Virgin Islands Conservation Society, Inc. v. Virgin Islands Board of Land Use Appeals

21 V.I. 516, 1985 U.S. Dist. LEXIS 12142
CourtDistrict Court, Virgin Islands
DecidedDecember 27, 1985
DocketCivil No. 1984/292
StatusPublished
Cited by7 cases

This text of 21 V.I. 516 (Virgin Islands Conservation Society, Inc. v. Virgin Islands Board of Land Use Appeals) is published on Counsel Stack Legal Research, covering District Court, Virgin Islands primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Virgin Islands Conservation Society, Inc. v. Virgin Islands Board of Land Use Appeals, 21 V.I. 516, 1985 U.S. Dist. LEXIS 12142 (vid 1985).

Opinion

O’BRIEN, Judge

MEMORANDUM OPINION

The petitioners appeal from a decision of the respondent which reversed a decision of the Coastal Zone Management Commission, St. Croix Committee. The effect of the Board’s reversal was to give approval to the construction of a cruise port terminal at Gallows Bay in Christiansted Harbor by the Virgin Islands Port Authority. For the reasons stated herein, we reverse, and reinstate the decision of the Coastal Zone Management Commission, St. Croix Committee (“CZM Committee”), which denied the application.

I. FACTS

In February 1984, the Virgin Islands Port Authority (“Authority”) filed an application for a major coastal zone permit with CZM, [518]*518seeking approval to construct a Christiansted cruise ship port. Not only was new construction involved, but significant dredging of the sea bottom inside the harbor was contemplated. The CZM Committee conducted a hearing, took evidence from the Authority and its experts, and also received evidence from others opposed to the project. The cruise port facility cost is $22 million.

On May 8, 1984, the CZM denied the application, issuing its findings and conclusions in writing. The Authority appealed to the Board of Land Use Appeals. The Board conducted a hearing, at which the Authority presented a slide show and statements by its representatives and other experts. The Board also heard oral argument from the attorney for one of the petitioners.

On August 23, 1984, the Board reversed the CZM denial of the Authority’s application and approved the project, its decision becoming final on August 29, 1984. On October 9, 1984, the petitioners filed their petition for a writ of review of the Board’s decision. The Authority was granted permission to intervene as an interested party. Briefs were submitted and oral argument was had.

There are two essential issues before us: (1) Did the Board violate 12 V.I.R.&R. § 914-2(f) in receiving evidence from the Authority which was not presented to the CZM? (2) Did the Board apply the appropriate standard of review of the CZM decision?

II. DISCUSSION

A. New Evidence Before the Board

In making a determination of issues on appeal before it, the Board is restricted “to a review of the decision below based on evidence tendered in the proceeding below and arguments of the appellants, appellees and the Authority below.” 12 V.I.R.&R. § 914-2(f).

At the hearing on the appeal, the Authority presented a great deal of information which was not before the CZM Committee. For instance, an expert, David Griggs, made a presentation concerning the operation of a hydraulic dredge, problems and solutions concerning turbidity and dredging, a description of operations at the St. Thomas airport involving land fill and how that project was monitored for environmental purposes. In addition, a slide show was offered, with a running commentary, depicting a dredging operation. And, Authority Executive Director John Harding and expert witness Darlin Brin made extensive presentations to rebut the CZM Committee’s findings.

The presentation described above was so far beyond the scope of [519]*519the evidence presented at the CZM Committee hearing that one Board member stated for the record:

Mr. Harding ... a lot of new things have been brought to light today, a lot of new ideas, a lot of new presentations, a lot of new technical data has been presented.

The Authority argues on appeal that the information presented was simply by way of background and supplemental to the oral argument. We do not accept that assertion. What the Authority decided to do was make a presentation that was more complete to the Board than it made to the CZM Committee, answering questions on subjects it had not given sufficient weight to before the CZM Committee. In accepting the evidence over the continuous and strong objections of counsel for the petitioners herein, the Board committed reversible error.

B. Appropriate Standard of Review

In discussing a standard of review applicable in this case, we must be mindful that we are actually discussing two standards: the first to be applied by the Board to the CZM Committee’s decision, and the second to be applied by this Court to the Board’s actions.

The standard of review by the Board over CZM Committee decisions is spelled out in 12 V.I.R.&R. § 914-3 is as follows:

What is Reviewable.

The Board may review any decision or action below in which the findings, inferences, conclusions or decisions are:
(a) in violation of constitutional, Organic Act of 1954, or statutory provisions;
(b) in excess of the statutory authority of the Commission, Committee, or Commissioner;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary, capricious, or characterized by abuse of discretion, or clearly unwarranted exercise of discretion.

We are concerned in this opinion with (e) above, the so-called “substantial evidence” standard. During the executive session of the Board after the appeal hearing, the attorney for the Board reviewed the above section of the Rules and Regulations and defined subsection (e) to mean that:

[520]*520... if you find that based upon the record, that the evidence before you is sufficient to lead to a different conclusion as to that reached by the CZM and you so find, then you may reverse----

This is an incorrect statement of the “substantial evidence” standard. But it was the basis for the decision by the Board reversing the CZM Committee.

In reviewing a CZM Committee determination under the “substantial evidence” standard, the Board is required to show great deference to that Committee’s decision, and uphold it if there is substantial evidence in the record to support the actual finding. Herbert v. GESC, Civ. No. 84/84, 1985, St. Croix Supp.---(D.V.I. March 21, 1985), aff’d,---F.2d---(3d Cir. December 11, 1985); Perry v. GESC, 18 V.I. 524, 527 (D.V.I. 1981); Branch v. Bryan, 18 V.I. 54, 56 (D.V.I. 1980). Substantial evidence has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

Therefore, the Board was required to uphold the CZM Committee if there was substantial evidence before the Committee to support its conclusion. Even if there was also substantial evidence to support a different conclusion, it was not free to reverse because it preferred that different conclusion.

In our review on appeal, we limit ourselves to determining whether the Board correctly applied the appropriate standard. In making this determination, we also review the evidence before the CZM Committee.

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21 V.I. 516, 1985 U.S. Dist. LEXIS 12142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/virgin-islands-conservation-society-inc-v-virgin-islands-board-of-land-vid-1985.