The opinion
Cox, Judge,
dissenting.
I must respectfully dissent.
The standard set forth for zoning appeals, when it comes to a variance, has been enunciated in
Cole v. Marion Twp. Bd. of Zoning Appeals
(1973), 39 Ohio App.2d 177 , 68 O.O.2d 363 , 317 N.E.2d 65 , paragraph one of the syllabus:
“The standards set forth in R.C. 519.14 for the granting of variance by a township board of zoning appeals are fourfold: (1) The variance will not be contrary to the public interest; (2) owing to special conditions literal enforcement of the resolution will result in unnecessary hardship; (3) the spirit of the zoning resolution shall be observed; and (4) substantial justice shall be done.”
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Here, the appellant has focused on item number 2 above, and the majority has stated that the issue in this appeal is whether the hardship must relate to the property for which the variance is sought or whether a finding must be based upon a showing of hardship on adjoining property.
The majority would be correct in its position if this were not a cemetery. The property in question is residential. By its very nature, a cemetery has no use for a residence. Canfield Township Zoning Resolution 705.3.3 provides for the allowance of variances and the board, under 705.3.3 and R.C. 519.14, had the authority to make the decision it made.
The congregation (cemetery) needed the extension for two reasons: it needed additional space for burial lots and to relieve the present parking and traffic problems. Further, the evidence demonstrated that Lot 14 was the only vacant property available for parking or future burial lots. It would seem, therefore, that the congregation (cemetery) enhances the general zoning throughout the area without creating any adverse effect on the area. This is precisely what the Supreme Court said in
Consolidated Mgmt., Inc. v. Cleveland
(1983), 6 Ohio St.3d 238 , 6 OBR 307, 452 N.E.2d 1287 .
For that reason, I would affirm the decision of the board, the referee, and the trial court in this matter.