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United States District Court, E.D. Pennsylvania

April 1, 2004.


The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge


Community Services Group, Inc. ("CSG") provides caretaker services to three handicapped women who live together in a home in Wind Gap Borough. Wind Gap Municipal Authority ("Authority") provides sewer services to that home. The plaintiff alleges that the defendant violated the Fair Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601, et seq., by charging increased fees to and imposing additional administrative requirements on the home on the ground that the home is a "personal care home."

Both parties have filed motions for summary judgment. The Court held a hearing on February 13, 2004 and will grant the plaintiff's motion for summary judgment and deny the defendant's motion for summary judgment. The Court holds that the regulation discriminates against persons who need "personal care." Because these persons by definition are handicapped, the regulation violates the FHAA. I. Undisputed Facts

  The following facts are undisputed, unless indicated otherwise.

  A. The Home at 250 East First Street

  In 1965, Cindy A.'s family built a single-story three-bedroom home at 250 East First Street, Wind Gap, Pennsylvania. The house is surrounded by other residential homes in a residential community in Wind Gap Borough. Pl.'s Mot. for Summ. J. and Supporting R. ("Pl.'s SJ") at 11, 38.

  Cindy A. lived there with her family until her mother moved to a nursing home in 1999. Pl.'s SJ at 38. In 1995, Cindy's family established the Abel Family Trust ("Trust") for the benefit of Cindy, who was born with Down's Syndrome and has mental retardation. The Trust was established to ensure her care as she and her mother grew older. Cindy and her three siblings are the beneficiaries of the Trust. Pl.'s SJ at 38-39; Def.'s Mot. for Summ. J. ("Def.'s SJ") at Ex. G.

  When the Trust was established, Cindy's mother's health was failing and Cindy required assistance with her daily activities. Northampton County Agencies funded in-home services to Cindy and her mother. In 1997, the in-home services increased because of Cindy's mother's health. In November 1999, Cindy's mother moved to a nursing home. Cindy continued to live at the house with the assistance of a full-time caretaker, provided through the Northampton County Mental Health and Mental Retardation Program ("MH/MR") and family funds. Pl.'s SJ at 39.

  In 2000, Cindy's family and MH/MR explored the possibility of having other women with disabilities move into the home with Cindy to allow Cindy to live in the home. They ultimately determined that two other women, Cassie and Linda, would move in permanently with Cindy. The three women, who are adults in their forties and fifties, have mental retardation which substantially limits their ability to learn, work, communicate, and care for themselves. Due to their physical and cognitive disabilities, the women need assistance with their daily life activities in order to live in the community. The women receive services from one human services agency in order to save MH/MR's limited resources and to allow the three women to live in a home as the functional equivalent of a family. Pl.'s SJ at 11-12, 39-40, 53-54.

  B. CSG

  MH/MR does not provide direct care services to individuals with mental retardation. It contracts with human services agencies to provide these services pursuant to county, state, and federal requirements and protocols. Without these agencies, MH/MR would be unable to fulfill its legal obligations and provide the necessary services to its clients with mental retardation. MH/MR has contracted with CSG for the last 25 years. Pl.'s SJ at 10-11, 52-53.

  CSG is a for-profit corporation that provides both residential and non-residential services to persons with disabilities in Northampton County and other counties in the Commonwealth of Pennsylvania. CSG's mission is to promote the growth and enhance the potential of people with disabilities. Pl.'s SJ at 10-11, 52-53.

  MH/MR contracts with CSG to provide support and services to individuals with mental retardation in their daily activities to permit them to live in residential homes. MH/MR determined that CSG would provide caretaker services to the three residents at East First Street. Pl.'s SJ at 11, 52-53; Def.'s SJ at Ex. C.

  As part of coordinating and providing caretaker services to the three women at the house, CSG entered into a lease agreement with the Trust. CSG and MH/MR worked with Cindy, Cassie, and Linda and their families to complete the necessary paperwork needed to arrange for the provision of caretaker services. CSG and MH/MR are required by state and federal law to document the services and funding sources. The completion of the paperwork and the lease agreement was part of the process necessary to enable the three women to live together as a household at 250 East First Street with the necessary caretaker assistance. The lease agreement provided that CSG would pay the Trust $11,400 annually. Pl.'s SJ at 11, 54; Def.'s SJ at Ex. H.

  Cassie and Linda moved into the house on or about December 29, 2000 and have lived there since that time. Pl.'s SJ at 40.

  C. The Current Use of the Home

  Cindy, Cassie, and Linda live in the house at 250 East First Street together as a family unit. They have developed a strong sense of family and intend to continue living in the home together. Each has her own bedroom decorated with personal belongings, and they all share the common areas of the home. Pl.'s SJ at 11-12.

  On weekdays, the women typically wake up at 6:00 a.m. and get ready for the day. They eat breakfast together at around 7:00 a.m. in the kitchen. They leave for the day at 8:00 or 9:00 a.m. to attend a day program and/or a vocational rehabilitation program. When the women return for the day in the afternoon, they engage in normal leisure activities and errands, e.g., nap, walk, shop, or talk with each other. They go food shopping, eat dinner, and help clean up together. After dinner, the women each do as they please, e.g., they might watch television, play games, go on walks, go to the mall, or talk. They bathe later in the evening, receiving assistance from a caretaker according to their needs. Pl.'s SJ at 12, 16-20, 464-67.

  On weekends, the women sometimes visit family or have family members and friends visit them at their home. There are no regulations or conditions regarding the number, frequency, or timing of visitors. Cindy, Cassie, and Linda celebrate holidays together at home throughout the year. At Christmas, for example, they decorate a tree and exchange presents. Id.

  Caretakers from CSG assist Cindy, Cassie, and Linda with their day-to-day activities, such as bathing, food preparation, and housecleaning, so that the women are able to live in a residential home. The caretakers use the mini-van parked in the garage to drive the women to appointments or to various leisure activities. Cindy, Cassie, and Linda do not require or receive clinical care, therapy, rehabilitation or other similar services at the home. Pl.'s SJ at 16-20, 466.

  The caretakers are not present in the home from 9:00 a.m. until 3:00 p.m. when the residents are not home, unless a resident has remained home for some reason. One overnight caretaker stays in the house from approximately 11:00 p.m. until 9:00 a.m. The overnight caretaker does not sleep at the house. During other hours, there are generally two caretakers and sometimes one caretaker present. About once a month there is a two hour meeting attended by the staff who work in the home and their supervisor. Pl.'s SJ at 17, 464-67.

  D. The Authority and the Authority's Regulation

  The Authority provides sewer services to residential and commercial properties in Wind Gap Borough and in two other local municipalities. The Authority's Rules and Regulations Governing Sewer Service When Obtained from Sewer System of Wind Gap Municipal Authority ("Regulations") contain the rules for determining the number of sewer billing units. Pl.'s SJ at 101, 194.

  Residential homes in Wind Gap Borough are charged a single equivalent dwelling unit ("EDU") regardless of actual sewer usage for the house. Sewer charges and rates do not change when individuals move in and out of a residential home. The number of people living in a residential unit or the fact that a unit is a rental property does not change the residential classification of a single family home. Pl.'s SJ at 101-03, 116.

  The Authority revised its regulations in September of 2001. The regulations in existence prior to the revisions governed the Authority's reclassification of the home. Section 9.02 of the original regulations entitled "Residential Units" stated that one sewer billing unit fee "shall be charged to and collected from the Owner of each connection unit for each residential Sewer Billing Unit, whether constructed as a private dwelling unit, a dwelling unit in a double condominium or in any other multiple dwelling or multiple use structure." Pl.'s SJ at 195; Tr. of Feb. 13, 2004 Hr'g at 4.

  Section 9.03 entitled "Commercial Units" stated that sewer fees "shall be charged to and collected from the Owner of each connection unit containing non-residential Sewer Billing Units as set forth in the following classification or schedule. . . ." The regulation then listed a number of classifications. For example, the "house, apartment or condominium" classification was charged one EDU per individual unit. The "Hotel or Motel, Nursing Home, Personal Care Home or Boarding House (without Restaurant or Bar, Dining or other Business)" was charged "1 EDU per residence plus 1 EDU per 2 guest rooms plus 1 EDU per 20 restaurant bar or dining facility seats. . . ."*fn1 The Regulations do not define the term "commercial." Pl.'s SJ at 195.

  The September 17, 2001 regulations ("Revised Regulations") contain slightly different classifications. Non-residential sewer billing units are charged as set forth in the following classifications: home based business, commercial residential establishment, other commercial establishment, and church. "Commercial residential establishment" is defined as a non-exclusive list, including "hotel or motel, nursing home, personal care home, boarding house, assisted living or any similar facility." Pl.'s SJ at 144.

  E. The Authority's Actions Regarding CSG and the Home at 250 East First Street

  On or about September 13, 2000, CSG obtained zoning approval from the Wind Gap Zoning Hearing Board to allow the three residents to occupy the home. The Zoning Hearing Board found that the residents would be living together in a family-like manner. The Zoning Hearing Board, through the Borough of Wind Gap, subsequently notified the Authority that three individuals with mental retardation would be living at 250 East First Street. Pl.'s SJ at 117-18, 481.

  The Authority then asked Cindy's sister, Constance Altemose, and the Regional Director for CSG, Margaret Van Schaick, to attend a board meeting to explain who would be living at the home. In the summer and fall of 2000, Cindy's sister and CSG's Regional Director addressed the board. They explained that CSG would provide caretakers to assist the residents with their daily activities, that the house would be used as a family residence, and that there would be no change in the use of property. The Authority did not believe that these representations were inaccurate. Pl.'s SJ at 12, 116, 329, 337.

  On October 16, 2000, the Authority sent Cindy's sister a letter informing her that it was necessary to apply for a sewer connection permit, submit a feasibility review agreement, and submit a $500 deposit. Mr. Hahn, the Administrator for the Authority, testified that these requirements were designed to determine the use of the home. He also testified that he was unaware of any existing residential customer already connected to the sewer who was subjected to these requirements. Pl.'s SJ at 116-17, 292.

  On November 9, 2000, CSG submitted a feasibility review agreement, applied for a sewer connection permit, and submitted the deposit. CSG included a memorandum with that correspondence which discussed the requirements of the FHAA and requested a reasonable accommodation under the FHAA to allow the house to remain classified as residential. Mr. Hahn wrote to CSG's attorney, stating that the Authority would not consider the application because the documents were not executed by the deed owner. Pl.'s SJ at 293-301.

  In December 2000, CSG notified the Authority that two individuals with mental retardation would move into 250 East First Street with Cindy. Linda and Cassie moved into the house that same month. Pl.'s SJ at 11, 118. The Authority changed the home's classification from residential to commercial and increased the number of EDU's from one to two in January of 2001. Pl.'s SJ at 169.

  Mr. Hahn testified that the property was classified as commercial both because CSG was a for-profit company and because it was a personal care home. Mr. Hahn also acknowledged that residential homes owned by for-profit, commercial corporations leasing homes to families are charged at the residential rate, not the commercial rate. Pl.'s SJ at 109-112, 155.

  In May 2001, the Authority demanded that the Trust pay a $2100 tapping fee and again demanded the $500 deposit.*fn2 CSG's attorney wrote to the Authority requesting that the Authority treat the home as a single-family residence and explain the tapping fee and the classification of the property to CSG. CSG also reiterated its request for a reasonable accommodation. Pl.'s SJ at 307-08. The Authority did not respond to CSG.

  CSG continued to pay the increased quarterly sewage bill while reserving its right to challenge the Authority's actions. In June or July of 2002, the Authority filed a municipal lien against the property in the amount of $2200 for the Trust's failure to pay the additional tapping fee. CSG attempted to obtain an explanation from the Authority. The Authority did not explain the basis of the additional tapping fee. CSG paid the fee under protest on August 22, 2002 in order to have the lien removed. As of May 21, 2003, the Authority had not released the lien on the property. Pl.'s SJ at 122-24, 314, 316-19, 323-25.

  The Authority currently classifies the home as commercial and charges CSG two EDUs per quarter. At this time, the house has a washer/dryer, a dishwasher, two toilets, sinks, and a bathtub. The women bathe, wash clothes, and use the facilities in the home like any other family. The presence of caretakers in the home adds two people to the three residents who are using water. The average sewage usage at the home is lower than that of other residential homes in the neighborhood. Both the plumbing system and the physical connection between the property and the sewer system have not changed since Cassie and Linda moved into the home. Pl.'s SJ at 12, 111, 159, 166-70.

  CSG filed the complaint in this case in November of 2002. The complaint alleges that the Authority's actions constitute discrimination in violation of the FHAA.

 II. Discussion

  In 1968, Congress passed the Fair Housing Act as Title VIII of the Civil Rights Act to prohibit housing discrimination on the basis of, among other things, race, gender, and national origin. 42 U.S.C. § 3601, et seq. In 1988, the Act was amended to extend coverage to persons with handicaps. Id. The Third Circuit has recognized this expansion as "a clear pronouncement of a national commitment to end the unnecessary exclusion of persons with handicaps from the American mainstream." Hovsons, Inc. v. Township of Brick, 89 F.3d 1096, 1105 (3d Cir. 1996) (citations omitted).

  The plaintiff brings this action pursuant to sections 3604(f)(2) and 3604(f)(3)(B) of the FHAA. Section 3604(f)(2) makes it unlawful "to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such a dwelling, because of a handicap of . . . a person residing in or intending to reside in that dwelling. . . ." 42 U.S.C. § 3604(f)(2) (2003). This provision is violated by both intentional discrimination (also called disparate treatment) and facially neutral rules with a disparate impact on handicapped persons.*fn3 See Lapid Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d 442, 448 n.3 (3d Cir. 2002). Section 3604(f)(3)(B), known as the "reasonable accommodations" provision, prohibits the refusal to "make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford handicapped persons [an] equal opportunity to use and enjoy a dwelling." Id. (citing 42 U.S.C. § 3604(f)(3)(B)).

  CSG claims that the Authority's policies and actions constitute both disparate treatment and disparate impact discrimination.*fn4 CSG also alleges that the Authority failed to comply with the reasonable accommodations provision.*fn5 A. Disparate Treatment

  A plaintiff can demonstrate disparate treatment by either showing discriminatory motivation or a facially discriminatory classification. See Larkin v. Michigan Dep't of Soc. Servs., 89 F.3d 285, 289-90 (6th Cir. 1996). Although CSG argues that there is evidence that the Authority was motivated by discriminatory animus, the facial discrimination claim is the basis of its motion for summary judgment.

  1. Facial Discrimination

  In determining whether a regulation facially discriminates, one must look to the language of the regulation. Facial discrimination occurs where "the protected trait by definition plays a role in the decision-making process, inasmuch as the policy explicitly classifies people on that basis." See DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 726 (3d Cir. 1995) (citations omitted).

  The plaintiffs argue that the regulations facially discriminate because they single out "personal care homes" for higher sewage rates than a residential home, regardless of the number of residents and the use made of the property. If the regulations classified on the basis of "homes for the handicapped," they clearly would be facially discriminatory under the FHAA. The question before the Court is whether an ordinance that singles out "personal care homes" constitutes facial discrimination under the FHAA.

  One of the earliest cases to grapple with this question was Horizon House Developmental Servs., Inc. v. Township of Upper Southampton, 804 F. Supp. 683 (E.D. Pa. 1992), aff'd, 995 F.2d 217 (3d Cir. 1993). In Horizon House, my colleague, Judge Lowell A. Reed, determined that an ordinance imposing a 1,000 foot distance requirement between certain homes, including those where "permanent care or professional supervision is present," constituted disparate treatment of the handicapped. The court found that the ordinance's reach coincided with the scope of the FHAA's definition of handicap. The FHAA defines handicap to include a physical or mental impairment which substantially limits one or more of a person's major life activities. The court noted that the words "permanent care" or "professional supervision" singled out those who are unable to live independently and are "handicapped" under the FHAA's language. The opinion also stated that it was irrelevant that the ordinance might incidentally include other groups of people without handicaps, such as juveniles or ex-offenders. 804 F. Supp. at 694.

  Other courts have followed Judge Reed's lead and invalidated as facially discriminatory various laws and regulations that do not explicitly mention the "handicapped" or the "disabled." See Larkin, 89 F.3d at 290 (holding that a spacing requirement for "adult foster care facilities" was facially discriminatory under the FHAA); Cmty. Hous. Trust v. Dep't of Consumer and Regulatory Affairs, 257 F. Supp.2d 208, 222 (D.D.C. 2003) (holding that a regulation classifying persons based upon their common need for "treatment, rehabilitation, assistance, or supervision in their daily living" is facially discriminatory); Children's Alliance v. City of Bellevue, 950 F. Supp. 1491 (W.D. Wash. 1997) (holding that an ordinance distinguishing group facilities from families, in part based on the presence of staff who provide care and assistance with daily living activities, is facially discriminatory).

  This construction of the FHAA is consistent with that statute's goal to end the unnecessary exclusion of the handicapped from the mainstream. See Alliance for the Mentally Ill v. City of Naperville, 923 F. Supp. 1057, 1069 (N.D. Ill. 1996) (quoting H.R. Rep. No. 711, 100th Cong., 2nd Sess., at 18 (1985)); see also City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731-32, 737 n.11 (1995). The FHAA's broad goal would be frustrated if ordinances using proxies for the term "handicapped" were deemed facially neutral.

  The Seventh Circuit recognized this principle when analyzing the use of proxies for the handicapped in the employment context: We have warned that an employer cannot be permitted to use a technically neutral classification as a proxy to evade the prohibition of intentional discrimination. An example is using gray hair as a proxy for age: there are young people with gray hair (a few), but the "fit" between age and gray hair is sufficiently close that they would form the same basis for invidious classification. Similarly, discrimination "because of" handicap is frequently directed at an effect or manifestation of a handicap rather than being literally aimed at the handicap itself. Thus, a school's exclusion of a service dog has been held to be discrimination "because of" handicap, and no doubt a policy excluding wheelchairs would be such discrimination, even if the stated purpose of the policy were a benign one.

 McWright v. Alexander, 982 F.2d 222, 228 (7th Cir. 1992) (citations omitted).

  The Third Circuit used this same analysis in examining a policy that allegedly resulted in age discrimination. In Erie County Retirees Association v. County of Erie, 220 F.3d 193, 211 (3d Cir. 2000), the Third Circuit considered whether an employer who offers its Medicare-eligible retirees health insurance coverage allegedly inferior to the coverage offered to those not eligible for Medicare violates the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The Court held that a policy containing a direct proxy for age, such as Medicare status, involves disparate treatment. The Third Circuit distinguished this proxy from a case in which the motivating factor — years of service — merely correlates with age. Id. (contrasting Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)).

  In applying the analysis of these cases to this regulation, the Court finds that the classification — personal care home — coincides with the FHAA's definition of handicap. Personal care homes provide professional personal care and supervision. Residents who require personal care in their homes are not able to live on their own. They require around the clock assistance with their daily life activities. These people are by definition limited in their daily life activities. See 42 U.S.C. § 3602(h).

  The Authority's response to the plaintiffs' facial discrimination claim appears to be that the reclassification of the home was made not only because it is a personal care home but also because it is being run by a for-profit licensed corporation. This response came for the first time during this litigation. During the process of reclassifying the property, the Authority never explained why it was reclassifying the home and assessing it additional rates and fees. Nor is there any explanation in the Minutes of the meetings of the Authority. At his deposition, Mr. Robert Hahn, the Administrator for the Authority, gave a variety of explanations for the Authority's actions, including that CSG was licensed, was a for-profit entity, and used the property like a personal care home. Pl.'s SJ at 110-12.

  The Authority's reasoning is unpersuasive for two reasons. First, the classification does not say that only "for-profit" personal care homes will be reclassified to commercial. Indeed, the list of commercial buildings includes schools and churches, not usually "for-profit." Second, even if the classification only encompassed "for-profit" personal care homes, it would nonetheless violate the FHAA. "The FHAA does not require group home providers to give away their services, to operate at a loss, nor to declare a particular tax status. If it did, there would be far fewer residences for disabled persons than there presently are." United States v. City of Chicago, 161 F. Supp.2d 819, 844 (N.D. Ill. 2001) (holding that a ban on for-profit providers of group homes violates the FHAA).

  2. The Authority's Justification

  Because the Court finds that the regulations discriminate on their face, the burden falls on the defendant to justify the discriminatory classification. The "justification must serve, in theory and practice, a legitimate, bona fide interest of the . . . defendant, and the defendant must show that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact." Resident Advisory Board v. Rizzo, 564 F.2d 126, 149 (3d Cir. 1977); see also Ass'n for the Advancement of the Mentally Handicapped v. City of Elizabeth, 876 F. Supp. 614, 620 (D.N.J. 1994).

  The Authority has not offered a valid justification for treating personal care homes differently than residential dwellings. The Authority's purported justification is that it has an interest in applying rates uniformly to all for-profit customers. As discussed above, the record does not support the Authority's claim that its classification system is based on "for-profit" status. Indeed, for-profit home owners who rent out their homes for profit are charged for one EDU.

  In any event, the Authority's definition of personal care home includes single-family residential dwellings which house a few people living together as a family. The definition encompasses homes, such as the house in this case, where there have been no physical changes relating to sewer usage, where the actual sewer usage for the house is less than other residential homes, and where fewer individuals live in the home than in other residential homes. The presence of on-site, awake caretakers in a residence does not alter the underlying residential use of the property. Caretakers do not affect sewage usage differently than do live-in servants or nannies, who do not transform a family residence into a commercial facility. The Authority has a legitimate interest in using an effective, efficient rating system to provide sewer services. There are, however, less discriminatory courses of actions available to it. As the Authority noted, it has wide discretion to balance various factors in the rate making process in order to find equitable solutions. Def. SJ at 16-17.

  The Authority could implement an efficient rating system without using discriminatory classifications. It could redraft its regulation by removing "personal care home" from the face of the regulation, so that the regulation would not depend on whether residents receive "personal care."

  The Authority could distinguish for-profit properties from non-profit ones without specifically targeting personal care homes. It could increase its rates to large institutional facilities. The Authority could base its rates on the number of persons per square foot, or it could charge a different rate to single-family residences than to larger buildings.

  B. Other Claims

  Because the Court holds that the regulation at issue constitutes facial discrimination, it need not decide the plaintiff's other two claims: that the regulation has a disparate impact on handicapped persons; and that the Authority failed to comply with the reasonable accommodations provision of the statute. The Court, therefore, will discuss these two issues briefly.

  To prevail on a disparate impact claim, a plaintiff must prove that the defendant's policies or practices have a greater adverse impact on persons with disabilities than on non-protected persons. Lapid-Laurel, L.L.C., 284 F.3d at 466-67. "[T]hen the burden shifts to the defendant to show that it had a legitimate, non-discriminatory reason for the action and that no less discriminatory alternatives were available." Id. at 467. The plaintiff can establish its prima facie case under a disparate impact theory by showing "(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the defendant's facially neutral acts or practices." Id.

  Even if "personal care home" were deemed to be facially neutral, the classification would have a disproportionate impact on people who suffer from disabilities. It is such people who live in dwellings with caretakers. As discussed above, the Authority has not presented any legitimate, non-discriminatory reason for classifying single-family homes in which individuals with disabilities live as "commercial" uses for the purpose of assessing sewer fees.

  As to the reasonable accommodation claim, the Authority never responded to the plaintiff's numerous letters requesting the defendant to waive the higher sewer fees and additional administrative requirements. Nor is there any explanation in any of the minutes of the Authority's meetings as to why the Authority did not grant the accommodation.

  The plaintiff has carried its burden of showing that the requested accommodation was necessary to provide equal opportunity to people with disabilities. The burden, therefore, shifts to the defendant to show that the requested accommodation is not reasonable. The defendant has not satisfied this burden. The property in this case is a single-family dwelling that historically has been assessed by the Authority as a residential property. There are only three people residing at the dwelling — fewer than the number of residents in other dwellings assessed by the Authority as "residential" and with less intensive sewer usage. Unlike some other dwellings deemed "residential," the residents and their caretakers in this case are away from the home during weekdays.

  The Court concludes that the plaintiff's motion should be granted on those two claims as well. An appropriate order follows.


  AND NOW, this 1st day of April, 2004, upon consideration of the defendant's Motion for Summary Judgment (Docket No. 25), the plaintiff's Motion for Summary Judgment (Docket No. 24), as well as all responses and replies thereto, and following oral argument on February 13, 2004, IT IS HEREBY ORDERED that the Defendant's Motion for Summary Judgment is DENIED and the Plaintiff's Motion for Summary Judgment is GRANTED for the reasons stated in a memorandum of today's date. The plaintiff shall submit an appropriate order of final judgment. The plaintiff may submit a request for attorney's fees and costs on or before May 3, 2004.

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