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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HOMEOWNER ALERT: Winter Backups at Two Homes with Front Discharge FDDs

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 to volunteer to do this remediation, which would be expensive and necessary city-wide, and would compound its difficulties defending the FDDP any further. Either way, homeowners need to demand action from the City immediately because the flooding at the two properties involved (as would likely be the case in a winter backup in any home) was not covered by insurance because the flooding did not originate out of the sump. These backups were 100% the City’s responsibility. CDMI specified collection lines at 24 inches, the City engineers approved that and the pre-qualified contractors just hooked the houses up to water-carrying lines that were obviously at risk for freezing. We also have some reason to inquire whether this particular cut corner in the City’s FDD collection line construction was not in fact known to the City and CDMI in advance.

Here are our main reasons for concern, based on a review of the two homes that were hit with winter backups: 

  • First, these winter backups are a different animal entirely from spring and summer backups or backups during power outages. These were far more dangerous and similar events are likely to cause very extensive damage to the interior of basements and to flood building foundations until discovered and temporarily remediated. This can only be accomplished by bypassing the FDD lines across the lawn, until the City can clear its collection line of ice blockages. Unfreezing the lines took days in this case. A backup from a frozen City line will therefore always cause a catastrophic failure of the whole FDD system inside and outside the home. The FDD becomes an immediate and absolute water trap for the house. The failures at the two homes were in the extensions and the owners were powerless to do anything without the City.
  • Second, these were not problems in either case with the sump or the sump pumps that PSA and the City Attorney’s Office like to talk about and study so much. Fifty sump pumps would not have made a difference in these situations. Absolutely nothing behind the frozen runs of City collection line in the FDD construction worked. The pumps ran very frequently (which the City does not seem to grasp), but just recycled the water back to the sump (while also flooding the foundations) in the form of repeated discharges from the air gaps. Thankfully, the air gaps were not frozen like others in the neighborhoods were, and which looked like this:

Typical frozen airgap   We are not sure what happens or where the water goes if the air gap is filled with ice and the   City line        freezes when the temperature is -15 degrees. We are consulting a plumber unconnected to the FDDP        and will pass on further information from him.

  • Second, the damages and out-of-pocket losses from this one event were outrageous (about $20,000 between the two houses). None of the loss was covered by insurance because the flooding did not originate from the sump. So the City has not only created a disaster in its collection lines, but left the owners of affected homes holding the bag for an uninsurable risk and unable to protect themselves with insurance in the future, without a special policy or rider. Winter backups could occur over and over in the same line and the same house in a hard winter, no matter how many times the City arrives too late to prevent damage to homes and it will always be too late, as described above. Under the FDDP and based on past history, we would assume the City would say that the owners have to eat the expenses of loss, replacement and repair in their home–that is, anything that was unrelated to the cost of solving the City’s problem of not destroying the two basements entirely. If we want action from the City, we are going to have to make noise to get it. The affected homeowners have shown real bravery and compassion for their neighbors (like the plaintiffs in Yu, et al. vs  City Ann Arbor) by standing up, being counted and fighting the City in the open. They are prepared to be the class action representatives for all property owners with front discharge FDDs and they deserve expressions of support here at the website and in emails to the following to the Mayor, City Council, City Attorney Stephen Postema and Chief Asssistant City Attorney Abigail Elias (the relentless defender of the FDDP, not matter how much it harms owners),  PSA Director Craig Hupy (who runs the FDDP) and FDDP Project Manager Ann Warrow, who advised the CAC “investigator” that the weather will be better in the future.
  • Third, based on our review of what occurred at these two homes (quite similar in both cases) and the staggering magnitude of the design, engineering and construction malpractice that are apparent at either home, winter backups of this type have a very high probability of lasting much longer than spring and summer backups. The latter (assuming the owners are home) tend to be discovered pretty quickly. Winter backups, however, do not originate out of the sump (which is covered by most home insurance policies), but rather at the bottom of walls remote from the sumps.  
  • Fourth, these were stealth backups. Based on the experience at the two homes, the water in a winter backup could conceivably enter from the foundation footings at any point around the basement (front wall is most likely) where water finds its way under a wall, by gravity or otherwise. The FDD system, at this point, is just packed to the gills by the flow of snow melt to the footing drains and the backup from the frozen City collection line. The water has nowhere else to go except into the foundations and then into the basement from the disconnected footing drains. At one home, the wall at the other end of the basement from the sump (just behind a valued walk-in cedar closet) was destroyed (along with the cedar closet) before the source of the flooding was even identified. That took roughly two days with the owner’s plumber (Maize and Blue) working diligently on the problem. 
  • Fifth, during all this time, the frozen City lines continued to block the discharge 100% at the exterior wall of the house, while the air gap discharge and the snow melt (which can go on for days after a quick thaw) continued to overfill the disconnected footing drains. The result was water flooding in, but no water able to get out of the house. The City turned the matter over to CDMI, which acted tentatively and delayed a fix further by instructing the owner (instead of sending out a crew) to make an outside fix in -12 degree weather in the dark, which she attempted and had some success. That, however, is beyond the pale for risks and “maintenance” that homes with FDDs have to endure.
  • Finally, when the City ultimately arrived (because it was the City’s line that was frozen), the FDD had to be bypassed entirely and the FDDP project manager actually approved a reconnection at one home, which was apparently botched by Perimeter. The reconnect failed and virtually overwhelmed  the house with sewer gases. The owner who went out into the freezing night at CDMI’s instructions, soon thereafter developed chest pains and difficulty breathing and had to go stay with a daughter in Alaska for two weeks until the sewer gas problem was resolved. And even after the bypass, it took almost two days more for the City to clear the frozen lines (more than one, it seems) with high pressure and heated water. The owners have to sity by helpless to defend their properties from the City lines.

The City has not told neighbors anything close to the real story here. We know there are other homes where collection lines froze, and we’d like to know where they occurred. In the meantime, we suggest that owners write the City and demand reburial of the collection lines in their extensions now. Don’t wait. The owners affected by the two backups have demanded reburial, as well as demanding payment for a contractor not affiliated with the FDDP to dig up the gravity discharge line under the lawn that was installed by their “pre-qualified” FDD contractors. Perimeter, Hutzel, Bidigaire, Landscape Contracting and  RDC Residential Services, the lucky pre-qualified contractors, dug these under-lawn lines at thousands of homes and then connected the homes to the City’s absurdly shallow collection lines all over the City. Apparently, none of these contractors knows or cares what either the freezing point of water is or where the frost line is here.

Those under-lawn lines are buried even shallower than the collection lines, at only about 18 inches, so they are also a freezing risk. Even if the City collection line does not freeze, if the under-lawn line freezes, it will cause the whole FDD to fail just as catastrophically all by itself. FDDs, as of May 2014, are dangerous and undependable.

We want to state clearly that CDMI and the five pre-qualified contractors (with the City’s okay and money) created this mess. We strongly advise that you steer clear of CDMI, OHM-Advisors (including personnel working with the CAC) and any of the pre-qualified contractors in pursuing relief for yet another FDD problem we are forced to deal with. Get your own contractor. At this stage, a2underwater is willing to state our belief that the FDDP is a program affected by sweetheart deals and corruption and these companies have incentives to cover things up, not fix them. This is an unusual and uncomfortable situation for Ann Arbor, where people have traditionally trusted City government, but it is what it is. When a so-called “investigator” for the Citizens Advisory Committee turned up these two winter backups, he recorded the disasters; cited the FDDP Project Manager for the proposition that the problem was a “rare” harsh winter; concluded for some reason that the two winter backups were not indicative of a problem city-wide;  and then buried the report at OHM or the CAC. We beg to differ with the “investigator”: the two backups (and the others of the “handful of cases” he refers to) prove the City’s collection lines are another disaster waiting to happen to other homes–perhaps many more–even if future winters are no worse than the past one.

If you have information about frozen lines last winter or before, please email us at and let us know. If you have questions about remediation and dealing with the City, and don’t want to post them here, please email us and we will offer help. In the meantime, the owners of the two affected properties are prepared to pursue their remedies in court promptly if the help from the City is not forthcoming. This is one risk we categorically refuse to accept for another winter.

If you are fortunate and haven’t been disconnected and then connected to the unreliable City collection lines, this is a good time to decide that this isn’t going to happen at your home. If the City offers to redirect the discharge onto the property, such as to the backyard, tell them uncategorically “no.” That is just an invitation to another set of problems affecting two of the plaintiffs in the Yu v City of Ann Arbor case: landscape damage and recycling of sump pump discharge.

Homeowner Stories from the FDD Survey (3)

We are continuing our series of posts of homeowner comments on the FDDs completed in their homes.

We are just baffled that, with 33 pages in the FDDP Survey Summary full of sad and sometimes heart-breaking complaints about the effects of mandatory FDDs (and in the midst of the so-called “Temporary Delay”), negotiation of Development Agreements continues unabated for projects that will require FDDs in order to obtain their Certificates of Occupancy.

Many of the comments are relatively short and poignant, such as these:

  • We were one of the first repairs as we had so many instances of sewage backup and the floor was jack hammered up in 5 places to install check valves . . . these are problematic as I have already had to clear two of them including one from Mr. Rooter.
  • Basement floor cracks due to jack hammer use. Unsure if west-front footing drain is connected to sump. Seepage along west front of basement.
  • Having sump pump installed has ruined floor in utility room because installers had to drill and patch numerous holes. Cement is falling apart around pump rim. I hate the sump pump and think it was a waste of money to be installed. Never had an issue prior to installation, now it’s another piece of equipment to clean and maintain.
  • Had to replace vinyl tile in room with sump pump, due to installation at my expense and labor.
  • City never did final inspection to verify completion. Floor tiles left undone and ceiling was not restored. Trench settled and no filling by city. The sump has air hammer every time it operates and no reply from city about what to do. No follow through!

It only takes a minute to cut and paste the post above into an email and send it to the Mayor and City Council. Ask them what kind of program leaves owners with damaged basements, flooding, and emotional stress.

We will  have another Litigation Update later today.