May v. Town of Mountain Village, Civil Action No. 96-D-126.

Page 821

944 F.Supp. 821

Joan MAY, William Felicelli, John Rielly, Peter Chadman, Virginia Oglesby and David Holubetz, on behalf of themselves and all others similarly situated, Plaintiffs, v. TOWN OF MOUNTAIN VILLAGE, a Colorado Municipal Corporation; Darrell Huschke, Mayor and Council Member, Town of Mountain Village, in his official and individual capacities; Julie Cram, David Disick, David C. Flatt, Steve Hilbert, Doug Tueller and Linda Rodgers, Town Council members, in their official and individual capacities, Defendants.

Civil Action No. 96-D-126.

Civil Action No. 96-D-139.

United States District Court, D. Colorado.

October 18, 1996.

Barry Satlow, Boulder, CO, John H. Steel, Telluride, CO, for Plaintiffs.

J. David Reed, Telluride, CO, Michael T. Gilbert, Robert E. Youle, Williams, Youle & Kroenig, P.C., Denver, CO, for Defendants.

ORDER

DANIEL, District Judge.

I. INTRODUCTION

This civil rights class action is before the Court in connection with Plaintiffs' motion for partial summary judgment filed on July 1, 1996 and Defendants' cross motion for partial summary judgment filed July 22, 1996.¹ The Plaintiffs challenge certain voter qualification and districting provisions of the Home Rule Charter ("Charter") of the Town of Mountain Village ("the Town"), State of Colorado. The Town is a European styled master planned community situated in the mountains above Telluride. Plaintiffs seek declaratory, injunctive and other equitable relief and damages on behalf of themselves and all other similarly situated Town residents. The Town seeks a declaratory judgment upholding the constitutionality of the Town's Charter.²

The core issues presented appear to be of first impression in this Circuit and include: (1) whether the Town can legally extend the right to vote in its municipal elections to people located throughout the United States and possibly abroad who own property in the Town but who do not reside in the Town; and (2) if so, whether a districting plan based upon the inclusion of such voters is valid. In short, the Plaintiffs allege that the town's voters' qualification and districting scheme as a whole unconstitutionally reduces the power of Town residents' vote and gives disproportionate voting power to nonresident land owners.³ Plaintiffs allege that this scheme is designed to concentrate control of the Town in the hands of real estate interests so that development will be easier and cheaper and the Town can spend less of its resources on the needs of the Town's residents, including affordable housing and open space.⁴

Plaintiffs base their claim of unconstitutionality of the Town's Charter on five arguments, and they are the ones that I have been asked to resolve with respect to the pending motion for partial summary judgment. They are: (i) whether the Equal Protection Clause bars nonresident landowner voting; (ii) whether basing town council districts partly on the number of nonresident landowners violates equal protection; (iii) whether voting by nonresident landowners violates Colorado law; (iv) whether Colorado law requires residency as a condition for participation in municipal charter elections; and (v) whether nonresident landowner voting and charter provisions on initiative and referendum violate Colorado's constitutional right of initiative and referendum. Defendants' motion for partial summary judgment seeks a declaration that the Town Charter is constitutional.

II. ANALYSIS

A. Federal Law Claims

1. Whether Allowing NonResident Landowners the Right to Vote in Municipal Elections Violates the Equal Protection Clause of the Fourteenth Amendment

a. The Parties' Argument

Plaintiffs argue that voting is a fundamental political right, and that it is the citizens or residents of the state who have this right. Plaintiffs rely on the Supreme Court's holding that "an appropriately defined and uniformly applied requirement of residence may be necessary to preserve the basic conception of a political community." Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972). Further, Plaintiffs argue that no court has extended the "one man, one vote" principle to individuals residing beyond the geographic confines of the governmental entity concerned; instead, the cases have uniformly recognized that a government unit may legitimately restrict the right to participate in its political processes to those within its borders. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 68-69, 99 S.Ct. 383, 385, 58 L.Ed.2d 292 (1978).

Plaintiffs originally asserted in their motion that the appropriate constitutional test to be applied to the Charter provisions at issue was strict scrutiny, arguing that the Town has shown and can show no compelling interest in allowing nonresident landowners to vote which justifies dilution of their fundamental right to vote. Plaintiffs relied on the apportionment cases where strict scrutiny was applied, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), arguing that vote dilution can occur not only where districts are improperly apportioned, but also in situations such as this case where persons who are not part of the local population are admitted to the franchise.

In their response to Defendants' cross motion for partial summary judgment and at the hearing held on this matter on September 18, 1996, Plaintiffs modified their position. Plaintiffs now suggest that an intermediate standard of review should be applied, although they acknowledge that there is no authority for applying such a standard in a voting case. Finally, Plaintiffs argue that even under a rational relationship test, nonresident voting is not constitutional. Specifically, Plaintiffs assert that there is no rational basis for allowing persons to vote in general municipal elections whose only connection to a town is ownership of property. Plaintiffs argue that nonresident landowners might be institutionally interested in bond and real property tax issues but do not have a cognizable interest in the general governance of the town.

Plaintiffs, in their briefs, distinguish a number of cases where nonresidents were allowed to vote, asserting that these cases involved "special-purpose" elections, such as bond elections, which have narrow and special purposes that disproportionately impact a group such as nonresidents. Alternatively, Plaintiffs argue that the electoral schemes in those cases were different since they were sanctioned by the legislature, the nonresidents were living in an adjoining county that had a strong connection or joint interest with the town, and/or the nonresidents constituted a minority of the voters.

Defendants assert that it enacted the provisions of its Charter pursuant to the broad grant of power from the Colorado Constitution which gave the full right of self-government in both local and municipal matters to municipalities, Colo. Const. Art. XX, and to home rule towns the power to "legislate upon, provide, regulate, conduct and control ... all matters pertaining to municipal elections in such ... town." Colo. Const. Art. XX § 6. Defendants assert that because § 2.4(b) of the Charter does not infringe on fundamental rights and does not discriminate against any suspect class, it is presumptively valid and subject only to a rational basis review. Defendants further contend that Plaintiffs have failed to meet their burden of showing that section 2.4(b) of the Charter violates the Equal Protection Clause because they have not shown that it is not rationally related to a legitimate state interest.

Defendants argue that the Town is a unique resort community and that its Charter was approved only by residents of the Town. In the Charter, the residents chose to extend the franchise to nonresident property owners. According to Defendants, the Charter has a rational basis since it was adopted to ensure that the special nature of the resort community was safeguarded, that the beauty of the Town's natural surroundings would be preserved, that the recreational nature of the Town must be encouraged and that both residents and nonresidents have a significant interest in fulfilling these objectives. Also, future nonresidents will contribute much revenue to the Town, and currently own more than 34% of the assessed value of real property in the Town compared to about 4% for Town residents. In fact, nonresidents pay nearly eight times more in property taxes than residents. The Charter assures these nonresidents of having a vote in the future of the Town, including tax revenue related issues.

b. Analysis

The Equal Protection Clause of the Fourteenth Amendment clearly applies to all action of the state or its subdivisions, including local government action such as in the case at hand. Avery v. Midland County, Texas, 390 U.S. 474, 479-80, 88 S.Ct. 1114, 1117-18, 20 L.Ed.2d 45 (1968). The first decision I must make in assessing the constitutionality of the Town's enactment under the Equal Protection Clause is to determine the proper standard of review. Since I find that the Town's voting provision does not impinge on a right or liberty protected by the Constitution, I agree with Defendants that the rational basis standard is appropriate rather than the strict scrutiny test. Here, Plaintiffs do not allege that section 2.4(b) creates any classification whatsoever, that it discriminates against a suspect class, that it treats similarly situated persons differently, or even that the votes of residents and nonresidents are weighted differentially.

Moreover, after a careful review of the record in this case, there is simply no evidence that the Town restricts access to the electoral process or treats voters unequally. In this case, section 2.4(b) of the Charter expands the right to vote and equally weighs the votes of all allowed to vote. Where a law expands the right to vote causing voting dilution, the rational basis test has been applied by the vast majority of...