The U.S. 6th Circuit Court of Appeals declined to hear a challenge to a city program requiring the installation of sump pumps in residents’ homes, ending the fourth such lawsuit Ann Arbor has faced over the initiative.

A 2001 ordinance established the Footing Drain Disconnection Program to alleviate storm water drainage problems, and while the city reimbursed homeowners for the cost of the renovations, the residents claimed in the lawsuit the city’s program was unconstitutional. They referenced the Fifth Amendment’s Takings Clause, which bars the seizure of private property for public use without just compensation.

City Attorney Stephen Postema said in a statement the city’s program was not a “taking” under state or federal law and the cases brought against Ann Arbor were groundless.

“The U.S. 6th Circuit Court of Appeals ruled that this federal case was without any factual or legal merit,” Postema said. “… As has been true from the start, the City’s Footing Drain Disconnect Program does not constitute a taking under the Michigan Constitution or the federal Constitution. None of this litigation should have ever been filed. The City Attorney’s Office will always vigorously defend the city from such lawsuits.”

Circuit Judge Alice Batchelder wrote the opinion affirming a previous decision by District Court Judge Stephen J. Murphy III to dismiss the case. Batchelder wrote the residents were barred from bringing federal claims that were fundamentally equivalent to the ones thrown out in state court.

“Issue preclusion bars subsequent litigation of the federal takings claim after litigation of the state takings claim on the merits,” Batchelder wrote.

In 2000, City Council passed an ordinance mandating residents install sump pumps after rainstorms flooded basements with sewage. In addition to causing residential backups, the storm water caused problems at the sewage treatment plant, sometimes resulting in overflow being discharged into the Huron River. The FDDP sought to deal with those issues by disconnecting footing drains that mixed sewage and storm water, using instead sump pumps to reroute the rainwater to the city’s storm water drainage system and away from the sanitary sewer system.

The FDDP has been the subject of multiple lawsuits brought by residents. A 2014 complaint filed on behalf of homeowners Anita Yu, John Boyer and Mary Raab, who went through the program in the early 2000s, alleged the FDDP amounted to the unlawful taking of private property in what the plaintiffs claimed was the absence of due process or just compensation.

According to the complaint, while the plaintiffs “previously enjoyed the peace of mind and repose which comes from having dry basements and no water problems,” after they went through the program, they “experienced the inconvenience associated with the installation of the sump pump and related equipment, the ongoing burdens associated with the maintenance and operation of the sump pumps and, in general, the diminution in their quality of life attributable to the FDDP.”

Irvin Mermelstein, a local attorney, and Dan O’Brien, a contract lawyer from New York, worked together on the 2014 effort, which ultimately failed. Mermelstein also represented Lynn Lumbard, who in 2015 filed a complaint against the city on identical grounds. It, too, was thrown out. In 2016, the two cases were consolidated and brought before the Court of Appeals, which upheld the lower court’s ruling in favor of the city.

Mermelstein and O’Brien collaborated on the most recent case against the city, which involved the same four plaintiffs as the previous challenges. The federal lawsuit, filed in the Eastern District of Michigan in 2017, alleged violations of the Constitution’s anti-slavery provisions and the Takings Clause.

The plaintiffs complained the program “destroyed the foundation drainage system at houses that had been constructed decades ago and appeared to be functioning as designed” and “replaced it with a system of unwanted operating equipment, inside and outside their homes, that is burdensome, costly, unsafe, noisy and incompatible with the peace of mind and comfort the Plaintiffs enjoyed.” The circuit court heard oral arguments in early December 2018.

Mermelstein said despite the circuit court’s ruling, the case was not yet over.

“For the record, this case is still in active litigation,” Mermelstein said. “It would be inappropriate for us to comment on the record at this time.”

Circuit Judge Kethledge issued a concurring opinion. He noted the plaintiffs had received compensation, as they owned the sump pumps the city installed in their homes.

“But the Takings Clause does not say that private property shall not ‘be taken for public use, without just compensation, and without remedy in state court,’” he wrote in his opinion. “Instead the Clause says that private property shall not ‘be taken for public use, without just compensation’ period. And that plainly means that, if the taking has happened and the compensation has not, the property owner already has a constitutional entitlement to relief.”

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