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No.

2006AP450

such

limitation

bears

no

substantial

relation

to

the

public

health, safety, morals or general Realty where restricting uses in a

welfare. flood plain

Unlike in Dur-Bar was directly tied

to no

the health, safety, morals or general welfare justification exists for precluding all uses

of as

the public, of right in

the

B-2 District.

2. Zoning treatises and journals

¶48

Leading

zoning

treatises

support

the

notion

that

standard zoning practices contemplate permitted uses as of right that can be expanded upon by the administrative zoning function. Professor Mandelker writes:

The drafters of the Standard Zoning Act clearly contemplated a zoning process in which the uses designated by the zoning ordinance were permitted "as

of right," administrative

but

they

also

zoning

function.

provided

for

The

Standard

an Act

delegated this function to the board of adjustment. It authorized the board to grant variances from the zoning ordinance in cases of hardship, as defined in the Act, and to grant special exceptions authorized by provisions in the zoning ordinance. Many zoning ordinances use the term "special" or "conditional" use rather than "special exception. . . ."

Mandelker, supra, § 6.39, at 6-44 (emphasis added).

¶49 In Anderson's American Law of Zoning, the observation is also made that "[m]ost ordinances impose a broad division of land uses," and, in addition, those ordinances then provide that "specified uses may be established or maintained" pursuant to a

31

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