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IYU..J4! Mr. Jeff Smyser March 19, 2004 Page 3 Second, there are several points referenced in the Marty letter urging a denial of the CUP because the proposed applicant as a church would be exempt from real estate taxes. In my opinion, this factor cannot be the basis for a CUP denial. It must be remembered that churches are already an approved conditional use in this zoning district. In Minnetonka Congregation of Jehovah's Witnesses, the Minnetonka City Council determined to deny a conditional use permit to a church. One of its findings was that "this type of development would be inconsistent with the surrounding R -1 land use." 226 N. W. 2d at 309. In that case, churches were a conditional use in the R -1 district. The Minnesota Supreme Court summarily rejected this basis for the denial stating: "Suffice it to say that the controlling ordinance specifically provides for churches." Id. Churches are an approved use and to deny a church a CUP because it is a church would be of dubious legal quality. See, e.g. Diocese of Rochester v. Planning Board, 136 N.E.2d 827 (N. Y. Ct. App. 1956) ( "No municipal corporation can justly refuse a permit to build a church only because a property will no longer be subject to taxation "). The .law is clear that where the zoning ordinance expressly authorizes a proposed use of property by conditional use permit, a denial of a CUP application "must be for reasons relating to public health, safety, and general welfare." Scott County Lumber Co. v. City of Shakopee, 417 N. W.2d 726 -27 (Minn, Ct. App. 1988); Hay v. Township of Grow, 206 N.W2d 19 (Minn. 1973) With respect to the issue of traffic concerns as a basis for CUP or zoning denial, the cases recognize that all development will cause heavier vehicular traffic. The question is: How much is too much? In Jehovah's Witnesses, the Supreme Court observed: it is self - evident that any church will cause heavier vehicular traffic, but for that matter, so would residential construction. However, that is far from the creation of a traffic hazard." 226 N. W. 2d at 309. See, e.g., Yang v. County of Carver, 660 N. W.2d 828 (Minn. Ct. App. 2003) (evidence "insufficiently concrete to substantiate a finding that the proposed use would create excess traffic "). A final issue which should be discussed is the factor of neighborhood or community opposition to a CUP application. While this is certainly appropriate, under the law, community opposition, by itself, is not a legally sufficient reason for denying a CUP, Barton Contracting, supra, citing, Jehovah's Witnesses, supra, and Twin City Red Barn, Inc. v. City of St. Paul, 192 N. W. 2d 189 (Minn. 1971). As I said before, a denial of a CUP must have an adequate factual basis that is legally sufficient. Trisko v. City of Waite Park, 566 N. W.2d 349 (Minn. Ct. App. 1997) t "A municipality must base the denial of a conditional use permit on a