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No.

2006AP450

¶29 The United States Supreme Court has recognized a landowner's right to substantive due process in zoning cases. See Pearson, 961 F.2d at 1217, 1220 (citing to Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263 (1977); Nectow v. City of Cambridge, 277 U.S. 183, 187 (1928); [Village of] Euclid[, Ohio] v. Ambler Realty Co., 272

U.S. 365, ordinance

373 is

(1926)).

The Supreme

unconstitutional

when

Court has stated, "a zoning its 'provisions are clearly

arbitrary and unreasonable having public health, safety, morals or Wis. 2d 610, ¶45 (quoting Euclid,

no substantial relation to general welfare.'" Thorp, 272 U.S. at 395).

the 235

evaluating

a

claim that a

rights have

been violated,

¶30 However, when substantive due process

deprived protected. must show that interest that Wis. 2d 610, ¶46 property interest he is or she has been constitutionally (citing Penterman, 211 Wis. 2d is constitutionally protected

of

at if

recognizes

and

protects

that

interest.'"

landowner's a plaintiff a property

Thorp, 480). 'state Thorp, 15

235 "A law 235

15

But see Thorp v.

Town of Lebanon,

2000 WI

60,

¶60,

235

Wis. 2d 610,

612

N.W.2d 59

(Abrahamson,

C.J.,

dissenting).

Chief Justice Abrahamson, wrote:

joined by Justices Bradley and Sykes,

The majority [in Thorp] dismisses the plaintiffs' substantive due process claim based on the alleged violation of Wis. Stat. § 60.61(4) by noting that the statute does not secure plaintiffs with property rights in their land. [Thorp] Majority op. at ¶48.

The opinion's language suggests that

statutorily created right to

have

a

plaintiffs need a property interest

in

their

land.

I

disagree.

18

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