On his last motion day before retirement, Shelton chose to deny a motion to disqualify the city attorney’s office in its representation of the city. He also declined to rule on the merits of a motion to reassign the case away from judge Timothy Connors – who will be taking over all of Shelton’s civil cases after Shelton’s retirement at the end of this week. On that motion, Shelton pointed out in denying it that he did not have the power to grant it and indicated that such a motion should go through the regular disqualification process.

However, Shelton delayed ruling on a third motion, on sanctions against the city’s attorneys – for making statements in a brief in support of summary disposition that plaintiffs contend did not have a well-founded basis. Shelton questioned assistant city attorney Abigail Elias closely on the matter, and appeared to indicate agreement with plaintiff’s contention that the city had, in its brief filed with the court, mischaracterized the plaintiff’s position.

However, Shelton indicated that the motion on sanctions should be heard when the motion on summary disposition is heard – on Sept. 18. So Shelton indicated he would be adjourning that motion until Sept. 18. That hearing is scheduled before Connors.

For additional background, see “Shelton to Hear Motions in FDD Case.”

This brief was filed from Shelton’s courtroom shortly after the hearing ended. A more detailed report will follow: [link]

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

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

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

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

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

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

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

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

Motion on Reassignment

The Sept. 18 hearing date on the city’s motion for summary disposition could change if Shelton grants the motion to reassign the case to a judge other than Connors.

The motion to reassign is based on the fact that attorney Mark Koroi is co-counsel for the plaintiffs. According to the brief in support of the motion to reassign the case away from Connors, Koroi has filed four Judicial Tenure Commission grievances against Connors, two of which have been upheld. Koroi’s brief also notes that he has engaged in “vigorous public advocacy against political candidacies of both Timothy Connors and his wife.”

The plaintiff’s brief notes that Michigan court rules stipulate that it is the challenged judge who must make an initial ruling on a motion for disqualification, so the motion to reassign is a proactive measure to eliminate the need to file a motion in front of Connors, which would asked that Connors disqualify himself. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on reassignment]

The city’s response brief argues that the motion is actually a motion for disqualification, and as such the motion is premature and should be heard by Connors. The city also argues explicitly against the idea that Connors should be disqualified, noting that if political speech critical of a judge were adequate grounds for disqualification, then an attorney could engage in such speech specifically so that the attorney would never have to appear in front of that judge.

The city also argues that the brief in support of the motion to reassign doesn’t provide any evidence that Connors is aware of Koroi’s political advocacy or that Connors is actually biased against Koroi. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on reassignment]

Motion for Sanctions

A second motion filed on Aug. 20 for hearing on Aug. 27 is to sanction the city attorney’s office for filing papers that are “neither well-grounded in fact nor warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.” The papers in question are the city’s brief in support of its motion for summary disposition. [June 9, 2014 Yu v. City of Ann Arbor brief on summary disposition]

Included in the plaintiffs’ claims asking for sanctions to be imposed are that some of the key arguments in the city’s motion for summary judgment are frivolous. Plaintiffs assert that the city’s argument that the plaintiffs’ complaint is time-barred is frivolous. The plaintiffs then argue that one of the city’s positions – that the plaintiffs’ federal claims should be dismissed – is crucially based on the city’s contention that the claims are time-barred.

The plaintiffs’ brief in support of sanctions also asserts that the city has mischaracterized the plaintiffs’ position, highlighting instances where the city states that the plaintiffs have “recognized” or “conceded” some key aspect of the city’s legal position. The plaintiffs argue that the plaintiffs have not recognized or conceded the things that the city claims in its brief. [Aug. 20, 2014 Yu v. City of Ann Arbor brief on sanctions]

For example, the city claims in its brief that [emphasis added]:

Plaintiffs recognize that they own the sump pumps they installed and that the sump pumps and footing drain system operate as an integral part of their houses; in other words that neither the city nor a third party owns anything located in their homes, occupies their properties, or has otherwise taken their properties.

The claim is presented in the “introduction” section of the city’s brief, a section of pleadings where recitations of uncontroversial fact are typically presented. The question of pump ownership and occupation of residents’ homes by the third party are central points of dispute in the case. The plaintiffs’ brief in support of sanctions argues that the citations by the city to the plaintiffs’ pleadings – in support of the claim of “recognition” – do not in fact support a claim of “recognition.”

Another claim by the city – presented in the “background facts” portion of its brief in support of summary disposition – is that [emphasis added]:

“Plaintiffs concede that Sec. 1.1 [the footing drain disconnection ordinance] was adopted by the City to address the public health, safety and welfare issues of sanitary sewer back-ups in basements and sanitary overflows.”

The portion of the plaintiffs’ brief cited by the city in making that characterization does not, according to the plaintiffs, provide any support for the city’s contention that a concession has been made. And elsewhere in the plaintiffs’ brief, they state [emphasis added]:

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.

Based on the city’s descriptions of the plaintiffs’ statements, the plaintiffs contend that the city is distorting the record. From the plaintiffs’ brief in support of sanctions:

This level of mischaracterization goes beyond zealous advocacy: it is misleading and is unfair to both the Court and to the Plaintiffs, whose lawyers are forced to ferret out mischaracterizations and distortions of the record when they should be responding to a “fair presentation of the issues” by opposing counsel.

The city’s response to the plaintiffs’ brief in support of sanctions deals with the part involving plaintiffs’ frivolous legal arguments by arguing for the merit of those arguments.

In its brief opposing sanctions, the city responds to the plaintiffs’ contention that their statements have been misrepresented to the court by insisting that the city’s characterization is based on the plaintiffs’ recitation of facts – and an attachment to the complaint of the city’s written “homeowner’s package” for sump pump install-ees.

The city’s position appears to be that whatever factual claims and characterizations that are made in the “homeowner’s package” were recognized and represented to the court by the plaintiffs as true – by dint of the attachment of the “homeowner’s package” to the plaintiffs complaint as an exhibit. So the city is not analyzing the plaintiffs’ exhibit merely as a representation by the plaintiff as to what the city itself claims to be true (via public documents produced by the city), but also what the plaintiff is recognizing to be true. [Aug. 22, 2014 Yu v. City of Ann Arbor response brief on sanctions]

The city blames any misunderstanding on the plaintiffs, arguing that the plaintiffs wrote poorly worded filings. From the city’s response brief, opposing sanctions:

[T]he City has not mischaracterized Plaintiffs’ Complaint, but has simply analyzed it as written by Plaintiffs. Plaintiffs’ dissatisfaction with the City’s reading of their Complaint arises from Plaintiffs’ own failure to draft a well-pleaded Complaint.

Motion on Disqualification

A third motion filed by the plaintiffs for hearing on Aug. 27 is one that would disqualify assistant city attorney Abigail Elias, and thereby the city attorney’s office, from representing the city in this lawsuit. [Aug. 20, 2014 Yu v. City of Ann Arbor brief in support of disqualification]

The brief arguing for disqualification cites an email sent by plaintiffs’ counsel in early February notifying Elias that she would likely be called as a witness in the case:

I am advising that your non-privileged testimony and evidence will likely be required in connection with litigation over the FDDP, which is now in preparation for filing. The case will include a claim for inverse condemnation. You are a necessary witness on both liability and relief, which probably comes as no surprise.

The plaintiffs argue partly on grounds that they need to depose Elias as a reason to disqualify her as the city’s representation.

In its brief in opposition to the motion on disqualification, the city contends that there is no testimony that Elias is in a unique position to provide other than testimony that would be subject to the attorney-client privilege. [Aug. 22, 2014 Yu v. City of Ann Arbor brief opposing disqualification]

The city also contends that disqualification of its city attorneys would be prejudicial to the city, because “Ms. Elias has been involved with the FDD program since its inception 13 years ago. Her familiarity with and knowledge of the issues in this case from those years cannot be replicated easily or quickly.”

Hearing

The next hearing is currently scheduled for Aug. 27 at 1:30 p.m. in front of judge Donald Shelton at the 22nd circuit courthouse, 101 E. Huron in downtown Ann Arbor.

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:

• 02.27.14 [.pdf of Yu v. City of A2: Complaint]
• 02.27.14 [.pdf of Yu v. City of A2: Motion for Preliminary Injunction]
• 02.27.14 [.pdf of Yu v. City of A2: Brief in Support of PI]
• 03.17.14 [.pdf of Yu v. City of A2: Notice of Removal]
• 03.24.14 [.pdf of Yu v. City of A2: Motion to Dismiss]
• 04.03.14 [.pdf of Yu v. City of A2: Motion for Remand]
• 04.17.14 [.pdf of Yu v. City of A2: Response to Motion for Remand]
• 04.24.14 [.pdf of Yu v. City of A2: Reply to Response on Remand]
• 06.09.14 [Yu v. City of A2: Motion for Summary Disposition]
• 06.26.14 [.pdf of Yu v. City of A2: Response to Motion for PI]

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.

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.

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.

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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It had previously been postponed at the council’s May 5, 2014 meeting, to be taken up again on June 2. During the postponement, the dollar amount of the contract extension had been reduced from $748,106 to $143,440. That reflects a reduction in the scope of the work. The original May 5 resolution called for the following activities to be funded: citizen support ($36,928); FDD citizens advisory committee meetings ($24,180); information management for sump pump monitors ($93,707); developer offset mitigation (DOM) program support; ($95,213); and multi-family FDD implementation ($498,005).

No longer a part of the scope of work in the approved June 2 resolution were the FDD citizens advisory committee meetings, information management, or the multi-family FDD implementation. The revised memo describes how the funding would only provide a bridge until recommendations from a study group have been received, which will determine the future of the FDD program:

This amendment would provide the services needed to bridge the gap until the SSWWE [Sanitary Sewer Wet Weather Evaluation] Project recommendations have been made. Presently, the anticipated timeline for completion of the SSWWE Project is in the autumn of 2014. That does not allow sufficient time to issue a new RFP, collect and review proposals, award a contract, and bring a new consultant up to speed to manage the remaining FDD and DOM work outlined above. Existing City staff does not currently have the available resources or expertise to perform the inspections required for the DOM program.

Details on the council’s June 2 deliberations are provided in The Chronicle’s live updates filed during the meeting.

By way of additional background, in 2012 the city’s program to disconnect footing drains from the sanitary sewer system was suspended by the council in some areas of the city. Specifically, it was suspended in the Glen Leven and Morehead (Lansdowne neighborhood) areas. The program was allowed to continue in other geographic areas and as part of the city’s developer offset mitigation (DOM) program. The DOM requires owners of new developments to complete a certain number of FDDs to offset the additional flow in the sanitary system caused by new construction.

The CDM contract drew scrutiny at the May 5 meeting because the city is currently undertaking a sanitary sewer wet weather evaluation (SSWWE) study. It’s supposed to yield a recommendation about whether to continue with the FDD program, and if so, in what form. In addition, the city’s ordinance – which requires property owners to undertake FDDs – was challenged in a lawsuit filed earlier this year. That case is pending as the city first removed the case from state to federal court. But the result of a May 28 hearing before a federal judge will be to return the case to the Washtenaw County 22nd circuit court.

The previous three iterations of the CDM contract totaled  about $3.6 million. The money for these contracts is drawn from the city’s sewer fund.

The proposed contract extension drew criticism during public commentary on May 5 from Frank Burdick, a Ward 4 resident who urged the council to reject it. Burdick spoke again during public commentary on June 2, and again advocated for rejecting the contract.

Since the FDD program’s start in 2001, about 1,834 footing drains have been disconnected through the city program and 848 footing drains have been disconnected through the developer offset mitigation program.

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.)

This brief was filed from the city council’s chambers on the second floor of city hall, located at 301 E. Huron.

Theodore Levin U.S. Courthouse in downtown Detroit.

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

But 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 the Wednesday hearing, Cohn indicated that he’d be granting the motion for remand.

By way of background, the ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s 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.

The lawsuit – Yu v. City of Ann Arbor – claims the city’s FDD ordinance violates: (1) the Michigan state law setting forth 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. Code Section 1983.

In broad strokes, Cohn summarized all of the plaintiffs’ claims against the city as reducible to claims about inverse condemnation – taking of private property without just compensation. The plaintiffs contend that the city’s ordinance requiring disconnection of footing drains from the sanitary sewer system – and its associated installation of a sump with a pump – is a physical occupation of a homeowner’s property with equipment not belonging to the homeowner.

Inverse condemnation is a kind of claim for which remedies in the state courts must first be exhausted, before moving to federal court. And although the complaint cites federal law in its causes of action, Cohn was not willing to sever the state claims from the federal claims or to stay the federal claims in the complaint.

Because all the claims were about inverse condemnation, Cohn said, “All I know is that I don’t have subject matter jurisdiction until there’s an exhaustion of remedies under state law. I’m going to have to remand it – I can’t keep it. The only way they can exhaust their remedies is in Washtenaw County circuit court.”

Cohn made his position so clear in his initial remarks that the plaintiffs’ counsel – Dan O’Brien of Woods Oviatt Gilman in Rochester, New York – was initially content not to offer oral argument: “I’ll rely on my papers, your honor.”

So assistant city attorney Abigail Elias, who represented the city at the May 28 hearing, was arguing before a judge who’d essentially already indicated how he would rule. She still made a bid to convince Cohn at least to dismiss the federal claims without prejudice, if he was going to remand the state claims back to the circuit court. She opened her remarks by saying, “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

In the course of the short hearing, Cohn was not generous in his assessment of the city’s legal briefs that had been filed, calling them “jurisprudential legerdemain.”

For previous Chronicle coverage, see “Lawsuit Filed on City Footing Drain Program” and “Backups: Lawyers, Sewers, Pumps.”

The hearing is reported below in more detail.

May 28, 2014 Hearing

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. All three attorneys attended the hearing. O’Brien handled the oral argument.

Representing the city of Ann Arbor at the hearing was assistant city attorney Abigail Elias.

The hearing was before federal judge Avern Cohn of the U.S. District Court Eastern District of Michigan. Cohn was appointed to the bench during the Carter administration in 1979, and assumed senior status in the federal court system in 1999.

May 28,2014 Hearing: Proceedings

The hearing began at 2:15 p.m. as Cohn told the parties: “I’ve read your papers and I’ve read the complaint carefully.” He commented on the “amount of paper” that’s been generated in this case, and ticked through the seven causes of action in the complaint. He noted that some of the causes of action weren’t really causes of action – for example, a request for declaratory relief. But Cohn summarized them all as arising from one basic cause of action under the Michigan constitution: The plaintiffs were making inverse condemnation claims, Cohn concluded.

All of these claims can be adjudicated in state court – because there is a remedy for the claims under state law, Cohn said. If the plaintiffs prevail under state law, he added, “that’s the end of it. Under Williamson, the case doesn’t belong here.”

By way of background, the Williamson case Cohn cited in his remarks was a Supreme Court case – Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City (1985). It held that inverse condemnation cases are not appropriate for federal review until there is a final determination in state court.

Cohn then commented on the briefs filed in the case by the city of Ann Arbor, calling them “jurisprudential legerdemain.”

After ending his commentary, Cohn gave attorneys on both sides the chance to respond. When asked if he wanted to address the court, plaintiffs’ counsel Dan O’Brien told Cohn: “I’ll rely on my papers, your honor.”

Abigail Elias, representing the city of Ann Arbor, then stepped to the podium to address the court. “I understand generally it’s an uphill battle…” but Cohn interrupted, “Not generally. Specifically.”

Elias cited England v. La. State Bd. of Med. Exam’rs (1964) in support of her contention that the court had an obligation to adjudicate the federal claims over which it has jurisdiction. The plaintiffs had not made an “England reservation” with the state court, Elias said. “That troubles me,” she added.

By way of background, the federal practice manual for legal aid attorneys from the Shriver Center characterizes an “England reservation” as follows:

An express England reservation has three elements: (1) explicit expression to the state tribunal of an intent to return to federal court in the wake of an adverse state determination, if any; (2) explicit notification to the state tribunal of the federal questions that would be reserved, and (3) an absence of voluntary litigation in the state court by the reserving party of the federal questions that would be preserved for federal trial.

Elias suggested that the federal claims in the Yu v. City of Ann Arbor case could be dismissed by Cohn without prejudice.

Cohn, who’d been shaking his head in disagreement while Elias spoke, told her that he wouldn’t sever the state claims from the federal claims – and he wouldn’t stay the federal claims. If the plaintiffs want to assert federal claims in state court, they can try to do that. Regarding the claims of inverse condemnation, the federal court doesn’t have subject matter jurisdiction, he said, until the plaintiffs have exhausted all remedies under state law.

Theoretically, Cohn noted, he could remand the state claims and stay the federal claims. But he hadn’t seen cases where that had been done. “I’m going to have to remand it – I can’t keep it,” Cohn said. The only way that the plaintiffs can exhaust their remedies is in Washtenaw County circuit court, he said.

O’Brien then spoke briefly. This case, O’Brien said, is “on all fours” with another recent case handled by the same court [Oakland 40, LLC v. City of South Lyon (2011)]. In that case, an inverse condemnation claim had been removed from the state court to the federal court, and the federal court had granted a motion for remand back to the state court. “The same thing should happen here,” O’Brien said. The plaintiffs had not brought the case in federal court because of Williamson, he noted.

Elias then appeared to attempt to secure a clarification about whether the plaintiffs were in fact pleading involuntary servitude – a federal claim. Cohn told Elias he didn’t see such a pleading in the briefs. Elias contended such a claim seemed to be present in the complaint – in a reference to homeowners having to work without pay [to maintain their sump pumps].

Cohn then told Elias that when the case was remanded to state court, the city of Ann Arbor could move to dismiss the federal claims. Cohn said he didn’t know why the plaintiffs had chosen to plead the federal causes of action. Cohn said he read the complaint as about inverse condemnation “and nothing more.”

The hearing, which lasted about 11 minutes, ended at 2:26 p.m.

Briefs Filed

Briefs filed in the case so far include the following:

• 02.27.14 [.pdf of Yu v. City of A2: Complaint]
• 02.27.14 [.pdf of Yu v. City of A2: Motion for Preliminary Injunction]
• 03.17.14 [.pdf of Yu v. City of A2: Notice of Removal]
• 03.24.14 [.pdf of Yu v. City of A2: Motion to Dismiss]
• 04.03.14 [.pdf of Yu v. City of A2: Motion for Remand]
• 04.17.14 [.pdf of Yu v. City of A2: Response to Motion for Remand]
• 04.24.14 [.pdf of Yu v. City of A2: Reply to Response on Remand]

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The ordinance that’s being challenged was enacted in 2001. It establishes a program under which property owners can be required to disconnect their footing drains from the city’s 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.

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.

In moving the case to the federal court’s Eastern District of Michigan, the city is exercising its right under 28 USC §1441, which states in part:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

The procedure for removing a case to the federal district court requires that the defendant, the city of Ann Arbor, file with the district court within 30 days of being served the lawsuit and to include a “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” Among the statements covering the city’s grounds for removing the case to federal court is the following:

Plaintiffs’ state law claims arise from the same common nucleus of operative facts and are so intertwined with and related to Plaintiffs’ federal claims that they form part of the same case or controversy as those federal claims, over which this Court has original jurisdiction.

The city filed with the federal court on March 17, 2014, which was 10 days after being served the lawsuit, on March 7. [.pdf of March 17, 2014 federal court filing]

The circuit court case had been assigned to judge Donald Shelton. The federal case is assigned to judge Avern Cohn.

“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.)

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.

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.

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 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 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.

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.

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 a2underwater.org 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.

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Ann Arbor city storm drain in action. (Chronicle file photo)

The meetings are part of a study of the Upper Malletts Creek watershed, being conducted by the office of the Washtenaw County water resources commissioner under an agreement with the city of Ann Arbor. The year-long study is supposed to culminate in a final report due to the Ann Arbor city council in February 2014. Water resources commissioner Evan Pratt was on hand at the meeting, along with other members of the project team.

In response to direction from a citizens advisory group that’s been formed for the project, the team used the March 14 meeting to introduce residents to the basic toolkit for stormwater management techniques. The general stormwater management practices described at the meeting – without trying to analyze which solutions might be appropriate for specific locations in the area – ranged from increasing the number of catch basins in streets to the construction of underground detention facilities.

At least 60 residents attended the meeting, and seemed generally receptive to the idea that some money might actually be spent on infrastructure projects to reduce flooding in their neighborhood: “If you want me to sign up for you breaking up my street and putting [stormwater management infrastructure] in there, just give me a consent form and I will sign it tonight!”

The project team is also still in a phase of gathering information about specific experiences that residents have had with past flooding problems. And the same technology platform – an online mapping tool – can be used by residents for logging future flooding events. For help in using a smart-phone app, one attendee volunteered her grandson “for rent” to other residents. Members of the project team also indicated they welcomed information submitted in any format – including letters, face-to-face conversation and phone calls.

But it was a missing follow-up phone call – expected from one resident who’d attended the first meeting on Jan. 29 – that indicated some continuing frustration about the city’s footing drain disconnection (FDD) program. The frustrated resident’s experience had been that after an FDD program sump pump was installed in his basement, he’d started having problems with a wet basement – problems he hadn’t experienced before. Project manager Harry Sheehan, with the county water resources commissioner’s office, extended an apology for the missed communication and an offer to arrange a site visit.

The FDD program removes a building’s footing drain connection to the sanitary sewer system and redirects that stormwater flow to the system designed to handle it – the stormwater system. The FDD program, which has been somewhat controversial, is not the focus of the Upper Malletts Creek study. But residents got an assurance that the additional volume of rainwater that goes into the stormwater system – as a result of the FDD program – would be accounted for in all the modeling that’s done as part of this study.

Meeting Overview, Context

This report begins with a legislative overview, and a summary of the introductory remarks from the March 14, 2013 meeting.

Overview: Precipitating Events, Funding

An arrangement for the Washtenaw County water resources commissioner to study the Upper Malletts Creek area was authorized by the Ann Arbor city council at its Oct. 15, 2012 meeting. The $200,000 cost of the study is to be paid for with city funds already held by the county water resources commissioner’s office.

The area to be studied, outlined in the agreement between the city and the water resources commissioner, included “the Malletts Creek Drain Drainage District in the Churchill Downs and Lansdowne sub-watershed areas.” Potential improvements mentioned in the agreement include detention, pipe upsizing, and green infrastructure.

Negotiations on that agreement with the water resources commissioner stemmed from a council resolution approved at its Aug. 9, 2012 meeting. That resolution directed city staff to start negotiations with the county to conduct the study.

The staff memo accompanying the council’s Oct. 15, 2012 resolution mentioned the heavy rains on March 15, 2012, which resulted in street flooding in that part of the city. The city council heard complaints from the public at its meetings after the flooding. A map of historical flooding in the city – obtained by The Chronicle through appeal of an initially-denied request made under Michigan’s Freedom of Information Act – shows that respondents to a survey conducted in the mid-1990s reported they’d experienced street flooding in the same areas that the flooding occurred in the spring of 2012.

Residents at the March 14, 2013 meeting wanted to know how big the March 15, 2012 storm was – from an historical perspective. They noted that on Scio Church Road there was water running through the yard, which hadn’t happened in the previous 20 years.

Ron Hansen, a Spicer Group engineer who’s working on the project, said that given the magnitude of the flooding, it was a very historic event. For many people, it was the most significant flooding they’d ever seen. But he’d heard from other people who said they’d had numerous floods over the last 20-30 years. The rainfall amount on March 15, 2012 was in the range of 1.7 or 1.8 inches in a two-hour period, Hansen reported. That doesn’t mean that the intensity over every house was the same as the intensity measured by the rain gauges, he allowed. And it was in the springtime, when the ground doesn’t absorb as much water – so you get more runoff.

Some frustration about the number of studies that have been done over the years was expressed at the March 14 meeting. And water resources commissioner Evan Pratt led off his introductory remarks at the meeting with an acknowledgment of that sentiment, noting that some attendees might be thinking, “Oh no, another study!”

Overview: March 14, 2013 Meeting Intro

Pratt asked for a show of hands of the roughly 60 residents in attendance – for those who’d attended the Jan. 29 meeting. From that he concluded that there were enough new attendees that it would be worth reviewing some of the information presented at that meeting.

He told the residents that they were in the right place if they wanted to stay engaged and help the project team work toward figuring out some real improvements that could be made so they didn’t have the same problems that they’d experienced last year on March 15, 2012, when there was so much flooding in the streets and in the yards.

Evan Pratt, Washtenaw County water resources commissioner.

Pratt allowed that he’d only been water resources commissioner for a few months, but told the group that he had been working on residential flooding issues for about 25 years. [Pratt was elected in November 2012 and took office at the start of 2013.]

One thing he’s learned in that experience, Pratt said, is that the residents at the meeting still know more than he and the consultants do about the problems in their neighborhood. His team is still trying to understand where the problems were and how bad they were on March 15, 2012. He ventured that they had a pretty good handle on it from previous data collected, supplemented by information collected at the Jan. 29 meeting – but the project team is still collecting information. He also offered to arrange that evening to visit anyone’s property if that’s what they wanted.

He ventured that those in attendance would like to head home and say, “Man, we’re done! I understand exactly how everything’s going to get fixed and there’ll never be water in the yard or in the street!” That’s not something he could promise that night, or at the end of the study, he allowed. But the project team would figure out some positive solutions so that if it rains again like it did a year before, residents wouldn’t see the same severity of the problem.

Besides Pratt, other members of the project team introduced at the start of the meeting included employees of the Spicer Group, the engineering consulting firm hired for the study: Ron Hansen, a professional engineer and surveyor; Tim Inman, who works with GIS mapping; and Steve Roznowski, a design engineer.

Handling communications, website and media work on the project are Josh Hovey, a vice president of Truscott Rossman and Lauren Zdeba, an account executive with the same firm. Hovey noted that the location of the meeting, Lawton Elementary, was Zdeba’s old elementary school – so she’d grown up in the neighborhood. [Responding to a query from The Chronicle about the school's mascot, Zdeba confirmed it was the Lawton Leopards. "Our rivals were the Dicken Dolphins!" she said, referring to the elementary school in the neighborhood just to the north.]

Project manager for the Upper Mallets Creek study is Harry Sheehan, with the water resources commissioner’s office. Also on hand at the meeting were city of Ann Arbor employees Cresson Slotten and Jennifer Lawson. Slotten is an engineer and manager of the city’s systems planning department, while Lawson is water resources manager with the city.

In his remarks toward the start of the meeting, Sheehan said the goal of the project is to manage stormwater better and reduce flooding: ” … essentially what we’re looking to do is take a look at what happened on March 15, 2012 and provide solutions to make the effects of that storm much more manageable.”

Overview: Stormwater Management Toolkit

Ron Hansen, engineer with the Spicer Group, described how the goal of the engineering study is to develop a recommended plan that could be implemented to reduce the probability of flooding.

Ron Hansen with the Spicer Group.

The study would eventually identify the estimated cost of the recommended actions and weigh that against the benefit, he said. “It would nice to say we’re going to build a system that is so big that it’ll never flood again, but the reality of it is that would be cost prohibitive. When it comes to rainfall, there’s always the bigger and badder storm.” There’s always a chance of flooding, he said.

He also stressed that the solutions to be recommended should not adversely impact downstream property owners. The goal is not to push the problem downstream, but rather to manage the water within the study area, so that the flooding problems within the study area could be addressed without creating new problems downstream.

The goals are also to implement solutions that maintain or improve water quality, he said. Some of the solutions, he continued, would involve “hard engineering” approaches like installing new pipes. Other approaches are “softer” – such as installing rain gardens and infiltration-based systems. The key is to maintain and enhance water quality, he said. The recommendation should also be sustainable for the longer term – which means that it should be low maintenance.

Hansen then walked the March 14 attendees through a range of options for stormwater infrastructure:

• catchbasin enhancements
• street maintenance
• clean/repair existing drainage infrastructure
• enhance/modify existing detention management
• construct new surface stormwater detention
• construct new underground stormwater detention
• upsize/enhance storm sewer capacity
• bio-retention/rain gardens

He noted that they’d begin with low-cost options, like evaluating catch basins in streets, allowing that these might have a low impact as well.

He also described high-cost options like building underground detention facilities – which he described as big underground concrete boxes – or tearing up streets and backyards. He thought it was likely that some of that type of work might be called for, but the question is where to implement those solutions. And the location and type of facility would depend on the outcome of the engineering analysis and modeling of the study.

Along with the “hard engineering” approaches, Hansen indicated that “softer” approaches – like rain gardens – would be included in the options as well. Softer approaches would be included more than likely in addition to, not instead of, some of the harder engineering approaches, he said.  He drew laughs from the audience when he said: “My gut feeling is you can’t solve this problem with rain gardens.”

Geographic Area of the Study

Harry Sheehan oriented the audience to the area of the study – the northwestern portion of Mallets Creek. He pointed out how I-94 crosses through the area of study. He ventured that most of the attendees at the meeting that night were probably from the city of Ann Arbor, but pointed out that the Mallets Creek watershed, and the area of the study, goes quite a ways past I-94, into the townships. It reaches all the way to The Uplands, he said, west of I-94 and up toward Stadium Boulevard, and in the upper righthand corner of the study area is part of the Pioneer High School property.

Malletts Creek “smart map” showing the study area.

The blue line is Mallets Creek, Sheehan said. Describing Malletts heading upstream (from east to west), Sheehan note that at Landsdowne the creek is open water. But after it crosses 7th Street, it’s a piped system – continuing between Moorhead and Delaware, and across Churchill. It then makes a bend and goes through some backyards on the other side of Churchill Downs near Steeplechase, then goes through Churchill Downs Park. That’s where it opens up, he explained. There are two tributaries that split up in Churchill Downs Park – one of them goes north and one of them goes west, down by the Ice Cube and the Pittsfield branch of the Ann Arbor District Library.

Within the study area, the project team has mapped out areas of known flooding, based on previous information, but also based on information gathered at the first meeting on Jan. 29, Sheehan said.

He pointed out that while there had clearly been problems in the southeastern portion of the study area, that was not the only location.

Sheehan also pointed to problems that had been logged on Chaucer Court and up by the service drive on Scio Church Road. There were clearly a lot of locations to look at, he said.

All the red dots on the “smart map” reflect problems reported to the project team at the Jan. 29 meeting, he said. That first public meeting on Jan. 29 was spent primarily collecting that kind of information from residents who attended, Sheehan said. The information would be used to create a model that accurately represents the events of March 15, 2012, and that can be manipulated to model solutions to managing the stormwater.

From the audience came a request that Sheehan define “flooding” – as it was including in the annotations on the map where problems had been identified. As a definition of flooding for the purposes of the study, Sheehan offered: “If the piped system is overwhelmed or surcharged, and the water exits the piped system onto the street and the yards, or if … the water is not able to get into the system.”

By way of additional background, the Washtenaw County online GIS mapping system includes a number of different layers, including aerial photography, topography, flood plains and drains. The following images derive at least in part from that system.

Study “smart map” overlaid on 1940 historical aerial photography. (Illustration by The Chronicle.)

Malletts Creek topographical map.

Malletts Creek historical map

Geographic Area: West of I-94, Detention Ponds

Ron Hansen responded to a question from a resident about the part of the study area that’s west of I-94. The resident wondered if the drainage from that area were eliminated, would it reduce the flooding in the triangle of Scio Church Road, Main Street and I-94?

Hansen said he didn’t have the exact answer to that. The resident gave some further background for his question, noting there’s not a lot of open land within the city limits to create stormwater detention facilities. Even if the school yard at Lawton Elementary were torn up, “that wouldn’t give you what you want,” he ventured. But on the other side of I-94 there’s a lot of open land, he said. He asked if the project team was considering underground detention or detention ponds for that area. On the opposite side of I-94 is one place where those kinds of projects could be undertaken, he felt. The resident ventured that imminent domain would have to be invoked for many of the possible sites, because they’re on private land.

Harry Sheehan allowed that if you remove water from the system or you delay its entry into the system, that will have an impact. So large-scale stormwater facilities and large-scale rain gardens – which is to say, wetlands – are something that could be contemplated in the area west of I-94. Whether eminent domain would have to be used wasn’t clear, he continued, pointing out that there is some public right-of-way and land that can be purchased. There are also some smaller pockets within the city boundary, he pointed out, such as the area just north of Churchill Downs up by Scio Church Road, where the open channel of the creek runs.

The audience member followed up by saying he was a big fan of detention ponds – because he lives next to one, which is bounded by Scio Church, 7th Street and Greenview. Most of the runoff in the neighborhood runs off into that detention pond, he said. During the dry season, the pond level is down and during the rainy season it’s up. The detention pond controls the water in his immediate neighborhood, so he felt the same solution would work in many others. Hansen added that detention could be feasible, but the concept of diverting or shutting the water off is not too feasible – because if you diverted the water coming from west of I-94, that would push it onto somebody else’s property.

Responding to a question about how many acre-feet of detention ponds would be required, Hansen said that’s one of the questions the project team is studying. The goal is eventually to be able to answer all the questions like that – but they wouldn’t be able to provide answers that evening. The final report on the project will be done in February 2014. It will take time to calculate the acre-feet. It’ll take time to identify where feasible stormwater detention facilities could be placed.

Right now the team is still partly in the information-gathering phase, Hansen explained. The team is also starting to do its modeling and monitoring work. After that is done, the team will begin the preliminary analysis phase. At that point they’ll be able to make statements like: If we put 20 acre-feet of detention at this location, here’s the level of service you’d get. That answer is still a few months in the future, he cautioned. He described five or six additional neighborhood meetings that would take place from now through February 2014.

Stormwater Improvements Funding

Residents at the March 14 meeting wanted to know if funding would be forthcoming and when it would be forthcoming.

Stormwater Improvements Funding: Utility Fees, CIP

Harry Sheehan indicated that the funding stream for the city of Ann Arbor is set by the stormwater utility rate that shows up in your water bill. His own stormwater utility bill is about $25 a quarter, he said. In the city’s capital improvements plan (CIP), Sheehan explained, the first two years are budgeted. The funding from the stormwater utility fee would come as projects are defined in connection with the Malletts Creek study and placed in the CIP over the course of the next few months. Within the CIP, projects are prioritized, he said, and those that are prioritized for the first two years of the CIP would be budgeted.

The number of projects that are programmed in the first two years of the CIP are those than can be afforded with funds from the current stormwater utility, Sheehan said. It’s been possible to double the amount of projects undertaken, because the city and county use the state’s revolving loan fund, and some grant money that goes along with that. A couple of projects that will include stormwater management components are already budgeted in the neighborhood within the current two-year CIP cycle: Scio Church Road from 7th to Main Street; and 7th Street from Scio Church Road to Greenview.

From the funding summary of the CIP [both projects are scheduled for funding in FY 2016]:

UT-ST-14-13 Scio Church Storm Sewer Improvements (Main to 7th) $750,000
UT-ST-14-22 S 7th (Greenview to Scio Church) $650,000

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For other projects, Sheehan described how deeper soil borings can be done to find out exactly where the groundwater is, relative to the surface, and to locate any sand seams.

By way of additional background on groundwater, it’s measured on a regular basis at the Ann Arbor municipal airport. In the last 10 years, it’s shown a rising trend – something that factored into a recent discussion by the city’s park advisory commission on issues like the location of a tennis court in Windemere Park. Daily measurements from 1963 through 2012 are available on the USGS website. [Google Spreadsheet and interactive graph]

Groundwater levels measured at Ann Arbor municipal airport since 1963.

Sheehan described collecting video data from the storm sewers and capturing flow data, so it can be determined how much water needs to be stored at different locations throughout the neighborhood.

Stormwater Improvements Funding: Street Projects

Earlier in the meeting, Sheehan had pointed out that the road right-of-way represents an opportunity for stormwater management. Streets have a useful life, and when they have to be reconstructed, that’s a chance to increase the size of the detention and conveyance system underneath the street, he explained.

Harry Sheehan, environmental manager with the Washtenaw County office of the water resources commissioner.

If that kind of stormwater improvement is part of a street reconstruction project, Sheehan explained, it can earn the project additional points in the priority rating system used in the city of Ann Arbor’s capital improvements plan (CIP). If a street needs to be reconstructed because the road surface needs to be replaced – which is typically why a street would be replaced, he noted – it will be placed in the CIP. But if there’s utility work that needs to be done as well, that accelerates the street project within the CIP.

Underneath the roadway, Sheehan said that improvements would be made by installing larger-sized pipes or underground storage – similar to what would ordinarily be found in porous pavement systems. If there’s water coming under the street from another neighborhood, you might not be able to store it all, he said, but you might be able to put in some swirl concentrators to remove some of the pollutants in the water. Those are the kinds of stormwater management systems that would be deployed under roadways.

Responding to a follow-up question from the audience, Sheehan described how anytime there is a street reconstruction project, the different components of the project are funded by their respective funds – street reconstruction, sanitary sewer work, drinking water and stormwater. Only the part of a street reconstruction project that can be associated with stormwater management is paid for out of the stormwater utility, Sheehan explained.

Stormwater Improvements Funding: Can Money Be Spent?

An additional follow-up question focused on the city policy for expenditures on stormwater improvements: Was it the case that money was not being spent on stormwater improvements in this part of town, because they were considered speculative investments – and for that reason they weren’t going to get done? The question was prompted by an Ann Arbor Chronicle report of a May 11, 2011 briefing that systems planning engineer Cresson Slotten had given the Ann Arbor Downtown Development Authority’s partnerships committee. In that briefing, Slotten had explained that the basic utility rates could not fund replacement of utility systems before they’d reached the end of their useful life – things like upsizing water mains to support future development.

Cresson Slotten, manager of the city of Ann Arbor’s systems planning unit.

Sheehan gave an assurance that money is being spent every day on stormwater improvements. A project is being done right now on Traver Creek, he said. Four road projects are planned for this construction season in the city that have stormwater management components, he pointed out. It’s not accurate to say that money is not being spent on stormwater improvements, Sheehan said.

The response from the questioner was that it’s music to his ears to hear that stormwater utility money can actually be spent on stormwater improvements: “If you want me to sign up for you breaking up my street and putting something in there, just give me a consent form and I will sign it tonight! You can put it in my backyard – you can put it anywhere you like!”

Stormwater Management Codes

At the March 14 meeting, Cresson Slotten – an engineer and manager of the city’s systems planning unit – was challenged by a resident to describe what the city has done to keep more rainwater from “washing down into this neighborhood.” The resident wanted to know: What have you done? What laws have you put in place?

Slotten explained that in terms of ordinances, rules and regulations, Chapter 63 of the city code is the part that deals with stormwater management. The chapter overall deals with soil erosion, Slotten explained, but a key piece of soil erosion is stormwater and stormwater management. He reported that the first piece of Chapter 63 was put in place in 1979, but since that time, it’s gone through a tremendous evolution. In the 26 years Slotten has worked for the city, he said, it’s been revised at least five times.

By way of illustration, Chapter 63 includes different requirements for on-site stormwater detention, depending on the amount of impervious surface in the project:

Sites proposed to contain:
(i) Impervious surfaces greater than 5,000 square feet and less than 10,000 square feet require retention/infiltration only of the first flush storm events.
(ii) Impervious surfaces equal to or greater than 10,000 square feet and less than 15,000 square feet require retention/infiltration only of the first flush and detention only of bankfull storm events.
(iii) Impervious surfaces equal to or greater than 15,000 square feet require retention/infiltration of the first flush, and detention of bankfull, and 100-year storm event. Detention facilities designed for the 100-year storm event shall include a sediment forebay.

Slotten explained that when a new project is proposed – a new office plaza or a new subdivision – the project must include the required stormwater management facilities to hold the water and to slow it down. To illustrate, he described a little neighborhood on the north side of Scio Church Road for which he’d done the stormwater review back in 1988 or 1989. It was a development with about a dozen single-family homes. A certain amount of stormwater detention was required on the site, he said. The amount of impervious surface was calculated – for the driveways, the roof area, and the little road. From that amount of surface, the required stormwater detention was calculated. Responding to a question from the audience, Slotten said it was not “just a guess” but rather had been calculated out by engineers.

Slotten also noted that in the townships, similar rules apply. Washtenaw County also has a set of stormwater regulations, he said, which the city has now adopted. The resident who’d prompted Slotten’s description of the regulations ventured: “These rules don’t work.” Slotten responded by saying that’s why they continue to evolve.

Footing Drain Disconnect (FDD) Program

From the audience at the March 14, 2013 meeting, some questions arose about the city of Ann Arbor’s footing drain disconnect program.

FDD Program: Background

The city of Ann Arbor has separate sanitary and stormwater conveyance systems.

Where rain goes: 70% runs off, and 23% soaks in, becomes part of underground flows or is absorbed by vegetation. It’s the remaining 7% of the rainwater that causes a problem for the sanitary sewer system – because the sanitary system is not designed to handle that kind of volume. (Diagram from the city of Ann Arbor.)

However, during construction of new developments before 1980, footing drains – permeable pipes buried around the perimeter of a foundation, roughly at the depth of a basement floor – were frequently connected directly to the sanitary sewer pipes. Those connections were convenient to make, because the footing drains and the sanitary sewers are buried at roughly the same depth.

However, during very heavy rains, that configuration leads 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.

It was wastewater discharges into the river that led the city to agree to an administrative consent order with the Michigan Dept. of Environmental Quality (MDEQ) to establish a way to offset the impact of new connections to the sanitary system required by new developments.

Footing drain disconnect (FDD) priority area in the southwest of Ann Arbor. Other priority areas, where nearly all the disconnections have been completed, lie in the northeast part of the city. The area of study for the Upper Malletts Creek study overlaps a large part of the FDD priority area. (Diagram from the city of Ann Arbor.)

That program essentially requires developers who are building projects that place additional burdens on the sanitary sewer system to pay for a number of footing drain disconnections elsewhere in the city, according to a formula. A city council resolution from Aug. 18, 2003 authorized the consent order with the MDEQ.

The footing drain disconnect program was targeted initially in five neighborhoods that accounted for about half of all reported basement sewage backups.

Since implementation, 2,538 footing drains have been disconnected, including nearly all of the houses in three of the five neighborhoods. In the two other areas, between 55% and 60% of footing drains have been disconnected.

The city council decided on Sept. 17, 2012 to suspend temporarily the footing drain disconnect program.

And at its Feb. 4, 2013 meeting, the city council authorized a roughly $1 million study of Ann Arbor’s sanitary sewer flows – meant to assess the impact of the decade-long footing drain disconnect program. The point of the study is to see how well the FDD program has worked: Has it had more impact or less impact than expected? Have residents’ preferences changed with respect to how they’d like to see the issue addressed?

The decision to suspend the FDD program came in the context of complaints from residents in the area of the current Malletts Creek study – about overland flooding in spring of 2012 as well as earlier.

The FDD procedure includes the installation of a sump to collect water from the footing drains – which previously fed into the sanitary system – and a pump to move the water from the sump to the stormwater system. And in some cases, the pumps were reportedly not able to keep up with the influx into the footing drains. In other cases, the discharge of the pumps reportedly exacerbated the overland flooding.

FDD Program: Increased Challenge for Stormwater Management?

Responding to a question from the March 14 audience, Ron Hansen said the impact of FDD is being considered as part of the Upper Mallets Creek study. He couldn’t, at this point, say if the FDD program is impacting the stormwater system. He hoped to be able to provide more information at upcoming meetings.

Evan Pratt also responded to the question, saying that regardless of what you think of the FDD program, there’s a sense that if the stormwater pipe is already full, then the water volumes associated with the FDD program don’t really matter – whether it’s a small or large amount that’s being pulled out of the sanitary system and put into the stormwater system. If the pipe is already full, then all of that FDD amount – whatever it is – will not fit into the stormwater pipe, Pratt said. He assured the audience that the study would calculate the FDD amount, and the design of improvements would consider how much water is getting moved from the sanitary system into the stormwater system. “That will absolutely be considered,” he concluded.

Responding to a follow-up question, Pratt indicated his understanding was that the city of Ann Arbor had placed a moratorium on the FDD program. But he noted that a certain number of disconnections had already been done under the FDD program. Pratt said the project team would work hard with the citizens advisory committee to get a clear consensus on the calculated amount of additional FDD water that’s being pushed into the storm drain – over and above what comes off the surface runoff. The design improvements will need to account for that amount, too. Like Hansen, Pratt indicated that he couldn’t at this point say if it’s a huge number or a little number – but in general he didn’t feel like it was an amount that should overwhelm the system.

Related to that, Pratt noted that there was overland flooding in the area before the FDD program was implemented in the early 2000s. It’s the project team’s understanding that during heavy rains in 1971, for example, water flowed down Churchill and Wiltshire streets. But he allowed that the additional FDD flow into the stormwater system was a legitimate concern: If the pipes are full, then any amount of water makes the problem that much worse.

FDD Program: Developer Mitigation

Cresson Slotten of the city’s systems planning unit was called on by a resident in the audience to explain the FDD credit system for developer offset mitigation. Slotten responded by explaining the formula for the developer mitigation program. The formula requires that for every 1,000 gallons of additional sanitary sewer flow a new development might cause, that amount plus 20% – or 1,200 gallons – has to be mitigated by performing footing drain disconnection elsewhere in the city.

Although some dissatisfaction was expressed with the amount of detail provided about the credit system, the resident seemed content to leave the issue for another time.

FDD Program: No Follow-up Phone Call

One resident at the March 14 meeting expressed concern about his experience with the FDD program. Since an FDD sump pump had been installed, he said, his basement gets wet even with routine rainfall. He’d attended the Jan. 29 meeting, and talked to a number of people who’d assured him they’d make a follow-up call: “You know who I heard from? Nobody.”

Harry Sheehan recalled talking with the resident, saying that he’d spoken to the resident and to three other people. He’d wanted to get the resident’s address, to compare it to the database of complaints logged before the FDD program was started. That database goes back to the early 1950s.

Flooding complaint map plotting data as far back as the 1950s. Each black dot is a complaint that was logged about water.

Sheehan said if he’d told the resident he’d follow up with a phone call, that was Sheehan’s error. He’d just wanted to see if there was a complaint prior to the FDD program for any of the four addresses that fit the category of apparently new wet basement problems arising after the FDD program. None of them had a history of prior complaints, Sheehan reported.

Sheehan also recalled talking to the resident about having an engineer come out to the resident’s property. If the resident still wanted to have an engineer come out, Sheehan still wanted to do that. Sheehan apologized for not making the follow-up connection. The resident responded: “You’re going to have a pretty big problem if you don’t call me and my basement floods. I’ve been struggling with this too long, and every meeting I come to I get madder and madder.”

Next Steps?

The project team described next steps, but residents were also interested in finding out if there’s anything they could do immediately to help improve the situation.

Next Steps: Immediate

Some residents wanted to know what could be done right now. Evan Pratt acknowledged that any projects that eventually could be implemented would not be started now, or even in February 2014, when the report was due. As he’d walked through some of the areas of the neighborhood, he’d thought that in some places maybe a big landscape berm could work, but he wasn’t really sure if that would be a good idea.

Harry Sheehan described the March 15, 2012 storm as a 10-year storm in engineering terms. And he said that as the days go by, this area is getting out of a window when rain might be falling on partially frozen and saturated ground. Still, residents wanted to know what they could to mitigate damage, if a similar storm were to strike this year.

Sheehan told residents there were a limited number of things that could be done. If a catch basin on the street is blocked, for example, that could be cleared. He told residents that if they weren’t able to do that themselves, to give his office a call.

Next Steps: Study Process

Sheehan described some of the next steps, including soil borings and flow monitoring, knocking on doors and collecting additional information.

Upper Malletts Creek study timeframe.

Soil boring data, including groundwater levels, will be collected as soon as the weather warms up a bit, Sheehan said. The information collected to date will then be compiled into a draft alternatives analysis to put out to residents and the citizens advisory committee. “It will be rough, but it will be more spelled out than what you’re seeing here, which is just categorical management practices.”

More numbers will be crunched based on reaction to that draft analysis. At that point, a revised draft will be created that will be roughly 90% complete. That version will include some associated costs and expected impact of the improvements. Another public meeting will take place to discuss that draft, he said. After that, a draft of the final report will be made and a public meeting will be held to get feedback on the report. A final report will be made by February 2014, and a public meeting will be held on that final report before it’s forwarded to the Ann Arbor city council.

Sheehan stressed that feedback can also be provided along the way by email if people get tired of attending the public meetings.

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An excerpt from the city of Ann Arbor’s capital improvements plan. TR-AT-12-04 is a pedestrian crossing of Ellsworth at Research Park Drive, near the Center for Independent Living. TR-AP-10-04 is a runway extension at the municipal airport – the brown shaded area.

Generally, about 58% of funding for these projects comes from utility fees and dedicated millages, and 39% from state or federal funds, leaving about 3% to be covered by the city’s general fund. In dollar figures, the amount of improvements that will tap the city’s general fund – or for which funding is otherwise not yet identified – is greater for the second year of this two-year budget cycle. For FY 2015, about $3.4 million of the needed capital improvements will either need to come from the general fund or have some other yet-to-be-determined funding source.

For FY 2014, the amount needed from the general fund or as-yet-undetermined sources is closer to $1.3 million. The city of Ann Arbor’s total general fund budget is around $80 million.

The projects range across the broad categories of: (1) municipal facilities (buildings, parks); (2) transportation (streets, sidewalks, paths, parking decks, train station); and (3) utilities (sanitary, storm, and drinking water).

Cresson Slotten – a city engineer and manager for the city’s systems planning unit – gave the capital improvements briefing to the city council on Feb. 11. The presentation was based on the city’s capital improvements plan (CIP), which was approved by the city planning commission on Dec. 18, 2012.

Slotten also briefed the council on three significant study initiatives related to water systems – a city-wide stormwater study, a more focused study on the Malletts Creek watershed, and a sanitary sewer flow study. Those studies are part of the current year’s work.

In the course of Slotten’s presentation, councilmembers had questions about specific projects, including the footing-drain disconnection (FDD) program. Stephen Kunselman (Ward 3) noticed the FDD program has no funding indicated beyond the $2.5 million that’s called for next year, in FY 2014. Craig Hupy, the city’s public services area administrator, explained that the contract recently authorized by the council to study sanitary sewer flows would inform possible funding in future years.

Another project that drew scrutiny from councilmembers was a $540,000 for interim parking to support a possible commuter rail demonstration project. The city of Ann Arbor has told the Michigan Dept. of Transportation that it expects MDOT to pay for that parking. And Mike Anglin (Ward 5) asked for clarification of the $2.6 million slated for FY 2015 for the design of the “Ann Arbor Station.” City staff clarified that the location of a possible new Amtrak station is currently still the subject of a council-approved $2.75 million study, 20% of which the city is funding, with the remaining 80% covered by a federal grant.

A new station has been controversial in part due to an initially proposed location on Fuller Road near the University of Michigan hospital – on land designated as city parkland. In the CIP, the construction of such a new station is $44.5 million, slated for FY 2016. That cost was not included in the figures presented by Slotten, which went only through FY 2015.

The city council chambers appear in the CIP in connection with two capital projects. A renovation to the chambers – pegged at $300,000 in FY 2015 – seemed to meet with scant enthusiasm from councilmembers. Likely to have a bit more traction with the council is the remaining asbestos abatement in the city hall building. Asbestos abatement was partly completed when renovations were done in connection with construction of the adjoining Justice Center. For the city council chambers portion of city hall’s second floor, abatement would cost about $200,000, and is included in the CIP for FY 2014.

A query from Christopher Taylor (Ward 3) about Barton Dam projects drew out the fact that two projects listed for the concrete and steel portions of the dam  – a two-year total of about $1.65 million – could be joined by additional work that might be required on the adjoining earthen berm. The berm is part of the dam that holds the water in Barton Pond, the main source of the city’s drinking water. The possible berm project depends on the outcome of investigatory work that’s being done at the behest of the Federal Energy Regulatory Commission (FERC).

A runway extension at the municipal airport – included in the CIP for FY 2014 at a cost of $2.14 million – was met with the observation from Sabra Briere (Ward 1) that an environmental assessment (EA) had not yet been acted on by the Federal Aviation Administration. The council had approved the last bit of funding for that study on Aug. 20, 2012. Without the finalized EA in place, Briere ventured, it would be difficult for her to vote for a capital budget that included the runway project.

The budget on which the council will vote this year will include a separate breakout of capital spending. The substantive conversation about the capital budget as it relates to the council’s established priorities is expected to begin to unfold at the council’s March 11 work session. Before then, a second work session is scheduled for Feb. 25, with an additional session slated for March 25, if necessary. Other topics discussed at the Feb. 11 work session included the 15th District Court and the Ann Arbor Housing Commission. Presentations on those topics are covered in separate Chronicle reports.

City administrator Steve Powers is required by the city charter to submit his proposed budget to the council by the second meeting in April, with any council amendments required by the second meeting in May. The city’s fiscal year begins July 1.

CIP Overview

Across all categories, a breakdown of funding requirements for capital improvement projects presented by Cresson Slotten include the following:

Category
                         FY 2014     FY 2015 
City-Owned Buildings  $1,113,000  $1,610,500
Parks and Recreation  $3,475,000  $3,375,000
Solid Waste              $40,000    $240,000
Airport               $2,301,000    $569,000
Alt Transportation    $2,176,000  $5,208,000
Bridges                 $412,000  $2,281,440
New Street                    $0  $1,125,000
Other Transportation    $950,000    $400,000
Parking Facilities      $430,000    $400,000
Street Construction  $13,704,000 $10,230,300
Sanitary System       $8,765,000  $8,260,000
Stormwater Mgmt       $4,400,000  $5,260,000
Water System         $11,400,000  $6,540,000
--------------------------------------------
TOTALS               $49,166,000 $45,499,240

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Wet Weather Projects

Cresson Slotten led off the capital improvements discussion with a description of three current wet-weather study projects, which involve sanitary sewers and stormwater sewers. The drinking water system is not part of the mix for this set of projects – but is included in the CIP for the next two years for a total of about $15 million per year.

Wet Weather: Sanitary Flow

The city of Ann Arbor has separate sanitary and stormwater conveyance systems. But as Cresson Slotten characterized it to the city council at its Feb. 11 work session: “Water doesn’t care which system it’s in – it just wants to get to the river.”

Where rain goes: 70% runs off, and 23% soaks in, becomes part of underground flows or is absorbed by vegetation. It’s the remaining 7% of the rainwater that causes a problem for the sanitary sewer system – because the sanitary system is not designed to handle that kind of volume. (Diagram from the city of Ann Arbor.)

However, during construction of new developments before 1980, footing drains – permeable pipes buried around the perimeter of a foundation, roughly at the depth of a basement floor – were frequently connected directly to the sanitary sewer pipes. Those connections were convenient to make, because the footing drains and the sanitary sewers are buried at roughly the same depth.

However, during very heavy rains, that configuration leads 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.

It was wastewater discharges into the river that led the city to agree to an administrative consent order with the Michigan Dept. of Environmental Quality (MDEQ) to establish a way to offset the impact of new connections to the sanitary system required by new developments.

Footing drain disconnect (FDD) priority area in the southwest of Ann Arbor. Other priority areas, where nearly all the disconnections have been completed, lie in the northeast part of the city. (Diagram from the city of Ann Arbor.)

That program essentially requires developers who are building projects that place additional burdens on the sanitary sewer system to pay for a number of footing drain disconnections elsewhere in the city, according to a formula. The council’s Aug. 18, 2003 resolution authorized the consent order with the MDEQ.

The footing drain disconnect program was targeted initially in five neighborhoods that accounted for about half of all reported basement sewage backups.

Since implementation, 2,538 footing drains have been disconnected, including nearly all of the houses in three of the five areas. In the two other areas, between 55% and 60% of footing drains have been disconnected.

The city council decided on Sept. 17, 2012 to suspend temporarily the footing drain disconnection program.

And at its Feb. 4, 2013 meeting, the city council authorized a roughly $1 million study of Ann Arbor’s sanitary sewer flows – meant to assess the impact of the decade-long footing drain disconnection program. The point of the study is to see how well the FDD program has worked: Has it had more impact or less impact than expected? Have residents’ preferences changed with respect to how they’d like to see the issue addressed?

Wet Weather: Mallets Creek, Stormwater

The decision to suspend the FDD program came in the context of resident complaints.

In one of the remaining areas for the FDD program – the Glen Leven neighborhood – overland flooding during heavy rains in the spring of 2012 resulted in basement flooding in some houses that had been included in the FDD program. The FDD procedure includes the installation of a sump to collect water from the footing drains – which previously fed into the sanitary system – and a pump to move the water from the sump to the stormwater system. And in some cases, the pumps were reportedly not able to keep up with the influx into the footing drains.

Emphatic protest came from residents of that neighborhood, which has in recent weeks included rumblings of possible litigation. The litigation would be based on the legal theory that the city’s footing drain disconnection program has proceeded without valid contracts with homeowners, and that the installation of the wells and pumps constitutes an illegal “taking.”

Malletts Creek Study Area (Diagram from the city of Ann Arbor.)

The immediate cause of the overland flooding itself, however, likely includes the fact that the houses were built in an area through which a creekbed has historically flowed. [.jpg of image showing present-day development overlaid on aerial photography from the 1940s]

In that context, on Aug. 9, 2012, the council considered a resolution directing city staff to start negotiations with the Washtenaw County water resources commissioner to identify “opportunities for stormwater conveyance and stormwater quality improvement in the area of the Malletts Creek drainage district bounded by Ann Arbor-Saline Road upstream to I-94 and Scio Church Road.”

And on Oct. 15, 2012, the council approved a $200,000 study of the area by the water resources commissioner’s office.

Slotten also described a more general stormwater study project covering the whole city. It’s based on a 2007 completed GIS (geographic information system) inventory of public stormwater systems citywide. That study established a base model for the stormwater system. The current project aims to gather more detailed data to allow for a more fine-grained calibration of the base model. With the finely calibrated model, it will be possible to target needs in the system, Slotten said.

Slotten described how a number of stakeholder organizations have been included, as well as interested citizens in several specific neighborhoods that have experienced flooding in the past. The city is interested in getting reports from residents during heavy rains about where overland flooding and pooling is taking place. The city maintains a separate webpage for the stormwater system calibration project, which lists upcoming meetings, including some in early March.

Council CIP Concerns

During the Feb. 11 work session, councilmembers asked questions about a range of projects listed in the CIP. This report highlights some of their concerns, as well as staff responses to the issues that were raised.

Council CIP Concerns: Footing Drain Disconnection (FDD)

Stephen Kunselman (Ward 3) noted that the original FDD program began as capacity issue, and there’d been some involvement by the state of Michigan. Kunselman wanted to know: “Was there a consent order?” Kunselman’s question was handled by Craig Hupy, public services area administrator. Hupy allowed that there’d been a capacity issue in the collection system. The state of Michigan had entered a consent order at the water treatment plant, after a city task force was well down the road of arriving at a solution.

Kunselman asked if the consent order was still in force. Hupy indicated that the consent order had been “discharged.” One element of the consent order was to have a program in place to handle new connections – which the city now has, Hupy said. [That is the developer offset mitigation program, whereby new developments must offset the additional burden they place on the sanitary sewer system by paying for a formula-driven number of footing drain disconnections.]

Kunselman ventured that in reality, the capacity issues have been satisfied, but the FDD program continues – so Kunselman concluded that the point of the FDD was now not to satisfy the consent order. In that case, why did the program continue? Kunselman wondered. Hupy told Kunselman that the FDD continues because the city continues to have problems in the collection system.

Kunselman indicated that he thought there’d been unintended consequences, too. Hupy said that the point of the sanitary sewer flow study is to determine if there is a connection between the consequences Kunselman was alluding to.

Kunselman also noted that in the CIP there’s funding for FY 2014 but nothing thereafter. From the FDD line item in the CIP:

Current    FY 2014    FY 2015    Project
$11.05 M   $2.5 M     $0         FDD Project

-

Hupy told Kunselman that what’s in the CIP for FY 2014 is for disconnection of footing drains for several multi-family units, most of which are “upstream” of the Dartmoor priority area for footing drain disconnections [in the southwest part of the city]. The Dartmoor neighborhood wouldn’t be protected until those multi-family units are disconnected, Hupy said. Because the city did not yet know the results of the wet weather sanitary flow study for the sanitary sewer system, Hupy said, no programming of funds been made beyond 2014. No assumption was being made that the result of the study would cause the FDD to go forward, Hupy said.

Kunselman confirmed with Hupy that prior to the decision to embark on the sanitary flow study, the city had had an expectation that there would be additional funding needed for the FDD program. Hupy said that expectation had been based on a need to complete footing drain disconnections in the Glen Leven and Morehead priority areas.

Council CIP Concerns: City Council Chambers

The city council chambers appear in the CIP in a line item that comprises two capital projects.

Current    FY 2014    FY 2015    Project                 
$0         $0         $500,000   Larcom Mncpl Bldng
                                 2nd Floor/Cncl Chmbr Rnvt

-

Sabra Briere (Ward 1) asked about the $500,000 project to renovate the city council chambers. Her question was fielded by Matt Kulhanek, unit manager for fleet and facilities. He told Briere that the item has been included in previous CIPs. He described the project as part of the asbestos abatement project for the city hall building. About $200,000 is for completion of asbestos abatement on the second floor of city hall, Kulhanek explained, where council chambers are located. Asbestos in the clerk’s office portion of the second floor had been completed during the Justice Center construction.

The remaining $300,000 is for the renovation of the city council chambers. If that’s something the council has an interest in, it would be pursued, Kulhanek said – and if not, then not. [A couple of councilmembers seemed to indicate a lack of support as they shook their heads no.] But the city would in any case pursue asbestos abatement, Kulhanek said.

Kunselman got clarification from Kulhanek that asbestos abatement for city council chambers would include floor tile, as well as fireproofing above the ceiling.

By way of additional background, an implicit recognition of a possible need for improved city council meeting facilities dates back to plans for the Justice Center and city hall renovations. At one time that project included an addition – to be located on Huron Street, toward the eastern edge of the city’s property – which would have housed new city council chambers. The second floor of the current city hall would have been given over to the clerk’s office and the assessor’s office. Construction of new chambers external to the Larcom Building had been estimated to cost in the range of $2.5 million. [.pdf of courts/police schematics showing previously proposed new council chambers]

Council CIP Concerns: Airport

Included in the CIP are a number of projects for the Ann Arbor airport, including an extension of the main runway.

Current    FY 2014    FY 2015    Project 
$0         $2.14 M    $0         Runway Extension

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At left, Sumi Kailasapathy (Ward 1) chats with Kathe Wunderlich before the Feb. 11, 2013 city council work session. Wunderlich is with the Committee for Preserving Community Quality, which opposes the proposed extension of a runway at Ann Arbor’s municipal airport.

In the past, the city council has amended the CIP to exclude the runway extension. [For an explanation of why this was essentially outside the authority of the city council, see: "Ann Arbor Budget Process Starts Up"]

Sabra Briere (Ward 1) noted that last summer [on Aug. 20, 2012] the council had approved a continuation of the work on the environmental assessment (EA) for the airport. At the time, councilmembers had asked if that would be the last time they’d be asked for funding. She did not believe the EA had been completed. She thought the EA would be completed before the council would be asked to consider funding that project.

Matt Kulhanek, unit manager for fleet and facilities, told Briere that the EA had been completed and had been submitted to the technical operations group of the Federal Aviation Administration. It has been sitting at the FAA since September, he reported, and the city anticipated there would be a six-month time frame for the FAA to consider it.

Briere reiterated her point that in the next two months, the city council would be asked to approve a budget, and she didn’t see how the council could include the runway extension in the budget without seeing the EA. [Background on the EA: "Ann Arbor Airport Study Gets Public Hearing"]

By way of additional background, Pittsfield Township – along with the citizens group Committee for Preserving Community Quality – has filed a formal petition with the U.S. Secretary of Transportation asking for the federal approval and funding of the Ann Arbor municipal airport runway extension to be blocked. [.pdf of Jan. 28, 2013 petition filed with U.S. Secretary of Transportation]

Council CIP Concerns: Rail Transit – Station, Parking

Two projects related to possible east-west rail service drew scrutiny from councilmembers.

Current    FY 2014    FY 2015    Project
$0         $40,000    $500,000   A2-Detroit Commuter Parking (Interim) 

$0         $2.6M      $0.00      Ann Arbor Station Final Design

-

Stephen Kunselman (Ward 3) asked about the interim parking project: “Where is that project? I never heard of that one.”

Stephen Kunselman (Ward 3).

Responding to Kunselman’s question was the city’s transportation program manager, Eli Cooper. He explained that the project dates back three or four years when MDOT and SEMCOG (Southeast Michigan Council of Governments) began to announce that commuter rail service would be forthcoming. Those entities weren’t planning on providing parking at the existing station. So the city developed an interim strategy, Cooper said, and included the project in the CIP at that time.

Including it was consistent with putting MDOT and SEMCOG on notice that if they were to provide commuter service, they’d need to provide parking out of their budget too, Cooper indicated. The city’s strategy for parking is to use the existing MichCon site, immediately across the tracks from the existing station, Cooper said. The staff estimated there’d be space for a 100-vehicle parking lot, and the amount listed in the CIP was consistent with the estimated expense. The city had not based the estimated expense on conversations with MichCon, Cooper said. The numbers reflect simply a staff estimate of what it would take to establish and operate additional parking on an interim basis for 2-3 years.

Mike Anglin (Ward 5) wanted to know what the planning commission’s discussion had been like on the Ann Arbor Station design, when that body had deliberated on the CIP. Sabra Briere (Ward 1), who’s the city council appointee to the planning commission, indicated that the planning commission had not discussed the item.

Anglin said he was confused about the direction the city staff thought they had to continue with planning for the station.

By way of brief background, the location of a possible new Amtrak station is currently still the subject of a council-approved $2.75 million study, 20% of which the city is funding, with the remaining 80% covered by a federal grant. The council voted at its Oct. 15, 2012 meeting to approve the additional expenditure of $550,000 from the city’s general fund to cover the local portion of the match. Dissenting on that vote were Mike Anglin and Jane Lumm; Stephen Kunselman was absent.

At the Feb. 11 session, Cooper responded to Anglin’s question by citing the context of the city’s 2009 transportation plan update, which the city council had adopted. That document was reviewed by the planning commission as well and adopted as part of the city’s master plan. The transportation plan includes 20 years of transportation improvements – roughly $106 million of city-based improvements, and $100 million of state and transit-authority type improvements, Cooper said.

With that as the backdrop for his response, Cooper noted that the city has a preliminary grant for the study of the location for a new station, which is anticipated to be completed in roughly the next 18 months. The next logical sequence would be final design project, Cooper said. In that context, it’s the staff’s responsibility to include it in the CIP, he concluded.

Anglin sought clarification about a possible decision for the location of the station to be designed: Was it determined to be on Fuller Road? The location is undefined, Cooper said, and that’s why the title of the line item is “Ann Arbor Station,” with no specified location.

Council CIP Concerns: Bridges

Cresson Slotten explained that the city is mandated to inspect all its bridges every two years as part of the biennial bridge inspection program. But the city divides the bridges into two categories – those over water and those over land. In one year, the city inspects all the over-water bridges, and the next year the city inspects the remaining bridges. So every year, the city is engaged in the inspection of some bridges.

One bridge drew a question from Sabra Briere (Ward 1).

Current    FY 2014    FY 2015    Project
$317,000   $2.2 M     $813,000   Fuller/Maiden/MedCenter Bridges Rehab

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Briere noted that this particular bridge – even with a priority of 1 – has been originally included for FY 2017. Now it’s been shifted to 2014. What’s changed?

From left: Ward 1 councilmembers Sumi Kailasapathy and Sabra Briere.

Nick Hutchinson, interim head of project management, told Briere that the project was originally put in the CIP for FY 2016-17, but was shifted up after the staff looked at the biennial bridge inspection reports. The city thought that doing the maintenance sooner would be more cost effective. Another factor leading to the shifting of the project to an earlier year, Hutchinson said, is a project in the works for the intersection there. The city wanted to get the projects done the same year. [On Feb. 7, 2011, the council authorized a $460,139 contract with DLZ Michigan Inc. to review previous studies of the Fuller Road/Maiden Lane/East Medical Center Drive intersection and propose a design for a reconfiguration of the intersection.]

Briere told Hutchinson that she would be really curious to see what the plan is for the Fuller Road/Maiden Lane/East Medical Center Drive intersection. She sees the bridge as a single system, and would like to see the bicycle path put under the bridge – as the bridge was designed to accommodate. Hutchinson told Briere he didn’t have a lot of detail to offer right then, but he knew it’s being studied.

Marcia Higgins (Ward 4) suggested that in replacing bridges, the city should try to partner with the University of Michigan, which has engineers working on flexible concrete and sophisticated sensors that allow for monitoring of stress remotely. Those approaches can allow identification of problems before they become visible.

Higgins felt that the city should be willing to participate in those university studies. Hutchinson reported that the city had had a meeting with engineering professor Victor Li, but the conversations haven’t gotten very far.

Council CIP Concerns: Barton Dam

Barton Dam is listed in two different items in the CIP.

Current    FY 2014    FY 2015    Project
$0         $100,000   $1.15 M    Barton Dam Concrete Repairs
$0         $0         $400,000   Barton Dam - Coating Struct. Steel

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Christopher Taylor (Ward 3) asked for a description of the Barton Dam-related projects. Craig Hupy, public services area administrator, explained that the Barton Dam projects are listed with the water system projects because Barton Pond, which is formed by the dam, is the primary source of the city’s drinking water. Funding for the dam itself is in the general fund. The expectation is that work on the dam is split 50/50 between the general fund (based on the dam’s additional recreational purpose) and the drinking water fund.

Christopher Taylor (Ward 3).

There are several issues associated with the dam, Hupy said. One is that the system that controls the gates – used to regulate the flow of the water – does not allow for control as finely tuned as regulators would like. Hupy went on to explain that to maintain Barton Dam as a “run of the river dam,” for every drop of water that enters the pond, a drop needs to go over the dam to compensate. The dam was built in the early 1900s and has had a few technology upgrades since then. Currently, the mechanism allows for adjustments by one link of a chain – a fraction of an inch – which isn’t fine enough, he said, to avoid a pattern of opening gates then soon closing them again. The uneven flow is a point of friction with “the fisheries folks,” Hupy noted. [For additional background, see "How Low can Argo Flow Go?"]

In addition to the concrete and steel part of the dam, a roughly 3/8-mile long earthen embankment is part of the structure that forms Barton Pond, Hupy explained. FERC (Federal Energy Regulatory Commission) has required the city to do some investigative work, and the city thinks there’ll be some follow-up work required when that investigative work is completed. [FERC is involved as a regulator because the Barton Dam generates electricity.]

Responding to a question from Taylor about the anticipated cost of the additional work, Hupy indicated that it would be “six figures.” The city is putting about $400,000 total in various parts of the budget for it. But until the study work is completed later this spring, the amount can’t be more precise, Hupy indicated. Because Barton is a federally controlled dam, whatever the work the city does will be what the regulator demands that the city does or doesn’t do. “Stay tuned,” Hupy told Taylor.

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Left to right: Sandi Smith (Ward 1) and former councilmember and planning commissioner Jean Carlberg. (Photos by the writer.)

Five significant items had been added: (1) a proposal to suspend temporarily the footing drain disconnection program in one area of the city; (2) a proposal to waive temporarily the city’s living wage requirement for certain nonprofits; (3) a proposal to establish a sidewalk gap elimination program; (4) a resolution on dealing with proceeds of city-owned land sales that competed with one already on the agenda; and (5) reconsideration of allocating $60,000 for a transit study – funding that the council had rejected at its previous meeting.

The first two items were added on Friday, Sept. 14. The second two were added the day of the meeting (Sept. 17), with the fifth item added at the council table. Of the added items, the council approved only one – to suspend temporarily the footing drain disconnect program. The rest were  postponed, withdrawn or voted down.

Postponed was the resolution added by Mike Anglin (Ward 5) to establish a committee of city officials and 10 residents – two from each ward, to be selected by councilmembers for respective wards – to address the issue of city-owned parcels in downtown Ann Arbor. The citizen committee to be established by Anglin’s resolution would study the available options for use of proceeds from the sale of downtown city properties.

Also postponed was the resolution that Anglin’s proposal was essentially challenging, which was brought forward by Sandi Smith (Ward 1). Smith wants to direct the proceeds from city-owned land sales to the city’s affordable housing trust fund. Her idea – which she first floated to her council colleagues in an email written in late August – enjoyed the support of nonprofits, as well as the Ann Arbor Downtown Development Authority board and the Washtenaw County board of commissioners.

While Anglin’s resolution was postponed until Oct. 1, Smith’s was referred to the council’s budget committee and postponed until the council’s Oct. 15 meeting.

Also postponed was a requested $60,000 contribution to fund further study of a transportation connector – for the corridor running from US-23 and Plymouth southward along Plymouth to State Street and farther south to I-94. The outcome of this phase is to identify a preferred choice of technology (e.g., bus rapid transit, light rail, etc.) and the location of stations and stops. The council had voted down the proposal at its Sept. 4 meeting, but it was brought back for reconsideration on Sept. 17, only to be postponed until Oct. 15. The $60,000 is meant to be the city’s share of a $300,000 local match for a $1.2 million federal grant that has already been awarded.

Withdrawn was the proposal to waive a requirement of the city’s living wage ordinance for those nonprofits that receive funding from the city to deliver human services. The ordinance has a provision for a hardship waiver, but states that a nonprofit must submit a plan for eventual compliance within three years. No nonprofits had submitted such plans, meaning that the council’s resolution would have amounted to an attempt by the council to amend the living wage ordinance through a simple resolution, which it cannot do. When the council reached the item on the agenda, it was withdrawn, with an indication that an ordinance revision would be brought forward to a future meeting.

Also at the Sept. 17 meeting, the council heard about an item related to nonprofit funding for human services that will be brought forward on Oct. 1: a request to continue the two-year pilot program for coordinated funding. That news came during a presentation from Mary Jo Callan, head of the city/county office of community and economic development.

Voted down was a plan to initiate a 5-year program to eliminate sidewalk gaps in the city. Councilmembers voting against the resolution pointed to the fact that the city’s non-motorized transportation plan takes a comprehensive approach to identifying such gaps. They feared that people might mistakenly believe that certain gaps would necessarily be filled through this program, and raised concerns about equity. The resolution sought to identify independent funding sources to pay for such projects – the city’s strategy in the past has been to levy special assessments on owners of property adjoining the sidewalks.

The footing drain disconnect program was the only one of the late additions to the agenda on which the council took final action. In the general vicinity of the Lansdowne neighborhood, where some houses have already had sump pumps installed as part of the disconnect program, residents have reported that during heavy rains, the overland stormwater flows and the sheer volume of water in the city’s stormwater system prevent sump pumps from being effective. At an Aug. 22 neighborhood meeting, residents had called for a moratorium on the program. That’s essentially what the council’s resolution did.

Flooding was also a topic included in other council business that had been placed on the agenda through the regular agenda-setting process. The council approved an update to the city’s hazard mitigation plan. It will allow the city to receive already-approved federal funds for demolishing two out-buildings located in the floodway at the city-owned 721 N. Main property.

Also related to emergency preparedness, the city council authorized the purchase of a light rescue vehicle that can be used by firefighters to respond to medical calls. Because its staffing requirement is just two firefighters instead of three, the use of the vehicle would allow response to medical calls without diminishing as much of the department’s response capability for fire calls.

The council also gave final approval to rezoning of an Eden Court property to public land.

Land Sale Policy

The council was asked to consider two resolutions related to the sale of city-owned land. One had been brought forward by Sandi Smith (Ward 1), who first outlined the idea to other councilmembers in an email written three weeks prior to their Sept. 17 meeting. It involved directing the proceeds from city-owned land sales to the city’s affordable housing trust fund.

A second resolution had been added to the council’s agenda the morning of Sept. 17 by Mike Anglin (Ward 5). Anglin’s resolution called for establishing a committee of 10 residents – two from each ward, to be selected by councilmembers from each ward – plus other city officials to address the issue of city-owned parcels in downtown Ann Arbor.

Anglin’s resolution was not specific about how the committee was supposed to address the issue or in what timeframe.

Land Sale Policy: Anglin’s Resolution

At the start of the meeting, Anglin’s resolution was moved ahead of Smith’s on the agenda – at Anglin’s request, because he felt that if Smith’s resolution were approved it would render his own resolution moot.

The citizen committee to be established by Anglin’s resolution would study the available options for use of the proceeds from selling downtown city properties.

Councilmember Mike Anglin (Ward 5). In the foreground is his wardmate, Carsten Hohnke.

The resolution included language like “a transparent process to gather citizen preferences for use of the City land in the DDA district, including whether to sell or lease the land to the private sector.” So it appeared to be an attempt to establish in some sense a parallel process to one that the DDA has undertaken at the previous direction of the city council, under the moniker of Connecting William Street. That process focuses on five city-owned parcels in the area bounded by Ashley, Liberty, Division and William streets. For Chronicle coverage of a recent presentation on the project to the city’s planning commission, see “Planning Group Briefed on William Street Project.”

Anglin’s resolution was moved ahead of Smith’s, over Smith’s objection.

Land Sale Policy: Public Commentary

Thomas Partridge called on the council to support affordable housing, affordable transportation and jobs. He also called for access to free and low-cost education from pre-school through graduate school. Ann Arbor should be known as the education city and as standing for progress in political, social and economic areas, he said. The city needs to give great attention to voter access, for the disabled and seniors and others who have transportation challenges. The council needs to give greater attention to the homeless in the city. He contended that in one stroke, the council could wipe out homelessness for 2012 and for all time.

Ingrid Ault introduced herself as a Ward 1 resident and spoke in support of Smith’s proposed policy on the sale of public land. She was speaking as a member of the housing and human services advisory board (HHSAB), which has the purpose: “To make recommendations to the City Council, City Administration and the Office of Community Development regarding policies and programs to address the needs of low income residents of the City of Ann Arbor. To monitor the implementation of the City’s housing policy and the creation of a City Housing Coordinator to oversee, carry out and coordinate these policies.” It’s a community goal to provide services that meet the basic human needs of impoverished and disenfranchised residents to maximize the health and well-being of the community, she said. In 2004, the goal of adding 500 rental housing units was established. Since that time, 322 units have been added, but 100 units were lost with the demolition of the downtown YMCA building and 79 units were converted to market rate units. That’s a net gain of just 156 units, leaving the community short of its goal of 500 units, she said. It’s time to take the community’s housing goals seriously.

The Ann Arbor Housing Commission had received 18,000 applications for 1,400 vouchers – which means the need clearly exceeds capacity, Ault said. HHSAB unanimously endorsed the resolution, Ault said. Public land is an asset, and when assets are sold, they should be reinvested in the community, she said. It’s not just the right thing to do, it’s the economical thing to do. She cited a study that showed for every dollar invested in nonprofits, a return of $12-14 in non-local funds was received.

Jean Carlberg told the council it was nice to be back. [She previously served on the city council, representing Ward 3.] She told the council she was there as a board member of the Washtenaw Housing Alliance (WHA). The main task of WHA is to deal with homelessness, she said. Over the last year, over 700 singles called the housing access line, saying they were in a housing crisis. Over 600 adults and 900 children in families called the housing access line. The most efficient way to help people is to prevent them from becoming homeless, Carlberg said.

Dave DeVarti spoke in favor of Sandi Smith’s resolution on proceeds of land sales being deposited into the city’s affordable housing trust fund.

But currently, the community doesn’t have the housing it needs, in order to re-house people who’ve lost their housing. WHA can’t find units in Ann Arbor at rents low enough, Carlberg reported. The cost that accrues to the community from not being able to keep people in stable housing is tremendous, she said. For example, without stable housing, children sometimes have to change to a different school district – because they have to move to stay with another family member or friend, she said.

David DeVarti told the council it was great to be there for the last council meeting of the summer, and wished them a happy Rosh Hashanah.

He told the council he supported the land sale policy. When it was in effect previously, it had helped create affordable housing, he said.

It’s a continuing challenge to maintain a diversity of housing options. But when the city needed a couple of million dollars for the financing plan for the new police/courts building, he reminded the council, the policy was rescinded. But now that project has been built and is in use. So it’s time to restore the policy to once again commit ourselves to the support that affordable housing requires, DeVarti concluded.

Land Sale Policy: Anglin’s Resolution – Council Deliberations

Anglin led off deliberations by noting that the city is currently contemplating the use and the possible sale of city-owned downtown property. In the interest of transparency and the public’s ownership of the property, Anglin felt like the public should be the first group consulted. He contended that he’s seen the city defend the property rights of private owners, but not be as aggressive about defending the public’s rights with respect to publicly-owned land.

He reviewed how every councilmember would get a chance to appoint someone to a 10-person committee. [The proposal is in some ways reminiscent of Anglin's bid to establish a citizen's committee back on Feb. 1, 2010 in connection with the 415 W. Washington property. That committee would have been open to any citizen who wanted to participate.] The committee would also have access to the resources of the city staff.

Anglin apologized for the late timing of the item’s addition to the agenda. He felt it would lead to a much more open discourse.

Sabra Briere (Ward 1) said that when she saw the email come through that morning from Anglin about the addition to the agenda, she found herself confused. There are not clear-cut deliverables, she observed. She asked Anglin if the committee was supposed to decide how to use land or how to allocate funding? Anglin responded by saying the purpose was to get a diverse set of potentials. If the meetings of the committee result in a conclusion that it’s a good idea to sell a piece of property, that would be given as a suggestion to the council. He called it “parallel to and in conjunction with” the DDA’s Connecting William Street process.

Briere responded by saying that one of the issues Anglin’s resolution talks about is DDA boundaries. If the idea is to look at just the five parcels within the bounds of the Connecting William Street process, that’s one thing, she said. But if the idea is to look at the DDA district as a whole, that’s another.

Briere wondered if Anglin’s committee was intended to be a standing committee that would meet perpetually as part of an ongoing process. She repeated, “I’m really confused.” Anglin said the intent was for each councilmember to choose a person from their ward that they felt would be “the most passionate person about the downtown.” The committee would set its own parameters about how to proceed. By establishing a committee, Anglin said, the council was asking for public input, but was not trying to direct the public by giving them a limited set of choices.

Sandi Smith (Ward 1) also indicated she was confused. She noted that the city council had given a directive to the DDA to look at city-owned properties in a specific area, which it’s now implementing as the Connecting William Street process. That process, she observed, has a subgroup of citizens that has been directing it. They’ve conducted 17 different community meetings on the process of examining what could happen on the five city lots. She wondered how Anglin’s committee improves on the process that’s already been undertaken and how it relates to that process in a meaningful way.

Anglin said the committee he’s proposing would decide that issue for themselves. He had heard concerns that the First and William Street lot was not included in a discussion of Connecting William Street. [One reason that the parcel is not included is that the future of First and William was decided through a council resolution passed on July 6, 2009.] Anglin weighed in on the idea of citizen committees as contrasted with committees of stakeholders. He felt that such stakeholders reflected a preconceived idea, and he hoped that the citizen committee would not do that. He hoped they would work diligently. He didn’t see such a committee as conflicting, but rather as an adjunct to the Connecting William Street process. The committee would have the same resources available to it as the CWS group, he said.

Mayor John Hieftje said he sees some merit in Anglin’s idea but wanted to see it postponed until some additional clarity could be achieved. He felt there might be some way to have the two groups working together.

Carsten Hohnke (Ward 5) said he appreciated Anglin bringing it forward, but wanted some additional time to contemplate it. So he moved to postpone the resolution until Oct. 1.

Jane Lumm (Ward 2) described Anglin’s resolution as being prompted by Smith’s resolution about the sale of city land. So she wanted to see the council act on Anglin’s resolution that night. She disliked the fact that the resolution had been added that same day. She felt that the council did that kind of thing too much.

Anglin appreciated the council thinking of a postponement. He described the resolution as laying out in some broad brushstrokes how committees might be established in the future. He indicated he was not opposed to a postponement, and allowed that the resolution could be fleshed out more clearly. Hieftje indicated his support for a postponement. He stressed that there’s no initiative before the council right now to sell any property.

Left to right: Stephen Kunselman (Ward 3) and Dave DeVarti.

Stephen Kunselman (Ward 3) said it’s interesting that the council is having a discussion about how to use the proceeds of city-owned land. He felt it’s important to broaden the discussion beyond affordable housing or beyond just the sale of the old YMCA lot. He took to heart Hieftje’s observation that there’s no pending sale, so the council was entertaining a lot of discussion about something it was not contemplating doing anytime soon. He wanted to see a community discussion that went beyond the DDA and said that Anglin was on the right track. He felt that Smith’s resolution is focusing the discussion on one aspect of what could be done with the proceeds of city land – to support affordable housing. However, Kunselman allowed that 10 people on a committee might be a little too broad.

In light of Anglin’s willingness to see the proposal postponed, Lumm indicated she’d support postponement. She supported the idea in principle, and observed that there was a real estate committee when she had previously served on the council, which she felt worked well.

Outcome: The council postponed Anglin’s resolution until the council’s Oct. 1 meeting.

Land Sale Policy: Smith’s Resolution

The policy on the disposition of land sale proceeds has a long history dating back to 1996. A previous policy of directing proceeds of city-owned land sales to the affordable housing trust fund was rescinded by the council in 2007. More detailed background is provided in previous Chronicle coverage: “City Council to Focus on Land Sale Policy.”

The ease with which the previous policy was rescinded in 2007 factored into the council’s deliberations.

The key resolved clause of Smith’s resolution read:

Resolved, That proceeds from the sale of public land in the City of Ann Arbor be directed first to reimburse any funds expended relating to the disposition of the property. Of the remaining proceeds, if the property is in the Downtown Development Authority District 5% are to be directed for public plaza or open space creation, renovation or improvements within the DDA District; 10% are to be directed to any project designated in the City’s Capital Improvement Plan, and 85% are to be directed to the Ann Arbor Housing Trust Fund, all regardless of budget year.

Resolutions urging the city council to adopt such a policy were approved by the board of the Ann Arbor Downtown Development Authority at its Sept. 5, 2012 meeting and by the Washtenaw County board of commissioners later that same day.

Land Sale Policy: Smith’s Resolution – Council Deliberations

Sandi Smith led off deliberations on her own resolution by reviewing some of the history of the affordable housing trust fund. She noted that there’d been no city contribution to the fund since 2009. Besides the city’s general fund contribution, an additional source of revenues had historically come from developers who offered payment in lieu as requirements of planned unit development (PUD) proposals.

Sandi Smith (Ward 1) touched base with city administrator Steve Powers before the meeting.

However, with new downtown zoning adopted by the city council – known as A2D2 – such PUDs will be few and far between, by design. While she supports diversity in the downtown, she felt that a good strategy would be for the sale of properties downtown to fund affordable housing outside the downtown.

The affordable housing trust fund will allow leveraging of state and federal funding, she said. With no policy in place, the proceeds from the sale of city-owned land would simply go into the general fund. She argued that it’s prudent and wise to reinvest in long-term assets. She asked her city council colleagues to join the DDA and Washtenaw County boards in supporting the resolution.

Tony Derezinski (Ward 2) said he applauded the aim of the resolution, having served as the council’s liaison to the Ann Arbor Housing Commission. He wanted to know how the proposal jived with the Connecting William Street work going on right now with the DDA. Does Smith’s proposal affect that?

Smith characterized the two as only tangentially related. The Connecting William Street process is to assemble information about the city-owned parcels in a way that could eventually be used to bring them to market – whether that’s in a year or in a decade. The process is about finding out what the community’s values and wishes are. Smith said her resolution affects what the city does with the proceeds. That’s a question worthy of a robust discussion, she added: What do we do with that money, if and when it becomes available?

Derezinski ventured that obviously the sale of all the parcels would not happen at one time. The city doesn’t know what kind of offers might come in. He ventured that decisions about the use of the property could affect the amount of the proceeds from the sale of the land. Smith allowed that’s the case. If the city puts heavy restrictions on a property, that would affect the sale price, she said. An equally interesting policy discussion would be: What could the DDA do with TIF contributions, as contrasted with lowering the potential sale price of the land?

Jane Lumm (Ward 2) asked for clarification about the intended scope of the resolution. Smith replied that there’s no direction in the resolution about what happens in the event of a sale of city-owned land outside the DDA district. That was intentional, she said, because she’d reviewed the findings of the real estate committee back in the mid-1990s and found that of the parcels defined as “excess,” very few were still available.

Lumm also asked about the 10% of the net proceeds that Smith’s resolution specified for projects in the city’s CIP (capital improvements plan). Smith told her she imagined that would be determined by staff or council at the time of a sale.

Stephen Kunselman (Ward 3) said he couldn’t support the resolution. Going back to “the old way” won’t get us more affordable housing units, he contended. While he’d heard talk about leveraging money, time and time again he kept seeing it fail. He felt that something different should be tried. He also felt the council was ahead of itself – because no property was currently contemplated for sale. The old policy had been repealed in 2007, he noted, when he’d served his first stint on the council – and it was so easy to do, he noted. It only took six votes to rescind the previous resolution. It’d be easy to repeal any policy the council might establish now, because the future is so unknown.

Kunselman allowed that he would support the resolution if all of the proceeds were designated to support the Ann Arbor Housing Commission (AAHC) – because that property is already owned by the city, and that’s where he knows there’s a need. As support for the fact that the AAHC has needs, he alluded to a housing commission property on Platt Road that wasn’t mowed over the summer. He said the council needs to be visionary and think of something different.

Lumm agreed that the city’s record on creating affordable housing units isn’t good. She noted that the DDA’s resolution of support doesn’t specify the numerical percentage, but simply specifies that some percentage would be allocated from land sales. She indicated she might support something along the lines of 10-20%, but not 85% as Smith’s resolution stipulated.

Mayor John Hieftje said he was interested in making sure that any debt was paid off that’s associated with city-owned land. He noted that any policy would be only as strong as a six-councilmember majority, so it would be an advisory resolution. He could support some significant percentage, but stressed that the city might have great capital needs. He cautioned that the city was not yet out of the woods for the greatest recession in history.

Marcia Higgins (Ward 4) felt that the issue fell under the purview of the council’s budget committee, so she proposed postponing the matter until the council’s Oct. 15 meeting, with a referral to the budget committee.

Kunselman said he’d support the postponement and referral to committee.

Carsten Hohnke (Ward 5) felt it made a lot of sense to postpone, and encouraged the budget committee to think about a funding stream that might be identified that is less susceptible to six votes of the council.

Margie Teall (Ward 4) agreed with Hohnke that it’s a basic budget question. She said she’d support a greater percentage allocation than Lumm, something well over 50%. She supported the postponement and referral to the budget committee.

Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

Christopher Taylor (Ward 3) supported the postponement but cautioned against “make work.” He noted there were no sales imminent, and no current piles of money that the council had to decide on. What the council does now will not exert any control or have bearing on the actions of future councils. He said he fully agreed that the proceeds of land sales should be reinvested in assets, not in operating expenses. But what the council says in 2012 in a non-binding resolution will have little bearing on a council in 2015, he concluded.

Sabra Briere (Ward 1) indicated agreement with many of the things that had been said. She had thoughts about possible amendments to reflect her own concerns, one of which was that the scope of the resolution was restricted to the DDA district. She was content with referral to the council’s budget committee.

Smith indicated she would support referral to the budget committee, saying that the council needs to maintain the focus on affordable housing – whether that’s through the affordable housing trust fund or the Ann Arbor Housing Commission.

Outcome: The council postponed Smith’s resolution until the Oct. 15 meeting, referring the question to the city council’s budget committee in the meantime. The council’s budget committee consists of Higgins, Briere, Lumm, Anglin and Taylor.

Connector Transit Study

Brought back for reconsideration at the council’s Sept. 17 meeting was a resolution to fund continued study of a transportation corridor from the northeast of Ann Arbor to the city’s southern edge.

The council had failed to approve a requested $60,000 appropriation from the city’s general fund at its Sept. 4, 2012 meeting.

The 4-5 vote on the budget item on Sept. 4, which required an eight-vote majority on the 11-member body, reflected a strategic move by some councilmembers – who wanted to be on the prevailing side, which by council rules would have allowed them to bring the item back for reconsideration.

The city’s $60,000 is supposed to help the study move ahead with an alternatives analysis. The corridor runs from US-23 and Plymouth southward along Plymouth to State Street and farther south to I-94. This alternatives analysis phase of the study is to result in a preferred choice of technology (e.g., bus rapid transit, light rail, etc.) and identification of stations and stops.

Margie Teall (Ward 4) moved for reconsideration of the connector study funding.

The city’s $60,000 is a portion of $300,000 in local funding that has been identified to provide the required match for a $1.2 million federal grant awarded last year to the Ann Arbor Transportation Authority for the alternatives analysis phase. The breakdown of local support is intended to be: $60,000 from the city of Ann Arbor; $150,000 from the University of Michigan; and $90,000 from the AATA.

In November 2011, Michael Ford – CEO of the AATA – had updated the AATA board on the possible timeline for the alternatives analysis. He said that phase would take around 16 months.

A feasibility study for the corridor costing $640,000 has already been completed. That initial study concluded that some type of improved high-capacity transit system would be feasible – which could take the form of bus rapid transit, light rail transit, or elevated automated guideway transit. That study had been funded through a partnership with the city of Ann Arbor, the Ann Arbor Downtown Development Authority, University of Michigan and the AATA. Chronicle coverage of that feasibility study includes: “Transit Connector Study: Initial Analysis“; “AATA: Transit Study, Planning Updates“; and “Washtenaw Transit Talks in Flux.”

Connector Transit Study: Reconsideration

The move to reconsider the connector study decision came at the start of the Sept. 17 meeting, during the segment designated for agenda approval. The motion was made by Margie Teall (Ward 4), who voted with the prevailing side (those opposing it) on Sept. 4.

Teall’s motion was met with complaint from Jane Lumm (Ward 2), who felt that the item should have been added to the agenda ahead of time.

Responding to Lumm, mayor John Hieftje claimed that it had to be added at the meeting itself – a claim that was supported by city attorney Stephen Postema, who cited the council rule pertaining to motions to reconsider previous questions, highlighting “at the same or the next regular meeting” for special emphasis:

RULE 12 – Consideration of Questions
When a question has been taken, it shall be in order for any member voting with the prevailing side to move a reconsideration thereof at the same or the next regular meeting; but, no question shall a second time be reconsidered.

[In the past, however, the council has used placeholder items to reserve a spot for a motion to be made. As an example, an item reserving a spot for a motion to suspend the council's rules, a motion to reconsider and the main question – the Heritage Row PUD – was placed on the council's Dec. 6, 2010 agenda as part of the regular agenda-setting process, prior to the meeting. Another approach to giving notice of intent to reconsider an item would have been to add the item –  12-1084 – through the council's regular agenda-setting process for Sept. 17. Then precisely at the point when the council reached 12-1084 on the agenda, the mayor as presiding officer could have asked for a motion to consider the item, as is required for any item on the agenda. That potential motion, if made by someone who voted on the prevailing side, would have been the required motion for reconsideration, thus conforming with the council's Rule 12 on when such motions are to be made and who can make them.]

Connector Transit Study: Council Deliberations

Deliberations were scant. Sandi Smith (Ward 1) indicated she wanted to postpone the item, because she had remaining questions and noted that Eli Cooper, the city’s transportation program manager, was not available that night.

John Hieftje observed that Cooper was not available due to a religious holiday [Rosh Hashanah]. Hieftje asked councilmembers to send in their questions well in advance of Oct. 15, and not wait until the last minute. Jane Lumm (Ward 2) asked that the additional information – which Hieftje had said Cooper could share with the council – be provided to the council as soon as possible.

Smith’s move to postpone was met with parliamentary skepticism from Stephen Kunselman (Ward 3), who noted that it had already been defeated previously. City attorney Stephen Postema assured him that the question was in front of the council properly – so what the council did with it at this point was up to the council. [The council had the full range of options in front of it for dealing with the resolution. Once it's reconsidered, it's as if the previous action had never taken place.]

Outcome: The council voted unanimously to postpone the issue until its Oct. 15 meeting – after bringing the resolution back for reconsideration at its Sept. 17 meeting.

Nonprofits

Two issues affecting nonprofits were on the agenda. One related to a possible exemption from the city’s living wage ordinance. The other related to the coordinated funding approach that the city participates in to allocate money to nonprofits that provide human services.

Nonprofits: Living Wage

Added to the council’s agenda on Friday, Sept. 14 before the Monday, Sept. 17 meeting was a resolution related to an exemption from the city’s living wage ordinance for certain nonprofits – those that provide human services.

Left to right: Jane Lumm (Ward 2) and Mary Jo Callan, head of the city/county office of community and economic development.

The living wage is defined by city ordinance Chapter 23, Section 1:815, and was increased slightly earlier this year in order to conform with the ordinance. The new wage was set at $12.17/hour for those employers paying health insurance and $13.57/hour for those employers not paying health insurance.

The city ordinance applies to the wages that must be paid by companies that have contracts with the city worth more than $10,000. Passed in 2001, the ordinance initially stipulated in that year that workers of vendors holding contracts with the city had to pay their employees a minimum of $8.70/hour if the contractor provided employee health care and $10.20/hour if not. But the ordinance provides a mechanism for increasing the living wage based on federal poverty guidelines.

The resolution originally on the Sept. 17 agenda was an apparent attempt to invoke an exemption provided in the ordinance that allows the city council to grant an exemption from the wage requirements, if the city council determines that:

…the application of this Chapter would cause demonstrated economic harm to an otherwise covered employer that is a non-profit organization, and the City Council finds that said harm outweighs the benefits of this Chapter; provided further that the otherwise covered non-profit employer shall provide a written plan to fully comply with this Chapter within a reasonable period of time, not to exceed three years, and the City Council then agrees that granting a partial or complete exemption is necessary to ameliorate the harm and permit the non-profit organization sufficient time to reach full compliance with this Chapter.

However, the city council’s agenda item did not name any specific nonprofit employer or provide any written plans submitted by nonprofits for eventual compliance with the ordinance. A request made by The Chronicle under Michigan’s Freedom of Information Act for such plans was turned down – because no such plans had been submitted. It appears that the resolution would have amounted to an attempt to change the city ordinance through a simple resolution, which is not a legal way to proceed.

In any case, Ann Arbor’s living wage ordinance does not appear to be consistent with the most recent case law in Michigan. A Michigan Supreme Court order from April 7, 2010 left in place an unpublished court of appeals opinion that found a Detroit living wage law to be unenforceable.

When the council reached the item on the agenda, Sandi Smith (Ward 1) noted that while the issue identified in the resolution is significant, the resolution did not resolve the problem, because it would not change the ordinance. She indicated she’d work with the housing and human services advisory board and have an ordinance change ready for the council’s next meeting – on Oct. 1. However, she wanted to withdraw the resolution from consideration that evening.

Marcia Higgins (Ward 4) noted the council previously had debated the idea of exempting nonprofits, and a process was put in place to provide an accommodation for that. She questioned the urgency at this point in time.

Jane Lumm (Ward 2) responded to the question of urgency, saying there’s a nonprofit that isn’t receiving its funding from the city, because it can’t currently meet the living wage requirement. The housing and human services advisory board, on which she and Smith serve as city council representatives, had received a presentation on that, Lumm said.

Stephen Kunselman (Ward 3) expressed concern that the council was picking winners and losers. Given that the resolution had been withdrawn, councilmembers ended their discussion.

Outcome: The resolution was withdrawn so it could undergo further review by the city’s housing and human services advisory board.

Nonprofits: Coordinated Funding

Mary Jo Callan, who heads up the city/county office of community and economic development, led off her update to the council by passing out a list of successes she believes the program has achieved in the first two years of the coordinated funding approach. Those included:

• Identification of agency capacity concerns
• Single program description & program budget
• Reduced number of contracts
• No required board resolution
• Single reporting procedure and timeline
• Auto-disbursement of payments regardless of funder
• Grantee feedback mechanism
• Volunteer reviewer feedback mechanism
• Enhanced communication between funders & increased understanding of needs

Callan described the approach as one that brings together local funders: Ann Arbor Area Community Foundation, United Way of Washtenaw County, the city of Ann Arbor, Washtenaw County, and the Washtenaw Urban County.

The purpose of coordinated funding is to create a public/private partnership to focus on key areas, she said, to create increased coherence in investing in nonprofits.

The process has three parts: planning/coordination ($310,000), program operations ($4.4 million), and capacity-building ($225,000). Planning and coordinating assesses what the needs are in the community, and what the best practices are to inform the funding. Program operations is the part that the city has historically funded, she explained – shelters, after-school programs, counseling programs and the like. That’s where most of the investment is made. Capacity building contributes to the health of the nonprofit sector, Callan said, but also helps individual nonprofits be in a better position to meet the needs of the community.

The six priority areas targeted by the coordinated funding process, with the lead agencies, are: (1) housing and homelessness – Washtenaw Housing Alliance; (2) aging – Blueprint for Aging; (3) school-aged youth – Washtenaw Alliance for Children and Youth; (4) children birth to six – Success by Six; (5) health – Washtenaw Health Plan; and (6) hunger relief – Food Gatherers.

The total process puts $4.935 million into local human services nonprofits, so it’s the most substantial source of nonprofit dollars in the community, Callan said. The bulk of that goes into program operations.

When she’d approached the city a year and a half ago to embark on a coordinated funding process, she’d described the projected benefits. Essentially, if you read down the list, every one of the benefits is being accomplished, she said.

One of the highlights Callan drew out was the fact that it’s the first time the community has invested explicitly in planning and coordination. About coordination, Callan said: “It’s not free and it’s not easy.” Unless you have someone whose sole focus is planning and data and best practices and bringing people together, the funding doesn’t come together in a coherent way, she said.

A full outcome report will be available later in the fall, Callan said.

As a result of the coordinated approach, the funders had learned a great deal about the community, Callan told the council. What happened previously is that a nonprofit would approach one of the funders and share a little bit of an issue, but not necessarily want it shared more widely, because they were afraid. What the coordinated funding approach had allowed is for some key agencies to approach the group of funders in a way that’s supportive and helpful instead of punitive. It also allows the funding investments to be better informed, Callan said.

What’s been learned so far from the planning and coordinating effort is that there are key areas of need. Nonprofits can share in administration. She said there’s not a lot of duplication of services – for example, there are not too many shelters. But there is a lot of duplication at the level of overhead. Rather than saying we need fewer nonprofits, Callan said, the idea is to say: Can you share back-office support? She reported more interest in that.

Callan also indicated there’s been interest in planning for executive director transitions. She noted that it’s happened twice since the coordinated funding approach was started. When an executive director leaves, they take a huge piece of the organization with them, Callan explained. She said that nonprofit leaders had been approached with the idea that it’s okay if you’re planning to leave, but “don’t just leave.” The funders might be able to engage with the nonprofit’s board to help create a smooth transition, she said. That way the nonprofit is not destabilized.

Callan also indicated that additional program capacity needs to be added to the eastern side of Washtenaw County.

On the horizon, Callan said, the funders are working with a national level external evaluation firm – paid for by a private funder. The private funder had expressed an interest in investing in the coordinated funding approach, but wanted the program to undergo a formal evaluation process. For the policy makers who had supported the coordinated funding approach, they’d be getting the best evaluated initiative they’d seen in a while, Callan ventured. But the promise to nonprofits had been that they would not spend existing resources to figure out if the coordinated funding approach was a great model.

So a private entity had approached the office of community and economic development and said: If I like what I see, I want to become an investor in coordinated funding. An additional hoped-for benefit for coordinated funding was that it would stimulated additional resources, and this is an example of that, Callan said.

Next steps would include asking the city council to consider an extension to the third year for program operating funds as part of the coordinated funding process. She reminded the council that the planning and capacity building happen every year, but the program operation funding is on a two-year cycle. She told councilmembers they’d be asked to extend that by one year. That way, nonprofits would not need to reapply – but she allowed it would be dependent on the availability of funds in the city budgeting process.

The extension by one year would allow for the evaluation process to finish – which she felt would be done by January and would be available in January and February. It would also allow a better opportunity to provide the outcome data on the program so far.

Outcome: This was an informational item and did not require a council vote.

Sidewalk Gap Program

The council was asked to approve a resolution that would establish a five-year program to replace sidewalk gaps in the city of Ann Arbor. The resolution had been added to the council’s agenda by Mike Anglin (Ward 5) via an email sent to the city clerk on the morning of the Sept. 17 meeting.

From the city’s non-motorized transportation plan:

The plan identifies over 75 missing [sidewalk] segments along the major roadways. These areas are confronted with a number of challenges that have prevented sidewalks from being constructed. Steep grades, e.g., hills and ditches or swales as well as vegetation including trees and shrubs are often times found where a sidewalk gap exists. Although the Plan defines the gaps and recommends they be filled, staff has to define the improvement and develop projects for the construction of the sidewalks. At this time there is no cost estimate to complete the sidewalk system and that effort will need to take place as an essential first step. Once the cost to complete the system is known funds will need to be secured. City code requires that properties along a corridor where a sidewalk or non-motorized path is to be located participate in the cost of the improvement to the extent that the property benefits from that improvement.

The resolved clause of Anglin’s original resolution read:

RESOLVED, That City staff will develop a 5-year program to fill sidewalk gaps;

RESOLVED, That City staff shall engage the public and give priority to school walk zones;

RESOLVED, That funding for the program shall come from Act 51 funds; and

RESOLVED, Staff shall present its program to Council during the FY14 budget cycle.

The memo to council offering city staff perspective cautioned against allocating Act 51 money to fund the program:

Act 51 funds cannot be used for “stand alone” sidewalk projects. The work would have to be done as part of a road improvement project. Saying Act 51 will fund the program without knowing the total cost of the program is risky. Act 51 is what is used for street maintenance (snow plowing, pot hole repairs, some street sweeping, traffic sign maintenance, signal maintenance and upgrades). The sidewalk program could take a significant amount of funds. Additionally, I would think it would be desirable for attorney’s opinion on funding as it relates to special assessment. Sidewalks have been built using special assessment funds, developer investments or grants. Is there an equity issue by leaving the special assessment process/ contributions out?

Sidewalk Gaps: Public Comment

Kathy Griswold expressed her support for the program to eliminate sidewalk gaps. She said it was important to balance the interests of special groups against the “silent majority.” She pointed to a location on the side of Geddes Road that was in need of attention.

Sidewalk Gaps: Council Deliberations

Mike Anglin (Ward 5) described the proposal as emerging from a variety of community interest groups. He noted that the proposal gives priority to school walk zones. He felt that was important due to the decrease in school bus service, which meant that children are walking farther to school. He described the proposal as giving the effort to eliminate sidewalk gaps a “shot in the arm.”

Sabra Briere (Ward 1) proposed a friendly amendment that instead of specifying Act 51 as a source of funds, the clause on funding should be changed to read: “Staff shall present options for funding this program during the FY 2014 budget cycle.”

But Anglin wanted to include a mention of Act 51 in the resolution.

City administrator Steve Powers cautioned against specifying Act 51 as a source of funds for eliminating stand-alone sidewalk gaps. He didn’t want to mislead anyone. Hearing that from Powers, Anglin agreed to Briere’s amendment.

Carsten Hohnke (Ward 5) wondered if the city didn’t already have a plan for eliminating sidewalk gaps – the city’s non-motorized transportation plan. Craig Hupy, the city’s public services area administrator, told Hohnke that the non-motorized plan identifies the locations of gaps, but it’s not exhaustive. There are locations lacking sidewalks that are not part of the non-motorized plan, he said. It’s the larger gaps on the more heavily traveled streets that are included in the plan, Hupy said.

Hohnke ventured it would it be fair to conclude that on approval of the resolution, the city staff would be integrating the non-motorized plan with a larger program. Hupy allowed that was true, but told Hohnke that a gap in knowledge had been identified – as to where all the sidewalk gaps are in the city. Hupy didn’t have confidence the city has a complete picture of where the gaps are.

Christopher Taylor (Ward 3).

Sandi Smith (Ward 1) raised the equity issue, by noting that over the last year, residents of Ward 1 have been talking about Newport Road. Various options of bike lanes or sidewalks had been considered, she said. A real obstacle was the fact that the residents who live along Newport would likely be the funders of the improvement – through a special assessment – whereas the residents who live behind those residents would be the actual beneficiaries. After some back and forth with Hupy, Smith indicated she wouldn’t support it due to the equity issue.

Christopher Taylor (Ward 3) said he values the sidewalks in his neighborhood and he thought the equity issue was an important one. But he criticized the resolved clauses on the resolution as indefinite. He proposed a wholesale replacement of all the resolved clauses with the following:

Resolved: The city administrator is hereby directed to provide a report to the city council prior to Sept. 15, 2013 regarding the feasibility and if appropriate, the methodology for filling sidewalk gaps throughout the city of Ann Arbor.

The goal of the resolution is to develop a plan and explore whether the plan is feasible. He felt that this resolution was a cleaner way of going about it.

Margie Teall (Ward 4) questioned the long lead time. Taylor said it was his understanding that this was an appropriate timeframe, based on his conversation with city staff. Teall alluded to an ongoing conversation with neighbors on Scio Church Road, who were hoping for something to move quicker than that. Taylor ventured that if the report were done earlier, then it’d be done earlier.

Hupy told Teall that he didn’t see that night’s resolution as conflicting with the project that might be developed for Scio Church Road.

Mayor John Hieftje said he had doubts that the equity issue can be surmounted. Residents had made significant expenditures through special assessment by the city. On one occasion, a special allowance was made, but residents still paid, Hieftje said.

Jane Lumm (Ward 2) said she had liked the part in the friendly-amended original resolution that referred to the budget cycle.

Stephen Kunselman (Ward 3) asked Powers what the budget projections were – he recalled a deficit was being projected for next year. Powers noted that those had been very early projections and there might be a deficit.

Kunselman said he was a little hesitant to go too far ahead by allocating staff time to this. He called it a daunting effort. It could be misleading to the public, who might think that the city was going to solve sidewalk gaps in the coming year – but they won’t be eliminated in that timeframe. He called it nothing but “teasing” the neighbors and a little bit much to “chew on right now.” He noted that he lives in a neighborhood with no sidewalks.

Briere said that one way or another, the idea is to get the city staff to start thinking about how to improve the process of filling sidewalk gaps. That can be done with a tighter or looser timeframe. There are so many critical gaps on routes to school or adjacent to parks that create problems for residents throughout the city. She thought concerns about the budget impact were reasonable. She described the conversation as one that has not been around the council table but rather in the neighborhoods as people struggle to get to their designations. Taylor’s amendment was reasonable, she felt, but provides less guidance, because it does not prioritize the school walk zones. She was not enthusiastic about the longer timeframe.

Hieftje said he had a problem with the whole thing. If there were to be a priority, then school walk zones would be important.

Smith noted that if you look at where elementary schools are located, just by their nature, you’ll prioritize kids walking to school. For her, it was the equity issue.

Outcome on Taylor’s amendment: The council approved Taylor’s amendment. Voting for it were mayor John Hieftje, Sabra Briere (Ward 1), Tony Derezinski (Ward 2), Christopher Taylor (Ward 3), Stephen Kunselman (Ward 3), Margie Teall (Ward 4), Marcia Higgins (Ward 4), and Carsten Hohnke (Ward 5).

Derezinski expressed concern that the whereas clauses indicated the city is aware of various dangerous conditions. He wondered if it was potentially a legal liability for the city to recite that list of dangerous conditions. City attorney Stephen Postema told Derezinski that the recitals were general enough that it did not pose a risk.

Left to right: Tony Derezinski (Ward 2), Jane Lumm (Ward 2) and Christopher Taylor (Ward 3).

Briere noted that the resolution is about sidewalk gaps – that it did not mean that a whole subdivision necessarily needs to have sidewalks added.

Kunselman indicated he felt like the city was addressing the issue over time and that the council doesn’t need a report.

Responding to the idea that the report would overburden staff, Teall asked Powers if it would it be too much. Powers responded by saying essentially that if the council directs it, the staff will do the work.

Briere felt the resolution strengthens the city’s position as it participates in discussions with the school district about getting kids to school. She wanted elimination of sidewalk gaps to become a priority.

Lumm felt the resolution focused some needed attention on sidewalk gaps. She felt it’s reasonable to have the city administrator come back a year from now with a report on whether it’s feasible.

Hieftje felt like the ability to actually address the gaps would not come until the 2015 budget.

Hohnke felt it’s important to recognize that sidewalk gaps are not the only mobility issue. He wondered why the council would elevate sidewalk gaps above pedestrian islands, midblock crossings, or bike paths. He felt the non-motorized plan already addressed the issue.

Outcome: The amended resolution failed, receiving only five votes on the 11-member council. It received support from Mike Anglin (Ward 5), Anglin, Sabra Briere (Ward 1), Jane Lumm (Ward 2), Christopher Taylor (Ward 3), and Margie Teall (Ward 4).

Footing Drain Disconnect Program

The council considered a resolution to suspend temporarily the city’s footing drain disconnect program in the area of the Lansdowne neighborhood on Morehead and Glen Leven. The resolution was added to the council’s agenda on Friday, Sept. 14 before the Monday, Sept. 17 council meeting. It came in the context of a meeting held by city officials with neighborhood residents at the Pittsfield branch of the Ann Arbor District Library on Aug. 22. At that neighborhood meeting, residents called for a moratorium on the footing drain disconnect program.

The program was created in 2001 by the city, in response to backups of sanitary sewers into residents’ basements during heavy rains. The problem is caused by the connection of footing drains to the sanitary sewer system, instead of to the stormwater system. At one time, such connections were consistent with city code, but they are now prohibited. The existing connections, however, put more stormwater into the sanitary system than it can handle. The footing drain disconnect program requires residents to install sump pumps in their basements as part of the disconnection from the sanitary system.

In the general vicinity of the Lansdowne neighborhood, where some houses have already had sump pumps installed as part of the program, residents have reported that during heavy rains, the overland stormwater flows and the sheer volume of water in the city’s stormwater system prevent sump pumps from being effective. The water that’s pumped from the sump to the surface simply cycles back into the sump and results in flooded basements.

The council’s Sept. 17 resolution suspending the program acknowledges that the area “has encountered unique, historical creek bed patterns and overland storm water drainage issues, which have impacted the implementation of the FDD [footing drain disconnect] program …” The resolution further acknowledges that “communication between this area and the city needs improvement …”

The city council heard complaints from residents in that area during public commentary earlier this spring about localized flooding in the vicinity. And at its Aug. 9, 2012 meeting, the council had directed staff to begin negotiations with the Washtenaw County water resources commissioner to find “opportunities for stormwater conveyance and stormwater quality improvement in the area of the Malletts Creek drainage district bounded by Ann Arbor-Saline Road upstream to I-94 and Scio Church Road.” [.jpg of partial area map] The resolution approved by the council on Aug. 9 directed staff to bring an agreement to the city council with the water resources commissioner by Oct. 1, 2012.

That council directive came two days after the Aug. 7 primary election was held. Results from the precinct in Ward 4 where the flooding has taken place were nearly decisive enough in favor of challenger Jack Eaton to win the Democratic nomination over incumbent Margie Teall. But Eaton’s total fell short of Teall’s by 18 votes across the ward. And a recounted total put the difference at 20 votes.

The resolution suspending the footing drain disconnection program for the specific area of the city does not specify a date by which it might be re-activated. However, the resolution directs several actions, including: “Analyze and/or address existing issues in the local stormwater system to improve stormwater drainage/conveyance and address the existing surface flooding that residents are experiencing in this area. Clarify the methods and consequences of opting out of the program.”

Footing Drain Disconnect: Council Deliberations

Marcia Higgins (Ward 4) told the council that she and Margie Teall (Ward 4) were bringing the resolution forward after much discussion with residents in the Lansdowne neighborhood – the Village Oaks area as well as Glen Leven. Based on several heavy rains, the city was experiencing overland flooding in three areas where it had not been seen before.

City administrator Steve Powers and Marcia Higgins (Ward 4) during a recess in the Sept. 17 meeting.

In March of this year, she said that a rain had settled over the area of the city for about an hour and a half that had generated an “overland water issue.” In addition, there had been more problems with the footing drain disconnect program in this area of the city than anywhere else. She stressed that the action that the council was being asked to take had been requested by the neighbors. She asked Craig Hupy, public services area administrator, to brief the council.

Hupy described the footing drain disconnect program in other parts of the city as relatively straightforward.

In this area, however, he said the land was heavily laced with historical creek beds, which are now “expressing themselves.” He showed the council some slides that overlaid 1947 aerial photography with current building footprints. When the footing drain disconnect program was first started, he said, the city did not have the ability to match up the aerials against the current built environment. That’s one of the tools that the city used to look at the March 2012 storms and try to figure out “what the heck was going on.” The city is now taking a pause to re-study the area.

Hupy showed the council a slide of the overlay in the area of Churchill. He noted that the dark squiggly lines are creekbeds and that a number of homes are sitting in historic creekbeds. That has two effects, Hupy said. One is that the footing drains in that area are “very productive” – that is, a lot more water flows into them than anticipated. Another effect is that the water will want to follow the path of the historic creekbed, so there are overland flow issues.

Hupy then showed a slide of the Village Oaks area, with an orchard to the left, and historic creeks running through where some of the current houses are on Village Oaks. He showed the council how Mallets Creek had been shoved to the south to get it out from under houses that would otherwise be sitting in a creekbed.

Jane Lumm (Ward 2) had a question about the developer mitigation program, which the resolution would leave in effect. That program requires that when a development adds flow to the sanitary system, the development must remove from the system – through footing drain disconnection elsewhere – 1.2 times the amount that the development would add. It’s a program that holds the system harmless to increased development, Hupy said.

Hupy noted that as the city has disconnected footing drains, they have been monitored. The city has also monitored the run times on the sump pumps that the city has installed. Some of the run-time monitors have been on pumps since Day 1, but others have been moved around to different locations in the system. From that monitoring, Hupy said, the city has extrapolated to estimate what removals of stormwater are being achieved from the sanitary system. But the city has not looked at the sanitary system itself to confirm the estimates from this method. The system study would likely be “in seven figures” Hupy said, and is already programmed as part of the city’s capital improvements plan. It would be paid for by the sanitary sewer fund, Hupy said.

Left to right: city administrator Steve Powers and public services area administrator Craig Hupy.

Sabra Briere (Ward 1) asked about the last two resolved clauses – the developer mitigation program and the ability of a property owner to proceed with a footing drain disconnection. Hupy clarified that this was included simply to give clarity. Briere wondered if there were a time constraint for acting that night, as opposed to postponing it for three weeks.

Hupy calculated backwards from spring 2013 to undertake a systemwide study – in time to have monitors installed in the system to measure the spring rains. From getting council approval to hiring a consultant to issuing a request for proposals, Hupy said he’d like to get started sooner not later.

Stephen Kunselman (Ward 3) confirmed with Hupy that the suspension of the program would not affect any of the consent orders about discharge into the Huron River, which Hupy thought had been removed back in 2006.

Responding to a question from Kunselman, Hupy said that the study the city will be working on with the Washtenaw County water resources commissioner’s office are separate and different studies – but they will feed back and forth to each other, Hupy said.

About the footing drain disconnection program, Kunselman wondered: When does it end?

Hupy responded to Kunselman by saying the last major backup was in 2000. He noted that in the five study areas that were the main focus of the initial program, the city had tackled a lot of the problem. But he estimated that only about 50% of identified problems had been addressed. Another 50% exists in the rest of the city. The attractiveness of the approach the city is taking, he said, is that it’s incremental. You can keep chasing the problem as you identify specific problems. For the “piped solution,” you have to start at the treatment plant and work your way back. When the footing drain disconnect program was established, Hupy said, it was thought it’d take decades to complete the project. Starting around 2000, not quite 50% had been disconnected. He added that those had been the easier 50%, because they were clustered. Hupy indicated that he hoped he would not still be addressing the council about the program when it ends.

Responding to councilmember questions, Hupy described the negative impacts of pursuing a solution that simply made the sanitary sewer pipes bigger – among them, that it would require a larger wastewater treatment plant.

Outcome: The council voted unanimously to suspend temporarily the footing drain disconnect program.

Hazard Mitigation Plan

The council was asked to approve an updated hazard mitigation plan.

The plan is required by the Federal Emergency Management Agency for grant funding. The city has received a grant from FEMA for the demolition of two city-owned properties located in the floodway at 721 N. Main, but during the processing time for the grant, the city’s hazard mitigation plan lapsed. So until the city has an updated hazard mitigation plan, the grant money from FEMA will not be available.

The city recently hired a new emergency management director, Rick Norman, who was introduced to the council at its Feb. 21, 2012 meeting. Updating the plan was one of Norman’s priorities.

The demolition of the buildings at 721 N. Main factors into planning for the North Main and Huron River corridors. The council has appointed a task force to study the corridor, and has directed that the group make recommendations on the use of the 721 N. Main property by Dec. 31, 2012. The city’s current hope is to make the property the subject of a Michigan Department of Natural Resources trust fund grant application, in the annual competition for such awards.

The basic ranking of potential hazards, which are all discussed in detail in the plan, is: (1) Convective Weather (Severe Winds, Lightning, Tornados, Hailstorms); (2) Infrastructure Failures; (3) Severe Winter Weather Hazards (Ice/Sleet Storms and Snow Storms); (4) Fire Hazards: Structural Fires; (5) Hazardous Materials Incidents: Fixed Sites; (6) Extreme Temperatures; (7) Hazardous Materials Incidents: Transportation; (8) Flood Hazards: Dam Failures; (9) Flood Hazards; (10) Civil Disturbances; (11) Transportation Accidents: Land and Air; (12) Public Health Emergencies; (13) Sabotage & Terrorism; (14) Petroleum and Natural Gas Pipeline Accidents; (15) Nuclear Power Plant Accidents; (16) Fire Hazards: Wildfires; (17) Oil and Gas Well Accidents; (18) Nuclear Attack; (19) Drought; (20) Earthquake, Subsidence; (21) Fire Hazards: Scrap Tire Fires; and (22) Infestation.

Outcome: The council approved the hazard mitigation plan without significant deliberations.

Eden Court Rezoning

The council was asked to consider final rezoning of the property at 5 W. Eden Court so that it’s designated as PL (public land). It’s immediately adjacent to the Bryant Community Center. The Ann Arbor city council voted nearly a year ago, at its Sept. 6, 2011 meeting, to appropriate $82,500 from its open space and parkland preservation millage to acquire the property.

The 2011 taxes on the property were estimated at $1,400, which will be eliminated from the city’s tax base. The parcel is expected to be used to expand the community center’s programming services. It could also be used in other ways in support of the city’s parks and recreation system.

During her staff report given to the city planning commission on June 5, 2012, city planner Alexis DiLeo said the property contains a single-family home that will be used by the community center to expand its operations. Eventually, the center would like to renovate the interior and build an addition to connect the two buildings, she said. The center is managed under contract with the nonprofit Community Action Network. CAN gave an update on its activities most recently at the Aug. 21, 2012 meeting of the city’s park advisory commission.

Outcome: Without discussion, the council voted unanimously to approve the rezoning of the Eden Court property.

Seneca Avenue Rezoning

The council was asked to direct planning staff to initiate the rezoning of six parcels on Seneca Avenue, Onondaga Street and Geddes Avenue from R1B (single-family dwelling district) to R1C (a different type of single-family dwelling district). Property owners had requested the rezoning.

According to the staff memo accompanying the resolution, rezoning the six parcels to R1C would make the entire block R1C zoning, and would make three existing non-conforming lots conform with the size requirements of R1C (7,200 square foot lot area and 60 foot lot width). Also, the three existing double lots could be divided at some time in the future to create additional single-family lots.

Tony Derezinski (Ward 2) led off deliberations by noting that the rezoning had been requested by residents of the area. Because of the age of the current zoning, and development that went in different directions, he said, some of the parcels are non-conforming. Residents had approached him and asked him to present the resolution.

City planning manager Wendy Rampson indicated that the planning staff is not really sure why the parcels were zoned differently, except that the lots are larger. The city’s master plan recommends single-family zoning for the area, she said. When the planning staff examines it more closely, she said, a historical search would be done, and planning staff would come up with a recommendation.

Sabra Briere (Was 1) asked Rampson to review the procedure for land division, which would be allowed if the rezoning were given approval. Rampson said it requires application to planning and development, but it’s not required that the planning commission or the council approve it. The city is essentially obligated to approve an application for land division, as long as it meets zoning. Responding to a question from Stephen Kunselman (Ward 3), Rampson indicated that the division of land can’t create prohibited configurations – for example, there must be vehicular access, and a land-locked parcel is not allowed.

Rampson indicated that only a preliminary review had been done. The initial review indicated that R1C would be appropriate.

Carsten Hohnke (Ward 5) noted that by approving this resolution, the council would be asking the planning staff to take on the task of reviewing the rezoning. He wondered if the planning staff had sufficient capacity to undertake that review and still keep the citywide R4C/R2A review process on track. Rampson responded to Hohnke by saying that planning staff would essentially treat this rezoning request as a development review. It would not require the same scale of effort that the rezoning of Golden Avenue had required several years ago. She added that it seems clear that the neighbors are all in agreement. She concluded that it was a long way of saying it should not be a problem for planning staff to handle.

Outcome: The council  initiated the rezoning of six parcels from R1B to R1C.

Light Rescue Fire Truck

The council was asked to authorize the purchase of a light rescue truck, to be staffed with two firefighters at a cost of $264,597. The purchase is to be made from Ferrara Fire Apparatus.

The light rescue truck will replace a heavy rescue vehicle, which is staffed with three firefighters. The heavy rescue vehicle dates from 2001 and was scheduled for replacement in 2015. It will be retained by the department as a reserve engine. An even older heavy rescue truck, dating from 1991, which is currently in reserve, will be sold at auction.

The city is contemplating a reconfiguration of its fire stations, which would re-open an old station but close two others, leaving three stations. For more detail on the station plan and the city’s rationale for it, see Chronicle coverage: “A Closer Look at Ann Arbor’s Fire Station Plan.” A series of public meetings to discuss the fire station plan has been scheduled.

Outcome: Councilmembers approved the purchase of a light rescue truck.

Communications and Comment

Every city council agenda contains multiple slots for city councilmembers and the city administrator to give updates or make announcements about important issues that are coming before the city council. And every meeting typically includes public commentary on subjects not necessarily on the agenda.

Comm/Comm: Police Report

Chief of police John Seto gave the council an update on a few incidents that had happened over the last few weeks. Since the student move-in, there’ve been large crowds on South University and some assaults in the student area. There were also three robberies that took place during the same night, all with a similar description, he said. By not filling some specialized positions, Seto said, the AAPD had been able to respond to that situation with increased staffing, adding positions to patrol. That’s in addition to overtime positions that are generally filled on weekends in September, to respond to the added call load.

Seto told the council he’s also been meeting with the University of Michigan police chief to coordinate information. Officers have been making contact with and working with business establishments on South University Avenue. On weekend nights they’ve deployed officers on foot and on bicycles to respond to the large crowds there. He concluded this response by AAPD has had an impact, because no serious incidents were reported from the last weekend. The department would continue with that approach as long as there are large crowds in the area. He also reported that significant arrests have been made.

He alerted the community that a meeting for neighborhood watch captains would be held on Thursday, Sept. 27 from 6-8 p.m. at Burns Park Elementary School. That will be the first of four such meetings, Seto said.

Mayor John Hieftje asked about the amount of overtime that was being generated by the department’s response to the situation on South University. Seto indicated that the amount of overtime used depends in part on the number of home football games – and this year there are only six. He’s been staffing with overtime when needed.

Sabra Briere (Ward 1), looking ahead to the next fiscal year, wondered if it would be useful to hire additional officers rather than using overtime. [The city of Ann Arbor's Open Book shows that year-to-date, a bit less that a quarter of the way through the fiscal year, $189,265 has been spent out of an overtime budget of $898,968, or 21% of the budgeted amount.]

Comm/Comm: Washtenaw Avenue

Reporting from the planning commission, Tony Derezinski (Ward 2) gave an update on Washtenaw Avenue, which he described as a multi-jurisdictional corridor – covering the city of Ann Arbor, Pittsfield Township, Ann Arbor Township and the city of Ypsilanti. He characterized as “results” of the Re-Imagine Washtenaw project the Arbor Hills Crossing development, which will include very wide sidewalks. He pointed to a future “super transit” stop that will be located near the intersection with Platt Road. He also reported on a Michigan Dept. of Transportation non-motorized project that’s going in under US-23. People will be able to walk underneath US-23, he said.

Comm/Comm: Disabilities

Tony Derezinski (Ward 2) reported that he and Kirk Westphal, who serves on the planning commission with Derezinski, had contacted AARP, which is very interested holding some kind of disability summit in Ann Arbor. The details are not finalized, but SEMCOG, AATA, the Michigan Municipal League, Michigan State Housing Development Authority (MSHDA), and the University of Michigan have expressed interest.

Comm/Comm: Praise for Demolition

Sandi Smith (Ward 1) mentioned that two buildings in Ward 1 have been removed: the former St. Nicholas Church on North Main Street, and 219 W. Kingsley. The depression that’s left at the Kingsley property will form a rain garden. Smith allowed that she usually doesn’t applaud the destruction of things.

Comm/Comm: Sidewalk Repair Using Risk Fund

Tony Derezinski (Ward 2) called the council’s attention to the fact that the board of insurance minutes, which were included in the consent agenda, included a resolution that provided for use of the city’s risk fund to pay for sidewalk repairs adjacent to properties located in a township. City treasurer Matthew Horning was asked to the podium to explain that many township islands exist in the city. The sidewalk millage approved by voters last year does not allow for use of millage funds to repair sidewalks next to township properties. The board of insurance felt it would be a prudent use of risk funds to mitigate risk and to improve safety, he said.

Comm/Comm: Sustainable Living

Kermit Schlansker told the council he’d attended a recent lecture by environmentalist Bill McKibbon. Schlansker said he was disappointed that although the problem was defined, there were no solutions. We have to face up to the fact that we must change our lifestyle to survive, he said. We don’t need more economical cars, we must eliminate them, he said. The first element of the plan is to plant at least 10 trees for every person. That would mean a million trees for Ann Arbor, he said. Volunteers would be needed, who could be taught how to plant trees from seeds – but it’s something that first graders can learn to do.

The process of building a sustainable world is too big a project for the city, Schlansker allowed, but the city could build a model for how that might work. The only geometry for shelter that is sustainable is apartment houses, he contended, with factories located nearby. We need to cut energy expenses by 60% and establish experimental energy farms. We need to learn how to use sewage for fertilizer. To save our children, he contended, we must give up single-family houses and cars, and use geometry and hard worked to build a sustainable society.

Present: Sabra Briere, Sandi Smith, Tony Derezinski, Jane Lumm, Stephen Kunselman, Christopher Taylor, Marcia Higgins, Margie Teall, Carsten Hohnke, Mike Anglin, John Hieftje.

Next council meeting: Oct. 1, 2012 at 7 p.m. in the second-floor council chambers at 301 E. Huron. [Check Chronicle event listings to confirm date]

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