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4 / 52

No.

2006AP450

concluded that Town of Rhine, Wis., Municipal Code § 4.08(2)(a),

2

"B-2

Commercial

Manufacturing

or

Processing,"

is

unconstitutional and that the violations should be dismissed. two issues to this court.

defendants' nuisance ordinance The court of appeals certified

conclude that

§

4.08(2)(a),

the

B-2

District,

is

unconstitutional

on

its face

because

it

is

arbitrary

and

¶2 The first issue

Municipal Code § 4.08(2)(a)

is

whether

Town

of

Rhine,

Wis.,

is unconstitutional on its face.

We

unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare.

¶3 dismissed

The second issue is whether the circuit court properly

the

defendants'

nuisance

ordinance

violations.

We

conclude that of "nuisance"

the circuit court applied a rather than the definition

common-law definition of "public nuisance"

articulated in Town of Rhine, Wis., result, we remand to the circuit definition of "public nuisance."

Municipal

Code §

court to

apply

2.02.

As a

the

code's

¶4 Therefore, we affirm in remand to the circuit court for nuisance claim.

a

part, reverse new hearing

in

part, and

on

the public

2 Town of Rhine, Wis., Municipal Code § 4.08(2)(a) reads in part, "[t]here are no permitted uses in the B-2 District, except that those uses permitted in the Agricultural Land Districts A-

1, A-2 and conditional

A-3 may

be

authorized in

uses . .

.

.

All uses are

conjunction conditional

with and

any shall

comply with the provisions of Section 4.09 of this ordinance."

2

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