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Lavallee Northside Civic Association and Lavallee Village Development Assoc. Inc. v. Virgin Islands Coastal Zone Management Commission

filed: January 27, 1989.

LAVALLEE NORTHSIDE CIVIC ASSOCIATION AND LAVALLEE VILLAGE DEVELOPMENT ASSOC., INC., APPELLANTS IN NO. 88-3247
v.
VIRGIN ISLANDS COASTAL ZONE MANAGEMENT COMMISSION, APPELLEE IN NO. 88-3247; LAVALLEE NORTHSIDE CIVIC ASSOCIATION, AND LAVALLEE VILLAGE DEVELOPMENT ASSOCIATION, INC., APPELLANTS IN NO. 88-3593 V. VIRGIN ISLANDS BOARD OF LAND USE APPEALS, APPELLEE IN NO. 88-3593



Appeal form the District Court of the Virgin Islands Division of St. Croix, Christiansted Jurisdiction, D.C. Civil Nos. 88-0007, 88-0168.

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

In these consolidated appeals we decide that the district court properly required residents opposing the issuance of a Virgin Islands Coastal Zone Management Act permit to exhaust administrative remedies before petitioning for judicial relief. Consequently, in that first case we will affirm the order of the district court. However, we will reverse the ruling that the plaintiffs' filing of their timely district court complaint did not toll the statutory period for perfecting an administrative appeal. We also conclude that the permit issuance is the event that marks the beginning of the time allowed for taking an administrative appeal. Accordingly, we will vacate the order of the district court in the second appeal.

Plaintiffs are local residents and a non-profit corporation who share a common interest in preserving the living conditions in their communities. When the Antilles Investment Corporation, now Reflection Bay Joint Venture,*fn1 proposed to construct a 121-unit condominium complex in their neighborhoods on St. Croix, Virgin Islands, plaintiffs opposed the issuance of the required permit by the Virgin Islands Coastal Zone Management Commission.

The Commission held a public hearing on Reflection Bay's application in August 1987. A number of plaintiffs and their representatives attended the hearing and some testified. All signed an attendance list. Although the governing statute requires that the Commission act within thirty days of the public hearing or the application be deemed approved, V.I. Code tit. 12, § 910(d)(4), the applicant, Reflection Bay, agreed to waive that limit. See V.I. R. & Regs. tit. 12, § 910-7(d).

The Commission met with Reflection Bay principals at a September 17, 1987 executive session and, in a letter dated September 29, 1987, wrote that the application had been approved with some restrictions, among which was a reduction in the number of condominium units from 121 to 100. By a letter dated October 9, 1987, Reflection Bay pressed for a reconsideration of those conditions. To evaluate this request, the Commission convened an additional meeting on November 5, 1987, but gave no notice to plaintiffs or the general public. In a letter to Reflection Bay dated November 20, 1987, the Commission approved the requested 121 units and modified some of the other conditions previously imposed. Plaintiffs did not receive a copy of this letter.

The permit was signed and issued by the Commission on December 21, 1987. On January 12, 1988, plaintiffs filed suit in the district court seeking injunctive and declaratory relief. They alleged that the Commission had abridged their rights to due process by failing to notify them of its actions on the permit application. The complaint was later amended to assert violations of the governing Virgin Islands Coastal Zone Management Act, V.I. Code Ann. tit. 12, §§ 901-914, and asking the court to direct the Commission to revoke the permit "pending an appeal of its decision in the appropriate forum." Reflection Bay's request to intervene was granted.

In dismissing the action for lack of subject matter jurisdiction, the district court cited the judicial review provisions in the Coastal Zone Management Act, particularly sections 913 and 914. Section 913 provides that the district court may grant declaratory or injunctive relief to restrain violations of the Act or to compel the performance of duties specifically imposed by the Act. Id. § 913(b)(1)-(2). Section 913(d) authorizes the filing of a petition for a writ of review of the grant or denial of a permit, after exhaustion of administrative remedies. Id. § 913(d). Section 914 permits an administrative appeal from the Commission's rulings to the Virgin Islands Board of Land Use Appeals. Id. § 914.

Reading sections 913 and 914 together persuaded the district court that plaintiffs were required first to exhaust their administrative appeal rights before seeking judicial relief. In the court's view, the exhaustion obligation extended also to the plaintiffs' claim that their action had been timely filed. The court noted, however, that "since the appeal time [before the Board] may have run . . ., their inaction may be fatal." The district court filed its dismissal order on March 10, 1988, and plaintiffs promptly appealed to this Court.

On March 22, 1988, plaintiffs also asked the Board to review the Commission's permit decision. After a pretrial hearing, the Board dismissed the plaintiffs' administrative appeal as untimely because it had been taken beyond the forty-five day period set in the statute. The Board rejected the plaintiffs' contention that the appeal time had been tolled by the filing of the action in the district court.

Once again, plaintiffs turned to the district court, this time seeking a petition for writ of review of the Board's dismissal. Once again, they were unsuccessful. In recalling his March 10, 1988 memorandum, the district judge wrote: "we recognized that our federal question jurisdiction was implicated by LaVallee's procedural and substantive due process contentions as well as the equal protection claim. Nevertheless, we preferred that the LaVallee interests first seek redress from the Board, reasoning that upon our review of the Board's decision it might be unnecessary to reach the federal issues."

On the timeliness issue, the court concluded that the forty-five day appeal period began to run on September 17, 1987 -- the date on which the Commission voted to grant the application. Construing the time limitations as jurisdictional, rather than in the nature of a statute of limitations, the court decided that it could not apply equitable tolling. After dismissing the due process claims, the court denied the petition for writ of review.

I.

The Federal Coastal Zone Management Act of 1972, as amended, 16 U.S.C. §§ 1451-1464, established a national program for development of coastal areas in the United States. As part of the statutory plan, states are encouraged to enact laws designed to preserve, protect, develop, and, where possible, restore and enhance the resources of the United States' coastal zone. See 16 U.S.C. § 1452(1); Cape May Greene, Inc. v. Warren, 698 F.2d 179, 187 (3d Cir. 1983).

The Virgin Islands legislature enacted such a statute in 1978 to control development activities on the islands of St. Thomas, St. Croix, St. John, the offshore islands and cays, and the territorial sea. V.I. Code Ann. tit. 12, § 902. The Act declared that the natural and scenic resources of the coastal zone, "held in trust by the Government of the Virgin Islands for the benefit of the people," was of "vital concern to present and future residents of the Virgin Islands." Id. § 903(a)(2)-(3). Among its express goals, the Act was adopted to assure the "orderly, balanced utilization and conservation of the resources of the coastal zone, taking into account the social and economic needs of the residents of the Virgin Islands." Id. § 903(b)(4). See West Indian Co. v. Government of the Virgin Islands, 844 F.2d 1007, 1011 (3d Cir.), cert. denied, 488 U.S. 802, 109 S. Ct. 31, 102 L. Ed. 2d 11 (1988).

The statute vested in the Coastal Zone Management Commission the primary authority for the Act's implementation through a permit issuing process. V.I. Code Ann. tit. 12, § 904. It also imposed a check on this process through a system of administrative and judicial review. The contours of these administrative and judicial procedures are set out in section 913 of the Act, providing in pertinent part:

"(a) General. The provisions of this section shall be cumulative and not exclusive and shall be in addition to any other remedies available at law or equity.

(b) Enforcement. (1) Any person may maintain an action for declaratory and equitable relief to restrain any violation of this chapter. . . .

(d) Judicial Review -- Writ of Review. . . . a petition for writ of review may be filed in the District Court of the Virgin Islands in the case of any person aggrieved by the granting or denial of an application for a coastal zone permit . . . provided that such administrative remedies as are provided by this chapter have been exhausted."

Id. § 913.

Section 914 describes the administrative appeal process: "Notwithstanding any provision of law to the contrary, any aggrieved person may file an appeal of an action by the Commission . . . with ...


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