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FDD Litigation

A footing drain is a system of drain tiles installed around the footings of a house meant to collect ground water and direct that water away from the home to keep the basement dry. Until 1982, the City of Ann Arbor allowed home builders to connect footing drains to the waste water system. This was convenient because the City's waste water pipes were buried at a depth that allowed footing drains to drain by gravity.

Beginning in 1982, homes were required to connect footing drains to the storm water system. Because the storm water system is buried at a depth that is higher than the footing drain tiles of a home, connecting to the storm system requires a sump pump.

In the early 2000s, the City decided to require existing homes to disconnect their footing drains from the waste water system and connect them to the storm water system. In ideal circumstances, this makes sense. There is no reason to take relatively clean footing drain water and process it in our waste water treatment system. On the other hand, the new requirements imposed a retroactive building code requirement on homes that met the building code at the time they were built. The installation of a sump pump and the plumbing and electrical system necessary for the disconnect is quite intrusive.


Footing Drain Disconnects
mLive.com reported that the Circuit Court has dismissed the original FDD suite: Lawsuit challenging controversial city program dismissed. It is expected that the Plaintiffs will appeal from this judgement.

The City has announced that the residents who have problems with their FDD sump pump instalation contact the City by January 31, 2016. 
Participants in the 2003-2013 Footing Drain Disconnection (FDD) program are encouraged to report wetness in their basement or issues which may be related to a footing drain disconnection or sump pump installation to the city's consultants by calling 734.466.4480. The deadline for reporting issues is Sunday, Jan. 31, 2016. Residents who have previously reported an issue in the 2013 FDD Survey are in the queue for follow up. 
 
In the early 2000s, the City decided to require existing homes to disconnect their footing drains from the waste water system and connect them to the storm water system. For some hot owners this helped with sewer backups. Other home owners complained of problems caused by the disconnects. In September 2012, the City suspended it mandatory disconnect program to allow time to review the effectiveness of the program. In 2014, a lawsuit was filed against the City claiming that the requirement that existing homes that met all building codes at the time of initial occupancy install sump pumps violated the Constitution. That litigation continues in the Washtenaw Circuit Court. In 2015. another suit was filed, this one as a class action, challenging the disconnect program. For more detail, see our FDD page or the neighborhood web page Ann Arbor Underwater.The complaint can be viewed by clicking here.

The class action complaint was filed on October 30, 2015 and mLive.com posted a news article on November 11, 2015. Click here: Ann Arbor faces another lawsuit over controversial city program.

The program to assess the mandatory disconnect program concluded. The City is now attempting to address problems identified by resident. 

Participants in the FDD program are encouraged to report issues with their sump pump installation or water in the basement to the city’s consultants by Jan. 31, 2016, by calling 734.466.4480 or using the form online at www.a2gov.org/sumppumps




Takings and Inverse Condemnation

Some residents who have had the disconnection and sump pump installation have challenged the City's mandatory program. The footing drain disconnect litigation is based on legal theories of "takings" and "inverse condemnation". The following discussion is meant to explain the theories, not to predict whether the theories will prevail.
The United States Constitution prohibits the government from taking private property without just compensation ("nor shall private property be taken for public use, without just compensation"). When the government wishes to obtain private property it can either buy it, or if the owner is unwilling to sell, the government may obtain the property through eminent domain proceedings. Essentially, eminent domain proceedings involve showing that the property will be used for the public good and that the owner will receive just compensation.
Where the government takes actions that are arguably a taking without compensation, the property owner may bring an action to determine whether the action was a taking and if so what is just compensation for that taking. This action is called inverse condemnation.
The U.S. Supreme Court has found that where the government required the installation of private property (cable TV wires) on the property of another (apartment landlords) that requirement constituted a taking without just compensation.
Plaintiffs in the FDD litigation allege that the City's requirement that they allow the installation of sump pumps in their homes is a takings and requires just compensation. These homes built before sump pumps were required in the building code. When the homes were originally built and occupied, they met the requirements of the building code. The required sump pump occupies the private property of the home owner.
The government may adopt and apply new building code regulations where the new regulations relate to public health and safety. For example, they may require installation of smoke detectors. In the FDD litigation, a judge noted that the City's FDD ordinance allowed a home owner to avoid the installation of a sump pump by paying a monthly fee ($100). The judge noted that the City cannot argue that the requirement is necessitated by health and safety if a home own can pay to get out of compliance.
The questions for the court are (1) was the required installation of sump pumps an occupation of private property that constitutes a takings, and if so, (2) what is the just compensation for that taking. Nearly 2,000 homes have had sump pumps installed under the FDD ordinance and about another 1,000 have had such installations under the City's requirement that developers offset new demand on sewers by reducing demand through installation of sump pumps in private homes. Just compensation, if Plaintiffs succeed, could quickly add up to substantial amounts.


News Articles
The following is  a list of news articles about the program and the litigation challenging the program:

September 17, 2012 Ann Arbor Chronicle - Footing Drain Program Temporarily Disconnected.
    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 disconnection program requires residents to install sump pumps in their basements as part of the disconnection from the sanitary system.

January 19, 2014 Ann Arbor Chronicle - Backups: Lawyers, Sewers, Pumps This is a great background piece that describes footing drains, sewer problems that led to the disconnect program, the problems that arose from that program and warnings of the coming litigation.

February 28, 2014 Ann Arbor Chronicle - Lawsuit Filed on City Footing Drain Program.
    A lawsuit has now been filed in Washtenaw County’s 22nd Circuit Court challenging the legal foundation of the city of Ann Arbor’s footing drain disconnection (FDD) ordinance.

March 2014 Ann Arbor Chronicle - Footing Drain Lawsuit Moves to Federal Court.
    The city of Ann Arbor has moved into federal court a lawsuit filed over its footing drain disconnection ordinance. The case was originally filed in the 22nd circuit court in Washtenaw County.

May 5, 2014 Ann Arbor Chronicle - CDM Smith $750K Contract Extension Delayed.
    A $748,106 contract extension with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program has been postponed by the city council until June 2, 2014. City council action to postpone the contract extension came at its May 5, 2014 meeting.

May 28, 2014 Ann Arbor Chronicle - Footing Drain Lawsuit Back to State Court.
    Cohn then commented on the briefs filed in the case by the city of Ann Arbor, calling them “jurisprudential legerdemain.” [Note, one definition of legerdemain is "deception; trickery"]

June 3, 2014 Ann Arbor Chronicle - FDD Contract Extended for CDM Smith.
    A contract extension with CDM Smith Inc. for continued work as part of Ann Arbor’s footing drain disconnection (FDD) program has been approved by the city council. The vote at the council’s June 2, 2014 meeting was 6-2, over dissent from Jack Eaton (Ward 4) and Sumi Kailasapathy (Ward 1). Mike Anglin (Ward 5) was absent.

    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. 

July 3, 2014 Ann Arbor Chronicle - Footing Drain Lawsuit: City Survives Motion.
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.

August 23, 2014 Ann Arbor Chronicle - Shelton to Hear Motions in FDD Case.

August 27, 2014 Ann Arbor Chronicle - FDD Lawsuit: Shelton Delays on Sanctions.

August 27, 2014 Ann Arbor Chronicle - Decision on Sanctions Shifts from Shelton.
Shelton questioned assistant city attorney Abigail Elias closely on the matter, and appeared to indicate some agreement with plaintiffs’ contention that the city had, in its brief filed with the court, mischaracterized the plaintiffs’ position. And during back-and-forth with Shelton, Elias herself stopped just short of admitting that her choice of the word “concede” was a misrepresentation of the plaintiffs’ legal position – something she described as possibly an overstatement in the course of zealous representation of her client.

Note: the Ann Arbor Chronicle stopped publishing on September 2, 2014. We will rely on the less detailed reporting from mLive from this point forward.

November 22, 2014 mLive - Judge denies city of Ann Arbor's motion to throw out sump pump lawsuit.
    Washtenaw County Trial Court Judge Timothy Connors last week denied a motion from the city of Ann Arbor to throw out a case pitting the city against homeowners upset with the city's footing drain disconnection program.

No coverage of the litigation on mLive. The suit is expected to go to trial in spring or summer 2016.

On October 30, 2015, a separate, similar suit was filed as a class action complaint in the Washtenaw County Circuit Court. The complaint asserts claims on behalf of all Ann Arbor residents who had FDD sump pump installations (except the plaintiffs in the Yu case). The complaint alleges that by requiring homeowners whose homes met then-current building standards a the time they were initially occupied to install FDD sump pumps, the City engaged in inverse condemnation. In essence, an action for inverse condemnation is a claim that the government engaged in a "takings"  under the Constitution without providing compensation for that takings. The complaint can be viewed by clicking here.

November 11, 2015 mLive  Ann Arbor faces another lawsuit over controversial city program (about the October 30 class action filing).




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