The Ann Arbor Chronicle reports that on November 22, Washtenaw County Circuit Court Judge Timothy Connors refused to dismiss Yu v. City of Ann Arbor. The case, filed on February 27, 2014, revolves around a claim of unconstitutional takings and inverse condemnation. The plaintiffs in the case are three Ann Arbor residents who had their footing drains disconnected under the city’s Footing Drain Disconnect (FDD) program.
The Ann Arbor ordinance was enacted in 2001 and established a program under which property owners can be required to disconnect their footing drains from the sanitary sewer system. Its intent was to diminish the risk of sanitary overflows into the Huron River and of sanitary sewage backups in homeowners’ basements.
A consultant-recommended alternative to the expansion of the city’s sanitary sewer system, Ann Arbor records show in 2001 it was estimated the FDD would cost nearly $100 million to expand the city’s aging and aged sewer system—the cost is now estimated at closer to $300 million.
Rather than spend the money, the program was developed which would force thousands of residents to be disconnected from the system and require them to, instead, rely on sump pumps.
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.
DOES IT PASS THE SMELL TEST? IF YOU ASK ATTORNEY IRV MERMELSTEIN, THE ANSWER IS NO!
According to Irv Mermelstein, the FDD program “stinks” and the smell has little to do with the sewage backups. It starts with “pre-qualified” contractors selected to do the installations.
One of the “pre-qualified” contractors who has been given a significant share of the $20 million FDD market is a company owned by former city employees and founded shortly before Council adopted the FDD ordinance.
|Attorney Irv Mermelstein|
The lawsuit claims Ann Arbor'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.
From the February 27, 2014 complaint:
The mandatory disconnection of the Plaintiff’s footing drains and the forced installation of sump pumps and related equipment constituted a physical intrusion by the City, or others acting on its behalf or in its stead, resulting in a permanent physical occupation of the Plaintiffs’ property and a significant interference with the Plaintiffs’ use of their property.
The Chronicle reports that a physical occupation of a homeowner’s basement through a sump and a pump is a theory on which assistant city attorney Abigail Elias has already commented publicly.
Elias made the comments on January 9, 2014 to a citizens advisory committee that formed in connection with the city’s sanitary sewer wet weather evaluation (SSWWE). On January 9, Elias essentially reviewed the content of her November 25, 2013 memo for the committee, which came in part in response to an email sent by attorney Irvin Mermelstein on Oct. 29, 2013 to the consultant hired by the city to facilitate the committee’s work.
Elias explained the notion of “taking” by telling the committee that under the U.S. Constitution, a government cannot take private property without compensation. Elias told the committee: “If I condemn your land because I need to run a street through it, I have to pay you for that land.”
Should a class action suit by Mermelstein attract just 1,000 of the homeowners whose homes were disconnected from the city’s stormwater sewer systems and in whose homes sump pumps were installed, the payout could exceed an eight-figure sum.
And Mermelstein hints that he will depose Ann Arbor's former public services administrator Sue McCormick, who now heads the Detroit Water and Sewerage department. It was McCormick’s decision to shut off water to almost 30,000 Detroit residents in a get-tough effort to collect back payments.
And we know how that turned out!
I will be posting regular updates, but you can read the definitive account of the case at Mermelstein's blog, a2underwater.com.