[N THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
****
COWGIRL BEBOP LLLP ) CASE NO ST 2019 CV 00582
)
Plaintiff )
) ACTION FOR WRIT OF MANDAMUS AND
v } SUIT FOR DAMAGES
)
JEAN PIERRE L ORIOL ) JURY TRIAL DEMANDED
COMMISSIONER OF THE )
DEPARTMENT OF PLANNING AND )
NATURAL RESOURCES in his official )
Capacity and THE COASTAL ZONE )
MANAGEMENT DIVISION )
)
Defendants )
Cite as 2021 VI Super 28U
MEMORANDUM OPINION AND ORDER
1]] THIS MATTER is before the Court on the following
1 Plaintiff‘s Motion For Judgment On The Pleadings (‘ Motion For
Judgment ) filed February 27 2020
2 Plaintiff's Motion For Preliminary Injunction ( Motion For Injunction )
filed February 27 2020'
3 Defendants Motion To Dismiss For Failure To Exhaust Administrative
Remedies ( Motion To Dismiss ), filed December 30 2020,
4 Defendants Memorandum In Support of Motion To Dismiss For Failure
To Exhaust Administrative Remedies, filed December 30 2020
5 Defendants Motion To Stay Proceeding Pending Resolution Of Motion To
Dismiss ( Motion To Stay ) filed December 31, 2020;
6 Plaintiff's Response In Opposition To The Defendants’ Motion To Dismiss
(‘ Opposition To Motion To Dismiss ), filed January 20, 2021;
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7 Plaintiff's Response In Opposition To The Defendants Motion To Stay
(“Opposition To Motion To Stay ), filed January 20, 2021,
8 Plaintiff’s Motion For Immediate Ruling In Plaintiff’s Favor On Plaintiff’s
Motion For Judgment On The Headings ( Motion For Ruling”), filed
January 25 2021'
9 Defendants’ Reply In Support Of Motion To Dismiss For Failure To
Exhaust Administrative Remedies (“Reply Motion To Dismiss ), filed
February 3 2021 and
10 Defendants Reply In Support Of Motion To Stay Proceedings ( Reply
Motion To Stay ) filed February 4 2021
112 For the reasons stated below, the minor permit was granted by an automatic application of
law, the appropriate remedy is not a preliminary injunction rather it is the writ of mandamus;
dismissal or a stay of proceedings is not proper here,; and there was no improper regulatory taking
in this case
I INTRODUCTION
113 Plaintiff Cowgirl Bebop LLLP( Plaintiff”) initiated suit on October [6 20l9 At issue is
a minor coastal zone permit Plaintiff claims it is due because the Coastal Zone Management
Commission (“CZM ) did not either issue or deny the permit in the period of time required by
law ' Defendants Jean Pierre L Oriol, Commissioner of the Department of Flaming and Natural
Resources, in his official capacity, and CZM ( Defendants ) filed their Answer and Affirmative
Defenses on February 20, 2020
114 On June 2], 2019 Plaintiff submitted their minor coastal zone permit application 2 On
September 13, 2019, Plaintiff gave notice to Defendants that if the permit was not issued Plaintiff
would file suit within thirty (30) days 3 On October 16, 2019 Plaintiff filed suit seeking a writ of
mandamus, declaratory judgment, attomeys fees and damages for an improper regulatory taking 4
On February 28, 2020, Defendants determined that Plaintiff's minor pennit was insufficient, and
Plaintiff would instead need to apply for a major permit 5 Plaintiff then applied for a major permit
on May 8 2020 6 The CZM denied this new permit application on September 24 2020 7 Plaintiff
' V I CODE ANN tit 12 §§ 910 9l4 govern the issuances of requirements for enforcement of and appeals of coastal
zone permits
Pl sMot For lnj l 2
3 Pl ‘5 Pet For Writ Of Mandamus And Suit For Damages 3
4 Pl 5 Pet For Writ Of Mandamus And Suit For Damages 3 5
5 Defs ’ Mam In Supp 0f Mot T0 Dismiss For Failure To Exhaust Administrative Remedies l 2
6 Defs Reply Mot To Stay Ex 2
Defs Reply Mot To Stay Ex 4
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appealed the denial of the major permit application on October 16, 2020 8 On January 27, 2021,
the Board of Land Use Appeals (“BLUA’ ) issued a scheduling order whereby Plaintiff must file
its brief by February 10 2021 Defendants must respond by February 24 2021 and Plaintiff must
reply by March I 2021 9
115 In its Motion For Injunction, Plaintiff requests that the Court enter a preliminary
injunction requiring that the Commissioner issue the permit sought by the Plaintiff in the Permit
Application '0 Plaintiff in its Motion For Judgment requests the Court to issue a wn't of mandamus
directing the Commissioner to issue the permit applied for in the Permit Application” as well as
a ruling that Plaintiff ‘ is entitled to a declaratory judgment that the Pennit Application has been
deemed approved by Operation of law "
1% In a status conference on December I, 2020, the Court ordered the Defendants to respond
to Plaintiff‘s Motion For Judgment and that Defendants had thirty (30) days to file their response '2
The Defendants responded with their Motion To Dismiss instead Defendants did not explicitly
state which of the seven defenses by motion authorized under the Virgin Islands Rules of Civil
Procedure they based their Motion To Dismiss on, although the title to their Motion To Dismiss
features the phrase “failure to exhaust administrative remedies '3 Further, Defendants state that
this Court should dismiss for lack ofjurisdiction for Cowgirl 5 failure to exhaust administrative
remedies ’” In their Reply Motion To Dismiss, Defendants clarify they are indeed seeking action
pursuant to V I R CIV P 12(b)(l) '5 Defendants argue that [a]ny applicant is entitled to appeal
an adverse decision’ and then argue that ‘ Cowgirl must exhaust its appeal rights premised on the
alleged action approving its minor application by default ”‘6 Defendants have also filed a
concurrent motion requesting the Court to stay the proceeding pending the Court ruling on the
Motion To Dismiss The Court will address all the issues presented by the above named motions
as their resolution all revolve around the granting of the permit
3 Defs Reply Mot To Stay Ex 4
9 Defs Reply Mot To Stay Ex 5
‘0 P1 sMot For lnj 9
1' Pl sMot Perl 9
‘7 The Court may under its discretion shorten or enlarge the time period to respond to motions V I R Clv P 6
“0(4) Due to the Covid 19 pandemic of 2020, the Court did so here Defendants responded and this case is ready
for adjudication
‘3 V1 R ClV P 12(b)(l) (7) provide a range ofgrounds for dismissal
‘4 Defs Mot To Dismiss 3
‘5 Defs Reply Mot To Dismiss 2 V I R CIV P 12(b)(l) ( Every defense to a claim for relief in any pleading must
be asserted in the responsive pleading if one is required But a party may assert the following defenses by motion
lack of subject matter jurisdiction A motion asserting any of these defenses except lack of subject matter
jurisdiction and as provided in subparts (g) and (h) of this rule must be made before pleading if a responsive pleading
is allowed )
'6 Defs ’ Mem In Supp Of Mot To Dismiss For Failure To Exhaust Administrative Remedies 2 3 (internal quotations
omitted)
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[1 LEGAL STANDARD
A 12(b)(l) and Administrative Exhaustion
117 Rule 12(b)(1) motions that challenge a court’s subject matter jurisdiction ‘ may be treated
either as facial or factual The Virgin Islands District Court has characterized this difference by
saying that a facial challenge, ‘attack[s] the complaint on its face, while a factual challenge
‘attack[s] the existence of subject matter jurisdiction in fact, quite apart from any pleadings ’ "7
The Third Circuit in Virgin Islands Conservation Soczety v Virgin Islands Board of Land Use
Appeals'8 affirmed the logic set forth in the Eight Circuit decision Winter v ICC19 that the same
patty may not ‘ simultaneously seek both judicial and administrative review ’ and that a pending
appeal renders an administrative decision not final 20
118 In the District Court case of La Vallee Northszde CIVIC Assoczatzon v Virgin Islands
Coastal Zone Management Commisszon,2| the District Court dismissed the action for failure to
exhaust administrative remedies because the appellants, residents who opposed a permit CZM had
granted, had failed to appeal CZM s decision to the Board of Land Use Appeals ( BLUA ’) 22 The
District Court further stated that 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 ’23 Notably, the case involved an aggrieved party that was disputing the granting of a permit
to another party 24
119 The case was appealed to the Third Circuit, where the Third Circuit, taking up several
consolidated appeals, decided whether administrative exhaustion was appropriate 25 While
deciding that administrative exhaustion was appropriate in that case, the Third Circuit also
recognized that while “[j]udicial forbearance shows a proper respect for administrative autonomy,
'7 Hansen v Gov Juan F Luis Hosp & Med Ctr Case No SX 15 CV 509 VI 2018 VI LEXIS 87 at *4
(VI Super Ct June 22 2018)(quoting Wetssv Maccafi’rrl Inc CivilNo 14 46 2016U S Dist LEXIS 50436 at
*3(DVI Apr 12 2016))
'8
881 F 2d 28 (3d Cir 1989)
'9
351 F 2d 1056 (8th Cir 1988)
’0 V I Conservation Soc y, 881 F 2d at 34
123 V l 406(DV1 1988)
” Id at 412 ( However, bypassing the appeals process is not justified where the rule of law requires that procedures
be maintained )
-3 Id at 410
’4 Id (“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)(l) )
’5 La Vallee NorthSIde CMe As: I: v V I Coastal Zone Mgmt Comm n
866 F 2d 616 618 (3d Cir 1988) ( 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 )
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allowing the agency to function more efficiently and responsibly there are occasions for
pragmatic exceptions designed to promote efficiency 26 These exceptions include “when the
challenged agency action constitutes a clear and unambiguous violation of statutory or
constitutional rights, when reliance on administrative procedures is clearly and demonstrably
inadequate to prevent irreparable injury and when exhaustion is futile 27
1110 Lastly, the Virgin Islands Supreme Court case Vzrgm Islands Conservation Sowety v
Golden Resorts LLLP28 involved an outside conservation group challenging a permit granted to a
resort 29 The resort had been granted a permit by default, which CZM recognized and then later
rescinded 3° The resort appealed this recission which was then affirmed by BLUA 3' The Court
held there can be no administrative exhaustion when there is nothing for the administrative agency
to do
We hold that the Superior Court should not have declined to exercisejurisdiction
pursuant to section 913(b)(1) under either the rule requiring exhaustion of
administrative remedies or the primary jurisdiction doctrine As a threshold
matter, while the CZMA provides for the BLUA to hear appeals of CZM
Committee decisions, there is no administrative agency that possesses
jurisdiction to review BLUA decisions Thus, since [e]xhaustion applies
where a claim is cognizable in the first instance by an administrative agency
alone, the Superior Court erred in holding that VICS had failed to exhaust its
administrative remedies, since there remained nothing for any administrative
agency to do at this point 32
B Equitable Remedies
1 Preliminary Injunction
{Ill Black’s Law Dictionary defines a preliminary injunction as ‘ [a] temporary injunction
issued before or during trial to prevent an irreparable injury from occurring before the court has a
chance to decide the case A preliminary injunction will be issued only after the defendant receives
notice and an opportunity to be heard ”33 Black’s Law Dictionary defines enjoin as ‘ 1 To legally
prohibit or restrain by injunction <the company was enjoined from selling its stock> 2 To
-6 Id at 620
7 Id at 620 21
355V1613(V1 2011)
’9 The Court notes that the reson in question is the same resort as is in the following string of cases mentioned below
V I Conservation Soc y Inc v V] 3d ofLand Use Appeals CivilNo 83 2005 2006VI LEXIS 35 (V1 Super Ct
May 25 2006) (unpublished) afl’d V I Conservation Soc y Inc v V! Bd ofLand Use Appeals 49 V1 581 (D VI
2007) reafl‘d V I Conservation Soc y Inc v V I 8d ofLand Use Appeals 72 VI 1141 (DVI 2020)
30 Golden Resorts LLLP 55 VI at 615 16
3‘ Id at 616
3’ Id (citations omitted) (quoting United States v Western Paafic R Co 352 U S 59 64 0956))
3’ Injunction BLACK S LAW DICTIONARY (I 1th ed 2019)
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prescribe, mandate, or strongly encourage <the graduating class was enjoined to uphold the highest
professional standards> ”34
{[12 Preliminary injunctions are initially governed by Virgin Island Rule of Civil Procedure
65(a),35 however subsection (e) of Rule 65 states ‘ Nothing in this Rule shall supersede the
provisions of any statute of the Virgin Islands relating to injunctions 3" Under the Coastal Zone
Permit statute, [a]ny person may maintain an action for declaratory and equitable relief to restrain
any violation of the coastal zone management laws ‘7 A preliminary injunction is equitable relief
and thus the statutory provisions of § 913(b) supersede Rule 65 The statute establishes that there
only need be “a prima facie showing of a violation of this chapter” for preliminary equitable relief
to be issued so as to restrain a violation of the statutory provisions 38 Further, the statute provides
that [n]o bond shall be required for an action under this subsection ’ 39
1113 Many preliminary injunction cases involve a third party seeking a preliminary injunction
along with a temporary restraining order to stop the issuance of a permit granted to a group by
CZM or to stop further subsequent action by a group that received permit For example, in Virgm
Islands Conservanon Soczety v Golden Resorts LLLP,4° the Virgin Islands Conservation Society
sought to enjoin a resort company which had been granted a coastal zone permit by default from
proceeding with construction because the resort let the permit lapse 4' In another case Traxco Inc
v Gov t of the VI ,4’ a corporation in the Virgin Islands which operated a casino, sought a
preliminary injunction and temporary restraining order enjoining the issuance of a permit, or in
the alternative the extension or modification of a permit to another company, a resort which
intended to also operate a casino 43
3‘ Enjom BLACK 5 LAW D1CT10NARY(llth ed 2019)
35 V I R Cw P 65(a)(1) specifies that [t]he court may issue a preliminary injunction only on notice to the adverse
party V I R Cw P 65(a)(2) declares that
Before or after beginning a hearing on a motion for a preliminary injunction the court may
advance the trial on the merits and consolidate it with the hearing Even when consolidation is
not ordered evidence that is received on the motion and that would be admissible at trial
becomes part of the trial record and need not be repeated at trial But the court must preserve
any party‘s right to a jury trial
36v1 R CIv P 65(e)
3712 V1C§913(b)(l)
3“ 12 V l C §913(b)(l)
3" 12 VIC§913(b)(l)
“055V1 613(Vl 2011)
4' Id at 618' 1d at 621 ( Here VICS alleged in its motion for injunctive relief that even if Golden initially had a valid
permit Golden violated the terms of both that permit and the CZMA by failing to commence constmction within
twelve months without being granted an extension before that permit expired ’)
4 49 VI 240 (VI Super Ct 2008)
‘3 Id at 242 245
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2 Writ of Mandamus
{[14 Black 5 Law Dictionary defines the writ of mandamus as [a] writ issued by a court to
compel performance of a particular act by a lower court or a govemmental officer or body,
[usually] to correct a prior action or failure to act ”44 The statutory provisions of title 12, § 913 of
the Virgin Islands Code state that ‘ [a]ny person may maintain an action to compel the performance
of the duties specifically imposed upon the Commission or the Commissioner of any public agency
by this chapter ’45 Section 913(b)(2) also waives the imposition of a bond as well as establishes a
thirty (30) day notice period in which the complainant must specify to the Commission
Commissioner or other such public agency the duties which the complainant alleges have not
been performed 46
{[15 Further, § 913(a) provides that ‘ [t]he provisions of this section shall be cumulative and
not exclusive and shall be in addition to any other remedies available at law or equity ”“7 The writ
of mandamus is an equitable action to compel a government officer or body to act Mandamus has
long been considered an inherent equitable power of common law courts “8
1116 The United States Supreme Court in Cheney v United States District Court,” expounded
on the three conditions that must be met before a writ may be issued
As the writ is one of the most potent weapons in the judicial arsenal three
conditions must be satisfied before it may issue First, the party seeking issuance
of the writ must have no other adequate means to attain the relief he desires, a
condition designed to ensure that the writ will not be used as a substitute for the
regular appeals process Second, the petitioner must satisfy the burden of
showing that his right to issuance of the writ is clear and indisputable Third,
even if the first two prerequisites have been met, the issuing court, in the exercise
4“ Mandamus BLACK 5 LAW DICTIONARY (1 11h ed 2019)
4512 v I C §913(b)(2)
4" 12 V I C §913(b)(2) states
Any person may maintain an action to compel the performance of the duties specifically imposed
upon the Commission or the Commissioner of any public agency by this chapter; provided
however that no such action shall be brought prior to thirty days after written notice has been
given to the Commission its Committees the Commissioner or such public agency by the
complainant specifying the duties which the complainant alleges have not been performed No
bond shall be required for an action under this subsection
4712 v I c § 913(a)
4” See United States v Lawrence, 3 U S 42 (taking for granted the power to issue mandamus, although denying it in
the case) see also Marbury v Madison 5 U S [37 169 ( ‘In addition to the authorities now particularly cited, many
others were relied on at the bar, which show how far the practice [of mandamus] has conformed to the general doctrines
that have been just quoted ) Mandamus BLACK S LAW DICTIONARY (1 11h ed 2019) (quoting James L High A
Treatise on Extraordinary Legal Remedies § 2 at 5-6 (1884)) ( The writ of mandamus is of very ancient origin so
ancient indeed that its early history is involved in obscurity, and has been the cause of much curious research and of
many conflicting opinions )
‘9 542 U S 367 (2004)
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of its discretion, must be satisfied that the writ is appropriate under the
circumstances 5°
1117 In the Virgin Islands, courts have recognized the following three elements for a writ of
mandamus to be appropriate (1) a clear right in the plaintiff to the relief sought (2) a plainly
defined and peremptory duty on the pan of the defendant to do the act in question, and (3) no other
adequate remedy available 5' The seldom used writ of mandamus is a drastic remedy and its use
is discouraged ”52 In the Virgin Islands, [w]here there are practical avenues for seeking relief that
are untried this Court will ordinarily deny a petition for mandamus ”53 However, there is no
requirement for a futile exhaustion of remedies ’54
C Coastal Zone Permit Issuance
{[18 At issue in this case is the automatic grant of a minor permit under title 12, § 910 of the
Virgin Islands Code, also known as the ‘ CZM Act ” Section 910(d)(l) states in relevant part
Upon submission of any application for a coastal zone permit, which application
shall specify the type of permit being sought, the Commissioner shall determine
whether such application is complete If the Commissioner determines that such
application is not complete, he shall promptly notify, in no event more than 15
days afier receipt thereof, the applicant of the deficiencies in such application 5‘
1119 Section 910(d)(3) states “[u]pon receipt of an application for a minor coastal zone permit
which is deemed complete by the Commissioner, the Commissioner shall promptly give written
notice of the filing of such application to any person who requests such notification in writing 56
Section 910(d)(4) states
[T]he Commissioner shall act upon a minor coastal zone permit application
within sixty days after receipt thereof Failure of the appropriate Committee of
the Commission or the Commissioner to act within any time limit specified in
this paragraph shall constitute an action taken and shall be deemed an approval
of any such application 5
50 Id at 380 81 (citations and quotations omitted)
5' Richardson v VI Housing Auth 18 V I 351 356 (D V I 1981) (citing Btlluerl v UnitedStates 8d ofParole S4l
F 2d 938 (2d Cir 1976)) see also 0 Reilly v Board ofElecllons 61 V I 118 126 (V 1 Super Ct 2014) (citing the
same three elements)
5 In re George 2020 VI 19 1|7 (citing Kerr v U S DIS! Court 426 U S 394 402 (1976) Lusardl v Lechner
855
F 2d 1062 1069 (3d Cir 1988))
5’ In re Le Blane 49 V I 508 517 (V I 2008) (quoting In re Patenaude 210 F 3d 135 141 (3d Cir 2000))
54 In re George 1|8 (citing Hahnemarm Univ Hosp v Edgar 74 F 3d 456 461 62 (3d Cir 1996))
5512 V I C §910(d)(l)
5612 v 1 C §910(d)(3)
5712 V I C §910(d)(4)
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1l20 Particularly on point is Virgin Islands Conservation SOCIer Inc v Virgin Islands Board
ofLand Use Appeals 58 In this unpublished case, later affirmed by the District Court of the Virgin
Islands, a resort company filed for a coastal permit on September 5, 2003 59 On September 23,
2003, CZM notified the resort as to deficiencies in its application and provided them with ninety
(90) days to correct them 6° The resort responded on November 3, 2003 6' CZM held a public
hearing on January 8, 2004, and a decisional meeting was repeatedly postponed until May 26,
2004 where CZM conceded a permit had been granted by default 62 Later, CZM then sought to
rescind its grant of the permit 63 The Court held that the Commission had no discretion to reopen
the proceedings as the grant of the permit by operation of law was the penalty for the
Commission 3 inability to reach a decision within the statutorily mandated time period 64
1121 Highly relevant is also the District Court 5 ruling in Virgin Islands Conservation Soc1ety
Inc v Virgin Islands Board of Land Use Appeals 65 Affirming the Superior Court, the District
Court stated
The facts and the CZMA’s procedural rules, as written, mandate our affirmation
of the Superior Court 5 decision It is uncontroverted in this litigation that the
Committee failed to act on Golden 5 application within thirty days of the
hearing It is unescapable that the Committee failed to reduce its decision to
writing or approve the application Finally, the statute’s requirements are self
evident, when the Committee fails to act on an application within thirty days of
the public hearing, the pending application must be approved 66
1122 Title 12, § 914 of the Virgin Islands Code provides that a decision by CZM can be appealed
to BLUA, which has sixty (60) days from the filing to hold a public hearing and a decision shall
be rendered by the board within thirty (30) days of this hearing 6 The Virgin Islands Rules and
Regulations governing BLUA direct that ‘ [t]o assure fairness to all aggrieved persons or
58 Civil No 83 2005 2006 V1 LEXIS 35 (VI Super Ct May 25 2006) (unpublished) afld VI Conservation
Socy Inc v V] 3d ofLand Use Appeals 49 VI 581 (DVI 2007)
5" Id at *1
6° Id at *2
61 Id
6’ Id at *3 6
6’ Id at ‘6
6“ Id at ‘18
65 49 V1 581 (D V1 2007) afld VI Conservation Socy Inc v V! Board ofLand Use Appeals 72 V I 1141
(D V 1 2020)
66 Id at 594
6 12 V I C § 914(a) ( Notwithstanding any provision of law to the contrary any aggrieved person may file an appeal
of an action by the Commission its Committees or the Commissioner taken pursuant to section 910 or 9]] of this
chapter within forty five days thereof with the Board of Land Use Appeals and such appeal shall be governed solely
by the provisions of this section ’); 12 V 1 C § 914(a) ( A public hearing on an appeal shall be held by the Board
within sixty days afier the appeal is filed with the Board, and a decision shall be rendered by the Board within thirty
days after the conclusion of such public hearing )
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applicants, the time provision of 12 V I C § 914 shall be construed by the Board as directory rather
than as mandatory ”63
1|23 The Rules and Regulations also provide that [a]ny applicant or aggrieved person alleging
a legal wrong because of a decision below or adversely affected by the decision below on matters
within the statute is entitled to appeal that decision ’69 The Rules and Regulations further state that
[a]ll decisions of the Board shall be based on the record of the proceedings below 7° and the
record is defined as the original papers and exhibits filed in the proceeding below and the
transcript in the proceeding below[ ] 7' Lastly, by statute “[a]ny person may maintain an action
for declaratory and equitable relief to restrain any violation ’ of the coastal zone management
laws 72
D Declaratory Judgment
1124 Rule 57 of the Virgin Islands Code of Civil Procedure” and title 5 §§ 1261 1272 of the
Virgin Islands Code govern declaratory judgments Section 1261 proscribes the scope
Courts of record within their respective jurisdictions shall have power to declare
rights, status, and other legal relations whether or not fithher relief is or could
be claimed No action or proceeding shall be open to objection on the ground
that a declaratory judgment or decree is prayed for The declaration may be
either affirmative or negative in form and effect and such declarations shall have
the force and effect of a final judgment or decree 74
1125 Section 1270 instructs the Court to liberally construe and administer requests for
declaratory judgment 75 The Court may only enter declaratory judgment where there is a justiciable
controversy related to definitive concrete facts which touch upon the legal relations between
parties whose legal interests are adverse 7" Lastly, the Court is limited to entering declaratory
61*12v1 R &R5c.s §9145
6°12VI R &R1-:Gs §9l44
7o12Vl R ®S§91411
7‘ l2VI R ®S §9l46
7 12VIC §9l3(b)(l)
7’ V I R C1v P 57 merely provides a cross reference to the sections ofthe Virgin Islands Code that govern declaratory
judgment
These rules govem the procedure for obtaining a declaratory judgment under Title 5 Chapter 89
of the Virgin Islands Code Rules 38 and 39 govern a demand for a jury trial The existence of
another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate
The court may order a speedy hearing of a declaratory judgment action
7“ 5 V l C § [261
75 5 V I C § 1270( This chapter is declared to be remedial its purpose is to settle and to afford relief from uncertainty
and insecurity with respect to rights status and other legal relations and is to be liberally construed and
administered ’)
7" Hotel on the Cay Time Share Ass n v Gould 2019 VI Super 55U 1W (citing Pavel v Estates ofJudith s Fancy
Owners Ass n Case No SX 17 CV 260 V! 20l8Vl LEXIS9 at *5 (VI Super Jan 29 2018)‘ 8d ofDIrs
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judgments to legal matters where rendering a judgment wilI terminate the controversy or remove
an uncertainty 77
E Improper Regulatory Taking
1126 The Fifth Amendment of the United States Constitution provides that nor shall private
property be taken for public use without just compensation ”78 The Virgin Islands Bill of Rights
states that [p]rivate property shall not be taken for public use except upon payment of just
compensation ascertained in the manner provided by law ”79 Black’s Law Dictionary defines a
regulatory taking as [a] taking of property under the Fifih Amendment by way of regulation that
seriously restricts a property owner 3 rights 8°
027 According to the United States Supreme Court, [t]he general rule at least is that while
property may be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking 8' Factors to consider include to what degree did the regulation diminish a plaintiff’s use,
possession, or enjoyment of property, what public purpose is served and whether it is justified as
a protection for personal safety or public health, and finally the greatest weight is given to the
judgment of the legislature 3’
128 Regulatory takings claims have rarely arisen in Virgin Islands courts or in Third Circuit
cases with respect to the Virgin Islands However a few cases have addressed the issue In Essa
Vzrgm Islands Inc v Gov I of the VI 33 the District Court of the Virgin Islands stated that in
evaluating a Fifth Amendment takings claim, courts should first consider whether the plaintiff
“had identified a property interest cognizable under the Fifth Amendment” and then “whether the
governmental action in question constitutes a taking of that property interest 84 In Barclay
Assoczates Inc v IRS,“ the District Court expounded that a regulatory taking is when a
government regulation is so burdensome it results in fundamentally a direct appropriation or
ouster 8" This may occur when the government forces a property owner to suffer a permanent
physical invasion ’ of his or her property or when an owner loses “all economically beneficial use”
of the property 87
ofShlbul Condo Ass n v Darian Solutions Case No ST 2013 CV 395 VI 2015 V I LEXIS 100 at *12
(V1 Super Ct Aug 31 2015))
77 Hotel on the Cay Time Share Ass n. 117
7“ U S CONST amend V
7" 48 USCS§ 1561
3° Regulatory Taking BLACK 5 LAW DICTIONARY (11"1 ed 2019)
3‘ Pennsylvania Coal Co v Mahon 260US 393 415 (1922)
3 Id at412 l4
‘3 Esso V I Inc v Gov I ofthe V I 49 V I 1105 (D V I 2008) vacated E350 V I Inc v Gov I ofthe United States
VI Civil No 2004 175 2008U S Dist LEXIS 68167 (DVI Sept 9 2008)
8‘ Id at 1117 (citing M& JCoal Co v UnitedSIares 47 F 3d 1148 1154 (Fed Cir 1995))
“5 Civil No 2010 140
2012 US Dist LEXIS 45373 (DVI Mar 31 2012) claim dismissed Barclay Assocs v
IRS CivilNo 2010 140
2013 US Dist LEXIS 108323 (DVI Aug 1 2013)
8" Id at *33 (citing ngle v Chevron U S A Inc 544 U S 528 537 (2005))
”7 Id at ‘33 34 (quoting ngle 544 U S at 538)
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1129 While Virgin Islands courts have considered regulatory takings in other contexts,88 the
United States Supreme Court case of United States v szerstde Bayvzew Homes Inc 89 considered
whether the denial of a land use permit in the context of private property might constitute a taking
The Supreme Court first recognized that the application of land use regulations to a particular
piece of property is a taking only ‘if the ordinance does not substantially advance legitimate state
interests or denies an owner economically viable use of his land 9° The United States Supreme
Court fiirther stated
A requirement that a person obtain a pennit before engaging in a certain use of
his or her property does not itself take” the property in any sense after all, the
very existence of a permit system implies that permission may be granted,
leaving the landowner free to use the property as desired Moreover, even if the
permit is denied, there may be other viable uses available to the owner Only
when a permit is denied and the effect of the denial is to prevent “economically
viable” use of the land in question can it be said that a taking has occurred 9'
III ANALYSIS
A The case does not warrant dismissal under a theory of administrative
exhaustion and Plaintiffs permit must be granted
1130 Defendants assert that La Vallee Northszde szzc Ass n controls here because that case
asserts that complainants must appeal to BLUA before seeking action in court 92 This case stands
in contrast to La Vallee Northszde CIVIC Ass n In the instant matter, Defendants/CZM did not
affirmatively grant a permit at all It is CZM maneuvering to stop a permit granted not by it, but
by an operation of law Further in La Vallee the complaining party that did not appeal to BLUA
was an outside group challenging the grant of the permit to another party Lastly, the permit which
is under review by BLUA is a major permit Plaintiff later applied for while this case was pending
not the minor permit Plaintiff originally sued for Plaintiff here is not a third party seeking review
of a permit granted to another party by CZM Plaintiff is the permit holder themselves seeking
deliverance of the permit, not trying to overturn it
1131 Further, even assuming arguendo Plaintiff needed to appeal, at the initiation of this suit
Plaintiff could not appeal to BLUA because there was no decision to appeal The permit was
simply granted as a matter of law so there is no decision from which Plaintiff could appeal nor
3" See e g , United Steel Paper & Forestry Rubber Mfg Allied Indus & Serv Workers In! I Umon AfI C10 Clc v
Gov l ofthe V I , 66 V I 631 (D V I 2012) (wage reduction is not a regulatory taking) rev d and remanded on other
grounds, United Steel Paper & Forestry Rubber Mfg Allied Indus & Serv Workers In! I Umon Afl C10 Clo v Gov I
ofthe VI 65 VI 468 (3d Cir Nov 15 2016) Elmes v Comm roflnlernal Revenue Civil No 2011 106 2012 U S
Dist LEXIS 139414 (D V I Sept 27 2012) (taxes are not a regulatory taking) claim dismissed Elmes v Comm r of
Internal Revenue CivilNo 2011 106
2013 US Dist LEXIS 183006 (DVI May6 2013)
3 474US 121 (1985)
°° Id at 126 (quoting Agmsv Tiburon 44 U S 255 260 (1980))
°' Id at 127
9 Defs Reply Mot To Dismiss 4
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would Plaintiff want to 93 The BLUA Rules and Regulations regarding appeal, with their
references to the “proceeding below ”94 “transcript in the proceeding below,’ 95 and “decision
below 96 clearly envision that there actually was a proceeding and decision from which a party is
appealing from BLUA must base its ruling on a record without this how is it to rule? Defendants
argument would cast Plaintiff's permit into Limbo from where it could never be enforced
1132 In its filing Defendants apparently concede that the permit is granted but argue that Court
intervention is inappropriate because Plaintiff must exhaust its remedies and appeal the grant 97
Just as in the Virgin Islands Supreme Court case of Golden Resorts LLLP, there can be no
administrative exhaustion because there is nothing for Plaintiff‘s to seek administrative review of
Defendants argue on the one hand that an applicant must appeal an adverse decision but then
recognize that the permit was approved by default such an automatic result is not adverse ’ at all
to Plaintiff Defendants provide no argument as to why someone who has applied for a permit and
had it granted would want to appeal that grant and the Court strains to see why someone who has
achieved what he or she sought would spend money and time trying to get it taken away from
themselves Indeed, Plaintiff has filed the instant suit in an attempt to enforce its right to what it
sought the granted permit
1133 Instead of issuing a decision within the framework provided, the CZM instead belatedly
issued a letter notifying Plaintiff that the type of permit Plaintiff sought was incorrect Plaintiff
would need to file for a major instead of a minor permit 98 The reason was that pursuant to title 12,
§ 910(c) of the Virgin Islands Code,99 [Plaintiff‘s] structure is estimated to be valued more than
$75 000 '00 Notably this was after Plaintiff filed suit While this suit was pending Plaintiff
applied for a major permit, presumably to cover all bases This permit was then denied, that denial
was appealed, and Defendants now seek to use the pending nature of the appeal of the major
permit 3 denial to stop issuance of the minor permit However, the minor permit and the major
permit while covering the same matter, are two separate permits
1|34 Title 12, § 910(d)(l) of the Virgin Islands Code plainly gives the Commissioner fifteen
(15) days to notify applicants if an application is incomplete 10' Here, the incompleteness of the
application that it was the wrong class of permit was based off a clear monetary valuation
Defendants offer no explanation for why this valuation was not self evident or identifiable within
fifteen (15) days Moreover, this reasoning was not communicated until two hundred fifty two
(252) days later, well past the fifteen (15) days required and dubiously, after suit was initiated By
“3 Pl 5 Resp [n Opp n To Defs Mot To Dismiss 7 ( Second why would one appeal to the Board when an applicant
has by operation of law been given the very relief that he seeks? ’)
9“12Vl R & REGS §9l4-4
“’5 IZVI R ®S§9146
”612Vl R ®S §9l4 ll
97 Defs Mem In Supp 0f Mot To Dismiss For Failure To Exhaust Administrative Remedies 3
9“ Defs Reply Mot To Stay Ex 1
9" 12 V I C 910(c) provides the standards for whether an applicant should apply for a minor or major permit
“’0 Defs Reply Mot To Stay Ex I
‘0‘ 12 VIC 910(d)(1)
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then, the permit had already been functionally granted by law To permit Defendants to use the
appeal of the separate major permit which Plaintiff’s filed out of diligence while this suit was
pending, to deny Plaintiffs right to the minor permit already granted by law, would render
meaningless the entire temporal framework established by the Legislature to ensure CMZ and the
Commissioner promptly conduct reviews It would sanction the sluggish administrative action that
framework is meant to prevent Further, it would condone violations of clearly granted statutory
rights
1135 While the 1988 La Vallee cases in the Third Circuit and District Court stand for the
principle that a party may not simultaneously seek both administrative and judicial remedies, the
Court notes that the instant case was filed long before Defendants ever issued any decision and
after the time period in which Defendants were statutorily mandated to act While it is true Plaintiff
is seeking an administrative appeal on a separate, major permit that covers the same subject matter,
it would be inequitable now to dismiss the case merely because Plaintiff pursued all possible
avenues for relief while this case was pending particularly in the instant case where the
underlying denial was extremely untimely and the Court had already begun to exercise its
jurisdiction over the matter Lastly, it would be a gross waste of the time and resources already
spent by the Court and parties only to have the case arise again in the future and consume more
time and resources
1136 This case is similar to the Vzrgm Islands Conservation 80¢“!er Inc v Virgin Islands Board
of Land Use Appeals cases outlined above,107 in that the permit in question was granted by
operation of law based on CZM’s delay Notably in those cases CZM did timely notify the
applicant about deficiencies and did, at first, try to comply with the timetable outlined in the
statute '03 Here, the situation is even more egregious Defendants were even more laggard in their
administrative duties as notification to Plaintiff that it would need to apply for a major instead of
a minor permit did not occur until more than eight months later Lastly, more recent and binding
precedent from the Virgin Islands Supreme Court cautions against denial based on administrative
exhaustion when there is no further review feasible ‘04 While the major permit application is
currently undergoing review by the BLUA the minor permit is granted by default without a record
no appeal to a higher administrative agency is necessary or possible
1137 The statute is clear upon receipt of an application the Commissioner has fifteen (15) days
to notify the applicant of a deficiency '05 It is not contested that the Commissioner did not notify
the applicant of a deficiency within that period Further, the statute plainly states that if after sixty
U V I Conservation Soc y Inc v V I Bd ofLand Lse Appeals CivilNo 83 2005 2006 V1 LEXIS 35 (VI Super
Ct May 25 2006) (unpublished) afl"d V I ( onservauon Soc y Inc v V 1 8d of Land Use Appeals
49 VI 581
(DVI 2007) reafl”d VI Conservation Soc y Inc v VI Bd ofLand Use Appeals 72 V1 1141 (D V1 2020)
”3 2006 V1 LEXIS 35 at *1 10 49 V l at 584 87 72 VI at 1144 47
“ V I Conservation Soc y v Golden Resorts LLLP 55 V I 613 616 (V I 201 l) ( [T]he Superior Court cued in
holding that VICS had failed to exhaust its administrative remedies, since there remained nothing for any
administrative agency to do at this point ’)
N 12 v I C §910(d)(1)
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(60) days no action is taken the pennit will be deemed to be approved '06 Plaintiff submitted its
application to Defendants June 21, 2019 Defendants did not issue a decision until February 28,
2020 To permit Defendants, months after the automatic grant of the permit, to suddenly issue a
decision to the contrary, forcing Plaintiff to subsequently reapply and then exercise its right to
appeal to the BLUA afier this Court has gained jurisdiction over the matter and then using that
appeal to procedurally bar Plaintiff from relief in Court not only runs clearly counter to the spirit
and purpose of the law, but it would also establish an inequitable precedent for the future The
legislative mandate to CZM is clear act speedily in deciding permits or have time decide for you
1138 Even assuming that because the major permit may be granted by the BLUA, possibly
rendering the instant case moot as Defendants argue in their Reply Motion To Dismiss,”7 the
principles of judicial forbearance pending agency review are not applicable here Generally the
Court refrains from exercising jurisdiction pending review of an administrative action In La
Vallee, the court expressed concem that judicial review of permits pending administrative review
would ‘render the Board useless ’ and displace the Board’s fimction as an expert appellate panel
in this area and would unduly clog this Court with premature challenges of essentially
administrative rulings '08
1139 Those concerns are not applicable here BLUA would still have its function as an appellate
review agency when someone 8 permit has been denied or when a third party seeks to challenge
the granting of a permit Cases of automatic grants and parties seeking to enforce those grants
hopefully remain rare There is also no need here for an “expert review of complex administrative
procedures or the kind of ecological or societal concems CZM and BLUA consider when issuing
permits There is simply a straightforward application of a statutory time frame The Court would
not be unduly clogged by premature challenges to administrative rulings since there is no
administrative ruling here, just the enforcement of Plaintiff’s statutorily granted right Plaintiff is
not seeking to reverse a denial, rather Plaintiff is seeking to enforce what it is already due Further,
to allow dismissal premised on Defendants dilatory decision making would render the entire
administrative time structure as clearly codified by the Legislature moot
1140 It is true BLUA could have granted the major permit, functionally rendering the case here
moot as concerns Plaintiff's business plans, but that is not a concern as the Court now grants the
permit It is possible BLUA affirms the denial of the major permit, but that is also not of concern
to the Court as the major permit applied for in 2020 is a different permit than the one before the
Court Nor is it the Court 5 providence to assess whether the permit should or should not be granted
as concerns CZM s and BLUA s guidelines for such matters The Court 5 charge is simply to apply
the law as stated and vitiate the rights denied to a party Lastly, as the Third Circuit stated in La
106 12 v I C §910(d)(4)
“’7 Defs Reply Mot To Dismiss l 5
“J" LaVellee Northslde CIVIC Ass n v V I Coastal Zone Mgmt Comm n 23 V I 406 411 (D V I 1988)
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Vallee Norths1de Civic Ass n, when there is a clear and unambiguous violation of a statutory right,
an exception to the principle ofjudicial forbearance pending agency review is warranted '09
1141 Finally, in issuing its decision, the Court belabors that it is not opining on the merits of the
requested permit and that it is merely applying the law as set by the Legislature The Court echoes
the ratiocination 0f the Virgin Islands District Court iterated below
Put plainly under the Act 5 present state, a major coastal zone permit could
feasibly be issued by default although the Committee finds that the proposed
development would pollute the environment, worsen social conditions and
disenfranchise the surrounding community This result is woefiilly inconsistent
with the spirit and purpose of the CZM Act In our opinion, the permit by default
provision at 12 V I C § 910(d)(4) (2004) without more is a glaring statutory
flaw that is amplified by the issue at bar In sum, as we underscored when we
first addressed this appeal, the permit by default clause creates the potential for
the abdication of the CZM s role That potential was realized here We cannot
highlight or reiterate this enough
Nonetheless, it is a time honored, central and fundamental tenet of our
jurisprudence that the role of the judiciary is limited to “say[ing] what the law
is ’ As loathe as we are to endorse a permit that the CZM Committee
recommended be denied, we are firmly bound by the explicit and unambiguous
letter of the law ”0
B The correct remedy is the writ of mandamus
1142 Having established that Plaintiff’s permit is granted by an automatic application of law, the
next question is which theory of equitable relief that Plaintiff asserts, preliminary injunction or
writ of mandamus is the appropriate remedy? The theories so considered below the correct
remedy is the writ of mandamus
1 Preliminary Injunction
1143 The ultimate relief sought in the pending motions is the same an order that the
Commissioner issue the permit Plaintiff proceeds under two subsections of the act under two
forms of equitable remedies for the same relief Under statutory rules of construction
Words and phrases shall be read with their context and shall be construed
according to the common and approved usage of the English language
Technical words and phrases, and such others as may have acquired a peculiar
'09 La Vallee NorthSIde CIVIC Ass n v VI Coastal Zone Mgm! (0mm n 866 F 2d 616 620 (3d Cir 1988)
"0 V I Conservation Soc y Inc v V I Bd of Land Use Appeals
72 VI 1141 [151 52 (DVI 2020) (citations
omitted)
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and appropriate meaning in the law, shall be construed and understood according
to their peculiar and appropriate meaning '”
1144 This statutory mandate echoes what has long been Justice Frankfurter s oft cited charge to
courts Though it has its own preoccupations and its own mysteries, and above all its own jargon,
judicial construction ought not to be torn from its wider nonlegal context "'2 In addition to this
charge, Virgin Islands courts must interpret statutes so as not to render them redundant or wholly
unnecessary In the case of In re L 0 F ,1" the Supreme Court of the Virgin Islands stated that
“[i]n analyzing a statutory scheme we must give effect to every provision, making sure to avoid
interpreting any provision in a manner that would render it or another provision ‘wholly
superfluous and without an independent meaning or function of its own ”4
1145 The plain language of the word injunction suggests that its purpose is to prevent an
action “5 As it is true an injunction can also compel performance, the Court will analyze the
statutory provisions using the rules of statutory construction outlined above Section 913(b)(l)
eXplicitly uses the word ‘ restrain ”' '6 The context in which preliminary injunctions arise is usually
one where a party is seeking to stop another party from doing something ”7 While conceptually,
one could consider an ‘injunction on inaction” to be a mandate to action, doing so would render
supemumerary § 913(b)(2), which allows someone to “compel the performance ’ of duties, and
would render the equitable remedies of mandamus and injunction essentially the same and wholly
superfluous “8 The redundancy in Plaintiff‘s request is belied by the fact Plaintiff requests the
same relief in both motions Accordingly, Plaintiff‘s argument for a preliminary injunction fails
basic premises of statutory construction, is illogical, and will accordingly be denied
2 Writ of Mandamus
1|46 The conditions outlined in Cheney and the elements adopted by Virgin Islands courts are
largely the same The first condition of Cheney and the third element that the Virgin Islands courts
have adopted, that the party has no other means to attain the relief or that no other adequate remedy
is available, has been met here As explained, Plaintiff’s permit has been granted automatically by
a function of law but has not been issued Only the Commissioner may issue the grant and only
the Court may direct a government official derelict in his duties to perform Further, there is
nothing for Plaintiff to appeal in the case of the minor permit so any other avenue would be futile;
'" 1 v [C §42
m Felix Frankfurter Some Reflections On The Reading OfSIatutes 47 COLUM L REV 527 528 (1947)
"3 62 v1 655 (v1 2014)
'1‘ Id at 661
"5 Injunction BLACK 3 LAW DICTIONARY (I 1th ed 2019) ( A temporary injunction issued before or during trial to
prevent an irreparable injury from occurring before the court has a chance to decide the case ’) (emphasis added)
"612 V I C § 913(b)(l)
”7 See e g V I Conservation Soc y v Golden Resorts LLLP, 55 V I 613 (V I 201 1) (conservation society trying to
stop resort from building) Traxco Inc v Gov t ofthe V I 49 V I 240 (V 1 Super Ct 2008) (casino trying to stop
competing resort with casino from building)
”3 12 V I C § 913(b)(2)
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as discussed above, appealing the grant of the very thing one seeks is illogical and there is no
record upon which to base such an appeal
1147 The second condition of Cheney and the first element Virgin Islands courts have adopted
for mandamus writs, a clear right in the plaintiff for the relief sought is also met The law is clear
as to automatic grants of permits and Plaintiff has clearly shown it has satisfied the requirements
of the law The second element Virgin Islands courts have adopted, a plainly defined duty on the
part of defendant is met the law is clear that once the statutory timeframe for notice and issuance
has expired, CZM and Commissioner must issue the permit Lastly, the third condition of Cheney
is met the Court is satisfied mandamus is appropriate under the circumstances for the myriad of
reasons detailed above
{[48 The writ of mandamus was fashioned for precisely an instance such as these the failure
of a government officer in acting This position is strengthened by the fact that the Legislature
specifically envisioned the failure of the CMZ to act in title 12, § 913 of the Virgin Islands Code
and specifically provided in 12 V I C § 913(b)(2) for actions in equity to compel the
Commissioner and CZM to act Thus, Plaintiff‘s relief for a writ of mandamus directing the CZM
and Commissioner to produce the permit is granted
C Plaintiff is entitled to declaratory judgment
1149 The Court may issue a declaratory judgment in addition to other adequate remedies, such
as the writ of mandamus There is a justiciable controversy here, whether or not Plaintiff is entitled
as a matter of law to the issuance of a permit by default Plaintiff and Defendants interests in the
issuance of the permit is adverse Plaintiff wants to receive the permit and Defendants do not
want to grant the permit Deciding this issue will terminate the controversy Declaratory judgment
in favor of Plaintiff is appropriate here
D Plaintiff has not shown an “improper regulatory taking”
1150 Plaintiff asserts that it has a property right in the permit, that CZM s denial constitutes a
taking that Plaintiff was not compensated for this, that the Virgin Islands Bill of Rights prohibits
such a taking, and that the permit 3 non issuance is therefore an improper regulatory taking ”9
Plaintiff further argues that it should be compensated for the time and profits it lost in not being
able to operate during the 2020 tourist season '20 The Court disagrees with this assessment
Plaintiff does not assert in any later motion or in the complaint any caselaw or prior precedent or
relevant statute beyond the Virgin Islands Bill of Rights However, Plaintiff ignores that the Bill
' 9 Pl 5 Pet For Writ Of Mandamus And Suit For Damages 4 S
' The Court notes that due to the Covid l9 pandemic the Governor issued multiple Executive Orders shutting down
and largely limiting activities in the U S Virgin Islands including gatherings, bars restaurants hotels, and travel to
island, hamstringing the 2020 tourist season severely and largely limiting what if any profits Plaintiff might have
expected This shutdown continues as of the issuance of this Memorandum Opinion and Order in March of 2021
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of Rights prevents the taking of private property for publzc use '2' [t is the Court 3 opinion that
Plaintiff fails each of these three aspects
1151 First, Plaintiff has not demonstrated a takmg Merriam Webster defines the verb “take as
l to get into one 5 hands or into one s possession, power, or control such as a
to seize or capture physically b to get possession of (fish or game) by killing or
capturing c (l) to move against (an opponent 3 piece, as in chess) and remove
from play (2) to win in a card game d to acquire by eminent domain '22
1|52 These definitions, including the last, most relevant definition which features the word
“acquire,” all presuppose something in existence which is then moved from the control of one
party into the domain of another Something cannot be taken before it exists, and the granted minor
permit was not yet in existence Plaintiff is seeking something be given to them, not the return of
something that was originally in its control
1153 Second, Plaintiff has not established that the minor permit was its private property While
property may be intangible or tangible, the Court will not go so far as to declare an unvitiated
statutory right to receive a regulatory permit to be intangible property Applying for a CZM permit
is not equivalent to mineral rights, or water rights, which govern physical objects The permit is a
regulatory governmental action akin to a car registration Further, unlike even a car registration,
the permit does not even regulate private property, rather it regulates the private use of public land
It is more akin to renting a public grill at the shore a public dock space, or a parking space in a
public lot This is a privilege allowing the temporary use and limited modification of public lands
There are other means of enforcing the grant of this permit than attaching private property rights
to an abstract legal concept and casting it into the muddy waters of property law The Court
declines to do so here The permit in this case is not a cognizable property interest under the Fifth
Amendment or the Virgin Islands Bill of Rights
1154 Third Plaintiff has not shown how the non granting of the permit in anyway is being used
by Defendants for public use As stated above, the grant of the minor permit is not yet realized
The Court cannot discern, and Plaintiff provides no argument as to how, this unrealized permit is
being utilized by the Government of the Virgin Islands in funherance of a public purpose Thus,
Plaintiff has not convincingly shown in anyway how there might conceivably be a regulatory
taking here
1[55 As stated above the Court is not convinced there was a taking, that there was private
property involved, or that anything was being used for public use Thus there can be no cognizable
property interest under the Fifth Amendment, there can be no ouster from private property, and
there can be no denial of all economic use from that private property Further, Unzted States v
szerszde Bayvzew Homes Inc found that denial of a permit was not necessarily a regulatory
"48 USCS§ 1561
'” Take MERRIAM WEBSTER DICTIONARY (2021) (last updated Feb 19 2021) https www merriam
webster com/dictionary take
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taking even when applied to private property At issue here is public property Permitting Plaintiff
to use public property is more akin to a privilege than a right Lastly, as the United States Supreme
Court said in Riverszde Baywew Homes Inc “afier all, the very existence of a permit system
implies that permission may be granted, leaving the landowner free to use the property as
desired "23 The permit is so granted A mere delay in the granting of regulatory permission to use
public land is not a ‘ taking Given the reasoning set forth above the Court is thoroughly
unpersuaded there was an improper regulatory taking here and that count will be dismissed
IV CONCLUSION
156 Defendants have filed concurrent motions asking to the Court to dismiss the case due to
failure by the Plaintiff to exhaust administrative remedies and to stay matters pending the Court 5
ruling on the Motion To Dismiss Because the Court will deny the Motion To Dismiss the Motion
To Stay will be denied as moot Plaintiff filed a Motion For Judgment, Motion For Injunction, and
Motion For Ruling Because the Motion For Judgment will be granted, the Motion For Ruling will
be denied as moot The Motion For Preliminary Injunction will be denied as it is the improper
remedy
1157 Just as this Court is bound by the laws the Legislature has established, so too are the
administrative agencies set up to help regulate them Plaintiff applied for a minor permit June 2|,
2019 The Virgin Islands Code provides a clear timetable during which CZM must act, or else the
permit will be deemed granted by an operation of law Those time periods have come and passed
The Court does not rule on the desirability of Plaintiff‘s permit and notes its frustration that the
grant by default provision of the CZM Act may in cases such as these work to undermine the
laudable public purposes served by the rest of the CZM Act However, Plaintiff‘s statutory right
to the permit has been clearly violated and administrative exhaustion is fiJtile and unnecessary
Dismissal pending agency review in which there can only be one clear and correct outcome would
fimher strain both parties and the Court 5 resources in what is a straightforward case Plaintiff’s
Motion For Judgment will be granted and the relevant public officials are ordered to grant and
produce the permit as required by law and in accordance with all relevant regulations
1158 Finally, Plaintiff is also entitled to a declaratory judgment recognizing the permit shall be
granted However, Plaintiff is not entitled to a finding that not issuing the minor permit constituted
an improper regulatory taking
Accordingly, it is hereby
ORDERED that Plaintiff‘s Motion For Judgment On The Pleadings filed February 27
2020 is GRANTED and it is fisrther
'23 United States v Riverside Baywew Homes Inc 474 U S 121, [27 (I985)
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ORDERED that Plaintiff‘s minor permit application filed June 21 2019 is DEEMED
APPROVED by operation of law and it is further
ORDERED that on or before March 30, 202], the Commissioner of the Department of
Planning and Natural Resources and the Coastal Zone Management Division shall issue and
deliver the subject minor CZM permit to Plaintiff in accordance with all applicable laws and
regulations, and it is fimher
ORDERED that Defendants Motion To Stay Proceeding Pending Resolution Of Motion
To Dismiss, filed December 31 2020, is DENIED as moot; and it is further
ORDERED that Defendants Motion To Dismiss For Failure To Exhaust Administrative
Remedies, filed December 30, 2020, is DENIED, and it is further
ORDERED that Plaintiff’s Motion For Preliminary Injunction, filed February 27, 2020, is
DENIED and it is further
ORDERED that Plaintiff’s Motion for Immediate Ruling in Plaintiff’s Favor on Plaintiff‘s
Motion for Judgment on the Headings, filed January 25, 2021, is DENIED as moot, and it is
ORDERED that a copy of this Memorandum Opinion and Order shall be directed to
counsel of record
DATED le(202.] MP9“
DENISE M F NCOIS
Judge of the Superior Court of the Virgin Islands
ATTEST
TAMARA CHARLES
Clerk of the Court
BY i’MMM
[(0’— LORI BOYNES
Chief Deputy Clerk 3 E 402/