Panel Offers Little Hope to Michigan Residents in Sewage Case

CINCINNATI (CN) – A Michigan city’s ordinance that required some residents to connect their home’s drainage systems to the municipal storm-sewer system and install sump pumps was challenged Wednesday as unconstitutional before a Sixth Circuit panel that appeared unlikely to rule in their favor.

Ordinance 32-01, passed by the Ann Arbor City Council in 2001, implemented the Footing Drain Disconnection Program, or FDDP, which was meant to “reduce backups from the city sewers and overflows from the sewer system … into the Huron River,” court records show.

The FDDP included mandatory inspections and replacement of storm water drainage systems in homes built between 1946 and 1973.

A group of residents sued the city, claiming the program “destroyed the foundation drainage system at houses that had been constructed decades ago … 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.”

Filed in October 2017, the federal class action alleged unlawful taking violations under the Fifth Amendment, but U.S. District Judge Stephen J. Murphy III dismissed the lawsuit last February before reaching the merits.

Judge Murphy sided with the city and ruled that the residents’ claims had already been litigated in a state court case, Yu v. City of Ann Arbor, which was dismissed.

The plaintiffs in that case moved to remand nearly identical claims to state court, and while Judge Murphy conceded that the application of res judicata, or claim preclusion, resulted in “harsh consequences” to the federal class of residents, he nonetheless reminded the plaintiffs “they had their day in court.”

On Wednesday, attorney Donald O’Brien Jr. argued on behalf of the Ann Arbor residents before  Sixth Circuit panel, calling the city’s sewer installations a “permanent, physical occupation of their homes.”

U.S. Circuit Judge Raymond Kethledge spoke at length during O’Brien’s argument, and while he said he sympathized with the attorney in “navigating the labyrinth” of the statutory framework associated with unlawful takings cases, he did not offer much hope for the residents’ cause.

“[It’s] pretty tough to avoid issue preclusion,” Kethledge said.

O’Brien, however, told the panel that because the Yu plaintiffs voluntarily chose to return to state court, federal claims were preserved for his clients.

Attorney Abigail Elias argued on behalf of Ann Arbor and urged the court to affirm Judge Murphy’s decision.

Elias told the panel the homeowners “don’t identify how federal [takings] law would be any different” than the state law used to dismiss the Yu case.

She said that because the language in Michigan’s takings law is “substantially similar” to that found in the U.S. Constitution, the district court properly dismissed the case.

“[There is] no right to multiple bites of an apple,” she said.

Judge Kethledge agreed with Elias during O’Brien’s rebuttal, and perhaps signaled a death knell for the residents’ federal claims.

“You have not identified a discrete, relevant difference [between federal and state law],” Kethledge said.

The panel also included U.S. Circuit Judges Alice Batchelder and Deborah Cook.

No timetable has been set for the court’s decision.

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