JAMES L. McGUIRE and the TAFUNA RESIDENTS ASSOCIATION,
Petitioners/Appellants,
v.
ZONING BOARD, GOVERNMENT OF
High Court of
Appellate Division
AP No. 19-98
[1]
In order to obtain judicial review of an administrative decision, a potential
plaintiff must exhaust all administrative remedies within the agency.
[2]
The administrative remedies available to an individual aggrieved by a decision
of the Zoning Board consist of an initial hearing and a [3ASR3d18] procedure for reconsideration of the Board’s decision.
[3]
The requirement that a litigant exhaust his or her administrative remedies
before bringing suit is an intensely practical one which may be judicially
excused when the purposes of the requirement would not be served by requiring
adherence.
[4]
Where administrative remedies had been exhausted by entity’s representative,
not formally appearing on behalf of entity but appearing for himself, entity
was nonetheless entitled to judicial review, as purposes behind exhaustion
requirement were met—case was not premature, hearing and reconsideration had
taken place, and Board had ample opportunity to review and reverse its
decision.
[5]
To determine whether a given individual or organization has standing to seek
judicial review of a final administrative decision, the petitioner must
demonstrate that he, she or it has (a) suffered an “injury in fact” and (b) is
arguably within the statute’s “zone of interests.”
[6]
In order to satisfy the “injury in fact” requirement for purposes of standing,
a plaintiff need only be able to identify an injury and demonstrate that he or
she is actually among the injured.
[7]
Where petition alleged that variance would result in drain on water supply and
constitute threat to pedestrian traffic, such allegations were sufficient to
satisfy the “injury in fact” requirement for standing purposes.
[8]
Zoning statutes and regulations are designed to protect the rights of
neighboring land owners.
[9] Where plaintiffs consisted of a resident, and association of
residents, of the neighborhood for which a variance was sought, appellants’
alleged injuries fell squarely within the zone of interests for which the
zoning statutes were sought to protect.
Before KRUSE, Chief Justice,
Counsel: For Appellants, Reginald E. Gates
For Appellee, Marie
A. Lafaele, Assistant Attorney General
ORDER DENYING MOTION TO DISMISS AND ALTERNATIVE MOTION
FOR PARTIAL SUMMARY JUDGMENT
In this action, appellants James L. McGuire (“McGuire”) and the Tafuna Residents Association (“TRA”) seek judicial review
of a variance [3ASR3d19] granted by appellee Zoning Board (“the Board”), an administrative branch
of the American Samoa Government.
On
Facts
On
The initial reconsideration hearing was scheduled for
The Aotearoa variance was
upheld by unanimous vote at the August 19 meeting, and written notice of that
decision was provided by letter of
Discussion
1. Exhaustion of Administrative
Remedies
[1-2] A.S.C.A. § 4.1040(a) explicitly restricts the right
of judicial review to those individuals who have “exhausted all administrative
remedies available within an agency.” Among the remedies available to an
individual aggrieved by a decision of the Zoning Board are an initial hearing
and a procedure for reconsideration, which McGuire clearly invoked by his
letter of
In
reviewing the record, we do find that TRA neglected to participate in the
initial April 9 hearing or to join in McGuire’s June 8 motion for
reconsideration. The hearing minutes reference McGuire only as “another public
member,” and McGuire’s letter requesting reconsideration appears to have been
signed by him only his individual capacity, namely as “Real Estate Appraiser”
and “Residing in Tafuna.” See Document Nos. 9, 22 and 23.[3] On the other hand, as noted above, TRA did
join McGuire’s letter of
[3] As a general rule, the
exhaustion requirement is an “intensely practical” doctrine which may be
judicially excused when “the purposes [3ASR3d21]
of the requirement would not be served by requiring [rigid adherence]” to
the rule. Bowen v.
[T]he doctrine . . . (1) insures against premature
interruption of the administrative process; (2) allow[s] the agency to develop
the necessary factual background on which to base a decision; (3) allow[s]
exercise of agency expertise in its area; (4) provide[s] for a more efficient
process; and (5) protect[s] the administrative agency’s autonomy by allowing it
to correct its own errors and insuring that individuals [are] not encouraged to
ignore its procedures by resorting to the courts.
McGuire
v. Zoning Board, 26 A.S.R.2d 59,
61 (Appellate Div. 1994), quoting South Hollywood Hills Citizens v.
[4] In the instant case, it’s clear that the rationale underlying the
exhaustion requirement would not be served by excluding TRA from this
case. Judicial review is in no way
premature: both the initial hearing and the reconsideration hearing have taken
place, the Board has had every opportunity to review and reverse its decision
as contemplated by A.S.A.C. § 26.0320, and a final decision has been rendered.
Excluding TRA at this stage of the proceedings, when the matter is clearly ripe
for judicial review, would serve no purpose whatsoever. Even if TRA did fail to
exhaust administrative remedies, we find that, under these particular
circumstances, exhaustion is properly excused.[4]
2. Standing
[5] To determine whether a given individual or organization has standing
to seek judicial review of a final administrative decision, this court has
adopted the familiar two-part federal test: petitioners must demonstrate [3ASR3d22] that they have (a) suffered
an “injury in fact” and (b) are arguably within the statute’s “zone of
interests.” Le Vaomatua v. American Samoa Government, 23 A.S.R.2d
11, 13 (citing United States v. Students Challenging Regulatory Agency
Procedures (SCRAP), 412 U.S. 669, 686 (1973); Sierra Club v. Morton, 405
U.S. 727, 733 (1972); California by Brown v. Watt, 683 F.2d 1253, 1270
(9th Cir. 1982) (citing Association of Data Processing Service Organizations
v. Camp, 397 U.S. 150, 151-53 (1970); Barlow v. Collins, 397 U.S.
159 (1970); Glacier Park Foundation v. Watt, 663 F.2d 882, 885 (9th Cir.
1981)).
a. Injury in
Fact
[6] We note at the outset that the injury in fact requirement is an
extremely minimal one; indeed, an “identifiable trifle” will suffice. United
States v. SCRAP, 412
[7] In its brief, the Board states that “the petition seeking judicial
review does not contain any allegation supporting injury in fact to any member
of TRA or to the petitioner, McGuire.” See Appellee’s
Memorandum of Points and Authorities, filed
Moreover, the Board cites no authority for the proposition that
standing must be based solely upon facts which are alleged in the petition
itself. If we look to the entirety of
the record (or simply incorporate much of the record by way of reference in the
petition), additional alleged injuries may be identified, such as the potential
strain on sewage, fire protection, garbage collection, power, telephone and
other services. See, e.g., Document No. 9. These alleged injuries undeniably demonstrate
more than a “mere interest” in the issue, and the injury in fact portion of the
standing test is thereby met.[5] Stow v. United States, 696 F.Supp 857,[3ASR3d23]
862 (W.D.N.Y. 1988) (standing was conferred when property owners residing below
a proposed dam alleged injuries in fact including a drain on their water
supply, risk of physical injury should the dam break, increased noise and air
pollution, and damage to the “aesthetics of the surrounding area”).[6]
b. Zone of
Interests
[8] The second component of the standing test requires that appellants’
alleged injuries in fact fall within the “zone of interests” which the statute
or regulation seeks to protect, an issue of legislative intent. Clarke v.
Securities Industry Assn., 479
[9] As residents of the neighborhood for which a variance is sought,
appellants’ alleged injuries fall squarely within the zone of interests which
those statutes seek to protect. Having alleged injuries in fact which are
within the statutes’ zone of interests, McGuire and TRA have therefore properly
established standing to bring this action
Order
For the foregoing reasons, the Board’s motion to
dismiss and alternative motion for partial summary judgment are denied.
It is so Ordered.
**********
[1] All references to particular documents are as
numbered in the
[2] Pursuant to A.S.A.C. § 26.0320(h), a motion for
reconsideration must be filed in writing within 10 days of the receipt of
the Board’s decision. Although not contested in this case, we note for the
record that McGuire’s motion was therefore timely filed.
[3] It is possible that McGuire introduced himself
at the April 9 hearing as a representative of TRA, as well as a member of the
public (appellants’ petition for review, filed October 2, 1998, notes that “[p]etitioners [plural]
appeared and testified at the April 9, 1998 public hearing,” at ¶
5); unfortunately, we can never know with certainty because the cassette tape
containing the verbatim testimony at that hearing has been inadvertently
erased. While it is true that nothing in
the current law explicitly requires that such tapes be preserved, when a member
of the public specifically requests that a tape be included in the record for
subsequent judicial review—and is assured by the Board that it will be —it is
extremely frustrating to this court to later find that tape unavailable. See Document No. 9. As it turns out, we find ourselves with
sufficient information to rule on this motion, but hope that in the future such
mishaps will be studiously avoided.
[4] In this case, where only injunctive relief is sought,
and where both appellants independently satisfy the standing requirement (as
discussed below), TRA’s continued participation would
appear to be largely symbolic. We can
conceive of a situation in which this would not be the case, however, and we
obviously leave it to future courts to decide whether the exhaustion
requirement should be excused under whatever particular circumstances may
confront them at that time.
[5] In its brief, the Board argues that so-called “procedural
violations” usually cannot constitute injuries in fact. See
Appellee’s Memorandum of Points and Authorities, at
8-9. As discussed above, we find
sufficient non-procedural injuries in this case to meet the injury requirement;
however, we note in passing that one can enforce procedural rights “so
long as the procedures in question are designed to protect some threatened
concrete interest of the person’s that is the ultimate basis of the person’s
standing.” 2 AM. JUR. 2D Administrative Law § 449— Procedural Injury
based on statutory right (1994 & Supp. 1998).
[6] We note also that McGuire, at least, further alleges
potential economic injury. See, e.g., Document No. 25 (the variance would “diminish the
value of my home”). While economic
injuries are not necessary to confer standing, they are nearly always
sufficient for that purpose, even if the economic injury alleged is “minuscule.”
National Automatic Laundry and Cleaning Council v. Shultz, 443 F.2d 689,
693 (D.C. Cir. 1971).