Irv Mermelstein, the local attorney who’s led the assault on the city and its Footing Drain Disconnection program, first met Abby Elias, the city attorney who wrote the FDD ordinance, in July 2012.
With Elias in the small city hall conference room that day were public services director Craig Hupy and FDD project manager Anne Warrow. With Mermelstein was Judy Hanway, a neighbor he introduced as his client.
“What is your desired outcome from this meeting?” Hupy asked Mermelstein.
“The city needs to discontinue use of Form 1,” the attorney replied, referring to a page in the information packet it was distributing to people whose storm-water drains were being separated from the city’s sanitary sewers. “And we ask you to notify everyone who signed it that these documents do not create an indemnity release.”
“We’re universes apart,” Elias jumped in. “There’s an obligation to disconnect, [and] it’s in the city’s interest to cover the cost of that disconnect. But that doesn’t make us liable.”
“Let’s adjourn,” Mermelstein shot back. “This is Contract Law 101. Whoever drafted this doesn’t know anything about contracts.”
“Any court that looked at this would find in our favor,” retorted Elias.
“Any court looking at this would conclude it’s not a contract,” snapped Mermelstein.
Though the meeting ground on for half an hour more, that was how it all began. Over the next three and a half years, Mermelstein issued a tangle of angry emails, grievances, motions, and lawsuits, all arguing that the city couldn’t stop people from putting rainwater into the sanitary sewer system–even though it sometimes caused sewage to back up in their neighbors’ basements. The litigation reached a climax early this year, when Washtenaw County Trial Court judge Tim Connors dismissed two lawsuits Mermelstein filed on behalf of unhappy homeowners–without even holding trials.
But three weeks after that initial showdown at City Hall, Mermelstein seemed exhilarated. “It’s going to the bar,” he told me happily at the time at his home in the Lansdowne neighborhood. “There will be a complaint against Abby personally. People lose their licenses [to practice law] over this. I want to change the players across the table.
“I’m sure she freaked out about the $51 million,” he continued, speaking of the cost in damages he’d estimated at the meeting. “That’s low. This will be a class-action lawsuit.”
Elias and her boss, city attorney Stephen Postema, beat back Mermelstein’s maneuvers to remove them from the case. His complaints to the Attorney Grievance Commission, the ACLU, the FBI, the EPA, and the Michigan Department of Environmental Quality went nowhere.
But Mermelstein has already filed an appeal of one of the dismissals, a process that is likely to take years. And even as his litigation faltered, the city has done what he wanted: it’s no longer compelling homeowners to disconnect their footing drains.
The program started after rainstorms in 1998 and 2000 flooded 490 basements with sewage. A task force of citizens, scientists, engineers, and staff blamed storm water pouring into the sewers from footing drains.
In heavy rains, the city estimated, storm water amounted to 70 to 90 percent of the flow in the sanitary sewers. Besides basement backups, it sometimes overwhelmed the sewage treatment plant, causing it to overflow into the Huron River.
So the city set out to disconnect an estimated 20,000 footing drains from the sanitary sewer system and reconnect them to the storm-water system via basement sump pumps. The FDD program started in the five neighborhoods most affected by sewer backups.
The city paid for the work with fees collected from developers, but the installations were done by private contractors. Property owners could opt out–but if they did, they faced a $100 per month “fee” for the storm water they continued to discharge. The program installed 2,744 sump pumps–one of them in my own basement–before council put a moratorium on new installations in 2012.
Mermelstein lives not far from me on the southwest side. He, too, was due to get a sump pump installed in 2012–but in March, the same storm that spawned the tornado in Dexter dropped two inches of rain on the neighborhood in three hours, turning low spots into ponds and streets into streams. Mermelstein’s basement didn’t flood, but several of his neighbors’ did–including some with new sump pumps put in through the FDD program.
That shocked Mermelstein into action and led to his July meeting with Elias–whom he soon tried get removed from the case. In a series of emails to Postema, Mermelstein argued that Elias had imposed a “gag order” on him by forbidding him to speak individually with the mayor, council, or staff. He added that he was “preparing a serious grievance” against Elias.
In one of many emails the Observer received in response to a Freedom of Information Act request, Postema reiterated that Elias would be handling the case. As for the “claim of a gag order,” Postema wrote, “Anyone can speak at a council meeting, even an attorney in the midst of litigation against the city. But it is not unusual for a department or a councilmember to request our office deal with a resident if there is a legal issue involved.”
Mermelstein also emailed the entire council, contending that “the City is now actively violating the eminent domain provisions of [the] Michigan Constitution.” Unless council immediately suspended the FDD program and repealed the ordinance, he warned, “I will be advising neighbors here to commence litigation.”
Mermelstein filed a complaint against Elias with the state bar’s Attorney Grievance Commission in early 2013.
“Neither you nor Ms. Elias has moved on this for seven months,” he emailed Postema. “This delay was careless and has now given rise to potential liabilities under federal law for the actions of the City, City officials, the City Council and councilmembers, and some ‘staff.’ There are questions about personal liability now.”
In emphatic boldface, he added: “None of your statements were responsive to anything in the record. You seemed, in fact, to be refusing to supervise by continuingly referring me back to Ms. Elias. The problem is that every factual predicate for every assertion by Ms. Elias is false–literally false.
“You will need to fire Ms. Elias,” the attorney insisted. “She is dangerous in government and a magnet for lawsuits. If you don’t fire her on ethical grounds, the City will have to fire her on grounds of dishonesty and abuse of authority, for starters.”
When Postema didn’t immediately reply, Mermelstein wrote him again: “You could not have handled this situation any worse if you tried.”
Postema responded later that day, rejecting Mermelstein’s demands: “The fact that you disagree with [Elias’s] legal analysis is no reason to remove her from this assignment.”
A week later Mermelstein filed a second complaint with the grievance commission–this time against Postema.
Escalating his campaign against the city attorneys, the attorney called on the mayor and council to evaluate their employment. And in a message to Postema copied to First Ward rep Sabra Briere, he wrote “I don’t want to hear from you or your office or Abigail Elias except through the Grievance Process. Don’t write me and don’t email me.” He added: “These Council Members need their own lawyers now and you need to get this whole FDDP mess to outside counsel.”
Asked now how she responded then, Briere says she didn’t. “I had nothing to which I should or could respond.” But, she adds, “I did not feel that there was any reason to think the city attorney was failing to provide adequate representation.”
After a few days and more emails, Mermelstein contacted Sumi Kailasapathy, the other First Ward rep, with a secret, a threat, and an offer.
“This is not for sharing now,” he opens. “Let’s talk first. The following [attachment] is a portion of a document going to a State agency late today. Frankly, if I were you, I’d be mad as hell. This is very ugly stuff.
“Each council member has been outrageously exposed to liability here,” the attorney continued. “Each council member could be sued individually, with individual liability. There are additional details that you absolutely need to have as a matter of urgency … but I will save that for a chat with you.”
Kailasapathy replied: “Sure. Thank you.” It was enough for Mermelstein to write back effusively: “You are most kind. It’s such a new experience to get a friendly email from City Hall. Can you take a call this evening?”
In his third email to Kailasapathy that day, Mermelstein made her an offer. “There will be lawsuits filed and that will make a big difference. You have no worries from me. If you have a lawyer and he wants a release of some sort for your protection, I’m willing to provide that.”
Kailasapathy never replied.
The Attorney Grievance Commission dismissed Mermelstein’s complaints against Postema and Elias in November 2013. Undismayed, Mermelstein contacted his council reps again in January 2014, including the newly elected Jack Eaton. A message sent to an email group that included Eaton’s private account opened with the word “CONFIDENTIAL” and ended, “they have their form of divide and conquer and we have ours. Our way is to drive a wedge between Elias and the City (entirely appropriately) by forcing Elias to turn on the City.”
Eaton, who’d received $500 from Mermelstein for his election campaign, replied quickly: “Anything you wish to communicate to the neighborhood as confidential, should not be sent to me at any of my email accounts. I hope that you understand that my position requires both that I represent the interests of my constituents and the interests of the City as an entity. Additionally, all communication I receive that relates to the City is subject to FOIA and therefore cannot be kept confidential.”
Mermelstein responded just as quickly–again to Eaton’s private email account. “Hi Jack, Funny thing is, that was [a] mistake, but it’s good to hear from you and it’s good for a Council Member to know something about the case about to be filed. I’d like to call you or email you about settlement. You are the natural candidate to be an honest broker.” The message ends blithely, “FOIA requesters can have this email.”
With help from two other attorneys, Mermelstein filed a lawsuit against the city on behalf of residents Anita Yu, John Boyer, and Mary Raab in February 2014.
Because the suit included federal and state claims, the city took it to federal court–where it was quickly sent back to state court. “So it’s back before judge [Don] Shelton,” Postema recalls, “who was leaving the bench at the end of August. And in July and August there was a whole set of motions filed.
“The motions were quite odd,” he continues. “One was to have Judge Shelton disqualify our office. They also wanted him to say that Judge Connors, who was going to take over [Shelton’s] docket, can’t have it. I’ve never seen a judge leaving the bench being asked to disqualify the person coming on.”
Shelton denied both motions, so the city attorneys remained on the case, and Connors took over as judge. “They moved right away to [disqualify] Judge Connors,” recalls Postema. “But Judge Connors says, ‘I’m not going to disqualify myself.’ Then they go to the Chief Judge Swartz and file another motion to disqualify Judge Connors.” Swartz rejected that one.
While the motions flew, Mermelstein filed a second lawsuit, the class action case he’d threatened two-and-a-half years earlier. And he kept lobbying council. In June, he again emailed Jack Eaton’s private account to say that he had “met with the FBI for three hours this week and advised the FBI of Council inaction, and yours. You should never have let this matter sit unattended. I’m not responsible for the consequences.”
Eaton didn’t reply to that email, but five months later, Mermelstein sent him another message, this one with the subject line “Privileged: Personal Matter Concerning Past Representation.” He wrote: “I will need an affidavit from you stating that you represented me, that I am not misguided, that I did not file a Grievance about the FDDP, and all the rest.”
He added: “It is in all our interests to support you and enhance your power on Council. This is a lot of information you are getting from me, gratis, that no one on Council has and I am prepared to keep you well informed.”
Eaton, a labor attorney, explains by email that he’d served as Mermelstein’s lawyer in his grievances against Postema and Elias. “Prior to taking office, I terminated the relationship,” he adds.
Asked what he made of the offer of support, Eaton emails: “I understood Mr. Mermelstein to mean that he would continue to write emails such as the one that contained that remark. Instead, we had a couple of heated conversations that pretty much ended his contacting me.”
Mermelstein’s first case finally came to trial in January of this year. It was dismissed by Judge Connors the same day.
The plaintiffs claimed “the sump pumps and the footing drain disconnect were the government’s property,” Postema says. “It came down to a very simple point: we don’t own these things. You have to have a toilet in your house. This doesn’t mean that the government owns your toilet.”
Still undismayed, Mermelstein appealed that ruling a month later. Connors dismissed the class action suit in March, since the claim behind it was the same as in the previous suit. In mid-May, Mermelstein had yet to appeal that ruling.
Mermelstein declined to be interviewed for this story, but he’s recruited John Bursch, a former state solicitor general, to assist with the appeal. And filings indicate that if he loses in Michigan, he expects to sue the city again–this time in federal court.
While Mermelstein has been by far the most aggressive and vocal, he’s by no means the only critic of the FDD program, After the 2012 storm, I met several neighbors who blamed their flooded basements on the sump pumps the city had made them install.
That September, city council halted the FDD program. “I thought it was time, after a critical mass of houses had gone through the City’s FDD program, to pause for re-evaluation of the program,” emails Margie Teall, who sponsored the resolution. “I didn’t see it as a permanent end to the effort, but certainly the storms in 2012 brought our attention to the need to look at other possible solutions.”
In 2014, a citizens’ advisory committee declared the program’s mission accomplished, saying “additional FDDs are no longer needed in the original five (5) target areas.”
The committee identified several “hydraulic deficiencies” in storm sewer lines that needed to be addressed. But though the city had worked through less than one-seventh of the disconnects originally envisioned, members unanimously recommended that the current program end and that any future program should be “voluntary, incentivized, and robust.”
Patrick Lyons wishes the city had done that it that way from the start: “I’d have been a lot happier if they’d come at me with honey than vinegar,” he says.
Like me, Lyons lives in the Dicken neighborhood and had an FDD done at city expense. I saw water in my basement several times after mine was installed. The contractor inspected, blamed it on soil disturbed by the work, and promised it would go away. It did.
Lyons should be so lucky. He says all the lots behind his–“an acre or more”–drain toward his house. A former builder turned home inspector, he’s seen rainwater flooding into a sanitary sewer firsthand, and wants to help. But even after putting in three rain gardens to capture runoff, a lot of water still gets into his footing drains.
In the past, that water flowed by gravity to the deeply buried sanitary sewer. Now it collects in the sump in his basement, where it has to be pumped up to drain into the shallower storm sewer.
Lyons says he tells his clients never to buy a “pump house”–one that collects groundwater and needs constant pumping to stay dry. Now, he says, he has one himself.
In wet weather, the pump runs so often that it woke his family at night. He paid $2,000 to have it relocated to another part of the basement. When the overworked pump blew a gasket, he paid to have a water-powered backup installed that will work even if there’s a power failure.
He’s currently building yet another rain garden to reduce the flow into his footing drains. But he doesn’t think it’s fair that homeowners like him who’ve been through the FDD program have to deal with such annoying and expensive problems. While most Ann Arborites are still sending storm water to the sanitary sewers, he’ll be maintaining sump pumps as long as he lives in his house.
“I got took,” he contends. “I got took because of that $100 fine, and because of my altruism–I don’t want the Huron River to be full of sewage.”
The study found that about 2 percent of FDD installations were faulty, and the city has another study underway to determine what it will take to correct those. But council never followed through on a recommendation to provide water-powered backup pumps.
When I describe Lyons’ situation to mayor Christopher Taylor, he says he says he doesn’t recall why the backup pumps weren’t provided. But he defends the city’s stance: “It’s important to look at the program in light of the problem it was meant to solve,” he says. “Sewage in the basements was a problem when the program was initiated, and it’s not a problem now. It’s a localized problem, but it is not a systemic problem. That’s imperfect, but that’s an improvement.
“I of course have a lot of empathy for the resident you’re describing,” the mayor adds. But he doesn’t see situations like Lyons’ “as City Hall’s problem. It’s the community’s problem.”
This article has been edited since it was published in the June 2016 Ann Arbor Observer. Judy Hanway’s first name has been corrected.
Irv Mermelstein emailed to point out an error in our description of the timing of his second appeal. It was filed in March, 2016, prior to the article’s publication.