3rd Circuit rules on Mount Pleasant cell tower dispute

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ST. CROIX - The 3rd U.S. Circuit Court of Appeals has affirmed in part and reversed in part a District Court decision to dismiss a complaint filed by Mount Pleasant homeowners against InSite Towers and the V.I. Department of Planning and Natural Resources about the construction of a cellular transmission tower in the homeowners' back yards.

The homeowners sued InSite Towers claiming the tower was a nuisance that caused emotional distress resulted in damage to their property. They sued DPNR on a claim that the agency failed to abide by its own regulations in permitting the construction of the tower.

In an order issued almost a year ago, District Judge Wilma Lewis dismissed the case, saying the homeowners failed to exhaust all administrative remedies before coming to the court.

On Thursday, Judges Marjorie Rendell, Julio Fuentes and Joseph Greenaway issued a decision ruling that a portion of Lewis' decision was incorrect.

In issuing the order reversing the dismissal in part, the 3rd Circuit Appeals Court panel said the nature of the homeowners' claims makes resolution of the issue a close call.

"On the one hand, they complain of DPNR's failure to follow its own procedures," it read. "On the other hand, they attack InSite's failure to provide adequate notice of construction, and, further, contend that whether or not the proper procedures were followed, they have nuisance and other related claims against InSite.

"Accordingly, this action appears to be a hybrid, some aspects of which are directed at the DPNR and cry out for agency exhaustion, while other aspects stand on their own against a private party, InSite," the judges ruled.

On July 22, 2008, the tower company applied to DPNR for an earth change permit for a 100-foot tall cellular transmission tower.

DPNR deemed that application completed on Sept. 11, 2008, and issued the permit two weeks later.

On Oct. 7, 2008, InSite applied for a building permit to construct the cell tower and the permit was issued on Oct. 29, 2008.

However, in December 2008, before InSite began construction, DPNR issued a moratorium on the construction of cell towers in the Virgin Islands. During the moratorium, a new statute governing the construction of cell towers was enacted, and DPNR drafted new regulations.

Before the issuance of the regulations, on Dec. 15, 2011, DPNR Commissioner Alicia Barnes granted a request from InSite to waive the moratorium and allow construction of the tower and required InSite to comply with the terms of the new regulations, as well as to limit the tower's height to 75 feet.

InSite then formally filed for renewal of its earth change and building permits, which were re-issued Jan. 12, 2012.

Construction of the tower was completed soon thereafter, but the equipment was not immediately activated.

The homeowners brought suit, claiming that the manner in which DPNR granted InSite the permits to construct the tower violated the law and regulations - which required notice to homeowners and a hearing - and also constituted a procedural and substantive due process violation.

Their claim also maintained that the tower constitutes a private and public nuisance resulting the negligent and intentional infliction of emotional distress. They subsequently filed a motion for preliminary injunction, requesting the District Court to order the tower be removed and enjoining its activation.

InSite joined DPNR in filing a motion to dismiss the homeowners' complaint, arguing that the homeowners had failed to exhaust their administrative remedies by not appealing the DPNR decisions to the V.I. Board of Land Use Appeals.

The homeowners responded that they were excused from exhausting such remedy.

In dismissing the complaint, Lewis determined that the regulations cited by the homeowners were not retroactively enforceable, and viewing the renewal to relate back to the original permit granted in 2008, the judge held that certain claims lacked merit because they concerned acts prior to Dec. 28, 2011, the issue-date of the new regulations.

She also said the homeowners' reasoning was not sufficient to excuse them from exhausting their administrative remedies.

In its ruling regarding the appellants' constitutional arguments, the 3rd Circuit panel said they found no "clear and unambiguous" constitutional violation.

"That the District Court correctly noted that in order to state a claim for failure to provide due process, a plaintiff must have taken advantage of the processes that are available to him or her, unless those processes are unavailable or patently inadequate," the 3rd Circuit ruling states.

- Contact Fiona Stokes at 714-9149 or email fstokes@dailynews.vi.

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