District of Columbia v. North Wash. Neighbors, 10301.

• Decision Date: 22 December 1976
• Docket Number: No. 10301.,10301.
• Citation: 367 A.2d 143
• Parties: DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellants, v. NORTH WASHINGTON NEIGHBORS, INC., et al., Appellees.
• Court: D.C. Court of Appeals

Page 143

367 A.2d 143

DISTRICT OF COLUMBIA, a Municipal Corporation, et al., Appellants, v. NORTH WASHINGTON NEIGHBORS, INC., et al., Appellees.

No. 10301.

District of Columbia Court of Appeals.

Argued April 22, 1976.

Decided December 22, 1976.

Rehearing and Rehearing en Banc Denied March 8, 1977.

E. Calvin Golumbic, Asst. Corp. Counsel, Washington, D. C., with whom Louis P. Robbins, Acting Corp. Counsel, Washington, D. C., at the time the brief was filed, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellants.

Gilbert Hahn, Jr., Washington, D. C., for appellees.

Before KELLY, KERN and GALLAGHER, Associate Judges.

KERN, Associate Judge:

The District of Columbia appeals from an order (1) permanently enjoining it from enforcement of certain rules and regulations regarding the repair of water pipes by the residents of the District, (2) declaring it liable for the expense, in the future, of repairing such pipes, and (3) directing it to reimburse residents who within three years of the date of filing of the complaint in this case had incurred expense for such repairs. This case was earlier before us in District of Columbia v. North Washington Neighbors, Inc., D.C. App., 336 A.2d 828 (1975), where we reversed the trial court's decision to grant a preliminary injunction on the ground that the plaintiffs had an adequate remedy at law.

The appellees represent (1) a class of plaintiffs whose water pipes have broken in the past and (2) a class of plaintiffs whose pipes may break in the future.

The basic issue in the case is whether the District has the authority to require individual citizens to bear the cost of repair of the pipes connecting their individual water systems to the District's water mains when they break or whether the District itself must bear that cost, eventually passing it along in the form of higher user rates to all consumers of water within the city.

The trial court's order, entered after an evidentiary hearing, is a detailed document which essentially found that the rules and regulations relied upon by the District did not, by their terms, convey authority to compel repair of the pipes by the individual property owners using them; that, even if those rules and regulations did supply such authority, they were void because they were not promulgated in accordance with the Administrative Procedure Act, D.C.Code 1973, § 1-1501 et seq. (hereinafter DCAPA); that, even if the rules and regulations conformed to the DCAPA, they violated the Equal Protection and Due Process clauses of the Constitution because the District itself had on several occasions in the past repaired the pipes of individual property owners when "there is no other way of getting work done" (Record at 173); and that, in any event, the District was liable under a tort theory to the individuals whose pipes had broken because the District itself had proximately caused such breaks by the improper control of traffic on the streets above the pipes and the inadequate construction of the streets and the pipes so as to withstand subsequent wear and tear.

For the reasons set forth below, we reverse the order of the trial court and hold that the District of Columbia has authority, under the applicable statutes and regulations, to compel property owners to repair the water pipes which connect their individual water systems to the District's water mains and that the District of Columbia is not liable in tort for breakage or other damage occurring to these pipes.¹

It is undisputed that the District of Columbia Code places upon individual property owners the sole responsibility for connecting initially their own water systems with the public water and sewer main by means of underground water pipes, "the work to be done in accordance with the regulations governing plumbing and house drainage." See D.C.Code 1973, §§ 6-401 to 6-404. Although these particular provisions of the Code do not specify that the responsibility for repairs of the water pipes once they have been constructed and connected to the public water system remain with the property owner, D.C.Pol. Reg. Art. 23, § 5 provides:

No occupant of premises into which water has been introduced shall permit the same to run or waste unnecessarily from any water pipe . . . or, if any water pipe . . . be found leaking, out of repair, or inoperable, and said occupant, owner or agent of the premises shall refuse or neglect to have the necessary repairs made, after due notification by . . . Water Operations Division . . the supply may be terminated to said premises until satisfactory repairs or arrangements have been made to prevent such waste or unlawful use; and, in addition, the person so offending shall be liable to the fine provided in these regulations. (Emphasis added.)

This Regulation in our view places on the property owner or occupant who receives water from the city the duty of repairing "any water pipe" so as to avoid water waste and provides the District with two remedies against one who fails to accept that duty — termination of water service and a fine.

The trial court in its order drew a distinction between the term "water service pipes" (being those which run under public property) and the term "water pipes" (being those which run under private property). The trial court concluded from this distinction that the Police Regulation was intended to apply solely to leaks occurring on private property only since the term "water pipes" is used in Section 5 of Article 23. The record reflects (Record at 48-9) that the correct distinction to be drawn is between the water main distributing water throughout the city and the pipe running from the main to the plumbing system inside each structure. Moreover, the Regulation refers to "any water pipe," and we see no reason why the term does not mean exactly that — any water pipe running between the main and the individual's plumbing system.

We note that D.C.Pol.Reg. Art. 23, § 5 is not the only expression contained in the regulations of the District of Columbia that the property owner shall himself be responsible for keeping his water pipes in good repair. The Model Plumbing Code, § 105.3, provides that plumbing systems must be maintained in a safe and sanitary condition "by the owner or his authorized agent." We cannot agree with the trial court that this pronouncement applies only to buildings constructed subsequent to the effective date of the Model Plumbing Code in 1972. The City Council, adopting the Code, expressly provided that it should govern "the installation, maintenance and repair of all plumbing work in the District of Columbia." Title 5C-2, DCRR No. 72-19 (Appendix A § 1) (emphasis added).

In addition to these regulations specifically directed to water pipes and plumbing, the District is granted sweeping remedial and enforcement authority in D. C.Code 1973, § 5-313. This section provides:

Whenever the owner of any real property in the District of Columbia shall fail or refuse . . . to correct any condition which exists on or has arisen from such property in violation of law or of any regulation made by authority of law, . . . the Commissioners of the District of Columbia may, and they are authorized to, cause such condition to be corrected; assess the cost of correcting such condition . . . as a tax against the property . . . and collect such tax. . . . (Emphasis added.)

This statute, read in conjunction with D. C.Pol.Reg. Art. 23, § 5² and provisions of the Model Plumbing Code, confers on the District authority to order property owners to repair leaking water pipes and enforce such authority by fine or by termination of the property owner's water service, or, in the discretion of the Mayor and his representatives, to repair the pipes and assess the cost of such repair against the property served. Although none of the applicable statutes or regulations specify that the property owner must bear the costs of excavation,³ refilling of excavation, and resurfacing of streets, we think that such result is reasonable because those costs are clearly incidental to the cost of repairing the pipes.

The trial court held that D.C. Pol.Reg. Art. 23, § 5 was invalid because it was not issued in compliance with the terms of the DCAPA which required certain procedures of publication before a regulation was deemed in force and effect. We disagree with this conclusion. The requirement of the DCAPA that regulations already in existence, such as the regulation here pertinent, be published was met by the July 27, 1970 Special Edition of the District of Columbia Register, which incorporated the District of Columbia Police Regulations. D. C. Human Relations Commission v. National Geographic Society, 154 U.S.App.D.C. 255, 257, 475 F.2d 366, 368 (1973). Furthermore, there is no merit to the appellees' contention that regulations existing prior to the time the power to issue police regulations was transferred from the Commissioner (now Mayor) to the City Council must be reenacted by the Council in order to maintain their validity. Reorganization Plan No. 3 of 1967 merely effected a transfer of the power to make rules and regulations prospectively. There is nothing in the Plan to indicate that the extant slate of prior rules and regulations was to be wiped clean, and, in fact, Congress expressly provided that regulations in existence prior to reorganization should retain "the same effect as if the reorganization had not been made." 5 U.S.C. § 907(a).⁴

We must also disagree with the conclusion of the trial court that the letter of July 21, 1971, to Senator McGovern,⁵ in which the District outlined its reading of the regulations relevant to repair of water pipes, was...