ATHENS CELLULAR INC v. OCONEE COUNTY GEORGIA et al

Filing 35

ORDER dismissing Complaint 1 filed by ATHENS CELLULAR INC. as untimely. Ordered by U.S. District Judge CLAY D LAND on 1/26/15. (VAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
ATHENS CELLULAR, INC., d/b/a
VERIZON WIRELESS,

*
*

Plaintiff,
*
vs.

CASE NO. 3:14-CV-87 (CDL)
*

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,
Defendants.

*
*
*
*
*
*
*

O R D E R
Athens Cellular, Inc., d/b/a Verizon Wireless (“Verizon”)
claims

that

Oconee

Telecommunications

County,

Act

of

U.S.C. §§ 332(c)(7)(B)(i)(II)
Verizon’s
tower.
denial.

application
Verizon
(ECF

to

filed

Nos.

1,

Georgia

and

construct

the
21).

present
But

violated

1996
(iii),
a

it

(“Act”),
when

cellular

action
did

the

to
so

it

47
denied

communications
overturn
too

late,

that
and

therefore, this action must be dismissed as untimely for the
reasons explained in the remainder of this Order.

BACKGROUND
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

it

to

Verizon

or

posted

on

the

county

website.

Moreover, no local ordinance informs an applicant how to obtain
a copy of the Board’s written decision.
Although
obtaining

a

Verizon
decision,

struggled
the

to

present

learn
record

the

procedure

certainly

does

for
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.

2

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

followed its customary procedure here.
the

Board

Verizon’s

promptly

reviewed

application,

the

the

clerk

that

the

County

After the chairperson of

Board’s
placed

decision

the

to

decision

deny

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,
2014.

The zoning department also kept a copy of the decision in

its file.
obtained

Thus, had it known to ask, Verizon also could have
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.

3

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.”
ECF No. 29.

Beall Aff. ¶ 5,

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.
requested the written denial from the clerk.

Then Verizon
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.

4

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

Telecommunications
substantial

claims

Act

evidence

that

because

contained

the

it
in

denial

violates

the

not

supported

by

is
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.
DISCUSSION
I.

Verizon’s Complaint is Untimely
The Telecommunications Act states:

affected

by

any

final

government . . . that

is

“Any person adversely

action . . . by
inconsistent

a

with

State
this

or

local

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

5

which the aggrieved party complains.
define

the

phrase

“final

Although the Act does not

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 written decision
is mailed, distributed, or published in a way that gives the
applicant actual notice of the written decision.
Although

public

policy

considerations

could

support

a

requirement that the aggrieved party receive actual notice of
the

permit

Nowhere

denial,

does

the

Congress
Act

did

state

not

that

adopt

denial

such
must

a

policy.

be

mailed,

distributed, or posted in some manner designed to provide actual
notice

to

the

aggrieved

party.

Indeed,

the

United

States

Supreme Court recently emphasized that the Act “does not use any

6

verb at all to describe the conveying of information from a
locality to an applicant; it just says that a denial ‘shall be
in writing and supported by substantial evidence contained in a
written record.’”

T-Mobile S., LLC v. City of Roswell, Ga.,

No. 13-975, 2015 WL 159278, at *8 (Jan. 14, 2015) (quoting 47
U.S.C.

§ 332(c)(7)(B)(iii)).

localities
“Putting

to
the

memorialize
decision

in

Congress

their

final

writing

is

simply
actions

the

last

instructed
in

writing.

action

the

authority is statutorily required to take,” and therefore, an
aggrieved party must file its complaint within thirty days of
the local government writing its decision.

Preferred Sites, 296

F.3d at 1217; see also T-Mobile S., 2015 WL 159278, at *7 n.4
(explaining that the statute of limitations is triggered simply
by issuing the decision, not the reasons for that decision).
Nothing in the Act suggests that what the County did here—filing
the

written

decision

in

the

County

record

book

and

zoning

department files where it was available for public review—ran
afoul of the Act.1

1

The Court does not need to decide what happens if a written decision
is not available, on reasonable inquiry, to the public or the
aggrieved party.
The present record clearly establishes that the
written decision was available had Verizon simply asked the clerk for
it.
The Court further finds that the County’s procedures satisfy
procedural due process.
Verizon received a public hearing where it
was allowed to present its permit application. The Board voted at a
public meeting to deny the permit application giving Verizon actual
notice of its action.
The County then reduced its decision to
writing, as required by the Act, and placed that writing in the

7

In summary, the Board issued its written decision denying
Verizon’s application on August 5, 2014.
was

available

to

the

public

no

later

The written decision
than

August

7,

2014.

Verizon did not file its complaint until fifty days after the
Board put its decision in writing.

Therefore, this action is

untimely.
II.

Equitable Tolling Does Not Apply
Because Verizon failed to file the present action within

thirty

days

of

the

Board’s

“final

action,”

the

Court

dismiss this action unless equitable tolling can save it.
requirements

in

lawsuits

between

private

customarily subject to equitable tolling[.]”

litigants

must
“Time
are

Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 95 (1990) (internal quotation
marks

omitted).

But

equitable

tolling

is

an

“extraordinary

remedy which should be extended only sparingly.”
United States, 6 F.3d 1474, 1479 (11th Cir. 1993).

Justice v.
Typically,

tolling is available only upon “finding an inequitable event
that

prevented

plaintiff's

timely

action.”

Id.

(internal

quotation marks omitted); see e.g., Baldwin Cnty. Welcome Ctr.
v. Brown, 466 U.S. 147, 151 (1984) (per curiam) (tolling is
appropriate when “a claimant has received inadequate notice”);
Motta ex rel. A.M. v. United States, 717 F.3d 840, 846 (11th

County’s public records which were reasonably available to members of
the public, including Verizon.

8

Cir.

2013)

(internal

quotation

marks

omitted)

(permitting

tolling “when a movant untimely files because of extraordinary
circumstances that are both beyond his control and unavoidable
even with diligence” or “if in the exercise of due diligence,
the claimant nonetheless files a defective pleading during the
statutory period.”).
Equitable tolling is not appropriate “when the plaintiff
does not file [its] action in a timely fashion despite knowing
or being in a position reasonably to know that the limitations
period

is

running.”

Justice,

6

F.3d

at

1279.

Generally,

equitable tolling does not apply “where the claimant failed to
exercise due diligence in preserving his legal rights.”

Irwin,

498 U.S. at 96.
Verizon argues that the Court should toll the statute of
limitations because Verizon was unaware of the written decision
until the Board finalized the meeting minutes on September 2,
2014—just

twenty-two

days

before

it

sued.

Although

Verizon

acknowledges that the written decision was in the clerk’s record
book and

the

zoning department’s file

prior to September 2,

Verizon argues that it could not have possibly known that the
written decision existed because neither the local ordinances
nor the website explained this procedure.

Verizon claims that

it received inadequate notice of the decision because the County
did not mail the decision to Verizon or post it on the county

9

website.

In sum, Verizon contends that it did all it could by

waiting for the Board to approve the meeting minutes.
Although Verizon’s predicament could have been avoided had
the

County

simply

mailed

a

copy

of

the

written

denial

to

Verizon’s counsel, the Court is unpersuaded that Verizon did all
that it could do.

The present record indicates that if Verizon

simply had asked the clerk’s office if the Board had reduced its
decision

to

writing,

it

would

have

been

told

yes.

And

if

Verizon had further inquired into how it could receive a copy of
that

decision,

the

clerk’s

office

would

have

record book and zoning department procedures.

explained

the

Instead of just

asking the clerk for the written decision, Verizon waited for
the Board to approve the meeting minutes.

These circumstances

are not sufficiently extraordinary to authorize the application
of equitable tolling.

See Damren v. Florida, No. 13-15017, 2015

WL 253285, at *4 (11th Cir. Jan. 21, 2105) (confirming that
circumstances must truly be extraordinary to authorize equitable
tolling).
The

Court

acknowledges

that

Verizon’s

argument

for

more

notice may be supported by sound policy considerations; but the
Act simply does not require it.

Adoption of Verizon’s position

would require the Court to re-write the Act.

If the appellate

courts wish to engage in such judicial mischief, so be it.

This

Court has a duty to remain faithful to the plain language of the

10

Act, and consistent with that duty, the Court must dismiss the
Complaint as untimely.
CONCLUSION
Having failed to timely bring its claim, Verizon’s action
must be dismissed.

(ECF Nos. 1, 21).

IT IS SO ORDERED, this 26th day of January, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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