Friday, December 04, 2009

Auburn Tenant Seeks Judgment that Water Termination was Unconstitutional

PULP has filed a brief in support of a motion for partial summary judgment contending that the shutoff and denial of water service by the City of Auburn violated constitutional rights of a tenant. The tenant's landlord, who was in foreclosure proceedings, had stopped paying for water and sewer utility service provided by Auburn. The water was shut off due to the landlord's nonpayment and was denied without notice to the tenant of an opportunity for a hearing, and she had no opportunity to put the account in her name for prospective service. The day after the shutoff, the house was condemned by the City as unfit for human habitation -- due to a lack of water it had shut off.

The City demanded, as a condition of restoration of service that the tenant pay her landlord's arrears for past service to the landlord's account.

When a municipality provides water utility service, it is exempt from PSC regulation under the New York Public Service Law. When the Home Energy Fair Practices Act was expanded to cover water service, municipalities were excluded. Thus, a municipality providing electricity or natural gas service is subject to HEFPA in its dealings with customers, but not with regard to water service. As a consequence, the law applying to municipal water utilities boils down to the City's rules, the common law, and the Constitution. See Municipal Water Companies Exempt from HEFPA Must Still Provide Due Process and Equal Protection to Tenant Users, PULP Network October 3, 2008.

Water was restored only after a motion was made in federal court for a preliminary injunction. See Auburn Restores Water Service After PULP Files Federal Lawsuit and Seeks Preliminary Injunction for Tenant in Property Subject to Foreclosure, PULP Network, October 16, 2008. The case is being pursued for a declaration that the tenant's constitutional rights were denied, and for damages.

Other municipalities have similar harsh practices regarding tenants in properties being foreclosed where the owner has stopped paying for water service. We recently heard of a situation in Troy where a tenant family became homeless after the City shut water off due to the owner's arrears and the City condemned the premises due to the absence of water service.

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