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CAC will not be able to recommend continuing mandatory FDD? Why not?

Posted by Charlie Fleetham on 23 Feb, 2014
Category: No category

On Saturday under the Legalities thread, Frank Burdick wrote:

We ultimately will not be able to recommend the continuation of a mandatory fdd program and that is why we should stay abreast of the legal side of this. I am not saying we should spend time at the CAC meetings on this or attempt to insert this into the ohm/pi agenda.
I am saying that this is a very serious issue that will be getting a serious review by the Courts very soon.
This assertion is phrased as a certainty versus a possibility and I am seeking to understand the reasoning behind this statement as follows:
1.  The City Council has not excluded the recommendation of continuing mandatory FDD as an outcome from the SSWWE Project.  
2.  As far as I know, the City Council is waiting for a CAC recommendation by July and has not initiated an effort to abort the SSWWE process.
3.  On Jan 9, the CAC agreed to not only take FDD legality off the table but it also agreed (or at least no one objected to) a recommendation that continuation of mandatory FDD was on the table for consideration.  As we already discussed the possibility of a minority report, what would prevent a sub-group of CAC members recommending continuation of the mandatory FDD program as is, or with changes?
3.  I. Mermelstein has stated in A2Underwater that he will be filing a lawsuit regarding FDDs.  Why would this filing automaticallly prevent the CAC from recommending a continuation of mandatory FDDs? 
4.  Let's assume some court ruled that the Ann Arbor ordinance was illegal and this ruling occurred within 120 days, why would this ruling prohibit a committee of citizens from making a contrary recommendation, especially in light of the fact that many hundreds of mandatory FDDs had been performed over the last decade?
5.  Would this lawsuit filing automatically suspend the SSWWE project and if so, under what grounds?  And, if this lawsuit asked for a suspension of the SSWWE, would not the City likely appeal this ruling (especially considering the investment in the project) and would not this appeal process play out over a period of many, many months?
6.  Again, assuming there is a lawsuit, why would a court not act as so many courts have in this domain, order and/or wait until the conclusion of an engineering evaluation of the program before making a ruling?  
By the way, the above comments are not about FDD legality.   These comments are about the work of the CAC going foward and how and why a lawsuit would prevent the CAC from recommending a contiuation of mandatory FDD.  If all or some of the CAC members agree  that they will recommend no more mandatory FDDs, I believe this would be one acceptable outcome from this project. I just don't get how  an external body/individual other than Council, can take consideration of continuing mandatory FDD off the table. 

Comments

Frank Burdick on 24 Feb, 2014:

I have never stated that the work of this cac should not or would not continue.  In fact, I have been pleading that we focus on the alternatives asap.  

I have also requested that we re-look at the alternatives that were engineered and evaluated in 2001. This was suggested so that we could come up with educated alternatives sooner rather than later.  Who is better and more qualified to initiate alternatives .... the SSO and the Consultants task force or a group of volunteers with little background in this industry?  It seems like a logical starting point.  This suggestion seems to be getting ignored.

I have submitted alternatives that are rejected or ignored. Another recent suggestion was presented by another member of the cac so that it might get some consideration.

As for the legal questions posed above by Mr. Fleetham, I would refer him to his own Attorney or the City Attorney to help clarify his understanding of the potential impact of litigation.

I want the work of the cac to continue.  I intend to stay involved for as long as my legal comfort can be maintained and assuming the "impermissable prior restaints" will cease. (Readers of this may need to do research on meaning of that term.)

I look forward to contributing suggestions for alternatives.  I also look forward to hearing some suggestions from others on the cac. I will not ignore their suggestions.

Thanks

Robert Czachorski on 24 Feb, 2014:

All in due time.  The technical team needs the results of the risk assessment and hydraulic capacity assessment to analyze the alternatives.  We are right on schedule for this, and in fact a little ahead (this was schedule for April and we bumped it up to March because of the CACs desire to get to it sooner).

Nothing has been ignored.  There was quite a lot of focus on the gravity backup option, and those discussions are still continuing and morphing, now with the focus on the floor drain and other backup options.  This idea has been thoroughly examined, and is the furthest thing from being ignored or rejected.

The idea of water conservation is something that we can evaluate the impact of with the model once the hydraulic capacity assessment is ready.  To comment now would be premature.  It is up to the CAC to judge the value of the idea relative to the impacts on the residents and the potential benefit to the system (which we can estimate with the model if the CAC wants to consider this option).

Take care,
Robert

Judy Hanway on 24 Feb, 2014:

It's important that the CAC continue to explore alternative solutions. As far as I'm concerned, I would not support doing any more mandatory FDDs on private property. If something can be done in the right of way, that's another alternative to consider. 

Charlie Fleetham on 24 Feb, 2014:

Perhaps I have been misunderstood.  My question about recommending continuation of mandatory FDD did not exclude consideration of any alternatives.  I was trying to understand the rationale behind the following statement by Frank Burdick:

We ultimately will not be able to recommend the continuation of a mandatory fdd program and that is why we should stay abreast of the legal side of this.

Frank Burdick on 25 Feb, 2014:

Regarding the statement, "All in due time.  The technical team needs the results of the risk assessment and hydraulic capacity assessment to analyze the alternatives."

I, and others I have spoke to, are concerned that there will not be enough time to properly evaluate the alternatives.  Based on the stated meeting topics for the upcoming meetings and the lack of progress made at the recent cac meetings I am beginning to wonder about this.  Like the sso member reported at the Jan Public Meeting, these alternatives may only have time for a cursury review while the final recommendation gets railroad-ed thru.  This cursury review process has already been applied to some alternatives.

Having coffee, bagels, and beer may help a few feel better about making some progress. However, real progress is measured when all of the the cac can receive the requested data from the consultants and the issues can be discussed openly in a fully attended group meeting.  

Robert Czachorski on 25 Feb, 2014:

I believe that Nick has said several times that if the CAC feels that there is not adequate time to review alternatives and make a recommendation, that the City can extend the schedule.  Attempting to follow the schedule is not an attempt to railroad something through - it is a courtesy to the CAC to keep the project on the schedule committed to at the beginning when CAC members signed up.  

Please try to "first seek to understand" before you throw the project team under the bus and accuse us of trying to railroad a recommendation through the CAC.  There are very reasonable explanations for our actions, and the City has been very reasonable in accommodating requests.  This is why we have the norms.  There is no need to communicate in this tone.

Thank you,
Robert

Frank Burdick on 25 Feb, 2014:

I am not aware that Nick H. stated the schedule could be extended. I do not support this extension. Let get this done.  

My reference to "railroading" was to make the comparison to woman at the last Public Meeting that stated that she felt that the SSO Task Force was not given enough info, and was rushed thru the process.

I think some on this string are way too thin skinned and should "first seek to understand" my comments.  

Joe Conen on 27 Feb, 2014:

I am looking to quality as a priority. I would not be personally eager to sacrifice quality to meet the published schedule. Unless someone has better information, my impression of our scheduled finish date was based on an estimate of the necessary time; not on an inherent value in the date itself.
So if we can make solid recommendations on schedule, I am all for it. If we need more time, we should take it. How is this flawed?
Joe

Robert Czachorski on 27 Feb, 2014:

Joe - that is a very good approach.  You are correct that the schedule was based on an estimated completion date.  It could certainly be changed.

Take care,
Robert

Michelle Lovasz on 27 Feb, 2014:

What Joe said.