United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
THOMAS W. THRASH, Jr. District Judge.
This is a case in which the Plaintiff T-Mobile South LLC is claiming that the Defendant DeKalb County, Georgia violated the Telecommunications Act of 1996 when it refused to grant the Plaintiff a permit to construct a new cell tower. It is before the Court on the Plaintiff's Motion for Summary Judgment [Doc. 50] and the Defendant's Motion for Summary Judgment [Doc. 52]. For the reasons set forth below, the Plaintiff's Motion for Summary Judgment [Doc. 50] is DENIED, and the Defendant's Motion for Summary Judgment [Doc. 52] is GRANTED.
T-Mobile claims that it is currently unable to provide reliable wireless coverage to a particular area of DeKalb County, and that it needs to construct an additional cell tower to rectify this problem. Because there is no pre-existing structure in the area that would meet the required specifications,  T-Mobile's engineers investigated several locations for the new cell site. They ultimately decided that Lakeside High School's property would be an ideal location. On October 10, 2012, T-Mobile entered into a leasing agreement with the DeKalb County School District. Under this agreement, the School District leased a parcel of land on Lakeside High School's property to T-Mobile for the construction of a cell tower. The agreement also allows the School District to install lighting equipment on the tower.
On March 29, 2013, T-Mobile submitted an application to the DeKalb County Department of Planning & Sustainability ("Planning Department") for a permit to build the cell site. On April 26, 2013, the Land Development Division for DeKalb County - via e-mail - requested additional information from Whitney Gill, a specialist who helped T-Mobile prepare its permit application. On June 13, 2013, Gill responded to this request by delivering additional documents. Then, on September 13, 2013, T-Mobile received an e-mail with an unsigned land development permit attached. The e-mail indicated that T-Mobile's submitted plans had been approved, and that it needed to have three copies of the permit signed by the School District before the permit could be presented to the Planning Department Representative for final signatures. However, on September 16, 2013, the Defendant's interim-CEO Lee May wrote a letter to the Director of the Planning Department "directing [him] to consider T-Mobile's permit application incomplete until it demonstrates compliance with applicable zoning regulations." A few days later, T-Mobile received a letter which stated in part:
Due to the policy of the interim CEO, it has been determined that T-Mobile's application is "incomplete" and must follow the county's established zoning requirements.
While it is true that property owned by a government agency can be exempt from zoning laws if the property is used for a governmental purpose; it does not appear that the proposed T-Mobile tower meets this requirement. Also, this school property is currently zoned Residential and would require rezoning to a Non-residential zoning district in order to allow for the construction of a cell tower.
T-Mobile brought suit against the Defendant DeKalb County under the Telecommunications Act, claiming that (1) the Defendant denied T-Mobile's permit request without substantial evidence in violation of 47 U.S.C. § 332(c)(7)(B)(iii), (2) the Defendant failed to respond to T-Mobile's permit request "within a reasonable period of time" in violation of 47 U.S.C. § 332(c)(7)(B)(ii), and (3) the Defendant is effectively "prohibiting the provision of personal wireless services" in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). In addition, the Plaintiff requests an injunction requiring the Defendant to grant the requested permit. Both parties now move for summary judgment.
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. The court should view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. A "mere scintilla' of evidence supporting the opposing party's position will not suffice; there must be a sufficient showing that the jury could reasonably find for that party."
A. Counts I (Substantial Evidence) and III (Effective Prohibition)
The Defendant argues that Counts I and III are not ripe because the Defendant has not rendered a final decision as to whether the cell tower may be built. The Defendant points out that T-Mobile may still be allowed to construct the cell tower despite the Planning Department's determination that the local zoning regulations apply to the proposal. Article III of the Constitution "limits the jurisdiction of the federal courts to actual cases or controversies and requires [the Court] to consider whether a plaintiff's claims are ripe." The question of ripeness "turns on the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Essentially, the Court is determining whether "the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decisionmaking." The Telecommunications Act effectively codifies the ripeness requirement by providing a cause of action to "[a]ny person adversely affected by any final action ... by a State or local government or any instrumentality thereof that is inconsistent with [47 U.S.C. § 332(c)(7)]." Thus, the Court must determine whether the Defendant has engaged in a "final action" denying the Plaintiff's request to construct a cell tower.
In interpreting the term "final action, " the First Circuit's holding in Omnipoint Holdings, Inc. v. City of Cranston is instructive: "A final action... by a... local government or any instrumentality... must be one that marks the consummation of the instrumentality's decisionmaking process." The First Circuit reasoned that "we assume Congress knew the content of background law when legislating, " and that a final agency action generally means a "final ...