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)
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,
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.
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 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.
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
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.
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 occupants).” VtCode 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 hable 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 “failure of the ratepayer to tender payment for a valid bill or charge.” 24 V.S.A. § 5142(3). The Disconnect Statute does not define the term “ratepayer.”
A “ratepayer” may avoid water service termination pursuant to several statutory exceptions which include delinquencies of less than fifteen dollars; charges that are the subject of a pending appeal; a delinquency due only to nonrecurring charges
No municipality shall disconnect service to a ratepayer unless payment of a valid bill or charge is delinquent as defined herein, and notice of disconnection has been provided previously to the ratepayer. A copy of the notice shall be sent to the occupant of a residential dwelling which will be affected by the disconnection if the occupant is different than the ratepayer.
24 V.S.A. § 5143(a). The form of notice must be clearly printed on a pink colored sheet of paper and set forth the following information:
Date
$-
AMOUNT IN ARREARS
Dear Customer:
According to our records, your (water) (sewer) service account is still unpaid. Please make full payment of the account or contact our office to make satisfactory arrangements before__If this is not done, we will no longer be able to extend credit and will have to discontinue your service, on that day or any one of the following four business days. (Under the law, “Business days” means Monday through Thursday, excluding legal holidays, when the offices are not open to the public). An unpaid bill is a lien on your real property, and may lead to tax sale proceedings.
SPECIAL CHARGES — Section 5151 of Title 24, Vermont Statutes Annotated, provides that we charge a fee for coming to your location to collect the amount overdue. Also, the same statute provides that we shall charge a reconnection fee for restoration of service if your service has been disconnected for nonpayment. These fees are as follows: Collection Trips — $25.00, regardless of number
Reconnection — Normal Hours — $25.00 Overtime — $37.50
Interest according to 32 V.S.A. § 5136(a)
If payment has already been sent, we recommend that you contact our office to make certain that payment is recorded on your account by the indicated date as such payment may have become delayed or lost in the mail. Payment in the mail does not constitute payment until received by us.
THIS IS A FINAL REQUEST FROM:
(Name of Credit Supervisor)
(Name of Municipality)
(Address of Municipality)
(Town)
Vermont (Zip Code)
(Telephone Number)
OTHER IMPORTANT INFORMATION — If you have a question concerning this bill or if you want to seek an agreement with us to pay the balance due in partial payments over a period of time, you should contact this office as soon as possible after receipt of this notice. In the event an agreement is entered into, failure to abide by the terms of agreement can lead to disconnection without farther notice. If disconnection would result in an immediateand serious health hazard to you or to a resident within your household, disconnection will be postponed upon presentation of a duly licensed physician’s certificate.
APPEALS — If you cannot reach agreement as to payment of this bill with the credit supervisor whose name appears above, you may appeal to:
(Name of Chairman of the Local Legislative Body)
(Name of Town, City or Village)
(Address of Office)
(Mailing Address) or by calling:
(Telephone Number)
An appeal cannot be taken unless you first attempt to settle with the credit supervisor. You may appeal only as to the proper amount of your bill or the correctness of application of the rules and regulations. You may not appeal as to the level or design of the rates themselves. No charge shall be made for the appeal. However, undisputed portions of the charges giving rise to this notice must be paid before the disconnection date given above.
24 V.S.A. § 5144.
The Disconnect Statute requires at least fourteen days’ notice prior to a disconnect, 24 V.S.A, § 5142(5),
The selectboard shall promptly and fairly hear any or all appeals by the ratepayer after notice to all interested parties. During appeal, disconnection will be postponed. Upon just cause shown, the selectboard may grant exceptions to any ratepayer. The selectboard may appoint one or more members of the selectboard to act as hearing officers for the purposes of the appeal. Alternatively, the selectboard may appoint a responsible citizen to act as a hearing officer for the appeal.
24 V.S.A. § 5147.
The Disconnect Statute requires the municipality to restore water service when an agreement is reached with the “ratepayer.” 24 V.S.A. § 5146. The Disconnect Statute contains no provision pursuant to which anyone other than a “ratepayer” may obtain a restoration of service.
The person who actually disconnects service must do so only between the hours of 8:00 a.m. and 2:00 p.m. “of the business day specified on the notice of disconnection, or within the same hours during the four business days thereafter,” 24 V.S.A. § 5145(a), and shall “immediately inform a responsible adult on the premises that service has been disconnected or interrupted, or if no responsible adult is then present, shall leave on the premises in a conspicuous and secure place a notification advising that service has been disconnected or interrupted and what the ratepayer has to do to have service restored.” 24 V.S.A. § 5145(b).
Although a municipality may adopt “further procedures, ordinances, or rules providing greater protection for consumers” than is required by Vermont’s Disconnect Statute, 24 V.S.A. § 5148, there is no authority to provide less.
D. The City’s Charter and Water Ordinance.
The City is a municipal corporation whose Charter states ■ that “[t]he [C]ity
The City implements its water supply services through its Water and Sewer Ordinance (the “Ordinance”) which requires that new applications for water service be “signed by the owner of the premises to be supplied.” Ordinance § 19 — 23(b). The Ordinance further provides that, “the water department ... in furnishing water ... shall deal only with [the] owner of the premises.” Id. § 19-24. The Ordinance requires “the owner of any premises desiring to use city water [to] keep the water department advised, in writing[,] of the address to which all bills, notices and other communications to him [are to be] delivered.” Id.
The Ordinance allows the City to “withhold the water supply from any person failing or refusing to comply with any of [its] provisions or requirements ... or the regulations of [the water service] department approved by the council,” id. § 19-36(a), and treat such failure or refusal as “a relinquishment of all right to use city water.” Id. Prior to a termination of water service, the “user of water on the premises in question” must be given “not less than three (3) days[’] notice.” Id. § 19-36(b).
The City has adopted the federal housing quality standards set forth in 24 C.F.R. § 982.401 as the City’s “Minimum Rental Housing Standards.” Barre City Ordinances, § 7-6(b)(i) (“The federal housing quality standards § 982.401 shall be adopted as the minimum housing standards for the City of Barre[.]”). The adopted federal standards impose several mandatory requirements related to water service, including the requirement that the unit “be served by an approved public or private water supply that is sanitary and free from contamination,” 24 C.F.R. § 982.401(i)(2), “have a fixed basin in proper operating condition, with ... hot and cold running water,” 24 C.F.R. § 982.401(b)(2)(ii), “have a kitchen sink ... with ... hot and cold running water,” 24 C.F.R. § 982.401(c)(2)(ii), and have a “flush toilet in proper operating condition.” 24 C.F.R. § 982.401(b)(2)(i).
E. The City’s Water Service Policies and Practices.
The City’s municipal water service is the sole source of piped potable water in Barre. Water service bills are sent only to the “ratepayer” including notices of defaults. There is a base rate for water and service of approximately $80 per quarter (or $320 per year) that must be paid as a “ready to serve” charge even if no actual water is used.
The City’s shutoff notices for water service are set forth on the City’s letterhead with the heading “FINAL NOTICE” in bold font with large capital letters. In large font, the notice provides the name of the landlord and a street address and advises the following:
Your Water Service is scheduled to be DISCONNECTED on [date — three days after handprinted date on notice], for your outstanding Delinquent Water/Sewer Bill.
A payment in the amount of $_, must be made to the Delinquent TaxCollector no later than the close of business (4:30 p.m.) on [date-one day before anticipated disconnect] in order to avoid disconnection.
Once Water Service has been disconnected a Reconnection Fee of $25.00 will be charged to have your Water Service restored. If Water Service is restored after hours (2:30 p.m. to 8:30 p.m.), a Reconnection Fee of $37.50 will be charged,
Payment must be made directly to the Delinquent Tax Collector at the City Hall, [phone number].
(Doc. 114-5 at 10-12.)
It is the City’s standard practice to post the Final Notice at the property itself. It is also the City’s standard practice to make handwritten notes on the notices when they are filed in order to keep the City informed of the status of the account and any communications with property owners. If water service is terminated, the City provides a written notice to the property owner. This notice sets forth the monetary amount required to restore service and where, how, and when it may be paid. It contains no information regarding a right to a hearing or appeal, the right to a repayment plan, or the right to seek a medical condition exception. See, e.g., Doc. 119-1 at 7. It is not the City’s practice to verbally advise ratepayers of their right to a hearing or an appeal.
If a landlord defaults on a payment arrangement, water service may be disconnected immediately. Since at least March of 2008, the City has never attempted to place a lien on property for the express purpose of collecting a delinquent water account.
The City receives approximately five requests per year from tenants who wish to establish water service in their own names. The City generally does not allow tenants to establish a water service account in their own name because they are not the property owners, however, it has granted two such requests: one for Brenda Brown pursuant to the state court injunction and another for a tenant who sought abatement of a water bill which resulted in a separate payment arrangement. The City has only received one request for an appeal or hearing, made by Brenda Brown, which was denied.
The City is willing to accept money from anyone, including tenants, to bring a water service account current. If water service is disconnected, a tenant may obtain reconnection by paying his or her landlord’s outstanding water bill and a reconnection fee. In order to establish water service on a continued basis in the future, the tenant must further agree to pay his or her landlord’s water service account going forward or assume the obligations under the landlord’s repayment plan.
The City’s rationale for dealing only with ratepayers and not tenants includes “administrative convenience (it is much easier to deal with the identifiable and certain group of property owners rather than the unknown and frequently changing tenants) and financial responsibility (property owners have a greater stake in their property).” Doc. 110-1 at 3-4.
F. Plaintiffs’ Constitutional Claims.
In Count One of their Second Amended Complaint, Plaintiffs allege a claim under 42 U.S.C. § 1983 based upon a violation of their procedural due process rights by virtue of the City’s Ordinance and Vermont’s Disconnect Statute which they allege fail to provide adequate pre-deprivation or post-deprivation protection of their right to water service.
In Count Two, they initially alleged a claim under § 1983 for violation of their right to substantive due process by virtue of the provisions in the City’s Ordinance
In Count Three, Plaintiffs allege a claim under § 1983 for violation of the rights to Equal Protection because both the City’s Ordinance and Vermont’s Disconnect Statute treat tenants whose landlords are in default differently than tenants whose landlords who are not, and property owners differently from tenants, based solely upon a desire for convenience in debt collection which is not a, rational basis for disparate treatment. As noted, Plaintiffs have abandoned their equal protection challenge to Vermont’s Disconnect Statute. See id.
In their prayer for relief, in addition to seeking individual damages and injunctive relief, Plaintiffs ask the court to declare that the City’s Ordinance either violates state law and/or is unconstitutional on its face and as applied to Plaintiffs. They further ask the court to declare 24 V.S.A. §§ 5143, 5145-5147 unconstitutional and void on their face and as applied to Plaintiffs.
II. Conclusions of Law and Analysis.
A. Standard of Review.
Summary judgment must be granted when the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,
The standard does not change when the parties file cross-motions for summary judgment. In such cases, “the court ‘must evaluate each party’s motion on its own merits taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’” Bronx Household of Faith v. Bd. of Educ. of City of New York,
B. The Essential Elements of a Claim under 42 U.S.C. § 1983.
In order to prevail on a claim against a municipality under 42 U.S.C. § 1983, Plaintiffs must establish (1) actions taken under color of law; (2) a deprivation of a constitutional or statutory right; (3) causation; and (4) damages. See Roe v. City of Waterbury,
In this case, the City does not dispute that it was acting under the color of law when it terminated or threatened to terminate Plaintiffs’ water service as a result of nonpayment by Plaintiffs’ respective landlords. The court thus turns to examine the remaining elements of Plaintiffs’ three constitutional claims.
C. Plaintiffs’ Procedural Due Process Claims.
Plaintiffs allege a violation of the Fourteenth Amendment based upon both Vermont’s Disconnect Statute and the City’s Ordinance and water services policies and practices, claiming each deprived Plaintiffs of a protected property interest in water service without due process of law. The City claims that no protected property interest may be found in water service and that, as a result, no procedural due process must be afforded to Plaintiffs. In the alternative, it argues that even if the court finds a protected property interest in water service, Vermont’s Disconnect Statute and the City’s Ordinance afford Plaintiffs all the process which they are due. The State contends that regardless of whether Plaintiffs have a protected property interest in water service, the Disconnect Statute meets or exceeds procedural due process requirements.
“The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of ‘property’ within the meaning of the Due Process Clause.” Memphis Light, Gas and Water Div. v. Craft,
1. Whether Plaintiffs Establish a Protected Property Interest.
The Supreme Court has held that constitutionally protected property rights are determined by reference to “an independent source such as state law— rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents of State Colleges v. Roth,
In order for Plaintiffs to assert a property interest in water service, they must show “more than an abstract need or desire for it. [They] must have more than a unilateral expectation of it. [They] must, instead, have a legitimate claim of entitlement to it.” Roth,
Plaintiffs advance a two-pronged argument to support their claim that a tenant has a protected property interest in water service under Vermont law. First, they claim a right based on contract, and second, they claim a statutory entitlement. The City counters that Plaintiffs have no protected property interest in water service and thus no procedural due process protection is required. The State demurs on this issue, asserting “[t]he Court need not decide in this case whether Plaintiffs have a protected property interest in continued water service because, even if they do, the statute affords adequate notice and opportunity for hearing.” (Doc. 117 at 45.)
Because each of Plaintiffs constitutional claims depends upon the court finding a protected property interest, the court cannot avoid this inquiry even in the context of Plaintiffs’ procedural due process claim. See Harrington v. County of Suffolk,
i. Contractual Right to Water Service.
Courts that have found a protected property interest in water service based upon an express or implied contract have generally required a direct contractual relationship between the claimant and the municipality. See, e.g., Mansfield Apartment Owners Ass’n v. City of Mansfield,
Plaintiffs in this case concede that they have no direct contractual relationship with the City, but nonetheless contend they are the intended third-party beneficiaries of the contracts between their respective landlords and the City. They point out that performance under the agreement between their landlords and the City is rendered directly to them as the recipients of water service with the expectation that they will use the water. They further point out that their landlords have a statutory obligation to provide them with water service pursuant to Vermont’s Residential Rental Agreements Act, 9 V.S.A. § 4457.
Vermont has adopted THE RESTATEMENT (SECOND) OF CONTRACTS to determine whether a person is an intended third-party beneficiary of a contract between other parties:
“[A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either (a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or (b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.”
Herbert v. Pico Ski Area Mgmt. Co.,
Here, Plaintiffs proffer no evidence of their respective landlords’ contractual intent, no document reflecting such intent, and no evidence of the account or contract between their respective landlords and the City. In the absence of such evidence, it appears that Plaintiffs’ respective landlords only contract with the City to provide water service to a particular building, and not to particular tenants. This cuts against a finding that Plaintiffs are the intended beneficiaries of their landlords’ water service accounts. Cf. Flickinger v. Harold C. Brown & Co.,
Moreover, Plaintiffs concede, as they must, that far from intending to confer any enforceable rights upon them, the City, through its Ordinance, seeks to avoid all obligations to tenants for water service and affirmatively states that it will provide water service “for meter use only.” Ordinance § 19-23. There is thus insufficient
Courts have specifically rejected intended third-party beneficiary status based upon facts similar to those advanced by Plaintiffs. See, e.g., Midkiff v. Adams Cty. Reg. Water Dist.,
In the alternative, Plaintiffs make a relatively novel argument that because Vermont’s landlord-tenant law requires a landlord to provide water service to a dwelling unit. 9 V.S.A. § 4457, this statutory obligation sets in motion a chain of events that confers intended third-party beneficiary status upon tenants. See Doc. 114-1 at 20 (“Here, the City of Barre’s provision of water service to a tenant’s residence constitutes its performance under its contract with the tenant’s landlord. This performance, in turn, satisfies the landlord’s obligation to his tenants to provide such water service. Non-ratepayer tenants thereby satisfy the definition of a third-party beneficiary[.]”). The problem with this argument is that it dispels the need to establish the contracting parties’ intent which is the touchstone of intended third-party beneficiary status. See Sinnott,
Because Plaintiffs have not established that the City and their respective landlords intended through their contract to confer an enforceable benefit upon Plaintiffs, Plaintiffs’ procedural due process challenge to Vermont’s Disconnect Statute and the City’s Ordinance and practices and polices based upon a contractual entitlement to water service must fail.
ii. Statutory Property Interest in Water Service.
Plaintiffs assert a statutory basis for their property interest in water service
In Craft, the United States Supreme Court found a protected property interest under Tennessee law in a public utility’s provision of electricity. The Court noted that service could only be terminated for nonpayment of a valid bill for service and Tennessee law sets forth remedies for wrongful termination. Craft,
In Pilchen v. City of Auburn,
The district court reached the same conclusion in Davis v. Weir,
The City attempts to distinguish Craft and its progeny by asserting that Vermont law allows a municipality to refuse continued service on the basis of nonpayment and “imposes no limitations on municipal discretion in choosing among statutory collection remedies[.]” (Doc. 110-1 at 15). It thus seeks to cast water service as a discretionary benefit which the City may withhold or extend subject to the terms and conditions it sees fit to impose. This argument misses the mark. No court, including thé United States Supreme Court in Craft, has recognized a protected property interest in free utility service. See Craft,
Like the Tennessee statutory scheme in Craft, Vermont restricts water service termination to nonpayment of a just bill. In the event of nonpayment of a just bill, Vermont law does not allow termination if such nonpayment is related to a nonrecurring charge, is less than fifteen dollars, is subject to an appeal, or if the ratepayer has not been afforded the opportunity to enter into a repayment plan. When a proposed termination for nonpayment clears these hurdles, Vermont law creates an exception when there is serious medical need for water service and, in all cases, regulates the manner and content of notice, the timing of termination, and the right to reinstatement, hearing, and appeal. Where state law “mandates that utilities may not terminate utility service at will but only under certain enumerated conditions and after giving proper notice” there is “an independent source of state-authorized law that gives rise to a legitimate claim of entitlement to [a service] from a municipal utility.” Gunter v. Long Island Power Auth.,
In support of its claim that no protected interest should be found, the City cites a number of cases which are readily distinguishable. In Golden, the Sixth Circuit concluded that no protected property interest in water service could be found based upon a complete failure of proof. See Golden,
In Ransom v. Marrazzo,
Other courts have concluded that there is no protected interest in water service where the statutory scheme in question does not provide for water service to all inhabitants that request it. See, e.g., Midkiff,
At least one court has refused to find a protected property interest in water service where the authority to regulate water service has been conferred exclusively upon the municipality. See Stevo v. Frasor,
Still other courts, in rejecting a non-property owner’s claim to entitlement to continued water service, have emphasized the absence of statutory entitlement to free water service — a claim not made here. See Coghlan v. Starkey,
Plaintiffs begin by arguing that both Vermont’s landlord-tenant statutes and the City’s Minimum Housing Standards reflect a clear intent that water service be provided as a condition precedent to occupation of a rental dwelling unit and provide for statutory remedies against a landlord in the event that service is not provided. Plaintiffs urge the court to find a protected real property interest on this basis and in the courts’ recognition that “due process concerns may be triggered by something less than ‘a complete, physical, or permanent deprivation of real property.’ ” Diaz v. Paterson,
As Plaintiffs point out, the City’s Charter authorizes and empowers the City “to provide a suitable supply of water for the city and the inhabitants that live along or near its line of pipes in other municipalities, against fire and for sanitary, domestic, and general industrial uses, beneficial to the public[.]” 24 V.S.A.App. § 1-507. This tracks Vermont’s enabling legislation which authorizes and empowers municipalities to take water “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. Neither the statute nor the Charter draws a distinction between property owners and tenants but instead both purport to extend water services to all “inhabitants.” This distinction is important as it reflects an intent to provide water service on a nondiscriminatory basis subject only to reasonable rules and regulations. See Pilchen,
The City nonetheless contends that regardless of any property interest Vermont law creates in water service for property owners, it cannot be said to create these same interests for mere tenants. According to the City, Vermont’s Disconnect Statute “uses the term ‘ratepayer’ to describe the customer. Though the statute does not define this term, it clearly refers to the owner of the property provided with water service,” Doc. 110-1 at 15. However, the State, itself, argues that Vermont’s Disconnect Statute contains no such distinction. It does not restrict the rights and remedies afforded to “ratepayers” to property owners alone but extends those rights and remedies to any person, including a tenant, who pays for municipal water service. See Doc. 117 at 4 (“There is nothing in the statute that defines a ratepayer or that prevents a tenant from being a ratepay
Moreover, Vermont law provides even mere water users with certain statutory rights, protections, and obligations. Vermont’s Disconnect Statute requires both a “ratepayer” and any occupant to receive a detailed written notice prior to the lawful termination of water service. 24 V.S.A. §§ 5142-5143. It provides for further written notice to an occupant once the disconnect has occurred. 24 V.S.A. § 5145. The State contends that “[b]y providing simultaneous, pre-deprivation notice to ratepayers and occupants, the statute sufficiently anticipates the needs of interested parties to contest the termination proceedings and gives them ample time ... to take steps to protect their interests.” Doc. 117 at 6. The City’s Ordinance also requires pre-deprivation notice to mere water users. See Ordinance, § 19 — 36(b) (prior to water service shut off, the “user of water on the premises in question” must be given “not less than three (3) days[’] notice.”).
If a mere user of water service has no interest to be protected, mandatory notices of termination would be meaningless, unnecessary, and would assume the dubious status of a statutory and municipal courtesy. A more reasonable conclusion is that Vermont law affords notice to a mere user of water service because Vermont recognizes an interest that warrants protection. See Roth,
Plaintiffs further point out that Vermont caselaw in the context of public utility service also supports a conclusion that a protected property interest may be found in water service. They contend that the City is simply incorrect in asserting that “[i]n Vermont, utilities have no obligation to provide service to anyone and everyone who asks for it.” Doc. 110-1 at 14 (citing Hawkins v. Vermont Hydro-Electric Corp.,
In Hawkins, while noting a utility may impose certain connection requirements such as ground wires and a switch box, the Vermont Supreme Court observed “[t]hat the supplying companies are under a general obligation to supply all householders living within the district which the company has professed to service is therefore plain.” Hawkins,
Other Vermont cases have recognized a protected property interest in power services. In Ratepayers Coalition of Rochester v. Rochester Elec. Light and Power Co.,
With regard to the right to water service from a public corporation, the Vermont Supreme Court has held that “[t]he duty to furnish water, demandable as of right, as an obligation of a water company, subject to such reasonable requirements as those related to payment and plumbing connections, cannot be seriously disputed.” Corcoran v. Village of Bennington,
In summary, while it is not enough to label a utility service as “essential” to daily life in order to find that it is a protected property interest under Vermont law, here an essential utility service is provided pursuant to a City Charter that offers it to all “inhabitants” including tenants pursuant to an enabling statute that also extends it to all “inhabitants.” Under Vermont law, this service cannot be terminated “at will” but is' subject to certain enumerated conditions and must be accompanied by certain pre and post-deprivation notice and procedures intended to protect the interest in water service of the “ratepayer” as well as the non-ratepaying occupant. Plaintiffs have thus established a statutorily protected property interest in water service subject to payment and reasonable connection requirements. The court therefore examines whether Vermont’s Disconnect Statute and the City’s Ordinance provide procedural due process to protect that interest.
2. What Process Is Due.
The minimum procedural protections required by the Due Process Clause of the U.S. Constitution are determined by feder
i. Whether the Disconnect Statute Affords Procedural Due Process.
Vermont’s Disconnect Statute requires notice of a potential termination of water service to be given to both the ratepayer and the occupant of the dwelling. 24 V.S.A. § 5143(a). The form of the notice is written in plain language, on conspicuous paper and in legible font, and clearly advises the recipient of the reason for the termination, when it will occur, how much it will cost to restore service, exceptions to termination, where additional information may be obtained, and how and where an appeal may be taken. See 24 .V.S.A. § 5144. The Disconnect Statute further requires this .notice to be given within forty days after delinquency and no more than twenty' and no less than fourteen days prior to disconnection of service. 24 V.S.A. §§ 5143-5145. Only the undefined “ratepayer”.may appeal the termination of water service. See 24 V.S.A. § 5147. The statute requires that appeals be heard “promptly and fairly” “after notice to all interested parties” and suspends disconnection during the pendency of the appeal. 24 V.S.A. § 5147.
Plaintiffs’ procedural due process challenge to Vermont’s Disconnect Statute is two-fold. First, they contend that providing a “notice addressed to someone other than the tenant-occupant is insufficient.” (Doc. 123 at 4.) Second, they argue that providing a hearing and rights of appeal to only the “ratepayer” is constitutionally invalid. The remainder of Plaintiffs’ procedural due process challenges pertain to how the City has interpreted and implemented the Disconnect Statute.
Mathews v. Eldridge,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 335,
Here, it is beyond dispute that the magnitude of Plaintiffs’ private interest in continued water service is substantial in light of water’s status as a necessity of daily living that is essential to health, well-being, safety, and sanitation. The risk of erroneous deprivation under Vermont’s Disconnect Statute, however, is not great for several reasons.
Second, the Disconnect Statute imposes certain timing requirements that adequately protect a water user’s interests. With at least two weeks’ notice, a tenant is afforded sufficient time to contact the authorities to determine whether water service termination may be prevented and sufficient time to negotiate with his or her landlord or seek injunctive relief against that person or entity or against the municipal water service provider. A tenant is also provided with notice if a ratepayer appeals and when and where that appeal will be heard. See 24 V.S.A. § 5147. Plaintiffs point to no additional information that the Disconnect Statute fails to provide which would be necessary to protect their interests — the fact that the notice is addressed to the “customer” rather than the tenant does not deprive them of notice. Cf. Weir,
Courts have held that provided an aggrieved party has the time and opportunity to pursue his or her claim in an available forum, due process is satisfied. See New York State National Organization for Women v. Pataki,
Turning to the probable value of additional or substitute procedures, the Vermont’s Disconnect Statute provides for an appeal by the “ratepayer” to the local legislative body or selectboard, 24 V.S.A. § 5147, and requires the municipality to offer the “ratepayer” a repayment plan. 24 V.S.A. § 5143(b). Assuming a tenant is not a “ratepayer,” no appellate rights other than notice of the appeal are provided. Somewhat tellingly, Plaintiffs do not adequately explain what benefits they would reap in the event such an appeal were provided. A tenant is already aware that termination of water service is imminent
In determining whether the Vermont Disconnect Statute must provide tenants a post-deprivation hearing or appeal, the governmental interest, including the burden imposed, must also be considered. “The most visible burden would be the increased cost resulting from the increased number of hearings and the expense of providing benefits to ineligible recipients pending decision.” Mathews,
On balance, under Mathews v. Eldridge, Vermont’s Disconnect Statute provides procedural due process to sufficient protect a water user’s interest in continued water service even when that water user is not a “ratepayer.” The court therefore DENIES Plaintiffs’ cross-motion for summary judgment on the issue of whether Vermont’s Disconnect Statute affords procedural due process and hereby DISMISSES that claim.
ii. Whether the City’s Ordinance, Practices and Policies Afford Procedural Due Process.
The City relies heavily on Vermont’s Disconnect Statute in claiming it affords property owners procedural due
In any event, the City concedes that the notice-of-delinquency is not sent to the occupant as required by Vermont’s Disconnect Statute and seeks to excuse this violation by erroneously interpreting the Disconnect Statute to equate the term “ratepayer” with property owner. This interpretation is not supported by the plain language of the statute and has been rejected by the State, itself, in this lawsuit. The further problem with this argument is that the Vermont Disconnect Statute requires the statutory form of notice to be provided to the “occupant” even when the occupant is not the “ratepayer.” See 24 V.S.A. § 5143(a) (“A copy of the notice shall be sent to the occupant of a residential dwelling which will be affected by the disconnection if the occupant is different than the ratepayer.”). The City concedes this is not done. To the extent the City relies on its own form of notice for water service termination, there can be no serious doubt that it fails to conform to the statutory form of notice, the time period of notice, or the manner of providing notice required by Vermont’s Disconnect Statute.
As the City correctly points out, and as Plaintiffs concede,
The City’s Ordinance provides that the “user of water on the premises in question” must be given three days’ notice prior to a water service termination. Ordinance, § 19 — 36(b). The Ordinance does not specify that the three days must be business days and thus notice may be giving on a Friday with the tenant losing two out of three days to seek protection of his or her rights over the intervening week
In addition, neither the Ordinance nor the City’s form of notice address appellate rights or provide notice of the statutory exceptions to water service termination. There is also no requirement that the person terminating service provide immediate notice of that termination to the actual user. Notice regarding the time of termination and the method of submitting payment is posted on the property itself. If the City decides to hand-deliver notice to a tenant, it appears to do so only as a courtesy.
Application of the Mathews v. Eldridge factors to these facts and circumstances produces an unmistakable conclusion that the City provides neither reasonable notice nor a reasonable opportunity to defend to the tenants who are the actual users of municipal water service. Plaintiffs’ private interest in water service is substantial and the risk of an erroneous deprivation of that interest is great. Procedural due process requires at least sufficient notice to ensure that access to available forums is not effectively foreclosed and a potential means of redress is not lost. See [NOW] v. Pataki,
Regarding the probable value of additional procedures, although a hearing or an appeal remains of limited value to tenants, this is primarily because the City refuses to adopt a mechanism whereby water service may be restored to a tenant who agrees to pay for his or her own use. “An essential principle of due process is that deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Cleveland Bd. of Educ. v. Loudermill,
As for the governmental interest and the burden of additional procedures, the City contends that its interest is in collecting debts owed for water service provided. An adequate form of notice, a longer notice period, and appellate rights to the ratepayer do not materially interfere with this interest. At a minimum, the City must therefore comply with Vermont’s Disconnect Statute in order to satisfy the requirements of procedural due process. The Vermont Legislature has already determined that the burdens associated with such compliance are appropriately imposed upon a municipality even where the stated purpose of the statute is to provide “a delinquency collection procedure.” 24 V. S.A. § 5141. Courts that have gone further and actually required a municipality to offer water service to a tenant in his or her own name have generally done so as a matter of substantive due process or equal protection. Plaintiffs cite no authority, and the court has found none, where this right must be afforded as part of the procedural due process which must be afforded to an actual water user. Accordingly, while the court agrees with Plaintiffs that
Because the City’s Ordinance, policies and practices do not afford constitutionally sufficient notice and an opportunity to be heard, they do not afford the City’s tenants with procedural due process. The court therefore DENIES the City’s motion for summary judgment with regard to Plaintiffs’ procedural due process claim (Count One), and GRANTS Plaintiffs’ cross-motion for summary judgment with regard to this same claim.
D. Plaintiffs’ Claim for Violation of Substantive Due Process.
Plaintiffs allege that the City has violated their substantive due process rights by preventing reinstatement of water service unless they pay their respective landlords’ debts. The City denies that it has any official policy or practice that requires tenants to pay their landlords’ debts, and argues that it has a legitimate governmental interest in ensuring payment for water service which is furthered by a rational practice of requiring payment of arrearages incurred at a property before water service to that property is reinstated.
To prevail on their substantive due process claim, Plaintiffs must establish a valid property interest in water service, which the court has found, and must further establish that the City deprived them of that interest in an arbitrary and irrational manner. See Cine SK8, Inc. v. Town of Henrietta,
Plaintiffs do not assert a fundamental right to water service and thus the parties agree that the City’s Ordinance is subject to only rational basis review. “Legislative acts that do not interfere with fundamental rights ... carry with them a strong presumption of constitutionality and must be upheld if ‘rationally related to a legitimate state interest.’ ” Beatie v. City of New York,
As for the City’s policies and practices, Plaintiffs must establish that they rise to the level of an “official policy or custom that ... causes the plaintiff to be subjected to ... a denial of a constitutional right.” Zahra v. Town of Southold,
Here, it would be inaccurate to characterize the City’s official policy or custom as one requiring tenants to pay for their landlords’ debts. Neither plaintiff was actually required to do this in order to obtain a preservation or restoration of water service, and stray statements by the City’s Clerk and Treasurer that this option was available do not constitute an official policy or custom. Rather, the evidence supports the more limited conclusion that the City has an official policy or custom, reflected in its Ordinance, that outstanding arrearages for water service to a property must be paid before water service to that property is restored. As the City repeatedly explains, it will accept payment from anyone — the property owner, a bank whose mortgage is secured by the property, a purchaser of the property, or a tenant— without any requirement that the payor have either an interest in the property or any responsibility for the arrearages in question. In this respect, the City properly treats the arrearages as a lien on the property which must be satisfied before water service is restored.
As the City further explains, in this case, at least some of the arrearages were attributable to Plaintiffs’ own water usage, for which both the Ordinance and Vermont law makes them independently responsible, regardless of any arrangement they may have made with their respective landlords. See Ordinance §§ 19-30; 19-36(a); see also 24 V.S.A. § 3306. This distinguishes the instant case from those in which a substantive due process violation has been found because, as a condition to water service, an innocent third party has been required to pay his or her existing or prospective landlord’s debt or that of a prior tenant for which they would not otherwise be liable. See, e.g., Davis,
At best, Plaintiffs demonstrate that they could have restored water service had they
For the foregoing reasons, the court hereby GRANTS Defendant’s motion for summary judgment with regard to Plaintiffs’ substantive due process claim (Count Two) and DENIES Plaintiffs’ cross-motion for summary judgment with regard to this same claim.
E. Plaintiffs’ Claim for Violation of Equal Protection.
Plaintiffs assert a violation of their right to equal protection under the Fourteenth Amendment based upon the City’s refusal to contract directly with tenants for water service.
The City contends that no equal protection violation may be found because in the absence of a statutory obligation to provide water service to any particular person or class of persons, the City may lawfully “chose to draw the line at property owners.” Doc. 110-1 at 36. In doing so, the City argues that it may treat property owners who pay their water bills differently from property owners who do not. “To successfully assert an equal protection challenge, petitioners must first establish that the two classes at issue are similarly situated. ‘[T]he government can treat persons differently if they are not ‘similarly situated.’ ’ ” Yuen Jin v. Mukasey,
1. Delinquent v. Non-Delinquent Landlords.
With regard to Plaintiffs’ first classification, tenants whose landlords are
Moreover, because the City does not condition the right to establish water service in a tenant’s own name based upon the status of a landlord’s payment history, this case is distinguishable from those in which a tenant nonetheless encounters “a refusal to reinstate water service because the landlord has failed to pay the water bill” which has been held to be “a violation of the tenant’s right to equal protection.” Sterling,
“[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.” Heller v. Doe,
2. Property Owners vs. Tenants.
Plaintiffs’ second classification identifies classes of persons that are arguably more similarly situated even though there are obvious differences between them. Both property owners and tenants are potential applicants for, and users of, water service from the City. Both constitute “inhabitants” for whom the City is authorized and empowered to provide water service under its Charter. The only distinction between the classes is that one owns the property benefitted by the water service, and the other only has a leasehold interest in it. Like ownership, a leasehold interest is a protected property interest under Vermont law. See Alger v. Dep’t of Labor & Indus.,
Some courts have found the differences between property owners and tenants sufficient to preclude an equal protection claim. See, e.g., DiMassimo,
In seeking to distinguish between property owners and tenants, the City repeats its claim that the Disconnect Statute distinguishes between property owners and tenants by equating the term “ratepayer” with “property owner” and thereby authorizing municipalities to deal only with the property owner. The court has rejected the City’s interpretation of the Disconnect Statute and concludes that there is no affirmative “authorization” under Vermont law to refuse to deal with tenants in establishing municipal water service merely because they are not property owners.
The City alternatively argues that even if property owners and tenants are similarly situated, it may legislatively determine that it will only “deal” with property owners for purposes of “administrative convenience” and “financial responsibility,” because it is allegedly easier to identify property owners based upon the City’s land records, and because property owners who have an interest in the property are more likely to pay their water service bill. While these arguments have some superficial appeal, there is scant evidence to support them. The City does not need to identify property owners through the City’s land records because it identifies the account holder by the name on the account and the location of the property served. This same process could occur with a tenant establishing service in his or her own name. There is thus no apparent need to resort to the City’s land records except in the event of a lien. In that event, regardless of whether the account holder is a tenant or a property owner, Vermont law authorizes a lien on the property served. See 24 VS.A. § 3306.
As for the City’s contention that property owners are somehow more invested in the timely payment of water service bills, the facts of Plaintiff Brown’s case belie that contention while the facts of Plaintiff Brooks’s case seem to support it. On the one hand, property owners presumably have a strong interest in ensuring their property is not encumbered by a municipal water service lien which is subject to foreclosure. On the other hand, when comparing who is more interested in ensuring continued water service, the person who needs that water service for the essential activities of daily living arguably has a greater interest in its continuation than an absentee landlord. The further argument that only a property owner may reasonably be held financially accountable for a water service bill, if true, would apply with equal force to all forms of utility services, including fuel and electricity, however, providers of those services seem to find no insurmountable obstacles in conditioning service upon provision of a deposit and payment. The City does not contend, nor could it, that it could not establish water accounts in tenants’ own names conditioned upon their satisfaction of connection requirements. Rather, it merely contends that it should not be expected to do so at its own expense. (Doc. 110-1 at 37) (“It would be needlessly expensive for the City to install a separate water meter for every single residential unit within City limits when one meter per property is sufficient to accurately measure water usage.”). This does not, however, explain a categorical refusal to deal with all tenants. It
The City’s insistence that it deals only with the property owner as a matter of appropriate legislative line-drawing is also questionable. The City’s Charter authorizes and empowers it to provide water service to “all inhabitants.” In addition, the City’s alleged strict adherence to a policy of dealing only with property owners is at odds with its acceptance of payment from anyone and its apparent willingness to continue to supply water service on that basis. By conditioning its willingness to “deal” with tenants based upon their willingness to pay their landlords’ outstanding arrearages, the City comes perilously close to a practice of conditioning water service based upon the assumption of a third party’s debt. See Walz,
The strongest argument that the City makes for treating property owners and tenants differently is that it may more easily and successfully pursue its various collection methods against a landlord whose real property provides security for repayment, than against a tenant whose deposit may not.
We will not strike down a law as irrational simply because it may not succeed in bringing about the result it seeks to accomplish, Seagram & Sons, Inc. v. Hostetter,384 U.S. 35 , 50,86 S.Ct. 1254 ,16 L.Ed.2d 336 (1966), because the problem could have been better addressed in some other way, Mourning [v. Family Publications Serv., Inc.,] 411 U.S. [356], 378,93 S.Ct. 1652 [36 L.Ed.2d 318 (1973) ] or because the statute’s classifications lack razor-sharp precision, Dandridge [v. Williams,] 397 U.S. [471, 484-]485,90 S.Ct. 1153 [25 L.Ed.2d 491 (1970) ]. Nor will a statute be overturned on the basis that no empirical evidence supports the assumptions underlying the legislative choice. Vance [v. Bradley], 440 U.S. [93], 110-11,99 S.Ct. 939 [59 L.Ed.2d 171 (1979) ]. To succeed on a claim such as this, “those challenging the legislative judgment must convince the court thatthe legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. at 111, 99 S.Ct. 939 .
So long as they do not burden fundamental rights or single out suspect classifications, lawmakers are free to engage in “rational speculation unsupported by evidence.” Beach Communications,508 U.S. at 315 ,113 S.Ct. 2096 [.]
Beatie,
The City has identified a plausible reason for dealing only with property owners in establishing water service to multidwelling unit buildings which furthers a legitimate governmental interest in revenue collection. Plaintiffs have not negated that reason as inconceivable. “Where ... there are plausible reasons for [legislative] action, our inquiry is at an end.” U.S. R.R. Ret. Bd. v. Fritz,
For the reasons stated above, the court GRANTS the City’s motion for summary judgment regarding Plaintiffs’ claim for violation of equal protection (Count Three), and DENIES Plaintiffs’ cross-motion for summary judgment regarding the same.
CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part the City’s motion for summary judgment (Doc. 110) and GRANTS in part and DENIES in part Plaintiffs’ cross-motion for summary judgment (Doc. 114).
SO ORDERED.
Notes
. In seeking dismissal of Plaintiffs' claims, the State argues that Plaintiffs have waived their procedural due process challenge to Vermont's Disconnect Statute by failing to raise that argument in their cross-motion for summary judgment. Plaintiffs did in fact brief that issue albeit in a cursory manner. See Doc. 114-1 at 32-33 (pointing out the "minimal to absent protections offered in the Uniform Disconnect Statute”); 36 (challenging Disconnect Statute's method of providing notice); and 39 (arguing that "Vermont Uniform Disconnect Statute ... should be found to violate Plaintiff's procedural due process rights.”). They also clearly alleged a procedural due process challenge to the statute in their Second Amended Complaint and have given the State notice that they are challenging the constitutionality of the statute as required by Fed.R.Civ.P. 5.1. The State has fully briefed the claim and cites no prejudice that will occur if the court considers it. Plaintiffs have therefore not waived their procedural due process challenge to Vermont’s Disconnect Statute.
. During this time period, 74 Summer Street was subject to a foreclosure proceeding. A judgment of foreclosure was entered against the Tevises on March 8, 2010. Plaintiff Brown moved out of her apartment on September 1, 2010, because of the foreclosure.
. 37 Summer Street was subject to foreclosure proceedings at the time the water service account went into arrears, which culminated in a foreclosure.
. As defined by the Vermont Disconnect Statute, " '[n]otice' means the written notice on the form prescribed in section 5144 of this chapter, sent within 40 days after delinquency and postmarked and sent not more than 20 days, nor less than 14 days prior to the disconnect of service.” 24 V.S.A. § 5142(5).
. The parties dispute whether the Second Circuit’s "strict entitlement” standard applies to this case. That standard requires an applicant for a license to establish that absent the alleged denial of due process, there is either certainty or a very strong likelihood that the application would have been granted. Yale Auto Parts, Inc. v. Johnson,
. The Second Circuit has not squarely addressed the issue although it has questioned whether water service could properly be characterized as a fundamental right. See Walz v. Town of Smithtown,
. In West v. Village of Mornsville,
. Courts have made same observations with regard to water service. See Weir,
. The City argues strenuously that it may impose conditions precedent to water service such as a requirement that the City deal only with property owners. If water service is a protected properly interest under Vermont law, the City cites no authority for the proposition that it may negate that interest through a connection requirement. Quite the contrary, Vermont law authorizes a municipality to extend greater protections to the rights of "consumers” of water service, 24 V.S.A. § 5148, but does not authorize, them to extend less. Accordingly, while the City may impose conditions precedent to water service for all water users, a refusal to deal with an entire class of inhabitants cannot be justified as a reasonable connection requirement.
. In issuing injunctive relief based upon Plaintiff Brenda Brown's medical condition, the state court apparently had little difficulty in concluding that Ms. Brown was entitled to rely on the medical condition exception without analyzing whether she could accurately be described as a resident within her landlord's household.
. Vermont law requires a landlord to "provide an adequate amount of water to each dwelling unit properly connected to hot and cold water lines.” 9 V.S.A. § 4457(c). If the landlord fails to satisfy this mandatory requirement, Vermont law provides the following remedies to the tenant: "(1) withhold the payment of rent for the period of noncompliance; (2) obtain injunctive relief; (3) recover damages, costs, and reasonable attorney’s fees; and (4) terminate the rental agreement on reasonable notice.” 9 V.S.A. § 4458.
. The City does not claim that it affords procedural due process to tenants as mere water users and maintains its position that no such process is due based upon the alleged absence of a protected property interest.
. Plaintiffs describe their claim as follows: "Contrary to Defendant’s claim ... Plaintiffs do not allege that failure to follow a municipal ordinance or state statute is a violation of 42 U.S.C. § 1983. It is the violation of due process that generates the Section 1983 cause of action. And it is the lack of ascertainable standards due to Defendant’s failure to comply with the [Ordinance and statute that constitutes a violation of due process.” (Doc. 119 ató.)
. See, e.g., Dunbar v. City of New York,
. As noted, the Ordinance states that "the water department in laying a,new service, in furnishing water, doing work, or furnishing materials for such services shall deal only with [the] owner of the premises, or his duly authorized agent[.]” Ordinance, § 19-24.
. See Corcoran,
. A tenant who has incurred water service arrearages risks losing his or her deposit and facing an unsecured claim for repayment. In contrast, a landlord risks losing his or her real property and facing a secured claim for repayment.