There is an old saying that you can’t fight city hall, but any administrative law attorney will tell you that this is not true.  If a local government agency makes a decision that affects your personal interests, you most certainly can appeal that decision.  But in doing so, appellants must take care that they lodge their appeals with the correct adjudicative body.  Aggrieved parties cannot simply run to court to appeal an administrative decision that did not go their way.  Instead, they must take full advantage of any administrative appeals process that the local government has put into place.  This rule, known as the “administrative exhaustion” doctrine, is a bedrock principle in governing the interaction between government agencies and the court system.

On August 16, 2013, Chief Judge Wilma A. Lewis of the District Court of the Virgin Islands reiterated the fundamental importance of administrative exhaustion by dismissing a lawsuit that challenged the permitting and construction of a cellular communications tower in the Mt. Pleasant neighborhood on St.Croix. The thirteen plaintiffs, who are landowners in the Mt. Pleasant neighborhood, brought suit against the owner of the tower and the Virgin Islands Department of Planning and Natural Resources (“DPNR”), seeking to have the tower operations shuttered and the tower itself torn down. 

Chief among the plaintiffs’ complaints was that DPNR did not provide the neighboring landowners notice of the tower permitting and an opportunity for the landowners to voice their opposition.  BoltNagi PC, representing the tower owner, immediately moved to dismiss the complaint on a number of grounds, including the plaintiffs’ failure to exhaust their administrative remedies in challenging DPNR’s permitting of the tower. In its briefs on behalf of the tower owner, BoltNagi argued that because the plaintiffs’ suit challenged the permitting, construction, and proposed operation of the cellular tower, the plaintiffs first had to bring their concerns before the Virgin Islands Bureau of Land Use Appeals (“BLUA”) before seeking a judicial remedy.

The plaintiffs countered that they should be excused from the BLUA administrative appeals process because the actions of the DPNR constituted a “clear and unambiguous violation” of their constitutional and statutory rights when DPNR failed to provide notice and an opportunity to be heard regarding the tower owner’s application to construct the tower. The plaintiffs also alleged that they would be irreparably injured if the tower was not torn down.

After extensive briefing and hearings, the Court ultimately rejected the plaintiffs’ arguments in their entirety and agreed with the defendant that administrative exhaustion remains a prerequisite to seeking judicial review of agency decisions. Quoting the United States Supreme Court, Judge Lewis wrote that “the long settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” (Slip Op. at 8.)

The Court recognized the traditional statutory and constitutional exceptions to the administrative exhaustion rule. However, the Court found that DPNR did not violate any of the plaintiffs’ statutory rights by issuing or renewing the permit, and the Court further rejected the plaintiffs’ claim that DPNR violated the plaintiffs’ substantive and procedural due process rights by issuing the permit. 

On the issue of procedural due process, the Court wrote that it could not “evaluate the sufficiency of the process that they would have received had they appealed to the BLUA.” (Slip Op. at 12.) On the issue of substantive due process, the Court concluded that DPNR’s actions in permitting the tower did not rise to the level of “shocking the conscience”, which would be a necessary element of a substantive due process violation. Finally, on the issue of irreparable injury, the Court concluded that the plaintiffs “have offered nothing to convince the Court that appealing to the BLUA in this context would have been ‘clearly and demonstrably inadequate to prevent’ the alleged harm stemming from the construction of the tower.” (Slip Op. at 15.)

In upholding the principle of administrative exhaustion, Judge Lewis confirmed the age-old requirement that administrative agencies should have the first opportunity to correct their own mistakes. The plaintiffs’ end-run around the BLUA not only usurped the self-correcting mechanism that administrative review process provides, but it also threatened to distort the relationship between the administrative and the judicial appeals process. All applicants before an administrative agency must be confident that the agency’s decisions will be respected, and that any challenge to those decisions will be reviewed in a deliberate and appropriate administrative proceeding. As this case demonstrates, if you want to fight city hall, you need to fight it correctly.

Loretta Tutein, et al. v. InSite Towers, LLC, et al., No. 1:12-cv-71, 2013 WL 4455348 (D.V.I. August 16, 2013) (Lewis, C.J.)