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where undesirable uses as of right. permitted use and

uses

develop, and it

then

only providing

that it can both regulate

No.

2006AP450

can

provide for permitted

¶64

Precluding

any

generalized opens the scenario, standards for obtaining a conditional door to favoritism and discrimination. a town, pursuant to the ordinance, may

use permit Under this arbitrarily

preclude any activity on the land in question because (1) there are no permitted uses as a matter of right; and (2) if obtaining a conditional use permit is completely within the discretion of a town, judicial review of a denial is significantly limited

because of standards. acceptable,

the As towns

non-specific nature a result, if such could preclude all

of the conditional use an ordinance was deemed uses at will and in a

manner that virtually precludes any meaningful judicial review.

Such a determination could open the uses exist as of right, the impact is significantly decreased because

door to abuse.

If permitted

of the

denying conditional uses landowner has permitted

uses

as of right.

¶65

The

facial,

constitutional

challenge

here

is

sustained. landowners.

This ordinance is not in balance with the rights of Because the landowners have demonstrated beyond a

reasonable doubt that for any uses as of District is arbitrary

the ordinance at issue does right, and this restriction and unreasonable in the sense

not

provide

in

the B-2

that

it does

not or

bear a substantial relation to public health,

safety,

general

welfare,

we

conclude

that

Municipal

morals Code

43

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