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• Mr. Jeff Smyser July 27, 2006 Page 4 v. County of Carver, 660 N. W.2d 828, the Minnesota Court of Appeals stated that traffic estimates based solely on information provided by landowners and commission members which ignored contrary expert evidence were insufficient to serve as a basis for denying a conditional use permit. Furthermore, public comments on projected traffic increases do not serve in and of itself and do not provide grounds for denial of a conditional use permit. Based upon by review of the facts surrounding the application and the engineering and planning reports provided to the City Council, there does not appear to be a factual basis for denying the application based on a determination that the traffic generated is not within the capability of the City street systems. Unless additional information is presented regarding traffic impacts of the drive through, it appears that a defense to a legal challenge of denial would be difficult. It should be noted that under Section 2, Subd. 2 of the City Zoning Ordinance, the City Council does have the right to apply conditions to the issuance of a conditional use permit and conduct an annual review to ensure that the conditions are being complied with. If there is concern that the proposed drive through use may be changed or expanded, it would seem reasonable to impose conditions on the applicant that would limit the drive through to the type of use being proposed in the application as well as limitation on the square feet in the building that could be occupied by an entity using the drive through. In the event of a change of use or expansion of the size that would cause additional traffic considerations, I believe the applicant could be required to seek an amended conditional use permit and review by the City Council under the ordinance. If any Council members have any questions, please feel free to contract me. William G. Hawkins WGH /tju