Dear Mr. Welton,
I have accepted the inviitation to meet with you, along with OHM, Nick Hutchinsen, and other SSWWE CAC citizen volunteers on 12FEB at 6:30 pm.
I am writing to you at this time to present a list of issues that I would like to discuss at our meeting. I wanted to send you these so that you will have time to prepare for my questions. The other attendees may also have other issues that I am not aware of. I certainly want all attendees to have time to ask their question so I wanted to give you my list ahead of time. The following are the issues that I would like to address.
1. The current FDD program is being enforced as a retroactive code according to a City Ordinance. I would respectfully ask that you review the email that was previously sent to you from Irv. Mermelstein (attached below) and provide your response to the retroactive enforcement issue of the FDD program.
2. Your department has rejected outright the gravity served "back up" system as noted on the attached sketch. We received a short paragraph citing a Code that we could not decipher. We also asked if this Code interpretation could be modified or a variance sought with the State Code Officials. We understand that you have stated that you would not seek any type of variance on this proposed back up system. I understand the concern of some that a homeowner could disable the sump pump and defeat its' purpose. I also know that there is technology available, similar to the remote Water Meter readers, that could be installed and monitored to insure that the sump pumps were in fact working properly. What is you reason for not seeking a variance on this issue?
3. We have been told by the City Attorney, that the City can and does retroactively enforce this Code issue due to the "health and welfare" of the public" Based on the survey results recently received regarding the FDD program, I feel that the health and welfare of the many flooded basements caused by failed sump pumps, should also be considered. Destroyed belongings, black mold, and de-valued homes are all reasons in my mind to request a variance in the Code to allow this gravity supported sump pump back up system. Can you plan to respond to this?
4. I have many questions regarding the actual "plumbing" configuration of the existing FDD program. I will limit them to just the following 3 at this time.
a. Per the attached Footing Drain Section view, I need to have you help me understand the actual slope and/or flow of the existing footing drains WHEN the sump pump IS not installed at the existing "low point" due to a homeowners request. See also the My House sump discharge route sketch. What prevents the footing drains from becoming clogged if the sump pump is not installed at the lowest point?
b. Frost closure at the FDD air gap. The Plumbing code for vents through roofs reads,
"Michigan Plumbing Code:
R 408.30753a Roof extensions. Rule753a. Section 904.1 of the code is amended to read as follows: 904.1. Roof extension. All open vent pipes that extend through a roof shall be terminated at least 1 foot (305 mm) above the roof, except that if a roof is to be used for any purpose other than weather protection, then the vent extensions shall be run not less than 7 feet (2134 mm) above the roof. History: 1998-2000 AACS. R 408.30754 Rescinded. History: 1954 ACS 81, Eff. May 19, 1975; 1954 ACS 91, Eff. June 16, 1977 R 408.30754a Frost closure. Rule 754a. Section 904.2 of the code is amended to read as follows: 904.2. General. To prevent frost closure, every vent extension through a roof shall be a minimum of 3 inches in diameter. Any increase in the size of the vent shall be made inside the building a minimum of 1 foot below the roof or inside the wall. History: 1992 AACS; 1998-2000 AACS. R 408.30754b Extensions outside a structure. Rule 754b. Section 904.7 of the code is amended to read as follows: 904.7. Extensions outside a structure. Vent pipes installed on the exterior of the structure shall be protected against freezing by insulation or heat, or both.
As you know, the current FDD design has the 2" pvc discharge line that exits the house, routed directly downward to a 3" or 4" diameter enlarged pipe or cone. There is a green plastic "leaf block" device seperating the 2 pipes. The purpose of this air gap is to allow the underground lateral pipe that is routed to the curb line pipe, to be allowed to discharge right against the house, in the event that this same curb line can not accept the flow from multiple concurrent sump pumps on this same 4" curb line.
So here are my questions
b.1 What prevents any of the piping near this discharge line from freezing up during the winter months, especially this winter. I have witnessed homes with sump pumps continuing run sporadically, during the recent extreme cold temperatures. Hence, my concerns are that the inside of the the 2" HDPE pipe below the air gap, can serve like an "inside out" icicle. That is, each time the pump discharges, a layer of water remains, freezes, and eventually, builds up enough to block the flow. What is your response?
b.2 See the following question from my Questions Log.
77OHM has indicated that the October 31,2013, flow test performed on the horizontal bored curb line included 5 total FDD homes. It has also been stated that the location of many existing catch basins is such that only a limited number of homes (5,6,7,8) are connected to the new curb line before being discharged into the nearest catch basin. On Winsted Blvd, there is only one catch basin to handle the entire cul de sac. There are 10 to 12 homes per each side of the street. Will the capacity of the new horizontal bored curb line be adequate to accept the simultaneous flow from 10 to 12 FDD sump pumps?
Mr. Welton, can you provide the Plumbing Code calculation that would help me understand the capacity of the curb line pipe size?
Thank you Mr. Welton, I look forward to meeting with you.
Frank Burdick
Date: Thu, Nov 7, 2013 at 11:10 PM
Subject: Ann Arbor SSWWES Citizens Advisory Committee--Non-retroactivity of State Code on Sump Pumps Effective January 1982
Dear Mr. Welton,
Judith Hanway, Aram Kalousdian and others join me in this email. I am cc'ing the City Attorney's Office to expedite review.
I understand that your office provided the Sanitary Sewer Wet Weather Evaluation Study (SSWWES) CACmembers with a section of the State Building Code on sump pumps that went effective on January 1, 1982, as support for the the legality of mandatory FDD after 2001. I have no indication that this was a retroactive code requirement and I am trying to clarify your position. I understand other residents have inquired about this as well.
The written City position I have on retroactivity is from Abigail Elias, the City's FDDP counsel, on March 26. The City Attorney has generally agreed with that position, which I am quoting below. I disagree with that position. The highlighting and bolding are mine and my comments are below each quoted sentence. Ms. Eliias states:
The City of Ann Arbor's footing drain disconnect ("FDD") program is similar to programs in many cities across the country in which older homes with footing drains connected to the sanitary sewer system before building codes prohibited such connections are being required to disconnect from the sanitary sewer systemand connect to the storm sewer system.
I don't disagree with the first sentence
as a matter of history
,
but it appears to me to be a description of something that the City should not have done, not that it should have done just because other
local governments
said they had also done so.
I have doubts about the legality of some of those other programs. The position of the City Attorney's Office continues:
The illicit connections to the sanitary sewer system contribute to combined storm and sanitary sewer overflow to streets and waterways and sanitary sewer backups into basements, including the basements of the properties that have footing drains that drain to the sanitary sewer system; hence the need for the disconnects
.
T
here are
various
factual inaccuracies
here
,
but
the major one is the use of the word "illicit."
One
question
for your office, then,
is whether you agree that there is anything "illicit"
about
the footing drain connections
, for example,
between
my ca. 1966 house
and the
sanitary sewer lines
in the right of way
.
"Illicit" is a
strong word meaning
unlawful
or illegal and these connections
seem absolutely legal to me.
My house at 2099 Ascot Rd., like a lot of houses on this street, was built under a building permit granted by the City in the 1960's for construction in 1966 under 1966 building codes and on an approved subdivision on a legal site. The house passed all inspections by the City; the Permit was completed; and the City duly issued a Certificate of Occupancy for the property, including the connected footing drains. It's on file with the City.
There was no code requiring sump pumps then, which is neither my fault nor the fault of other Target Area Residents. The houses were built to code. Stair riser height codes change too. That doesn't mean that people have to put new staircases in whenever the code changes. Who would build or buy a house if that were the law?
Particularly in the case of a completed structure, the Michigan courts have been very clear for a long time that the owner has a "vested property right" that includes immunity from retroactive changes in building codes. That is a big legal problem and you should consult with the City Attorney's Office about it. I have a vested property interest in my whole home, including its footing drain connections to the sanitary sewers.
The sump pump code wasn't a fire code or a code concerning immediate and "noxious" hazards emanating from the houses, so there is no reason to suggest that the 1982 sump pump code was retroactive. I am not saying that you are agreeing that it is, but the question remains at the CAC and among the public whether you do. Storm wateris not "noxious" and I think the City should look to the location of the "noxious" materials involved, which are in the sewer lines in the right-of-way, for a solution to problems caused by an undersized and cracked sanitary sewer system.
The next important statement in the City's position per Ms. Elias is as follows:
[A] footing drain disconnection brings a property into compliance with construction code requirements that have been in place since the early 1980s; the sump pump and other facilities incorporated into the home are no different than the facilities in a newer home built with a footing drain discharge to the storm sewer system and sump pump, which are part of the home, are owned by the property owner and benefit the property and its owner(s).
This is more like a statement of the retroactivity problem, than an answer to it. It is an admission by the City, not an explanation. My house is not required to be brought "into compliance" with later building codes unless I perform an improvement. If I decide to upgrade my kitchen, the kitchen has to be built to code, and nothing else has to be brought "into compliance." I don't see why city personnel inspected these properties in the first place. The City's contractor, CDMI, seems to have told the City in 2000 that these inspections were legal and no one seems to have questioned CDMI on that.
As for the "benefit" of FDDs, I only know one couple in the Ward 4 Target Areas who believe that FDDs "benefit the property and its owner." I would appreciate feedback on that from any readers of this email. An installation that has a definite historical risk of flooding and a definite O&M obligation to go with is a burden, not a "benefit." I don't see any "benefit" to the homeowner with the FDD and the sump pump. "Benefits" to others are entirely unproven and unprovable.
The 1982 State Code was NOT retroactive either on ts face or under Michigan law when it became effective and that not even one pre-1982 footing drain connection was rendered "illicit" when that code provision went into effect in 1982. If it were, my house would have been in violation of a code for 19 years before theFDD Ordinance started calling the sanitary sewer connection "improper."
This would also mean that the rest of the approximately 18,000 pre-1982 single family homes city-wide that are outside the Target Areas, but in the City limits, have all been out of code now for 31 years. That would probably be a surprise to those homeowners as well as the fact that the City expects to require mandatory construction in their houses to cure the so-called "illicit discharge" at some point in their future or their buyers' future. The 31-year non-compliance period assumes that the City's position is that the code became retroactive starting in 1982, as opposed to 2001, when the FDD Ordinance passed. The latter position would mean that all pre-1982 single family houses have been out of code for only 12 years, rather than 31, but still very much out of code. If this were really a building code applicable to all like properties, why has there been no enforcement outside of the Target Areas?
Instead, enforcement is selective for some reason and it is the fact that the FDD Ordinance is in fact applied little neighborhood by little neighborhood, and house by house quite literally. As a result, a disproportionate burden of "compliance" with this supposed retroactive requirement has fallen entirely on about 3% of the City's population.
So, the big question is how a local ordinance in 2001 (that doesn't mention the words "building code" or "construction code") made a non-retroactive STATE building code suddenly retroactive 19 years after the fact. If that is what the FDD Ordinance was intended to do, then it would have been a remarkable local ordinance, because it would have purported in 2001 to retroactively modify a 1982 STATE building code to make that codealso retroactive (in my case and others) from 1982 to 1966. That's just too much retroactivity for any straight building code.
This also raises the question why lawfully connected footing drains are "illicit" and out-of-code in Ann Arbor, but not in Jackson, Ypsilanti or Pittsfield Township, because they have no mandatory FDD Ordinances. From the standpoint of uniformity of codes, that makes no sense to me.
I would appreciate your views as the chief code enforcement official in Ann Arbor. These issues are time-sensitive and I look forward to hearing your response. I request that you reply to all cc's on this email. I would like to make sure that the City Attorney's Office is on board with your opinion or you with theirs.
If the City is unable to resolve these questions internally, I would be asking whether necessary clarification might be needed, such as from the Bureau of Construction Codes in Lansing. This issue is not confined to Ann Arbor, after all.
Thank you for your assistance.
Irv Mermelstein
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