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9 <br />3. Municipalities must act on a request to place wireless facilities within a <br />reasonable time. In Minnesota, the 60 -day rule governing local zoning decisions <br />establishes such a reasonable time. <br />4. Any denial of a request to "place, construct or modify" wireless facilities must be: <br />a. In writing, and <br />b. Supported by "substantial evidence contained in a written record." <br />These requirements are largely consistent with the requirements applicable to any local <br />zoning decision. <br />II. LEASE OF CITY PROPERTY <br />Section 704 does not require the City to lease its property to a second wireless provider <br />simply because the property was previously leased to another provider. While Section <br />704(a)(7)-- titled "Preservation of Local Zoning Authority"-- prohibits discrimination, <br />this prohibition relates to local zoning/regulatory authority not to proprietary activities <br />such as the leasing of municipal property. <br />• Conversely, Section 704(c)(not codified) requires that property owned by the federal <br />government be made available to wireless providers. There is no corresponding <br />provision mandating that state or local government property be made available to <br />wireless providers. Rather, the last sentence of Section 704(c) requires the FCC to <br />"provide technical support to States to encourage them to make property, rights-of-way, <br />and easements under their jurisdiction available for" wireless providers. <br />The City's decision whether to lease to a second provider is not subject to review under <br />Section 704. Notwithstanding, as a matter of general municipal law, the City should not <br />refuse to lease property for a purely discriminatory reason or for no reason at all. <br />III. STANDARD FOR DECISIONS UNDER SECTION 704 <br />Disputes concerning local zoning and regulation of wireless facilities are typically <br />litigated in federal court. Although there has been a great deal of litigation nationwide, <br />the 8thCircuit Court of Appeals has not yet decided any cases addressing Section 704. <br />However, the federal court for the district of Minnesota has decided several such cases. <br />Unfortunately, the court has interpreted Section 704 as imposing significant limitations <br />on local zoning authority. <br />A. Substantial Evidence <br />• The federal circuit courts of appeal are split concerning whether the local government has <br />the burden of proving that a zoning denial is supported by substantial evidence. <br />RJV.249325v1 2 <br />NE136-8 <br />