May v. Town of Mountain Village

Page 576

132 F.3d 576

97 CJ C.A.R. 3464

Joan MAY, William Felicelli, John Rielly, Peter Chadman Virginia Oglesby, and David Holubetz, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. TOWN OF MOUNTAIN VILLAGE, Darrell Huschke, Mayor et al Defendants-Appellees,

No. 96-1504.

United States Court of Appeals Tenth Circuit.

Dec. 19, 1997.

John H. Steel, Telluride, CO, 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, CO, for Defendants.

Before BALDOCK, BRORBY, Circuit Judges, and BROWN, Senior District Judge. ^*

WESLEY E. 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 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. § 1291 as 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 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 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.

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, and were at least 18 years old on the date of the election. ³

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 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 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

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 guarantee of equal protection under our federal constitution was described by the Supreme Court in Harris v. McRae, 448 U.S. 297, 322, 100 S.Ct. 2671, 2691, 65 L.Ed.2d 784, 808 (1980):

It is well settled that where a statutory classification does not itself impinge...