Kramer v. Government of the Virgin Islands
Opinion of the Court
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 Estaté 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 Ap-. peals 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
- 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 hear
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.
“§ 260. Purpose
. . . 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, industrial, recreational and other areas;
§ 261. Definitions
For the purpose of this subchapter, certain terms are defined as follows:
(17) Recreational use: Public or private recreational facility, including, but not limited to, golf courses, boat harbors, and bathing beaches. Commercial uses, such as refreshment stands and equipment rentals, may be permitted if clearly accessory to the principal use.
§ 266. District requirements
District requirements shall be as set forth in the schedule annexed hereto, marked “Appendix I,” incorporated into and by this reference made a part of this subchapter. . . .
APPENDIX I
SCHEDULE OF ZONE REQUIREMENTS
R 10 ZONE
One- or Two-Family Residential
(Intent: To stabilize the agricultural and residential character of the Zone and to encourage a suitable environment for family life.)
1. Agricultural use
2. One or two single-family dwellings
3. Two-family structure
Permitted Accessory Uses and Structures:
1. Home occupations
2. Servants’ quarters
3. Roadside stand
Special Exceptions:
1. Rooming or boarding house
2. Community service or facility
3. Resort hotel
4. Agricultural processing plant
5. Recreational use
6. Apartment house
7. Three- or four-family structure
8. Neighborhood commercial activities
9. Quarrying and associated activities
§ 269. Special exception and variance procedure
(a) Special exceptions. The Planning Board may grant special exceptions for certain uses as specified in Appendix I . . . . Such special exceptions shall be granted only when found to be in harmony with the purpose and intent of this subchapter and subject to such conditions and safeguards as may be appropriate.
[29 V.I.C. §§ 260 et seq.]
It will be seen that the statute authorizes the granting in an R 10 residential zone of a special exception for a “recreational use/’ which the law defines as a “Public or private recreational facility, including, but not limited to, golf courses, boat harbors, and bathing beaches.” The appellants strongly urge that an outdoor drive-in theater is not such a facility and that its operation is not a recreational use. The word “recreation,” however, in its popular sense is of very comprehensive signification and includes in its general meaning games, sports and plays. 36A Words and Phrases, Perm, ed., pp. 121-122. Webster defines “rec
This brings us to the remaining question, namely, whether under the facts of this case the action of the Board of Appeals in granting such an exception was within the purpose and intent of the law or whether, as the appellants contend, it violated that purpose and intent. In support of their contention they urge that the Planning Board cor-r rectly denied the application for a special exception for the
The district court also concluded that on the record before it the plaintiffs were not entitled to an injunction. We are satisfied that the court did not err in so doing. This is not to say, however, that the plaintiffs might not become entitled to injunctive relief in the future. For while a drive-in theater is a lawful business and not a nuisance per se, King v. James, 1950, 88 Ohio App. 213, 97 N.E.2d 235;
The judgment of the district court will be affirmed.
Reference
- Full Case Name
- EDWIN R. KRAMER, THEODORE A. GIATTINI, ALAN V. RUSHTON and ROLF H. BOULON v. GOVERNMENT OF THE VIRGIN ISLANDS, BOARD OF ZONING, SUBDIVISION AND BUILDING APPEALS OF THE VIRGIN ISLANDS, ST. CROIX DRIVE-IN THEATER, Intervenor
- Cited By
- 1 case
- Status
- Published