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Leaky village could face a lawsuit

Fairview Water Main
DPW workers dug up the water main on Fairview St. looking for a reported leak in June. "They found another leak within less than a month's time, that's kind of scary. It's not our job to be watching our sump pump to let them know if another leak has come about," Nancy Archer said, resident of 829 Fairview. (click for larger version)
October 02, 2013 - The Lake Orion Village Council addressed two issues with the village water main underneath Fairview Ave, a road shared by both township and village residents.

The first issue involved approval to contract with village engineering firm Hubble Roth and Clark (HRC) to prepare a topographic survey and design plan to potentially replace 650 linear feet of the water main.

Added to that approval was the go-ahead to request bids for the water main replacement, either with open cut methods or by a pipe bursting process.

The 650-foot segment was skipped in the last water main upgrade in 1998 to 1999, and current leak(s) have caused damage to one residence.

That household is at 829 Fairview.

Homeowners Nancy and Dave Archer requested to be placed on the village agenda. They filed a $15,000 insurance claim August 15 for water damages to their house caused by the Fairview water main. The claim was denied by the village's insurance company.

Although their house is technically in Orion Township, the township's water supply stops at Indianwood Rd. and Central Drive. Thus the Archers pay the village to use their water main at Fairview.

The village's insurance company, The Michigan Municipal Liability and Property Pool, rejected their claim on September 6 citing the Governmental Immunity Act.

The act protects municipalities from tort liability while engaged in the exercise or discharge of a governmental function such as the defect of a highway or public building, negligent operation of a motor vehicle, civil rights violations, zoning appeals or land use issues, sewage disposal events or other claims. Accepted claims must meet "grossly negligent" accountability.

"If we have a law in place in the state of Michigan that severely limits people's ability to be able to recover any sort of damage, through lack of maintenance, or lack of proper watering system, then there doesn't seem to be a lot of impotence for the town or city to keep those systems in repair," Dave Archer said. "This is not the first incidence of water leaks on Fairview."

The Archers told council their next step is to pursue litigation.

"We have retained an attorney and we are going to proceed," Dave said. "It really isn't right. It affected us, and we feel we should receive something back. They're (the village) there for a reason. They're not there to have an insurance company say how little they can help somebody without getting sued."

Village Manager Darwin McClary said he definitely empathizes with the Archers, and invites them to take any remedy possible but that the village is not legally responsible.

"When you feel that you believe that you've been harmed, it's not an easy thing to accept and I definitely understand that, but the protection is there for the community as a whole, for the taxpayers as a whole, for the water and sewer system users as a whole, not for any individual," he said.

McClary said the Archers would in reality be suing themselves and the other citizens who pay for the water main if they proceeded because taxpayers ultimately pay for the lawsuits.

"People aren't always happy that government has immunity, but there's a reason," he said. "We could not provide you with water service and sewer service, with police protection and fire protection if we did not have immunity from lawsuits. We would be constantly getting sued."

It all started when water began leaking into the Archer's basement June 12.

The village informed them it was probably a leak in their personal water line, and arrived a day later to turn off the water.

According to the Archers, the problem persisted, if not worsened. After the water was turned off and within a week's time they dug up their water line, excavating a five-foot by seven-foot chunk of their driveway to clearly determine if there was a leak.

There wasn't. So they contacted Jeff Sears, Department of Public Works director, and asked him to inspect their water line. Sears confirmed it was not their line, and sent a crew out the next day.

On June 21 the village DPW crew spent from 7 a.m. until 8 p.m. digging up the water main on Fairview and found and repaired a leak.

Nancy said for about three weeks after water continued to enter the Archer's basement. Flooring, carpeting, and drywall was all torn out, and the Archers placed absorbent pads all along the walls to soak up the water still coming in.

"In three hours they would be totally saturated. And then you go and wring them into buckets, and that would take about an hour and a half, so every three hours it would take an hour and a half, 50 percent of your waking life," Dave Archer said.

"I just got to the point where I said 'Dave, I just cannot do this anymore,"' Nancy Archer said. The couple are business owners, and Nancy had to stay home those three weeks to mop water.

"That's lost income," she said.

On July 9 a B-Dry basement waterproofing system was installed, which purges any excess water outside with a sump-pump that was added to the basement, keeping the situation under control.

Sears was the main point of contact between the village and the Archers, and went back to the Archer's on August 16, four weeks after the B-Dry system was installed, to test purging water for chlorine.

It tested positive, indicating it was indeed the water main leaking.

The Archer's requested maintenance records for the Fairview water main, and Sears is currently doing research on the history.

"The water main breaks have been sporadic, I'm back to about 2007 right now. We are , averaging three a year on Fairview," he said. "Which is average, I would say, on an older water main. It's not the worst I've seen, it's not the best I've seen. But all the leaks that were reported were fixed in a timely manner. The reason we are replacing it now is because we've seen an increase in the past two to three years in main breaks, so we know that the main is getting worse."

Unlike other segments of village water main, Fairview's pipe is four inches in diameter.

"I believe our engineers recommend a minimum of an eight inch line anywhere in the community," McClary said. "When those lines were installed, four inches was completely acceptable and then over time municipalities moved to six inch mains, and now the recommended minimum is eight inches, and that is I believe what we would be proposing."

Both McClary and Sears do not know why the Fairview water main was not included in the water main replacement program in 1998 and 1999, speculating that a limited amount of money could have prevented its maintenance.

Multiple Fairview residents, village and township alike, attended the Sept. 23 meeting.

"Is it a fire hazard of not having that water main corrected as soon as possible?" Donna Champagne asked. "Right now if we had a major fire in that area I don't believe, unless they brought pump trucks to pump it out of the lake, that that fire could be extinguished."

Champagne also commented that the village "should have a fund so that the people who pay the high taxes on the lake or people who pay these taxes get some kind of benefit out of it when their property is destroyed through no fault of their own, but the fault of the DPW or the village not doing due diligence on these utilities."

Sears first started talking to HRC in June about looking into massive repairs or replacing the entire system. McClary received a proposal from HRC for repairs in mid-august.

"The engineers have estimated that the total cost of the project including the engineering costs will be around $97,000, and if that ends up being the case my recommendation to council would be to proceed," McClary said.

It is the village's practice to have the insurance carrier determine whether or not the village is legally responsible, and to follow the advice of the insurance carrier, he continued.

There are no other leaks in the village that Sears is aware of, but there is also no way to pinpoint a leak unless it surfaces at the ground.

"You probably would think that if this sort of thing happened, they (the village) would do something for you," Dave Archer said. "You might have to kick and scream— which we expected, but we thought 'alright, let's take it to the next step', and we got the same thing, which is what surprised us most," Nancy Archer continued. "I think people need to be aware that this could happen to them very easily."

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