(D.C. Civil No. 102-1970) APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS and ST. JOHN
Before MARIS, ROSENN and HUNTER, Circuit Judges
The question presented on this appeal is whether the District Court of the Virgin Islands erred in affirming the decision of the Board of Zoning, Subdivision and Building Appeals of the Virgin Islands, hereinafter called the Board of Appeals, to grant a zoning exception for the construction of a drive-in theater in an area of St. Thomas zoned for residential and agricultural use, and in denying injunctive relief with respect thereto.
It appears from the record that an application had been filed on behalf of the St. Croix Drive-in Theater, Inc., with the Virgin Islands Planning Board for a special exception, as a recreational use, for a drive-in theater proposed to be constructed on a parcel of land located at Estate Donoe in St. Thomas which is in an R 10 zoning district. The Planning Board held a public hearing at which the plaintiffs, owners and residents of land overlooking the area of the proposed drive-in theater, objected to the granting of the exception. The application was denied for "improper location" and "possibility of traffic congestion." Pursuant to 29 V.I.C. §§ 270, 277, an appeal was taken from the Planning Board's decision to the Board of Appeals by the St. Croix Drive-in Theater, Inc. The Board of Appeals held a meeting at which the testimony of various persons appearing in favor of the applicant was received. Thomas Blake, director of the Planning Board, also testified at the meeting, stating that his board had received several letters from people who live in the surrounding area voicing objections to the possible noise and congestion of traffic resulting from the theater located at Estate Donoe. After receiving the testimony the Board members inspected the site of the proposed theater. Thereafter the Board of Appeals reversed the decision of the Planning Board and granted a special exception authorizing the construction of a drive-in theater at the proposed location in Estate Donoe.
The plaintiffs then filed a complaint in the District Court of the Virgin Islands against the Government of the Virgin Islands and the Board of Appeals to review the Board's decision, alleging, inter alia, that it was arbitrary, capricious and in violation of the zoning law, 29 V.I.C., ch. 3, subchap. III. The St. Croix Drive-in Theater, Inc. intervened in the action, answered the complaint, and prayed for its dismissal. The Government of the Virgin Islands and the Board of Appeals also answered, asking for dismissal of the complaint. The district court entered a judgment dismissing the complaint on the ground that the plaintiffs, because they had not appeared before the Board of Appeals, did not come within the class of persons granted the right of review. On appeal from that judgment this court held that the plaintiffs were authorized under 29 V.I.C. § 270 to seek review by the district court of the Board of Appeals' action and we remanded the cause to the district court for hearing on the merits. Kramer v. Government of the Virgin Islands, 3 Cir. 1971, 8 V.I. 449, 453 F.2d 1246.
Upon remand plaintiffs filed in the district court a motion for an injunction alleging that the establishment of the drive-in theater would result in traffic congestion and noise to their injury, contrary to the purpose of the law in establishing the residential zone, and that, in any event, such a theater was not a recreational facility which was authorized by the zoning law as a special exception in an R 10 residential zone. The plaintiffs specifically alleged that the Board of Appeals' decision was in violation of the zoning law, 29 V.I.C. § 260(3), in that it would increase congestion in the roads and streets, which it was one of the objects of the law to prevent. The district court, after hearing, found reasonable and well supported by the evidence the conclusion of the Board of Appeals, that, in the light of the understanding of the term in the community, an outdoor drive-in theater is a "recreational use" within the meaning of the statute. The court applied the rule enunciated in N.L.R.B. v. Hearst Publications, 1944, 322 U.S. 111, 131, 88 L. Ed. 1170, 64 S. Ct. 851, that where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited to deciding whether that determination has warrant in the record and a reasonable basis in law. Concluding that the Board did not exceed its authority in granting a special exception for recreational use and that its decision to do so was based on relevant evidence acceptable to a "reasonable mind," the district court denied the injunction and affirmed the decision of the Board of Appeals. Kramer, et al. v. Government of the Virgin Islands, et al., 1972, V.I. . This appeal by Edwin R. Kramer and Theodore A. Giattini, two of the plaintiffs, followed.
On this appeal, the appellants contend that the district court erred in denying the plaintiffs' application for an injunction because the value of their property will be reduced by the traffic congestion, noise pollution, visual pollution, heat pollution, and creeping commercialism, which, as they allege, will result from the establishment of the theater. They argue further that, as a matter of law, it was improper for the Board of Appeals to grant a special exception in an R 10 residential zone to construct an outdoor drive-in theater, because such a theater would constitute a business or commercial use of the land and not such a recreational use as is authorized by the statute to be granted as a special exception in such a zone. We turn first to consider the latter contention.
The provisions of the zoning law which are involved are contained in subchapter III of Chapter 3 of Title 29, Virgin Islands Code (29 V.I.C. §§ 260 et seq.), and are, in pertinent part, as follows:
... the zoning requirements set forth in this subchapter shall be for the purpose of benefitting the Virgin Islands by:
(1) promoting the public health, safety, morals and general welfare;
(3) lessening congestion in the roads and streets;
(4) protecting the established character and social and economic value of agricultural, residential, commercial, ...