Virgin Islands Conservation Soc'y, Inc. v. V.I. Bd. of Land Use Appeals Golden Resorts LLLP
| Decision Date | 23 August 2021 |
| Docket Number | No. 20-1982,20-1982 |
| Citation | 10 F.4th 221 |
| Court | U.S. Court of Appeals — Third Circuit |
| Parties | VIRGIN ISLANDS CONSERVATION SOCIETY, INC., Appellant v. VIRGIN ISLANDS BOARD OF LAND USE APPEALS GOLDEN RESORTS LLLP |
Andrew C. Simpson [ARGUED], Andrew C. Simpson Law Offices, 2191 Church Street, Suite 5, Christiansted, VI 00820, Counsel for Virgin Islands Conservation Society, Inc.
Denise N. George, Attorney General, Pamela R. Tepper, Solicitor General, Ian S.A. Clement, Assistant Attorney General [ARGUED], Office of the Attorney General of the Virgin Islands, Department of Justice, 34-38 Kronprindsens Gade, GERS Complex, 2nd Floor, St. Thomas, VI 00802, Dionne G. Sinclair, PMB2332, 9160 Estate Thomas, St. Thomas, VI 00802, Counsel for Virgin Islands Board of Land Use Appeals
Treston E. Moore [ARGUED], Moore Dodson & Russell, 5035 (14A) Norre Gade, P.O. Box 310, Suite 201, St. Thomas, VI 00802, Counsel for Golden Resorts LLLP
Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges
In this long-running dispute, the Virgin Islands Conservation Society, Inc. ("VICS") — an environmental advocacy organization — challenged a default permit that the Virgin Islands Board of Land Use Appeals (the "Board") granted to Golden Resorts LLLP ("Golden"). VICS filed its petition for writ of review in the Superior Court of the Virgin Islands (the "Superior Court"), a territorial court, and eventually appealed the Superior Court's decision to the Appellate Division of the District Court of the Virgin Islands (the "Appellate Division"), another territorial court.
The question that confronts us on appeal is whether a party appealing from the decision of a territorial court must establish Article III standing when invoking our jurisdiction, even though Article III standing is not required before the territorial courts. We hold that the party invoking federal jurisdiction must make this showing. But because the record is insufficient for us to determine whether VICS has Article III standing, we cannot determine our own jurisdiction at this stage. We will consequently remand this case to the Appellate Division with instructions to remand to the Superior Court to supplement the record and certify its findings to this Court. We will retain jurisdiction over this appeal on remand.
The complex history of this case began when Golden applied for a development permit to construct a hotel, casino, and other amenities in September 2003. Because Golden's proposed development was located within the first tier of St. Croix's coastal zone, the Virgin Islands required that Golden first receive a major Coastal Zone Management ("CZM") permit, V.I. Code Ann. tit. 12 [hereinafter V.I.C.], § 910(a)(1).
The Virgin Islands Coastal Zone Management Act of 1978, 12 V.I.C. § 901 et seq., governs how these coastal zone permits are issued. Once an applicant submits a completed permit application, one of the three committees of the Coastal Zone Management Commission must hold a public hearing on the application. Id. §§ 904(a), 904(b), 910(d)(2). The committee has thirty days after this public hearing to "act upon" the application. Id. § 910(d)(4). Its failure to do so "shall be deemed an approval" of the permit application. Id.
The St. Croix Committee of the Coastal Zone Management Commission (the "CZM Committee") held the statutorily required public hearing on Golden's application on January 8, 2004. VICS appeared at this hearing and submitted written comments. At the hearing, Golden noted that it needed additional time to respond to the public's comments on its application. The CZM Committee indicated that the thirty-day statutory deadline could be extended. On January 20, 2004, Golden wrote to the CZM Committee to ask that it "grant [Golden] an extension of the decision date mandated by [ 12 V.I.C. § 910(d)(4) ] in order to allow Golden Resorts to prepare and submit a comprehensive response to the [submitted] comments." Appendix ("App.") 764. Golden suggested that it complete its response by February 6, 2004 — the day before the thirty-day statutory deadline expired — and that the CZM Committee hold a decisional meeting on February 13, 2004 — six days after the statutory deadline passed.
This letter led to a series of correspondences in which Golden and the CZM Committee argued about whether Golden had waived the benefit of the statutory deadline for the CZM Committee to act. On February 6 — the day Golden had suggested it complete its responses — the CZM Committee responded that it had received Golden's January 20 letter and construed the letter as "waiv[ing] [Golden's] right to a decision concerning [the permit application], within 30 days after conclusion of the public hearing held on January 8, 2004." App. 765. Golden replied three days later, asserting that its January 20 letter "did not constitute a general waiver" of the thirty-day deadline and was instead "an extension of that period to and until February 13, 2004." App. 797. By the time Golden replied, the thirty-day statutory period had elapsed on February 7, 2004. The CZM Committee responded one final time on February 13 to explain that it still interpreted Golden's January 20 letter as a waiver.
The CZM Committee had difficulty meeting its quorum requirements and held the decisional meeting on May 26, 2004 — over three months after the statutory deadline expired. Despite its letters asserting that Golden had waived the thirty-day deadline, the CZM Committee concluded at the meeting that its failure to act on the permit before the statutory deadline meant that it had granted Golden a permit by default. The CZM Committee, however, later rescinded the default permit and set a new decisional meeting for August 2004.
Golden appealed the rescission to the Board, which stayed the CZM Committee's August decisional meeting pending resolution of the appeal. The CZM Committee chose to hold the August decisional meeting anyway and voted to require that Golden submit additional information about its permit application or else its application would be deemed withdrawn. Golden appealed again to the Board, which consolidated the two appeals. The Board subsequently issued the default permit to Golden.
VICS filed a petition for writ of review with the Superior Court in February 2005, challenging the default permit and arguing, inter alia, that Golden's application did not meet the requirements of the CZM Act. The court allowed Golden to intervene. In May 2006, the court affirmed the Board's decision to grant the default permit after concluding that the Board acted within its statutory powers and that the Board's findings were supported by substantial evidence.
VICS appealed to the Appellate Division. In December 2007, the Appellate Division concluded that Golden did not waive the CZM Committee's statutory deadline. The Appellate Division noted, however, that the administrative record was incomplete and that it could not resolve VICS's challenge to the conditions of the default permit or determine whether Golden's permit application was sufficient because the CZM Committee had not made factual findings about these terms and conditions, Golden's application, or its Environmental Assessment Report. Because of this incomplete record, the Appellate Division remanded to the Superior Court (the "2008 remand")2 with instructions to remand the case to the CZM Committee in turn "for further factual consideration." App. 61.
To complete the record on remand, the CZM Committee adopted its staff report from May 2004, which had concluded that Golden's application did not meet several of the CZM Act's requirements. The CZM Committee submitted these findings to the Superior Court in February 2010. VICS filed these findings with the Appellate Division that same month. The Superior Court issued an order a year later remanding the case again to the CZM Committee, but this time to decide the merits of VICS's petition (the "2011 remand"). V.I. Conservation Soc'y v. V.I. Bd. of Land Use Appeals, No. SX-05-cv-83, 2011 WL 12663486, at *4 (V.I. Super. Ct. Feb. 14, 2011). The court reasoned that the Appellate Division in its 2008 remand had explained that courts should not substitute their judgment for the agency's judgment and consequently concluded that the CZM Committee should decide in the first instance the merits of VICS's challenge to Golden's application. Id.
VICS subsequently sought a writ of mandamus from the Appellate Division "to compel compliance with the [2008] remand order" on the ground that the Appellate Division's 2008 remand required only that the CZM Committee issue its findings of fact and that the "appropriate appellate court [ ] review the findings of fact," not that the case be remanded to the CZM Committee on the merits. App. Div. Dkt. ECF No. 55 at 1–3. The Appellate Division did not rule on this petition.
The Superior Court issued an order in November 2013 requiring that its 2011 remand order be served on both the CZM Committee and the Board. Approximately eight months later, the Superior Court issued another order, noting that it was still unclear whether the CZM Committee and Board had received the 2011 remand order. The court again ordered that the 2011 remand order be served on the CZM Committee and that the CZM Committee comply with that order within ninety days. The CZM Committee filed its analysis on the merits of VICS's petition for writ of review with the Superior Court in November 2014. The Superior Court has not issued any subsequent opinions or orders related to its 2011 remand order.
Although the CZM Committee submitted its findings of fact in February 2010, the Appellate Division did not issue its decision until over a decade later. On April 9, 2020, the court affirmed the Superior Court's 2006 decision that affirmed the Board's grant of a default permit to Golden. The court noted that its "fact-finding record-remand order [had]...
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