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46 / 52

No.

2006AP450

§ 4.08(2)(a), the B-2 District, is unconstitutional on its face. Accordingly, the Club has met its burden.

¶66

IV. NUISANCE The circuit court concluded that the Town of Rhine's

allegation that its

public nuisance ordinance

was violated was

actually

the

Town

of

Rhine's

attempt

to

abate

a

private

nuisance. The circuit applying the ordinance's

court did language.

not reach Instead,

its decision by the circuit court

concluded that circuit court,

the violations were for a "public nuisance."

The

cited to Milwaukee Metropolitan

Sewerage District

v.

City

of

Milwaukee,

2005

WI

8,

277

Wis.

2d

635,

691

N.W.2d 658, and stated that a nuisance is a public nuisance "the condition or activity interferes with the public right

if or

use of

public space."

because

the property at

The circuit court then issue was not a public

concluded that place, and the

Club's activities did not affect the nuisance could not be a public nuisance.

entire

community,

the

¶67

Here, the circuit court erred because it did not apply

the definition of Rhine's ordinance.

"public nuisance" as stated in the Town of Instead of applying the ordinance language,

the circuit court applied a common-law definition of "nuisance."

The Town Nuisance,"

of Rhine, Wis., differs from the

Municipal common-law

Code

§ 2.02,

definition

and

"Public provides

as follows:

2.02 DEFINITIONS.

(1)

PUBLIC NUISANCE.

A public

nuisance is a thing, act, occupation, condition or use of property which shall continue for such length of time as to (a) Substantially annoy, injure or endanger

44

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