## Facts

- The Manitowoc Area Off Highway Vehicle Club, Inc. bought about 77.2 acres in the Town of Rhine, Wisconsin.
- The parcel was zoned “B-2 Commercial Manufacturing or Processing” under Town of Rhine Municipal Code § 4.08(2)(a).
- In the B-2 district, no uses were permitted as of right; any use required a conditional use permit, and eligible conditional uses were limited to specified industrial-type activities.
- The Club used the property for hunting and riding all-terrain vehicles (ATVs) without first obtaining a conditional use permit.
- After the Town notified the Club that a permit was required, the Club applied for a conditional use permit for “recreational purposes,” which the Town denied.
- Club members continued riding ATVs on the property; the Town issued public nuisance citations based on ATV operation on the B-2 property without an approved use.
- The cited individuals and the Club challenged the citations and argued the B-2 zoning classification was facially unconstitutional because it provided no as-of-right uses and left all use to discretionary permitting.

## Issues

1. Whether the Town’s B-2 zoning district, which allowed no uses as of right and required discretionary conditional use approval for any listed use, violated substantive due process as arbitrary and unreasonable and lacking a substantial relation to public health, safety, morals, or general welfare.
2. Whether the circuit court correctly dismissed the public nuisance citations, including whether it applied the Town’s codified definition of “public nuisance” rather than a common-law nuisance standard.

## Decision

- The Wisconsin Supreme Court affirmed the ruling that the B-2 zoning ordinance was unconstitutional.
- The Court held the B-2 district was arbitrary and unreasonable because it provided no as-of-right uses and made all land use contingent on discretionary conditional use permits without a sufficient public-welfare justification.
- The Court reversed the circuit court’s dismissal of the nuisance citations to the extent the circuit court used a common-law nuisance analysis instead of the Town’s ordinance definition.
- The Court remanded for further proceedings to apply the Town’s codified nuisance standard to the cited conduct.

## Legal Principles

- Zoning ordinances are presumed valid, but substantive due process requires that land-use restrictions not be arbitrary or unreasonable and must bear a substantial relation to public health, safety, morals, or general welfare.
- A zoning classification that precludes all uses as of right and makes all use dependent on discretionary conditional use permits, without an adequate relation to legitimate police-power objectives, violates substantive due process.
- When a municipality defines “public nuisance” by ordinance, courts must apply the ordinance’s definition rather than defaulting to common-law nuisance standards.

## Conclusion

The Wisconsin Supreme Court held that a zoning district providing no as-of-right uses and relying entirely on discretionary conditional use permits was facially unconstitutional under substantive due process, but it required the lower court to reassess the nuisance citations under the Town’s codified nuisance definition on remand.


Town of Rhine v. Bizzell, 751 N.W.2d 780 (Wis. 2008)