751 N.W.2d 780 (2008) 2008 WI 76

TOWN OF RHINE, Plaintiff-Appellant,
v.
Brock O. BIZZELL, Matthew A. Schuette, Jonathon W. Thompson, Timothy J. Van der Vaart, Andrew S. Wiesz, Scott R. Wiesz, and Manitowoc Area Off Highway Vehicle Club, Inc., Defendants-Respondents.

No. 2006AP450.

Supreme Court of Wisconsin.

Argued February 26, 2008. Decided July 1, 2008.

*783 For the plaintiff-appellant there were briefs by Joseph R. Cincotta and the Law Offices of Joseph R. Cincotta, Milwaukee, and by Paul Dirkse and O'Neil, Cannon, Hollman, DeJong, S.C., Sheboygan, and oral argument by Joseph Cincotta.

For the defendants-respondents there was a brief by Michael E. Lambert and Kummer, Lambert & Fox, LLP, Manitowoc, and oral argument by Michael E. Lambert.

An amicus curiae brief was filed by Andrew T. Phillips, Gina M. Ozelie, and Stadler, Centofanti & Phillips, S.C., Mequon, *784 on behalf of the Wisconsin Counties Association.

An amicus curiae brief was filed by Lee Turonie, assistant legal counsel, Shawno, on behalf of the Wisconsin Towns Association.

An amicus curiae brief was filed by Thomas D. Larson and Debra P. Conrad, Wisconsin REALTORS® Association, Madison, and John A. Kassner III and Murphy Desmond S.C., Madison, on behalf of the Wisconsin REALTORS® Association, and oral argument by John A. Kassner III.

ON CERTIFICATION FROM THE COURT OF APPEALS

¶ 1 ANNETTE KINGSLAND ZIEGLER, J.

This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).^[1] The circuit court concluded that Town of Rhine, Wis., Municipal Code § 4.08(2)(a),^[2] "B-2 Commercial Manufacturing or Processing," is unconstitutional and that the defendants' nuisance ordinance violations should be dismissed. The court of appeals certified two issues to this court.

¶ 2 The first issue is whether Town of Rhine, Wis., Municipal Code § 4.08(2)(a) is unconstitutional on its face. We conclude that § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and 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 The second issue is whether the circuit court properly dismissed the defendants' nuisance ordinance violations. We conclude that the circuit court applied a common-law definition of "nuisance" rather than the definition of "public nuisance" articulated in Town of Rhine, Wis., Municipal Code § 2.02. As a result, we remand to the circuit court to apply the code's definition of "public nuisance."

¶ 4 Therefore, we affirm in part, reverse in part, and remand to the circuit court for a new hearing on the public nuisance claim.

I. FACTS

¶ 5 On October 1, 2003, the Manitowoc Area Off Highway Vehicle Club, Inc., (hereinafter "the Club") purchased 77.2 acres of land in section twelve of the Town of Rhine, Sheboygan County. The zoning classification of this land has been "B-2 Commercial Manufacturing or Processing" for 20 years. Within this classification, "[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 A-3 may be authorized in conjunction with any conditional uses. . . . All uses are conditional and shall comply with the provisions of Section 4.09 [Conditional Uses] of this ordinance." Town of Rhine, Wis., Municipal Code § 4.08(2)(a). Conditional uses in the "B-2 Commercial Manufacturing or Processing" district include: (1) fabrication of consumer or industrial commodities; (2) garbage, rubbish, offal, industrial waste and dead animal reduction or disposal; (3) quarrying; (4) mining and *785 ore processing; (5) salvage yards for wood, metals, papers and clothing; and (6) stockyards.^[3]Id.

¶ 6 After purchasing the property in 2003, club members used the property for riding all-terrain vehicles (ATVs) and hunting. On January 6, 2004, pursuant to a request by the Town of Rhine, the Club's president appeared at a Town of Rhine board meeting.^[4] At the meeting, the Club president was asked what activities were occurring on the property. The Club president responded that members "are a group of families that live in the city limits and don't own enough property to enjoy outdoor recreation such as hunting, horseback riding, bicycling, ATV riding etc."

¶ 7 Chairman Sager asked if the Club members were aware that the land was zoned B-2 when they purchased the land. The Club president responded that the Club's attorney informed them that "because it was zoned business and not residential[,] the manner in which they are using the land should not be an issue." Chairman Sager then related that B-2 zones require a conditional use permit "for any use of the land." He further stated that "an application should be directed to the Plan Commission for either a CUP [conditional use permit] or rezoning." The Club president then asked whether he needed to apply for specific uses or different zoning. Chairman Sager answered that it would depend on how they intended to use the land.

¶ 8 On May 19, 2004, the Club applied for a conditional use permit. In the conditional use application, the Club stated that it wanted to use the property for recreational activities, such as hunting and riding ATVs. The application stated, "[t]his IS NOT a request for a commercial or industrial operation." The conditional use permit was denied on September 7, 2004.^[5] Although the record is unclear as to when, the Club also applied for the B-2 zone to be rezoned to a B-1, "Neighborhood Business" district. That rezoning request was also denied, but it is unclear from the record when it was denied.

¶ 9 On October 10, 2004, the Elkhart Lake Police Department issued citations to six club members for violating the Town of Rhine's Public Nuisance Ordinance. Town of Rhine, Wis., Municipal Code § 2.01. On December 14, 2004, a consolidated trial was held for all six defendants. The Elkhart Lake Municipal Court dismissed the ordinance violation due to insufficient evidence. Pursuant to Wis. Stat. § 800.14, the Town of Rhine appealed the municipal court's decision to the Sheboygan County Circuit Court.

¶ 10 On December 19, 2004, in Sheboygan County Circuit Court, the Town of Rhine filed a complaint that alleged two causes of action. In the first cause of action, regarding the public nuisance violations of the ordinance, the Town of Rhine asked for a de novo review of the dismissed citations. In the second cause of *786 action, regarding the zoning violation, the Town of Rhine asked for a determination of whether the Club was violating the Town of Rhine's zoning code, and the Town of Rhine sought an order enjoining the Club from operating ATVs on the property.

¶ 11 On August 29, 2005, a trial to the court was held. On January 13, 2006, the circuit court issued a written decision. In that decision, the circuit court characterized the two issues as follows: (1) whether the Town of Rhine B-2 zone use restriction was constitutional; and (2) whether the Club's use of the property constituted a public nuisance.

¶ 12 The circuit court concluded "that a zoning ordinance which bars all uses within a district is unreasonable." It further stated that "a zoning ordinance which permits no uses within a district is confiscatory in nature and oppressive." Accordingly, the circuit court concluded that the zoning ordinance was unconstitutional. With respect to the nuisance claim, the circuit court determined that although the ordinance related to a public nuisance, the Town of Rhine's claim was an attempt to abate a private nuisance. The circuit court, citing to Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis.2d 635, 691 N.W.2d 658, stated that a nuisance is a public nuisance if "the condition or activity interferes with the public right or use of public space." The circuit court determined that the nuisance could not be a public nuisance because the property at issue was not a public place, and the Club's activities did not affect the entire community. As a result, it concluded that the Town of Rhine lacked standing to advance the claim. The Town of Rhine appealed the circuit court's decision. Pursuant to Wis. Stat. § 809.61, the court of appeals certified this case to us for review and determination. We accepted the certification.

II. STANDARD OF REVIEW

¶ 13 "The interpretation and application of an ordinance to an undisputed set of facts is a question of law, which this court decides de novo." Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis.2d 633, 660 N.W.2d 656. The constitutionality of an ordinance is also a question of law, which this court reviews de novo. Wilke v. City of Appleton, 197 Wis.2d 717, 726, 541 N.W.2d 198 (Ct.App.1995).

III. ANALYSIS

¶ 14 The Club argues that Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it violates due process in that any use of the property is prohibited unless the landowner obtains a conditional use permit. It further argues that there are no clear and objective standards for the landowner to obtain a conditional use permit. The Town of Rhine, on the other hand, argues that Municipal Code § 4.08(2)(a) is constitutional. It argues that the B-2 District does allow for certain uses of the property under a conditional use permit, and therefore, it is inaccurate to assert that B-2 zoning does not allow any use. The Town of Rhine also argues that Municipal Code § 4.01 sets forth adequate standards for obtaining a conditional use permit, and it asserts that a number of other municipalities have conditional use provisions similar to the Town of Rhine. We conclude that § 4.08(2)(a) is unconstitutional on its face.

A. Zoning principles

¶ 15 Zoning ordinances and land use regulations have a useful, valid purpose, and the government has broad authority to enact such classifications for the purpose of promoting health, safety, morals or the general welfare of the community. State ex rel. American Oil Co. v. Bessent, 27 Wis.2d 537, 544-46, 135 N.W.2d 317 (1965).

*787 ¶ 16 The Town of Rhine has adopted village powers pursuant to Wis. Stat. § 61.35, which states that the powers and duties conferred and imposed by Wis. Stat. § 62.23, "City Planning," applies to village officials. Zoning of municipalities is, therefore, accomplished pursuant to § 62.23(7) and its subsections.

¶ 17 "Zoning ordinances comprehensively assign compatible land uses to zoning districts throughout the community." Daniel R. Mandelker, Land Use Law § 1.04, at 1-4 (5th ed.2003). The municipality is generally divided into different districts, such as residential, commercial, and industrial.^[6]Id. The use of comprehensive zoning arose in the early twentieth century, and the United States Department of Commerce encouraged the use of comprehensive zoning by publishing the model "state enabling act."^[7] 1 Kenneth H. Young, Anderson's American Law of Zoning § 1.14, at 21 (4th ed.1996). Comprehensive zoning earned the approval of this court as early as 1923. State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451 (1923); see also Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (upholding a comprehensive zoning ordinance). Wisconsin's enabling act is found in Chapter 62 of the Wisconsin Statutes. See Wis. Stat. § 62.23.

¶ 18 In American Oil Co., this court stated that a comprehensive zoning ordinance was a justified "exercise of the police power not only in the interest of public health, morals, and safety, but particularly for the promotion of public welfare, convenience and general prosperity." 27 Wis.2d at 544, 135 N.W.2d 317. A comprehensive zoning ordinance, enacted pursuant to Wis. Stat. § 62.23, is presumed valid and must be liberally construed in favor of the municipality. American Oil Co., 27 Wis.2d at 546, 135 N.W.2d 317.

¶ 19 In general, zoning ordinances provide landowners with permitted uses, which allow a landowner to use his or her land, in said manner, as of right. Mandelker, supra, § 6.39, at 6-44. "Most ordinances impose a broad division of land uses, and, in addition, provide that specified uses may be established or maintained in named districts, only pursuant to a special permit. . . ." 3 Young, supra, § 21.01, at 693-94. "Uses are permitted in designated districts because they are thought to be compatible with other uses permitted in such district." 2 Young, supra, § 9.20, at 169.

*788 ¶ 20 In addition to permitted uses, ordinances may also provide for conditional uses by virtue of a special use or conditional use permit.^[8] A conditional use, however, is different than a permitted use. See S. Mark White, Classifying and Defining Uses and Building Forms: Land-Use Coding for Zoning Regulations, American Planning Association Zoning Practice, Sept. 2005, at 8. While a permitted use is as of right, a conditional use does not provide that certainty with respect to land use. See id. Conditional uses are for those particular uses that a community recognizes as desirable or necessary but which the community will sanction only in a controlled manner. State ex rel. Skelly Oil Co. v. Common Council, City of Delafield, 58 Wis.2d 695, 701, 207 N.W.2d 585 (1973); 3 Young, supra, § 21.06 (discussing uses commonly subject to special permit requirements).

¶ 21 A conditional use permit allows a property owner "to put his property to a use which the ordinance expressly permits when certain conditions [or standards] have been met." Skelly Oil Co., 58 Wis.2d at 701, 207 N.W.2d 585. The degree of specificity of these standards may vary from ordinance to ordinance.^[9] 3 E.C. Yokley, Zoning Law and Practice § 21-1, at 21-4 (4th ed.2002) (2002 revision by Douglas Scott MacGregor).

¶ 22 A zone that provides for use of property only when a landowner obtains a conditional use permit may face scrutiny. See Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 283-84 (2d ed.2007).^[10] Conditional use permits, *789 however, remain a widely accepted tool of municipal planning.^[11]Skelly Oil Co., 58 Wis.2d at 700-01, 207 N.W.2d 585.

¶ 23 Allowing for conditional uses, in addition to permitted uses as of right, makes sense when one considers the purpose of the conditional use permit. First, conditional uses are flexibility devices, "which are designed to cope with situations where a particular use, although not inherently inconsistent with the use classification of a particular zone, may well create special problems and hazards if allowed to develop and locate as a matter of right in [a] particular zone." Id. at 701, 207 N.W.2d 585; see also Gail Easley, Conditional Uses: Using Discretion, Hoping for Certainty, American Planning Association Zoning Practice, May 2006, at 2 (identifying conditional uses as flexibility devices).

¶ 24 Second, conditional use permits are appropriate for "certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community . . ., but not at every or any location . . . or without conditions being imposed. . . ." Mandelker, supra, § 6.54, at 6-61 (citation omitted). Thus, those uses subject to a conditional use permit are necessary to the community, but because they often represent uses that may be problematic, their development is best governed more closely rather than as of right.

¶ 25 "Conditional use permits" — also referred to as "conditional uses" — however, should not be confused with "conditional-use district zoning"^[12] or "conditional zoning." In "conditional-use district zoning," "a landowner requests that some property be placed in a new zoning district that has no permitted uses, only special or conditional uses." David W. Owens, Legislative Zoning Decisions 93 (2d ed.1999). In such zoning:

[T]he ordinance text is amended to create a set of conditional-use districts. These conditional-use districts have no permitted uses as of right: no new use of land may be undertaken unless a special- or conditional-use permit is first *790 secured. Often there is one conditional-use district to correspond with each regular or general zoning district. These conditional-use districts are "floating zones"; that is, they are not applied to any property until a petition to apply them is made by the landowner. . . .

Id. (footnote omitted). "Conditional zoning," on the other hand, is rezoning that is made "subject to the owner's acceptance of additional requirements that otherwise are not applied in the new zoning district." Id. at 97; see also Mandelker, supra, § 6.62 (discussing "conditional zoning").

B. Constitutional principles

¶ 26 The role of courts in zoning matters is limited because zoning is a legislative function. Buhler v. Racine County, 33 Wis.2d 137, 146-47, 146 N.W.2d 403 (1966). An ordinance is presumed valid and must be liberally construed in favor of the municipality. American Oil Co., 27 Wis.2d at 546, 135 N.W.2d 317. The party challenging the constitutionality of an ordinance bears a heavy burden. See generally 1 Young, supra, §§ 3.01, 3.14. In Wisconsin, "an ordinance will be held constitutional unless the contrary is shown beyond a reasonable doubt[,] and the ordinance is entitled to every presumption in favor of its validity." Highway 100 Auto Wreckers, Inc. v. City of West Allis, 6 Wis.2d 637, 646, 96 N.W.2d 85 (1959); see also 1 Young, supra, § 3.22 (discussing the beyond a reasonable doubt standard in Wisconsin).^[13] "Consequently, although a court may differ with the wisdom, or lack thereof, or the desirability of the zoning, the court, because of the fundamental nature of its power, cannot substitute its judgment for that of the zoning authority in the absence of statutory authorization." Buhler, 33 Wis.2d at 146-47, 146 N.W.2d 403.

¶ 27 Nonetheless, a properly enacted ordinance must satisfy constitutional requirements. Pearson v. City of Grand Blanc, 961 F.2d 1211, 1223 (6th Cir.1992) (stating that "the zoning power is not infinite and unchallengeable; it `must be exercised within constitutional limits'"). Land use litigation generally arises out of the manner "in which zoning text and ordinance classify land into zoning districts." Mandelker, supra, § 1.04, at 1-5. Constitutional challenges may arise, for example, under the takings, due process, or equal protection clauses of the state and federal constitutions. Pearson, 961 F.2d at 1215-16; see generally Mandelker, supra, ch. 2, "The Constitutional Framework." Substantive due process claims with regard to land use regulation, as we see in this case, do not have high success rates. Id., § 2.39, at 2-46; but see 1 Yokley, supra, § 3A-1(c) (stating that "[s]ubstantive due process claims in land use litigation are occurring with more frequency"). Under the due process clause, courts generally require that "land use controls must advance legitimate governmental interests that serve the public health, safety, morals, and general welfare." Mandelker, supra, § 2.39, at 2-46 through 2-47.

¶ 28 "The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving `any person of life, liberty, or property without due process of law.'"<sup>[14]</sup>Penterman v. Wisconsin Elec. *791 Power Co., 211 Wis.2d 458, 480, 565 N.W.2d 521 (1997) (citation omitted); see also Laughter v. Board of County Comm'rs for Sweetwater County, 110 P.3d 875, 887-88 (Wyo.2005). "The substantive component of the Due Process Clause protects individuals from `certain arbitrary, wrongful actions `regardless of the fairness of the procedures used to implement them.''" Penterman, 211 Wis.2d at 480, 565 N.W.2d 521 (citations omitted). "Substantive due process forbids a government from exercising `power without any reasonable justification in the service of a legitimate governmental objective.'" Thorp v. Town of Lebanon, 2000 WI 60, ¶ 45, 235 Wis.2d 610, 612 N.W.2d 59 (citation omitted).

¶ 29 The United States Supreme Court has recognized a landowner's right to substantive due process in zoning cases. See Pearson, 961 F.2d at 1217, 1220 (citing to Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Nectow v. City of Cambridge, 277 U.S. 183, 187, 48 S.Ct. 447, 72 L.Ed. 842 (1928); [Village of] Euclid[, Ohio] v. Ambler Realty Co., 272 U.S. 365, 373, 47 S.Ct. 114, 71 L.Ed. 303 (1926)). The Supreme Court has stated, "a zoning ordinance is unconstitutional when its `provisions are clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or general welfare.'" Thorp, 235 Wis.2d 610, ¶ 45, 612 N.W.2d 59 (quoting Euclid, 272 U.S. at 395, 47 S.Ct. 114).

¶ 30 However, when evaluating a claim that a landowner's substantive due process rights have been violated, a plaintiff must show that he or she has been deprived of a property interest that is constitutionally protected. Thorp, 235 Wis.2d 610, ¶ 46, 612 N.W.2d 59 (citing Penterman, 211 Wis.2d at 480, 565 N.W.2d 521).^[15] "A property interest is constitutionally protected if `state law recognizes and protects that interest.'" Thorp, 235 Wis.2d 610, ¶ 46, 612 N.W.2d 59. "[I]t is well settled that the rights of ownership and use of property have long been recognized by this state." Penterman, 211 Wis.2d at 480, 565 N.W.2d 521. Additionally, Wis. Stat. § 62.23(7)(b) provides that "[a]ll such regulations shall be uniform . . . for the use of land throughout each district, but the regulations in one district may differ from those in other districts."

C. Town of Rhine's B-2 District and conditional use ordinance

¶ 31 The Town of Rhine's Municipal Code § 4.08(2)(a) governs the permitted uses of the property at issue and provides:

(2) B-2 COMMERCIAL MANUFACTURING OR PROCESSING.

(a) Permitted Uses. There are no permitted uses in the B-2 District, except that those uses permitted in the Agricultural Land Districts A-1, A-2 and A-3 may be authorized in conjunction with any conditional uses by express reference in the issued conditional use permit and upon such terms as the Plan Commission may recommend and the Town Board shall determine. All uses are conditional and shall comply *792 with the provisions of Section 4.09 of this ordinance.

(b) Conditional Uses. The following conditional uses may be authorized in the B-2 District pursuant to the provisions of Section 4.09 of this ordinance:

1. Fabrication of consumer or industrial commodities.

2. Garbage, rubbish, offal, industrial waste and dead animal reduction or disposal.

3. Quarrying: Gravel, sand, rock, and soil removal and processing. (Rev. 11/04/03)

4. Mining and ore processing.

5. Salvage yards for wood, metals, papers and clothing.

6. Stockyards.

¶ 32 Section 4.09 of the Town of Rhine's Municipal Code governs conditional uses, and it outlines the process to obtain a conditional use permit. "Determination of Plan Commission," § 4.09(4) provides:

The Plan Commission shall make such written findings and determinations as it deems appropriate based upon the information submitted to it and presented at the public hearing, and shall make a written recommendation to the Town Board with regard to such conditional use application. . . . In making its determinations and recommendations, the Commission shall be guided by the purposes, goals and intent set forth in or necessarily implied from Section 4.01 [Interpretation and Purpose] and any other applicable sections of this ordinance.

(Emphasis added.)

¶ 33 Section 4.01(1), "Purpose," in relevant part outlines that "[t]he purpose of this ordinance is to promote the health, safety, morals and general welfare of the Town of Rhine by regulating and restricting" the use of land. Section 4.01(2), "Intent," states:

It is the general intent of this ordinance to:

(a) Stabilize and protect property values and the tax base.

(b) Recognize the needs of agriculture, forestry, industry and business in future growth.

(c) Further the appropriate use of land and conservation of natural resources.

(d) Encourage the wise use, conservation, development and protection of the Town's water, soil, wetland, woodland and wildlife resources.

(e) Preserve natural growth and cover and promote the natural beauty of the township.

(f) Prevent overcrowding and avoid undue population concentration and urban sprawls.

(g) Facilitate the adequate provision of public facilities and utilities.

(h) Lessen congestion and promote the safety and efficiency of streets, highways and other transportation systems.

(i) Provide adequate light, air, sanitation, drainage and open space.

(j) Regulate the use of structures, lands and waters outside of shoreland areas.

(k) Regulate lot coverage, population density and distribution and the location and size of structures.

(L) Prohibit uses or structures incompatible with the natural characteristics, existing development or intended development within or adjacent to a zoning district.

(m) Implement those municipal, county, watershed or regional plans or their components adopted by the township.

*793 D. Constitutionality of the Town of Rhine, Wis., Municipal Code § 4.08(2)(a), "B-2 Commercial Manufacturing or Processing"

¶ 34 We conclude that Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and 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.

¶ 35 A facial substantive due process challenge, as the landowners have made in this case, is only one of many ways in which a landowner can challenge a limitation on the use of his or her land. See Pearson, 961 F.2d at 1215-16. However, facial substantive due process challenges are rarely successful. Mandelker, supra, § 2.39, at 2-46. The seminal zoning case, which involved a facial substantive due process challenge, is Euclid.^[16]See Mandelker, supra, § 2.06 (discussing Euclid). In Euclid, the court upheld the constitutionality of a comprehensive zoning ordinance against a facial substantive due process challenge. Id. at 2-9 and 2-10. The Village of Euclid adopted a comprehensive zoning ordinance that zoned the area in question so as to allow only residential use. See Euclid, 272 U.S. at 379-84, 47 S.Ct. 114. In so doing, it excluded all nonresidential uses. Id. The Supreme Court noted that the exclusion of industrial use included even those industrial uses that are "neither offensive nor dangerous." Id. at 388, 47 S.Ct. 114. The Court concluded that "[i]t cannot be said that the ordinance in this respect `passes the bounds of reason and assumes the character of a merely arbitrary fiat.'" Id. at 389, 47 S.Ct. 114 (citation omitted). The Court stated:

If it be a proper exercise of the police power to relegate industrial establishments to localities separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial flow from the course which it would follow, to the injury of the residential public, if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.

Id. at 389-90, 47 S.Ct. 114.

¶ 36 In the wake of Euclid, other cases have helped to clarify the discussion regarding substantive due process challenges to zoning. See, e.g., Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 498 n. 6, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Pearson, 961 F.2d 1211. Even so, the line between a valid or invalid exercise of police power remains less than clear. As the Court noted in Euclid, "[t]he line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities." Euclid, 272 U.S. at 387, 47 S.Ct. 114.

¶ 37 While the line between permissible and impermissible zoning may not always be readily ascertainable, the requisite standard that must be applied for a substantive due process challenge is clear: we must determine whether the ordinance is clearly arbitrary and unreasonable in the restricted sense that it has no substantial *794 relation to the public health, safety, morals or general welfare.^[17]Euclid, 272 U.S. at 395, 47 S.Ct. 114; Pearson, 961 F.2d at 1223.

¶ 38 Certainly, municipalities may regulate where and under what circumstances certain less desirable uses, such as salvage yards and stockyards, may be developed. However, here no justification exists for precluding all uses in the B-2 District and only providing the landowner with the possibility of obtaining a conditional use permit. Ordinances can be drafted so the acceptable uses as of right do not conflict with the conditional uses. Municipalities have the power to zone property and restrict where particular undesirable uses may be developed within the municipality. However, zoning that restricts the land such that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals or general welfare of the public in order to withstand constitutional scrutiny. In this case, the restricted use of the B-2 District land does not bear a substantial relation to the public health, safety, morals or general welfare.

¶ 39 We note that rather than precluding all uses as of right in a particular zone, the more common, acceptable practice is to provide for permitted uses as of right, and then in addition to permitted uses, the ordinance may provide for conditional uses. Case la