Footing Drain Disconnection Federal Class Action: Important Court Documents
The FDD Federal Class Action, Lumbard et. al v City of Ann Arbor, was served on the City of Ann Arbor on November 27, 2017. These are links to the important documents filed so far in the case. We will keep this updated with later filings.
The City has moved to dismiss the Complaint and the Class Plaintiffs have responded.
The next due date is January 19, 2018 for the City’s Reply to the Class Plaintiffs’ brief opposing the City’s Motion to Dismiss. The City may or may not choose to file this Reply. If it does, the homeowners may ask for the Court’s leave to file a last reply brief. The hearing date on the City’s Motion to Dismiss, an important hearing, is set for March 14, 2018, at the Federal Courthouse in Detroit.
This is the Class Action Complaint against the City of Ann Arbor filed by four Ann Arbor owners of homes where footing drain disconnections were completed under the City of Ann Arbor’s mandatory FDD Program. They brought suit on behalf of themselves and all others similarly situated. The name of the case is Lynn Lumbard, et al. v City of Ann Arbor, filed in United States District Court for the Eastern District of Michigan. The case is before United States District Court Judge Stephen J. Murphy III.
The City’s principal argument is that homeowners “chose” to have the foundation drains in their homes disconnected and that they now “own” the installations in their homes. The City argues that FDDs are the homeowners’ “responsibility” now, not the City’s. As stated in the Complaint, the City Council in November 1973 passed a law, City Ordinance 8-73, grandfathering homes with connected footing drains against disconnection. The City states this law was repealed. That statement is incorrect. The law was moved to another part of the City Code, recodified and has remained on the books for almost 45 years.
This is an important document to understand the City’s legal position that FDDs are not violations of the prohibition in the Fifth Amendment to the Unites States Constitution against government takings of private property without “just compensation.” It rebuts the City’s arguments in its Motion to Dismiss that FDDs were voluntary and the installations now belong to the homeowners, whose “responsibility” they are.
The Class Action Complaint states that City law since November 1973 has grandfathered all homes with footing drains that were already connected to the City against the actions of a future City Council or Administration to require disconnection. This was not part of any public presentation or City publications about FDDs or the FDD Program. The text is as follows. The caps are in the original Ordinance passed by the City Council:
Prohibited Uses of Sanitary Sewer. No person shall discharge, or permit to be discharged, into any sanitary sewer, STORM WATER, SURFACE WATER, SUB-SURFACE GROUND WATER, CONDENSATE, COOLING WATER, OR SIMILAR LIQUID WASTE, EXCEPT AS PROVIDED FOR IN CHAPTER 98 OF THIS CODE. ANY DEVELOPMENT THAT IS SUBJECT TO FLAT OR SITE PLAN APPROVAL AND CONCERNING WHICH FINAL APPROVAL HAS NOT BEEN GRANTED PRIOR TO THE EFFECTIVE DATE OF THIS ORDINANCE, SHALL BE DESIGNED WITH AN ADEQUATE ENCLOSED STORM SEWER SYSTEM THAT WILL RECEIVE ALL DISCHARGES FROM THE ABOVE-MENTIONED SOURCES BY GRAVITY. THE DESIGN OF THE STORM SEWER SYSTEM SHALL BE SUBJECT TO REVIEW AND APPROVAL BY THE SUPERINTENDENT OF PUBLIC WORKS. THE ABOVE PROVISIONS SHALL NOT APPLY TO EXISTING STRUCTURES THAT HAVE FOOTING DRAINS PRESENTLY CONNECTED TO SANITARY SEWERS.
The history of Ordinance 8-73 is explained in detail in the text of the Class Action Complaint.