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• However, the Minnesota federal district court has concluded that the local government does bear this burden. Similarly, the federal appellate courts are split regarding whether "generalized concerns" relating to aesthetics and property values may constitute substantial evidence supporting a zoning denial. Some federal appellate courts will consider citizen concerns but all rely heavily on expert testimony. The Minnesota district court has repeatedly rejected citizen concerns and apparently will rely almost exclusively expert evidence- APT Minneapolis, Inc. v. Stillwater Township, Civil No. 00-2500 (JRT/FLN) (D. Minn. June 22, 2001)(denial not supported by substantial evidence despite organized residential opposition, testimony by area real estate experts concerning property values, and requests from two federal agencies for delay or further review); See also, AT&T Wireless Services of Minnesota, Inc. v. City of Maplewood, 1998 WL 634224 (D. Minn. 1998); US West Communications, Inc. v. City of Vadnais Heights, No. 97-2248 (D. Minn. May 15, 1998). Some courts have sustained the following additional reasons for zoning denials: 1. Safety-related issues such as setback/fall-zone requirements; 2. Environmental considerations such as a scenic preservation area, established community environmental preservation goals, bird migratory patterns, or soil erosion and water runoff concerns. However, concerns about RF radiation is cannot be considered. 3. The number of towers already constructed in a community; 4. The height of the proposed tower; 5. The proximity of the proposed tower to historic districts or sites. The Minnesota district court has not conclusively indicated whether it will accept any of these bases for a denial. B. Does The Zoning Denial Constitute A Prohibition. There is also a split among the federal appellate courts concerning whether a local zoning denial may prohibit service where other providers are already serving the area; i.e. whether the issue is the availability of the applicant's service or the availability of wireless services generally. In either case, a denial that results in a "significant gap" in the availability of service is subject to attack. The courts have also uniformly concluded that the wireless provider bears the burden of proving the service coverage gap. The Minnesota district court has not squarely addressed this issue. However, the court's decisions suggest that a denial may prohibit service even though other wireless providers are serving the area. Because the standard is uncertain, we recommend that an applicant seeking approval to construct a new wireless tower be required to submit "coverage maps" depicting both the availability of its service with and without the proposed tower, . and also evidence concerning the current availability of other wireless services in the area. RJV-249325vl NE136-8