Lynn Lumbard v. City of Ann Arbor
332675
| Mich. Ct. App. | May 9, 2017Background
- During heavy rains in late 1990s–2000s Ann Arbor sanitary-sewer backups occurred because many homes’ footing drains discharged stormwater into the sanitary system.
- City enacted an ordinance requiring homeowners with footing drains tied to the sanitary system to disconnect them and offered a program (prequalified contractors; up to $3,700 reimbursement) to install sump pits/pumps routing water to storm system or exterior discharge.
- Homeowners (Yu; Boyer & Raab; Lumbard) had city-arranged sump installations; they claimed ongoing maintenance burdens, placement disputes, yard damage, and flood damage from pump failures.
- Plaintiffs sued alleging inverse condemnation (permanent physical occupation takings) and related federal claims; federal claims were dismissed by stipulation.
- Trial court granted summary disposition for the City, ruling no per se physical-occupation taking because plaintiffs retained ownership of the installed equipment; consolidated appeals followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether forced installation/maintenance of sump pumps and related equipment by the City constitutes a per se taking by permanent physical occupation | The City permanently and physically occupied plaintiffs’ properties by forcing installations and imposing maintenance burdens, interfering with ownership rights (exclusion, enjoyment) | No physical-occupation taking because plaintiffs retained ownership and control of the installations; ownership defeats a per se occupation claim | Court affirmed: no per se physical-occupation taking where plaintiffs owned the installations and retained ownership rights |
| Whether ownership of the installed equipment precludes a categorical taking analysis | Ownership is irrelevant if governmental action interferes with ownership rights | Ownership is dispositive—if owner controls use/maintenance/disposition, no functional ouster occurred | Court held ownership is central; owner’s control over installation prevents finding a permanent physical occupation |
| Whether plaintiffs preserved the ownership issue for appeal | Plaintiffs argue ownership should not bar their claim because rights of exclusion/enjoyment were impaired | City contends plaintiffs waived ownership issue and admitted ownership below | Court found plaintiffs waived dispute about ownership at trial and, on the merits, plaintiffs in any event owned the installations |
| Whether summary disposition was appropriate under MCR 2.116(C)(10) | Plaintiffs contend factual disputes (placement, inability to move/replace) preclude summary judgment | City argues no genuine issue of material fact; legal bar to relief as matter of law | Court concluded no genuine factual dispute that plaintiffs owned/controlled equipment and granted summary disposition for City |
Key Cases Cited
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (permanent physical occupation is a per se taking; ownership of installation affects analysis)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (framing categorical takings and regulatory takings frameworks)
- Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (categorical taking where regulation deprives all economically beneficial use)
- Penn Central Transp. Co. v. New York City, 438 U.S. 104 (multifactor test for noncategorical regulatory takings)
- Tolksdorf v. Griffith, 464 Mich. 1 (Michigan Takings Clause substantially similar to federal)
- Cummins v. Robinson Twp., 283 Mich. App. 677 (distinguishing categorical takings; physical-occupation rule explained)
- Latham v. Barton Malow Co., 480 Mich. 105 (standard for MCR 2.116(C)(10) summary disposition)
- Peterman v. State Dep’t of Natural Resources, 446 Mich. 177 (takings analysis centers on deprivation of ownership/use)
- AFT Michigan v. Michigan, 497 Mich. 197 (Michigan Takings Clause can be broader than federal in some contexts)
- Quinto v. Cross & Peters Co., 451 Mich. 358 (opposing party must present documentary evidence to defeat C(10) motion)
- The Cadle Co. v. City of Kentwood, 285 Mich. App. 240 (waiver precludes appellate review)
- Varran v. Granneman, 312 Mich. App. 591 (definition and effect of waiver)