Agenda - Planning Commission - 06/07/2018

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May 25, 2018 I Volume 12 I Issue 10 Zoning Bulletin Verizon appealed. On appeal, Verizon contended that the TCA's stat- ute of limitations began to run after September 2, 2014, when the Board formally approved the minutes of the August 5 meeting at which it had voted to deny the Permit. DECISION: Judgment of district court reversed, and matter remanded. Agreeing with Verizon, the United States Court of Appeals, Eleventh Circuit, held that the TCA's 30-day statute of limitations period for challenging the Board's denial of Verizon's Permit did not begin to run until the denial became a "final action" —which occurred on September 2, 2014, when the Board approved the minutes of the August 5 meeting at which the Permit was denied. In so holding, the Eleventh Circuit looked to the TCA, Georgia law, and the County Code for their guidance on when a local permitting de- cision becomes a "final action" —thus starting the 30-day clock under the TCA. The court said that "[o]nly when an applicant receives suf- ficient notice does [a local board's] decision become `final,' and only then can the thirty -day [TCA] clock begin to run." The court found that the TCA provided "no express answer" as to when an action is "final" and the 30-day clock begins. Still, the court determined that although Congress "did not explicitly instruct local governments to provide ag- grieved parties with `actual notice' of the issuance of their final permit- ting decisions and where the decision might be found, it could not have intended that aggrieved parties receive no notice at all, because that would effectively deprive the parties of their right to judicial review under [the TCA] 47 U.S.C.A. 332(c)(7)(B)(v)." Looking further, the Eleventh Circuit noted that the United States Supreme Court had defined "final action" under the TCA as "the issuance of the written no- tice of denial," thus signifying that the high Court understands the TCA to require "notice." Moreover, the Eleventh Circuit noted that the United States Supreme Court had further enumerated that for agency action to become final, two conditions must be met: "First, the action must mark the consummation of the agency's decision making pro- cess —it must not be of a merely tentative . . . nature[;] [a]nd second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Next, consulting Georgia law and the County Code, the court concluded that Georgia's Open Meetings Act dictated the procedures for "final action" on zoning decisions —thus providing "constructive notice" to zoning applicants (such as Verizon, here) as to when an ap- plication denial would be "final." Georgia's Open Meeting Act required: a written summary of "subjects acted on" at meetings; minutes of the meeting to be prepared and "promptly recorded"; a vote on whether to approve those minutes at the board's "next regular meet- 10 ©2018 Thomson Reuters