Kramer v. Gov't of the Virgin Islands, 71-1212

• Decision Date: 23 November 1971
• Docket Number: No. 71-1214,No. 71-1213,No. 71-1212,No. 71-1215,71-1212,71-1213,71-1214,71-1215
• Citation: 8 V.I. 449
• Parties: EDWIN R. KRAMER, THEODORE A. GIATTINI, ALAN V. RUSHTON, and ROLF H. BOULON v. GOVERNMENT OF THE VIRGIN ISLANDS; BOARD OF ZONING, SUBDIVISION AND BUILDING APPEALS OF THE VIRGIN ISLANDS, ST. CROIX DRIVE-IN-THEATER, Intervenor in the District Court EDWIN R. KRAMER, Appellant in No. 71-1212 THEODORE A. GIATTINI, Appellant in No. 71-1213 ALAN V. RUSHTON, Appellant in No. 71-1214 ROLF H. BOULON, Appellant in No. 71-1215
• Court: U.S. Court of Appeals — Third Circuit

8 V.I. 449

EDWIN R. KRAMER, THEODORE A. GIATTINI,ALAN V. RUSHTON, and ROLF H. BOULON v. GOVERNMENT OF THE VIRGIN ISLANDS;BOARD OF ZONING, SUBDIVISION AND BUILDING APPEALSOF THE VIRGIN ISLANDS, ST.CROIX DRIVE-IN-THEATER, Intervenor in the District CourtEDWIN R. KRAMER, Appellant in No. 71-1212THEODORE A. GIATTINI, Appellant in No. 71-1213ALAN V. RUSHTON, Appellant in No. 71-1214ROLF H. BOULON, Appellant in No. 71-1215

No. 71-1212

No. 71-1213

No. 71-1214

No. 71-1215

United States Court of Appeals Third Circuit

Submitted September 13, 1971

Decided November 23, 1971

Appeal from District Court's dismissal of complaint which sought review of Board of Zoning Appeals' decision granting zoning exception to construct drive-in theater on land situated such that appellants' residential property would overlook theater. The Court of Appeals, Staley, Circuit Judge, held that fact appellants did not appear before the Board did not prevent them from appealing Board's decision under statute granting appeal to "any person aggrieved by any decision of the Board".

Reversed and remanded.KEVIN J. BUTLER, ESQ., Charlotte Amalie, St. Thomas, V.I., for appellants

EILEEN R. PETERSEN, ESQ., Assistant Attorney General, St. Thomas, V.I., for appellee, Gov't of V.I.

CLARENCE A. MCLAUGHLIN, ESQ. (BORNN, MCLAUGHLIN & FINUCAN), St. Thomas, V.I., for appellee, (Intervenor in D.C.) St. Croix Drive-In-Theater

Before STALEY, ADAMS and ROSENN, Circuit Judges

OPINION OF THE COURT

STALEY, Circuit Judge

Appellants, Edwin R. Kramer, Theodore A. Giattini, Alan V. Rushton, and Rolf H. Boulon, owners of property directly overlooking the site of a proposed drive-in theater,are appealing from an order of the District Court of the Virgin Islands dismissing their complaint. They had appealed from a decision of the Board of Zoning, Subdivision and Building Appeals of the Virgin Islands ("Board of Appeals"), approving an application for a special zoning exception by the Intervenor St. Croix Drive-in-Theater, Inc.

[1] The intervenor initially applied for this exception to the Virgin Islands Planning Board. Appellants filed letters of objection, and one of them appeared before the Planning Board. The Planning Board ruled in appellants' favor, and the intervenor appealed to the Board of Appeals which reversed the Planning Board's decision and approved the special exception for construction of the drive-in theater. The appellants did not appear before the Board of Appeals. Appellants then sought review of this decision in the district court as provided in 29 V.I.C. § 270. The statute provides in part:

"Any person aggrieved by any decision of the Board may seek review of the same by the District Court of the Virgin Islands. Appeal for such review must be made with 30 days of receipt of decision by the person seeking review."

The district court, in dismissing their complaint, held that since appellants were not parties before the Board of Appeals, under this statute they had no standing to seek review of its decision. It reasoned that since the time within which review may be sought runs from the date that the would-be appellant receives the Board's decision, and since the Board would notify only those parties before it, it then follows that persons who were not parties before the Board cannot come within the class of "any person aggrieved."¹

[2-4] We cannot agree with the district court's interpretation. The Virgin Islands Legislature chose the words "any person aggrieved by any decision" (emphasis added) to delineate the class of persons granted the right of review under this statute. It is a well settled rule of statutory construction that the legislature must be presumed to use words in their known and ordinary significance. See Commissioner of Internal Revenue v. Brown, 380 U.S. 563, 571 (1965); In re Estate of Noel, 332 F.2d 950, 952 (C.A.3, 1964), rev. on other grounds, 380 U.S. 678 (1965). Application of this principle to the instant case can lead to but one result. "Any person aggrieved by any decision" encompasses all persons who are aggrieved by any decision of the Board of Appeals, not just parties before the Board. The only limitation upon the class is that they be aggrieved. The...