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Verizon Wireless Tennessee Partnership v. Desoto County

United States District Court, N.D. Mississippi, Oxford Division

December 3, 2018

VERIZON WIRELESS TENNESSEE PARTNERSHIP d/b/a VERIZON WIRELESS PLAINTIFF
v.
DESOTO COUNTY, MISSISSIPPI; DESOTO COUNTY BOARD OF SUPERVISORS; JESSIE MEDLIN, MARK GARDNER, BILL RUSSELL, LEE CALDWELL, and MICHAEL LEE in their official capacities as members of the DeSoto County Board of Supervisors, DEFENDANTS

          ORDER

          MICHAEL P. MILLS U.S. DISTRICT COURT.

         Plaintiff Verizon Wireless and defendant Desoto County, Mississippi, as well as the members of its Board of Supervisors, have each filed various motions to dismiss, and/or for summary judgment in this case. The court, having considered the memoranda and submissions of the parties, is prepared to rule.

         Verizon filed the instant action under the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7), (the "TCA" or “the Act”), alleging that defendant Desoto County (“the County”), acting through its Board of Supervisors, violated federal law by denying it permission to construct a wireless telecommunications tower. Verizon alleges (and the County denies) that a gap exists in its cell phone coverage in the area which requires the building of an additional wireless tower. Verizon accordingly filed, on or about October 4, 2017, a conditional use application to build a one hundred and ninety (190) foot monopole wireless communications tower in western Desoto County. The Desoto County Board of Supervisors (“the Board”) held a public hearing on Verizon's application on December 18, 2018, following which it unanimously voted to deny the application.

         In seeking for this court to overturn the Board's decision, Verizon relies upon the TCA's provision that:

Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.

47 U.S.C. § 332(c)(7)(B)(v). In seeking dismissal of this lawsuit, the County focuses upon timeliness issues, arguing that Verizon failed to file this action within the thirty-day period set forth in § 332(c)(7)(B)(v). In considering this argument, this court notes that the U.S. Supreme Court recently held that the thirty-day period to commence an action under the TCA begins to run upon the issuance of the written denial required by the Act. T-Mobile S., LLC v. City of Roswell, Ga., 135 S.Ct. 808, 817 n. 4 (2015) ("The relevant 'final action' is the issuance of the written notice of denial.”). In its initial brief, the County argued that the thirty-day period began running upon the Board's December 18 vote, but, in response to Verizon's citation to Roswell, it appears to have receded from this position.

         In its reply brief, the County appears to acknowledge that, in light of Roswell, the Board's December 18, 2017 vote denying Verizon's application did not, in fact, trigger the running of the thirty-day limitations period. [Reply brief at 3]. The County nevertheless argues, however, that the filing of the instant lawsuit on February 20, 2018 was untimely, inasmuch as, it contends, the Board provided written notice of its denial on January 2, 2018, when it published the written minutes of its December 18 meeting. In this vein, the County cites the Supreme Court's statement in Roswell that “detailed meeting minutes” may suffice to meet the “written notice of denial” requirement. Roswell, 135 S.Ct. at 816.

         This court regards the County's argument as being a reasonable one in light of Roswell, and, if the record did not include a much clearer, and better, candidate for its “written notice of denial, ” then it might well agree that this action is untimely. As it happens, however, Verizon has submitted a January 22, 2018 document which, it seems clear to this court, was intended to be the County's definitive written denial of its application. Unlike the board minutes, which covered a wide range of topics dealt with by the Board at its December 18 session, the January 22, 2018 document signed by board president Mark Gardner dealt solely with Verizon's application, and it was, by all indications, intended to be its formal written denial of same.

         The January 22 document initially notes that the Board held a December 18 meeting to consider Verizon's appeal of the initial denial of its petition by the County's Board of Adjustment. The document then sets forth the Board's reasons for rejecting Verizon's application, including its findings that:

1. There is insubstantial proof as to whether there exists a cap in overage for the area to be serviced by the proposed cell tower;
2. There is insubstantial proof as to whether existing towers could or could not be enhanced so as to provide improved service to the area;
3. There is not sufficient evidence, there will be significant aesthetic effects to community [sic.]
4. The no build zone of 142.5 feet, set forth in the Desoto County Zoning Ordinance, has not been met, as the distance to property line of the James' property is 137 feet, and the first outbuilding is 178 feet away and tower is 190 feet;
5. The construction of the tower will adversely affect the drainage in this area. [January 22, 2018 document at 1]. The January 22 document then concludes with language which, it seems clear to this court, was intended to ...

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