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Lumbard v. City of Ann Arbor

United States Court of Appeals, Sixth Circuit

January 10, 2019

Lynn Lumbard; Anita Yu; John Boyer; Mary Raab, Plaintiffs-Appellants,
v.
City of Ann Arbor, Defendant-Appellee.

          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 ...


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