May v. Town of Mountain Village

F I L E D
United States Court of
Appeals
December 19, 1997
PUBLISH
DEC 19 1996
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
JOAN MAY, WILLIAM FELICELLI, )
JOHN RIELLY, PETER CHADMAN, )
VIRGINIA OGLESBY, and DAVID )
HOLUBETZ, on behalf of themselves )
and all others similarly )
situated, )
)
Plaintiffs-Appellants, ) No. 96-1504
)
vs. )
)
TOWN OF MOUNTAIN VILLAGE, )
DARRELL HUSCHKE, Mayor et al., )
)
Defendants-Appellees, )
______________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 96-D-126)
_______________________
Submitted on the briefs:
John H. Steel, Telluride, Colorado, for Plaintiffs/Appellants.
Michael T. Gilbert, Robert E. Youle, Williams, Youle & Koenigs,
P.C., Denver CO, and J. David Reed, J. David Reed, P.C., Montrose,
Colorado, for Defendants.
______________________
Before BALDOCK, BRORBY, Circuit Judges, and BROWN, Senior District
Judge.*
_________________
BROWN, Senior District Judge.
In this civil rights case the plaintiffs, all residents of the
Town of Mountain Village, Colorado, initiated a class action
against the Town and its governing officers to contest
__________________
* Honorable Wesley E. Brown, Senior District Judge, United States
District Court for the District of Kansas, sitting by designation.
provisions of the Town Charter which allow nonresident landowners
to vote in municipal elections. Upon cross motions for summary
judgment, the District Court found that the provision allowing
nonresidents to vote was not irrational or arbitrary, and thus did
not violate plaintiff residents' constitutional right to equal
protection under the law. Summary judgment was granted in favor
of defendants on all federal law claims, and this appeal follows.
May v. Town of Mountain Village, 944 F. Supp. 821 (D.Colo. 1996)
Jurisdiction of the Court of Appeals rests on 28 U.S.C. §1291as an appeal from a final judgment of the District Court granting
the defendants' motion for summary judgment, and dismissing
plaintiff's complaint.
For the reasons set out below, we affirm that judgment.
The Issues
In the District Court, plaintiffs based their claim of the
unconstitutionality of the Charter upon five arguments - that is
i) that the Equal Protection Clause bars nonresident landowner
voting; ii) that basing town council districts partly on the number
of nonresident landowners violates equal protection; iii) that
voting by nonresident landowners violates Colorado law; iv) that
Colorado law requires residency as a condition for participation in
municipal charter elections; and v) that nonresident landowner
voting and charter provisions on initiative and referendums
violates Colorado's constitutional right of initiative and
2
referendum. The District Court ruled only upon the first issue,
finding that questions involving districting and various amendments
to the Charter were moot or not ripe for judgment. The Court also
declined to exercise supplemental jurisdiction over state law
claims and those issues are not before us. 1
The only question presented in this appeal is whether the home
rule charter of the Town of Mountain View, which permits
nonresident real property owners to vote in municipal elections,
violates the 14th Amendment to the federal constitution by diluting
the vote of the residents of that Town.
The Facts
The pertinent undisputed facts in this case, as presented to
the District Court, are as follows: (Joint Stipulated Plan and
Schedule for Discovery, Pp. 87, 90-94, Appellants' Appendix).
The Town of Mountain Village is located in San Miguel County
in the San Juan Range of the Rocky Mountains in southwest Colorado.
As of July 1993, San Miguel County had approximately 4,300
permanent residents. The Town, which consists of about 2,049 acres
of land, is situated in the mountains above and on the opposite
side of a ski mountain from the Town of Telluride, Colorado. As of
1
At the time of the court's decision the Town was awaiting
the results of an election to be held to determine whether
districts would be redrawn, or whether districting should be
abolished entirely in favor of at-large voting. In addition it
appeared that the amendment of the Charter relating to reduction of
residence requirements from 180 days to 30 day had become moot,
since plaintiffs did not challenge the 30 day requirement.
3
July, 1993, the Town of Telluride had a permanent population of
approximately 1,360.
In 1984, the Telluride Company began development of the area
that was later incorporated as the Town under a development plan
first approved by San Miguel County in 1981. The center of the
Town is located at the base of the Telluride Ski Area and contains
the terminal of the main gondola, which reaches the Town from
Telluride. The Town also contains single family and duplex
residential units, residential condominium units, hotel rooms,
commercial space and facilities for recreational activities such as
golf, tennis, swimming and other outdoor activities. As of January
2, 1996, the Town had approximately 505 residents who were
qualified to vote. Including persons under 18 years, the Town had
approximately 568 residents.
Before the Town was incorporated, it was a part of
unincorporated San Miguel County. At an election on January 17,
1995, the Town received voter approval to incorporate under
Colorado law. There were 268 registered voters entitled to vote in
this election, all of whom were residents of the Town. Forty-one
persons voted in this election, 40 voting for the incorporation,
and one against.
On March 7, 1995, a Town election was held on whether to
approve a proposed home rule charter for the Town (hereafter, the
"Charter"). Only registered voters who were residents of the Town
were entitled to vote in this election. Fifty-three residents
voted; 40 voted to approve the Charter, 13 voted against doing so.
4
On March 10, 1995, the Colorado District Court for San Miguel
County issued an order declaring that the Town had been validly
incorporated, and that it had adopted a Home Rule Charter under the
provisions of Article XX of the Colorado Constitution. 2
Section 2.4(a) of the Charter granted the right to vote to all
residents of the Town, so long as they had been legal residents for
at least 180 consecutive days immediately prior to the election,
3
and were at least 18 years old on the date of the election.
Section 2.4(b) of the Charter granted the right to vote to
owners of real property located within the Town, who are not legal
residents of the Town, so long as they: a) have been owners of
record for at least 180 consecutive days immediately prior to the
date of the election; (b) during that 180 days owned a minimum of
50% of the fee title interest in certain real property; (c) are at
least 18 years old on the date of the election; and (d) are natural
persons. Ownership of both residential and commercial real
property entitles the owner to vote, but ownership of parking
spaces, hotel units, roads or common areas does not qualify voters.
Section 2.4 (d) of the Charter further provides that there may only
be one vote cast per person, regardless of whether or not he or she
2
Article XX §6 (d) of the state Constitution gives the full
right of self-government in both local and municipal matters to
municipalities, and to home rule towns, the power to "legislate
upon, provide, regulate, conduct and control . . . [a]ll matters
pertaining to municipal elections in such . . . town. . . . "
3
Pursuant to a later resolution and a special election held
on April 4, 1996, the residence requirement was reduced to 30 days.
This reduction was passed by a vote of 126 to 55.
5
may be a qualified Legal Resident and/or own one or more parcels of
qualified real property. (Appellees' Supp Appendix at p. 38)
Section 1.4(b) of the Charter sets out the reasons for
extending the vote to nonresidents:
(b) Provision for Non-resident Voting Rights.
Certain non-resident property owners have been
extended voting rights concerning municipal
and local affairs based upon the following
reasons:
1. Like many resorts, the nature of the
economy and the life-style of the people of
the Town are, and will in the future remain,
unusual. Furthermore, the fact that many of
the Town's present and future residential and
commercial property owners maintain their
primary residences outside of the Town, making
them part-time second-home non-residents, is
also unusual. Although these facts are not
substantially different from most resort
towns, they are very unusual for conventional
small as well as large towns.
2. The framers of this Charter took
cognizance of the above-mentioned singular
state of affairs, most especially the fact
that a large number of the property owners of
the Town are, and will continue to be, only
part-time residents of their Town by granting
to them the right to vote on those issues that
are strictly limited in nature to Town
matters. (Appellees' Sup. Appendix p. 35).
Pursuant to the Charter, an election for members of the town
council was held on March 28, 1995. "There were thought to be" 268
resident voters eligible to vote at that time, and 39 voted. The
Town mailed 490 ballots to nonresident property owners qualified to
6
vote pursuant to section 2.4(b) of the Charter, of whom 105 voted.
The Town did not mail ballots to resident voters. 4
As of January 2, 1996, a Town census disclosed that in
addition to approximately 505 eligible resident voters in the Town,
there were approximately 541 nonresident property owners eligible
to vote pursuant to the Charter.
Nonresidents entitled to vote currently own over 34% of the
assessed value of real property in the Town, while residents own
only about 5% About 61% of the assessed value of real property in
the Town is owned by nonresident corporations and trusts, which are
not entitled to vote in Town elections. Nonresidents pay over
eight times more in property taxes than the residents do, and it is
fair to state that in the future such nonresident property owners
will continue to contribute significant revenues to the Town.
(Appellees Supp. App. at pp. 2) 5
4
It should be noted that the election held in March, 1995,
when "there was thought to be 268 resident voters", was conducted
at a time when a residency of 180 days was required.
At a meeting on January 9, 1996, the Town Council adopted a
resolution stating that it would enact an ordinance amending the
Charter in order to reduce the residence requirement to 30 days.
A special election was subsequently conducted on April 4, 1996, at
which time Section 2.4(a)(1) was amended to reduce the residency
requirement to 30 days. That measure passed by a vote of 126 to
55. (See ¶¶ q, t, pp. 92, 93, Aplts. Appendix)
5
For the tax year 1995 the total assessed value of real
property in the Town was approximately $89,352,529 and the total
real estate taxes levied against that property in 1995 was
$6,419,356.
The assessed value of real property owned by residents of the
town was approximately $3,896,918, with real property taxes levied
against residents in the sum of $279,955. From that tax sum, the
Town received approximately $8,336 as part of the Town's law
enforcement assessment.
7
Under its Charter, the Town has the right to establish land
use standards, community services, municipal ordinances. to adopt
capital improvement programs, establish property and other taxes,
borrow money, issue bonds, create special improvement districts, to
control public utilities and to condemn property. (Supplemental
Appendix at pp. 42-43, §3.6, and pp. 62-65, §11.1.) By granting
nonresident property owners the right to vote on issues limited to
Town matters, the Charter gives those nonresidents a voice in the
affairs of the Town, including taxes to be paid and how tax dollars
will be spent.
Discussion
We review summary judgment decisions de novo, Trierweiler v.
Croxton and Trench Holding Corp. , 90 F. 3d 1523, 1537 (10th Cir.
1996). We conclude that the District Court properly found that the
constitutionality of the nonresident voting provisions of the Town
Charter should be evaluated using the rational basis test. 6
The assessed value of real property owned by nonresident
property owners entitled to vote under section 2.4(b) of the
Charter was approximately $30,912,699, and the taxes levied on that
property were $2,221,038. Of those taxes received from non-
residents entitled to vote, the Town received approximately $63,909
as part of the Town's law enforcement assessment. (Affidavit of
Linda Check, Ex. 2, Appellees' Supplemental Appendix)
6
In the briefs on appeal, plaintiffs dispute defendants'
contention that in oral argument below, plaintiffs conceded that
strict scrutiny of the voting provisions did not apply. Since we
find that the great weight of authority supports application of the
"rational basis" test, the question of plaintiffs' concession on
this point is not material to our decision.
8
The guarantee of equal protection under our federal
constitution was described by the Supreme Court in Harris v. McRae,
448 U.S. 297, 65 L. Ed. 2d 784, at 808, (1980):
It is well settled that where a statutory
classification does not itself impinge on a
right or liberty protected by the
Constitution, the validity of classification
must be sustained unless "the classification
rests on grounds wholly irrelevant to the
achievement of [any legitimate governmental]
objective." McGowan v Maryland, 366 U.S., at
425 . . . This presumption of constitutional
validity, however, disappears if a statutory
classification is predicated on criteria that
are, in a constitutional sense, "suspect". the
principal example of which is a classification
based on race, e.g., Brown v. Board of
Education, 347 US 483. . . .
In Harris the Supreme Court noted that while the guarantee of
equal protection is not a source of substantive rights, an
exception to that statement is to be found in Reynolds v. Sims, 377
U.S. 533, 12 L. Ed. 2d 506 (1964). Simms held that if a State
adopts an electoral system, the Equal Protection Clause of the
Fourteenth Amendment confers upon a voter a substantive right to
participate in the electoral process equally with other qualified
voters. See f.n. 25,Harris v. McRae, 65 L. Ed. 2d at p. 808, and
see Dunn v. Blumstein, 405 U.S. 330, 336, 31 L. Ed. 2d 274, 280
(1972). 7
7
The Reynolds decision involved the reapportionment of the
Alabama legislature, and the unconstitutional dilution of the
weight of votes depending upon the residence of the voters.
In Dunn a Tennessee resident successfully challenged state
constitutional and statutory provisions which barred him from
voting because he had not been a resident of the state for one year
or a resident of the county for three months' time prior to the
election.
9
Of critical importance to any decision here is the fact that
Section 2.4(b) of the Town Charter does not restrict the right to
vote - it expands it to include nonresidents owning real property
in the Town. As pointed out by the District Court, "[w]here a law
expands the right to vote causing voting dilution, the rational
basis test has been applied by the vast majority of courts." May
v. Town of Mountain Village, supra, 944 F. Supp. at p. 824.8 Among
such cases and most factually similar to the case before us are
Spahos v. Mayor & Councilmen of Savannah Beach, Ga., 207 F. Supp.
688 (S.D. Ga), aff'd per curiam, 371 U.S. 206, 9 L. Ed. 2d 269(1962), and Glisson v. Mayor and Councilmen of Town of Savannah
Beach, 346 F. 2d 135 (1965). Under the facts of these two cases it
8
Among the cases are those in the 5th and 11th Circuits
dealing with Alabama law which permitted residents of cities with
independent school systems to vote in county school board
elections. See Sutton v. Escambia County Bd. of Educ., 809 F. 2d
770 (11th Cir. 1987); Davis v. Linville 864 F. 2d 127 (11th Cir.
1989); Creel v. Freeman, 531 F. 2d 286 (5th Cir. 1976), cert. den.
429 U.S. 1066, 50 L. Ed. 2d 784 (1977) The "rational basis" test
was applied which depended in part upon whether the city residents
had a substantial interest in the operation of the county school
system. In many cases in which the requisite interest was found
nonresident taxes or other economic contributions gave significant
support to the county or rural school systems.
In a similar school district case from the 6th Circuit, the
proper standard of review to apply when the franchise was expanded
was discussed in Duncan v. Coffee County Tenn., 69 F. 3d 88, at p.
94 (6th Cir. 1995), which held that "[m]erely expanding the voter
roles is, standing alone, insufficient to make out a claim of
unconstitutional vote dilution."
In Collins v. Town of Goshen, 635 F. 2d 954, (2d Cir. 1980)
Arcadia Hills, part of the Town of Goshen had its own water
district whose officials were elected by all the residents of the
Town, not just the residents of Arcadia Hills. This scheme was
found to be rational because the Town had often advanced town taxes
to keep the water district going.
10
appears that Savannah Beach was a resort town in Chatham County,
Georgia, with a population of 1,385 persons, which was increased by
an additional 2,500 persons during the summer. Under state law,
non-residents of the town, who resided in the county, who owned
real property in Savannah Beach were permitted to vote in Savannah
Beach elections. In finding that this election scheme did not
violate the equal protection clause of the 14th Amendment, the
courts considered that the assessed value of property in the town
was $4,414,295, of which $2,852,040 was returned by nonresidents,
and that as of December, 1961, there were 549 persons registered to
vote as permanent residents, and 443 were registered as non-
residents, owning property in the town. A substantial majority of
the nonresidents resided in Savannah Beach for periods of one to
four months during the summer.
In Snead v. City of Albuquerque, 663 F. Supp. 1084 (D.N.M.
1987) Affd 841 F. 2d 1131, cert. den. 485 U.S. 1009, 99 L.Ed. 2d
704, residents of Bernalillo County, New Mexico, all but one of
whom owned property in the City of Albuquerque, contested a
municipal bond election. Local law provided the right to vote on
creation of municipal debts to any person who owned property within
the city limits who had paid a property tax during the preceding
year, although there was no requirement of property ownership by
residents of the City. The court held that the voter
classification rationally limited the extension of the vote to
those who were directly affected by the outcome of the election.
It was particularly noted that one who resides outside of a
11
governmental unit has no fundamental right to vote, but a
municipality can permit such persons to do so if there is a
rational basis to find they are affected by the issue put to the
vote. 663 F. Supp. at 1088.
A similar finding was made by the Colorado Supreme Court in
Millis v. Bd. of Cty. Com'rs of Larimer Cty., 626 P. 2d 652 (Colo.
1981) where nonresidents of Colorado who owned vacation property in
the High Drive Water District near Estes Park, Colorado were
excluded from voting on water district matters. It should be noted
that at that time a Colorado statute expressly excluded out of
state property owners from voting on water district matters,
although Colorado residents, who did not live within the water
district were allowed to vote on district matters. In this case,
it appeared that the water district consisted of about 120 to 130
residences or parcels eligible for water service, but only 9 of
these were owned by full time residents, the majority being owned
by out of state residents. The water district was organized in
1974 by a vote of 27 to 21, and the district proposed to issue
bonds for $350,000 to finance a water system. The qualified voters
in the district passed this proposal. The out of state plaintiffs
in the case were not allowed to vote. The Colorado court held that
the voting scheme did not violate the state constitution since
giving the vote to Colorado landowners and not to out of state
landowners was a reasonable and rational choice since state
residents could be presumed to have a special interest in urban
development and its effect on the state's environment that
12
9
residents of other states might not have. In arriving at this
decision, the Colorado court reviewed the law pertaining to the
franchise in the state of Colorado in this manner: (626 P. 2d at
pp. 657-658)
With respect to restrictions on the franchise,
classifications based upon residency, citizen-
ship, or age have never been considered
suspect. . . (citations omitted). Nonresi-
dents do not have a fundamental right to vote
in elections in this state. Jarmel v. Putnam,
179 Colo. 215, 499 P. 2d 603 (1972). Indeed
we have held that our legislature has the
power to determine "the qualifications of
voters in all public and quasi-municipal
corporations and all reasonable provisions
with reference thereto will be upheld."
People ex rel Shaklee v. Milan, 89 Colo. 556,
560, 5 P. 2d 249, 251 (1931). The fact that a
nonresident owns land in this state does not
create a fundamental right to political parti-
cipation in decisions which affect that land.
While nonresident landowners may be enfran-
chised, see People ex rel Cheyenne Soil
Erosion District v. Parker, 118 Colo. 13, 192
P. 2d 417 (1948), 10 there is nothing in our
constitution that requires they be given
voting rights in a political subdivision where
they do not live. (footnotes omitted, emphasis
supplied).
9
In the Millis case the out of state property owners also
filed a separate suit on the issue in the Colorado federal district
court, raising federal constitutional claims. The federal court
found that a rational basis for excluding out of state owners
existed and dismissed the case; Millis v. High Drive Water
District, (No. 75-M-1021 (D.C. Colo. Jan. 18, 1978, affirmed
without opinion, Mills v. High Drive Water District, 439 U.S. 802,
58 L. Ed. 2d 95 (1978). In ruling on the state issues, the
Colorado Supreme Court followed the federal court's reasoning. See
626 P. 2d at p. 658.
10
The Parker case arose under the Colorado Soil Conservation
Act amendment which extended voting rights to nonresidents,
corporations and others owning land in soil erosion districts.
13
In the case before us, the uncontroverted evidence discussed
above supports the District Court's conclusion that:
Plaintiffs have failed to show that the
Defendants' reason for allowing nonresident
landowners to vote in the Town. . . is either
irrational or arbitrary. I find credible
Defendants' contentions that the Town. . . is
a unique resort community where nonresident
landowners own the majority of property and
pay more than eight times the amount of
property tax. Defendants further assert that
without the significant revenues the
nonresident landowners have contributed to the
Town, the Town might never have come into
existence. Moreover, the nonresidents con-
tinue to bear the weight of the financial
burden for the Town. Defendants argue that
providing the nonresident landowners the right
to vote gives them a voice in the Town's
future, including the taxes they will have to
pay and how those taxes should be spent. . .
These factors demonstrate that the Town had a
rational basis for enacting the Charter provi-
sion granting nonresident landowners the right
to vote. (944 F. Supp. at 825)
Summary
Simply stated, the issue in this case must turn upon the
uncontroverted fact that the Town of Mountain Village was incor-
porated pursuant to the overwhelming vote of registered voters, all
of whom were residents of the Town. Following that incorporation,
registered voters, again all residents of the Town, approved by an
overwhelming majority the Home Rule Charter at issue in this case.
Under Article XX of the Colorado constitution Home Rule Towns have
the power to "legislate upon, provide, regulate, conduct and
control . . . all matters pertaining to municipal elections"
(emphasis supplied). Section 1.4(b) of the Charter specifically
sets out the reasons for extending the vote to nonresidents of the
14
Town, in particular recognizing the special nature of the resort
community. There is no evidence in this case of any suspect
classification of voters and equal weight is to be given to the
votes of residents and nonresidents. With nonresident voting power
limited to those owning at least 50% of the fee title to real
property, there is no possibility of "loading up" the nonresident
vote through excessive partitions of a piece of property, as was
the case in Brown v. Board of Com'rs of Chattanooga, Tenn., 722 F.
Supp. 380 (E.D. Tenn. 1989) where as many as 23 nonresidents were
registered to vote on a single piece of property. 11
In this case it is clear that the nonresident property owners
have a sufficient interest in Town affairs to make it rational for
the Town to include them in the political process. Currently they
pay approximately eight times more real property taxes in property
taxes, and under the Charter, the Town has the power to establish
land use standards, enact ordinances, adopt capital improvement
programs, set tax rates, borrow money, issue bonds, create special
improvement districts, control utilities, and to condemn property.
Each of these powers has great potential to affect property owners
in significant respects. See Bjornestad v. Hulse (Sierra Lakes
11
The Brown case involved the improper dilution of the black
vote in Chattanooga by voting provisions which extended the
franchise to nonresidents who owned trivial amounts of real
property in the city. In the 1988 election there were 547
nonresidents who had registered to vote, 427 of whom were white
persons. The court found that a provision which gave a vote to a
nonresident who owned a 1/15th interest in a lot assessed at $100
did not further any rational government interest, and so the voting
scheme violated the equal protection clause of the 14th Amendment.
15
Water Dist.) 281 Cal. Rptr 548 (Cal App 1991), where the court con-
cluded that the rational basis test must be applied to an Equal
Protection vote dilution claim based upon the enfranchisement of
nonresident landowners in a special district election. 12
In light of the foregoing factors, it is clear that the
district court correctly concluded that the nonresident property
owners in the Town of Mountain Village have a substantial interest
in township elections, and under such circumstance, the order of
the district court granting summary judgment to defendants is
AFFIRMED.
12
In Bjornestad, even nonresident commercial entities owning
property in the water district were given the vote by proxy. The
court noted that the particular nature of the Sierra Water District
was of persuasive importance. At the time, it was primarily a
second-home, vacation community with a relative low number of
permanent residents. The district was in an area of "tremendous
snowfall", and its financial burdens were borne largely by its
landowners.
16