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Biggs v. Virgin Islands Board of Land Use Appeals

argued: April 26, 1989.

WAYNE BIGGS AND MELBA CANEGATA BIGGS
v.
VIRGIN ISLANDS BOARD OF LAND USE APPEALS; TEN KIRKEGADE CORPORATION, INTERVENOR, APPELLANT



Appeal from the United States District Court for the District of the Virgin Islands, St. Croix, D.C. Civil Action No. 88-0253.

Hutchinson, Cowen and Garth, Circuit Judges.

Author: Hutchinson

HUTCHINSON, Circuit Judge

I.

Ten Kirkegade Corporation (Kirkegade) appeals from a final order of the District Court of the Virgin Islands. Kirkegade, as intervenor, had filed a motion requesting that the district court dismiss Wayne and Melba Biggses' petition for a writ of review of a decision by the Board of Land Use Appeals (Board) because of late filing. Kirkegade argued that the July 27, 1988 petition was untimely because it was filed more than thirty days after the Board's June 14, 1988 decision. The district court rejected this argument, holding that under V.I.Code Ann. tit. 29, § 236(k) (Supp. 1989) the time to file a petition begins to run when a "letter" is sent advising an applicant of the Board's decision and that the Board's action in mailing the Biggses a copy of the decision did not satisfy the statute. It therefore denied Kirkegade's motion and sua sponte entered a final order dismissing the petition as premature.

The district court erred in concluding that the petition was premature because no letter accompanied the copy of the Board's decision. We must therefore consider Kirkegade's contention that the Biggses' petition was late. The statute plainly requires notice of a decision before the time to seek review begins to run. Here the decision gave only the date on which it was issued. This left the notice itself undated. In such a case the thirty-day period for seeking review begins to run when the notice is sent, a date which the district court has not yet determined. We will therefore vacate the district court's order and remand the case to it to make the necessary determinations.

II.

On June 2, 1987, Kirkegade was issued a permit to construct condominiums in Christiansted, St. Croix. The Biggses, who reside directly across the street from the construction site and own other property nearby, allege that in September, 1987 they saw that construction was not proceeding in accord with the approved plans. They contacted the Permit Division of the Department of Public Works, which held a meeting on the matter. By letter dated November 10, 1987, the District Director of Permits rejected the Biggses' objections and advised them that an appeal could be taken to the Board. The Biggses filed such an appeal on December 1, 1987.

On June 14, 1988, after holding two public hearings and numerous executive sessions, the Board announced its decision. It rejected Kirkegade's argument that the Board lacked jurisdiction because the appeal was not filed within thirty days of the date the permit issued. Instead, the Board held that the appeal was timely since it was filed within thirty days of the District Director's letter. Joint Appendix (Jt.App.) at 41.

On the merits, the Board held that the density of the project had been exceeded by a fractional amount, but concluded that this was inconsequential. Id. at 49. It also determined that while the structure occupied too great a proportion of the zoning lot this violation could be cured by Kirkegade's offer to dedicate a portion of a contiguous vacant lot to the building site. Id. at 50-52. Finally, the Board concluded that the basement and mezzanine of the building were "stories" within the meaning of V.I.Code Ann. tit. 29, § 225(92) (1975). Jt. App. at 47-49. It therefore agreed with the Biggses that the building had five stories and violated the building permit, which authorized a three-story structure. The Board nevertheless refused to order that the building be demolished or the two top stories removed. It reasoned that the question of whether the permit should be revoked was not before it and that "[under] the circumstances as presented in this case, the Board must render a decision which is fair and equitable." Id. at 52.

The Biggses petitioned for a writ of review in the district court on July 27, 1988. After obtaining permission to intervene, Kirkegade moved to dismiss the petition. It argued, inter alia, that the petition had to be filed within thirty days of June 14, the date of the Board's decision. The Biggses countered that the time for seeking review did not begin to run until June 29, when they first received the certified mail piece containing the decision. The Board, the nominal respondent in the district court, took no position on when the time for filing a petition commenced. It did, however, submit an affidavit stating that the decision had been sent by certified mail on June 24, which included a receipt for certified mail bearing the same date. Although the Biggses' attorney represented to the district court that the envelope is postmarked June 27, he did not produce it. Id. at 94. The Biggses have appended what is purportedly a copy of the envelope to their brief, but the postmark on that copy is illegible. The envelope itself does not appear in the record.

The district court sua sponte decided that under the governing statute the thirty-day period did not begin until the Board sent the Biggses a "letter" informing them of its decision. The court held that the decision mailed to the Biggses was not a letter and that the time to file a petition had not yet begun. Accordingly, it dismissed the petition as premature and ordered the Board to send the Biggses a letter in conformity with the statute.

We have jurisdiction over Kirkegade's appeal under 28 U.S.C.A. § 1291 (West Supp. 1989).*fn1 We exercise plenary review over the district court's construction of the statute. Universal Minerals, Inc. v. ...


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