by P.D. Lesko
ANN ARBOR POLITICAL insiders ask the question: Could Irv Mermelstein be the next Tom Weider? Between 1995 and 2002 Weider, a feisty redhead and hard-nosed attorney, represented a group of substitute teachers against the Ann Arbor Public Schools and won a $31 million class action suit on behalf of 300 people.
A footing drain disconnect (FDD) class action lawsuit scenario is one step closer.
On Nov. 22 Judge Timothy Connors refused to dismiss Yu v. City of Ann Arbor. The case revolves around a claim of unconstitutional takings, inverse condemnation. Plaintiffs in the case, Yu v. City of Ann Arbor, are three Ann Arbor residents who had their footing drains disconnected under the city’s Footing Drain Disconnect (FDD) program.
This means that the plaintiffs’ attorney —Mermelstein— is moving forward with preparations for a jury trial, including depositions.
If Ann Arbor property taxes seem high now, should a class action suit by Mermelstein attract just 1,000 of the homeowners whose homes were disconnected from the city’s stormwater sewer systems and in whose homes sump pumps were installed, the payout could be a multiple of what Tom Weider’s lawsuit paid out to his clients.
Taxpayers could be on the hook for a high eight-figure liability—an amount equal to the city’s entire General Fund balance for a single year.
This would be on top of the $20 million the city has paid since 2001 for thousands of sump pump installations, the money paid to consultants to oversee the installations and the money paid to repair problems associated with the installations done by “pre-qualified” contractors. The money the city has paid staff attorneys (one of whom vetted the FDD program when it was first proposed) to defend against the suit filed by Mermelstein on behalf of three city residents has to be factored in, as well.
According to Irv Mermelstein, the FDD program “stinks” and the smell has little to do with the sewage backups. It starts with “pre-qualified” contractors selected to do the installations.
One of the “pre-qualified” contractors who has been given a significant share of the $20 million FDD market is a company owned by former city employees and founded shortly before Council adopted the FDD ordinance.
It’s not just sewage back-ups Mermelstein alleges the “shoddy” sump pump installations have caused. He’s looking at connections between the installations and higher than usual radon levels and incidents of lung cancer. High radon levels are the number one cause of lung cancer in non-smokers, according to the National Cancer Institute. Mermelstein is also looking at incidents of black mold, which he suggests may be connected to sump pump installations, as well.
In response to a January 2014 survey by OHM Advisors, the city’s present consultant on the Sanitary Sewer Wet Weather Evaluation Project, 59 percent of the 400 respondents who said they “had problems with water flooding, seepage or dampness” still had problems after FDD work.
Since 2001, residents in certain areas of Ann Arbor have been required to install sump pumps in their homes or face $100 per month “opt-out” fines—all so that downtown development could continue apace, say critics of the program.
Sources say Attorney Stephen Postema is confident that Mermelstein will not win the suit. The same sources question Postema’s cheery outlook, particularly since Irv Mermelstein, an Ann Arbor resident and the plaintiffs’ attorney, says he relishes the opportunity to depose city staff, particularly Craig Hupy, the city’s public services administrator.
Mermelstein hints that he will depose the city’s former public services administrator Sue McCormick, who now heads the Detroit Water and Sewerage department. It was McCormick’s decision to shut off water to almost 30,000 Detroit residents in a get-tough effort to collect back payments.
The move backfired.
The United Nations accused Detroit Water and Sewerage of violating “a fundamental human right” in withholding water from residents.
McCormick was at the heart of Ann Arbor’s FDD program’s development, a consultant-recommended alternative to the expansion of the city’s sanitary sewer system. In 2001, records show it was estimated that it would cost nearly $100 million to expand the city’s aging and aged sewer system—the cost is now estimated at closer to $300 million.
Rather than spend the money, a program was developed which would force thousands of residents to be disconnected from the system and require them to, instead, rely on sump pumps.
In January 2014, Ann Arbor Asst. City Attorney Abigail Elias told the public at a meeting about the city’s embattled Footing Drain Disconnect program that “she remains confident in the city’s justification for the FDD program, which is that it’s in the interest of public health, safety and welfare.”
Shortly before his June 2014 retirement, Judge Donald Shelton dismissed that argument.