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

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

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

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

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

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

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

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

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

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

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

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

Physical Taking: Whose Pump Occupies the Space?

One aspect of the unconstitutional takings legal theory, in broad strokes, is that the city is occupying space in a homeowner’s basement – 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. In the case of Ann Arbor’s footing drain disconnection program, it’s the installation of a sump and a pump that allegedly amounts to an illegal physical occupation.

From the complaint:

The mandatory disconnection of the Plaintiff’s footing drains and the forced installation of sump pumps and related equipment constituted a physical intrusion by the City, or others acting on its behalf or in its stead, resulting in a permanent physical occupation of the Plaintiffs’ property and a significant interference with the Plaintiffs’ use of their property.

Where does a sump and a pump fit into the requirement that footing drains be disconnected from the sanitary sewer? Before a disconnection, rain water flowed away from the foundation of a house through forces of gravity into the sanitary sewer. So after disconnection, that water needs to be managed. It’s managed by installing a sump, where the water collects. A pump then lifts the water up and out to the surface, where it can eventually flow into the stormwater pipes – which are designed to handled that kind of flow. The animation below illustrates the contrast between a pre-FDD and a post-FDD configuration. To see something close to a full-screen version of the animation, use this [link].

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.)

The physical occupation of a homeowner’s basement through a sump and a pump is a theory on which assistant city attorney Abigail Elias has already commented publicly. She made the comments on Jan. 9, 2014 to a citizens advisory committee that formed in connection with the city’s sanitary sewer wet weather evaluation (SSWWE). On Jan. 9 Elias essentially reviewed the content of her Nov. 25, 2013 memo for the committee, which came in part in response to an email sent by attorney Irvin Mermelstein on Oct. 29, 2013 to the consultant hired by the city to facilitate the committee’s work.

Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. 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.”

The requirement that someone be paid for their land is reflected in the causes of action listed in the Feb. 27 complaint. Payment is one required component of Michigan law (MCL Section 213.23) for taking someone’s property. But the law also includes an additional requirement that it be for a public use. The proposed use of the property must, by statute, be fairly deemed a governmental activity by one or more of the following standards:

(a) A public necessity of the extreme sort exists that requires collective action to acquire property for instrumentalities of commerce, including a public utility or a state or federally regulated common carrier, whose very existence depends on the use of property that can be assembled only through the coordination that central government alone is capable of achieving.

(b) The property or use of the property will remain subject to public oversight and accountability after the transfer of the property and will be devoted to the use of the public, independent from the will of the private entity to which the property is transferred.

(c) The property is selected on facts of independent public significance or concern, including blight, rather than the private interests of the entity to which the property is eventually transferred.

The complaint alleges that the city of Ann Arbor would have failed to meet that requirement. From the complaint:

Alternatively, if the City had attempted to comply with the requirements of MCL Section 213.23, it would have failed in its burden of proving that the taking was necessary in accordance with Section 213.23 (2) because no public necessity of an extreme sort existed, the property taken will not remain subject to public oversight and the property was not selected on facts of independent public significance or concern, including blight.

The complaint cites the statutory requirement on takings that transfer the property to a private entity. By implication, the legal theory on which the lawsuit is based includes the possibility that the sump pump, after it is installed in someone’s home, is not owned by the homeowner, but rather a private party, presumably the plumbing contractor. The ownership question arose at the Jan. 9 meeting of the citizens advisory committee.

At the Jan. 9 meeting, Elias began her explication of the legal framework for the city’s footing drain disconnection (FDD) program by saying that the situation is “very, very different” from the Loretto case. According to Elias, a key difference is this: Who owns the pump? Her answer: The homeowner.

Elias explained that in the Loretto case, a couple of inches on the side of a building for installing cable wiring was, in fact, considered a taking. That was 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. According to Elias, in the Loretto case the court 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, 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 contended. The sump pumps are not a part of the city’s utility system, she contended – as 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 prohibited taking.

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:

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.

Retro Compliance: Health, Safety, Welfare

While connections between footing drains and the sanitary sewer system do not currently comply with the existing code, at one time they did. Until around 1980, footing-drain-to-sanitary-sewer connections were legal to make. They were also (and still would be) convenient to make, because the footing drains and the sanitary sewers are typically buried at roughly the same depth. That means 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.

At the start of the FDD program, the city identified roughly 16,000 houses in Ann Arbor that had such connections. But how is it that a requirement can be imposed retroactively to bring a building up to current code? That question is raised in the complaint that’s been filed with the 22nd Circuit Court:

Because the Plaintiffs’ homes were constructed in conformity with the then applicable building code and other relevant standards and the Plaintiffs or their predecessors-in-title received Certificates of Occupancy and/or other necessary approvals from the City, the Plaintiffs acquired vested rights to the footing drains and related storm water and sanitary sewer facilities related thereto.

One tack the city’s defense against the lawsuit might take is to cite a 2002 amendment to Michigan’s Home Rule City Act, which came a year after the city’s FFD ordinance passed. At the Jan. 9 meeting, Elias pointed out the amendment, which 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.

At the Jan. 9 meeting, Elias also 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, which can be caused by excess flows in the sanitary system during wet weather.

That concern – based on actual overflows – led in 2003 to the city’s signing of a consent order with the Michigan Dept. of Environmental Quality. That included a requirement that the city perform at least 155 footing drain disconnections 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. Those 179 disconnections were based on the 2001 FDD ordinance. The city has completed more than 1,800 disconnections under its program, nearly three times the number required under the consent order.

At the Jan. 9 meeting, Elias told the citizens advisory committee that when courts have looked at retroactive application of building codes, they look at a couple of issues: (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?

Regarding the first test mentioned by Elias, the complaint denies there’s a public safety, health and welfare reason for doing it. From the complaint:

Upon information and belief, the Ordinance was not enacted in response to emergency conditions or some other imminent threat to public health, safety or welfare. Rather, the Ordinance was enacted by the City in order to facilitate a solution to long-standing and self-created conditions in the least expensive and/or most expedient way possible.

As for the second test mentioned by Elias, the complaint contends that an unreasonable burden is imposed on the property owners. From the complaint:

Moreover, the ongoing and perpetual responsibilities for the operation and maintenance of the sump pumps and related equipment represent an unreasonable financial and personal burden upon the Plaintiffs’ use and enjoyment of their property and represent an inappropriate delegation by the City to its citizens of its governmental obligations.

People Affected

Two of the plaintiffs in the case are Ann Arbor homeowners John Boyer and Mary Jean Raab, who have lived in their Ward 4 home since 1970, according to the complaint. And until 2006 when their footing drain was disconnected from the sanitary system, their basement had been dry and they had experienced no flooding, dampness or other water problems in their home. According to the complaint, their backyard and basement have flooded on a significant and recurring basis: “Two flooding events were particularly severe, with the basement living space under water while the sump pumps were fully operational.”

An additional plaintiff in the case is Anita Yu, who had her footing drains disconnected in 2003 – with a sump pump installed in a “The sump and sump pump were installed in a location accessible to plaintiff, Anita Yu, only with difficulty as she suffers from a disabling condition that it makes it impossible for her to perform the operation and maintenance mandated by the FDDP and the FDD Ordinance without hiring a contractor at her own cost.” Before the disconnect, Yu had “complete peace of mind,” according to the complaint.

The complaint also cites results of a survey of homeowners who’ve had their footing drains disconnected. For the survey, which was conducted in connection with the SSWWE study, 2,350 surveys were mailed and 850 responses were received. [.pdf of survey report]

One of many highlights of the survey responses were the divergent results on the kind of “peace of mind” issue cited by the complaint. According to the summary, after disconnection and installation of a sump pump, 35% of respondents had at least some reduction in anxiety, but 40% had at least some increase in anxiety. That difference is reflected in the verbatim comments of respondents:

This is the worst thing possible. The drain disconnect has cost me thousands of dollars. The installation destroyed my basement floor, holes dug, tiles not replaced, check valve at toe stubbing level. I’ve had 2 major floods, both happened during summer storms when the power went out. Both times I was traveling and did not know until I came home. Coach’s Catastrophe Carpet Care came both times; $2,200 the first time – all furniture, carpet, everything had to be thrown out, the second cost was $1,800, the same thing, everything had to be thrown away. I bought a generator at a cost of $7,000, then the pump stopped working – another flood. Replaced the pump for a few hundred dollars. I am a 73 year old widow on a fixed income, living alone. This program has cost me thousands of dollars, destroyed my peace of mind and had a negative impact on the value of my home. Also, I would be interested in knowing whether anyone has paid the onerous fines we were threatened with.

Survey results also included comments indicating that anxiety was eased:

I am much less concerned about sewage backups since the sump pump was installed.

We were very glad to have the pump installed. We had heard about flooding in this basement before we had the house. It provides peace of mind and has worked well for years ago.

So happy with this new system!! Greatly relieved, thank you so much!

Next Steps

The brief for the preliminary injunction sets forth four points as the standards that the court should balance in determining whether the injunction should be granted.

Those four points are: (1) whether the plaintiff has shown a substantial likelihood of success on the merits; (2) whether the plaintiff has shown “irreparable injury”; (3) whether issuing a preliminary injunction will cause substantial harm to others (or whether harm to the plaintiff in the absence of a preliminary injunction outweighs the harm to defendant if a preliminary injunction is granted); and (4) whether the public interest will be served by issuing a preliminary injunction.

With respect to those standards, the brief gives five summary points, in addition to the more detailed arguments in favor of an injunction:

1. The brief argues that the suit is likely to succeed on its merits: the “… United States Supreme Court’s decision in Loretto v. Teleprompter CATV Corp. and case law in Michigan have clearly held such governmental invasions to be takings in violation of the U.S. Constitution.”
2. The brief contends there would be no harm to the city of Ann Arbor as a result of granting a preliminary injunction: “The remedy sought herein is to prevent the city of Ann Arbor from enforcing its FDD ordinance. There is no proof that the city will be damaged from issuance of an injunction barring FDD ordinance enforcement.” The brief points to hardships endured by the three plaintiffs as described in their affidavits.
3. The brief contends that the injury is irreparable: “… irreparable injury, also known as inadequacy of legal remedies, is present here as is the danger of a multiplicity of suits.”
4. On the permanent and continuous question, the brief states that: “… equity will enjoin interference of enjoyment and use of land where the invasion is of a continuous character.”
5. On the question of public interest, the brief argues that “… the public interest is advanced by preventing future constitutional injury and preventing a multiplicity of suits due to enforcement of an unconstitutional ordinance.”

A posting on the website a2underwater.com indicates that a show cause hearing on the preliminary injunction would take place no earlier than March 26, 2014. Based on the posting on a2underwater.com the complaint has not yet been formally served to the city of Ann Arbor, but that is expected Friday or Monday.

The Chronicle could not survive without regular voluntary subscriptions to support our coverage of public bodies like the Ann Arbor city council. We sit on the hard bench so that you don’t have to. Click this link for details: Subscribe to The Chronicle. And if you’re already supporting us, please encourage your friends, neighbors and colleagues to help support The Chronicle, too!