F I L E D

United States Court of

Appeals

December 19, 1997

DEC 19 1996

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

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 

__________________
2

* 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. §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
 

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

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
4

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.
 

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

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
6

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
 

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

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
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 nonresidents 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

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
 

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

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
 

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

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
11

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 nonresidents, 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
12

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
 

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

residents of other states might not have. 9 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, citizenship, or age have never been considered

suspect. . . (citations omitted). Nonresidents 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 participation in decisions which affect that land.

While nonresident landowners may be enfranchised, 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).
14

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 continue 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 provision 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 incorporated 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
 

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

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
 

12In 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

Water Dist.) 281 Cal. Rptr 548 (Cal App 1991), where the court concluded 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.