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July 13, 2012

Judge Rules Barre's Water Shut-Off Policy Unconstitutional

Updated July 16 with comment from Barre's attorney, Joe Farnham

Brenda Brown

Good news for renters: Vermont cities and towns can no longer shut off tenants' water for their landlords' failure to pay the bill. At least not without first giving renters an opportunity to contest the shut-off.

On Thursday, U.S. District Judge Christina Reiss ruled that Barre's five-year-old water shut-off policy was unconstitutional because it doesn't give renters an opportunity to appeal a shut-off notice.

Brenda Brown (pictured) sued the city of Barre back in 2011 after the city disconnected her water over her landlord's $722 past-due water bill. Brown was recovering from foot surgery when her taps went dry, and she spent two weeks in the dead of winter lugging bottled water up stairs — on crutches — to wash dishes, bath and flush the toilet.

Barre Mayor Thom Lauzon said at the time that the policy may seem tough, but that it had dramatically improved the city's collection rate — in turn keeping everyone else's water bills down.

Vermont Legal Aid brought the case on behalf of Brown and another tenant whose water was unhooked for a landlord's unpaid bill. Legal Aid lawyer Chris Curtis called the ruling "a big victory for Brenda and everyone else."

"There ought to be a way for people to say, 'stop the process. I want to appeal this' or 'I want to have a hearing on this' and the court found they absolutely have a right to that," Curtis said. Had Brown been afforded the chance to appeal, Curtis said, she could have argued against the shut-off by saying water was a medical necessity.

The ruling wasn't a totally win for Brown, however. Reiss dismissed other constitutional claims made by Brown, namely that Barre's policy violated "substantive due process" and "equal protection" by not letting tenants establish water accounts in their own name when a landlord defaults on a water bill. Under Vermont law, apartment dwellers can't take over municipal water accounts if they don't own the property — and Reiss's ruling won't change that. The venue for change, the judge suggested, would be in the Legislature.

Still, Brown was "elated" about the ruling.

"I'm just so happy that finally someone has told the City what they are doing is wrong," Brown said in a statement sent out by Vermont Legal Aid on Friday. "I went through hell without water for all that time and nobody at the city would listen to me. I hope this means that nobody ever has to go through that again."

Brown has since moved to Northfield.

Reiss's ruling held that tenants have a right to hearing before water is shut off for a landlord's unpaid bill, and that tenants are entitled to an adequate warning period before the taps are turned off. The Barre ordinance permits the city to shut water off with just three days' notice, though Lauzon said as a practical matter, the city routinely gives occupants more time.

But Reiss noted in her ruling that the three-day warning window means Barre could notify a tenant on Friday and turn off the taps on Monday, leaving little time to reach a landlord or otherwise act to stop the shut off. Commenting on that in her ruling, Reiss wrote that, "the form of notice, the matter of notice and the time period of notice are constitutionally deficient."

Burlington-based attorney Joe Farnham, who argued the city of Barre's case, could not be reached for comment on Friday afternoon.

Lauzon previously told Seven Days that he established Barre’s shutoff policy to set a consistent standard for enforcing collections; ratepayers were being treated differently, with some getting three months to pay, some longer, depending on which clerk they dealt with. Lauzon credited the policy with improving collections, cutting delinquencies from 10 percent in 2006 to 5 percent in 2011. 

On Friday, Lauzon said he had just received the ruling and was still digesting it. Generally, he said it looks like a "mixed bag."

"From the city's point of view, it looks like we need to revisit our charter, policies or ordinances and give occupants more notification and more opportunity to appeal the shut-off," Lauzon said. "The thing that the judge didn't answer, that could be helpful, is what do you do if it's a six-apartment house and the bill is $600? And five tenants want to pay $100 each but there's one cheapskate? You obviously can't shut off water to one unit. Do you tell that tenant not to use the toilet?"

Either side could appeal the parts of the ruling they lost, and Curtis said he's not yet decided if he would appeal Reiss's decisions on the substantive due process and equal protection claims.

Left unresolved: money. Brown has a damages claim that has not been addressed yet.

"We'll have to wait and see what happens to that," Curtis commented. 

Update - July 16

On Monday, Farnham responded to the court decision with a written statement — which made no mention of whether the city would appeal the ruling.

"While we obviously intended a different outcome as to the court’s procedural due process analysis, we are pleased that the court ruled in the city’s favor as to plaintiffs’ substantive due process and equal protection claims," Farnham's statement said. "I will be conferring with city officials this week to consider how the city wishes to proceed at this point. I’ll respectfully decline further comment at this time."

File photo by Jeb Wallace-Brodeur

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