Brown v. City of Barre, Case No. 5:10–cv–81.

Citation878 F.Supp.2d 469
Decision Date12 July 2012
Docket NumberCase No. 5:10–cv–81.
PartiesBrenda BROWN and Earl Brooks, individually and on behalf of all others similarly situated, Plaintiffs, v. CITY OF BARRE, VERMONT, Defendant.
CourtUnited States District Courts. 2nd Circuit. District of Vermont

OPINION TEXT STARTS HERE

Christopher Curtis, Esq., Karen L. Richards, Esq., Vermont Legal Aid, Inc., Montpelier, VT, for Plaintiffs.

Joseph A. Farnham, Kevin John Coyle, McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS' CROSS–MOTION FOR SUMMARY JUDGMENT

(Docs. 110, 114)

CHRISTINA REISS, Chief Judge.

This matter comes before the court on the motion for summary judgment filed by Defendant City of Barre, Vermont (the City) (Doc. 110) and the cross-motion for summary judgment filed by Plaintiffs Brenda Brown and Earl Brooks, individually and on behalf of all others similarly situated (Doc. 114). The court certified this as a class action on December 13, 2010, 2010 WL 5141783, defining the class as “all tenants in the City of Barre, Vermont from February 17, 2007 to the present whose leases include City water paid for by the landlord/ratepayer and who have had or are at risk of having their water service disconnected by the City because their landlord/ratepayer's water bill was or is in default.” (Doc. 69 at 13).

Plaintiffs assert claims under 42 U.S.C. § 1983, alleging that the City violated their constitutional rights in the actual or threatened termination of water service to them based upon their landlords' failure to make water payments to the City when due. As part of their constitutional challenge, Plaintiffs argue that Vermont's Uniform Water and Sewer Disconnect Statute (“Vermont's Disconnect Statute), 24 V.S.A. §§ 5141–5151, is constitutionally deficient. The State of Vermont has filed an amicus brief, addressing this claim.1

Plaintiffs are represented by Christopher Curtis, Esq. and Karen L. Richards, Esq. Defendant is represented by Joseph A. Farnham, Esq. and Kevin J. Coyle, Esq. The State of Vermont is represented by Assistant Attorneys General Megan J. Shafritz and Micaela Tucker.

I. The Undisputed Facts and the Operative Law.
A. Plaintiff Brenda Brown.

At the time she filed the initial Complaint, Plaintiff Brenda Brown lived at 74 Summer Street in Barre, Vermont, with her adult son and daughter-in-law. Jeffrey and Mary Beth Tevis owned 74 Summer Street and were Plaintiff Brown's landlords. Plaintiff Brown paid $650 per month in rent to them, which she asserts included water service. Plaintiff Brown's sole source of income is a monthly Supplemental Social Security check in the amount of $726.

During the relevant time period, the Tevises had an account with the City for water service. The City sent bills to Mr. Tevis on a regular basis which included charges for the water used by Plaintiff Brown and all other tenants in the building. The building had only one meter to measure the water usage for all tenants.

In April 2009, Mr. Tevis became delinquent in his payment of the water bill for 74 Summer Street. The City sent Mr. Tevis a notice of delinquency on October 14, 2009, after his account had been delinquent for two quarters. On October 18, 2009, Mr. Tevis and the City entered into a repayment agreement, pursuant to which he made an initial payment of approximately $600 and was obligated to pay the city $150.92 per month plus current charges until his outstanding balance was paid in full. Mr. Tevis made regular payments until December 11, 2009, but made no payments thereafter.

On January 7, 2010, the City sent a letter by certified mail to Mr. Tevis, advising him that he had breached the repayment agreement, and offering him an opportunity to cure that breach by paying $150.92 under the repayment plan for the month of December, as well as the charges that had accrued after the Tevises failed to make the December payment. Plaintiff Brown did not receive a copy of this letter.

On January 19, 2010, Plaintiff Brown received a hand-delivered notice from the City advising that water service to 74 Summer Street would be disconnected the following day due to her landlord's default. The notice was addressed to the Tevises and advised that payment of $571.57 was required by the close of business that day to prevent water service termination. Plaintiff Brown contacted the City to ask how she could maintain water service. She was told that she could pay $571.57 immediately, plus $150.92 representing the amount due under the repayment plan. The City's policy is that continuation of water service is predicated on payment of any arrearages irrespective of who pays the arrearages. The City informed Plaintiff Brown that she could not establish a new account in her own name because she was not the property owner. Plaintiff Brown was unable to afford the required payments, and her water service was disconnected on January 20, 2010. Plaintiff Brown made a written request for a hearing regarding the disconnection, but the City denied that request because she was not a “ratepayer.”

Later in the day on January 20, 2010, the City reconnected water service to 74 Summer Street due to an erroneous belief that water was required for the heating system in the building. Plaintiff Brown informed the City that she received her Social Security check on the first of every month and that, on February 1, 2010, she would pay the Tevises' bill. She did not pay the bill on that date. Plaintiff Brown attempted to contact Mr. Tevis but was unsuccessful. On February 3, 2010, the City again disconnected water service to 74 Summer Street.

The next day, on February 4, 2010, Plaintiff Brown underwent foot surgery and was discharged the same day. Because she had no running water in her apartment, she was forced to carry water upstairs to cook, clean, and flush the toilet. Plaintiff Brown also required water to care for the surgical site on her foot. After approximately two weeks without water service, Plaintiff Brown obtained a state court injunction requiring the City to restore water service. The state court injunction was based on a physician's certificate stating that Plaintiff Brown had a medical problem which required access to water. The state court ordered the City to continue water service to Plaintiff Brown, provided she paid for her actual usage, with the understanding that the City would continue to bill Mr. Tevis. At that time, Plaintiff Brown was the only tenant living at 74 Summer Street.2

B. Plaintiff Earl Brooks.

Plaintiff Earl Brooks lives with his wife at an apartment located at 37 Summer Street in Barre, Vermont which he rents from Barrett Gregoire, the building's owner, for $650 per month. Plaintiff Brooks claims that he agreed with Mr. Gregoire's representative that rent would include water usage. The City regularly sent bills to Mr. Gregoire that included charges reflecting the amount of water used by Plaintiff Brooks and all other tenants in the building. The building has only one meter measuring water usage for all tenants. Mr. Brooks's sole source of income is a monthly Supplemental Social Security check in the amount of $726.04.

As of January 1, 2010, Mr. Gregoire's account was approximately $460 in arrears. The City sent a notice of delinquency letter to Mr. Gregoire on April 20, 2010, after his account had been delinquent for two quarters. On May 12, 2010, Plaintiff Brooks received a hand-delivered notice from the City stating that water service would be disconnected the following day due to Mr. Gregoire's default. The notice advised that payment in the amount of $1,238.39 must be made to avoid disconnection. When Mr. Brooks contacted the City, he was told that the City was only dealing with Mr. Gregoire regarding water service for the building. Thereafter, Mr. Gregoire entered into a payment plan with the City, made monthly payments, and water service to his apartment building was not disconnected.3

C. Vermont's Statutory Scheme Governing Water Service.

Vermont law requires a rental dwelling unit to be “safe, clean and fit for human habitation” including the provision of “an adequate amount of water.” 9 V.S.A. § 4457. Vermont's Rental Housing Health Code states that “every dwelling unit ... shall be connected to: a supply of water sufficient in quantity and pressure to meet the ordinary needs of the occupant(s).” Vt.Code R. § 111(D)(1). Vermont law authorizes and empowers municipalities to provide such water service “and distribute the same through such municipal corporation for the purpose of supplying the inhabitants thereof with water for fire, domestic and other purposes.” 24 V.S.A. § 3301.

When a municipality supplies water to a rental dwelling unit, Vermont law imposes a number of statutory requirements. First, Vermont's Water Works Statute imposes personal liability upon the actual user of a municipality's water service for the cost of water used, stating [t]he owner or occupant of any tenement, house, or building, who takes the water of [a] municipal corporation shall be liable for the rent or price of the same[.] 24 V.S.A. § 3306. In the event of nonpayment, [t]he charges, rates or rents for water shall be a lien upon the real estate furnished with the municipal corporation water in the same manner and to the same effect as taxes are a lien upon real estate.” Id. If water bills “remain unpaid more than two years after the creation of such lien, such lien may be foreclosed in the same manner as provided by law for the foreclosure of mortgages on real estate.” 32 V.S.A. § 5061(b).

Second, Vermont's Disconnect Statute authorizes municipalities to disconnect water service “as a delinquency collection procedure.” 24 V.S.A. § 5141. “Disconnection” is defined as “the deliberate interruption or disconnection of water ... service ... to a ratepayer by the servicing municipality for nonpayment of water ... charges.” 24 V.S.A. § 5142(2). “Delinquency” is defined as the...

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