City of Auburn Violated Tenant's Constitutional Rights in Denial and Termination of Water Service

Today U.S. District Judge David N. Hurd issued a decision and order granting the motion of an Auburn tenant for partial summary judgment declaring that her constitutional rights were violated when the City refused to provide water service to her without her paying her landlord's bill for past service, and for terminating service without timely and adequate notice, including notice of an opportunity for a hearing.

The tenant rented a house whose absentee owner had stopped paying the mortgage, tax, and water bills. When the owner didn't pay the water bills, service was shut off, and the City insisted that the tenant agree to pay the owner's bill as a condition of obtaining service. When she was unable to make installment payments on the owner's bill, service was shut off, the premises were posted as unsafe and unsanitary, and she was directed to move out. After the case was brought and a motion for a preliminary injunction was filed, the City relented and turned the water on, and the action now involves the remaining claim for damages. The court found that the City

• violated plaintiff’s right to procedural due process by not providing adequate notice prior to terminating water service and by failing to provide a written explanation for refusing to accept an application for water service from her;
• violated plaintiff’s right to substantive due process when it refused to provide water service unless she paid her landlord’s debt; and
• violated plaintiff’s right to equal protection when it refused to provide water service in her name because of her landlord’s delinquent obligation.

The plaintiff is represented by PULP.

With rising water costs and more owner defaults in paying mortgage, tax, and water bills, similar problems have arisen across New York state. See Water Shutoff Issues Boil Over in Syracuse, PULP Network, Feb. 19, 2010. When municipal water service is shut off, premises are then condemned by the municipal code enforcement office as unsafe and unsanitary. In some cases this leads to displacement of tenants, hardship, disruption of family life and potential homelessness for those who cannot afford either the cost of their landlord's old water bills or the cost of renting and moving to other premises.

Municipalities and water authorities, unlike large private water companies, are not covered by the Home Energy Fair Practices Act, which prohibits denial of service based on unpaid bills of another person. For background, see

• Municipal Water Companies Exempt from HEFPA Must Still Provide Due Process and Equal Protection to Tenant Users, PULP Network October 3, 2008;
• 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; and
  
• Auburn Tenant Seeks Judgment that Water Termination was Unconstitutional, December 04, 2009.