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Gunnison County ‘locals only’ lockdown leads to legal wrangle over rights of non-resident homeowners

CRESTED BUTTE–Gunnison County Public Health Director Joni Reynolds issued a controversial travel ban April 3 directing visitors and non-residents to leave the county “by the fastest and safest available means” and prohibiting tourists and other non-essential visitors from entering the county, resulting a legal tussle over the constitutionality of banning entry to non-resident homeowners.  Since then the order has been updated four times to refine and address emerging issues,

Gunnison County is home to Crested Butte ski area, and like other ski communities has a high number of second homes owned by non-residents.

The original order directed those who are not full-time county residents to leave the county if they were already there and barred them from coming to Gunnison County if they were not. With about 25% of the county’s 16,000 residences being seasonal homes, often owned by out-of-state residents, the order generated quite a bit of controversy.

Some non-resident homeowners who were in residence when Governor Polis ordered ski areas to close were dismayed at the idea of being forced from their homes.

Someone apparently complained to Texas authorities, resulting in a letter from David J. Hacker, Special Counsel to the Texas Attorney General to Reynolds saying, “The Order violates the Constitution by banishing nonresident homeowners from Gunnison County for the duration of the Order, depriving them of important rights. It discriminates against nonresident homeowners by entirely prohibiting their ingress to the county and enjoyment of their real and personal property in the county. Resident homeowners, on the other hand, are under no such prohibition.”

Hacker cited the Constitution’s Privileges and Immunities Clause (Art. IV, Sec. 2, Cl. 1) and several U.S. Supreme Court cases standing for the proposition that non-residents still have “the right of free ingress into other States, and egress from them” and “the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness,”

Hacker writes, “It discriminates against nonresident homeowners by entirely prohibiting their ingress to the county and enjoyment of their real and personal property in the county. Resident homeowners, on the other hand, are under no such prohibition.

In response, Matthew R. Hoyt, of the Gunnison County Attorney’s Office writes, “[C]ontrary to the assertions contained in your correspondence, Gunnison County’s Order, along with the orders it previously issued, are authorized by Colorado and federal law and are fully constitutional.”

Supporting his argument of constitutionality Hoyt writes “[R]esidents of Colorado who live outside of Gunnison County are restricted in the same manner as residents of other states…[T]he Order even-handedly treats Colorado citizens the same as it does the citizens of any other state to effectuate the local public interest of protecting the public health.”

While the legal to-and-fro was largely posturing, Reynolds amended her order to allow non-residents who were in the county when the Crested Butte ski area closed to remain.

In an April 10 update the county writes, “A blanket ban cannot account for extenuating circumstances. Many non-resident homeowners were here before the coronavirus rocked our community. We have received 199 non-resident exemption requests to date. Those waivers applied for by nonresident homeowners who were here in February and when the lifts closed have all been approved. At the same time, almost all requests for waivers for travel into our valley by non-resident homeowners have been denied. Non-essential travel is banned here in our valley and across our state.”

In an online letter to county residents from the Gunnison Board of County Commissioners and the Mayors of Crested Butte, Gunnison and Mt. Crested Butte, the officials reached out to second homeowners saying, “[We] know this experience is tough on you too. Wherever you call home in addition to Gunnison County, your home community is, or will be, struggling to address this virus. Our public health orders started with a recommendation and then moved to a directive that you shelter at your primary residence outside of Gunnison County. This is not meant to be a rejection of you, your family or your positive contributions to Gunnison County. We have to acknowledge the limitations of our small critical care hospital with no ICU.”

The Gunnison Valley Hospital reports three admissions “with respiratory symptoms,” all of which currently require a “minimal amount” of medical intervention.

Since March 9, the hospital has admitted 31 total patients and has transferred 15 suspected cases of COVID-19 to other facilities since March 18.

As of April 14, Gunnison County reports a total to date of 100 positive cases, 195 negative cases, nine pending cases and a total of three deaths in the county.

728 people have self-reported symptoms consistent with the virus, and 300 have self-reported with “resolved symptoms.

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