Footing Drain Lawsuit: City Survives Motion

Judge Donald Shelton denies motion for preliminary injunction that would have enjoined city from enforcing footing drain ordinance; but Shelton raises questions about city's legal position

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In the Yu v. City of Ann Arbor footing drain disconnection lawsuit, judge Donald Shelton has denied a motion for a preliminary injunction against the city.

Judge Donald Shelton denied the plantiffs motion for a preliminary injunction against the city of Ann Arbor's footing drain disconnection ordinance.

Judge Donald Shelton denied the plaintiffs’ motion for a preliminary injunction against the city of Ann Arbor’s footing drain disconnection ordinance.

Had it been granted, the motion would have prevented the city of Ann Arbor from enforcing its footing drain disconnection (FDD) ordinance. Shelton’s ruling came from the bench after a roughly 25-minute hearing held on July 2, 2014 at Washtenaw County’s 22nd circuit court at Huron and Main in downtown Ann Arbor.

Shelton appeared to reach his conclusion on the injunction fairly easily. But more than once during the hearing, he indicated that he had questions about the city’s legal position, reserving the possibility that the plaintiffs in the case could ultimately prevail after a full trial, which he expected would take place.

That has implications for the city’s motion for a summary disposition – a request for a decision from Shelton without a full trial. That motion was filed on June 9 and is on Shelton’s calendar for July 30. But at the conclusion of the July 2 hearing, after he’d ruled, Shelton told assistant city attorney Abigail Elias he’d begun a review of that motion for summary disposition and said, “I’ll just tell you that I think it is premature.” But he told Elias she could proceed as she liked.

Under the ordinance, property owners can be required to disconnect their footing drains from the city’s sanitary sewer system. The city has a program under which pre-approved contractors do the disconnection work and install the equipment, with the initial costs borne by the city.

Plaintiffs in the lawsuit contend that the city’s FDD ordinance amounts to inverse condemnation, a taking of property through physical occupation. They rely on the Loretto v. Teleprompter Supreme Court decision, which found that the required installation of a bracket for a cable television can be analyzed as an unconstitutional taking through physical occupation.

The criteria to be weighed in granting a preliminary injunction can include the merit of the actual case – the likelihood that the plaintiff will prevail. And Shelton did touch on one aspect of the merits of the case, as he expressed skepticism about the public health, safety and welfare argument for the FDD ordinance. That skepticism was based on the fact that the city gives homeowners the option of making a $100 per month payment in lieu of a required footing drain disconnection. If it’s important to public health, safety and welfare, Shelton could not imagine that the city would say: Well, just give us some money and that will satisfy it.

But Shelton reserved most of his skepticism on July 2 for the idea that the plaintiffs would suffer irreparable harm in the absence of a preliminary injunction now. That’s because the plaintiffs in the case had their drains disconnected in 2002. If the plaintiffs had brought an action back in 2002, based on a desire not to comply, then that would have been a different situation, Shelton said. At that time, a motion for a preliminary injunction would have been to preserve the status quo – of not being yet disconnected from the sanitary sewer. “But now, more than a decade later, you come in and say: Undo the status quo while we have a trial!” He allowed the plaintiffs might well win at trial, adding that he didn’t know.

In ruling from the bench, Shelton reviewed the fact that the only question before him that day was the question of issuing a preliminary injunction. Circumstances under which the court can grant a preliminary injunction are limited, he said. “I’m going to deny the motion for a preliminary injunction.” He said he believed that the status quo would be disrupted by such an order, and he did not believe any significant irreparable harm would result from waiting until a full trial is held on the merits of the case.

History of the Lawsuit

The lawsuit was originally filed four months ago, on Feb. 27, in Washtenaw County’s 22nd circuit court. There it had been assigned to judge Donald Shelton. But on March 17, about two weeks after it was filed, the city removed the case from the state court to the federal district court in Detroit.

Then the plaintiffs in the case – Ann Arbor residents who had their footing drains disconnected from the sanitary sewer system under the city’s ordinance – filed a motion for remand back to the 22nd circuit court. At a hearing on May 28, 2014 in Detroit, federal judge Avern Cohn indicated that he’d be granting the motion for remand, which he subsequently did. That’s why the case is back in Washtenaw County’s 22nd circuit court.

Briefs filed in the case so far include the following:

For background on the details of the case, see Chronicle coverage: “Lawsuit Filed on City Footing Drain Program” and “Backups: Lawyers, Sewers, Pumps.”

The city of Ann Arbor’s footing drain disconnection ordinance requires residents to disconnect their foundation footing drains from the sanitary sewer system. In broad strokes, the lawsuit is based on the idea that the city’s footing drain disconnection ordinance results in a physical occupation of a homeowner’s property – through installation of a sump and a pump – and that this amounts to inverse condemnation. Otherwise put, the contention by the plaintiffs is that enforcement of the city’s footing drain ordinance results in an unconstitutional taking of private property.

However, the July 2 hearing was on the plaintiff’s request that the court issue a preliminary injunction enjoining the city from enforcing the footing drain disconnection ordinance. So the arguments included a multi-pronged test the court is supposed to weigh in deciding whether to grant a preliminary injunction. From the plaintiff’s brief, those criteria include the likelihood of success on the merits of the claims, a balance of harms to plaintiffs and defendants in the absence of a preliminary injunction, whether plaintiffs have irreparable injury absent a preliminary injunction, whether injury to the plaintiff is of a continuous character, and whether the public interest is served.

The city’s response brief argues that before those criteria can be applied, a more basic condition needs to be satisfied. The response cites a Michigan Court of Appeals decision [Bratton v DAIIE (1983)] in support of that basic condition: “The object of a preliminary injunction is to preserve the status quo, so that upon the final hearing the rights of the parties may be determined without injury to either. The status quo [that] will be preserved by a preliminary injunction is the last actual, peaceable, noncontested status which preceded the pending controversy.”

The city’s response to the motion for preliminary injunction argues that the plaintiffs had their footing drains disconnected so long ago (11 and 12 years) that the status quo is clearly the current situation. The status quo, according to the city, is that the plaintiffs’ footing drains are not connected with the sanitary sewer system. The city also argues that the preliminary injunction would inappropriately grant the plaintiffs all the relief they are requesting, without a hearing on the merits of the case.

The city also argued in its brief that the elements of the standard multi-pronged test for preliminary injunctions are not satisfied, most importantly the irreparable harm criterion. The city argued that if the irreparable harm criterion is not satisfied, then the court need not even consider the question of a likelihood of success on the merits.

Plaintiffs in the case are 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. O’Brien argued the plaintiff’s motion for a preliminary injunction.

City attorney Stephen Postema attended the hearing. But arguing the city of Ann Arbor’s side at the hearing, opposing the motion for a preliminary injunction, was assistant city attorney Abigail Elias.

Detailed notes from the hearing are included below.

Arguments from the Plaintiff: Dan O’Brien

Dan O’Brien began by noting that the motion to be argued was for a preliminary injunction. The case itself was based on inverse condemnation resulting from the city of Ann Arbor’s footing drain disconnection program, he said. O’Brien stated that the case “begins and ends” with the Supreme Court decision in Loretto v. Teleprompter.

Plaintiffs' counsel, Dan O'Brien

Plaintiffs’ counsel, Dan O’Brien.

O’Brien contended that the city of Ann Arbor’s position rests upon several misinterpretations of the applicable law. For example, O’Brien said, the city contends that the FDD is a regulatory taking and argues extensively based on that in its brief. The city urges the court to adopt the analysis in Penn Central Transit Co. v New York (1978) – which is essentially a balancing test based upon the nature and significance of the public interest that is served. The city, O’Brien said, apparently refuses to acknowledge that the installation of a sump pump and sump is a permanent physical occupation under a mandatory ordinance, which O’Brien contended is governed under the Loretto decision.

The two types of takings are mutually exclusive, O’Brien argued. If you have a physical invasion, that’s a special type of taking – and specifically that is not a regulatory taking. So a different standard applies, he continued, which is a part of the Supreme Court decision in the Loretto case.

O’Brien noted that the Loretto decision had been upheld on many occasions, and affirmed by the Supreme Court in Arkansas Game and Fish Commission v. U.S. (2012). O’Brien summarized that opinion as concluding that there are few bright lines in eminent domain jurisprudence – but one of them is that when a physical occupation takes place, that is a taking for which compensation must be paid, regardless of the significance or extent of the public interest being served.

O’Brien allowed that the law surrounding regulatory takings is complex, and involves identification and balancing of competing interests. The interests to be balanced include those of the government compared with the property owner. But permanent physical occupations, O’Brien argued, are quite simple and they involve no balancing of the public interest compared to the burden of the property owner. The Supreme Court could not have been more specific on that point, O’Brien said. He argued that a permanent physical occupation authorized by the government is in fact a taking – without regard to the public interest that it might serve.

Much of the city’s response brief, O’Brien contended, was dedicated to the facts surrounding the origin and derivation of the city’s FDD ordinance. O’Brien highlighted one claim the city has made about its FDD ordinance – that it has been successful in achieving its objectives. Without conceding whether the FDD ordinance had, in fact, achieved its objectives, O’Brien stated that the plaintiff’s position is that it’s not relevant whether the city has achieved its objectives. Under Loretto, he explained, effectiveness is not an issue. There was no dispute under Loretto, he said, that the bracket that was affixed to the building was effective in facilitating the distribution of cable television wires. But the effectiveness of that bracket did not matter to the court, he said.

Shelton then interrupted, telling O’Brien that the arguments he was making all go to the merits of the basic case, not the preliminary injunction. What about the other elements that you have to satisfy for a preliminary injunction? Shelton asked.

O’Brien responded with “I’m glad you asked that,” which earned an “I am, too!” from Shelton.

O’Brien then addressed the city’s argument in its brief that there was no hardship to the plaintiffs. O’Brien characterized the city’s position as follows: If there is any hardship, than it is overwhelmed by the hardship to the city of Ann Arbor that would result from granting the preliminary injunction.

O’Brien pointed out that affidavits had been submitted from the plaintiffs that outline the burdens they assumed as a result of the installation of the sumps and sump pumps in their homes. And the plaintiffs had done that under a mandatory ordinance, he said.

Shelton interjected: “But they have already done it.” O’Brien allowed that his clients had already done it. Shelton characterized it as strange – that O’Brien was asking for an injunction against something that his clients have already done. O’Brien invited Shelton to look at Exhibit 3 in the complaint – a document entitled “A Sump and Sump Pump Maintenance Manual.” O’Brien described Exhibit 3 as a 12- to 13-page document outlining what has to be done to maintain a sump pump, to test it, and the like.

Shelton interrupted: “It’s a sump pump, counsel! It’s a sump pump!” Shelton came back to the point that the motion was for a preliminary injunction. What he was being asked to do in that regard, Shelton said, was to disturb the status quo, not to preserve the status quo pending trial.

O’Brien responded to Shelton by saying he was asking Shelton to free his clients from the continuing burden of having to maintain and monitor their sump pumps. Shelton ventured that meant that O’Brien was asking him to change the status quo. Shelton stated that it would be a totally different situation, if the case had been brought before him in 2002 – as far as the question of preliminary injunction was concerned. By saying that, Shelton stressed, he was not addressing the merit of the lawsuit itself. O’Brien then connected his remarks to the parts of the city’s brief that indicated the request for preliminary injunction was actually the final relief that had been sought in the case. O’Brien said that was clearly not true – because they were asking for just compensation under the Fifth Amendment and under Michigan law.

Shelton steered O’Brien back to the question of what Shelton was being asked to do that day. O’Brien told Shelton he was asking him to relieve his clients of the burden of having to continually maintain their sump pumps. Shelton ventured that it was a burden that O’Brien’s clients had voluntarily assumed. If O’Brien’s clients had brought an action back in 2002, based on a desire not to comply, then a motion for a preliminary injunction to preserve the status quo at that time – of not being yet disconnected from the sanitary sewer – would be a different situation. “But now, more than a decade later, you come in and say: Undo the status quo while we have a trial!” Shelton said. The plaintiffs may well win at trial, he added, saying that he didn’t know yet.

O’Brien stressed that both Anita Yu and John Boyer have physical problems that make it difficult for them to fulfill the sump pump maintenance obligations, which are set forth in the maintenance manual. Anita Yu had wanted the sump pump installed in a specific location in her basement. But the contractor for her work – one of four contractors approved by the city – had installed it in her crawlspace. So it was essentially impossible for her to maintain the pump in that location. O’Brien described how the Boyers have had three different sump pumps, because they had to be replaced. Their house had flooded on several occasions and their basement had been damaged. That kind of occurrence had not ever happened before the FDD program had been implemented. O’Brien concluded that the ongoing and perpetual burden was not trivial.

Shelton pointed out that O’Brien’s clients had already assumed this burden. O’Brien responded by saying his clients continued to be forced to assume the burden and would continue to have to bear this burden without some kind of injunctive relief granted by the court. O’Brien told Shelton that he could see that Shelton was skeptical. Shelton agreed with O’Brien that he was skeptical about that specific aspect of the motion for a preliminary injunction. But Shelton stressed that he was not expressing anything about the merits of the rest of the case.

O’Brien invited Shelton to consider what the potential burden might be to the city that would result from granting the preliminary injunction. O’Brien was asking that his clients be relieved from the ongoing burden of having to continue to assume the maintenance obligations of the sump and the pump that was located in their basements. But there’s no proof of any hardship to the city, O’Brien said. The city had filed no affidavits from anyone with personal knowledge of the facts. O’Brien said it’s hard to imagine how the city would be burdened if the two homeowners who were his clients were freed from the burden of the FDD’s ongoing maintenance and repair obligations. The plaintiffs had submitted affidavits from people who were directly affected – which supported the motion for a preliminary injunction, he concluded. On the city’s side, there was nothing for Shelton to look at of an evidentiary nature, O’Brien argued.

The city makes an argument about a statute of limitations, O’Brien continued. He argued that other cases established that the statute of limitations is clearly 15 years – when there is a taking and the plaintiff still has title to the property. So O’Brien rejected any argument that there is only a three- or a six-year statute of limitations, saying such arguments “don’t hold water.”

In support of its position, O’Brien contended, the city talks about status quo and the fact that there was a consent order with the Michigan Department of Environment Quality. But the city had not told the court that the consent order was not in place until after the footing drain disconnects of the plaintiffs. So the administrative consent order was not a factor in justifying the footing drain disconnection ordinance for either Anita Yu or John Boyer. And secondly, the city had not told the court that the consent order had been terminated, O’Brien said. But in fact it had been terminated in November 2009.

O’Brien was granted permission to approach the bench, and handed Shelton a copy of the termination order. The status quo today, O’Brien said, was that the administrative consent order was not in force. With respect to enforcement of continuing the FDD program, that administrative consent order simply does not exist, he concluded. Shelton did not seem impressed with the termination document for the administrative consent order, laughing, “This is because they [the city] complied!” Shelton continued by saying the city had complied by having people stop putting stormwater into the sanitary sewer.

O’Brien came back to his first point regarding the administrative consent order – that it was not the administrative consent order under which the city enforced the FDD program with respect to his clients, because his clients’ disconnects had taken place before the administrative consent order was agreed to. Shelton allowed that he had understood O’Brien’s point, but ventured that wasn’t really the point that O’Brien wanted to make. O’Brien said the point was this: To the extent there’s any ongoing responsibility for his clients because of the consent order, that’s a non sequitur.

About the issue of irreparable harm, O’Brien said, it’s the fact that his clients have to live with this burden. O’Brien referred to Shelton’s remark that “It’s just a sump pump.” It’s more than that, O’Brien argued: It’s the fact that the plaintiffs have to buy battery backups, which are not paid for by the city, and they have to replace the sump pumps, because apparently the pumps don’t have a very long lifespan. It’s also the fact that they’re constantly in fear of the sump pumps not working and their basements flooding. Flooding has happened and this had damaged their basements and made parts of their basements unusable, O’Brien said.

There’s no peace of mind for his clients, O’Brien said, as a result of the implementation of the city’s FDD ordinance. Before the ordinance was implemented, they never had any drainage problems at all, O’Brien said, “not a drop of water in their basement.” To minimize this burden, or to say it’s not ongoing or to characterize it as the status quo, overlooks the fact that his clients are people who are retired and not able to sustain the burden that has been imposed upon them, O’Brien said. Clearly what’s happened is a physical invasion of their property, he said. And the Loretto case states that this is a taking without just compensation, regardless of the public benefit that is being served, O’Brien concluded.

Arguments from the City: Abigail Elias

Arguing for the city, Abigail Elias began by noting that the motion before the court that day was the motion for a preliminary injunction – which is characterized by a form of extraordinary relief, she said. Based on the arguments made by the plaintiffs, she ventured that the plaintiffs actually seemed to be addressing a motion for summary disposition as opposed to a motion for a preliminary injunction.

Elias reviewed the key point from the city’s brief – that the primary point of a preliminary injunction is to preserve the status quo and to prevent irreparable harm. She contended that the plaintiffs hadn’t identified any imminent irreparable harm that would result from a change in the status quo.

Assistant city attorney Abigail Elias

Assistant city attorney Abigail Elias.

What the plaintiffs were really asking for, she contended, was in the conclusion to their brief – that the court declare invalid the city’s footing drain disconnection ordinance, and stop the city from enforcing it. That kind of relief is not specific to the plaintiffs, she said. And it’s not relief that will prevent irreparable harm to the plaintiffs specifically. And the plaintiffs cannot represent other parties who are not before the court, she continued. Elias noted that other parties in the city might have a different point of view than the plaintiffs with respect to the ordinance. Based on the lack of imminent irreparable harm, Elias told Shelton that she did not think she really needed to argue any further.

However, Elias had considered the arguments on the merits – the likelihood of success. Elias contended that the plaintiffs had ignored the part of the Loretto case that points out the regulations that require installation of instruments and equipment into a property are not takings. This is not a case where the city has authorized a third-party to install anything in the house, she said. And this is not a situation where the city has installed something that occupies someone’s house, she said.

At that, Shelton expressed some skepticism: “Wellll, if you tell them that they gotta install a sump pump, and these are the only people who are approved to install it, what’s the difference?” Elias stated that through disconnecting the footing drains, homeowners are bringing their property into compliance with the current building code.

Elias then began to argue based on health, safety and welfare. But Shelton told her that argument that the FDD ordinance is essential to ensure health, safety and welfare is “sort of undercut” by the fact that a property owner can give the city some money and avoid it. If it’s important to public health, safety and welfare, Shelton could not imagine that the city would say: Well, just give us some money and that will satisfy it. Elias replied that the effect of the city’s $100-per-month policy was that two property owners had opted for that route, as opposed to disconnecting and installing a sump and pump.

Shelton then adduced a saying from his fishing partner: It’s not the principle of the thing, it’s the money. But he always told his fishing partner that “in court, it’s all about the principle of the thing.” It doesn’t matter how many people have opted to pay the money, Shelton said. The principle of the thing is the city can’t rely on an argument of health, safety and welfare when the city says a homeowner can “buy out of it.”

Elias told Shelton that when sewage backups occur, the city does provide sanitation and clean-up services – for example, if the plaintiffs were to undo their disconnects and the city were faced with increasing backups either in their own homes or in their neighbors’ homes. The point Elias eventually made was that the city does put the $100-per-month cost, paid by the two property owners, toward the operation of the sewage system.

Shelton told Elias that he was disturbed by the idea of the $100-per-month payment as it related to the merits of the case. He told Elias he was familiar enough with the concept – that the whole idea is to keep stormwater out of the sanitary sewer, because it costs a lot of money to treat sewage and you shouldn’t be spending that money and that effort at your sewage treatment plant on stormwater. “I’m with you on all of that, until you say, ‘But you can buy out of that.’ There is a disconnect there, to me,” Shelton said. How does that jibe with the idea that you can buy your way out of it? he asked. How does a few extra dollars address that human health issue?

Elias said that if the cost had been something like $10 a month, that would be different. She did not think now was the time to address the calculation of $100. But $1,200 a year is a significant amount for an individual: It’s designed as an incentive, she said. Shelton asked her if the city used that money to increase the capacity of the sewage treatment plant. Elias said the money goes into the funds that are used to operate the system, and into the funds used to clean up basements when there are incidents with sanitary sewer backups. So the money paid to the city is used to address issues that are being addressed otherwise by the footing disconnect program.

Shelton told Elias he didn’t mean to get sidetracked on this issue of the merits of the case. But he wanted to let her know there are some questions about the city’s position on the merits. He was more concerned, for the purposes of that day’s hearing, about the irreparable harm issue. “There’s going to be a trial at some point in this case. The only issue .. before me today is what happens between now and that trial.”

Elias then addressed O’Brien’s comments about the administrative consent order. She explained that the plaintiffs’ disconnections were included as part of the count that the city was required to achieve to satisfy the order, even though they were done before the order was signed. Elias also pointed out that Michigan’s Home Rule City Act was amended in 2002. And that was done specifically to authorize an ordinance such as the city’s, which requires private property disconnects and separation of storm and sanitary systems. So the city’s footing drain disconnect program was authorized by state law, Elias contended.

It also helps the city comply with its obligations under the federal Clean Water Act, she said. The city of Ann Arbor had not threatened to shut off people’s water, like Hickory Hills did, for individuals who did not disconnect their footing drains from the sanitary sewer. “Ann Arbor, being a kinder, gentler city,” she quipped, figured that the extra $100 a month would be at least as good an incentive, without that kind of threat.

Elias contended that no harm would come to the plaintiffs beyond their existing status quo. The risk, if the plaintiffs’ connections were restored, would be possible backups in their neighbors’ basements. Elias concluded her remarks by saying that she did not think the plaintiffs had met the requirements for a preliminary injunction.

Ruling: Shelton

In ruling from the bench, Shelton reviewed the fact that the only question before him that day was the question of issuing a preliminary injunction.

Judge Donald Shelton

Judge Donald Shelton.

Circumstances under which the court can grant a preliminary injunction are limited, he said. “I’m going to deny the motion for a preliminary injunction.” He said he believed that the status quo would be disrupted by such an order, and did not believe any significant irreparable harm would result from waiting until a full trial is held on the merits of the case.

Shelton indicated that he had seen the filing by the city for a summary disposition and he had begun to review it. “I’ll just tell you that I think it is premature,” he said. But he added that Elias could proceed as she’d like.

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One Comment

  1. By Peter Nagourney
    July 3, 2014 at 4:24 pm | permalink

    An excellent summary of an issue that is important to everyone in Ann Arbor. Thanks for the fine reporting.