Trumping the rights of the community as a whole

aasealHere we go again.  Ann Arbor is once again being sued over the footing drain disconnect program.  A small group of residents who hate their sump pumps are accusing the city of implementing an unconstitutional program that is an abuse of authority.  They have filed a class action suit against the city of Ann Arbor because of the mandate for footing drain disconnections that started back in 2001.   Per Ryan Stanton’s Mlive article from Novemebr 10, 2015,¹ the complaint alleges:

“The mandatory FDDs, and the resulting taking of plaintiffs’ private property and interference with their rights to the exclusive use and occupation of their homes, were initiated and completed without any steps taken by the city toward condemnation proceedings and/or payment of just compensation,” the suit states.
The complaint alleges the FDD work has been carried out with callous disregard for the health, safety and peace of mind of homeowners.
“The FDDs destroyed the foundation drainage system at houses that had been constructed and appeared to be functioning as designed and constructed decades ago and replaced it with a system that is burdensome, costly, unsafe and incompatible with the peace of mind and comfort the plaintiffs enjoyed,” the suit states.
“The FDDs were performed against the will of the plaintiffs, beginning in 2001. The city enforced its asserted right to require targeted residents to undergo FDDs by threatening financial penalties, potential liens and, possibly, the eventual loss of their homes. The plaintiffs herein seek an award of just compensation for such inverse condemnations, as hereinafter set forth, and any necessary injunctive and declaratory relief in connection with the implementation of such award.”

Now, this is not the first time that this group of residents has sued the city over the footing drain disconnect program.  Back In March 2014, a suit was filed on behalf of 2 sets of plaintiffs (not a class action case).²  That case is still pending, yet they filed the class action suit on top of it.  There was also another case previously that alleged that the city does not have enough infrastructure in place to handle rainstorms resulting in flooded basements but it was dismissed by a state court in December of 2014³ and ultimately was decided in  the City of Ann Arbor’s favor by the Michigan Supreme Court just last week (Nov 2015).4

The lead attorney on the class action suit is Irv Mermelstein, who says that the original case filed in March 2014 was a “test case”¹ and this class action case is a “case of a lifetime”.¹  He thinks that over 3000 people are due relief and that the city should have to pay out over $6.6 million per year in relief.

Really? $6.6 million PER YEAR that the city has to pay out.  That me and you have to pay out.  Remember the city is the governing structure for us the residents.  It is paid for by our taxes. When they get sued, we pay the bill.  This is not a large corporation with big pockets that are going to fork over a judgement, so if you are reading this thinking that the little guy is fighting the big, bad corporation, think again.  If Mermelstein wins his “case of a lifetime” all of us will pay.

Now, let’s review some information and facts on the background of the issue so you can decide if this sort of class action suit is justified in your mind.  My purpose in writing this post is so that others have the facts, so that they have the background information in which to analyze the issue.  The lawsuit insinuates things that I don’t think the facts support.

I am not going to go into the pros and cons of class action lawsuits in general.  Personally, I feel that this sort of class action lawsuit is frivolous, but would never want class action cases banned completely because they do have a function in society when a corporate entity has wronged a group of people for pure profit.

Background

Back in the day before 1980, houses were built with footing drains that captured rainwater near the foundation walls and directed it to the sanitary sewer system.  The city used a combined sewer for sanitary waste and rainwater which was standard and within code at that time.  Under current building code this is no longer allowed.

In the late 1990’s and early 2000s there were many Sanitary Sewer Overflows in the City of Ann Arbor (as well as in other municipalities) due to excessive rainfall overloading the sanitary sewer system.    Sewage backed up into basements along with sewage overflowing into the Huron River at times.

Combined Sewer Overflows (CSO)
A combined sewer is a sewer that is designed to carry both sanitary sewage and storm water runoff. A discharge from a combined sewer system, referred to as a combined sewer overflow (CSO), occurs in response to rainfall and/or snowmelt because the carrying capacity of the combined sewer system is exceeded. These discharges do not receive all treatment that is available and utilized under ordinary dry weather conditions (normally during dry weather conditions the wastewater is transported to a wastewater treatment facility where it receives appropriate treatment prior to discharge). Untreated CSOs are required to be controlled by either elimination (via sewer separation projects) or adequate treatment (see RTB). Currently all remaining untreated CSOs in Michigan are under schedules to be controlled. These schedules are included in permits, orders, or other enforceable documents issued by the DEQ or by court action.  Source

beforeFDDP

On July 10, 2000, an ongoing annual reporting requirement was part of a revision to the Natural Resources and Environmental Protection Act (NREPA), PublicAct 451 of 1994, specifically Section 324.3112(c). The State would now be required to publish a report listing all the municipality that had sanitary sewer overflows.   Per the report:

These yearly reports are produced “as a means of providing the public with information regarding known discharge of untreated and partially treated sewage to land and waters of the state.”

The DEQ is concerned about releases of raw and partially treated sewage from municipal sewer systems, an environmental and public health problem that has plagued Michigan for decades. The State of Michigan took a more aggressive approach to address these discharges in 1988 by initiating an aggressive Combined Sewer Overflow (CSO) control program and in the year 2000 by adopting a Sanitary Sewer Overflow (SSO) control strategy. In addition to the state’s efforts, local units of government were called upon to step up to the plate to help protect Michigan’s waters.

Here is a link to the very first Combined Sewer Overflow (CSO) & Sanitary Sewer Overflow (SSO) Annual Report (July 2000 – December 2001)

Link to DEQ website for yearly CSO/SSO reports 2000-2013

The City of Ann Arbor was required to come up with a plan to address the Sanitary Sewer Overflow Problem.  The assembled a task force that looked into the issue and decided on using the footing drain disconnect method as a pilot to try and solve the problem.  Meanwhile during that process, the The Michigan Department of Environmental Quality (DEQ) issued an administrative order mandating that the city perform footing drain disconnects.  If the city failed to prevent the overflow problems their would be hefty fines.

Findings For: City of Ann Arbor
Document Number: ACO-SW03-003
Parties Involved: City of Ann Arbor
Date Entered: 9/4/2003
DEQ Findings:
The City of Ann Arbor (City) owns and operates a wastewater treatment plant (WWTP). The city discharges treated municipal wastewater from its WWTP to the Huron River authorized by National Pollutant Discharge Elimination System Permit Number MI0022217, issued by the DEQ on December 19, 2000. During heavy rain events, the City’s sanitary sewer system experiences heavy inflow and infiltration, resulting in Sanitary Sewer Overflows (SSO’s). The city experienced thirteen SSO’s and system bypasses between March 1997 and June 2002. From a completed Sanitary Sewer Trunk Line Study, completed in 1995 by the City, determinations of sewer system improvements and specific modifications were identified and the work is ongoing. The discharges to the Waters of the State are in violation of Part 31, Water Resources Protection, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended, (NREPA) MCL 324.3101 et seq.; and the rules promulgated under Part 31.
DEQ Order:
Footing Drain Disconnection Project: In order to reduce flow to the sanitary sewer system, footing drain connections at 155 locations will be removed from the City sanitary sewer system on or before June 30, 2004 and every year thereafter by June 30 through June 30, 2007 or until 620 footing drain connections are completed as required by this ACO. Certification of flow monitoring and hydraulic modeling shall be conducted system-wide to certify that the system meets or will meet criterion based on a corrective action plan. This certification shall be submitted to the DEQ on or before June 30, 2006. Offset Mitigation Program: The City shall implement an Offset-Mitigation Program that requires, for each new premises connected to the system, there shall be a reduction of 1,680 gallons per day in the City’s sanitary sewer system. An annual progress report detailing the number of footing drain locations disconnected and any additional flow removed to offset development from the City sanitary sewer system, shall be submitted to the DEQ on or before July 30 of each year beginning July 30, 2004 and ending July 30, 2007. Swift Run Trunk Project: On or before June 30, 2005, the City shall submit an approvable work plan and accompanying schedule for improvements that are to be made to the Swift Trunk sewer to work toward the elimination of SSO’s and to correct capacity issues.
DEQ Penalties:
The City agrees to pay to the State of Michigan (state) twenty-five hundred ($2,500) dollars as partial compensation for the cost of investigations and enforcement activities arising from the discharge of sanitary sewage to the waters of the state. Payment shall be made within thirty (30) days. The City agrees to pay a civil penalty of seventy five hundred ($7,500) dollars for the illegal discharge of sanitary sewage to the waters of the state. Payment shall be made within thirty (30) days. The City agrees to pay stipulated penalties of one thousand ($1,000) dollars per day for each failure to meet the requirements or dates of the corrective program set forth in this ACO. The City shall pay these accrued penalties to the State of Michigan no later than ten (10) days after the end of the month in which the violation occurred.
Source

The City of Ann Arbor Footing Drain Disconnection (FDD) Program installed a sump pump in the homeowners basement when the footing drain was disconnected.  The city paid for the pump and installation, but not the ongoing maintenance.  They provided a list of approved contractors for the homeowner to use if they so chose.  This was a mandated program for residents in certain neighborhoods with the option of a $100 fee/month in lieu of installing a sump pump.

beforeFDDP

Before FDD

afterFDDP

After FDD

 

 

 

 

 

 

In 2012 the City suspended the program  and initiated a Sanitary Wet Weather Evaluation (SSWWE) project that found that FDDs were no longer needed.

The City of Ann Arbor has a great website pertaining to this issue.  They even have a very informative video that gives you a great overview of the Footing Drain Disconnect Project.  It is ~5 minutes but well worth watching.

 

The effect of new development

Some blame new development for adding too much new flow to our limited sanitary sewer lines.  That is simply not the case.   Regulations are in place to keep that from happening.  Each new development must contain their storm water runoff on site and must design their development for a no net impact on the sanitary sewer system typically using a footing drain disconnect program that is different from the city’s program described above.  New development is not the cause of why our sanitary sewer lines were above capacity resulting in storm water being diverted to the sump pump system.

The City has a great video that explains the difference between the FDD Program and the Developer Offset Mitigation Program (DOMP).  The FDD program is only one section of the city, but the DOMP  is throughout the city. When a new development is proposed, the developer must  find footing drains to disconnect to offset the sewage flows from the new development.  They must find enough FDDs to compensate for 120% of the predicted sewage flow so that there is no net impact to the sanitary system.  Watch the video for a thorough explanation.

The City of Ann Arbor Developer Offset Mitigation Program from Greg DeLiso on Vimeo.

My thoughts

So to sum up.  The city had a sanitary sewer overflow problem.  The studied the issue and came up with a plan where they selected FDD as their solution.  The  Michigan State DEQ ultimately mandated  that they do FDDs or be fined. FDDs were performed and sump pumps installed in many residents houses with a subsidy from the city.  Some residents hate the sump pumps, others like them.

So what do you think?  Do you think the Class action suit has any basis in truth?  Was the City negligent for implementing a state mandated program? Does the city have the right to insist that homeowners do something about their storm water burdening the sanitary sewage system? Of course they do. The City, in order to protect the environment and the health, safety and welfare of the ENTIRE community implements a FDD program that turns out to be…..effective!  According to the 2012 Sanitary Sewer evaluation report,  FDDs are no longer needed due to the success of the program.  (see report for data)  Should this program be considered unconstitutional after it accomplished its goal?

Now I want to mention here that the FDD program is not an Ann Arbor concept, the city did not create the FDD program.  It is not new, novel, or rare.  Disconnecting footing drains is common practice to fix sanitary sewer overflows.  Many cities in Michigan as well as outside Michigan have FDD programs, some identical to ours with the city paying/subsidizing the cost for the installation of the sump pump along with giving out a list of recommended contractors. ( eg. Detroit, Dundee, Grand Rapids, Canton, Auburn Hills, Grand Blanc, MonroeSchaumburg, IL, Montgomery County, OH)

sump-pumpCan a common practice that is implemented everywhere be considered unconstitutional because a few people are unhappy with having a sump pump?  Is the problem simply that it was a mandate by the city (and actually by the State) with an optional fee to get out of the program? What was the alternative to complying with the state administrative order??  Do these homeowners actually expect the city to dig up every street in the community to install bigger pipes so that they can keep their footing drains? The cost of that would be astronomical!  Their houses were built 50, 75 years ago or more.  Times change.  Regulations change.  Water usage in each house changes.  The City is not negligent because it did not predict the increase of rainfall or the increase in wastewater usage in every household.  We may have less people per household today, but our wastewater usage is probably greater per person than in the past (more laundry, more showers, etc).  One can’t expect the city to dig up and replace their pipes every-time water usage changes, rainfall increases, or there are new government regulations.  It just seems odd to me that some think that digging up every street to install new pipes is economically feasible or a realistic option considering there is a FDD program that could solve most of the problem.  Besides storm water has no business being processed through our sewage plant anyway.  Diverting storm water away from the sanitary storm system is the right thing to do.

A large part of the lawsuit is based on the idea that the sump pump interferes with the “health, safety and piece of mind of the home owner”.  It implies  (as I read it) that having a sump pump in their home is rare and burdensome.  Well, the fact is that  it is not rare  It is not rare in general or in Ann Arbor. I grew up in Macomb County and I can tell you that many, if not most, houses had sump pumps.  I have a sump pump now (in Ann Arbor) that services a row of 6 townhouses in my condo complex.  I hear it all the time…so what. When the power has gone out I do worry about flooding, but I never thought that it was a city issue, just a high water table issue.  when you read through the complaint, the plaintiffs make it sound like they are they only ones EVER to have to deal with a sump pump.

If you build neighborhoods on areas with a high water table, you get basement flooding.  Ann Arbor is built upon many creek-sheds and our water table is high in places.  Without a sump pump you would get flooding regardless of the sewer backups.  (But basement flooding from rain is always preferable to sewage backup)  Just because you did not have a wet basement years ago does not mean that it will always be dry.  Rainfall amounts change per storm and per season.  It is not static.  That the sewage backups in the basement have been stopped is the most important  issue.

So do you think this controversy is worth the city (and all of residents) paying  $6.6 million dollars a year to maintain the FDD program sump pumps because it is too much a burden for the impacted residents?  You decide.  Like I said earlier, my purpose is to get the facts to you so you have the background and to propose some questions for you to think about.

Specifically…..

Does the ‘health, safety and piece of mind of the individual” trump the “health, safety and welfare of the community as a whole”?  Especially when the burden on the individual is arguable.  I think not.

I wish I had more faith in the court system to do the right thing but honestly I don’t .  Maybe I still have just a little faith.  Maybe it is just hope.  But anything can happen.  If they win this case it will have detrimental effects not only on many local municipalities but also on future environmental polices.

 

Aside

It is rumored that Councilmember Jack Eaton was formerly involved with this group’s lawsuit before he was elected.  It is actually insinuated in the comments section underneath one of the Mlive articles I have linked below. (see article 4)  and I have heard it before.  Although CM Eaton denies any association with this group anymore, it irks me to no end that he is commenting on pending litigation before the city.  His commenting underneath the news articles gives me the impression of his support for this lawsuit. At the very least it has the appearance of impropriety, even if there is none. He has no business commenting on the plaintiff’s chances of success when the plaintiff is suing the city of which he is a public official.  It is just wrong.  It’s as if he is encouraging this lawsuit and rooting for its success.

water horseI realize that the plaintiffs live in the district he represents, however his job is not to encourage them and root for them.  His job is to point out the facts to them as a representative of the city AND a representative of ALL 4th ward residents.  He can’t control their actions after that.  It’s like the old saying, ‘you can a lead a horse to water,  but you can’t make it drink.’  However, CM Eaton appears to be standing next to the horse looking out into the horizon with the water behind them.  They are visualizing that the water is beyond the edge of the “flat” earth.  Maybe you should turn around for the good of all.

obliti privatorum, publica curate

-MOTL

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¹Ryan Stanton, “Ann Arbor faces another lawsuit over controversial city program“.  Mlive.com, November 11, 2015.

²Ryan Stanton, “Lawsuit filed against city of Ann Arbor over mandatory sump pump installations“.  Mlive.com, March 3, 2014.

³Ryan Stanton, “State court dismisses flooding lawsuit against city of Ann Arbor“.  Mlive.com, December 4 2014.

4Ryan Stanton, “City of Ann Arbor wins flooding lawsuit in Michigan Supreme Court“.  Mlive.com, November 10, 2015.

 

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