23 V.I. 406


Civil No. 1988/007

District Court of the Virgin Islands Div. of St. Croix

March 10, 1988

*407Richard Austin, Esq. (Legal Services of the Virgin Islands), St. Croix, V.I., for plaintiff, LaVallee Village Development Association, Inc.

Bruce Z. Marshack, Esq. (Law Offices of Britain H. Bryant), St. Croix, V.I., for plaintiff, LaVallee Northside Civic Association

Winston A. Hodge, Esq. (Law Offices of Winston A. Hodge), St. Croix, V.I., for defendant, Reflection Bay Joint Venture

Ronald W. Belfon, Esq., St. Thomas, V.I., for defendants, Virgin Islands Coastal Zone Management Committee and Coastal Zone Management Commission

O’BRIEN, District Judge


The question before us is whether this Court has jurisdiction to entertain an action for declaratory judgment alleging substantive and procedural due process violations, where the plaintiffs have not exhausted statutory administrative remedies. We answer in the negative and dismiss for lack of subject matter jurisdiction.1


Antilles Investment Corporation (“Antilles”) applied to the Virgin Islands Coastal Zone Management Commission (“CZM”)2 for a major coastal zone permit (“permit”) to construct one hundred twenty-one (121) condominium units and various structures at Plots Nos. 70-70B, Estate Cane Bay, LaVallee, Northside “B” Quarter, *408St. Croix. We will refer to this area by its local name, Reflection Bay.

CZM is the statutorily created body with the authority to issue development permits3 within the Virgin Islands coastal zone.4 It held a public hearing as required by law on August 13, 1987 on the question of granting the application.5 The plaintiffs, LaVallee Northside Civic Association, and LaVallee Village Development Association, Inc., appeared through their respective members and officers testified in opposition to the application, and wrote subsequent letters of opposition.6

*409Despite the plaintiffs’ objections, by letter dated September 29, 1987, CZM notified Antilles that the application had been approved with certain conditions as of September 17, 1987. Allegedly no such written notification was transmitted to the plaintiffs.

Thereafter, Antilles sought “modifications” from CZM by letter dated October 9,1987. This request was granted by CZM in writing on November 20, 1987. Neither the notification of the proposed modifications or the approval thereof was transmitted in writing to the plaintiffs.

The plaintiffs never appealed CZM’s decision to the Virgin Islands Board of Land Use Appeal (“Board”). Rather, they instituted this direct action against CZM alleging that CZM’s failure to provide them with notice of its decision violated their procedural due process rights to an appeal since by the time they received actual notice of CZM’s decision, the appeal time had ostensibly run. In their amended complaint in which they also named as a defendant, Reflection Bay Joint Venture (“RBJV”), successor in interest to Antilles, the plaintiffs allege substantive violations of the Act. In so doing, they claim equal protection and substantive due process rights.7

In this motion to dismiss, CZM and RBJV argue that this Court lacks subject matter jurisdiction to hear this case. Because we agree that the proper way for these issues to come before us is through the administrative appeal process, we dismiss.


Section 913 of the Act provides two methods of judicial review of matters arising under the auspices of the Act’s provision. Subsection (b) of that section allows any person8 to maintain an action for declaratory or equitable relief to restrain violations of the chapter.9 Subsection (d) provides for a writ of review made pursuant to 5 V.I.C. App. V, R. 11 from this Court and prosecuted *410by “any person aggrieved by the granting ... of an application for a coastal zone permit. ...” so long as administrative remedies have been exhausted.10

Section 914 sets out the administrative appeal process. It allows any person aggrieved to file an appeal of an action taken by CZM to the Board “within forty-five days thereof.”11 The Act defines an aggrieved person to mean:

.. . any person, including the applicant, who, in connection with a decision or action of the Commission [CZM] on an application or through representatives at a public hearing of the [CZM] on said application, or prior to said decision or action informed [CZM] in writing of the nature of his concern ....

12 V.I.C. § 902(a).

There is no doubt that because the plaintiffs testified at the hearing they are “aggrieved persons” capable of maintaining an appeal of CZM’s decision to the Board and thereafter, if unsuccessful, a petition for a writ of review in this Court. Moreover, they are certainly persons capable of maintaining an action for declaratory relief pursuant to 913(b)(1).

However, the fact they have standing to seek redress does not grant this Court jurisdiction to hear the substance of their allegations. The Act provides two distinct judicial remedies, and we do not read them as coextensive. To do so would be to make the one superfluous at the expense of the other. See Sutton v. United States, 819 F.2d 1289, 1295 (5th Cir. 1987) (citation and quotations omitted) (statute will not be construed in such a way to render certain provisions superfluous or insignificant); Pomper v. Thompson, 836 F.2d 131, 134 (3d Cir. 1987) (court’s duty is to give effect if possible, to every clause and word of statute).

Rather, it is clear to us that the administrative appeals process is intended to be the means of review of actions taken by CZM with regard to the granting or denial of a permit. This allows the question of the Board’s subject matter jurisdiction to hear the appeal, e.g., timeliness of the appeal, to first be resolved by the Board. See Imperial Carpet Mills v. Consumer Prod. Safety Com’n, 634 F.2d 871, 874 (5th Cir. 1981) (citation omitted) (question of an *411agency’s jurisdiction should initially be determined by the agency). Our review of the Board’s decision comes, thereafter, via a petition for a writ of review.

We reach this conclusion because § 914(a) speaks of an aggrieved person taking an appeal of a decision of the CZM. In addition, § 913(d) refers to a writ of review of the granting or denial of an application for a coastal zone permit. It is clear that the legislature intended this administrative process to be a method of review of such CZM decisions.

The plaintiffs’ attempt to invoke the jurisdiction of this Court pursuant to § 913(b)(1) by casting this action as one for redress of due process rights, be they substantive or procedural. In reality, however, their complaint attacks the negligent application of the Act’s provisions by the CZM, although the complaint speaks in terms of arbitrary action. This is certainly within the expertise of the Board and must first be addressed by that body as the Act requires. For us to accept jurisdiction directly amounts to a collateral attack, and would make the Board’s existence useless. Any person who believed that CZM failed to apply the Act’s policy considerations appropriately could bypass the Board and come immediately to this Court. This would displace the Board’s function as an expert appellate panel in this area, and would unduly clog this Court with premature chállenges of essentially administrative rulings.

More importantly, since there is no limitation provision under § 913(b)(1), any person could inhibit coastal zone development for years after a permit had been approved. This would be the case even after permitted development commenced, merely because such person believed that CZM had erred substantively. We do not believe that the legislature intended such impractical results, or would sanction such expenditures of vast economic and judicial resources. The Act clearly intended prompt substantive review of CZM’s actions by an expert Board followed by the appropriate review by this Court on a petition for a writ, so that coastal zone development would not be delayed over the extended period of a *412protracted litigation. To us this makes clear sense.12 Chief Judge Christian ruled similarly in Atlas Motor Ins. Inc. v. Hachette, Civ. No. 80-12, 1980 St. T. Supp. 144 (D.V.I. May 23, 1980) (an aggrieved party from a CZM action must exhaust administrative remedies before instituting an action in District Court), and we merely join him today.13

This resolution does not require us to reach the issue of what actions are cognizable under § 913(b)(1). We agree with the statement of counsel for CZM at oral argument that § 913(a)(1) at least goes to actions to restrain coastal zone development made in violation of a permit or development done without a permit. See, e. g., Govt. of the Virgin Islands, Dept. of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir. 1983). Moreover, a 913(b)(2) suit will likely lie where the Act does not provide for administrative review of the action complained of. In this case, plaintiffs’ claims are clearly appropriate for administrative review.


This case touches upon deeply rooted desires of Virgin Islands residents to maintain the natural beauty of our islands. We laud these interests and commend their forceful presentation. However, bypassing the appeals process is not justified where the rule of law requires that procedures be maintained. These protections benefit the plaintiffs in the long run no less than anyone *413else.14 Because we hold that the acts complained of are to be initially submitted to administrative appellate review, we are compelled to dismiss.15


THIS MATTER is before the Court on motion of the defendants to dismiss. Having filed an opinion of even date herewith and the premises considered, now therefore it is


THAT the defendants’ motions to dismiss are GRANTED; and further

*414THAT the plaintiffs’ amended complaint is DISMISSED WITHOUT PREJUDICE.

LaVallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Commission
23 V.I. 406

Case Details

LaVallee Northside Civic Ass'n v. Virgin Islands Coastal Zone Management Commission
Decision Date
Mar 10, 1988

23 V.I. 406

Virgin Islands



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