Stories indexed with the term ‘footing drain disconnect’

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

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.” [Full Story]

Ann Arbor city council meeting (Feb. 4, 2013): Two significant land use items were included in the council’s agenda, but councilmembers moved ahead on just one of them. A request to zone a recently annexed piece of property as R3 (townhouse district) prompted long deliberations by the council, and ultimately a referral of the item back to the planning commission for further review.

Dependent on the R3 zoning is Summit Townhomes – a proposed project for the 2081 E. Ellsworth Road site, located in the southern part of the city just east of Stone School Road. The townhouse project’s site plan is expected to come before the council for approval later this month. The planning commission has already recommended that the Summit Townhomes project be approved, and previously recommended the R3 zoning. The council itself had already given the zoning its initial approval at a previous meeting.

But during the public hearing about the zoning on Feb. 4, the council heard from several people who spoke against the zoning and the project, reprising many of the same objections that had been raised more than seven months ago at the June 19, 2012 meeting of the planning commission. Concerns included overcrowding and congestion in the area, and a lack of adequate city services. Also weighing in with general support for zoning that fits with the desires of residents was Washtenaw County commissioner Andy LaBarre, who represents the county district where the site is located.

Another item related to future land use was council action to authorize the distribution of the draft South State Street corridor plan to neighboring jurisdictions and other stakeholders, such as the University of Michigan, the Ann Arbor Public Schools, and the Ann Arbor Transportation Authority. After a mandated comment period, the city planning commission will have the opportunity to make revisions to the plan, before the commission and the city council make a decision to adopt it.

A major infrastructure study, with a roughly $1 million budget, was also authorized by the council – to give the city a clearer understanding of how flows behave in the sanitary sewer system, especially during rainy periods. The study is prompted by a desire to measure the impact of a footing drain disconnection program that the city has implemented for over a decade. In the last year, the program has generated strong protest from the Glen Leven neighborhood. The footing drain disconnection program was created in part to remedy the backup of raw sewage in basements during heavy rains.

The city council also authorized revisions to two existing technology agreements. One was an agreement between the city of Ann Arbor, Washtenaw County and the Ann Arbor Transportation Authority to act as a purchasing consortium. The modification to the agreement will allow other participants to be added to the consortium in a streamlined way. The second agreement was the extension of a contract with the city of Chelsea to provide various IT services.

The council put off a decision on issuing bonds to support energy improvements for its property assessed clean energy (PACE) program. The item had been added late to the agenda, and several councilmembers had questions they wanted answered before voting on it.

Although the agenda itself was light, several significant communications were included, either as written attachments or conveyed verbally. The written reports attached to the agenda included a revised auditor’s letter and a report on how the street resurfacing millage money was spent during the 2012 season.

Conveyed verbally was a report from the council’s budget committee chair, Marcia Higgins (Ward 4), who alerted councilmembers that on Feb. 11 and Feb. 25 the council would hold budget work sessions starting at 6 p.m., with each meeting consisting of two 2-hour sessions with a break.

Stephen Kunselman (Ward 3), chair of the city’s taxicab board, called for enforcement of the city ordinance that is meant to prevent the operation of “rogue limousines” – in the context of a reported sexual assault of a University of Michigan student by the driver of either a taxicab or limousine.

Kunselman also called for a number of revisions to the city ordinance that establishes the Ann Arbor Downtown Development Authority, including stricter regulations on membership of the board, but more significantly a limitation on the way the DDA’s tax increment finance (TIF) capture is calculated. [Full Story]

A study of the city of Ann Arbor’s sanitary sewer flows – meant to assess the impact of a decade-long footing drain disconnection program – will be undertaken by Orchard, Hiltz & McCliment Inc. over the next year and a half to two years.

The city council authorized the $968,348 contract with OHM at its Feb. 4, 2013 meeting as part of a project budget that includes a $192,000 contingency and $85,000 to account for city staff time. The money will come from the city’s sanitary sewer capital fund.

The city of Ann Arbor’s footing drain disconnect (FDD) program was implemented in 2001, prompted by repeated incidents of raw sewage backing up in residents’ basements and the discharge of only … [Full Story]