New RAD law keeps voting restriction intact

VotingPosterPrior to 2013, the word ‘rad’ was used at Snowshoe to refer to an excellent snowboarding run, an extra-large Cheat Mountain pizza or the latest hit on i-Tunes.

Now the word ‘RAD’ refers to a proposed public corporation – a resort area district (RAD) that will encompass the entire resort and – according to some Snowshoe residents – unlawfully deny them the right to vote.

Last Wednesday, the West Virginia Legislature passed an amendment to the state’s RAD statute, without a single dissenting vote in the House of Delegates and Senate. The amendment makes key changes to the original RAD law, but leaves intact a voting rights restriction that some Snowshoe residents say is unconstitutional. The bill is currently awaiting Governor Earl Ray Tomblin’s signature.

Snowshoe Mountain, Inc., (SMI) CEO Frank DeBerry conceived the idea of RADs in West Virginia after examining resort tax districts in other states. In 2013, SMI lobbyists advocated for RAD legislation and the Legislature passed the RAD law with little fanfare. DeBerry contends that a Snowshoe RAD is desperately needed to fund infrastructure improvements at the ski resort.

In March 2014, under the terms of the law, DeBerry filed a petition with the Pocahontas County Commission to create a Snowshoe RAD. Before the petition was filed, battle lines had been drawn over key aspects of the RAD law.

The RAD would be governed by a seven-member board. Opponents claimed the law unlawfully restricted voting rights to property owners, unfairly guaranteed a four-of-seven seats majority on the RAD’s governing board to resort management, and unwisely allowed unlimited RAD indebtedness. Opponents also decried the lack of a RAD dissolution procedure.

The amendment places a cap on RAD borrowing and provides for RAD dissolution by a majority vote of property owners, but does not eliminate the voting restriction or change the assignment of governing board seats, which guarantees a majority to resort management.

RAD voting rights restriction in question

The West Virginia RAD statute provides for creation of public corporations, similar to municipalities, at resorts where many or most of the property owners are not full-time residents. The RAD would have the power to assess and levy property for specific projects; collect a sales ‘fee’ (tax) of up to five percent on certain retail transactions; organize and operate a police force; and perform infrastructure improvements, such as road repair, within the district.

The law allows property owners to vote for members of the governing board, but denies the vote to non-property owners, including wives and husbands of RAD property owners not listed on the deed, full-time RAD residents who rent or lease, and other adult family members who are not owners. If the Pocahontas County Commission approves a Snowshoe RAD, the law will have the unusual effect of granting a vote to a foreign citizen who owns property at Snowshoe, while denying a vote to a full-time Pocahontas County resident and registered voter, who is not a property owner.

Snowshoe homeowner David Litsey has been an active opponent of a Snowshoe RAD. Earlier this month, Litsey and fellow Snowshoe homeowner Bill McHenry traveled to Charleston, hoping to convince legislators to strike the objectionable voting restriction and RAD board composition from the statute. Delegate Bill Hartman, representing Pocahontas and Randolph counties, sponsored both the original RAD bill and the amendment, on behalf of SMI lobbyists.

“When I got to see [Delegate] Bill Hartman, he said, I’ll give you five minutes,’” Litsey said.

The two RAD opponents were unsuccessful with legislators, but McHenry reported that Department of Revenue Cabinet Secretary Robert Kiss and Deputy Attorney General J. Robert Leslie had opinions on the RAD law. In a letter to the editor in The Pocahontas Times, McHenry wrote that both Kiss and Leslie said the law would not survive court challenge due to constitutional issues, but that it was the Legislature’s province to act first.

“Both stated they felt it most appropriate to allow the Legislature to initiate action to repeal/replace the law prior to them providing comment and opinion,” McHenry wrote.

During a recent property owner meeting at Snowshoe to discuss the proposed RAD, DeBerry said he planned to ask the County Commission to reconsider the RAD petition soon, presumably after the Governor signs off on the amendment. Due to specific language inserted into the amendment by the Legislature, a new petition will not be necessary – despite significant changes to the law.

If the County Commission approves the RAD petition, the voting restriction would be in place and the issue ripe for court challenge. At least one Snowshoe resident has obtained legal counsel and plans to file suit if a RAD is approved.

Controlling law on voting rights

The U.S. Constitution provides no explicit right to vote, but Amendments to the Constitution, federal law, and U.S. Supreme Court decisions prohibit certain types of voting restrictions. Voting can never be restricted based on race, sex or income. Residency requirements of more than 50 days are unlawful. Literacy tests and poll taxes have been outlawed. The age requirement to vote can be no more than 18 years of age.

Individual states determine qualifications to vote within the state. When a state restricts voting rights, as West Virginia has done with the RAD statute, the U.S. Supreme Court (USSC) is the ultimate arbiter of whether the restriction is constitutional.

A trial court hearing a challenge to the RAD voting restriction would be bound to obey the guidance of USSC case law on voting rights. The USSC issued two landmark decisions on property ownership as a voting qualification just four years apart. In 1969, the USSC held that a New York law requiring property ownership as a condition for voting in a school board election violated the Equal Protection Clause of the Fourteenth Amendment (Kramer v. Union Free School District). In 1973, the USSC held that a California law that required land ownership to vote in a water storage district election did not violate the Equal Protection Clause (Salyer Land Co. v. Tulare Water District).

The burden of the trial court and any subsequent appellate court would be to decide whether a West Virginia RAD is more like the school district in Kramer or more like the water district in Salyer.

Factors to be considered

Factors to be considered in a challenge to West Virginia’s RAD statute, garnered from USSC case law, including Kramer and Salyer, would include:

1. Whether the public body provides general public services ordinarily attributed to a governing body. If so, the case is more like Kramer and all eligible voters must be allowed to vote.

A Snowshoe RAD would have the power to organize and operate a police force and perform community infrastructure improvements – functions seemingly similar to a municipal governing body.

2. Whether the public body’s activities fall so disproportionately on landowners that it is not unreasonable to restrict the vote to property owners.

A RAD’s purpose would be to perform infrastructure improvements and provide security with a police force. Property owners would be subject to a property assessment and levy on their property to fund these activities, but the assessment would not be the only source of RAD funding. It is arguable whether a RAD has functions so closely tied to the land as the water district in Salyer.

3. Whether landowner assessments under the challenged law are the only source by which the public district’s expenses are paid. If so, the voting restriction could be lawful.

The RAD property levy would not be the district’s only source of revenue. Snowshoe’s infrastructure improvements are currently financed with a private agreement in deeds, the Mountain Top Assessment (MTA), which is capped at 1.5 percent of the property value. The MTA has not been increased to its max amount and the MTA would remain in place if a RAD is formed. The RAD would also receive revenue from a maximum sales tax of five percent on certain transactions within the district. As a public corporation, a RAD would be allowed to compete for public infrastructure funding through state agencies.

Quotes from Salyer

Justice William O. Douglas cited a previous case when he dissented in Salyer: “Presumptively, when all citizens are affected in important ways by a governmental decision subject to a referendum, the Constitution does not permit weighted voting or the exclusion of otherwise qualified citizens from the franchise.”

Justice William H. Rehnquist wrote the majority opinion in Salyer, which reads in part: “The appellee district in this case, although vested with some typical governmental powers, has relatively limited authority. Its primary purpose, indeed the reason for its existence, is to provide for the acquisition, storage, and distribution of water for farming in the Tulare Lake Basin. It provides no other general public services such as schools, housing, transportation, utilities, roads, or anything else of the type ordinarily financed by a municipal body. There are no towns, shops, hospitals or other facilities designed to improve the quality of life within the district boundaries, and it does not have a fire department, police, buses, or trains.”

Prior to consideration of the RAD law amendment, the Legislature considered a bill repealing the law in its entirety. The bill died in the House Judiciary Committee.

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