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( »� HORSEY 27 OORSEY & WHITNEY t.!_P MEMORANDUM TO: Mayor and Council Members Michael Mornson, City Manager FROM: Jay R. Lindgren DATE: August 6, 2007 RE: Resolution Confirming Findings Made by City Council Regarding Cell Phone Tower Application At its June 26, 2007 meeting, the City Council heard public comments and made Findings allowing the Council to reject a Conditional Use Permit Application (the "Application") submitted by Midwest Real Estate Services, Inc. ("Midwest Real Estate') The Council directed me to prepare a Resolution recording those Findings. The Council was scheduled to consider adoption of the Resolution at its subsequent public meeting on July 24, 2007. On the afternoon of the July 24 meeting, correspondence was received by the City from the Larkin Hoffman law firm regarding the Application (the "July 24 Letter"). I requested that the Council table action on the Resolution so that I could review the July 24 Letter and advise the Council whether any additional information was provided that should influence your consideration of the Resolution. I have reviewed the July 24 Letter and recommend, for the reasons outlined in this memorandum, that the Council proceed with consideration of adoption of the Resolution at your next regular meeting scheduled for August 14, 2007. Under the federal Telecommunications Act, the City may deny an application to permit the placement of a wireless tower if the application is not consistent with the local zoning requirements and if the denial is supported by substantial evidence in the written record. See 47 U.S.0 332(c)(7)(B)(iii); Minnesota Towers, Inc. v. City of Duluth, 2005 WL 1593044. Such a denial is generally lawful with the limitation that it can not "prohibit[s] or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. 332(c)(7)(i)(II). The Application submitted by Midwest Real Estate was denied, among other things, because the City Council found that Midwest Real Estate failed to adequately demonstrate that there was not a sufficient location in a light industrial district to place the tower. This finding is consistent with the local zoning requirements in the City Code. Section 1680.04, subd. 1 of the Code strictly limits the placement of wireless towers to parcels within light industrial zoning districts, City - owned property and commercial districts. Section 1680.05 then establishes a clear preference for placing towers in light industrial districts by requiring only administrate approval for such plans, whereas 1680.06 of the Code requires the City Council to grant a conditional use permit for the placement of any tower in a commercial district. The preference for tower placement in light industrial districts is an integral part of the City's zoning scheme, and, based on substantial evidence gathered by the City Council and in the written record, Midwest Real Estate has not sufficiently addressed these legitimate concerns. The denial of tower placement applications in the cases cited in the July 24 Letter that were found to unlawfully prohibit the provision of wireless services are distinguishable from the action taken by the City Council in its decision to deny Midwest Real Estate's Application. In DORSEY & WHITNEY LIP