Brown v. City of Barre (878 F. Supp. 2d 469, 2012)

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)

CHRISTINA REISS, Chief Judge.

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, 2010, 2010 WL 5141783, defining the class as “all tenants in the City of Barre, Vermont from February 17, 2007 to the present whose leases include City water paid for by the landlord/ratepayer and who have had or are at risk of having their water service disconnected by the City because their landlord/ratepayer’s water bill was or is in default.” (Doc. 69 at 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 7, 2010, the City sent a letter by certified mail to Mr. Tevis, advising him that he had breached the repayment agreement, and offering him an opportunity to cure that breach by paying $150.92 under the repayment plan for the month of December, as well as the charges that had accrued after the Tevises failed to make the December payment. Plaintiff Brown did not receive a copy of this letter.

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 Brooks and all other tenants in the building. The building has only one meter measuring water usage for all tenants. Mr. Brooks’s sole source of income is a monthly Supplemental Social Security check in the amount of $726. Oí.

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 (such as the provision of a deposit); if the ratepayer had not been “given an opportunity to enter into a reasonable agreement to pay the delinquent bill, or having made such agreement, has abided by its terms;” and where disconnection would represent “an immediate and serious hazard to the health of a ratepayer or a resident within the ratepayer’s household, as set forth in a physician’s certificate which is on file with the municipality.” 24 V.S.A. § 5143(b). The Disconnect Statute requires notice to both the occupant and the “ratepayer” pri- or to disconnection:

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 immediate and 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), and permits an appeal from a disconnect by only the “ratepayer” to a municipal selectboard or hearing officer:

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 shall have all of the powers granted to towns and municipal corporations by the constitution and laws of [the State of Vermont] ... it may enact ordinances not inconsistent with the constitution and laws of the State of Vermont or this charter[.]” 24 V.S.A. § l-104(a). The Charter further provides that: “The city of Barre is authorized and empowered 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.

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 Tax Collector 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 and Vermont’s Disconnect Statute which they claim effectively coerce Plaintiffs and other class members into paying the debts of actual ratepayers in order to avoid water service termination. They contend such provisions are not rationally related to a legitimate governmental purpose. In their Supplemental Memorandum of Law, Plaintiffs withdraw their challenge to Vermont’s Disconnect Statute on substantive due process grounds. See Doc. 123 at 1 (“Plaintiffs do not assert a challenge to the statute on substantive due process or equal protection grounds.”).

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, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations and citation omitted). In deciding the motion, the trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party, and deny the motion if a rational juror could decide in favor of that party under the applicable law. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). “There is no material fact issue only when reasonable minds cannot differ as to the import of the evidence before the court.” Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir.1993).

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, 492 F.3d 89, 96 (2d Cir.2007) (quoting Hotel Emps. & Rest. Emps. Union, Local 100 v. City of New York Dep’t of Parks and Recreation, 311 F.3d 534, 543 (2d Cir.2002)).

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, 542 F.3d 31, 36 (2d Cir.2008); Hollander v. Copacabana Nightclub, 624 F.3d 30, 33 (2d Cir.2010).

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, 436 U.S. 1, 9, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). In determining whether Plaintiffs have established a violation of procedural due process, the court considers first whether Plaintiffs have been deprived of a protected property interest. If so, the court determines what process was due to protect that interest. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 429, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (“At the outset, then, we are faced with what has become a familiar two-part inquiry: we must determine whether Logan was deprived of a protected interest, and, if so, what process was his due.”).

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, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 601-602, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (holding that property interest can derive from express or implied contracts); Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (concluding that property interest in welfare benefits is “a matter of statutory entitlement for persons qualified to receive them”); Golden v. City of Columbus, 404 F.3d 950, 955 (6th Cir.2005) (recognizing “two bases for such non-unilateral legitimate claims of entitlement: state statutes and contracts, express or implied, between the complaining citizen and the state or one of its agencies.”). “Although the underlying substantive interest is created by ‘an independent source such as state law,’ federal constitutional law determines whether that interest rises to the level of a ‘legitimate claim of entitlement’ protected by the Due Process Clause.” Craft, 436 U.S. at 9, 98 S.Ct. 1554. A protected property interest “may take many forms” and “extends well beyond actual ownership of real estate, chattels, or money[.]” Roth, 408 U.S. at 576, 571-72, 92 S.Ct. 2701. It must, however, have “some ascertainable monetary value.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 766, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (citation omitted).

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, 408 U.S. at 577, 92 S.Ct. 2701 (1972). ‘Where the administrative scheme does not require a certain outcome but merely authorizes particular actions and remedies, the scheme does not create ‘entitlements’ that receive constitutional protection under the Fourteenth Amendment.” Sealed v. Sealed, 332 F.3d 51, 56 (2d Cir.2003). Where the state has significant discretion regarding whether a particular benefit will be conferred, a potential recipient of the benefit will only in “the rare case ... be able to establish an entitlement to that benefit.” Kelly Kare, Ltd. v. O’Rourke, 930 F.2d 170, 175 (2d Cir.1991).

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, 607 F.3d 31, 34 (2d Cir.2010) (“To state a claim for deprivation of property without due process of law, a plaintiff must identify a property interest protected by the Due Process Clause”). The court thus examines Plaintiffs’ claimed sources of their alleged protected property interest seriatim.

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, 988 F.2d 1469, 1474 (6th Cir.1993) (holding that property owners’ expectation of continued utility service based upon accounts with municipality established a “ ‘legitimate claim of entitlement’ encompassed in the category of property interests protected by the due process clause.”); Golden, 404 F.3d at 956 (“Without evidence of a contractual relationship between Golden and the City, or of a statutory entitlement to water service,” procedural due process protection is not available); Sterling v. Village of Maywood, 579 F.2d 1350, 1354 (7th Cir.1978) (finding no protected contractual interest because plaintiff had no contractual relationship with water department and “plaintiff makes no claim that a de facto understanding existed between her and the Village. Thus, there was no implied property right.”).

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., 2006 VT 74, ¶ 15, 180 Vt. 141, 908 A.2d 1011 (quoting Restatement (Second) of Contracts § 302(1) (1981)); see also Morrisville Lumber Co., Inc. v. Okcuoglu, 148 Vt. 180, 531 A.2d 887, 890 (1987) (“Whether or not a party is a third-party beneficiary is based on the intention of the original contracting parties.”); Wells Fargo v. Sinnott, 2009 WL 3157380, at *11 (D.Vt. Sept. 25, 2009) (“The determination of whether a party may be classified as a third-party beneficiary, as opposed to an incidental beneficiary, is based on the original contracting parties’ intention.”).

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., 947 F.2d 595, 600 (2d Cir.1991) (“Here, BBSI contracted with Brown to provide clearing and other services for Brown’s clients. Flickinger, as one of Brown’s clients, was precisely the intended beneficiary of BBSI’s contract with Brown. In fact, BBSI’s breach of its obligations under that contract ... involved performance that was to be rendered directly to Flickinger.”).

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 evidence before the court that either of the original contracting parties intended to confer upon Plaintiffs the benefit of their promised performance. At best, Plaintiffs have established that if both the City and their respective landlords performed as intended, Plaintiffs would be the recipients of continued water service. Intended third-party beneficiary status is not created on this basis. See McPheeters v. McGinn, Smith and, Co., Inc., 953 F.2d 771, 773 (2d Cir.1992) (“A third-party beneficiary exists, however, only if the parties to that contract intended to confer a benefit on him when contracting; it is not enough that some benefit incidental to the performance of the contract may accrue to him.”) (internal quotations and citations omitted); McCarthy v. Azure, 22 F.3d 351, 362 & n. 16 (1st Cir.1994) (“Because third-party beneficiary status constitutes an exception to the general rule that a contract does not grant enforceable rights to non-signatories ... a person aspiring to such status must show with special clarity that the contracting parties intended to confer a benefit on him.... These requirements are not satisfied merely because a third party will benefit from the performance of the contract.”).

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., 409 F.3d 758, 768 (6th Cir.2005) (rejecting tenants’ intended third-party beneficiary argument where water district rules “fail to recognize any right of non-owners to seek service or to enforce the property owner’s rights under the ... contract” and tenants submitted no evidence of contracting parties’ intent to benefit them); Williams v. V.I. Water & Power Authority, 672 F.2d 1220, 1228 (3d Cir.1982) (rejecting tenant’s intended third-party beneficiary argument for enforcement of electricity contract between landlord and utility company where “there was no evidence at all as to the intent of either party to the contract”). The court finds their conclusions on this issue persuasive.

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, 2009 WL 3157380, at *12 (recognizing the “universal concept that third party beneficiary status must be intended by the contracting parties.”); Mowbray v. Moseley, Hallgarten, Estabrook & Weeden, Inc., 795 F.2d 1111, 1117 (1st Cir.1986) (“The crux in third-party beneficiary analysis ... is the intent of the parties”).

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 while the City contends no such interest exists. Although the parties cite numerous cases from other jurisdictions on the issue of whether, when, and how a statutory protected property interest may be found in water service, here any such interest must be found in Vermont law. See Sealed, 332 F.3d at 56 (“[WJhere the claimed interest is rooted in state law, we look to the particular state statute ... or regulation that purports to establish the asserted entitlement in order to assess the parameters and the strength of the alleged interest to determine if due process protection applies.”) (internal quotation marks omitted). Accordingly, while a brief survey of the conflicting caselaw from other jurisdictions is instructive, it is not controlling.

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, 436 U.S. at 11-12, 98 S.Ct. 1554 (“Because petitioners may terminate service only ‘for cause,’ respondents assert a ‘legitimate claim of entitlement’ within the protection of the Due Process Clause.”) (internal citations and footnote omitted). Other courts have adopted a similar approach.

In Pilchen v. City of Auburn, 728 F.Supp.2d 192 (N.D.N.Y.2010), the district court found that tenants had a protected property interest in water service based upon a municipal ordinance which provided that “[tjhis chapter is therefore enacted in order that the water supply system shall be properly maintained, improved and extended primarily for the benefit of the water users and taxpayers within the City limits.” Id. at 199. The Pilchen court concluded that “[t]he ordinance is clear in specifying the City’s intent and purpose to supply water service to residences in the City (and its immediate vicinity) for the benefit of both water users and taxpayers.” Id.

The district court reached the same conclusion in Davis v. Weir, 328 F.Supp. 317 (N.D.Ga.1971), opining that “[tjhere can be no serious doubt that water is an absolute necessity of life[,J” so that when a municipality undertakes to provide water to all applicants subject only to reasonable rules and regulations, the municipality has offered an “entitlement” the termination of which must be accompanied by procedural due process for the actual user. Id. at 322. In affirming this conclusion, the Fifth Circuit noted that, on appeal, the municipality had abandoned its position to the contrary. See Davis v. Weir, 497 F.2d 139,143 (5th Cir.1974).

Some courts have gone further and have found a protected interest in continued water service based primarily on a state’s landlord-tenant code essentially concluding that notice to a tenant of discontinued water service is necessary to allow the tenant to preserve his or her interest in the leasehold. See, e.g., DiMassimo v. City of Clearwater, 805 F.2d 1536, 1539-40 (11th Cir.1986); Turpen v. City of Corvallis, 26 F.3d 978, 979 (9th Cir.1994).

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, 436 U.S. at 11, 98 S.Ct. 1554 (“[Pjublic utilities in Tennessee are obligated to provide service to all of the inhabitants of the city ... and may not terminate service except for nonpayment of a just service bill.”). Correspondingly, no court has concluded that a municipality may not impose reasonable connection requirements or exercise its discretion in choosing among available collection methods. Rather what these courts have focused on is whether a municipality may terminate service “at will” and whether any procedures and rights must accompany a termination even when it appears to be authorized. As the Craft Court noted, when “[a]n aggrieved customer may be able to enjoin a wrongful threat to terminate, or to bring a subsequent action for damages or a refund!,] [t]he availability of such local-law remedies is evidence of the State’s recognition of a protected interest.” Id.

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., 2011 WL 1225791, at *8 (E.D.N.Y. Feb. 15, 2011) (citing Pilchen for the proposition that “tenants have a due process property interest in water service”).

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, 404 F.3d at 957, 958 (observing that plaintiff cited “no Ohio statutes or case law in support of her ... entitlement to water service” but instead “rest[ed] her case on the bare assertion that because water is ‘an absolute necessity of life,’ the City’s termination of her service was unconstitutional.”).

In Ransom v. Marrazzo, 848 F.2d 398 (3d Cir.1988), the Third Circuit examined a procedural due process claim arising out of the denial of water service based upon an unpublished standard that required a new occupant to pay the prior occupant’s outstanding bill as a condition precedent to the establishment of water service. The court noted that “[i]t is well-settled that the expectation of utility service rises to the level articulated in [Roth and Sindermann] of a ‘legitimate claim of entitlement’ encompassed in the category of property interests protected by the Due Process Clause[,]” id. at 409, but found the claim moot based upon the city’s promulgation of new regulations.

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, 409 F.3d at 764-67 (holding there is no protected property interest in water service from a political subdivision that does not act as a public utility, which is not required “to provide service to any particular individual or group,” and which offers water service only to “a person holding property”); Sterling, 579 F.2d at 1354 & n. 12 (finding no protected property interest in water service where landlord requested termination of service, where Village’s ordinance “does not purport to provide service to all people,” and where “[t]he issue of what rights a tenant has when the municipality terminates water because the landlord has failed to pay the water bill is not before us.”).

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, 2011 WL 253963, at *1, *5 (N.D.Ill. Jan. 3, 2011) (finding no protected interest in water service because Illinois delegates to municipalities the right to own and operate water utilities, including the right to regulate water distribution, and thus municipality properly terminated water service to resident who had been “given fair warning over many months that the water would be turned off if he did not install an outdoor meter as required of all water customers under a City ordinance.”).

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, 845 F.2d 566, 569-70 (5th Cir.1988) (finding no right by tenant to free water service because enabling legislation did not limit termination “for cause,” and because tenant “adamant[ly] refuse[d] even to apply for service,” and thus it was “not unreasonable for a water district to refuse to supply water to persons who fail or refuse to pay for water consumed by them as renters” and noting that not even “the charter that created the District [contained] a suggestion that water service was a right of the citizens[.]”); Marrero-Garcia v. Irizarry, 33 F.3d 117, 123 (1st Cir.1994) (finding no entitlement to water service by “consumers” where residents “refused to register an account, place a bond or pay for water services”); James v. City of St. Petersburg, 33 F.3d 1304, 1307 (11th Cir.1994) (refusing to find a protected property interest in free water service based upon Florida’s landlord tenant code and noting that “[b]eeause neither James nor her landlord complied with the City’s requirements for initiating water service, which included the making of a security deposit, James had no legitimate claim of entitlement to water service under Florida law.”).

The foregoing jurisprudence reflects a consensus that in order to establish a protected statutory interest in water service, a tenant must establish a statutory intent to provide water service to all users regardless of their status as property owners or tenants which is, in turn, protected by procedural mechanisms intended to prevent an erroneous deprivation of that interest for reasons other than unexcused nonpayment. Plaintiffs assert their claimed statutory property interest easily satisfies this standard.

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, 547 F.3d 88, 95 (2d Cir.2008) (quoting Connecticut v. Doehr, 501 U.S. 1, 12, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991)). As noted, only a handful of jurisdictions have found a tenant’s protected property interest in water service on this basis. Without reaching the issue, the court turns to a statutory source for which Plaintiffs have a far firmer footing.

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, 728 F.Supp.2d at 199 (ordinance which states that it was “enacted in order that the water supply system shall be properly maintained, improved and extended primarily for the benefit of the water users and taxpayers within the City limits” is “clear in specifying the City’s intent and purpose to supply water service to residences in the City (and its immediate-vicinity) for the benefit of both water users and taxpayers.”).

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 ratepayer.”), at 5-6 (“The statute does not define ratepayer to include or exclude tenants from the notice and hearing provisions.”), at 8 (“[T]he statute neither excludes tenants as ratepayers nor prevents tenants from requesting hearings to challenge disconnection of service.”).

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, 408 U.S. at 577, 92 S.Ct. 2701. It also imposes a corresponding obligation on that actual user to pay for the water received. 24 V.S.A. § 3306 (“The owner or occupant of any tenement, house, or building, who takes the water of such municipal corporation shall be liable for the rent or price of the same[.]”).

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., 98 Vt. 176, 126 A. 517, 518 (1924)). The court agrees.

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, 126 A. at 518.

Other Vermont cases have recognized a protected property interest in power services. In Ratepayers Coalition of Rochester v. Rochester Elec. Light and Power Co., 153 Vt. 327, 571 A.2d 606 (1989), the Vermont Supreme Court observed that “[w]here individual electric service is to be terminated by a utility, due process rights are involved and due process standards of notice and an opportunity for a hearing must be observed because entitlement to electric service is a protectable property right.” Id. at 609. The federal court reached this same conclusion in Condosta v. Vermont Elec. Co-op., Inc., 400 F.Supp. 358 (D.Vt.1975), concluding that “electrical service does constitute ‘property’ within the meaning of the Fourteenth Amendment.” Id. at 364. In doing so, the court noted that Vermont law required public utilities to “sell and distribute the same to any and all persons ... that desire to use the same within this state,” and observed that “the plaintiff relies upon electric service in his daily life” and “[p]robably no other single utility service is so vital to this plaintiffs day-to-day existence” as electricity. Id.

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, 128 Vt. 482, 266 A.2d 457, 464 (1970). It has also held that in the absence of a statute restricting such rights, the occupant of a premises dependent upon a public service corporation for a supply of water, if otherwise entitled to service, cannot be denied service merely because he or she is a tenant and not a property owner. See Waldron v. Int’l Water Co., 95 Vt. 135, 112 A. 219, 221 (1921). Water service providers must therefore fulfill their duties to supply water to all inhabitants with “no unjust discrimination.” Hall v. Swanton, 113 Vt. 424, 35 A.2d 381, 384 (1944). “Although conditions may attach to the furnishing of service, they may not be used as excuses to avoid the recognition of a right.” Corcoran, 266 A.2d at 464. These cases strongly support a conclusion that the Vermont courts would also recognize a tenant’s protected property interest in municipal water service where is it offered to all “inhabitants.”

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