ACLU sues Burlington on behalf of tenant who faced eviction

BURLINGTON — A city resident represented by the Vermont chapter of the American Civil Liberties Union is suing the Queen City alleging that police and code enforcement pressured his landlord to evict him for making frequent calls to police.

Joseph Montagno, a former tenant of 184 Church St., alleges in the lawsuit that the city violated his constitutional and due process rights by tracking his 911 calls and encouraging his landlord to evict him if calls from Montagno and his fellow tenants did not decrease.

Earlier this year, Montagno’s landlord, Joe Handy, owner of Sisters and Brothers LLP, a major Burlington rental company, terminated Montagno’s lease for “no cause” and later initiated an eviction proceeding against him, according to the lawsuit filed in federal court last month.

Handy’s company refused to end its eviction proceeding against Montagno unless he agreed to leave by Aug. 31, six months before his lease was up, according to the suit. Handy could not be reached for comment.

Montagno is now homeless and living in an emergency shelter, but has not found a new apartment and is at risk of losing his Section 8 housing voucher as a result, said ACLU attorney Jay Diaz, who is representing Montagno.

Diaz says that Montagno’s situation is the direct result of a city policy that punishes people for calling police, regardless of whether they’re calling to report crimes against them or other legitimate concerns.

“The calls were in no way frivolous,” Diaz said in an interview Friday. “But unfortunately the city decided that him asking for help was a nuisance that needed to be dealt with.”

The way the city is enforcing its housing ordinance and nuisance laws amounts to a “caller punishment policy,” Diaz writes in his suit, adding that the policy “punishes and chills constitutionally protected speech, fails to provide procedural protections, and jeopardizes the safety of Burlington tenants.”

Montagno is seeking injunctive relief from the U.S. District Court of Vermont as well as compensatory damages and coverage for costs incurred in the course of litigation.

Earlier this year, police identified 184 Church St. as the source of the greatest volume of 911 calls in the city, according to a Burlington Free Press report. Police responded to the apartment complex 178 times from January 2015 to April of this year, the report says.

At least 46 of those calls came from Montagno, according to the lawsuit. In one incident that occurred in May, a neighbor threatened Montagno with a metal pipe.

Police responded and arrested the neighbor, who was charged with simple assault and disorderly conduct. The neighbor was subsequently ordered by a court not to go within 10 feet of Montagno, according to the lawsuit.

After the eviction proceeding against Montagno began, there were several occasions where he was concerned about neighbors’ activity, but he was too fearful to call police, according to the lawsuit.

Burlington Police Chief Brandon del Pozo said all three properties that generate the largest call volume to police are owned by Handy. “One of the reasons why properties are unsafe and generate calls is because of poor maintenance, because there’s code violations,” del Pozo said.

Doors and windows at 184 Church St. would not lock or close properly, and its accessibility and location on the edge of downtown has made it a popular site for transients and drug activity, del Pozo said.

“The constant calls for help from the police show that’s one of the city’s most pressing locations for criminal activity,” del Pozo said.

In earlier reports, when police described the property as a “drain” on their resources, del Pozo said that’s because simply responding to 911 calls forced them into a “piecemeal” response, instead of allowing them to find solutions to the broader quality of life issues in the building.

However, when asked to address the allegations in the lawsuit that his officers worked with Code Enforcement Director Bill Ward to pressure Handy into reducing the call volume from 184 Church St. by initiating eviction proceedings against tenants who were calling to report the rampant illegal activity, the chief demurred.

“I can’t comment on the proceedings of another city department,” del Pozo said, referring to code enforcement. When asked about the alleged conduct of his officers, del Pozo said, “Those alleged actions are the subject of a lawsuit.”

Indeed, nobody from the city is willing to discuss the specifics of the case. Ward could not be reached for comment, and Mayor Miro Weinberger, who spent Thursday with the secretary of Housing and Urban Development touting the city’s progress reducing homelessness and building affordable housing, deferred comment to an outside attorney hired by Burlington’s insurance company.

That attorney, Pietro Lynn, of Lynn, Lynn, Blackman & Manitsky, said the claims against the city are without merit, and he anticipated filing a motion to dismiss, which he said he believes will quash the suit. Lynn said that the city does not know why Handy chose to evict Montagno.

“There are a lot of allegations contained in the complaint in this case. We dispute those allegations. We expect that both on the law and the facts we will prevail,” Lynn said.

One of the central allegations in the ACLU lawsuit is that Burlington is using its housing code to label tenants at certain properties as a “public nuisance,” and threatening the landlords at those properties with a loss of their certificate of compliance, which is needed to rent a property in the city.

Del Pozo disputed that the city is labeling tenants as public nuisances, and said that the city is instead applying that label to problem properties.

However, the ACLU lawsuit states that police were keeping detailed spreadsheets recording police activity at 184 Church St., including whether any one of the 26 tenants there was “involved in a call, whether or not they were the caller.”

Diaz said records obtained by the ACLU through public records requests show that Burlington police keep similar records for other properties.

In an email from September 2015, obtained by the ACLU, Burlington Police Lt. Matthew Sullivan emailed Ward, the Code Enforcement director, providing him with a spreadsheet of police activity for 184 Church St., and asked if there was a “code angle” that could be used to “reduce calls,” according to the suit.

Ward sent a letter to Handy on Feb. 4 identifying 184 Church St. as a “nuisance property” and “problem property based on police calls for service and Code Enforcement complaints.” In that letter, Ward threatened to suspend Handy’s certificate of compliance for the property if call volumes to police from his tenants were not stopped or significantly reduced, according to the lawsuit.

Handy then met with Ward and Burlington police on Feb. 12, and was again told to reduce call volumes from his tenants, according to the suit. Chief del Pozo said that at that meeting Handy told officers he had already begun eviction proceedings against some of his 184 Church St. tenants. That could not be independently confirmed.

It was not until after that meeting, however, that Handy initiated an eviction proceeding in Chittenden County Superior Court against Montagno, according to the lawsuit. Diaz said the filing is dated Feb. 17.

On Feb. 18, Handy sent a letter to tenants at 184 Church St. stating that “nuisance calls need to stop … If people continue to call for nuisance calls we will be forced to start evicting people,” according to the suit.

The next day, Lacey-Ann Smith, a community affairs liaison for Burlington police, emailed Handy a spreadsheet that included the name of eight 184 Church St. tenants and how many times they called police in 2015 and 2016.

Ward continued to pressure Handy to “take more direct action” against tenants that were frequently calling police over the next several months, which resulted in Handy pushing a settlement on Montagno in the eviction proceeding that required him to leave his apartment six months before his lease ended.

Montagno agreed to leave early only because he feared losing his Section 8 housing voucher and getting a negative reference from Handy’s company when he sought new housing, the suit states.

Diaz said that cities around the country have applied nuisance property and compliance ordinances to press evictions, which have targeted low-income communities and people of color, and are known to have a disproportionate impact on victims of domestic violence.

As evidence, Diaz cited a letter signed by 29 U.S senators, including both Vermont senators, praising HUD Secretary Julian Castro’s efforts to curb “unfair and discriminatory nuisance ordinances,” noting a “troubling rise in local nuisance laws that impede access to housing and place vulnerable individuals in danger.”

On Thursday, when Sen. Patrick Leahy, D-Vt., and Mayor Weinberger spent the day with Castro, that letter and the troubling nuisance laws it cites was not a topic of conversation at public events the three attended.

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