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27 / 52

No.

2006AP450

developed

within

the

municipality.

However,

zoning

that

restricts the land such that the landowner has no permitted use

as

of

right

must

bear

a

substantial

relation

to

the

health,

safety,

morals

or

general

welfare

of

the

public

in

order

to

withstand constitutional scrutiny.

In this case, the restricted

land

does not

health,

safety,

use of

the

B-2

District

relation

to

the

public

bear a

substantial

morals

or general

welfare.

¶39

We

note

that

rather

than precluding

all

uses

as

of

right in a particular zone, the more common, acceptable practice

is to provide for permitted addition to permitted uses,

uses

as of right,

and then

in

the

ordinance may

provide

for

conditional uses.

Case law, treatises,

zoning journals, and the

Town of Rhine's ordinance support least one treatise comments that

this conclusion. a zone that only

Moreover, at provides for

use

by virtue of

a

conditional use

permit

may

face

scrutiny.

See

Juergensmeyer

&

Roberts, supra,

§ 5.24,

at

283-84

(stating

that "[a] court will likely all uses by special permit"

invalidate an or conditional

ordinance that use permit).

handles

1. Case law

¶40

Cases

from Wisconsin

and other

jurisdictions

support

the conclusion that the common, outline permitted uses and then,

accepted practice is to first in addition to permitted uses,

the

ordinance may provide

for

conditional

uses.

A number

of

cases

illustrate

this

point,

but

they

do

not

address

the

merits

25

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