                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                              No. 13-3869
                             _____________

LORETTA TUTEIN; ROBERT TUTEIN; JAMES THOMAS; JEANINE THOMAS;
    DANDRIDGE HENRY; DEROY JEREMIAH; EVANNIE JEREMIAH;
             JOAQUIN MERCADO; LISEL MERCADO;
              CARLTON GREENE; FRANCIS DANIEL;
                 ROSE DANIEL; CAROLYN JOSEPH

                                     v.

                    INSITE TOWERS, LLC;
 UNITED STATES VIRGIN ISLANDS DEPARTMENT OF PLANNING AND
                    NATURAL RESOURCES

       Loretta Tutein; Robert Tutein; James Thomas; Jeanine Thomas;
           Dandridge Henry; Deroy Jeremiah; Evannie Jeremiah;
                Carlton Greene; Francis Daniel; Rose Daniel,

                                                              Appellants


                     On Appeal from the District Court
                 of the Virgin Islands – Appellate Division
                    (District Court No.: 1-12-cv-00071)
                      District Judge: Wilma A. Lewis


                         Argued on May 13, 2014



    Before: RENDELL, FUENTES and GREENAWAY, JR., Circuit Judges


                       (Opinion filed: July 10, 2014)
Kye Walker, Esquire (Argued)
2006 Eastern Suburb
Suite 101
St. Croix, VI 00820

                            Counsel for Appellant


Alfred J. Stone, III, Esquire (Argued)
Nycole A. Thompson, Esquire
Bolt Nagi
Suite 21
5600 Royal Dane Mall, Corporate Place
Charlotte Amalie
St. Thomas, VI 00802

                            Counsel for Appellee




                                       OPINION


RENDELL, Circuit Judge:

       Appellants, homeowners on St. Croix, sued Insite Towers, LLC (“Insite”) over its

construction of a cellular transmission tower, and related personal injuries and property

damage. Appellants have also sued the U.S.V.I. Department of Planning and Natural

Resources (“DPNR”) for failing to abide by its own regulations in permitting the

construction of the tower. The District Court dismissed the case because of Appellants’

failure to exhaust administrative remedies. For the reasons set forth below, we will

affirm in part and reverse in part the judgment of the District Court.

       I. Background

       A. Facts

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       The facts of this case are essentially undisputed. On July 22, 2008, Puerto Rico

Tower, Inc. (predecessor in interest to InSite) applied for an Earth Change Permit from

the DPNR to construct a 100-foot tall cellular transmission tower on a parcel of land on

St. Croix designated as Plot Number 72. DPNR deemed that application completed on

September 11, 2008, and issued the permit two weeks later. On October 7, 2008, InSite

applied for a Building Permit to construct the cell tower and the permit was issued on

October 29, 2008. (App. 125.)

       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 the

accompanying regulations. The statute, 29 V.I.C. § 294a, was enacted on October 7,

2011 and the corresponding regulations, 29 V.I. A.D.C. § 1, were promulgated on

December 28 of that year.

       However, before the issuance of the regulations, on December 15, 2011 the

Commissioner of the DPNR responded to a request from InSite to waive the moratorium

and allow construction of the tower on Plot Number 72. The Commissioner granted the

waiver and, in so doing, required InSite to comply with the terms of the then-pending

new regulations, as well as to limit the tower to 75 feet.

       InSite then formally filed for renewal of the Earth Change Permit and the Building

Permit for Plot Number 72. On January 12, 2012, DPNR received InSite’s application

and issued the permits the same day. In April 2012, InSite posted the permits along the



                                              3
boundary of Plot Number 72. Construction of the tower was completed soon thereafter.

However, as of the date of the District Court hearing, it had not been activated.

       Appellants brought suit, alleging that the manner in which DPNR granted InSite

the permits to construct the tower violated law and regulations, which required notice to

homeowners and a hearing, and also constituted a procedural and substantive due process

violation. Appellants also allege that the tower constitutes a (1) private nuisance, (2)

public nuisance, (3) negligent infliction of emotional distress, (4) intentional infliction of

emotional distress and (5) negligence per se. (App. 124.) They subsequently filed a

motion for preliminary injunction, requesting the District Court order the tower be

removed and enjoining activation. The motion was denied.

       B. District Court Opinion

       InSite, joined by DPNR, then filed a motion to dismiss. InSite argued that

Appellants had failed to exhaust their administrative remedies, by not appealing the

DPNR decisions to the Virgin Islands Board of Land Use Appeals (“BLUA”).

Appellants contended that they were excused from exhausting such remedies. The

District Court noted that a plaintiff may be excused from completing administrative

appeals where, inter alia, (1) the challenged agency action constitutes a clear and

unambiguous violation of statutory and constitutional rights, or (2) where the

administrative procedures are inadequate to prevent irreparable injury.

       The District Court determined that the regulations accompanying this statute were

not retroactively enforceable, and so, viewing the renewal to relate back to the original

permit granted in 2008, held that certain claims concerned acts prior to December 28,

                                               4
2011, the issue-date of the new regulations, and therefore lacked merit. Concerning

claims after December 28, the Court determined that the new regulations did not require

DPNR “to provide notice to the public or an opportunity to be heard regarding the

renewal or reissuance of previously approved permits.” (App. 15.) Accordingly, the

District Court concluded that no statutory violation had been shown. The Court similarly

found that no clear constitutional violations had been shown sufficient to excuse

Appellants from exhausting their administrative remedies.

       Appellants also argued that the BLUA could not provide injunctive relief and so

the administrative procedures were inadequate to prevent the irreparable injury suffered

by plaintiffs. The District Court rejected this claim, finding that the BLUA can reverse or

modify any order of the DPNR, such that an appeal to the BLUA was not clearly

inadequate to prevent the alleged harm. The Court concluded that Appellants had not

excused their failure to exhaust administrative remedies and so granted the motion to

dismiss. Appellants now urge that the District Court erred in dismissing the case.

Separately, Appellees maintain an alternative argument which was advanced before, but

not addressed by the District Court, namely that Appellants’ claims are preempted by

federal statute.

       II. Standard of Review1

       When reviewing a dismissal for failure to state a claim, we review the decision de

novo. Similar to the standard at the district court, we must accept all well-pleaded


1
 The District Court had jurisdiction under 28 U.S.C. §§ 1446(c)(2) and 1332(a). We
have jurisdiction pursuant to 28 U.S.C. § 1291.
                                             5
allegations as true and all favorable inferences that can be drawn from them. However,

“[w]hen the District Court declines to grant an exception to the application of exhaustion

principles, we review for abuse of discretion.” Harrow v. Prudential Ins. Co. of Am., 279

F.3d 244, 248 (3d Cir. 2002).

       III. Discussion

       The nature of Appellants’ claims makes resolution of this issue a close call. On

the one hand, they complain of DPNR’s failure to follow its own procedures. 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.

       A. Claims Against InSite

       We note initially that the administrative appeals process at the BLUA is geared

towards the correction of agency action. That is, a BLUA appeal is only open to those

aggrieved by an agency decision. 29 V.I.C. § 295(a) (“Any person who feels that an

injustice has been done him by any order . . . of the Commissioner of Planning and

Natural Resources . . . may appeal therefrom to the Board of Land Use Appeals . . . .”)

Further, the relief that the BLUA may provide is generally limited to correcting the

agency action. Id. at § 295(b)(3)(“The Board may . . . reverse or affirm, wholly or in

part, or may modify the order . . . appealed from . . . .”) Appellants’ claims against

InSite, however, do not directly pertain to agency action and instead focus on torts aimed

                                              6
at a private entity, such as nuisance, intentional infliction of emotional distress, and

negligence per se. Such claims thus appear to be outside the bounds of the BLUA’s

jurisdiction and not amenable to agency resolution. We will not require exhaustion of an

administrative appeal as to the claims against InSite, when such proceedings could do

nothing to resolve those claims. Accordingly, we reverse the judgment of the District

Court on this ground, and hold that Appellants’ claims against InSite should not have

been dismissed.

       B. DPNR and Exhaustion

       At the same time, we agree with the District Court that, as to the claims against the

DPNR, Appellants must exhaust administrative remedies. The allegations against the

DPNR clearly concern the agency’s decision to approve InSite’s construction permits

without notice or a public hearing. As such, those claims would be within the jurisdiction

of the BLUA, making exhaustion an appropriate requirement.

       In LaVallee Northside Civic Ass’n v. Virgin Islands Coastal Zone Mgmt. Comm'n,

866 F.2d 616, 620 (3d Cir. 1989), we noted that:

       Although the benefits to the judicial system from insistence on administrative
       exhaustion generally are substantial, there are occasions for pragmatic exceptions
       designed to promote efficiency. We have noted that the requirement is excused
       when the challenged agency action constitutes a clear and unambiguous violation
       of statutory or constitutional rights, when reliance on administrative procedures is
       clearly and demonstrably inadequate to prevent irreparable injury, and when
       exhaustion is futile.

Id. at 620-21. These exceptions to the exhaustion requirement, of (1) futility, (2)

violation of statutory or constitutional rights, and (3) inadequate to prevent irreparable

harm, remain good law. See PennMont Sec. v. Frucher, 586 F.3d 242, 246 (3d Cir. 2009)

                                              7
(noting the exceptions of inadequate remedies, and violations of constitutional or

statutory rights). These exceptions apply even in instances where a statutory scheme

explicitly provides for administrative remedies. See id. (noting SEC administrative

remedies provided for in statute).

       Here, Appellants first contend that appeal to the BLUA would be futile because it

is not empowered to provide the injunctive relief sought. Appellants urge that because

the BLUA’s enabling statute does not explicitly provide for injunctive authority, the

BLUA does not have such power. However, the statute provides generally that the

BLUA has the power to “reverse or affirm, wholly or in part, or may modify the order”

appealed from. 29 V.I.C. § 295(b)(3). A companion provision establishes that the

BLUA shall have “all the powers of the officers from whom the appeal is taken,” which

appears to include referring a violation for prosecution and abatement. Id. at § 236(a)(2).

       In addition, “[i]n order to invoke the futility exception to exhaustion, a party must

‘provide a clear and positive showing’ of futility before the District Court.” Wilson v.

MVM, Inc., 475 F.3d 166, 175 (3d Cir. 2007) (citation omitted). The statutory language

cited above indicates that the BLUA has broad powers which presumably include

injunctive authority. At the very least, Appellants have made no clear showing that the

BLUA lacks such power. We accordingly conclude that Appellants’ failure to exhaust

administrative remedies cannot be excused due to futility.

       Appellants next contend that the DPNR committed a clear statutory violation, in

failing to hold a public hearing prior to permitting the tower, thus excusing the failure to

pursue administrative remedies. We agree with the District Court that Appellants have

                                              8
not shown a “clear and unambiguous violation” of statutory rights. See LaVallee, 866

F.2d at 621. 29 V.I.C. § 294a, establishes that: “[u]pon receipt of a completed

application and all documentation required for a wireless support structure or substantial

modification of an existing structure, the Department shall hold a public hearing on the

application no later than 60 days after receipt of a completed application.” The parties

disagree as to whether this section is applicable to a renewed construction permit such as

that obtained by InSite in January 2012. In fact, the statute says nothing about whether

hearings are required for towers that had already been permitted.

       Previously permitted towers are explicitly addressed by the regulations

accompanying the statute. 29 V.I. A.D.C. § 2-12(b) states that, “[a] wireless support

structure or wireless facility permitted prior to the promulgation of these regulations shall

remain permitted under these regulations provided however that such structures shall

conform to applicable regulation requirements within six (6) months of adoption . . . .”

This compliance is achieved by having an engineer explain how the tower will come into

compliance with the new regulations, including information such as the “[d]ate the

wireless support structure was constructed;” “[d]etails on the current structural integrity

of the wireless support structure;” and “[d]etails on the current capacity of the wireless

support structure . . . .” Id. at §§ 2-12(b)(1)(B), (D)-(E). These regulations do not

mention the public hearing requirement as applicable to previously permitted towers.2



2
 These regulations may also be limited in their application to previously permitted towers
where the towers themselves were built before the regulations became effective.
However, this is not entirely clear.
                                              9
       To reiterate, given the absence of any directive concerning public hearings and

previously permitted towers, we find no “clear and unambiguous violation” of statutory

rights. See LaVallee, 866 F.2d at 621. We have held that where the “lawfulness of

the . . . conduct is far from clear and unambiguous,” it is “precisely the sort of question

that would have benefited from administrative review . . . .” PennMont Sec. v. Frucher,

586 F.3d 242, 247 (3d Cir. 2009). Especially in this instance, concerning a new,

ambiguous statute and accompanying regulations, we find that the DPNR is best

positioned to evaluate Appellants’ claims in the first instance. Thus, we will not excuse

Appellants’ failure to exhaust administrative remedies because of a statutory violation.3

       Similarly, with regard to Appellants’ constitutional arguments, we find no “clear

and unambiguous” constitutional violation. The District Court correctly noted that “[i]n

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.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

We find that Appellants have failed to pursue an appeal before the BLUA and

accordingly cannot now claim a procedural due process violation.

       We also agree that Appellants have not shown a substantive due process violation.

The District Court properly found that government action must “shock the conscience” to

state such a claim. See United Artists Theatre Circuit, Inc. v. Twp. of Warrington, PA,

316 F.3d 392, 399 (3d Cir. 2003). Appellants’ claim – that the DPNR failed to provide

3
 We can well understand Appellants’ choice to seek a court order when the tower
appeared to be constructed with notice given by InSite so belatedly. It is likely that an
appeal to the BLUA at the time would have appeared to be an unsatisfactory remedy.
                                             10
adequate pre-deprivation procedures prior to approving construction – does not rise to the

level of conscience-shocking. See Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 286 (3d

Cir. 2004). Accordingly, there is no “clear and unambiguous” violation of constitutional

rights at issue, and Appellants cannot be excused for failure to pursue administrative

remedies on this ground.

       We therefore affirm the judgment of the District Court, as it concerns Appellants

claims against the DPNR, such that those claims are dismissed for failure to exhaust

administrative remedies.4

       C. Preemption

       Appellees’ argument warrants only brief mention. Appellees argue that because

the Federal Telecommunications Act preempts tort-based claims involving cellular

radiation, those parts of the Complaint invoking radiation as a harm are necessarily

preempted. Further, Appellees claim, because all alleged injuries are incorporated in

each substantive count, it is impossible to determine whether the Complaint can stand

without the radiation allegations, and as such the entire Complaint must be dismissed.

       In El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999), the Supreme

Court held that “absent a cross appeal, an appellee . . . may not ‘attack the decree with a

view either to enlarging his own rights thereunder or of lessening the rights of his

adversary.’” Similarly, in New Castle County v. Hartford Accident and Indemnity Co.,


4
 We leave the decision of whether to hold the retained InSite claims in abeyance,
pending the outcome of administrative proceedings, to the sound discretion of the District
Court.

                                             11
933 F.2d 1162, 1206 (3d Cir. 1991) (abrogated on other grounds), we held that, “[i]f . . .

an appellee aspires to alter the trial court’s decision (either increasing its rights or

decreasing those of its opponent), a cross-appeal is required.” Appellants note that here,

a finding of preemption would not simply affirm the District Court’s ruling of a dismissal

without prejudice, but expand it into a dismissal on the merits with prejudice.

       We think it plain that a finding of preemption on appeal would alter the District

Court’s decision, decreasing the rights of Appellants, such that a cross-appeal was

required. Appellees’ preemption argument is accordingly rejected as improperly raised.

       IV. Conclusion

       For the reasons set forth above, we affirm in part and reverse in part the judgment

of the District Court. We will remand the case for further proceedings consistent with

this opinion.




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