presented the group with a couple of different assurances: (1) that the city would back the committee up if a lawsuit were to be filed against its members as a result of their recommendation; and (2) that she felt the city’s footing drain disconnect program had an adequate legal backup.

Meanwhile, rumblings that a lawsuit over the program could be filed continue to percolate to the surface.

Elias appeared before the group on Jan. 9 as a consequence of the committee’s interest in getting answers to questions raised by an email sent by Ann Arbor resident and attorney Irv Mermelstein on Oct. 29, 2013. In advance of the Jan. 9 meeting, which was originally scheduled for Dec. 17, 2013, Elias provided a written memo to the committee on Nov. 25, 2013. Elias’ memo responded to the arguments made by Mermelstein, which are based in part on the idea that the city’s program amounts to an unconstitutional taking of private property by the government.

And in a Nov. 27, 2013 email, Elias also provided written answers responding to follow-up questions from the committee about her memo from two days earlier. Those questions related to whether the citizens committee members had any legal exposure as a result of their participation in the committee. Elias was fairly emphatic in her written response, as well as in her remarks on Jan. 9, that she did not think such a lawsuit filed against the committee or its members could possibly have any merit.

Also surfacing during the committee’s Jan. 9 meeting was the notion of “backup” in the sense of a secondary system that activates if the primary system fails. The city’s footing drain disconnect program relies on installation of an interior basement sump – to collect water that gravity previously led away from the foundation through sanitary sewer pipes. The approach requires an electric pump to transfer stormwater collecting in the sump to the surface – because the interior sump would otherwise overflow, flooding the basement. The city’s program does not currently pay for a battery backup system for the pump. But Elias stated at the Jan. 9 meeting that she was exploring the possibility that the city could legally fund such a backup system.

Part of the committee’s discussion on Jan. 9 focused on how a backup system could improve peace of mind for homeowners who had a sump pump installed as part of the city’s footing drain disconnection program. That peace-of-mind discussion came in the context of a survey sent to 2,350 participants in the city’s footing drain disconnection program as a part of the current study project. Based on initial analysis of survey results presented at the Jan. 9 meeting, 40% of the 819 survey respondents reported an increase in anxiety after the installation of a sump and a pump as part of the footing drain disconnection program.

Finally, the meeting agenda included “backup” in the sense of backing up to review the committee’s mission. Resident Cy Hufano addressed the committee during public commentary made to the committee at the end of the meeting. Hufano described himself as “perplexed” that several months into the study, the citizens advisory group was still raising questions about their vision and purpose. Hufano also challenged the committee to make clear to themselves whether the city’s footing drain disconnection program exists to support developers at the expense of citizens.

This report is organized partly in terms of these various notions of “backup.” It begins with an overview of the physical mechanics of footing drains and how they work.

Footing Drains

The city of Ann Arbor has separate sanitary and stormwater conveyance systems. That is, the city has built separate pipes for (1) carrying human waste flushed down toilets to the wastewater treatment plan; and (2) moving rainwater from higher elevations to the Huron River.

However, during construction of new developments before roughly 1980, footing drains were frequently connected directly to the sanitary sewer pipes. Footing drains are permeable pipes buried around the perimeter of a foundation, roughly at the depth of a basement floor. The purpose of footing drains is to lead water – that soaks into the ground during a rainfall – away from the foundation of the building.

Those footing-drain-to-sanitary-sewer connections were convenient to make, because the footing drains and the sanitary sewers are typically buried at roughly the same depth. That means that gravity can be used to lead stormwater away from a building foundation by connecting footing drains into the sanitary system. Storm sewer pipes are typically not as deep, so gravity works against moving water from footing drains into the stormwater system.

Figure 1 shows a connected configuration.

Figure 1. Footing drains connected to the sanitary system. (Original illustration from screenshot of Youtube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

Figure 1. Footing drains connected to the sanitary system. (Original illustration from screenshot of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

However, during very heavy rains, that connected configuration can conceivable lead to a volume of stormwater flow into the sanitary sewer system that it’s not designed to handle. That can cause two problems.

First, near the point where the extra water is entering the sanitary system, it can cause raw sewage to back up through the floor drains of basements. Second, farther downstream at the wastewater treatment plant, the amount of water flowing into the plant can exceed the plant’s capacity. That can result in only partially-treated wastewater being discharged into the Huron River. Such connections are now against city code.

The city’s footing drain disconnection program was established in the early 2000s in the context of basement backups and sanitary sewage overflows during heavy rainstorms. Two key steps of the procedure are to disconnect the footing drain from the sanitary pipe, and then to install a sump outfitted with a pump to transfer the water to a higher elevation, where it can then flow into the city’s stormwater system.

Figure 2 shows a disconnected configuration with a sump and a pump.

Disconnected footing drains with installation of a sump pump. (Original illustration from screenshot of Youtube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

Figure 2. Disconnected footing drains with installation of a sump pump. (Original illustration from screenshot of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

The contrast between the pre-FDD configuration and a post-FDD configuration – a combination of Figures 1 and 2 – is shown in the animation of Figure 3.

Animation of contrast between the pre-FDD configuration and the post-FDD configuration. (Original illustration from screenshot of Youtube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

Figure 3. Animation of contrast between the pre-FDD configuration and the post-FDD configuration. (Original illustration from screenshots of YouTube video by Milwaukee Metropolitan Sewerage District, modified by The Chronicle.)

To see something close to a full-screen version of the animation, use this [link].

Disconnecting footing drains of individual buildings from the sanitary sewer system is not the only possible way to address the issue. Instead of trying to reduce the additional wet weather flow in the sanitary system, it’s possible to accept as a given that there will be a certain amount of stormwater entering the sanitary system during wet weather. And given that flow, the response would be engineer larger sanitary sewer pipes or to create temporary storage facilities to handle that flow. At the Jan. 9 meeting, one committee member ventured that this is the sort of solution the city should have pursued – because “the solution should be in the right-of-way, not in people’s homes.”

But those were not the approaches that were ultimately implemented by the city of Ann Arbor. Instead, the approach Ann Arbor took was to use footing drain disconnection, to reduce the amount of additional wet weather volume in the system.

The citizens advisory committee is now weighing a range of different approaches to the issue, while the current program is partially suspended. It will be up to the committee to make a recommendation – about whether to continue the footing drain disconnection program at all, and if so, in what form.

Historical Overview: Narrative

A basic sketch of the history of the city’s footing drain disconnection program (FDDP) begins in the mid-1990s with a series of backups of raw sewage into residents’ basements and overflows of sewage into the Huron River during heavy rainfalls. That obviously drew the attention of residents who had raw sewage sitting in their basements, but also of the Michigan Department of Environmental Quality.

The city council appointed a task force in 1999 to study the issue and make recommendations. Five localized areas of the city, where more than half of the basement backups had occurred, were targeted: Orchard Hills, Bromley, Morehead, Dartmoor and Glen Leven. The first two of those areas are adjacent to each other in the northeast part of the city. The other three are clustered in the southwest part of the city.

The initially recommended solutions in the five targeted geographic areas were a mix of footing drain disconnections (Bromley, Dartmoor, Glen Leven), upsizing pipes and creating storage facilities (Orchard Hills, Morehead). The final recommendations of the sanitary sewer overflow (SSO) prevention task force were for footing drain disconnections across the board.

In response to an emailed query from The Chronicle, assistant city attorney Abigail Elias indicated that it’s possible to contemplate a program that would require FDD in some areas of the city but not others, if there were a rational basis for doing so. The question and Elias’ response are as follows:

Question: The SSO report of June 2001 contains initial recommendations for implementation of FDDs in three geographic areas of the city but for storage and upsizing of sanitary sewers in two other areas. From a legal point of view, would it have been possible to establish an FDD ordinance that applied in just some areas of the city but not in others?

Elias: It might be possible to require footing drain disconnects in only certain areas of the City if there was a rational basis for defining each of the areas included or excluded. Because of the nature of flow in both sanitary and storm sewer systems, and based on our experience with heavy rains not necessarily repeating where they fall or where the flow has occurred and backed up within the sanitary sewer system, the areas designated for removal might have to expand or change. The City has shifted some areas in terms of priority for disconnect based on experience with certain areas having sanitary sewer backups into basements that did not have them during the 1998 and 2000 heavy rain events.

To support the program of footing drain disconnections, the city council passed an ordinance in 2001 that states the city can compel a homeowner to disconnect a footing drain from the sanitary system. The city also set up a reimbursement program to cover the cost of the plumbing work, and an option for a homeowner to pay $100 a month not to have the disconnection done.

The ordinance on FDDs was already in place by 2003 when the city signed a consent order with the Michigan Department of Environmental Quality on the issue of sanitary sewage overflows. The consent order required the city to disconnect at least 155 footing drains a year for four years for a total of 620. The 620 required disconnections were to be done in addition to 179 disconnections that had already been completed by the city by the time the consent order was signed.

Five target areas with majority of basement backups citywide.

Five target areas with the majority of basement backups citywide. The colored dots indicate locations of flow-monitoring meters.

The 2003 consent order also required the city to implement a developer offset mitigation program. That program requires developers of new projects to compensate for their additional load by reducing the flow elsewhere in the sanitary system. The option chosen by a developer to mitigate additional flow is not mandated to be footing drain disconnections elsewhere in the city. But as public services area administrator Craig Hupy put it at the Jan. 9 committee meeting, the “coin of the development realm” has become FDDs. Hupy described options like retrofitting toilets with lower-flow models as not being as cost-effective for developers as FDDs.

Based on information presented to the citizens advisory committee at its Aug. 21, 2013 meeting, as of July 1, 2013 the mandate of the consent order has already been satisfied with nearly three times as many FDDs as the consent order required. Specifically, 1,834 footing drain disconnections had been completed in the city’s FDD program by July 1, 2013. Another 805 FDD equivalents had been completed in the developer offset mitigation program.

Assistant city attorney Abigail Elias confirmed at the Jan. 9 citizens advisory committee meeting that as far as FDDs currently required by the MDEQ: “The state is not requiring it – that part of the administrative consent order is no longer in effect.”

In terms of the target geographic areas where the majority of basement backups had occurred back in the late 1990s, footing drain disconnections in two areas in the northeast part of Ann Arbor – Orchard Hills and Bromley – are about 99% complete. Footing drain disconnections in the southwest target areas of the city are all at least halfway done: Glen Leven (56%), Dartmoor (89%), and Morehead (63%).

On March 15, 2012 an especially heavy rain hit Ann Arbor, which caused extensive overland flooding in the southwestern part of the city in the vicinity of the southwest target areas. Questions were raised by residents about the possibility that the FDD program had exacerbated the overland flooding issue.

An Aug. 22, 2012 public meeting was held at the Pittsfield branch of the Ann Arbor District Library – located in the southwest part of the city. Some residents at the meeting complained that they were experiencing flooding of their previously dry basements after participation in the city’s FDD program.

The city council voted on Sept. 17, 2012 to partially suspend the city’s FDD program, and it remains suspended. The developer offset mitigation requirement remains in place. The council also authorized three water-related studies around the same time: (1) a stormwater study for upper Mallets Creek; (2) a citywide stormwater model calibration study; and (3) a study of wet weather on the sanitary sewer system.

The citizens committee that met on Jan. 9, 2014 is providing advisory input on the third study.

Historical Overview: Timeline

The timeline below is not exhaustive.

  • 1997-03-31 200 gallons of sanitary sewer overflow (SSO) due to sewer blockage.
  • 1997-09-05 Unknown amount of SSO due to sewer blockage.
  • 1998-03-09 Unknown amount of SSO due to surcharging manholes at three separate locations due to heavy rains. Basement floodings also occurred.
  • 1998-07-08 150-200 gallons of SSO due to sewer blockage.
  • 1998-09-06 168,000 gallons of SSO due to bypass at outfall 002 due to heavy rains. Hydraulic pumping capacity exceeded.
  • 1998-09-29 Unknown amount of SSO due to broken sanitary sewer line.
  • 1999-03-30 Unknown amount of SSO due to sewer blockage.
  • 1999-04-23 1.12 million gallons of SSO due to bypass at outfall 005 due to heavy rains.
  • 1999-07-06 City council establishes an SSO prevention task force with specific membership of city staff and others, with five slots for residents of the five affected neighborhoods.
  • 2000-07-10 Unknown amount of SSO on Swift Run Trunk Line due to heavy rains.
  • 2001-07-06 Unknown amount of SSO due to sewer blockage caused by roots.
  • 2001-07-09 City council is presented with final SSO prevention study report done by CDM. [.pdf of SSO report] [.pdf of SSO report appendices] The report includes initial recommendations for a mix of footing drain disconnections (FDDs) and upsizing of pipes and creation of storage facilities, but the final recommendations in the report are for FDDs across the board.
  • 2001-08-20 City council approves FDD ordinance.
  • 2001-10-17 2,000 gallons of SSO due to heavy rains causing flows to inadvertently enter influent channel at plant, which was under construction and overflow to storm sewer.
  • 2002-04-22 200 gallons of SSO due to plugged sanitary sewer main.
  • 2002-06-24 700 gallons of SSO due to force main break.
  • 2002-09-03 City council revises FDD ordinance with respect to reimbursements.
  • 2003-08-18 City council authorizes MDEQ administrative consent order.
  • 2003-08-18 City council authorizes developer offset mitigation program as part of resolution authorizing MDEQ administrative consent order.
  • 2003-08-14 Region-wide power outage and generator failure at wastewater treatment plant leads to 13 million gallons of partially-treated sewage being discharged into the river, 4 million of it undisinfected.
  • 2003-09-04 MDEQ administrative consent order entered. [.pdf of MDEQ consent order]
  • 2005-01-03 City council revises FDD ordinance with myriad other ordinances in context of citywide reorganization.
  • 2008-06-16 City council increases FDD reimbursement cap from $3,700 to $4,100.
  • 2008-08-07 City council revises FDD ordinance to allow for cap to be set by council resolution. [.pdf of city of Ann Arbor FDD ordinance]
  • 2009-11-03 MDEQ consent order is terminated.
  • 2010-06-07 Public commentary at city council about overland flooding near Village Oaks Court and Chaucer Court, located off Ann Arbor-Saline Road.
  • 2010-08-5 [24 FDDs] City council approves Zaragon Place 2 with 24 required FDDs.
  • 2011-01-03 [140 FDDs] City council approves contract amendment with CDM Michigan using money paid by University of Michigan associated with 127 required FDDs and 13 supplemental FDDs as a part of the Michigan Stadium renovation project.
  • 2011-11-10 [41 FDDs] City council approves The Varsity residential development with 41 required FDDs.
  • 2012-03-15 Rainfall of nearly 2 inches, all of which fell between 5 p.m. and 7 p.m. as measured at the city’s Jackson Road rain gauge.
  • 2012-04-16 Public commentary at city council meeting about March 15, 2012 and other localized overland flooding events.
  • 2012-05-07 Public commentary at city council meeting about March 15, 2012 localized overland flooding.
  • 2012-09-17 City council suspends a part of the FDD program.
  • 2013-02-04 City council authorizes contract with OHM for sanitary sewer wet weather evaluation study.
  • 2013-03-04 [20 FDDs] City council approves 624 Church St. with 20 required FDDs.
  • 2013-05-13 [59 FDDs] City council approves 413 E. Huron with 59 required FDDs.
  • 2013-08-08 [5 FDDs] City council approves Kerrytown Place with 5 required FDDs.
  • 2013-12-02 [1 FDD] City council approves Running Fit expansion with 1 required FDD.
  • 2014-01-06 [8 FDDs] City council approves Montgomery Building expansion with 8 required FDDs.

Backup (Secondary Systems): Peace of Mind

At the first meeting of the citizens advisory committee, on Aug. 21, 2013, committee member Frank Burdick’s sentiments in favor of a win-win solution were fairly representative of the group.

Frank Burdick at initial meeting of the wet weather sanitary sewer citizens advisory committee on Aug. 21, 2013. He's describing how a gravity-based back-up system would work.

Frank Burdick at the initial meeting of the wet weather sanitary sewer citizens advisory committee on Aug. 21, 2013. He’s describing how a gravity-based back-up system would work.

The win for a homeowner would include having peace of mind – that the disconnected footing drain configuration would not result in a risk of basement flooding.

What is the nature of that risk? After a footing drain is disconnected from the sanitary pipe, the water that collects in the drains is conveyed to an internal sump, and then pumped up and out to the surface – where the water eventually finds its way into the stormwater system. If the pump fails or the electrical power goes out, the sump will overflow into the basement and flood the area.

Losing electric power is a plausible scenario exactly when a pump might be called on to perform under heavy load – during a very heavy rainfall, oftentimes associated with electrical storms.

Burdick drew an analogy to the dam-in-dam-out controversy associated with Argo Dam a few years ago. That divisive issue was resolved by leaving the dam in place, but constructing the Argo Cascades, which allows kayakers to paddle from Argo Pond around the dam and continue on down the Huron River.

Several other committee members at the initial meeting also introduced themselves by saying they wanted to see some kind of compromise solution. Committee member Peter Houk, for example, said he was in favor of a solution that was acceptable to present and future participants in the FDD program.

Gravity-based backup system for sump pump sketched out by Frank Burdick.

Gravity-based backup system for sump pump sketched out by Frank Burdick.

Burdick sketched up one possibility for a compromise solution that relies on a specific plumbing configuration for the sump. The plumbing he sketched would – if the water reached a certain level in the sump – allow it to drain into the sanitary pipe. That way, if the pump fails or if the electricity goes out, a homeowner would have peace of mind that a gravity-based system would prevent the sump from overflowing.

At the Jan. 9 meeting, Burdick expressed some frustration that the city staff had not given his idea for the gravity-based backup system fair consideration. The facilitator for the study, Charlie Fleetham of Project Innovations, responded to Burdick by telling him that he thought the city had responded to his suggestion. Burdick characterized the response from the city as brief with no opportunity for dialogue.

Burdick said he wanted the city staff to get to the point of discussing what might work instead of simply concluding that something wouldn’t work. Fleetham reiterated that the city staff had concluded that Burdick’s design wouldn’t work. Burdick responded by saying that if the committee was really going to pursue a win-win solution, then there are technical resources in the city that need to participate more actively in the committee’s work. Though it was not made clear during the Jan. 9 meeting, the problem with Burdick’s design does not appear to involve its fluid dynamics, but rather whether it would meet city code.

At the Jan. 9 meeting, assistant city attorney Abigail Elias reported that making a battery backup system eligible for reimbursement under the FDD program is something the city is considering. She told the committee it’s a disadvantage to not have all the paperwork from 12 years ago when she’d initially researched the issue. [Elias was serving as city attorney when the FDD program was created. She held that position from 1996 to late 2002.] She told the committee that the legal research she’d done previously was not the kind of thing the city kept forever and ever. But she’s now taking a very serious look at whether there’s a reason not to be funding the battery backups.

A battery backup for a sump pump is not part of the building code, Elias said, so the city couldn’t require one. But Elias said her view is that if the battery backups are necessary for the sump pump to actually work and to function, then the city ought to be able to cover that cost. Elias said the city knew that backup systems are a concern – from looking at the data that’s coming back from a recent survey of participants in the FDD program.

The preliminary survey results were presented at the Jan. 9 meeting. The survey was sent to 2,350 participants in the city’s footing drain disconnection program and 819 people had responded by the time of the Jan. 9 meeting. [.pdf of preliminary, draft survey results]

Those results show many residents are very satisfied after participating in the FDD program, but many residents are also very dissatisfied. Several FDD program participants who’d previously had no basement water problems reported having water problems in their basements after the sump pump was installed. And several participants reported that their previous water problems have persisted even after participation in the FDD program. Anxiety about the installed sump pump was also an issue identified in the survey – that’s the aspect of the survey to which Elias alluded in her remarks.

But Elias said the city needs to make sure that it wouldn’t be getting into trouble by giving someone a backup system that exceeds code requirements and that violates some requirement in terms of who’s paying for it. “We would love to be able to cover the battery packs,” she said. That would be one more thing for people not to worry about, she noted. Elias indicated that the question of whether a battery backup system could be paid for by the city would be resolved by the time the committee made its recommendations – if FDDs are still one of the options the committee recommends.

Burdick seemed somewhat skeptical of the battery backup as a solution, saying that a gravity-based system is really the only way you can truly have a backup. He ventured that a battery would only last for a few hours, “and then you’re bailing your sump!” he said.

Legal Backup Issues: Citizens Committee

Abigail Elias of the city attorney’s office attended the Jan. 9 citizens advisory committee meeting in part to address concerns that had been prompted by a memo she’d written for the committee explaining why she thinks the city’s FDD program has a solid legal foundation. The memo drew questions about the possibility of a lawsuit being filed against members of the citizens committee.

Elias provided a written response to those questions in advance of the Jan. 9 meeting. [.pdf of Elias' response to questions about the committee's possible legal liabilities]

The three questions Elias answered were as follows:

  1. Does the memorandum mean that the City legal staff now represents CAC members?
  2. If the above is true, am I now prohibited from talking to other lawyers?
  3. If the City is sued regarding this project, will I be required to support the City’s position even if I do not agree with it?

To summarize her responses briefly – written, as well as remarks made at the Jan. 9 meeting – the memorandum does not establish an attorney-client relationship between the city attorney’s staff and committee members. And the fact that Elias wrote a memo does not prohibit a committee member from talking to other lawyers. Further, if the city were sued, committee members would be eligible for representation, provided they responded to phone calls and emails and showed up for required meetings.

But Elias stressed throughout that she did not think a lawsuit of that type – filed against committee members over the performance of duties in connection with the committee – could possibly have any merit, and would almost certainly be thrown out of court at the start.

By way of background, the citizens advisory committee associated with the wet weather sanitary sewer study is a different kind of committee from other groups that are sometimes established by the city council for advisory purposes. For example, the pedestrian safety task force that the city council established last year through a council resolution included an application process, after which selected members were nominated to serve. Confirmation by the council of those pedestrian task force appointments is on the Jan. 21 city council meeting agenda.

The original sanitary sewer overflow prevention task force from the late 1990s was also established and partly populated by a council resolution passed on July 6, 1999. Membership of that original group was established partly through the resolution establishing the task force:

  • Utilities Senior Engineer Peter Perala
  • Utilities Field Services Superintendent Craig Hupy
  • Acting Utilities Director Sumedh Bahl
  • City Engineer Sabah Yousif
  • Public Services Director William Wheeler
  • Associate City Administrator Ronald Olson
  • Huron River Watershed Council Executive Director Laura Rubin
  • County Drain Commissioner Janis Bobrin
  • Lee Roberts, plumbing expert
  • One representative from each of the five affected neighborhoods
  • An engineering professional

The city’s online Legistar records don’t reflect a subsequent city council action appointing the representatives of the five affected neighborhoods. But some of the subsequent meeting minutes of the task force reflect the following as task force members: Stephen Rapundalo, Barbara Bruemmer, Wendy Carman, Jim Nieters. Fran Alexander is mentioned as both a subcommittee member and the person handling public relations. [Those minutes also reflect a discussion of the desirability of having private contractors retain data, instead of the city, in order to prevent access to it via Michigan's Freedom of Information Act.]

The current citizens advisory committee was not established through a separate council resolution. Instead, a citizens advisory committee was part of the public engagement strategy in the scope of work for Orchard, Hiltz & McCliment Inc. approved by the city council about a year ago, on Feb. 4, 2013.

At the study’s kickoff meeting on April 23, 2013, an invitation was made for anyone to join the committee who wished to participate. And at the first meeting on Aug. 21, 2013, the meeting information packed lists 21 members of the committee: Kathe Atkins, Stan Baker, Mary Rinne Barnett, Peter and Marilyn Batra, Kathy Boris, Colin Breed, Frank Burdick, Vince Caruso, Joe Conen, Ted Dorr, Iris Floyd, Bruce Geffen, Thomas Holden, Peter Houk, Michelle Lovasz, Patricia Marten, Jim Osborn, Frank Pelosi, Frank Richardson, Beverly Smith, Mark Wagner and Matt Wherry. Not all of those listed have chosen to continue as members.

Assistant city attorney Abigail Elias

Assistant city attorney Abigail Elias.

Addressing the committee on Jan. 9, Elias indicated that she didn’t think a potential lawsuit filed against the citizens committee could have any merit. “I could give you a glib comment,” she said, “which is: It doesn’t take much to file a lawsuit. Anyone can file a lawsuit against anybody.”

She told the committee that courts do not like cases that do not have merit. That’s a huge discouragement to lawyers against filing lawsuits that they shouldn’t be filing, she said. As the citizens advisory committee, she told the members, “you are part of the city government in the sense that you’ve been asked to engage in what is a quintessential governmental function.” That function includes planning, recommending, studying, looking at the data, and looking at the information.

Governments in Michigan have broad governmental immunity for what they do, she said. “And that means, we can be negligent, but we are not liable.” Elias allowed that sounded very crass, but said that is basically what governmental immunity is.

The reason for governmental immunity is that the government performs core functions to serve the residents, and it needs to be able to do those things when the government is the only one doing them – without liability hanging over its head. “Does that mean we say, ‘Fine, we’ll go out and be negligent?’ Absolutely not,” Elias assured the committee. She allowed there are some exceptions – if the city doesn’t maintain streets properly or if there is a defect in the sewer system that causes a backup under limited circumstances. She also noted that drivers of city vehicles don’t have immunity if there’s a car accident.

But sitting on a planning committee making recommendations is the kind of function and action for which there should be no liability at all, Elias said. That doesn’t stop someone from filing a lawsuit, she allowed, but that means the lawsuit should be kicked out almost immediately. She concluded that it’s not something a committee member should be losing any sleep over.

As far as representation if the committee were sued, Elias said, “We’ll represent you. You’re part of the city process.” But she cautioned that did not mean that she and the committee had an attorney-client relationship. “I represent the city; you’re advising the city,” she said.

Elias said there could be exceptions to the city’s willingness to represent a committee member: “If one of you gets so excited at the meeting that you punch the guy sitting next to you, no, we’re not going to help you out in that case.” She said she didn’t want to make light of the issue, but indicated that punching someone is not part of the duties as a committee member.

Committee member Vince Caruso asked Elias if there were any cases where a citizens committee has been sued. Elias told Caruso that part of the problem in researching cases is that only the court of appeals cases are easily accessible. Some of those opinions are published, and some are not published. Elias felt that a case where a citizens committee had been sued would have been dismissed at the get-go and would never have gotten to the appellate court. There would be no way to find it except by word of mouth. She told the committee she had never heard of any such a lawsuit.

Committee member Peter Houk asked Elias: If a family member of yours were serving in a similar capacity on a similar board or position, would you tell them they shouldn’t do it because of the liability issue? Elias responded by saying that she would never tell them that. “If it was my sister in her town, I’d tell her to go for it, you should,” Elias said.

Committee member Jim Osborn ventured that another key issue is that the committee was not making policy, but rather just advising. Elias agreed: “Right. Somebody else is going to be making the decision. If someone messes up, it’s not going to be you guys.”

Committee Frank Burdick wanted to entertain the worst-case scenario – that the city was sued and lost. He wanted to know if the city paid the judgment. Elias told Burdick that the city’s policy is to indemnify, which is the legal term for paying a settlement. Elias also explained that the city has a policy that as long as an individual is cooperative – which did not mean someone has to agree with the city’s final position – the city will represent a committee member.

Elias said the city had experienced a couple of situations where employees didn’t respond to emails, they were supposed to show up for depositions in the discovery process and refused to show up, or refused to talk to the attorney. At that point, that’s not cooperation, Elias said. Elias also said that the city’s representation did not depend on how someone voted on the committee. Whether the recommendation is unanimous or not doesn’t make anyone ineligible for representation, if the group as a whole were sued, Elias said.

Burdick asked for Elias’ assurance in writing, saying that right now it’s just a verbal and emailed assurance. Houk observed that Elias’ remarks would be part of the minutes of the meeting. Elias indicated that her email was in writing. Elias also said that in terms of the city’s policy on indemnification, variations of it are worked into the city’s collective bargaining agreements.

Caruso thanked Elias for coming to talk to the committee. He said he didn’t think there was much standing for someone to threaten this committee with a lawsuit. He thought it was unfortunate that the threat was made, and even more unfortunate that people gave it credibility. Caruso thought it’s important that if people want to join in and help find viable solutions, they’re not threatened with lawsuits.

Legal Backup Issues: Unconstitutional Takings

In addition to the indemnification of the citizens committee, the other legal issue Elias addressed at the Jan. 9 meeting was the question of whether the city’s footing drain disconnection program is an unconstitutional taking of private property by the government.

One aspect of the unconstitutional takings legal theory, in broad strokes, is that the city is occupying space in a homeowner’s basement with sump pump equipment without compensation or due process for such an occupation. The theory is based in part on the Loretto v. Teleprompter Manhattan CATV Corp. et al U.S. Supreme Court case, which found that a required installation of cable wiring amounted to an unconstitutional taking. An email from Irv Mermelstein on Oct. 29, 2013 – sent to facilitator Charlie Fleetham and others – lays out some aspects of his legal arguments in more detail.

In a Nov. 25, 2013 memo, Elias responded to the arguments made by Mermelstein, which are based in part on the idea that the city’s program amounts to an unconstitutional taking of private property by the government.

At the Jan. 9 meeting, Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. [It's specifically the Fifth Amendment that guarantees that right.] Elias told the committee: “If I condemn your land because I need to run a street through it, I have to pay you for that land.”

In the case of a water main easement, she said, the city might not need to pay for the use of the land – because the resident is getting water from the water main. The resident will say: Go ahead and take that part of the property you need to install the water main, and I’m not going to make you pay for it, because now I finally get water.

Elias also explained that a regulatory taking – which would prevent someone from being able to use their property – could also be unconstitutional. She described a case where a city required commercial property owners to contribute part of their land to a greenway along the riverfront. The regulatory requirement prevented the beneficial use of the commercial property along the riverfront of that city, she said. And even though the city had a good reason for it, the amount of land that was required to put into the greenway prevented property owners from being able to use their property. And that was considered a regulatory taking, she said.

Legal Backup Issues: Unconstitutional Takings – Pump Ownership

Elias began her explication of the legal framework for city’s footing drain disconnection (FDD) program by saying that the situation is “very, very different” from the Loretto case. Elias described how, when the Loretto case was decided, everybody said: Oh my goodness, they’re talking about a couple of inches on the side of a building! That couple of inches was considered a taking because New York City had required building owners to allow the local cable provider to attach its antennas to the building so that the tenants could get service – whether the landlord wanted it or not. The court in the Loretto case said that the requirement of allowing installation of cable equipment might be for a public purpose, but it involved a third party occupying space with its equipment – and that’s not allowed because that’s a taking.

In the Loretto case, if the ordinance had required landlords to provide cable installations, or if the landlord owned the equipment, it would have been decided differently, Elias said. In the Loretto case, the cable company – not the landlord – still owned the equipment. If you consider the sump pumps in the city’s FDD program, they are owned by the homeowner, Elias said. The sump pumps are not a part of the city’s system. The pumps become part of the property owner’s house. The fact that the Loretto case was a physical occupation by a third party was what made the difference – tipping Loretto over the edge to being analyzed as a taking that was prohibited.

Responding to an emailed query from The Chronicle about the ownership of the pumps, Elias wrote that the homeowner becomes the owner of the pump at the point when it’s installed and the work is accepted by the homeowner [Jan. 9, 2014 email exchange]:

Question: It was reiterated at the Jan. 9 meeting that a key difference between the city’s FDD program and the set of facts in the Loretto case involves the ownership of the installed equipment. From a legal perspective at what specific point in the transaction does the Ann Arbor homeowner become the owner of the FDD equipment?

Elias: The property owner owns the sump pump and lead lines as soon as they are installed and the property owner accepts the work done by the plumbing contractor with whom the property owner contracted to do the work. Except as inventory for the plumbing contractor, they are never owned by anyone else.

Committee member Frank Burdick noted that Elias was stressing the fact that the Loretto case involved third-party ownership of the equipment. In the case of the city’s FDD program, Burdick said, the sump pumps are owned by the homeowner, so it’s not third-party ownership. But Burdick told Elias: “It just doesn’t stand up for me very well, that the city makes it mandatory that the homeowner has one of [the pumps] installed, the city pays for it, but then you say … that it belongs to the homeowner.”

Legal Backup Issues: Unconstitutional Takings – Power to Compel

Elias responded to the part of Burdick’s comment about the mandatory nature of the city’s FDD program by pointing out an amendment that had been made [in 2002, a year after the city's FDD ordinance was enacted] to Michigan’s Home Rule City act. It says you can require property owners to separate footing drains from the sanitary sewer. From the amended statute:

117.5j Sewer separation; authorization; ordinance; special assessment.
Sec. 5j. A city, in order to protect the public health, may adopt an ordinance to provide for the separation of storm water drainage and footing drains from sanitary sewers on privately owned property. The legislative body of a city may determine that the sewer separation authorized by this section is for a public purpose and is a public improvement and may also determine that the whole or any part of the expense of these public improvements may be defrayed by special assessment upon lands benefited by the public improvement or by any other lawful charge. A special assessment authorized by this section shall be considered to benefit only lands where the separation of storm water drainage and footing drains from sanitary sewers occurs.

Elias pointed out that the amended statute also says a city can impose a charge on those who benefit, and can even impose the cost only on the homeowners who benefit from the separation. About the city’s FDD program, Elias said: “So we could make the homeowners pay.” But she said the policymakers in Ann Arbor didn’t think that making property owners pay was the right way to do it, and the policymakers’ choice was to fund the program.

Legal Backup Issues: Unconstitutional Takings – Retro Compliance, Health, Safety, Welfare

Elias also noted that some people had raised the issue about requiring retroactive compliance with building codes. Houses built to code, say in 1967, were allowed to have footing drain connections to the sanitary sewer. The current building code disallows such connections. But how is it that a requirement can be imposed retroactively to bring a building up to current code?

Elias said that a lot of the Loretto case actually talked about how governments can impose regulations for health, safety and welfare that are reasonable and that are not takings. She said the courts distinguish exercising police powers – which are for health, safety and welfare of the community and its residents – from takings by a third party by occupying somebody’s property. The health, safety and welfare argument is based at least in part on the risk of sanitary sewer overflows into the Huron River.

There was a case after Loretto where asbestos abatement was required if there was renovation of the property, Elias said. The person who sued said: Wait a second, my property was in compliance with the code when it was built, so why are you making me do retroactively the asbestos abatement that I wasn’t required to do before? And the court said that case had nothing to do with Loretto, Elias said. Rather, the asbestos abatement was legitimate regulation for public heath, safety and welfare that is not a taking.

Elias said about 6,600 cases have mentioned Loretto since the opinion had come out [in 1982]. She had looked at the cases in Michigan where Loretto had been referenced. And Elias said she’d found nothing that says that requiring residents to bring a building into compliance with a building code would be considered a taking.

Courts that have looked at retroactive application of building codes, Elias said, look at a couple of things: (1) Is there a public safety, health and welfare reason for doing it? and (2) Is it an overwhelming or undue burden on the property owner?

Elias said referenced a 1946 case, which she said was still good law after Loretto, that said the extraordinary cost of a retrofit was not a reason not to do it. She allowed that she’d found one case out of Ohio – a trial court decision, not a court of appeals decision – where a city that was requiring disconnects was making residents pay the cost of the disconnects. And for one elderly woman who was on a fixed income, her cost was something like $30,000 – because she had to build a line down to the road in order to do the disconnect. And on that one instance, the court had said that given the inordinate burden on that individual, the disconnection requirement was not legitimate as applied to that individual.

By way of background, the kind of case that might see litigation in Ann Arbor could stem from the city’s FDD program as applied to specific individuals. The website describes a participant in the FDD program, Mrs. Y, who has limited financial resources for maintaining the sump pump system, is elderly, and has physical disabilities preventing her from easily accessing the location of the crawl-space sump pump.

Committee member Frank Burdick implicitly challenged the welfare part of the health, safety and welfare argument by questioning whether a sump with a pump adds value to a house. If he has the same floor plan as his neighbor, but his neighbor has an FDD sump pump and the neighbor’s basement now continually floods – because the pump has failed or there is water that was never there before – then Burdick’s house has more value than his neighbor’s, Burdick said. His neighbor has to disclose that when he tries to sell his house.

Elias responded by saying if the sump pump is working properly, it’s going to help prevent sanitary sewer backups. If stormwater is getting into the house through the sump, that at least is clean water, she said. It’s still wet, Elias allowed, but it’s not unsanitary in the way it would be if water were backing up through the sanitary system.

Legal Backup Issues: Unconstitutional Takings – Developer Offset Mitigation Program

At the conclusion of the Jan. 9 meeting, during the time allotted for public commentary, Cy Hufano addressed the committee.

[Hufano is a resident of Sloan Plaza, which is just to the east of 413 E. Huron – a 14-story, 216-apartment building at the northeast corner of Huron and Division that's currently in the beginning phases of construction. The project was controversial but eventually won approval on a 6-5 city council vote. As part of the developer mitigation offset program, the 413 E. Huron project is required to complete the equivalent of 59 FDDs.]

Hufano told the committee that they needed to make clear to themselves why developers have a responsibility to mitigate their additional burden on the sanitary system. “I think you should know that,” he said. “Who mandates that they have to mitigate?” Hufano noted that the 413 E. Huron project required the equivalent of 59 FDDs. His understanding was that the University of Michigan stadium renovation also required FDDs. Hufano wanted to know: Is the city of Ann Arbor involved in FDDP with developers? His perception was that the FDD program exists to support developers, at the expense of citizens.

By way of additional background, the perception that the FDD program now exists to support developers is partly due to the fact that the city has now completed nearly three times the number of FDDs that were required under the 2003 MDEQ consent order. So it might be argued that the risks to health, safety and welfare that led the MDEQ to seek that agreement with the city have been addressed through FDD activity up to now. Part of the goal of the current wet weather study is to assess accurately the current risk of sanitary sewer overflows – that is, to assess the current level of risk to health, safety and welfare posed by footing drain connections.

It’s not absolutely clear if it’s legally possible to have a requirement that developers mitigate their additional load on the sanitary system without having an FDD ordinance in place. That’s a question posed by The Chronicle to Elias via email:

Question: The Administrative Consent Order with the MDEQ, which was authorized in 2003, requires implementation of an offset mitigation program – but it does not appear necessarily to require a local ordinance to be in place involving FDDs. Is that a fair statement? From a legal point of view (without regard to the practicalities), wouldn’t it possible to require developers to mitigate their new sanitary flows by convincing residents through direct financial negotiation to disconnect their footing drains from the sanitary system – without an FDD ordinance in place?

Elias: From a practical standpoint, if the only issue were to achieve zero (or a modest improvement over zero) impact from new development, then the developer offset mitigation program would serve that purpose – if developers chose to do residential FDDs instead of other possible mitigation measures. However, the overflows that resulted in the ACO were from existing conditions, and it was those existing conditions that needed to be addressed to try to prevent future overflows. Similarly, the sewer backups experienced by property owners in 1998 and 2000 were due to existing conditions and, as with the overflows, it was those existing conditions that needed to be addressed.

Requiring a developer to mitigate beyond mitigation of the new flow their development is contributing (plus 20%) would be inconsistent with the concept of developer offset mitigation. More important, the volume of flow to be removed by the number of FDDs mandated by the ACO within the amount of time mandated by the ACO would have imposed on developers an arguably substantial burden, not necessarily related to their development. The developer offset mitigation program serves to prevent new developments from undermining the removal of flow that is being accomplished by the FDD program. The FDD program operates separately from the Developer Offset Mitigation Program – even though a decision to perform FDDs for residents who agree is an option and commonly used by developers to comply with the mitigation requirements.

While the ACO did not mandate an ordinance, (1) the FDD ordinance was already in place, (2) an FDD ordinance was required to provide the ability for the City to enforce the program requirements, and (3) an ordinance also helps to make sure the FDD program requirements were spelled out clearly so that it is understood, in addition to being managed and applied uniformly and consistently. Adoption of the ordinance also meant it was subject to City Council review and approval through the usual ordinance approval process, including public input at the public hearing on the ordinance in addition to the input from the SSO Task Force.

Legal Backup Issues: Unconstitutional Takings – Specific Prior Case Law?

Committee member Joe Conen asked Elias if she was aware of any cases where a sump pump had to be installed, and then that issue was tried and judged – and where the installation was upheld or overturned. Elias referred the committee to her written memo. [The memo does not appear to cite any cases where an analysis of an FDD program as an unconstitutional taking was specifically presented to and ruled on by a court.]

Elias said that one of the cases was heard by John Feikens, a federal judge in Detroit, who managed the litigation of the Detroit Water and Sewerage System. The case that came before Feikens dealt with issues that had to do with cost, but not with legality of the disconnection that was required. Elias ventured that Feikens would not have hesitated to strike something down that was unlawful. [City attorney Stephen Postema once clerked for Feikens.]

Elias’ favorite case from those described in her memo, she said – partly because she thought the judge had a bit of a sense of humor – was Magnuson v. City of Hickory Hills in Illinois. [The judge's sense of humor is reflected in this quip from the opinion: "It didn't matter much to Noah, but Hickory Hills, Illinois, cares very much where the water goes." The reference is to the biblical Noah who built an ark in advance of a flood that resulted from 40 days and 40 nights of rainfall, not to Noah Hall, an environmental law professor at Wayne State University.]

In the Magnusun case, Elias said, the court did find that using water service is directly related to discharge to the sanitary system, so it’s a perfectly legitimate consequence for refusing to comply with the footing drain disconnection requirements that the water service to a house could be shut off.

The current citizens advisory committee is expected to submit its recommendations to the city council when the study concludes. The final study report is due in July of 2014.

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of municipal topics like sanitary sewer pipes. Click this link for details: Subscribe to The Chronicle. And if you’re already helping The Chronicle sift through the sewage, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!


  1. January 19, 2014 at 11:45 pm | permalink

    The Burdick gravity overflow system has at least one handicap: it simplifies to a footing drain to sanitary sewer i.e. tired of the noise? sump pump failed? just forgetaboutit & all’s well (except you’ve subverted the whole intent of unburdening the sanitary sewer). Move along…

  2. By Frank Burdick
    January 20, 2014 at 9:48 am | permalink

    The city was allowed to come into private property to install remote readers for all water meters.

    The city could use some of the $10,000 DOM fees to install remote sensors to insure that the pumps are in fact functioning. In this day of high technology, these sensors could be remotely monitored. Heck, for $10,000 per sump pump they could hire an inspector to inspect the pumps monthly!


  3. January 20, 2014 at 10:49 am | permalink

    I believe you are mistaken about the purpose of a gravity overflow back-up. This would only come into play if the sump had failed, say through a power outage, or extraordinary flow circumstances. It is a way of mitigating possible damage to the house in an emergency situation, without the initial and on-going maintenance costs of a battery backup system. In all other operation scenarios the burden to the sanitary system would be properly removed by the sump. For residents worried about their basement’s integrity, and possible failure of the inexpensive pumps the city contractors use, this is one possible solution.

    Another option to consider in lieu of a battery backup would be a water-driven back-up pump, which uses the municipal water pressure to drive a back-up pump. Either way, you have to admit that for residents with fully finished basements, tight crawl spaces, financial or physical limitations, the FDDP can be a burden.

  4. By Steve Bean
    January 20, 2014 at 11:14 am | permalink

    I’ll state up front that I don’t have a dog in this hunt: our house had a sump pump and B-Dry system in place when we bought it 4 years ago.

    “Though it was not made clear during the Jan. 9 meeting, the problem with Burdick’s design does not appear to involve its fluid dynamics, but rather whether it would meet city code.”

    Making such a thing clear during the meeting would be a step in the right direction on the part of the facilitator.

    Can city code not be changed?

    Re: #1, if “at least one handicap” = “Move along…”, then there’s little likelihood of achieving a compromise solution.

    On a ‘beyond the short-term-problem’ note:

    All this useful rainwater/snowmelt—our most valuable resource after sunshine—is being wasted. Permaculture design principles offer a guide to using such resources productively and inexpensively. At our house we already capture all the runoff from an adjacent neighbor’s entire roof in a rain garden, as well as all of that of our own roof in other rain gardens and rain barrels, and are planning on capturing more that flows intermittently along the back fence line via swales. With all that water we’re well on our way to growing all of the fruits and vegetables we’ll need for the full year. As for the water entering the foundation that the sump pump handles, we were just discussing the other night (to the regular melodious ‘GAWOOSH’ of the pump) the feasibility of storing that water in multiple basement hot water tanks (cheap, used, electric ones that maybe the heating element no longer works in): free thermal mass plus chlorine-free irrigation water for later dry-season summer use.

  5. By Judy Hanway
    January 20, 2014 at 1:02 pm | permalink

    Thank you for this very well-written article about an extremely complex issue!

    I find it noteworthy that Ms. Elias “said the city needs to make sure that it wouldn’t be getting into trouble by giving someone a backup system” but doesn’t seem equally concerned about some of the City-mandated FDDs introducing water (sometimes LOTS of water) into previously dry basements. Also–check valves prevent sewage backups into homes; it’s possible to have a check valve without a sump pump.

  6. By George Hammond
    January 20, 2014 at 3:15 pm | permalink

    Mr. Hayner,”In all other operation scenarios the burden to the sanitary system would be properly removed by the sump. For residents worried about their basement’s integrity, and possible failure of the inexpensive pumps the city contractors use, this is one possible solution.”

    I think A2Cents’ point is that with this solution, there is nothing to prevent or even discourage homeowners from simply turning off the sump pump, or not repairing it should it wear out. Then we’re back to where we are now, with tons of stormwater flowing into the sanitary sewer, and potential sewage backup into the sump.

  7. By George Hammond
    January 20, 2014 at 3:26 pm | permalink

    I’m a little disappointed and surprised in the way this article characterizes the results of the city’s survey. “Those results show many residents are very satisfied after participating in the FDD program, but many residents are also very dissatisfied.”
    That’s a remarkably uninformative statement, given that much more information is available. You could just have easily written “Those results show 69.8% of residents are satisfied or very satisfied after participating in the program, and 21.5% are dissatisfied or very dissatisfied.”

    Or if for some reason you want to stick to the “very” categories, you could have reported that about 28.2% (231 households) are very satisfied, and 8% (64 households) are very dissatisfied.

  8. January 20, 2014 at 6:30 pm | permalink

    Thank you for this pointillist description of the issue, the timeline, and the documentation.

    A couple of thoughts:

    1. The FDD/developer connection, which you startlingly describe as being oversubscribed, may indeed have more underlying motivation than simply answering the regulatory sanctions (which apparently have been met and have expired). What would be the purpose of continuing to pursue the problem? Could it be to allow the system to continue to expand? We are, after all, looking at a very complex system (the sanitary sewer system)that has many inputs, including from new development. The multiple toilets added in downtown development and elsewhere put pressure (literally) on the pipes that must flow to the wastewater treatment plant. The fact that we are expanding the WWTP does not expand the pipes. They are still a limit on development, unless we want more flooded basements or popped manhole covers.

    2. The developer/FDD connection results in pressure on homeowners. That requirement to install FDD and a sump pump is an intrusion, whether legally defensible or not. The $100/month is a bludgeon. So is this a way to transfer the effects of development to a burden on existing homeowners?

    3. This is even more an issue because the City of Ann Arbor is apparently entertaining proposals from Scio Township developers to tap into the city sewer system. There are two proposals, which I will characterize as the old Farmer Grants’ property and the Honey Creek development. According to information I have been able to glean, the City has already negotiated a certain number of FDD payments from the developers. So development outside the city is funding FDD conversions within the city. But the outcome is more sewage (these are large developments) flowing through our pipes. Why must homeowners facilitate this?

    4. I have been making noise about the fact that our city utilities are thus being used to subsidize sprawl. Although the developers will apparently pay the unit cost for the extensions, this has an impact on our system and our relationship with the city (FDD). Considering that this is a city that voted for the Greenbelt and is now extending transit service to other municipalities, it is startling that we would permit our utilities to facilitate development of large new “sprawl” developments that will increase traffic into the city along Jackson Road. They will certainly have many single-driver cars coming in. They will provide no tax base and no contribution to our transit system. Why are our utilities being used to make this happen?

  9. By Mark Koroi
    January 20, 2014 at 9:22 pm | permalink

    Thank you for this article – it’s long overdue.

    The visual aids are instructive.

    Jeff Hayner and Vivienne Armentrout’s points about burdens on homeowners are well-taken.

  10. By Alan Goldsmith
    January 21, 2014 at 1:47 pm | permalink

    “Committee member Vince Caruso asked Elias if there were any cases where a citizens committee has been sued. Elias told Caruso that part of the problem in researching cases is that only the court of appeals cases are easily accessible. Some of those opinions are published, and some are not published. Elias felt that a case where a citizens committee had been sued would have been dismissed at the get-go and would never have gotten to the appellate court. There would be no way to find it except by word of mouth. She told the committee she had never heard of any such a lawsuit.”

    If I were hiring an attorney, someone who babbled this sort of fast talking song and dance would be replaced pretty quickly. So in effect, she hasn’t done her homework on the issue. And case law is too hard to track down. Lol.

  11. By Alan Goldsmith
    January 21, 2014 at 1:51 pm | permalink

    “Committee member Joe Conen asked Elias if she was aware of any cases where a sump pump had to be installed, and then that issue was tried and judged – and where the installation was upheld or overturned. Elias referred the committee to her written memo. [The memo does not appear to cite any cases where an analysis of an FDD program as an unconstitutional taking was specifically presented to and ruled on by a court.”

    So this is the kind of guidance Ann Arbor taxpayers are paying big bucks for?

  12. By Jack Eaton
    January 21, 2014 at 3:12 pm | permalink

    Dave, Thank you for a well written, objective report on the issues related to storm water, waste water and the City’s footing drain disconnect program.

    I encourage readers to compare the reporting in this piece with the article in the recent Ann Arbor Observer about fire fighter staffing. The difference in quality should inspire a reader to provide financial support to the Chronicle. This is a priceless publication.

  13. By Frank Burdick
    January 21, 2014 at 6:55 pm | permalink

    Dave, I concur with Jack Eaton’s comment. Thank you for efforts to research and inform the Citizens of Ann Arbor on this critical issue. Citizens should note that there will be a Public Meeting for this issue presented by the SSWWE CAC consultants and the City on February 6, 2014, at Slauson Middle School, at 6:30 pm. As a volunteer member of this CAC, I look forward to hearing from citizens at large on the pro’s and con’s of the FDD program. I have encouraged all other CAC members to attend this meeting.

  14. By John Floyd
    January 21, 2014 at 11:02 pm | permalink

    @ 9 Mark Koroi


    @12 Jack

    Thanks for the reminder to re-up my subscription in this new year. This is an astounding community resource. At least as much a mission as it is a business. I used to love The Observer. Now, I am embarrassed for it.

  15. By Eric Boyd
    January 22, 2014 at 9:21 am | permalink

    Imagine the following scenario: House A and B at the top of the hill and House C and D at the bottom of the hill. Before the FDD program, House C and House D had some likelihood of sewage backups due to excess stormwater (from Houses A, B, C, and D) going into the sewer. Imagine the FDD program has now been implemented for House A and House C. House A and House C now have an increased likelihood of storwmater flooding (e.g. due to failure of the sump pump), while House C and House D have a reduced likelihood of sewage flooding.

    In this scenario:

    House A is angry with the program, because they went from no risk of any type of flooding to some risk of stormwater flooding.

    House B is (as yet) indifferent to the program.

    House C is marginally happy with the program, because their risk of sewage flooding is reduced, but their risk of stormwater flooding is increased.

    House D is very happy with the program, because their risk of sewage flooding is reduced, but their risk of stormwater flooding is (as yet) unchanged.

    I think we can all agree that sewage flooding is worse than stormwater flooding given a choice between the two. The question is whether overall benefit of the sewage flooding risk mitigation is higher then the imposed stormwater flooding risk and whether we are adequately protecting / compensating House A in this scenario for the increased benefit to House C and D.

    Is this a correct summary of the issue?

  16. January 22, 2014 at 10:20 am | permalink

    Note that A and C (assuming your other assumptions are correct) will have increased risk of wet (flooded) basements from “stormwater”. While sewage is certainly more distasteful, wet basements should not be thrust on anyone. It isn’t a matter of “happiness” but whether the city’s responsibility of maintaining residents’ security in their homes is being observed.

  17. By Jack Eaton
    January 22, 2014 at 12:15 pm | permalink

    I encourage anyone interested in this topic to download the draft survey results linked in the article (mostly pie charts). From that draft report:

    “27.6% of the respondents who had experienced sanitary sewage backups are still experiencing them after having an FDD installation.

    “58.8% of respondents who had experienced water issues before FDD are still experiencing them after FDD.

    “25% of respondents who experienced NO water flooding/seepage/dampness prior to FDD and are experiencing them after.

    “Summary: While it appears that the FDD and sump pump installation solved water issues for over 40% of residents experiencing them, a larger number, 239 [50%], continue to have water issues.”

    The FDD program was intended to address problems the whole community has — sewage backs up in basements and sewage overflows at the treatment plant. Those who have suffered problems after the sump pump installation are asking the reasonable question – should a community problem be resolved by shifting the burden to individual home owners?

  18. January 22, 2014 at 12:39 pm | permalink


    I think your summary would be a reasonable way to think of the issue as a thought experiment in advance of implementing an FDD program. At this point, however – couple of thousand FDDs into the program – the homeowners who are participants aren’t thinking in terms of “risk” but rather in terms of what has actually happened in their basements.

    Consider the preliminary draft survey results (and they really are preliminary, because surveys were still being submitted when the report was generated, and there was at least one error in summing the categories of response on one of the items).

    Those results indicate that 123 of the 819 respondents had sanitary sewer backups before the FDD. And of those 123, 89 have had no sanitary sewer backups after the FDD; but 34 have had some sanitary sewer backups after the FDD.

    If the scope of the question is extended to “water issues” in general – not just sanitary sewage backups – then 410 number of respondents reported no experience with water flooding, seepage, or dampness prior to FDD. But 25% (103 respondents) of those reported water issues after FDD.

    The other aspect of this issue that’s worth considering is the ability of a homeowner to use the space in their basement as they did before – independently of the water issues. Let’s consider a scenario where there’s no water issue before or after. But consider a guy who’s built a little recording studio in the corner of his basement to make podcasts which he uploads to the Internet. After the FDD the noise from the sump pump in that corner precludes continued use of his space as a podcast studio. Or maybe this guy has constructed a play area for his toddlers down in the basement, and now that the sump pump is there can’t use the space for that purpose because he’s afraid they might wreck the equipment or that they might bonk their heads on the equipment. Do we care about compensating those guys in some fashion for depriving them of the ability to use their basements in the way they did prior to FDD? And I think that this general perspective on the issue, in part at least, is one that the potential lawsuit contemplates.

  19. By Eric Boyd
    January 22, 2014 at 1:09 pm | permalink

    @17: The survey questions you cite seem to suggest that the FDD program was designed to solve problems for you personally, whereas I thought the point was to solve problems for the neighborhood.

    For example: ““27.6% of the respondents who had experienced sanitary sewage backups are still experiencing them after having an FDD installation.”

    I would think a more telling result would be “X% of the respondents who had experienced sanitary sewage backups are still experiencing them after a significant fraction of their uphill neighbors had an FDD installation.”

    Why would we expect a specific FDD installation to have a specific impact on that particular house? Isn’t it more likely to matter whether a significant fraction of your uphill neighbors have had a FDD? I would think a single FDD would have almost no impact on the incidence of sewage backups in that specific house.

    Or am I misunderstanding how the whole thing works?

  20. By Eric Boyd
    January 22, 2014 at 1:26 pm | permalink

    @18: My concern with the survey (as expressed in the previous comment) is it seems to suggest a direct tie between installation of the sump pump in your house and the resulting risk/benefit to you personally and ignore the neighborhood-wide benefit. As to the “taking” of your basement space, those do all seem like real takings to me.

    Other than the redundant connection to the sewer from the sump pump whole (which could undermine the whole point of the FDD), what are the other potential solutions?

    Upsizing the sewers would also fix the sewage backups, but not the problems at the sewage plant.

    Connecting the footing drains to the stormwater pipes, which would have to include a pump, presumably has a very high cost and suffers from the same problem of no backup?

  21. By Jack Eaton
    January 22, 2014 at 1:44 pm | permalink

    Re #19, I did not mean to suggest that the program was meant to resolve the individual homeowner’s problem. If our waste water system is unable to handle the load residents place on the system, and the result is that sewage backs up into one basement or even a few basements, I see that as a community problem with the inadequate system. I do not see that as the homeowner’s problem. (I personally was not required to install a sump pump because I had previously disconnected from the system).

    There are two possible solutions for the problem of having a waste water system that cannot handle the existing load (whether that excess backs up into basements or overflows into the river). We can increase the capacity of the system, or we can reduce the load on the system. Disconnecting footing drains and pumping that water into the storm system is meant to reduce the load on the overburdened waste water system.

    I think that both the staff and the consultants want to discover the reasons the FDD program has not worked as intended. Their investigations will likely address the issues you raise.

    Re #18, I think Dave has identified an, important, additional issue. Whether or not the sump pump installation resolved problems or caused problems, it also encompasses considerable cost and effort. I have had a peek at the open ended comments offered by survey respondents. Many residents complain about the noise, disruption and maintenance requirements of the FDD sump pump installations. I think Dave’s hypothetical captures those survey comments well.

  22. January 22, 2014 at 1:50 pm | permalink

    Re: [19] “I thought the point was to solve problems for the neighborhood.”

    It is. And if the city’s only concern were to solve individual homeowner’s sewage backup problems, then we’d likely be focused more on installing as many checkvalves as possible than on reducing the amount of wet weather flow in the system. It’s worth pointing out that the city approaches the implementation of the FDD group-wise. That’s because, as you point out, an FDD implemented in just one of a group of houses wouldn’t reasonably be expected to address an ongoing sanitary backup issue at that one house. Even more broadly, it’s meant to solve the problem for the Huron River as a “neighbor.” The MDEQ became involved because of the threat to health, safety and welfare for the river and everything downstream.

    So I think that one way to measure success is by looking at frequency of sanitary sewage overflows into the Huron River and assessing the current risk of that.

    And another way to measure success is by looking at the statistical frequency of sanitary sewer backups in basements in a general area – that is, looking at whether the neighborhood’s problem was reduced.

    That said, I don’t think it’s unreasonable to look at what happens in individual property owners’ basements as a consequence of implementing an FDD and asking if squares up with our collective sense of public good. I don’t think that surveying the experience of individual homeowners who’ve participated in the program, and allowing that data to influence possible modifications to the program equates to misunderstanding the point of the program.

  23. January 22, 2014 at 1:55 pm | permalink

    When I was 4-5 we lived in a house on Brookwood with a sump and pump. I was terrified of it. I thought it was bottomless black from which there was no escape. That said, I have an overactive imagination.

  24. By Steve Bean
    January 22, 2014 at 2:02 pm | permalink

    @18: That was helpful, Dave. It makes sense that the legal contention would revolve around loss of use since the pre- and post-installation incident reporting is both anecdotal and impossible to attribute one way or the other to the FDD program due to unrelated factors like weather and tree root growth, among others. That is, determining the cause(s) of any basement flooding incident was and is a guessing game. The “Summary” from the draft survey results that Jack quotes in #17 is stretching the definition of “appears”. All of which raises the question: is there any value at all to those questions about pre- and post-FDD backups?

  25. By Steve Bean
    January 22, 2014 at 2:09 pm | permalink

    @22: I wonder how many years of data need to be collected before we’re able to draw any reasonable conclusions about success. Any idea?

  26. By Eric Boyd
    January 22, 2014 at 2:23 pm | permalink

    @22. Dave, thanks for the points. That added a lot of clarity (at least for me).

  27. January 23, 2014 at 10:58 am | permalink

    The commentary from the FDD survey has now been posted by Ed Vielmetti on a2docs, as has a draft report from OHM.

  28. January 23, 2014 at 11:55 am | permalink

    re: #25 My understanding is that the data collection has completed and the engineering firm is in the process of reviewing the data. While data collection in the sanitary sewer system is dirty work, I’m told that the engineers are happy with how clean the data are.

  29. By John Dory
    January 25, 2014 at 1:23 pm | permalink

    My daughter’s house is in the FDD program. It has been a nightmare.

    She has MS and is on fixed income, so it is a substantial burden on her. Additionally, water issues not only remain – they have been exacerbated.

    My opinion is that the FDD program is a disaster – and given the quotes I see in your article it is on shaky legal ground.

    The reason that Ann Arbor is one of the few jurisdictions in America who has ever even considered such a bizarre set-up is that the Hieftje administration failed to authorize and perform the needed upgradings, refurbishing, and ongoing intensive maintenance that was required to service the underground water distribution system.

    The city government’s failure to take appropriate action resulted in an attempt to foist this FDD program which shifted much of the burden to the innocent citizen. The millions the city saved due to the FDD program resulted in the municipal leadership issuing profuse self-congratulations that, unlike other cities in Michigan, Ann Arbor was financially solvent.

  30. By Frank Burdick
    January 26, 2014 at 7:39 am | permalink

    I encourage all readers to visit the City’s website to read the comment section of the survey. [link]

    Start with the comments, then read the pie charts… you will likely reach a different conclusion than the pie charts display.

    I am a citizen volunteer on the SSWWE CAC that sponsored this survey. I am opposed to the FDD program as it is currently designed and implemented. Read the comments…and you will learn why!

  31. January 26, 2014 at 10:36 am | permalink

    Re (30) please note that this is not the City’s website, but the A2Docs repository on which individuals may deposit documents related to local governance. It is maintained by volunteers.

  32. By Jack Eaton
    January 26, 2014 at 12:40 pm | permalink

    The survey results summary is also posted on the City’s SSWWE page, under the Library link on the left side of the page. [link]

    It is listed under the heading “Project Materials” and titled “Homeowner FDD Survey Summary Report (PDF)​”

  33. By Michael
    February 1, 2014 at 2:31 pm | permalink

    The beleagured (flooded) citizenry need ask itself how the city was able to reduce the available pipe flow so dramatically with their work in West Park causing a huge amount of damaging backup, with no financial relief to the impacted citizenry. From this example- learn how to proceed or not proceed.

    To summarize : If someone shows you who they really are – believe them.(Maya Angelou)