US Supreme Court Update for FDD Homeowners: Petition Distributed to Justices’ Chambers for Review; Decision as Early as October 1, 2019

We have important news from the United States Supreme Court about the progress of the Homeowners Petition for review in the FDD Homeowners Class Action, Lumbard et al. v. City of Ann Arbor.

As you may recall, on July 29, 2019, the FDD Homeowner Class Plaintiffs in Lumbard v City of Ann Arbor filed their Petition in the US Supreme Court for review of the Sixth Circuit’s opinion in the City’s favor on January 11, 2019. The City’s arguments and the Sixth Circuit’s opinion were both based on two older Supreme Court cases we have discussed before, Williamson County Bd of Comm’rs v Hamilton County Bank and San Remo Hotel v City of San Fransisco.

When the Sixth Circuit decided Lumbard, both of these cases were on life support in the US Supreme Court in a related case, Knick v. Township of Scott. By June 21, 2019, when the Court decided Knick, the two cases were dead, overturned and renounced When the the Sixth Circuit’s opinion was handed down on January 11, 2019, it had affirmed the result in the District Court, also on the basis of Williamson/San Remo tactics, while Knick was still pending in the Supreme Court.

Barely six months later, Justice Roberts wrote the biting majority opinion in Knick, sweeping away Williamson/San Remo, and its requirement for years of state court litigation as a condition of adjudication by a federal court. Roberts the made the conditions necessary to any future “San Remo preclusion trap”

The Homeowner Plaintiffs in Lumbard v City of Ann Arbor waited to file their Petition for Review in the US Supreme Court until after the Supreme Court had handed down its landmark decision in Knick v. Township of Scott on June 21, 2019.

As we reported previously, on August 27, 2019, the City waived its right to file an opposition in the Supreme Court to the Homeowners’ Petition. That sped up the process at the Supreme Court. So, as the Court announced last week, the Petition has been distributed to the nine Justices of the Court for its first level of review.

Next Steps in Review of Petitions for Certiorari

The first step in this review is for the Petition to be studied and analyzed by some of the best and brightest young lawyers in America, US Supreme Court Clerks, who will provide their results to the Justices. It doesn’t hurt that the Clerks for the Justices in the majority in Knick still have that signal case fresh in mind. Four justices are required to grant a petition.

The Justices will then decide individually whether the FDD Homeowners’ petition goes on to the next step: discussion of the Petition in one of the Justices’ future weekly private conferences.

When in the future? The date could have been set sooner or later, but the private conference is October 1, 2019, two weeks from today.

Before then, the Chief Justice gets the first crack at which petitions delivered to him as candidates for the “discuss list” for October 1. After that, the other eight Justices get their turn; any of them can add a petition to the “discuss list” or move one to a later conference date.

The Supreme Court does not publicly announce which cases are going to be discussed at a conference and which won’t. The press gets that information the day before, but it is not for publication.

When will we know the results for this Petition? This conference is on a Tuesday, while Supreme Court conferences are typically on Thursdays. Again, typically, the Court announces the next day what the results of the conference were — which cases were discussed and the Court’s disposition. Based on that, we should have a result between Wednesday, October 2, 2019 and Friday, October 4, 2019.

We will keep you posted.

FDD Class Action Progress in US Supreme Court: City of Ann Arbor Waives Right to Respond to Homeowners’ Petition for SCOTUS Review and Relief

City Will File Opposition Only if Requested by the Supreme Court Justices

In January 2019, the Homeowner Plaintiffs in the FDD Federal Class Action (Lumbard, et al. v City of Ann Arbor) were handed a disappointment when the Sixth Circuit Court of Appeals affirmed the dismissal of their claims by the US District Court in Detroit.

On June 21, 2019, however, the Supreme Court handed down its much-anticipated decision in Knick v Township of Scott. We posted about the case before and after the decision in June.

The Court there was faced with compelling arguments by the homeowner, Rose Knick, for overturning two decisions that, in combination, produced a tactic referred to by the Chief Justic as the “San Remo preclusion trap” employed by municipal governments to extinguish federal Fifth Amendment claims without a hearing for the plaintiffs.

Chief Justice John Roberts exceeded our wishes. He did not perpetuate the legal mess that litigation of federal private property claims had become. Rather, he burned to the ground the entire legal and procedural structure that produced both the City’s San Remo Trap tactics against the Homeowner Plaintiffs in federal court and the Sixth Circuit opinion based on the City’s arguments. The Opinion of the Supreme Court particularly condemned the use of the San Remo “traps” by municipalities, the only intended result of which was to deny meritorious federal plaintiffs their day in Court.

Mlive and the City Attorney were very vocal and positive in their assertions that the litigation over the FDDP was at an end. In a press release, the City Attorney ventured that “[n]one of this litigation should have ever been filed.” He continued that “[t]his case has tied up the time of one state trial court judge, three state court of appeals judges, one federal district court judge and now 20 federal court of appeals judges.” According to the Supreme Court in Knick, however, it’s the municipalities, not the property owners, that are responsible for this waste of judicial time.

Now that the decision in Knick went the FDD Homeowners’ way, the City has waived its only right to file a Response to the Petition with the Supreme Court. The document filed by the City on August 26, 2019, signed by Abigail Elias, says that “I do not intend to file a Response to the petition for a writ of certiorari unless one is requested by the Court.” This time, no press release from the City Attorney, Stephen Postema.

What is the timeline from here? The Lumbard case is Supreme Court Case No. 19-150. Following the City’s Waiver, the Petition will now be circulated to all the Justices. There is a “cert. pool” of Supreme Court clerks who will review and analyze the Petition for seven of the Justices. Two still are briefed by their own Clerks. The next hurdle is for the case to be put on a “conference list” for one of the Justices’ private Friday conferences.

Here is some further description of the Court’s prodedure from Wikipedia:

Before each conference, the Chief Justice prepares a list of those petitions he believes have sufficient merit to warrant discussion. Any other Justice may also add a case to the “discuss list”; cases not designated for discussion by any Justice are automatically denied review. The Court or a Justice may also decide that a case be “re-listed” for discussion at a later conference. This occurs, for example, where the Court decides to request input from the Solicitor General of the United States on whether a petition should be granted. The votes of four Justices at conference (see Rule of four) will suffice to grant certiorari and place the case on the court’s calendar.

In fact, the Solicitor General of the United States did intervene in the Knick case on the side of the homeowner. So, the Justices may very well want to hear General Noel Fransisco’s thoughts.

Just Months Before 2001 City Task Force Picked Mandatory FDDs as “Solution” to City Sewage Overflows, City Admitted Lack of “Certainty” About FDD Data, Effectiveness

City Task Force Admitted toHigher Level of Certainty [in] the Other Solutions”

The City Council passed the mandatory FDD Program in August 2001. In 2001 and since, City of Ann Arbor officials, staff, attorneys, employees, contractors and others involved with the Footing Drain Disconnection Program billed FDD’s to the City at large and to the homeowners in five FDDP “Target Areas” as a safe, effective and cheap solution to flooding problems and sewage overflows into the Huron and local tributaries.

As the previous post shows, however, the City apparently completed mandatory FDDs, without the knowledge of owners, free of requirements of State Building Codes on the basis of an administrative determination in Lansing, without notice to anyone.

Quite apart from expecting code enforcement by the City and State, however, the thousands of residents involved had separate expectations based on trust in the honesty and competence of the City government. They would have been justified in thinking that if the City were going to require construction in thousands of private homes, then the City would certainly have had the highest confidence in the functioning, safety and effectiveness of FDDs to do what they were advertised as doing.

Nothing could be further from the truth. In fact, as alleged in Paragraph 73 of the FDD Federal Class Action Complaint, the City admitted in writing that FDDs were unproven and lacking in scientific support when the City began doing them.

The City’s Water Utility Department published a flyer in January 2001 that included a Q&A about the City’s confidence in FDDs. This was the question, on page 2:

[Question:] The Task Force says there is less ‘certainty’ about the ‘footing drain disconnect’ solution. Why?

The surprising, lengthy official answer, supplied by the same City “Task Force,” was as follows, with some of my comments on the text:

[Answer:] We have less than complete data on the amount of wet weather flow from the foundation footing drains that gets into the sewer system during storms.

In other words, the City had no scientific basis for recommending (let alone requiring) footing drain disconnections as the City’s complete solution to sewage overflows. The various statements contradict the entire premise of the FDDP narrative–that disabling residential footing drain systems would remove so much stormwater from the sewers that no physical construction or other alternative was preferable.

With “less than complete data,” more data collection was planned:

Instituting this alternative as a solution will include additional work to complete the data collection to bring the same higher level of certainty as the other solutions.

If you think this implied that the City would first collect more data, attain the “higher level certainty” it lacked in FDDs or fail; and only then start going into people’s houses, you’d be sorely mistaken.

Instead, the flyer states that as FDDs were built, “flow data collection from these locations will be used to increase the confidence in the flow projections.”

“These locations” refers to targeted houses under the FDDP. The City had empowered itself to order homeowners (without any due process) to act as the City’s canaries in the FDD coal mine. The City decided, without notice to them, that it needed these citizens to submit their houses to destructive mandatory FDD construction so that the City could mine that data to “increase [the City’s] confidence in the flow projections.”

What if FDDs didn’t work out? The City had an answer for that too:

If the newly collected data does not increase our level of certainty about this remedy, the Task Force would recommend different protection measures for the neighborhood.

It would appear from the City’s words that the FDDP was still an R&D project in the data collection phase when the program was launched. Homeowners were not told that failure of the experimental construction was contemplated as a real possibility, even though the construction was mandatory and permanent.

What was the City’s hurry?

State Building Code Agency: Mandatory Footing Drain Disconnections under Ann Arbor FDDP Were Not Required to Meet Any Michigan State Building Codes

In August 2001, the City Council passed City Ordinance 32-01 launching the mandatory “Footing Drain Disconnection Program” (FDDP). The program targeted the owners and residents of approximately 2,000 one- and two-family residences in Ann Arbor, on the basis of their addresses. From 2001 to 2012, the City Water Utility Director exercised her authority and ordered all of them to submit to construction in their basements and crawl spaces called “footing drain disconnections” or “FDDs.”

According to the State agency that polices local government enforcement of State Building Codes, however, if you are or were one of the owners of a house targeted for an Ann Arbor FDD, none of the construction inside your homes was required to comply with any official State Building Codes.

This determination by the State Bureau of Construction Codes followed my formal complaint in October 2014 about improper code enforcement in the case of FDDs. The BCC responded in its letter to me on November 7, 2014:

We reviewed your correspondence in regard to the City of Ann Arbor, received in this office on October 30, 2014.

[Y]ou indicate concerns regarding the enforcement of the City’s requirement for mandatory disconnection of foundation drains from sanftary sewer lines in pre-1982 single family residences under [the Ann Arbor FDD Ordinance]. You request that our agency conduct an investigation into your concerns under the rules applicable to the Bureau of Construction Codes.

Based upon our review, it has been determined that our agency has no authority to investigate your concerns regarding the City of Ann Arbor’s local ordinance requirements or enforcement of same. The issues you raise within your complaint are not regulated by the Stille-DeRossett-Hale Single State Construction Code Act, 1972 PA 230, Michigan Residential Code, the Michigan Plumbing Code and the Michigan Building Code. The City’s local ordinance falls beyond the scope of authority of this agency to address. You may wish to consider other avenues of recourse to address and resolve your concerns.

[Emphasis added.] BCC has refused at least twice to send a single state inspector to look at any FDD construction in even a single home.

BCC’s determination (without explanation) was that construction of FDDs would be regulated like the paint or wood trim in a remodeled kitchen, which are well-known examples of “non-code” construction. City Building Inspectors inspect the new plumbing in the kitichen according to the building permit to see if it meets the State Building Codes and local requirements. They won’t inspect the paint job because the quality of paint jobs is not regulated by any State Building Code or local code.

FDDs, however, were nothing like paint jobs. Paint jobs don’t include installation of operating equipment for the owner to operate after the painter leaves. The construction for an FDD was a big project. In a typical house, it usually lasted two to three days. It included (i) demolition of concrete flooring; (ii) physical disabling of perfectly legal, functioning, as-designed building drainage systems; (iii) installation of new plumbing systems and electrical work (frequently including a new electrical panel); (iv) sump crock excavation and removal of soil under the house; (v) sump crock construction; (vi) piercing of the building envelope for drainage piping; and (vii) other tasks inside and outside of the house. It involved a general plumbing contractor, non-plumbing subcontractors, and a construction manager; it cost over $10,000 according to a City Council Resolution in 2011.

That is a lot of construction without codes for the City and its chosen contractors to follow in residential construction, especially construction the City ordered be done. In more recent email and phone communications with BCC management and their counsel, they confirmed my understanding that none of the construction in these 2,000+ homes was required to meet any State Building Codes.

There were, in fact, and remain no building codes at all for “footing drain disconnections” in Michigan or anywhere in the United States, to my knowledge. There are no codes for how to do a “footing drain disconnection” or that require FDDs. Why?

First, by definition, a “footing drain disconnection” is a modification to an “existing structure” under any of the State Building Codes from which BCC says it exempted FDDs. That’s true of building codes in the United States going back over 50 years.

Without the freely given and fully informed consent of the homeowners, the City could not have lawfully required any modification to “existing structures” that were functioning as designed and not dangerous. And if the City had tried, the State Building Codes would have protected the homeowner with significant due process, hearing and appeal rights. The local FDD Ordinance includes no right to appeal an Order of the “Water Utilities Director.”

Residents did not know that, if they were targeted for a “disconnect” under Ann Arbor’s local ordinance, they would be denied the protection of the same State Building Codes for the mandatory construction in their houses that would apply to, say, the construction of an outdoor deck.

Here is a link to the FDD Federal Class Action Complaint. The facts discussed in this post are included in the Complaint as part of claims already asserted by the Class Plaintiffs on behalf of all homeowners with FDD construction in their houses.

FDD Class Plaintiffs File Petition with US Supreme Court to Overturn Sixth Circuit’s Judgement for City of Ann Arbor

Landmark SCOTUS Decision Eradicates Legal Barriers to Commencement of New Federal Litigation by Additional Class Action Plaintiffs

I am pleased to report that on July 29, 2019, the FDD Federal Class Action Plaintiffs in Lumbard et. al vs City of Ann Arbor filed their Petition with the United States Supreme Court review the United States Supreme Court to vacate the decision of the Sixth Circuit Court of Appeals in their consolidated cases.

Here is a link to the full document. If you read the relatively short arguments beginning on Page 20 you will get a brief version of the autopsy report on the City of Ann Arbor’s case in the FDD litigation since 2014.

The Plaintiffs’ Petition follows the decision of the Supreme Court on June 21 in Knick v Township of Scott, No. 17-647, 588 U.S. ___ 2019). As we discussed in an earlier post, Knick overturned the two cases on which the City’s successes in both state and federal court depended,  Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172  (1985) and San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323 (2005). 

In brief, after Knick, Williamson, San Remo, and all of the jurisprudence under them for 34 years, ceased to exist. The use by municipal governments of  Williamson and San Remo, as a tactic to preclude federal takings plaintiffs from their day in federal court, was on trial in the Supreme Court in Knick. The Court reacted with unusual force to the “unanticipated result” of preclusion of federal takings plaintiffs under San Remo, particularly where the plaintiffs have spent years in state court formerly required under Williamson. 

The Court made such tactics legally impossible even to be attempted post-Knick. Justice Roberts carefully eliminated all the precedents and doctrines that underlay the use of “preclusion traps,” root and branch. The City of Ann Arbor will go down as one of the last municipalities–if not the last–to employ a San Remo trap successfully to preclude federal takings plaintiffs from an independent federal forum for their claims.

Because of Knick, the Sixth Circuit decision in Lumbard did not end litigation arising from the City’s Footing Drain Disconnection Program at all. The Lumbard case is very much alive. Independent of its effect on Lumbard, Knick also removed any barriers to a new class action by a further class action by another class representative, this time commenced in federal court, federal court, by a new class plaintiff. We will have some details on that in a separate post.

Only four Justices are required to grant a Petition; there were five in the majority in Knick. Additionally, the Court has already granted the Petition of another takings plaintiff from the Ninth Circuit while the case was was still “in process” in the federal courts when Knick was handed down by the Supreme Court. The whole Court (not just the majority justices in Knick) granted summary relief, vacated the judgment of the Ninth Circuit and ordered “further proceedings not inconsistent with the decision in Knick.” Lumbard  is also “in process,” as discussed in the attached Petition. The Court’s handling of the earlier Ninth Circuit plaintiff is at least some indication of the direction the Court may take in the case of the Petition now before it. 

Next Steps at the Supreme Court and Timing

Here is a good brief summary on Supreme Court process from A Reporters Guide to Applications Pending Before The Supreme Court of the United States:

Q:How long does it take the Court to act, once a petition has been filed?

A: On the average, about six weeks. Once a petition has been filed, the other party has 30 days within which to file a response brief, or, in some cases waive his/her right to respond. Once the 10 day period for receiving a reply brief has passed, the case is circulated to the Justices and placed on a conference list, for consideration at one of the Justices’ private Friday conferences. Copies of conference lists are available to news reporters for their convenience ONLY, and not for publication. Cases appearing on a conference list may reasonably be expected to appear on the following Monday’s Order List (the announcement of dispositions in pending cases) although this is not always the case. If a case does not appear, it will be relisted for consideration at a future conference. If the petition is granted, the petitioner has 45 days within which to file a brief on the merits, and the respondent has 35 days within which to file the brief in response, for a total of about 80 days. The petitioner may then file a reply brief up to one week prior to the date oral argument has been scheduled.  

The City of Ann Arbor’s Response Brief, if any, looks like it will be due on September 3, 2019. We will have the official date from the Supreme Court shortly. The Plaintiffs’ Reply Brief will be filed no later than September 13, so its reasonable to expect the Petition will be circulated to the nine Justices the week of September 16, 2019.

Irvin Mermelstein

In PA takings case, US Supreme Court rejects legal basis for 5-year City defense of Footing Drain Disconnection Program; High Court overturns both pillars of City case and Sixth Circuit judgement against homeowners

5-4 majority opinion by Chief Justice Roberts gives FDD homeowners a big win

Lumbard class action appeal heads to US Supreme Court; Reasons for cautious optimism at the Supreme Court

I reported in my earlier post about the Knick v Township of Scott case, in which the only two precedents supporting the City’s FDD arguments and the favorable opinion it obtained in the Sixth Circuit of Appeals were in deep jeopardy in the United States Supreme Court.

I’m pleased to report that the decision in Knick was handed down on June 21, 2019 and FDD homeowners in Ann Arbor had a big win. The United States Supreme Court exceeded our expectations and threw out both cases that were used by the City and its lawyers in tandem to “preclude” the Class Action Plaintiffs from a single day in federal court. The Court’s decision is a game changer for litigation on behalf of FDD homeowners in Ann Arbor.

Chief Justice Roberts Writes for 5-4 Majority

Chief Justice Roberts wrote the opinion in Knick and summed up the problems faced by the class plaintiffs in the FDD litigation since 2014 in a few paragraphs:

The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law. 

Williamson is the only reason the FDD plaintiffs were forced to litigate first in state court, on the City’s home court. 4 years of difficult, expensive and ultimately pointless state court proceedings, or even one day, would not have occurred but for the Williamson case. Without that case, the FDD claimants would have filed and stayed in an independent federal court, before a life-tenured US District Judge, from day 1. The FDD Class Plaintiffs obeyed Williamson to the letter in state court. We did exactly as Justice Roberts describes above.

The Chief Justice says this was supposed to be the end of the burden of state litigation on the municipality’s home court:

The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court.

Instead, as Justice Roberts explains, the plaintiff in Knick–exactly like the FDD Class Plaintiffs–were intentionally deprived of a day in federal Court. That was precise objective of the City and its lawyers in the FDD litigation.

But as we later held in San Remo Hotel, L. P. v. City and County of San Francisco, 545 U. S. 323 (2005), a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.

As stated, that was the whole point of the City’s litigation strategy in the FDD cases. In Knick, however, the City’s strategy (while still in progress) was finally under the microscope of the only court with the power to rid the law of the Williamson/San Remo “Catch-22.” Justice Roberts did not pick nits in response:

The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees “a federal forum for claims of unconstitutional treatment at the hands of state officials,” and the settled rule is that “exhaustion of state remedies ‘is not a prerequisite to an action under [42 U. S. C.] §1983.’” Heck v. Humphrey, 512 U. S. 477, 480 (1994) (quoting Patsy v. Board of Regents of Fla., 457 U. S. 496, 501 (1982)). But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court.

[Emphases added.] That is exactly what happened to the FDD Class Action Plaintiffs and the class of FDD homeowners in federal court in January.

Justice Roberts went even further than we had hoped. The Court overturned Williamson and the whole case argued by the Township:

We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable  Fifth Amendment takings claim when the government takes his property without paying for it. … [T]he property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time.

The Court stated that Fifth Amendment takings claims that had been made a “stepchild” of the Bill of Rights were now “restored.” I and my co-counsel, Dan O’Brien, Esq., have represented the Class Plaintiffs in the Lumbard litigation as they went through the Williamson and San Remo processes and its indignities, now banished from the legal system entirely. We will continue to represent them vigorously and zealously. Their case is brought on their own behalf and on behalf of all owners of homes where the City completed mandatory footing drain disconnections under the Footing Drain Disconnection Program.

City and Mlive reports of the death of the FDDP Class Action were premature

In January, Mlive’s coverage of the Sixth Circuit’s decision featured the City’s supposed big win, commentary by the City Attorney, and an obituary for the FDD Class Action. Knick in a legal instant (“eo instante“) left the City’s case in ashes and “restored” the rights of of owners of FDD homes to file their federal claims before an independent federal court in the first place. We have no plans for any further proceedings in state court.

FDD Federal Class Action heads to US Supreme Court

We are in the midst of preparing a Petition for Supreme Court review in the Lumbard case–the one currently in court. This is an important step. The due date for filing is now July 29, 2019, two weeks away. The City will have 30 days to respond to the Petition, if the City wishes to respond at all.

Lumbard is among a very few federal “preclusion” cases that were decided under Williamson/San Remo while the plaintiffs were waiting for Knick to come down, including us. One of the other plaintiffs whose case is in that posture, from the Ninth Circuit, to petitioned the Court for review, arguing the case would come out in his favor if Knick were applied.

The Court quickly granted the Petition, reviewed the case, and summarily “vacated” (wiped out) the judgement of the Ninth Circuit. The case was returned to federal court for proceedings “not inconsistent” with Knick, which is now the Law of the Land. There is reason for some cautious optimism about the Court’s treatment of the FDD Class Action Plaintiffs’ Petition.

Irvin Mermelstein

October 1973 City Council Ordinance grandfathered all pre-existing footing drain connections in Ann Arbor prior to the new law; No homeowners were told about their grandfathered rights before, during or after FDDs were completed

City Council was apparently kept in the dark about 1973 grandfathering; FDD Homeowners Should Have Been Left Alone by the City and FDD Contractors

In 1972, Congress passed the landmark federal Clean Water Act. One of the main purposes of the Act was to eliminate municipal discharges of combined stormwater and wastewater sewage from municipal combined sewer systems such as Ann Arbor’s. The intent of the Clean Water Act was the elimination of the combined sewer overflows by eliminating combined sewer systems. The law created a regulatory process through which municipalities like Ann Arbor would move from aging “combined sewer systems” to new “separate sanitary sewer systems.”

In October 1973, the Ann Arbor City Council passed City Ordinance 8-73 as the City’s first legislation intended to further the new national policy of complete separation of municipal and storm water and wastewater flows into two separate systems.

The short, one-paragraph Ordinance has three parts.

1. Prohibition on Discharging Storm Water into Sanitary Sewers

Ordinance 8-73 prohibited introduction of stormwater, groundwater , cooling water, and similar liquids into the City’s “sanitary sewers.” That portion of the Ordinance provides:

2:43. Prohibited Uses of Sanitary Sewer. No person shall discharge, or permit to be discharged, into any sanitary sewer, storm water, surface water, sub-surface groundwater, condensate, cooling water, or similar liquid waste, except as provided for in chapter 98 of this code.

As discussed below, the City Council was well aware of the need to make clear that this provision was prospective only and did not apply to homes built with footing drains that were already connected to the existing combined sewers before the Ordinance went into effect.

2. New Requirements for Separated Sewer Systems for Post-1973 Subdivisions

Significantly, Ordinance 8-73 required developers of subdivisions approved by the City after the new Ordinance went into effect to include entirely separate storm and sanitary sewers to handle all the stormwater in the subdivision, including all groundwater. The Ordinance said as follows:

Any development that is subject to plat or site plan approval and concerning which final approval has not been granted prior to the effective date of this ordinance [i.e., November 1973] shall be designed with an adequate enclosed storm sewer system that receives all discharges from the above-mentioned sources by gravity.

This language was in line with the Clean Water Act’s goals. It was a progressive law aimed at new construction only.

“Grandfather” clause: New stormwater discharge rule does not apply to footing drain connections to sanitary sewers that were “existing” in November 1973

According to the US Census, in 1970 there were already almost 27,000 existing housing structures in Ann Arbor, of which all were required to be built with footing drains, under City law, to prevent basement flooding. Of these, the footing drains in perhaps 20,000 houses were already connected to combined sewers. The City Council went out of its way to make crystal clear that footing drain connections to sanitary sewers were “grandfathered” against and not covered by the new discharge prohibition provisions of the Ordinance.

The Ordinance seems quite plain:


The capital letter are from the original Ordinance, in which the City Council created specific enforceable rights for owners of homes as part of the bundle of rights that constitute “home ownership.” I don’t know of any case where the City advised the owners of homes targeted for FDDs that a City Council Ordinance specifically shielded their FD connections from the City.

When the representatives of the City and its contractors came to my house on Ascot Road to inform my family that a disconnection would be “required,” they did not mention the 1973 Ordinance.

Lawyers for the City failed to disclose the grandfathering clause to the City Council

Ordinance 8-73 should have been the end of the idea of a footing drain disconnection program in 2001, at least a program involving the older houses that were targeted by the FDDP. This failure to advise homeowners was not a tragic oversight or mistake. Quite the contrary. Early in July 2001, the City staff and contractors working on the FDDP had organized a full day City Council Working Session, which is on video, about decisions required from the Council about the FDD Program and FDD Ordinance. Abigail E. Elias was then City Attorney. One of her Assistant City Attorneys attended the Working Session to brief the Council on its legal authority for footing drain disconnections. On Council video, he cited the 1973 ordinance’s prohibition on drainage of stormwater to City sanitary sewers, but not the grandfather clause. Consequently, the City Attorney’s Office cited Ordinance 8-73 as the authority for FDDs. The City’s attorney noted that the prohibition had not been enforced since its enactment 28 years earlier, but emphasized that it would from then on under the new FDD Ordinance (which passed in August 2001) through the FDD Program.

Council Members were openly concerned about FDDs as “work on private property.” Newly-elected Mayor John Hieftje was at the meeting and asked this question:

What are we going to do about the property owner who is very reluctant to take part in this program, who doesn’t want anything to do with it, who thinks we are the sewer Nazis [and] doesn’t want people working in their house?

No mention was made of the rights of homeowners to, in fact, refuse any work by the City on their connected footing drains lawfully grandfathered by the City Council in 1973. These rights were also not mentioned to Target Area homeowners during the process of selling FDDs to them at the public meetings leading up to passage of the FDD Ordinance in August 2001.

This was not the end of the Ordinance 8-73 story. It was not seen or heard from after FDD Ordinance passed in 2001. In federal court, however, the City Attorney’s Office was confronted with allegations in the pending FDD Federal Class Action Complaint that the City and its agents simply neglected to inform targeted homeowners of these invaluable legal protections that were instead taken away with mandatory FDDs.

I will pick up in a subsequent post about Ordinance 8-73 with the City’s responses to the allegations of the Class Plaintiffs in United States District Court and then in the Sixth Circuit US Court of Appeals.

Irvin Mermelstein

Progress Report: In FDD Federal Class Action, US Supreme Court Justice Sonia Sotomayor extends time for Plaintiffs to seek High Court Review of Sixth Circuit Ruling

This is important information for owners of homes in the City of Ann Arbor where a “footing drain disconnection” (FDD) was performed under the City of Ann Arbor FDD Program.

On October 20, 2017, four Ann Arbor homeowners filed a class action complaint in federal court claiming that the permanent FDD construction and installations in their home under the FDD Program (i) destroyed original construction, (ii) occupies space and (iii) is otherwise a burdensome violation of their rights under the Fifth Amendment’s edict that “private property [shall not] be taken for public use, without just compensation.” The case was brought on behalf of all FDD homeowners in the City limits.

On January 10, 2019, the Sixth Circuit US Court of Appeals in Cincinnati regrettably dismissed these meritorious claims that FDDs were and continue to be unlawful installations of functional parts of the City sewer system in their homes for them to operate, maintain and replace at their expense.

Both the City and the local press reported this result in the Sixth Circuit as if it ended the FDDP Federal Class Action. Nothing could be further from the truth.

United States Supreme Court

Case in point, on May 16, 2019, the FDD Class Action Plaintiffs began the process for appealing to the United States Supreme Court. They made a motion requesting additional time for filing their Petition for the Court’s review. The Supreme Court assigned Application No. 18A1198 to the case, Lumbard et al v City of Ann Arbor.

As the letter from the Supreme Court (linked here) states, on May 21, 2019, Justice Sonia Sotomayor granted the Plaintiffs’ Motion and set July 29, 2019, as the deadline for filing their petition for review. Justice Sotomayor has supervisory jurisdiction relating to the Sixth Circuit.

Vulnerability of City’s case on appeal to the Supreme Court

The City’s case in the Sixth Circuit and the resulting decision by the court rested entirely on a Supreme Court precedent–the highly controversial 2005 decision in San Remo Hotel vs City of San Fransisco. San Remo was the Sixth Circuit’s authority that the FDD Class Plaintiffs were barred–“precluded”–from an independent federal forum for adjudication of federal claims under the federal Fifth Amendment.

San Remo, however, may soon be gone. In 2017, the United States Supreme Court accepted a case, Knick v Township of Scott, that provides the Court the opportunity to overturn San Remo, which would bring the Sixth Circuit decision into immediate question. This follows years of attacks on San Remo by the federal judiciary and legal scholars as unjust, harsh and wrongly decided.

We expect to be learning whether San Remo lives or dies within the next 30 days: the Supreme Court will hand down its decision by then.

At the two Oral Arguments in Knick, a supermajority of Justices expressed strong hostility toward San Remo and its consequences

The threat to San Remo is evident from the statements of the Justices. There were two sessions of Oral Argument at the Supreme Court in Knick, on October 7, 2018 and January 16, 2019. This is highly unusual. The Town of Scott argued the side of municipalities like Ann Arbor, that San Remo should remain good law. The statements of the Justices were more sharply critical of San Remo at the second Oral Argument than the first.

By the end of the two Oral Arguments in Knick, a clear supermajority of the Justices (including Justices Kagan, Sotomayor, Breyer, Chief Justice Roberts, and Justices Gorsuch and Alito) had made their opposition to San Remo completely clear to eliminate the same kind of preclusion from federal court of federal “takings” claims that just occurred in the FDD Federal Class Action. At the Second Oral argument Chief Justice Roberts and Justice Alito mocked the fondness of municipal lawyers for San Remo as a tool to inflict additional cost and time on federal plaintiffs with federal property claims under the Fifth Amendment.

Former Justice Anthony Kennedy wrote an influential opinion in another case calling for the Court to overturn San Remo at the next opportunity.

A further reason the Supreme Court Justices were in such agreement was that the US Solicitor General entered the case to argue persuasively in court that San Remo has to go as unjust and wrongly decided. Arguments of the Solicitor General are given great weight.

The timing of the Motion for additional time to file the Plaintiffs’ petition for review was strategic and allows us time to file a petition for review after the Court’s action in Knick when its impacts will be known and can be evaluated.

We will keep the community posted and communicate about other important subjects in the meantime.

The dates to watch, then, are:

  • By July 3, 2019: Decision of Supreme Court in Knick v Township of Scott.
  • July 29, 2019: Deadline for filing FDD Plaintiffs’ Petition for Writ of Certiorari
  • By August 27, 2019: City would have the option to file an opposition to the Petition or waive the filing, very possibly with San Remo having been overturned.

Irvin Mermelstein

FDD Federal Class Action Progress

Class Action Complaint Filed and Case Moving Forward

On October 20, 2017, Attorneys Irvin Mermelstein of Ann Arbor and Dan O’Brien of Rochester, N.Y. filed a federal class action arising out of the City of Ann Arbor’s Footing Drain Disconnection Program. The case was filed in United States District Court for the Eastern District of Michigan in Detroit.

The case name is Lynn Lumbard, et al., on behalf of themselves and all residents others similarly situated, vs City of Ann Arbor.

This a link to the Complaint with Exhibits:–Complaint%2BExhibits.pdf?dl=0

The City was served on November 27, 2017. The case is before US District Court Judge Hon. Stephen J. Murphy III.

The members of the “putative” class (that is, before certification of the the class by the District Court) are owners of one or two family homes in the City of Ann Arbor where footing drain disconnections were completed under the City’s FDD program. Certification of the Class by the District Court is requested in the Complaint.

The Complaint is, for the most part, not written in legalese. It states that FDD homeowners have Constitutional rights that have been violated for years. The Complaint alleges that FDDs were mandatory and destructive. It alleges that the City authorized permanent physical installations on private property for a public use, the operation of the City’s public sewers.

It alleges that the City’s failure to pay for the use and occupation of private homes for such a public purpose, without “Just Compensation,” violated and violates the rights of the owners under the Fifth Amendment to the United States Constitution. This prohibition is known as the Takings Clause (“nor shall private property be taken for public use, without just compensation.”)

It also alleges that, in late 1973, the City Council passed Ordinance 8-73, which grandfathered all or most of the homes where FDDs have been completed against later disconnection requirements. If your home was built with connected footing drains before November 1973, the Complaint alleges that you had vested rights going back 45 years to be left alone by the City.

The Complaint’ s allegations state that the City’s requirement imposed on owners to operate and maintain FDD installations solely for the benefit of the public, without pay or reimbursement for their costs, violates federal law.

It also alleges that the City deprived homeowners of their Constitutionally guaranteed rights under the 14th Amendment without due process of law or the equal protection of law.

City of Ann Arbor Motion to Dismiss

On December 15, 2017, the City filed its Motion to Dismiss all of the Plaintiffs’ claims. Here’s a link:

The City’s principal argument is that Class Plaintiffs “chose” to have their footing drains disconnected voluntarily, that they “chose” to “participate” in the FDD Program and then somehow came to “own” the physical installations in their homes, rather than their being an occupation of private real estate, without payment for it, authorized by the City. The City argues that, as a result, FDDs belong to the homeowner, not the City, and it is the owners’ “responsibility” to care for their “own” FDD installation.

The Homeowners Respond to the City

On January 5, 2018, the homeowner plaintiffs opposed the City’s Motion to Dismiss by filing their Memorandum of Law with the Court. Here is a link to the Brief without exhibits:–Filed–Brief%20Only.pdf?dl=0

This document explains the City’s arguments, analyzes them and rejects them. The homeowners reject any notion that they chose footing drain disconnection or ever became “owners” of installations they did not want or need.

The hearing on the City’s Motion to Dismiss is scheduled for March 14, 2018, at the Federal Courthouse in Detroit. We will provide further details and encourage homeowners to attend.

In the meantime, please share this post with others and leave us any comments you have.

More on Winter Backups: Write the City and Demand Deeper Reburial of City Collection Lines

As we reported in a post yesterday, we are now aware of a new and unique hazard from FDDs that discharge to a City collection line in the home extension, which is the case for most FDDs–very destructive winter backups due to freezing of the City-owned collection lines to which these FDDs are connected  by law. We are advising owners that, in order to protect homes from damage next winter, homes connected to City collection lines require permanent remediation before next winter. The City collection line problem has one solution while the FDDP continues to exist: the City has to start reburying the lines in front of homes with front discharge FDDs now or else implement a transitional fix of some kind that will allow homes to bypass the discharge lines next winter, which now represent a proven hazard at any such home.   

The City is not likely…

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