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William G. Hawkins May 26, 2006 Page 2 deny the CUP. Therefore, my client asked that the CUP request be pulled from the agenda so it could consider the import of the council members' apparent opposition. After reviewing the status of the CUP request to date, we believe that Bruggeman Properties is entitled to the CUP it has requested, and we would like to have the City Council grant the CUP. As you know, if an applicant meets the requirements under an applicable ordinance for obtaining a conditional use permit, the City must issue the permit. Trisko v. City of Waite Park, 566 N.W.2d 349 (Minn. Ct. App. 1997). The City cannot deny the CUP because of neighborhood opposition or expressions of concern for public safety. Id. If the City wrongly denies a request for a CUP, the applicant is entitled to obtain a court order directing the City to issue the CUP. As the April 24, 2006 staff memo details, my client's proposed use meets the requirements under the ordinance for the granting of a CUP. Therefore, notwithstanding any neighborhood opposition, concerns about competition with the nearby CuppaJoe coffee shop, or any council members' personal preferences, the City is legally obligated to issue the CUP. I understand that the Mayor has expressed the opinion that my client might not be entitled to a CUP because this property is zoned PUD. That, of course, is not true. Under the City's ordinance, granting a PUD request is not a rezoning, it is merely the City's approval of certain deviations from the underlying zoning. As this property remains zoned Limited Business, my client is entitled to apply for a CUP permitting an accessory drive through and outdoor seating in accordance with the Limited Business zoning ordinance. Indeed, as I mentioned above, the City previously issued a CUP to my client simultaneously with the issuance of the PUD approval. Accordingly, my client hereby requests that its CUP request be placed back on the City Council agenda for the next meeting, and respectfully asks that the City Council members approve the request. My client always prefers to address any concerns that neighbors or council members raise about its projects to the best that it can, and prefers to cooperate with neighbors and the City council rather than proceed in an adversarial manner. Indeed, in this case my client believes it has done everything it reasonably could to satisfy valid concerns about the Millers Crossroads project. Among other things, my client made architectural enhancements to the building that the Planning Commission requested, even though it was not obligated to make such changes. My client also included significantly more landscaping and a greater setback for buffering than the original site plan approval required. Moreover, my client paid for a traffic signal and has clearly demonstrated that the drive - through will not have an adverse effect on traffic. N:\PL \SCC\494756.doc