Athens Cellular, Inc. v. Oconee Cnty.

• Decision Date: 02 April 2018
• Docket Number: No. 15-12067,15-12067
• Citation: 886 F.3d 1094
• Parties: ATHENS CELLULAR, INC., d.b.a. Verizon Wireless, Plaintiff–Appellant, v. OCONEE COUNTY, GEORGIA, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

886 F.3d 1094

ATHENS CELLULAR, INC., d.b.a. Verizon Wireless, Plaintiff–Appellant,

v.OCONEE COUNTY, GEORGIA, et al., Defendants–Appellees.

No. 15-12067

United States Court of Appeals, Eleventh Circuit.

April 2, 2018

Charles F. Palmer, William Middleton Droze, Brian P. Watt, Troutman Sanders, LLP, Atlanta, GA, for Plaintiff–Appellant.

Thomas M. Mitchell, Regina Benton Reid, Carothers & Mitchell, LLC, Buford, GA, for Defendants–Appellees.

Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN,^* District Judge.

TJOFLAT, Circuit Judge:

Congress enacted the Telecommunications Act of 1996 ("the TCA") to "promote competition and higher quality in American telecommunications services [and] encourage the rapid deployment of new telecommunications technologies" by, among other things, "reduc[ing] impediments imposed by local governments" to the installation of wireless communications facilities. City of Rancho Palos Verdes v. Abrams , 544 U.S. 113, 115, 125 S.Ct. 1453, 1455, 161 L.Ed.2d 316 (2005). Although state and local governments retain "the authority ... over decisions regarding the placement, construction, and modification of personal wireless service facilities," 47 U.S.C. § 332(c)(7)(A), their decisionmaking is subject to certain substantive and procedural limitations. For example, "[t]he regulation of the placement, construction, and modification of personal wireless service facilities ... shall not unreasonably discriminate among providers of functionally equivalent services; and ... shall not prohibit or have the effect of prohibiting the provision of [such] services." Id. § 332(c)(7)(B)(i)(I)–(II). "A State or local government ... shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time ..., taking into account the nature and scope of such request." Id. § 332(c)(7)(B)(ii). And "[a]ny decision ... to deny a request [for such authorization] shall be in writing and supported by substantial evidence." Id. § 332(c)(7)(B)(iii). Congress imposed these limitations on the local permitting process for the construction of cellular communications towers in order to facilitate broader extension of wireless services to the American people. See Abrams , 544 U.S. at 115, 125 S.Ct. at 1455.

The denial of a request for authorization to construct a cellular communications tower, if made in derogation of the § 332(c)(7)(B) limitations, is subject to challenge in federal court. "Any person adversely affected by any final action by a State or local government ... that is inconsistent with [ § 332(c)(7)(B)'s limitations] may, within 30 days after such action ..., commence an action in any court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v).

Verizon brought this lawsuit against Oconee County, Georgia, and the Oconee County Board of Commissioners ("the Board") to challenge the decision of the Board denying its application for a special use permit to construct a cellular communications tower.¹ Verizon alleged that the Board's decision had the effect of prohibiting its provision of personal wireless services, in violation of § 332(c)(7)(B)(i)(II) ; and that it was not supported by substantial evidence, as required by § 332(c)(7)(B)(iii). Verizon asked the Court to issue an injunction requiring the Board to issue the permit it seeks.² The County, answering Verizon's complaint on behalf of itself and the Board, denied Verizon's allegations and asserted twelve affirmative defenses. A single affirmative defense, the eleventh, is pertinent here: the County alleged that the District Court lacked jurisdiction because Verizon did not file suit within the TCA's thirty-day limitations period.

The District Court, after considering the parties' submissions relating to that affirmative defense, dismissed the action as time-barred, reasoning that the thirty-day limitations period began to run when the Oconee County Clerk ("the Clerk"), pursuant to custom, entered a document evidencing the Board's vote in the County's Ordinances and Resolutions books.³ Verizon now appeals the Court's decision.

The question in this appeal is whether the TCA's statute of limitations began to run when the Clerk entered a document in the Ordinances and Resolutions books or when the Board formally approved the minutes of the meeting at which it had voted to deny the application. The District Court chose the former event. We reverse. ⁴

I.

A.

On May 30, 2014, Verizon submitted an application to the Oconee County Planning Department for a Special Use Permit to construct a cellular communications tower that would enhance its wireless service. The Planning Department staff found that Verizon's proposal met the requirements of the Oconee County Unified Development Code ("County Code") and recommended conditional approval of Verizon's application. The application proceeded on to the Oconee Planning Commission, which held a public hearing on the application on July 21, 2014, and subsequently recommended its denial. Verizon's application, along with the Planning Commission's recommendation, then continued automatically to the Board for consideration. See County Code § 12.08.03.

At its regular monthly meeting on August 5, 2014, the Board held a public hearing on Verizon's application. The Board heard from Verizon's attorney and several concerned residents who opposed granting the permit. The Commissioners then voted two to one to deny the application.⁵ After the meeting adjourned that day, the Commissioners signed a document entitled "Action Denying Special Use Approval Request" ("the Document").⁶ Below a description of Verizon's application,⁷ the Document simply read: "After consideration and a motion and second, the Oconee County Board of Commissioners does hereby deny the above-referenced request for Special Use Approval." The Clerk then forwarded a copy of the Document internally to the Oconee County planning and zoning department on August 6, 2014. The planning department kept that copy in its file. On August 7, after the Board Chairman reviewed the Document, the Clerk placed a copy of the Document in the Ordinances and Resolutions books (specifically, in Book 20), according to "customary procedure."⁸

On September 2, 2014, at its regular monthly meeting, the Board approved the minutes of the August 5 meeting at which it had voted on Verizon's application.⁹ On September 5, Verizon asked the Clerk for a copy of the minutes of the August 5 meeting. The Clerk responded that the minutes were available on the County's website. That same day, Verizon accessed the website and obtained a copy of the minutes. The minutes stated that the Board voted to deny the application and included the following reference: "See Documentation in Ordinances and Resolutions Book No. 20 ." (bold and italics in original). However, this "documentation," i.e. , the Document, was not included in the minutes.¹⁰

Verizon again contacted the Clerk and this time requested a copy of the "documentation" referred to in the August 5 minutes. The Clerk told Verizon that it would have to file a formal Open Records Request pursuant to the Georgia Open Records Act, O.C.G.A. § 50-18-71, to receive a copy, as it did not own the property affected by the decision.¹¹ Verizon submitted the Open Records Request on September 5, and on September 10 received a copy of the Document.

B.

Verizon filed this action on September 24, 2014. In its answer to Verizon's complaint, the County asserted that the complaint was untimely. The County argued that the relevant "final action" triggering the thirty-day limitations period occurred when the Board executed the Document on August 5. Thus, according to the County, Verizon's suit, filed fifty days later, was time-barred.

Verizon responded that the County had misidentified the Board's "final action." The final action occurred when it received notice that the Board's written decision was available. Verizon was not alerted to the existence of the Document until it read the minutes of the August 5 Board meeting, which the Board approved on September 2. Verizon did not receive a copy of the Document until September 10, in response to its September 5 Open Records Request. Accordingly, a "final action" triggering the thirty-day limitations period could not have occurred before September 2, at the earliest. Its lawsuit, Verizon argued, was thus timely.

The District Court was not persuaded. According to the Court, the "final action" occurred when the Clerk placed the Document in Book 20 on August 7, 2014.¹² The Court therefore concluded that the thirty-day limitations period expired before Verizon filed this action on September 24,¹³ and that Verizon's lawsuit was therefore untimely.¹⁴

II.

In granting entities such as Verizon the statutory right to judicial review of a local government's "final action" regarding their applications, Congress created a property right, a cause of action, protected by the due process clause of the Fourteenth Amendment. See Logan v. Zimmerman Brush Co. , 455 U.S. 422, 429, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265 (1982) ("[A] cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause.") (citing Mullane v. Cent. Hanover Bank & Tr. Co. , 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) ).

Here, Verizon's right to challenge the Board's denial of its permit application would materialize once two events occurred: first, the Board had to "issue" a written decision memorializing the vote it took at its August 5, 2014, monthly meeting; second, that decision had to become a "final action" under the TCA.¹⁵ Verizon could not exercise its right without notice of these two events. Concordantly, the County's procedures could not hinder Verizon's acquisition of such notice, because that would obstruct the TCA's judicial review scheme. Cf. Roswell , 574 U.S. at ––––, 135 S.Ct. at 815 (observing that "a locality cannot stymie or burden the judicial review...