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.