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No.

2006AP450

as-applied

substantive

due

process

challenge

was

successful.

19

Id.

at 63-65.

¶43

Here,

we

conclude

appropriately described as

a

that the B-2 District "no permitted uses" zone,

can be and we

conclude that the no permitted uses B-2 District and unreasonable because it bears no substantial public health, safety, morals or general welfare.

is arbitrary relation to However, we

do recognize that there may be limited circumstances in which a "no permitted uses" zone is a valid exercise of power because the restriction bears substantial relation to the public health, safety, morals or general welfare. For example, in Dur-Bar Realty Co. v. City of Utica, 394 N.Y.S.2d 913, 918 (N.Y.A.D. 1977), the New York Supreme Court, Appellate Division, concluded that a "no permitted uses" zone was constitutional as the parcel at issue was in a "Land Conservation District and represented a

zone located in the flood plain." "Land Conservation District" "aimed

Id. at 915-16, 918. to regulate the use" of

The land

in a "flood prone area." Id. at 918. today does not include a similar purpose

The ordinance at issue as in Dur-Bar Realty.

19

While the Sheerr court determined that a "conditional use

by permit only zone"——also

permitted uses zone"——was

owner,

the

court

noted

referred by the Sheerr court

arbitrary as applied

that

the

relevant

to this zoning

as a "no property statutes

authorized a "conditional use by permit only zone." court determined that the zoning statutes "conditional use by permit only zones" so long as "definite specifications and standards" in place.

64. and

In not

the case at issue "definite," so no

today, the standards are certainty exists as to a

The Sheerr authorized there were Id. at 62- generalized conditional

use permit.

28

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