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49 / 52

No.

2006AP450.ssa

ordinances adopted by a majority constitutional muster in this court.

of

municipalities

can

pass

¶74 Third, I want to emphasize the precepts to be gleaned from this lengthy opinion, many of which are basic, well-known

principles of law that are applied teachings of the majority opinion may

in be

the present

summarized

as

case.

The

follows:

1. zone,"

A is

zoning ordinance, including a "permit use only "presumed valid and must be liberally construed

in favor ordinance

of the "will

municipality."

Majority

op.,

be

held

constitutional

[as

a

¶26. matter

An of

substantive due process] beyond a reasonable doubt."

unless the contrary Majority op., ¶26.

is

shown

2. The substantive

challenge to the ordinance

due

process

challenge,

at issue

not

an

is

a facial

as

applied

challenge, and not

majority

opinion

an eminent domain taking challenge.

4

applies,

in

keeping

with

precedent,

The a

4 See, e.g., majority op. ¶¶34, 47, 61. which the majority opinion relies treat the

applied 47.

or

a

takings

challenge.

See,

e.g.,

Several cases upon challenge as an as majority op. ¶¶40,

It is very difficult to prevail upon a facial challenge to

a statute or ordinance.

With a

must

show

that

the

ordinance

facial challenge, the

cannot

be

enforced

challenger under any

circumstances. See Olson

v.

Town of

Cottage Grove, 2008 WI 51,

¶44 n.9, ___ Wis. 2d ___,

749

N.W.2d

211 ("'Facial challenge' is

defined as: 'A claim unconstitutionally.'")

that a

statute .

(quoting

Black's Law

. . always Dictionary

operates 223 (7th

ed.

1999).

Although

I

question

whether

the

defendants'

challenge is properly considered a "facial" challenge, I accept the defendants' characterization of their challenge for purposes

of this

review.

The majority

opinion does

not

challenge

to the

"vagueness" of

the standards

for

conditional use.

See, e.g., majority op. ¶58.

address any granting a

2

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