Agenda - Planning Commission - 09/04/2008

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( j i I I j i I i I ! I I ! I I I I I I i August 25, 20081 Volume 2 1 No. 16 -':-::.:--.. Subsequent to those denials, the town. brought nuisance citations against Club members. The town alleged Club members violated the town's Public Nuisance Ordinance by using ATVs on Club property in violation of the town's zoning ordinance. . A municipal court dismissed the ordinance violation claim due to in- sufficient evidence. On the town's appeal, the circuit court looked at two issues: (1) whether S 4.08(2)(a) yvas constitutional; and (2) whether the Club's use of the property constituted a public nuisance. The circuit court deter- mined the ordinance was unconstitutional, and dismissed the public nui- sance claim. The town appealed. DECISION: Judgment of Circuit Court affirmed in part, reversed ill part, and remanded. The Supreme Court of Wisconsin concluded that S 4.08(2)(a) was unconstitutional on its face. . In so concluding; the court said that a zoning ordinance could be con- stitutionally challenged under the takings, due process, or equal protec- tion clauses of the state and federal constitutions. The Club had argued that the ordinance violated its substantive due process rights. The Due Process Clause oithe Fourteenth Amendment of the federal constitution prohibited states from depriving any person of life, liberty, or property without due process of iaw. The court said that a zoning ordinanCe: would violate substantive due process if its provisions had no substantial rela- tion to the purposes of zoning. Those purposes, the court said, were to promote health, safety, morals or the general welfare of the community. The court found that there was no justification for S 4.08(a)(2)'s preclu- sion of all uses as of right in the B-2 District; it did not serve to promote the public health, safety, morals or general welfare. The court concluded that it therefore violated substantive due process and was Unconstitritional. The town had argued that S 4.08(a)(2) did not actually preclude all uses as of right. It argued that conditional uses were permitted uses in the B-2 District. It said that once the standards had been satisfied a landown- er was "entitled" to the conditional use. The court rejected that argu- ment. The court explained that conditional uses and permitted uses were different: permitted uses allowed a landowner to use the land in a man- ner as of right; and conditional use permits allowed a landowner to put the property to a use which the ordinance expressly permitted when cer- tain conditions or standards were met. The court said that even though conditional uses could be authorized under an ordinance as long as con- ditions were met, that did not render them uses as of right or "permitted uses." Moreover, said the court, even if an entitlement could be created ,.' i \ ._~. @ 2008 Thomson Reuters/West 3 97