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Athens Cellular, Inc. v. Oconee County

United States District Court, M.D. Georgia, Athens Division

January 26, 2015

OCONEE COUNTY, GEORGIA; THE OCONEE COUNTY BOARD OF COMISSIONERS; MELVIN DAVIS, individually and in his official capacity as Chairman of the Oconee County Board of Commissioners; JIM LUKE, JOHN DANIELL, MARGARET HALE, and MARK SAXON, individually and in their official capacities as members of the Oconee County Board of Commissioners, XXXXXXXXXXXXXXX Defendants.


CLAY D. LAND, Chief District Judge.

Athens Cellular, Inc., d/b/a Verizon Wireless ("Verizon") claims that Oconee County, Georgia violated the Telecommunications Act of 1996 ("Act"), 47 U.S.C. §§ 332(c) (7) (B) (i) (II) and (iii), when it denied Verizon's application to construct a cellular communications tower. Verizon filed the present action to overturn that denial. (ECF Nos. 1, 21). But it did so too late, and therefore, this action must be dismissed as untimely for the reasons explained in the remainder of this Order.


Verizon had a problem: it could not provide adequate wireless service to a portion of Oconee County, Georgia. It also had a solution: constructing a 199-foot cell tower in a remote portion of Oconee County. To construct the tower, Verizon had to apply to the Oconee County Board of Commissioners ("Board") for a special use permit. See Oconee County Unified Development Code, ECF No. 20-18 at 8. The Board held a public hearing regarding Verizon's application on August 5, 2014. At the hearing, Verizon's counsel spoke about the need for a new tower. Several residents then spoke in opposition to the tower, and the Board voted 2-1 to deny the application. On the same day, the Board also signed a one-sentence decision stating that it denied Verizon's application. The County never mailed that decision to Verizon or posted it on the county website. Moreover, no local ordinance informs an applicant how to obtain a copy of the Board's written decision.

Although Verizon struggled to learn the procedure for obtaining a decision, the present record certainly does not suggest that the County attempted to hide its official decisions or hinder someone's search for them. Unbeknownst to Verizon, the County, for approximately thirty years, has required the county clerk to save the Board's written decisions in a series of books stored in the clerk's office. As a public record, the written decision is available to the public on request. If a request is made by a party that does not own the property that is the subject of the decision, the clerk's practice is to require an open records request before delivering the decision.

The undisputed evidence establishes that the County followed its customary procedure here. After the chairperson of the Board promptly reviewed the Board's decision to deny Verizon's application, the clerk placed the decision in the record book on August 7, 2014-just two days after the Board orally voted to deny Verizon's application. Although Verizon was well aware that the County had denied its application at the public hearing, it was unaware of the County's custom of publishing such written denials in the record book, and it did not ask the clerk for a copy of the written decision.

In addition to maintaining a copy of the Board's decision in the record book, the clerk forwarded the written decision to the Oconee County zoning and planning department on August 6, -. The zoning department also kept a copy of the decision in its file. Thus, had it known to ask, Verizon also could have obtained a copy of the written decision from the zoning department as of August 6, 2014.

Verizon, apparently unsure of precisely how to obtain a copy of the written decision, conferred with a consultant who it thought was familiar with the County's zoning procedures. The consultant advised Verizon that after the Board holds a hearing where it orally votes on a zoning application, "[t]he written decision of the Board. is typically not sent to the applicant until after the Board... approves the minutes of the meeting at which the decision was made." Beall Aff. ¶ 15, ECF No. 29. This advice lured Verizon into thinking that the written denial would not be available until the Board finalized the meeting minutes. So instead of diligently seeking alternative access to the written decision, which may have led Verizon to the clerk's record books or the zoning department files, Verizon focused on the meeting minutes. This was a mistake.

On August 28, 2014, Verizon asked the clerk's office when the Board would approve the minutes from the August 5 hearing. The clerk's office responded that the Board would approve the minutes at the start of its next meeting on September 2, 2014. Verizon subsequently saw that the Board approved the minutes from the August 5 hearing and that those minutes referenced the Board's decision denying Verizon's application. Then Verizon requested the written denial from the clerk. Because Verizon did not own the property for the proposed cell tower site, the clerk, as was its custom, advised Verizon that it needed to make a formal request pursuant to the Open Records Act. Verizon made a request and received the written decision on September 10, 2014.

On September 24, 2014, fifty days after the oral denial of its permit application and forty-eight days after the written denial was placed in the clerk's record book, Verizon filed the present action to overturn the County's denial of its permit application. Verizon claims that the denial violates the Telecommunications Act because it is not supported by substantial evidence contained in the written record, as required by 47 U.S.C. § 332(c) (7) (B) (iii), and because it has the effect of prohibiting access to personal wireless services in violation of § 332 (c) (7) (B) (i)(II). The County seeks dismissal of this action as untimely because it was not filed within thirty days of the County issuing a written decision, as required by the Act.


I. Verizon's Complaint is Untimely

The Telecommunications Act states: "Any person adversely affected by any final action... by a State or local government... that is inconsistent with this subparagraph may, within 30 days after such action... commence an action in any court of competent jurisdiction." Id. § 332(c) (7) (B)(v). The plain language of the statute requires an aggrieved party to bring its appeal within thirty days of the "final action" of which the aggrieved party complains. Although the Act does not define the phrase "final action, " the Eleventh Circuit has. "Final action" means the "state or local authority's issuance of its decision in writing." Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1218 (11th Cir. 2002). Therefore, to be timely, Verizon must have filed the present action within thirty days of the County's issuance of its decision in writing.

The parties disagree on the meaning of the term "issuance" in the Eleventh Circuit's definition of final action. The County argues that issuance refers to the County reducing its decision to writing. When that occurred, its oral denial became a final action, and the statute of limitations began running. Verizon maintains that issuance requires some conveyance of the written decision to the applicant. Thus, the statute of limitations should not begin to run until the ...

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