Lumbard v. City of Ann Arbor, 011019 FED6, 18-1258

Docket Nº:18-1258
Opinion Judge:ALICE BATCHELDER, CIRCUIT JUDGE.
Party Name:Lynn Lumbard; Anita Yu; John Boyer; Mary Raab, Plaintiffs-Appellants, v. City of Ann Arbor, Defendant-Appellee.
Attorney:Donald W. O'Brien, Jr., WOODS OVIATT GILMAN, LLP, Rochester, New York, for Appellants. Abigail Elias, CITY OF ANN ARBOR, Ann Arbor, Michigan, for Appellee. Donald W. O'Brien, Jr., WOODS OVIATT GILMAN, LLP, Rochester, New York, for Appellants. Abigail Elias, Stephen K. Postema, CITY OF ANN ARBOR, ...
Judge Panel:Before: BATCHELDER, COOK, and KETHLEDGE, Circuit Judges. KETHLEDGE, Circuit Judge, concurring.
Case Date:January 10, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Lynn Lumbard; Anita Yu; John Boyer; Mary Raab, Plaintiffs-Appellants,

v.

City of Ann Arbor, Defendant-Appellee.

No. 18-1258

United States Court of Appeals, Sixth Circuit

January 10, 2019

Argued: December 5, 2018

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-13428-Stephen J. Murphy, III, District Judge.

ARGUED:

Donald W. O'Brien, Jr., WOODS OVIATT GILMAN, LLP, Rochester, New York, for Appellants.

Abigail Elias, CITY OF ANN ARBOR, Ann Arbor, Michigan, for Appellee.

ON BRIEF:

Donald W. O'Brien, Jr., WOODS OVIATT GILMAN, LLP, Rochester, New York, for Appellants.

Abigail Elias, Stephen K. Postema, CITY OF ANN ARBOR, Ann Arbor, Michigan, for Appellee.

Before: BATCHELDER, COOK, and KETHLEDGE, Circuit Judges.

OPINION

ALICE BATCHELDER, CIRCUIT JUDGE.

In 2000, the City of Ann Arbor passed an ordinance requiring certain homeowners to undergo structural renovations to their homes to alleviate storm water drainage problems affecting the city and surrounding areas. The City paid or reimbursed the homeowners for the renovations. In 2014, the Appellants, homeowners affected by the ordinance, pursued litigation in Michigan state courts alleging that the City's actions amounted to a taking without just compensation under the Michigan Constitution. At the outset of litigation, the Appellants filed an England Reservation in an attempt to preserve a federal takings claim for subsequent adjudication in federal court. The Appellants lost in state court and then filed suit in federal court alleging causes of action under the Fifth Amendment of the United States Constitution and under 42 U.S.C. § 1983. The federal district court dismissed the Fifth Amendment claim as issue precluded and the § 1983 action as claim precluded. We AFFIRM.

I.

The Appellants in this case are property owners in and around the City of Ann Arbor, Michigan ("City"). The houses on their properties were built between 1946 and 1973. At the time of their construction, in accordance with City regulations, the houses were outfitted with drainage piping that emptied both storm water and sanitary sewage into a single "combined sewer system." In 1973, the City modernized its sewer system by adding a separate sewer system exclusively for storm water. After the completion of the new sewer system in 1973, the City passed an ordinance requiring that any new structures be built to discharge storm water to the storm sewer system and sanitary sewage to the old combined sewer system. Existing structures were exempted from the ordinance.

The City's population continued to grow and the strain on the sewer systems came to a head in the years between 1997 and 2002. In each of those years the City experienced several tremendous rainfall events which resulted in overflows of the old combined sewer system including sewage overflow into public streets and the Huron River, and backups of sewage into City residents' basements. In early 2001, the City established a City Task Force and retained engineering consultants to study the problem and devise a solution. The City Task Force ultimately recommended a public works program that would disconnect the exempted homes in the older neighborhoods of the City from the old combined sewer system. The "Disconnect Program" would reroute the storm water drainage from selected homes to the storm sewer system, while maintaining the sanitary sewage outflow to the sanitary sewer system.

In August 2001, the City enacted Ordinance 32-01 ("Ordinance"). This Ordinance effectively repealed the 1973 exemption by declaring that all homeowners with pre-existing combined outflow drainage piping were in violation of City regulations. The Ordinance empowered the Director of the Utility Department ("Director") to select properties within the "Target Areas"1 to be required to undertake the sewer work required by the Disconnect Program. Owners of selected properties had 90 days to comply, after which they would be fined $100 per month of noncompliance. All selected properties were eligible for a publicly funded installation by contractors preselected by the Director or up to $3, 700 in reimbursement for an installation done by private contractors selected by the property owners.

The Disconnect Program required the excavation of a three-foot-by-four-foot sump pit in the foundation of the structure, connection of an electric pump, and the installation of piping that would send the ground water and storm water from the house to the storm water sewer nearby. This project could involve jackhammering into the foundation, penetrating walls, ripping up lawns, and hanging visible piping in and around the house through which the electric pump would pump water to the outside. After installation of the system, the homeowner would be responsible for...

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