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Lawton Area

The neighborhoods around Lawton Elementary School are organizing to address their concerns about flooding and the footing drain disconnect program. We thought it might be helpful if to explain the neighborhood's concerns, as we understand them. We do not claim to speak for those neighborhoods, but merely wish to pass along information.Their web site is AnnArborUnderwater.

The neighbors have three areas of concern:

1. Neighborhood flooding - storm water in the streets and on the surface across the area during severe weather events.
2. Footing drain disconnect (FDD) program - to remove storm water from the waste water system.
3. Basement flooding - sump pump installation under the FDD program causes basements to flood.

Let me address each item.

1. Neighborhood flooding.

The Lawton neighborhoods have a long history of storm water flooding. In 1997, the City commissioned a study of the problem. I do not have a copy of the study and have not had the opportunity to read it. I have been told that the study concluded that the storm system in these neighborhoods (roughly the area surrounded by Scio Church Road, Ann Arbor Saline Road and I-94) have significant storm water problems and inadequate storm drain infrastructure. Since 1997, the area has seen further development which increases the demand placed on the storm system. Additionally, more frequent severe weather events have caused increased pressure on the system.

Because houses were built with a design that connected footing drains to the sewer, rather than the storm, system, the waste water system sometimes backed up into residents' basements. Even without the waste back ups, the amount of storm water entering the waste water sewers had the potential to overwhelm our waste water treatment plant.

The Lawton neighbors understand and support the goal of removing storm water from the waste water system.

2. Footing drain disconnect program.

To address the pressure placed on the waste water system by water from footing drains, the City studied various options to take the storm water out of the waste water system. Of the various options available, the FDD plan was preferred by local activists. The Council approved an ordinance that prohibited use of the waste water system for storm water disposal. [A pdf file containing the ordinance is attached at the bottom of this page]  That ordinance also provides that the City will reimburse residents for the cost of installing a basic FDD and sump pump system.

The FDD program requires a sump pump because the storm water pipes are installed at a depth less than the depth of the usual drain tiles beneath a house's foundation so the water must be pumped uphill. Installation of a sump pump in a basement requires opening a hole in the basement floor. That hole creates an unrestricted route for water in the drain tiles to the basement. The sump pump removes the water, so long as there is power for the pump and the pump is able to move the water into the storm drain system.

The FDD program provides payment for just a minimal system. Many residents have been told by "approved" contractors that the basic design is inadequate. Some residents have incurred the cost of additional sump pumps and/or battery back up systems. Additionally, the design for the FDD system calls for a 2 inch gap between the pipe coming from a basement and the pipe running to the storm system, just in case the system is overwhelmed. The gap is meant to allow back flow to be relieved by letting water run out of the pipes into the yard. But that just releases more water around the house's foundation, which reenters the drain tiles.
The neighbors discuss the 2 inch gap problem here: FDD Truth Squad - Those Famous Air Gaps.

The FDD installations are poorly designed. The installations often do not meet the specifications of the program, although the City requires an inspection before payment is made to the contractor.

Most alarming is that the homeowner must sign a waiver and indemnification agreement in order to receive payment for the FDD installation. The waiver seeks to protect the City from any liability for installation of the system. The indemnification clause seems intended to require the homeowner to defend the City from liability from third party law suits. For example, if your kid drowns in my basement when it floods because the FDD system fails and you sue the City for negligent design or something, the City would expect me to pay the cost of defending against that suit and would require me to pay any damages awarded to you by the court.

Please note that Craig Hupy told the Council that storm water has not cause the waste water treatment plant to overflow into the river since 2000. Moreover, he has told the Lawton neighbors that it may be unnecessary to have all neighborhoods in the City participate in the FDD program, although the ordinance does include any exceptions. The neighbors wonder why they are being required to install the system if others will not also be required to do so.

3. Basement Flooding

As mentioned previously, as early as 1997, the City acknowledged that the storm water system for these neighborhoods was insufficient for the amount of storm water present in the neighborhoods. The system was already beyond capacity before adding the extra water caused by additional development in the area and the extra water from more severe weather. Imagine a pipe that is trying to carry 105% of its capacity. Now think about adding water from the FDD sump pumps. Those sump pumps attempt to push water from drain tiles into a pipe that is already full. Without the ability to handle that extra load, the sump pumps fail to move the water into the storm system and basements fill with water.

Because the storm system is overwhelmed, surface water around these homes fails to drain into storm sewers and flows across yards and fills streets like rivers. A YouTube video of street flooding is linked on our page - Flooding.

Basements that never before suffered flooding, now do. The water is not sewage, it is storm water that has collected in a home's drain tiles and cannot be pushed into the overwhelmed storm sewers. Additionally, storm water in the streets and yards surrounding home that cannot be handled by storm sewers ends up in basements.

4. Neighborhood Concerns

The Lawton neighborhoods agree that storm water does not belong in the waste water system.

Because of the basement flooding problems, many neighbors do not agree that sump pumps are the best approach. The requirement that home owners allow the installation of these sump pumps in their basements raise significant questions, some of which could impose legal liability on the City.

At the time these homes were built and issued certificates of occupancy, the connection of drain tiles to the waste water system was deemed sufficient. To later impose the duty to allow the installation of sump pumps and the obligation to thereafter maintain those pumps may constitute a partial taking under the State and Federal Constitutions.

A taking occurs when the government's actions require a property owner to forfeit property or surrender some valuable aspect of that property. When the government takes or partially takes property, it must compensate the property owner for that taking. For example, the US Supreme Court heard a case where the City of New York required apartment building owners to allow cable TV companies to install the infrastructure for cable TV in their rental properties. [Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)]. The property owners did not deny that the requirement was beneficial to their tenants and the Supreme Court held that such benefit is irrelevant to a takings claim. The Court found that requiring such installation was a partial taking under the constitution. For a Wiki article explaining Loretto, click here.

It is my understanding that 2,200 homes have allowed the FDD installation. The Lawton neighborhoods are the first to raise the issue of a taking under the Constitution. The installation and maintenance of a sump pump is far more intrusive than a cable box and some wires (which were at issue in the Loretto case discussed above). Some residents of the neighborhoods have had to stop using their basements for purposes that are sensitive to humidity (any musical instruments, for example). Other neighbors have found it risky to leave town because of the possibility that the sump pump will fail or the design of the system will fail (ie, the "2 inch gap" problem) and their basement will fill with water. These impositions on homeowners are the "takings" for which they may seek compensation.

Significantly, the reimbursement of the cost for installing the sump pump system is not compensation for the City's intrusion into the affected homes. It is merely the cost incurred as a result of complying with the ordinance. The intrusion is separate and of a continuing nature.

The FDD program requires homeowners to participate under the threat of $100 per month fines and loss of reimbursement for the eventual installation. The City pretends that the program offers the valuable benefit of payment for the installation. But that reimbursement is available only if the homeowner signs the waiver and indemnification clause. These agreements are likely unenforceable and are another potential cause for litigation between the neighbors and City.

The manner in which the City has treated the significant problems residents in the Lawton neighborhoods have with flooding has created a very real push back. The neighbors' attorney estimates that liability for just the unconstitutional takings claims runs beyond $50 million dollars. The City's failure to compensate homeowners for basement flooding will only make this litigation more likely.

The recent moratorium on FDD installations is the very least the City can do. While it is important to remove storm water from the waste water system, it cannot be accomplished at the expense of homeowners. The City must devise a means of improving the storm water system in this area before proceeding with the FDD plan. Should the FDD plan proceed, the City must offer alternatives to basement installations. For example, perhaps sump pumps can be installed outside a house's foundation. City staff explain that exterior installations would be more expensive. If the cost of the takings claims is included, I think his calculations are wrong.

In conclusion, please do not take the actions of the neighborhoods as an attack on the need to separate storm and waste water. The neighbors seek to address all three problems - surface flooding, waste/storm water segregation and basement flooding. All three must be addressed at the same time. It is unacceptable to ask these neighborhoods to bear the burden that arises from addressing only part of these related problems.
Ann Arbor Neighborhoods,
Sep 24, 2012, 9:36 AM