NWHIHIWIUTWIWHIIIW Mk 1 3 1293 00842 8793 niov 235591; J”! E 23 1999 ZONII The 1 aspects of zor. funeral home a table approac': site develops in these per; stane‘ u&r.g arc: place of the tern. The 3 exists a gen zoning Can t character 01 quatEIY pro: R any land Us IEgal Princ factors ar ated. The the funera of the gre ABSTRACT ZONING FOR FUNERAL HOMES IN THE URBAN COMMUNITY by Jon Paul Weersing The purposes of this study are to examine the many aspects of zoning law and practice that directly affect the funeral home as an urban land use, and to suggest more equi- table approaches to regulating the location, operation, and site development of this essential establishment. Inherent in these purposes is the intent to promote a better under; standing among the various groups concerned with the prOper place of the funeral home within the urban develOpment pat— tern. The study was initiated on the premise that there exists a general lack of agreement as to the manner in which zoning can best accommodate the legitimate needs and true character of this land use type and, at the same time, ade— quately promote the general welfare of the public. Realizing that zoning regulations pertaining to any land use type must be established within the context of legal principles and accepted approaches of zoning, these factors are examined in order to provide the basic framework within which methods of regulating funeral homes are evalu— ated. The locational needs and Operating characteristics of the funeral home are objectively analyzed with consideration of the greater weight of case law concerning funeral home Jon Paul Weersing location. As a result, the land use situations which are most appropriate for the location and Operation of this establish— ment are set forth. Specific recommendations are made for permitting funeral homes in certain types of commercial zoning districts and in office and professional districts as a matter of right, and in residential districts as a conditional use. These rec— ommendations, along with suggested deve10pment standards, are designed to accommodate the unique nature of the funeral home and to take advantage of its potentials as a transition use between commercial and residential deveIOpment. ZONING FOR FUNERAL HOMES IN THE URBAN COMMUNITY A Study of Zoning Law and Practice as it Pertains to the Funeral Home as an Urban Land Use by Jon Paul Weersing A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER IN URBAN PLANNING School of Urban Planning and Landscape Architecture 1967 ACKNOWLEDGMENTS I would like to express my appreciation to the many persons and organizations that have furnished information, encouragement, and support for this study. I am especially grateful to: Mr. Charles W. Barr, Professor of Urban Planning at Michigan State University, who served as faculty advisor to the study and without whose time, effort, and encouragement' this endeavor would not have been the learning experience that it was; Mr. Jack D. Jorgensen, Executive Secretary of the Michigan Funeral Directors Association; Mr. Howard C. Raether, Executive Secretary of the National Funeral Directors Asso- ciation; and the many members, officers, and associates of their organizations who were extremely helpful in so many ways; The Michigan and National Funeral Directors Asso- ciations which initiated this study and provided the financial support for its completion; And to my wife, Sally, who made it all possible. ii TABLE OF CONTENTS ACKNOWLEDGMENTS o ' o o o o o o o o o o o o o o o o 0 INTRODUCTION 0 O O O O O O O O O O O O O O O O 0 Chapter I. -PRINCIPLES, APPROACHES, AND TRENDS OF ZONING o o o o o o a o o o o o o o o o o 0 Introduction . . . . . . . . . . . . . . . The Legal Basis of Zoning . . . . . . . . .‘. Police Power . . . . . . . . . . . . . . Enabling Legislation . . . . . . . . . . Legal Limitations . . . . . . . . . . . . Zoning Practice . . . . . . . . . . . . . Early Zoning Efforts . . . . . . . . . . Euclidian Zoning . . . . . . . . . . . . Positive and Negative Approaches . . . . Performance Zoning . . . . . . . . . . . Flexible Zoning and the Funeral Home . II. GOVERNMENTAL AGENCIES CONCERNED WITH ZONING Introduction . . . . . . . . . . . . . . . Planning Commission . . . . . . . . . . . . Original Ordinance . . . . . . w . . . . Amendment . . . . . . . . ._. . . . . . . Additional Duties . . . . . . . . . . . . Local Legislative Body . . . . . . . . . . Legislative Judgment . . . Additional Powers of the Legislative Body Zoning Administrator . . . . . . . . . . . Zoning Board of Appeals . . . . . . . . . . General Powers . . . . . . . . . . . . . Variances . . . . . . . . . . . . . . . . Special Uses . . . . . . . . . . . . . . Appeals . . . . . . . . . . . . . . . . .‘ Limitations of Power . . . . . . . . . . Conclusion . . . . . . . . . . . . ... . . iii Page ii vi Chapter III. IV. VARIANCES, AMENDMENTS, AND NON-CONFORMING USE PROVISIONS o o o o o o o o o o o ' Introduction . . . . . . . . . . . . Variances . . . . . . . . . . . . . Conditions . . . . . . . . . . . . Extent of Variance . . . . . . . . Unnecessary Hardship. . . . . . . Variance, Conditional Use, and - Exception . . . . . . . . . . . Discretion of the Board . . . . . Court Action . . . . . . . . . . . Additional Conditions . . . . . . Public Hearings . . . . . . . . . Summary . . . . . . . . . . . . . Amendments . . . . . . . . . . . Types of Amendments . . . . . . . Significance to Regulation of Funeral Homes . . . . . . . . . . . . . Relative Permanence of Zoning . . Privilege of Amendment . . . . . . Reasonableness . . . . . . . . . . Amendment of the Zoning Text . . . Re-zoning . . . . . . . . . . . . Spot Zoning . . . . . . . . . . . Checklist for Re-zoning . . . . . Amendment Procedure . . . . . . . Public Hearing . . . . . . . . . . Public Opinion . . . . . . . . . . Non-Conforming Use Provisions . . Types of Non-conformities . . . . Vested Interest . . . . . . . . . Problem of Non-conforming Funeral Homes . . . . . . . . . . . . . Enlargement, Extension and Change of Use . . ... . . . . . . . . . Repairs,'Maintenance, and Minor Alterations . . . . . . . . . . Relief . . . . . . . . . . . . . . Discontinuance . . . . . . . . . . Elimination . . . . . . . . . . . Conclusion . . . . . . . . . . . . . REGULATION OF FUNERAL HOME LOCATION, OPERATION AND SITE DEVELOPMENT . . . . . . . . Introduction . . . . . . . . . . . . iv Page 47 47 48 48 51 62 66 67 68 69 70 71 72 72 73 75 76. 76 79 81 84 88 90 95 '97 98 99 101 103 107 109 114 117 121 123 123 Chapter Characteristics and Locational Requirements . . . . . . . . . . . . . . Characteristics . . . . . . . . . . . . Locational Requirements . . . . . . . . Future Demand for Funeral Home Sites . . Exclusion from Residential Districts . . Reminder of Death . . . . . . . . . . . PrOperty Values . . . . . . Odor and Disease . . . . . . Traffic . . . . . . . . . . Requisites to Enjoinment . Affect on Zoning Law . . . Law of Equity . . . . . . . .'. . . . . A Case Study . . . . . . . . . . . . . . Traditional Approach: Commercial Districts . . . . . . . . . . . . . . . Central Business Core . . . . . . . . . General Business Areas . . . . . . . . . Intermediate Commercial Areas . . . . . Neighborhood Commercial Areas . . . . . The Single Commercial District . . . . . General Permissibility . . . . . . . . . Recommendations . . . . . . . . . . . . . Commercial Districts . . . . . . . . . . Office and Professional Districts . . . Standards in Commercial and Office Districts . . . . . . . . . . . . . . Conditional Use in Residential Districts Specificity of Use Regulations . . . . . . Conclusion . . . . . . . . . . . . . . . . BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . Page 124 125 129 132 135 138 140 142 142 143 143 144 146 155 158 159 160 162 165 166 167 167 169 175 180 196 198 199 ZONING FOR FUNERAL HOMES IN THE URBAN COMMUNITY A Study Of Zoning Law and Practice as it Pertains to the Funeral Home as an Urban Land Use INTRODUCTION Many local approaches to regulating funeral home location through zoning are outdated and inadequate to ac- comodate the locational needs and Operating characteristics Of the modern funeral home. Common attitudes tOward the. funeral home as an establishment dealing with the deceased and the bereaved have resulted in zoning laws that restrict this important enterprise from residential districts and relegate it to commercial and industrial districts where ap— prOpriate sites are seldom available and where adjacent land uses Often adversely affect its Operation. Such locations are Objectionable to both funeral directors and their cli- entele. In many instances, these locations have also proven to be inapprOpriate from the viewpoint of land use planning. Traditional zoning district classifications and zoning techniques have not enabled the regulation of funeral home location in a manner befitting its unique nature and at the same time promoting the public welfare. Widespread ac- ceptance Of relatively recent zoning trends makes more equitable approaches possible. However, planners, legislators, vi funeral directors, and the public have failed to agree on the manner in which the funeral home can best be incorporated in- to the urban land use pattern. The purposes of this study are to promote a better understanding among these groups of the principles of zoning and Of the problems, needs, and character of the funeral home as a land use activity, and to suggest locational and site development policies which can be incorporated into zoning law. In order to accomplish these purposes, the study is comprised of four major areas. The first is an analysis Of zoning law and practice: its principles, approaches, and trends and the agencies of government responsible for its formulation, administration, and enforcement. These basic legal and procedural considerations provide the framework within which zoning for funeral homes must be viewed. Sec- ond is_a summary of the principles and procedures concerning variances, amendments, and non-conforming use provisions. These three aspects of zoning are particularly significant to the funeral home, and their purposes and implications are Often misunderstood by those concerned with zoning law and its methods Of regulating land uses. Third is an Objective analysis of the locational needs and Operating characteristics Of funeral homes, the greater weight Of case law pertaining to funeral home location, and zoning practices. Finally, these three factors are incorporated with the legal principles vii luI inll'll“.lIl l.‘ I ll:- lI‘ ll. I ' lil.ll 1Il1l i‘l‘ni’l‘li J and accepted trends of zoning to formulate suggested policies and regulations concerning funeral home location, Operation, and site development. For the purposes Of this analysis, the term "funeral home" is intended to refer to an establishment that provides the full range Of services necessary to accomodate the de- ceased and the bereaved. This includes preparation rooms, parlors, chapels, casket selection areas, and all accessory facilities including living quarters, garages for funeral vehicles, storage and delivery areas, and onrsite parking. The term is not intended to refer to crematories, various partial service establishments, or any other establishment of a similar nature. It should be noted that, for the most part, the term does not include the "mass mortuaries," as zoning considerations for these establishments differ some- what from those pertaining to the more limited volume funeral homes. However, particular references are made to the pro— blems relating to them. The term "funeral director" is herein used in its broadest sense to refer to that person who owns, Operates, or manages a funeral home and is thereby concerned with its lo- cation and operation. The term is not limited Only to the licensed professional. The case law presented in this study is solely for the purpose Of exemplifying stated principles and pointing out certain facts. Many facts concerning each case have been viii omitted here as they are not pertinent to the examples they are intended to provide; but these facts were, no doubt, Of importance to the court's decision in each particular case. For this reason, the case law presented herein should be ana- lyzed further in its prOper context before it is utilized to state a rule of law in a particular situation. The conclu~ sions Of this study are not intended to promote the practice Of misrepresenting case law by paraphrasing or quoting out of context. ix CHAPTER ONE Principles, Approaches, and Trends of Zoning INTRODUCTION It is necessary to provide a background Of basic zoning considerations with which to view the facts, Opinions, and conclusions concerning zoning for funeral homes as pre— sented in the ensuing chapters. The material within this chapter is intended to present fundamental legal principles Of zoning and recognizable trends which must be considered when zoning for a particular land use in the community. At~ tempts tO establish more equitable approaches to zoning for funeral homes must necessarily be founded within the context Of such primary principles as prOper exercise of the police power, reasonable application of the zoning ordinance to particular properties, proper relation to enabling legislation, and compliance with constitutional principles Of due process and equal protection Of the law. THE LEGAL BASIS OF ZONING Police Power. Zoning is an exercise of the police power Of the state as it is expressly granted to the munici- pality. The nature Of the police power has prevented a pre— cise and universally accepted definition, however, interpre- tations have been flexible enough to permit the state and its municipalities to establish several types of regulations which, in some demonstrable way, promote the public health, safety, morals, and general welfare of its peOple. The United States Supreme Court has stated:1 The police power Of the state embraces regulations de— signed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or public safety- . . .It is not confined to the supression of what is Offensive, disorderly, or unsanitary [but] extends to so dealing with the conditions which exist in the state as to bring out in them the greatest welfare of its peo— ple. Although the police power appears to be quite in- clusive, the courts have held that the exercise Of this power must be judged on the circumstances Of each case and the pur- pose Of the particular regulation it has fostered. Referring to this question, the United States Supreme Court has said:2 . . .the validity of a police regulation. . .must depend upon the circumstances Of each case and the character of the regulation, whether arbitrary or reasonable and whether really designed to accomplish a legitimate pub- lic purpose. Each regulation within the zoning ordinance must ultimately be judged on its merits as a prOper exercise of the police power and its compliance with the "due process" clause Of both Federal and State constitutions. This relationship is exemplified in the ensuing chapters, as specific zoning pro- visions and court cases are analyzed. lBacOn v. Walker, 204 U. s. 311, 317, 318. (1907) from Newman F. Baker, The Legal Aspects of Zoning (University Of Chicago Press) 1927, p. 113-114. 2Chicago B & Q Ry. v. Drainage Commission, 200 U. S. 561, 592. (1906) from Baker, op. cit., p. 113—114. 9-. , . .s.~L,,.v.-v.a$!fln§ 1|! 1 .II‘ 1‘ I ‘6. ‘ ‘ i l. .... I Although over four hundred municipalities had adopted zoning ordinances in this country by 1926, and several state courts had declared zoning to be a prOper exercise Of the police power, widespread doubt concerning the constitu- tionality Of zoning continued to exist. Only after the now famous Euclid v. Ambler Realty CO.3 decision handed down by the U. S. Supreme Court in 1926, was this doubt erased. The court ruled directly on the constitutionality of the compre- hensive zoning principle. In the Euclid decision, the Supreme Court stated that zoning bore a substantial relationto the public health, safety, morals, and general welfare, and was .thus constitutional and not in violation of the Fourteenth Amendment. In a later ruling,4 the Supreme Court declared that even though the principle Of zoning was constitutional, each case must be judged on its particular circumstances to determine if the application of the ordinance to a specific piece of prOperty is a just exercise Of the police power. This decision made it clear that the power to zone was not unlimited, and has provided the basis for countless court decisions in subsequent years. The questions raised by early 3Village Of Euclid, Ohio v. Ambler Realty CO., 272 U. S. 365, 47, Sup. Ct. 114, 71 L. Ed. 303 (1926): for detailed analysis of this case see Metzenbaum, Law of Zoning, Baker, VOOrhies, &CO. Volume 3, Second edition, p. 1903—1956. 4Nectow v. City Of Cambridge, 277 U. S. 183, 48 Sup. Ct. 477 (1928). zoning attempts concerning due process and equal protection Of the law have generally been resolved, and current attacks on zoning are primarily concerned with the application of particular provisions of the zoning ordinance rather than the principle of zoning per se. The distinction between zoning under the police power and the public right of eminent domain is sometimes confused in the process of controlling physical develOpment in the community. Restrictions upon prOperty which result in the unreasonable diminution Of practicable use are, in actuality, the taking of prOperty for public purpose and not just and reasonable police regulations. The courts have rightfully declared that such practice is confiscatory and resembles the practice of eminent domain without due compen— sation paid to the injured party.5 Enabling Legislation. As previously stated, the municipality must Obtain its power to zone from the state, which is the repository Of the police power. This is gen- erally accomplished through the zoning enabling act, although some cities have been granted the power to zone directly by , the state constitution or through a "home rule" charter. The courts have prOperly looked for an expression from the state 5Corthouts v. Newington et al., 140 Conn. 284, 99 A 2d 112 (1953). Plainfield v. Middlesex, 69 N.J. Super. 136, 173 A 2d 785 (1961). grill! l.,-||‘ Ii . . z . ’11.. ‘1‘ ‘ll-II ‘I‘. 1‘... legislature granting the local government power to zone.6 A large prOportion of the zoning provisions which have been de- clared invalid by the courts are a result Of a failure to 'comply with the powers and procedures as specified within the state enabling act. Many such cases are discussed in the fol- lowing chapters. Enabling acts vary from state to state, but a great many Of them are patterned after the Standard State Zoning Enabling Act as suggested by the U. S. Department of Commerce.7 Although this model act is in many ways outdated when viewed 'in terms Of the needs of the modern community, it, neverthe— less, serves in whole or in part as the base for most state enabling statutes in this country. Section 1, "Grant of Power," of the Standard Enabling Act states: . . .For the purpose of promoting health, safety, morals, or the welfare of the community, the legislative body Of cities and incorporated villages is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other Open spaces, the density of population, and the location and use of buildings,-structures, and land for trade, industry, residence, or other purposes. 6Clements v. McCabe, 210 Mich. 207, 177 N.W. 722 (1920) City of St. Louis v. Evraiff, 301 MO. 231, 256 S.W. 489 (1923) Goldman v. Crowther, 147 Md. 282, 128 A 50 (1925) . Spann v. City of Dallas, 111 Tex. 350, 235 S.W. 513 (1921) State ex rel. Ignaciunos v. Risley, 98 N.J.L. 712, 121 Atl. 783 (1923). . . 7Advisory Committee on Zoning, United States Depart— ment Of Commerce, "A Standard State Zoning Enabling Act Under Which Municipalities May AdOpt Zoning Regulations," Revised edition, 1926. ‘ Subsequent sections Of the act empower the community to establish districts by which to carry out the purposes Of the Act, set forth the powers and duties of the zoning commis- sion, require means and procedures for ensuring that the zoning ordinance is established in a comprehensive and coordinated manner, provide checks to prevent hasty and arbitrary changes in the ordinance, and finally, provide for a board of appeals with the authority to deal with exceptional cases. NO munici- pality is compelled by an enabling act to zone. In this sense the enabling statute is permissive. However, if a community choses to zone, it must comply with the provisions Of the statute. Legal Limitations. State legislatures and courts have recognized the possible dangers Of arbitrary and discrim— inatory application of the zoning power. Several restrictions and safeguards have been utilized by means of enabling statutes and court decisions to ensure that reasonable exercise of this power is not exceeded. Many Of them are worthy of mention as elements Of the legal basis of zoning.8 First, most enabling acts require that regulations within a district must be uni— formly applied to each type or class of structure or use within that district.9 Second, both the courts and state enabling statutes have demanded that there must be a reasonable and 8taken in part from Local Planning Administration, International City Managers' Association, Chicago, 1959, p. 306, 307. 9Standard State Enabling Act, Op. cit., Section 2. rational means Of classifying particular areas differently from other areas; with consideration for a comprehensive plan for the community and the character of each area with respect to its suitability for particular uses.lo Third, the courts have generally held that the zoning ordinance must be appli— cable to the entire jurisdictional area of the municipality.11 Finally, the courts have most emphatically declared that zoning regulations must be reasonable in their application to a particular piece of property.12 This last requirement has provided the grounds for a great number Of injunctions against the enforcement Of particular zoning provisions. These sev— eral basic tests Of the legality of zoning provide the frame- work within which zoning for funeral homes must be examined. A great many of the court decisions involving funeral home location and development standards ultimately rely on these tenets. Cognizance of these "ground rules of zoning" is a necessary requisite to the examination of problems of funeral home zoning and the search for more equitable solutions. From the foregoing discussion, it can be concluded that: 1. Zoning is an exercise Of the police power Of the 10ibid. Section 3. Lionshead Lake Inc. v. Wayne Twp. 10 N.J. 165, 89 A 2d 693, (1952) Helms v. Charlotte, 255 N.C. 647,122 8. E. 2d 817 (1961) see also: Charles M. Harr, "In Accordance With A Comprehen- sive Plan," 68 Harvard Law Review 1156 (1955). 11 Shuford v. Waynesville, 214 N.C. 135, 198 S.E. 585 (1938) , Anne Arundel Co. V. Ward, 186 Md. 330, 46 A 2d 684 (1946). 12Nectow v. Cambridge, Op. cit. ..«MM _ . , state as granted to the local legislative author— ity. .. . 2. It is a legislative act subject to constitutional guarantees Of private rights. 3. It is valid only if designed to promote the pub- lic health, safety, morals, and general welfare. 4. Its validity depends on its reasonableness as applied to particular properties. 5. What is reasonable depends on the circumstances Of each case. . ZONING PRACTICE Current zoning practice has evolved over the past fifty years as a result of the constantly changing and ex— panding need to control land use develOpment. As urban set- tlements have become more complex, the implications of public health, safety, morals, and welfare have necessarily assumed a broader application. The courts have recognized that al-' though the principles of the legal basis Of zoning remain the same over time, the needs Of communities constantly, change and enlarge; thus a flexible interpretation Of the police power, as exemplified through zoning, is necessary and desirable to meet emerging conditions. The dynamisms Of human settlements demand this. However, the modern needs and characteristics of many particular land use activities are Often slow to be reflected in zoning practice, public Opinion, and case law. This is eSpecially true in the case Of funeral homes. Analysis of the evolution and practice Of- zoning in general, and zoning for funeral homes in particu- lar, clarifies the current position Of this police regulation and provides a more stable background for examining in detail the issues Of zoning controls exercised on funeral homes. Early Zoning Efforts. The earliest zoning efforts in this country were not characteristic of zoning as it is known today. The "use regulations" in Los Angeles (1911), the "height regulations" in Boston (1909), and numerous fire district regulations Of that time were incomplete attempts at zoning. The first comprehensive zoning ordinance encom— passing height, area, and use regulations was adOpted in New York City in 1916,13 and was upheld by the New York State Court Of Appeals.14 The adOption of the ordinance was prompted by overbuilding in the central part of the city, particularly at subway access points, lack Of adequate light and air as a result of tenement and skyscraper design and locations, and the undesirable invasion of manufacturing activities into fashionable commercial areas. Similar prob- lems plaguing the majority of large cities resulted in the 13for a complete discussion of the New York City ordinance, see: Edward M. Bassett, Zoning: The Laws, Admin- istration, and Court Cases During the First Twenty Years, New York, the Russell Sage Foundation, 1936, Chapter II. l4Lincoln Trust v. Williams Building Corp., 229 N.Y. 313, 128 N.E. 209 (1920). 10 rapid acceptance of zoning as a means of regulating land use development. The Standard State Zoning Enabling Act was a major impetus to the zoning movement by providing state legi- ‘slatures with a model upon which to pattern their state en-' abling statutes. Euclidian Zoning. The pioneer zoning concept as supported and furthered by the Euclid v. Ambler decision of 1926 is commonly referred to as "Euclidian zoning." It is characterized by a rigid demarcation of districts and a strict specification Of permitted uses and regulations. Traditional Euclidian zoning is therefore rigid, with limited flexibility. provided only through the granting of variances by the board Of appeals upon demonstration of "unnecessary hardship" by the prOperty owner. This approach is often hindered by in- herent hardships as a result of its lack Of flexibility. Strict interpretation of these early ordinances was Often im- possible, unreasonable, and contrary to the best interests of the community. The "compartmentalized city," as Haar chooses to refer to it,15 is a result Of this early Euclidian zoning. The concept of dividing the city into various combinations Of use, height, and area districts with strict specification of permitted uses and regulations has proven to be inadequate for the needs of the modern community and is yielding to a more flexible approach. 15Haar, Charles M., "Emerging Legal Issues in Zoning," Planning, 1954, American Society of Planning Of- ficials, p. 140. ‘ 11 ' Positive and Negative Approaches. The traditional Euclidian zoning ordinance follows a cumulative pattern Of permitting any use of a "higher" district to be located in a district of "lower" designation. Perhaps more properly re— ferred to as the negative approach, it is based on the theOry that the single family residence is the "highest and best" use for any parcel of land, followed by higher density residential classifications, commercial uses, and finally, the least de— sirable industrial uses. Thus the single family residence is permitted in any district, the retail use is permitted in commercial and industrial districts, and the least restrictive industrial district permits indiscriminate mixing of all land uses. The underlying philOSOphy Of this concept is to pro- tect the most desirable land use types from the generally Objectionable commercial and industrial activities, while 'imposing few, if any, restrictions on the location of these "higher" use types. Such a rationale is unsound for Obvious. reasons. The dangers Of allowing residential uses in pre— dominantly commercial and industrial areas are perhaps even greater than those created by the existence of occasional commercial and industrial uses in residential neighborhoods. The dangers, inconveniences, and diseconomies of unplanned mixing of incompatible land uses are apparent today. This negative approach commonly lists the uses which are prohibited in a particular distriCt rather than the currently accepted positive method of designating the 12 land uses permitted in each district. The negative ordinance proved that, in many cases, it was impossible to determine and subsequently list all of the uses which should be restricted from a particular district. Such an ordinance could not al- ways be effective in preventing the establishment of an un- desirable use which was not specifically listed as being prohibited. The phiIOSOphy Of protecting the most desirable land use type (usually the single family residence) from the less desirable has formed the basis for most approaches to zoning for funeral homes. Little consideration was afforded, through early zoning attempts, to the needs and characteristics of many non-residential land use types. The various commer- cial, service, and industrial uses, as well as the vast number of uses which fit neatly into none Of the traditional land use categories, have definite locational and Operational needs which must be considered. The common concept of zoning for funeral homes is an Obvious example. In one of the earliest zoning textbooks, Newman F. Baker quite accurately indicated the position of the funeral home in the 1920's when he wrote:16 Many ordinances excluding certain trades and industries from business and residential districts. . .have been upheld as being designed to promote the convenience and comfort Of the public. Such use regulations have been directed against livery stables, laundries, lumber yards, l6Baker, Newman F., The Legal Aspects of Zoning, University of Chicago Press, 1927, p. 114. 13 brick kilns, cemetaries, undertaking establishments, slaughter houses. . .foundries, asylums, hair products businesses, and so forth. It is interesting to note the company with which Mr. Baker associates the "undertaking establishments." Edward M. Bassett, generally recognized as one Of the first and foremost authorities on the legal implications of zoning, states in the 1936 edition of his book, Zoning, that:l7 Nearly every municipality before zoning had one or more mortuaries in buildings which had been private homes with ample grounds surrounded by residences. There was an apprOpriateness in such a location from the point Of View Of the owner and the people attending funerals. The neighbors, however, objected. When zoning ordinances were adOpted, new mortuaries were relegated to business districts. However inapprOpriate a crowded and noisy business district may be for funerals, there is no doubt that the mortuary is a business. Courts have said that the constant occurance Of funerals produces an atmosphere Of depression in residence districts. This is especially the case with children, Old peOple, and invalids. The courts have rather uniformly upheld the exclusion. This appears to be an accurate picture Of zoning for funeral homes in the early years. The court decisions by which this approach was supported are numerous and distinct.18 These early attitudes and decisions have constituted much of the basis for current funeral home zoning practices. In many cases, the funeral establishment has been relegated to a dis- trict within which no suitable sites for its development are available and where other permitted uses exert a harmful im- pact upon the Operation of the establishment. As is pointed 17Bassett, Edward M., Zoning, Russell Sage Founda— tion, 1936, p. 213. lBlpid. p. 213, provides a list of 27 such cases. 14 out in the ensuing chapters, this basis has proven to be out- dated and insufficient tO solve the current problems of zoning for funeral homes, and fails to consider the modern charac- teristics and needs Of this activity in relation to the more sophisticated trends in zoning. Although the approach to zoning for funeral homes. has not been drastically altered by it, the negative approach Of zoning has given way to the more workable concept of spec- ifying the permitted uses in each district based on a theory Of the best location for a particular use. Termed the "posi— tive approach," it takes into account the fact that all land use types have certain locational needs and Operating charac- teristics which require particular treatment in order to en- sure their protection from harmful influences and to maximize their benefit to the public. Such an ordinance is directed towards positive achievement of develOpment goals, rather than negative measures to protect against nuisances. The form and content of this type Of ordinance is recognizable primarily because it states, in a positive manner, the uses permitted in a particular district, and because it does not follow completely the cumulative pattern of allowing the more restricted uses in less restrictive districts. It is usually characterized by a more reasonable and detailed classification Of use types and a greater number of districts. Districts must be defined, and uses permitted within these districts, which encourage the most apprOpriate use Of wi DE tr 1nd]. 15 land in view of the general character and land use needs of the community as a whole.19 It is not reasonable, for exam- ple, for a community to zone large portions Of vacant land within its jurisdiction for strictly industrial uses when neither immediate nor foreseeable needs for extenSive indus- trial land are anticipated. This is particularly true when the land in question is suitable and in demand for other purposes. Under certain circumstances, courts have held that a community need not provide for a particular land use in its zoning structure where such use may be amply accomodated else- where in the same geographical region.20 However, a community need for a particular land uSe must, at the very least, be provided for within the metropolitan area, and cannot be com- pletely excluded from it. In this sense, zoning is not purely a local matter. Great care must also be taken to ensure that the classification of uses is reasonable, and that there exists a logical common basis for classifying seemingly different uses as being compatible. Justifying the inclusion or exclusion Of particular land uses is Often difficult, as no universal formula is applicable. 19Corthouts v. Newington et al., 140 Conn. 284, 99 A 2d 112 (1953) ‘ Roney v. Board Of Supervisors, (California) 292 P 2d 529 (1956). 20Fischer v. TOwnship of Bedminster, 11 N.J. 194, A 2d 378 (1952)" Duffcon Concrete Products v. Cresskill, 1 N.J. 599, 64 A 2d 347 (1949). en .H- de: 16 The positive or non-cumulative approach is still a form Of Euclidian zoning in that it is based on the rigid demarcation of districts with specific permitted uses and regulations applicable to each. In many ways it is more re- strictive than the negative method Of specifying prohibited uses, due to the fact that the separation of incompatible activities is more distinct, and the restrictions placed upon the "higher" type of uses are more limiting. The courts have supported this technique as being a prOper exercise of the police power and as promoting the public health, safety, wel— fare and convenience to a possibly greater degree and in a more equitable manner than previous zoning concepts.21 It is within this framework that a few advances in zoning for funeral homes have been noted. Chapters Three and Four provide several examples of a greater awareness in zoning practice, public attitude, and case law of the unique charac- teristics of the funeral home as a land use. As a result Of more detailed breakdowns of Use classifications, the funeral home can be placed within a district which is more compatible with its needs and character, and can be somewhat better pro- tected from activities which are clearly detrimental to it. 21one decision in particular points out the advan- tages and legality Of non-cumulative type regulations: see People ex rel. Skokie Town House Builders Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 157 N.E. 2d 33 (1959). 17 The non-cumulative or positive zoning approach is dominant today. However, it is commonly interlaced with the outdated cliches and taboos Of earlier zoning approaches, ‘and is beginning to lose popularity as a result of the demand for more flexible zoning practices which better fulfill the needs of the modern community. Performance Zoning. This approach relies heavily on the use Of performance standards as a means Of determining the eligibility of a particular activity to locate within a given district. As used herein, the term "performance zoning" is not limited to that type Of performance standard which is commonly associated with industrial activities, and by which the level Of noise, vibration, Odor, smoke, etc. is used as criteria for determining the district location Of a particu- lar use. The term is intended to indicate the variOus site development standards, aesthetic controls, and Operational standards which may be applied to particular land uses in order to reduce their objectionable characteristics and thus make them more compatible with potential neighboring uses. The performance approach to a land use classification permits more flexible zoning which is sensitive to the unique needs and character Of each land use type, and more responsive to changing conditions within the community. Such an approach recognizes that rigid segregation of uses is not essential to the purposes of zoning if the factors which make a particular 18 use Objectionable can be controlled. The factors subject to this control are not only those related to performance of the activity which takes place on the property, but include the physical characteristics Of the development itself. One cOm— mon example is the location of an apartment house development in a single family district. Other planning considerations taken into account, the apartment house may not be objection— able tO its neighbors when its lOt is proportionately larger, it has ample front and side yards, sufficient Open areas for the use Of its residents, adequate Off street parking screened from adjacent prOperties, it is aesthetically congruous with the surrounding neighborhood, and does not create undue con— gestion in the streets.22 This example can easily be applied to the funeral home. Such an approach applied to various land uses affords a wider choice of locations and can result in more interesting and more convenient urban areas. A performance type of zoning departs from the tra- ditional Euclidian concept. It has resulted inga planned mixing of selected land uses in such a manner that they do not exert adverse influences upon one another, a mixing Of various densities while achieving a desired overall density Of develOpment, and an interweaving of commercial and service establishments for the convenience of the neighborhood. Common 22Green,‘Phili'p P., Planning Law and Administration, Institute of Government, University Of North Carolina, 1962, p. XII: 28. 19 examples of this increased flexibility are planned unit com— mercial and residential developments and the integrated' develOpments permitted by many ordinances subject to parti- cular development requirements. An even greater reliance upon the comprehensive plan for the community is required by this technique for both practical and legal reasons. Before applying the Opportunities of this flexible approach to zoning for funeral homes, it is necessary to exa— mine some of its practical and legal Considerations. The most difficult problems encountered in setting up the approach are concerned with the determination of equitable standards which apply to the particular land use. The characteristics Of the use and the factors which make it Objectionable to neighboring uses must be accurately recognized. Regulations which are ef— fective and reasonable must be devised to accomplish the de- sired ends. In addition, the consequences Of allowing a planned mixture of uses have seldom been carefully analyzed, and little is known of the long range effects of such a prac- tice. There are also many legal questions to be answered concerning the use Of performance standards, aesthetic con- 23 Another significant difficulty trols, and bulk regulations. is the construction of the wording Of the ordinance itself, and the application Of the technique in such a manner as not to violate the principles of zoning previously discussed. 23Sussna, Stephen, "Fifty Years Of Zoning" American Bar Association Journal, November, 1966, p. 1033. 20 Methods of accomplishing this flexible performance type Of zoning are varied. There are dangers as well as ad- vantages, inherent in each method. Extensive reliance on the conditional or Special use permit, as Opposed to use by right is Often cumbersome from an administrative point Of view. It can also be legally questionable unless the requirements for such a permit are clearly not discriminatory or unreasonable. Questions concerning the degree to which each method approaches the concepts of the "floating zone," "spot zoning," the illegal granting Of variances, and indiscriminate rezoning must also be answered by the courts. These are discussed in the opinions Of Rodgers v. Tarrytown and Rockhill v. Chesterfield Township,24 but the courts have not been consistent in their Opinions con- 25 It is difficult to generalize as to cerning these subjects. the legality of the methods of accomplishing more flexible zoning due to the varied techniques and the unique considera- tions of each method. Flexible Zoning and the Funeral Home. The trend towards flexibility in zoning presents the greatest Opportun—' ities for establishing more equitable locational and develOp- mental standards for funeral homes. It is within this 24Rodgers v. Tarrytown, 302 N.Y. 11s, 96 N.E. 2d (1951) Rockhill v. Chesterfield Township, 23 N.J. 117, 128 A 2d 473 11956). 25see: Eves v. Zoning Bd Of Adjustment, 401 Pa. 211, 164 A 2d 7 (1960) DeMeO v. Zoning Comm. of Bridgeport, (Conn.) 167 A 2d 454 (1961) Huff v. Bd. Zoning Appeals, 214 Md. 48, 133 A 2d 83 (1957) Green, Philip P., “Is Zoning By Man Replacing Zoning By Law?" Journal of the American Institute of Planners, Vol. 21, Nos. 2-3, p. 82-87. 21 framework that many Of the proposals for model zoning provi- sions pertaining to funeral homes are set forth in Chapter Four. If the common Objections to the funeral home can be removed or minimized through performance standards, certain site develOpment requirements, and aesthetic considerations, it will become more acceptable in a greater number of situ— ations. Even though it is doubtful that the funeral home will ever be a completely accepted use in a purely single family area, the possibilities of permitting it as a transis tional use, including it in office and professional and limited commercial districts, and allowing it under certain circumstances in residential areas of an appropriate nature are distinct. This increased flexibility in zoning for funeral homes would undoubtedly result in a wider choice of sites in areas of a character which is prOper for, and ad- vantageous to the Operation of the establishment. CHAPTER TWO Governmental Agencies Concerned With Zoning INTRODUCTION The distinction among the legislative, administra- tive, and judicial functions of government, as they pertain to the zoning process, is basic to the understanding of zoning practice. State enabling acts, local zoning ordinances, and courts Of law are clear in defining the jurisdictions Of each Of these functions in zoning matters. Before one applies for a building permit, makes appeal for relief from a zoning pro— vision, requests an amendment to the zoning ordinance, or re- quests judicial review, it is desirable to be aware of the separate and interrelated roles of the governmental agencies concerned. PLANNING COMMISSION The Standard State Zoning Enabling Act provides that the local legislative body shall appoint a zoning com— mission tO recommend district boundaries and the zoning regulations therein._ It also provides that where a city planning commission already exists, it may be appointed as the zoning commission.l Most states follow this example. Many smaller communities without a planning commission have only a zoning board (commission); but in the majority Of cases, a planning commission assumes the duties of the board. 1Advisory Committee on Zoning, United States De- partment of Commerce, "A Standard~State Zoning Enabling Act Under Which Municipalities May AdOpt Zoning Regulations." Revised Edition, 1926. 22 23 The advantage of such an arrangement is that the zoning ordinance is an integral part Of comprehensive planning and the single most important tool for the implementation of the master plan for which the planning commission is also respon- sible. In addition, the planning commission is a permanent body and can continue to advise the legislative body on future amendments to the ordinance. For the purposes Of this discussion, it is assumed that the planning commission functions as the zoning board. Original Ordinance. The planning commission is‘an advisory arm of the governing body and possesses no legisla- tive or administrative powers, except indirectly through the recommendations it may make. It is charged with seeing that the necessary data is collected and studies made upon which the new zoning regulations will be based. This function is usually carried out by a professional staff or consultant employed by the cOmmission. The planning commission, through its staff, prepares the tentative ordinance, conducts public hearings, and submits the prOposed ordinance to the legisla— tive body for its approval and adOption. It is with the commission that the citizen will generally negotiate as an affected party in zoning matters. He should be aware of where in the zoning process he must communicate with the -planning commission and what the commission's functions are in this regard.‘ 24 The planning commission cannot submit its final recommendation to the city council until it has held a pub- lic hearing in which all interested parties are provided the Opportunity to express their approval, Objections, or sugges- tions concerning the prOposed regulations. Since it is the duty Of the commission to gather necessary information and make studies upon which to base the ordinance, it should be made aware of the Operating characteristics and locational needs Of the funeral home as a land use. This responsibility Often falls upon the interested funeral director, and should be exercised prior to the adOption Of the ordinance. To for- feit this right to be heard and considered, may require the owner of a funeral home to be subject to regulations which do not reflect the true character and needs of his establish- ment. I The legislative body generally holds a public hearing on the prOposed ordinance after the planning commis- sion has submitted its recommendation. Although this is normally a part Of the prescribed adOption procedure, fewer changes in the prOposed regulations are made at this stage. The best time for the property owner to express himself is through the planning commission hearings, where the ordinance is still in the formulation stage and adjustments can most readily be made. However, if the prOperty owner is not satisfied with the planning commission's recommendation, it is important for him to present his views at the public 25 hearing conducted by the legislative body. It should be pointed out that the function Of the legislative body is primarily the adOption Of the ordinance, and that of the planning commission is to prepare the prOposed regulations. The citizen should note that it is easier to influence the formulation of new zoning regulations than it is to have them changed at a later date. It is also difficult to prove the unreasonableness of an established regulation in a court Of law. Amendment. After the initial ordinance has been adOpted, the planning commission may study changes or amend- ments to the ordinance and submit recommendations to the legislative body. This function is much like that of recom- mending the original ordinance. The same procedures for public hearing are required. The planning Commission may, of course, initiate an amendment; a right that is also granted to prOperty owners, the legislative body, and inde— pendent public agencies. Requests for amendments to the zoning ordinance are ordinarily made through the planning commission in com— pliance with the prOper procedures set forth in the ordinance. (See "Amendments," Chapter Three) The zoning administrator, board of appeals, or governing body are not the prOper places to bring requests for zoning amendments. Such a request, along with substantiating information and all additional com— munication, should be channeled through the commission. 26 Additional_Duties. Although the most important function Of the planning commission is investigating and recommending prOposed amendments, it may assume such other duties as the governing body may assign to it. The planning commission is frequently required to approve conditional uses. This function, often delegated to the board Of appeals, can be assigned to the planning commission for administrative expedience under the municipality's power to enforce and ad- minister the zoning regulations. Planning commission approval is Often required for planned residential develOpments, shop— ping center site plans, and industrial parks where questions Of design and interior circulation are best reviewed by the commission's technical staff who are qualified to make neces- sary evaluations. It is possible, however. that the planning commission may be required to approve or review all applica- tions for conditional uses permitted within the ordinance before building permits can be issued. The petitioner should familiarize himself with the prOper procedure outlined in the ordinance, and with the specific conditions he must satisfy before the permit may be granted. The planning commission cannot act in cases involving variances or appeals from an administrative decision. Functions of this type which require an interpretive judgment, are reserved for the quasi-judicial 'board of appeals. 27 The most important point for the prOperty owner to realize is that, although the adOption of the zoning ordinance, or an amendment to it, are functions Of the legislative body, such actions are initiated through the planning commission. The commission is an essential link in the zoning process through which the prOperty owner may express his views and exercise the privilege Of requesting zoning change. LOCAL LEGISLATIVE BODY The local legislative body is the only instrument Of government that can enact or change zoning law. Although the legislative function is discussed indirectly in relation to the activities Of the other governmental agencies concerned with zoning, several additional principles which govern the actions Of the governing body must be mentioned. Some of these points have also been mentioned in a general way in Chapter One. Actions Of the city council (local legislative or governing body) must be in compliance with the provisions of the state zoning enabling act. The municipality, being a creature Of the state, has only those powers Of zoning granted to it by the State. The first test of the validity Of the zoning ordinance, or of a particular provision within the ordi- nance, is its compliance with the powers and procedures ex- . pressed in the enabling statute. Procedural steps followed by the legislative body in enacting or amending the ordinance must also comply with 28 existing law in order for the regulations to be considered valid by the courts. This same principle applies to the en- forcement and administration of the ordinance. Legislative Judgment. It has been stated as a principle of the legal basis of zoning that the reasonable- ness Of a zoning provision is the essential factor in deter- mining its constitutionality. When the legislative body has been reasonable in adopting its zoning regulations, such regulations will be upheld by the courts unless it can be shown that there is a clear abuse of the police power or that the provisions are not designed to promote the health, safety, morals and general welfare of the public.2 In a civil proceeding involving the validity of a zoning provision, the plaintiff must prove the actions of the governing body, through the enactment Of the provision, to be arbitrary and discriminatory (and thus unreasonable) as applied to his prOperty. An abuse Of the legislative power which ren-' ders the provision unreasonable must be clearly shown or the legislative judgment Of the governing body will not be over- ruled by the court. If the reasonableness Of a provision is a debatable fact, the legislative judgment will stand, and the provision will be assumed valid. It is the burden of the plain- tiff tO prove unreasonableness: indeed an Often difficult task. 2Clark, Robinson & Hellebush, "Some Practical Aspects Of the Zoning Laws as They Pertain to the Operation Of Funeral Homes," 1965, p. 1,2. ' 29 In passing on the validity of a zoning ordinance, the courts will not substitute their judgment for that of the governing body. On this subject of legislative juris— prudence, Michigan Supreme Court Justice Talbot Smith has stated:3 In view Of the frequency with which zoning cases are now appearing before this court, we deem it expedient to point out again, in terms not susceptible Of mis- construction, a fundamental principle: this court does not sit as a super zoning commission. There appears to be no way in which this statement can be made plainer. In a landmark case, a Texas appellate court in reversing the decision of a lower court, stated that in order for the judgment of the jury and the court to be substi— tuted for that of the city council it must be shown that the council clearly abused its discretion, and that the test for determining unreasonableness was whether or not a debatable issue Of fact existed. Only the absence of such a debatable issue would authorize a ruling against the ordinance: other- wise it must be presumed valid.4 This doctrine of "presumptive 3Municipal Legal Briefs: Newsletter of the Michigan Association Of Municipal Attorneys," Vol. 9, No. 6, June, 1958, p. 73. 4City of Dallas v. Lively, 161 S.W. 2d 895. (Texas Civ. App. 1942, error ref'd) from: "The Texas City and its Power to Zone," Institute Of Public Affairs, University of Texas, (1962) p. 13. V 30 validity" of the zoning ordinance is well established through- out the states.5 NO rule Of zoning law has been made more clear. Although applicable to all zoning provisions, this doctrine is most clear in cases of legislative determination Of uses permitted or restricted in particular zoning districts. Since a great many land uses do not fit neatly into any Of the traditional classifications (residential, commercial, indus- trial, and variations thereof), the classificatiOn of parti- cular uses for zoning purposes is frequently a very "debatable" question. In the absence of a better method, the judgment of the legislative body, under advisement of the planning commis- sion, must determine such matters. This is especially true in the case of funeral homes. If it were not for these rules of presumptive validity and legislative judgment, the location of funeral homes and many other uses would be debated indefinitely, and no zoning ordinance would be stable and effective. TO prove beyond a doubt that a legislative body abused discretion or acted arbitrarily in placing the funeral home in a particular zoning district, is extremely difficult. Where the zoning ordinance places the funeral home is not a matter for judicial decision, but is a result of legislative 5 365 (1926). County of Fairfax v. Parker, 186 Va. 675, 680 44 S.E. 2d 9,12. Reese v. Mandel, 167 A 2d 111. (Maryland) State v. Ehinger, 46 SO. 2d 601. (Florida) Yokely, Soning Law and Practice, Vol. 1, (1962), p. 64 will provide cases in additional states. Village Of Euclid v. Ambler Realty CO, 7772 U.S. 31 judgment as long as the ordinance is prOperly related to the health, safety, morals, and general welfare of the public and does not violate the other legal principles of zoning. The Superior Court of New Jersey has held that the exclusion of funeral homes from residential districts is not a valid reason to void the provision of the zoning ordinance on the gournds of unreasonableness; and that the inclusion or exclusion of such use in particular districts is a matter of legislative judgment.6 The court did not state that it felt funeral homes should be restricted from such districts, but only that since it was not an unreasonable exclusion, the decision of the legislative body should be presumed valid. In a similar case, the Illinois Supreme Court reversed a lower court ruling stating the zoning ordinance was arbitrary in excluding funeral homes from apartment districts. The higher court said that it was valid to exclude such use from apartment districts, as locating funeral homes is a matter for legislative discretion.7 The decision also stated that a debatable question was present, and that the judgment of the legislative body could not be superseded by that Of the court due to the fact that the provision was not proven un- reasonable by the plaintiff. 6Frizen v. poppy, 82 A 2d 134. (Sup. Ct. N.J., 1952). 7Mahoney v. City Of Chicago, 137 N.E. 2d 37, (Sup. Ct. 111., 1956), aIso see: State ex rel. Skillman v. City of Miami, 134 SO. 541. Lewis v. Baltimore, 164 Md. 146. ’h- exemplified ; Tlie court rui from a distr. a hospital, ; sion in ques was proven t. showed that the use in (3 Properties. funeral home are 0bViOUs_ I Off‘street P rEsultamt inl USes Would kl outward Simil lar Compata‘y. Sllfficient 5 Similar uSe mitted' Adi: particIllar c 32 What may constitute an unreasonable provision is exemplified in the case Of Johnson v. Village Of Villa Park.8 Tfie court ruled that funeral homes may not be lawfully excluded from a district that permits a medical college with a mortuary, a hospital, private club, hotel, or rooming house. The provi- sion in question was declared invalid because such exclusion was proven to be arbitrary and discriminatory.9 The plaintiff showed that certain uses were permitted which were similar to the use in question in their probable impacts upon surrounding prOperties. The similarities among some of the Operations of funeral homes, hospitals, and medical colleges with mortuaries are obvious. The court appears to have felt that the need for off-street parking, the semi-residential appearance, and the resultant increase in traffic on the streets created by these uses would be similar to that created by a funeral home. The outward similarities in appearance and Operation and the simi- lar compatability with surrounding uses were, in this case, sufficient for the court to rule that the funeral home is_a similar use and cannot be excluded where the others are per- mitted. Additional facts, although not pertinent to this particular discussion, influenced the decision of the court. 8Johnson v. Village of Villa Park, 370 Ill. 272, 18 N.E. 2d 887. ‘ 91t should be noted that most zoning ordinances in- clude a "separability clause" which provides that if any sec- tion or provision Of the ordinance is declared unconstitutional by the courts, such decision will not affect the validity of the ordinance as a whole. enacted is more in the f haVing t abuse of ment is inequite Ways act desires as 1991: fUnEral Valid 1 IEaSOna and gel In Sue 33 To prove a provision unreasonable which has been enacted in good faith as a promotion of the public welfare is more difficult than to exercise the right to participate in the formulation of the ordinance or the privilege Of having the ordinance amended. Except in cases of distinct abuse of legislative discretion, the alternative of amend— ment is generally a more effective approach tO eliminating inequitable provisions. The principle of legislative judgment does not al— ways act as an adverse factor to the funeral home owner who desires certain favorable locations in the community. Just" as legislative judgment has been upheld which restricts funeral homes from particular zoning districts, it can be valid in including them. The same legal prerequisites of reasonableness and promotion of the health, safety, morals, and general welfare of the public must, of course, be met. In such case, the plaintiff in an action against the ordi- nance would assume the burden Of proving that the legislative body abused discretion by permitting funeral homes in certain districts. Examples of court action of this type are, how- ever, very infrequent. There are three primary reasons for this: (1) few zoning ordinances permit funeral homes to be located in purely residential districts, (2) seldom do pro- perty owners attack a zoning ordinance because it permits the use in commercial or similar districts, (3) available case law seems to indicate that it is more frequent for the pro- perty owner to seek a court injunction against the funeral director to e a residential to bring dire such a locat. It attack the o funeral home than it is f the funeral latter is, 0 claim of unr lem Of publ: home than it greater Get; entire ques- some State ‘ municipalit: Situation, t0 the boar the lOCal g posed 015 th \ l ChaptEr. 34 director to enjoin the establishment of his funeral home in a residential neighborhood than it is for the prOperty owner to bring direct action against the ordinance which permits such a location. It is also more common for the funeral director to attack the ordinance on the basis of its exclusion of the funeral home from districts he considers prOper and desirable than it is for him to attack a provision because it permits the funeral home in districts he considers undesirable. The latter is, of course, usually included to substantiate his claim of unreasonableness. Point three above is more a prob— lem of public attitude toward, and image of, the funeral home than it is a problem of zoning. This is discussed in greater detail in Chapter Four, as a central point to the entire question of zoning for funeral homes. Additional Powers of the Legislative Body. Under some state enabling statutes, the legislative body Of the municipality may act as the zoning board of appeals. In this situation, it assumes all of the functions ordinarily granted to the board in addition to its regular responsibilities as the local governing agency.10 It should be noted that al— though the legislative body and the board of appeals are com- posed of the same individuals, they function as two separate 10see discussion of "Zoning Board of Appeals," this Chapter. bodie When the b: kept a tions tion c body h these to gra wide cl usuall: Zoning POWers among 1 Where t decidin Varianc Michiga apPeétls Within is QUit. “ended 38cti0n 35 bodies in carrying out their dual role in the zoning process. When in session as the city council, they cannot function as the board of appeals, and vice versa. Separate minutes are kept and the public hearings required by law for both func- tions are held separately.. Matters pertaining to the func- tion of the board of appeals cannot be brought before the body while it is acting as the city council. Unfortunately, these distinctions are easily violated under this arrangement. Although many states empower the legislative body to grant conditional use permits when questions of community- wide consideration are involved, the board of appeals is usually retained as the primary quasi-judicial agency in zoning. The degree to which the governing body is granted .powers frequently attributed to the board Of appeals varies among the states. The extreme is present in New Mexico,11 where the legislative body replaces the board in hearing and deciding upon appeals, granting conditional uses, and granting variances in cases Of unnecessary hardship. In the State of Michigan, the local legislative body may act as a board of appeals or may appoint such board and designate its powers 12 within the confines of the state act. This Optional approach is quite common. 11State of New Mexico, Zoning Enabling Act, as amended 1960, Article 14 - 28 - 15. 12Michiggn Public Act #207, amended to April, 1965, Section 5. act as a desirable powers wi legislati zoning to legislati the laws CEpted pr enforcing Officer, term "bui: in Small c iDSpectOr ment of ti offiCEr’ 36 The practice of empowering the governing body to act as a zoning board of appeals is generally considered un- desirable. It tends to ignore the traditional separation of powers within government, places an additional burden on the legislative body, and places the administrative processes Of zoning too close to the political processes. Permitting the legislative body to act administratively and judicially upon the laws that it has enacted is not consistent with the ac- cepted principles of our legal systems. ZONING ADMINISTRATOR The person responsible for the administering and enforcing of the ordinance is referred to as the administra- officer, zoning administrator, or building-inspector.» The term "building inspector" is usually applied to this Official in small communities where his primary function as building inspector is supplemented by his responsibility for enforce- ment of the zoning ordinance. The duties of this enforcement officer, regardless of his exact title, usually fall into four categories: 1. to receive applications for, and issue or deny building permits after inspecting premises or construction plans for compliance with zoning regulations.' 2. to make inspections and issue certificates of 'zoning compliance for completed buildings and to verify non-conforming uses. 37 3. to make inspections for violations of provisions of the ordinance. 4. to order discontinuanCe of illegal uses or il- legal work in progress and enforce the same ac- cording to the provisions of the ordinance; and to initiate such court action as may be neces- sary to prevent or enjoin violations, or report violations to the legislative body for it to initiate such court action. The zoning administrator is in no way a judicial officer and can exercise no quasi-judicial authority.- He can- not issue exceptions or variances from the regulations of the ordinance. Neither does he possess any authority to determine the severity of the application Of the ordinance to individual prOperties. As amply stated in the court's decision of Lee v. Board of Adjustment:13 . . .the building inspector, a purely administrative agent, must follow the literal provisions of the zoning regulations. All building permit requests must be presented to the administrative officer. If the request is denied and the prOperty owner believes the denial is not justified, he may have his request forwarded tothe zoning board of appeals. Decisions of the administrator can be taken only to the board, 13Lee v. Board Of Adjustment, 226 North Carolina 107, 110, 37 S.E. 2d 128, 131. and cann lished p EEEEE'14 mandamus ministra have exh of Appea that to j ministra: appeals a set fortl 38 and cannot be taken directly to the courts. This well estab— lished principle is exemplified in the decision of Wofford v. Porte,14 where a Georgia court ruled that before a writ of mandamus as a remedy for action brought against a zoning ad- ministrator could be issued by the court, the plaintiff must have exhausted his right to first appeal to the Zoning Board of Appeals. The courts have been consistent in their Opinions that to hear direct appeal from a decision of the zoning ad- ministrator would be to usurp the function Of the board of appeals and to violate the principles of zoning administration set forth by statute. ZONING BOARD OF APPEALS Since a large proportion of zoning case law per- taining to the funeral home is in some way related to the actions of a zoning board of appeals, a synOpsis of the board's function in the zoning process is warranted. Fre— quently,matters brought before the boards of appeals by pro- perty owners seeking relief from provisions Of the ordinance, involve questions which cannot be dealt with by the board. The wise prOperty owner embarking upon an action involving .the board of appeals should become familiar with the powers of such board in his particular community. 14Wofford v. Porte, 93 S.E. 2d 690, (1956), see also: State ex rel. Vielhauer v. Leighton, 171 N.E. 2d 748 (Ohio, 1959). board 0: called) mance w: possess: respect: Powered procedu; by the . must be enablint States, stander of apps owners or inte fiCer' specia: where i (3) 9r. the Or‘ 39 General Powers. The zoning board of appeals (or board of adjustment or board Of review, as it is sometimes called) is created by the local legislative body in confor- mance with the provisions Of the state enabling act. It possesses quasi—judicial responsibilities which are, in some reSpectS not unlike those of a court Of equity. It is em— powered to act only within the defined limits and prescribed procedures as set forth in the zoning ordinance established by the legislative body. The powers granted to the board . must be consistent with those specified in the state zoning enabling statute. Although minor variations exist among the states, the powers Of the boards of appeal are fairly well standardized throughout the country. Authority is most commonly granted for the board of appeals to: (l) hear and decide upon appeals of prOperty owners when there is an alleged error in any decision, order,. or interpretation of the ordinance by the.administrative of- ficer, (2) hear and decide upon applications for, and grant Special exceptions (Special use or conditional use permits). where the ordinance Specifically refers such matters to it, (3) grant, after appeal, variances from the literal terms Of the ordinance where hardship or practical difficulty is proven, and where an extreme departure from the zoning regu- lations is not involved. (The power to grant variances, as presented here, is somewhat oversimplified, and the reader is encouraged to refer to the discussion of "Variances" in Chapter Three.) of The the anc dif of If the abu an ,- a p, Var: 1935 TeXa 1%) Ber 40 (In addition to the above mentioned powers, the board of appeals is frequently authorized to make determinations with reSpect to such matters as the ordinance Specifically del— egates to it. Such original jurisdiction most Often includes questions involving non-conforming uses, but sometimes encom- passes several minor functions too numerous to mention here. Variances. The board may not, however, assume any of the legislative functiOns of the city's governing body. The board of appeals has no legislative power and cannot amend the ordinance in any way or pass judgment on the validity of any of its provisions. It can vary the application of zoning regulations only as Specifically authorized in the ordinance. Boards Of appeals are ordinarily restricted to granting vari— ances in cases to meet "unnecessary hardship or practical difficulty" which would be created by strict interpretation of the ordinance in its application to particular properties. If a variance is granted without sufficient proof of this, the courts have been quick to rule that such action is an abuse of the power granted to the board, and is, in actuality, 15 Amendment is, Of course, an attempt to amend the ordinance. a power reserved for the legislative body. The granting of a variance which permits a substantial departure from the terms 15Adams v. Board of Adjustment, 241 S.W. 2d 35 (MO., 1935) Texas Consolidated Theaters v. Pittelo, 204 S.W. 2d 396 (Texas, 1947) ' Brey v. Beyer, 166 S.W. 2d 290 (Ky., 1942). of the t intent . vires, 1 tween t zoning constit discuss law, be as to a limitat the ord conside; Particu; the mos: °nly thc abling a queSts. of apPEE and deCj Permits. rules of use Perm scribed ; 41 of the ordinance, and is not consistent with the purpose and intent of the zoning regulations is Often held to be ultra vires, or beyond the power of the board. The distinction be- tween the proper granting of a variance and a change in the zoning provisions is a fine one. Conditions which normally constitute valid grounds for the issuance of a variance are discussed in detail later. Since the action of a board of appeals cannot, by law, be such as to violate the purposes of the ordinance or as to abolish the regulations it has set forth, the exact. limitations of its power should be carefully interpreted from the ordinance before an appeal for relief is initiated. In considering the power of the board of appeals to relieve a particular situation in which the prOperty owner finds himself, the most important thing to remember is that the board has only those powers conferred on it by the ordinance and its en— abling act. Such an awareness can eliminate many invalid re- quests. Special Uses. As previously mentioned, the board of appeals is ordinarily empowered by the ordinance to hear and decide upon requests for Special use (conditional use) permits. Conditions for the approval of the Special use and rules Of procedure within which the board must act in granting or refusing it, are Specified in the ordinance. The Special use permit can be granted only when facts and conditions pre— scribed in the ordinance are determined by the board to exist. The mo- regula if Spe' tioner exist 1 uses 11 tinctic rors of charged to ensu forced. "safety POlice 1 0n the r This is Standard "719<3r1'e_v,eC Peal to 1 building StratOr.S conneCtio; proCedures ferent Sta 42 The modern zoning ordinance, in its enumeration of district regulations, provides for Special uses which may be permitted if specific conditions are found to be present. The peti- tioner must demonstrate to the board that these conditions exist before the board may act. The discussion Of special uses in Chapter Four clarifies these principles and the dis- tinction between a variance and a Special use. Appeals. In hearing and deciding upon alleged er- rors of the zoning administrator or building inspector charged with the enforcement of the ordinance, the board;acts to ensure that the ordinance is prOperly interpreted and en- forced. In the zoning process, this function represents the "safety valve" that is normally present in the enforcement of police regulations. The board cannot, however, rule directly on the validity of the provisions of the ordinance itself. This is the responsibility of courts of record; Most zoning statutes, following the form Of the Standard State Zoning Enabling Act, provide that any person aggrieved by a decision Of the zoning administrator may ap— peal to the board. A prOperty owner who has been denied a building permit by the administrator may appeal the admini- strator's interpretation of the zoning provision, and in connection with such appeal, may apply for a variance. Exact procedures are subject to Several variations under the dif- ferent state enabling acts, but should be clearly prescribed within the actions shc with the p appeal inv the limita found in c actions of dual requg aware, at order to 1 these con: 2d 48. m 43 within the ordinance. Any property owner involved in such actions should accept the responsibility of becoming familiar with the prOper procedures. Violation of them can render the appeal invalid. . Limitations of Power. Some common expressions of the limitations on the powers of zoning boards of appeals found in Opinions in cases involving judicial review of the actions of such boards are worthy of summation.) The indivi- dual requesting relief from the board of appeals Should be aware, at least in a general sense, of these limitations'in order to be sure that he has a legitimate appeal. Some Of these common limitations are that the board: 1. may not amend the zoning ordinance or disregard its provisions.16 2. must act only within the limits of power granted to it by enabling legislation and as eXpressed in the local ordinance.1 16Bernstein v. Smutz, 83 Colo. App. 2d 108, 188 P. 2d 48. Burr v. Rage, 120 Conn. 287, 180 A 444. Bd. of Appeals of City of Indianapolis v. Waintrup, 99 Ind. 576, 193 N.E. 701. 17Smith v. Seligman, 270 Ky. 69, 109 s.w. 2d 14. Welch v. Swazey, 214 U.S. 91, 29 Sup. Ct., 567. Washington v. City of Dallas, 159 S.W. 581 (Texas). contex must t to det Court: rule , the5e Petty to SE 44 3. may not determine if the ordinance itself is arbitrary or unreasonable.18 4. may not alter the boundary lines of established zoning districts.19 5. may not determine the regulations to be applied to prOperty.20 Since these statements are general and taken out Of context, they may be misleading in certain situations. They must be related to the facts of each case in which they appear to determine their true impact upon the decisions of the‘ courts presiding. Ordinarily, courts Of law will not over- rule a board's action unless it has violated one or more of these principles or has clearly abused its discretion.21 It is, of course, an established right Of any pro- perty owner aggrieved by a decision of the board of appeals to seek review of such decision by a court of record. State 18Yoormey v. Norwood Realty Corp., 211 Ga. 814, 89 S.E. 2d. Dowsey v. Village of Kensington, 257 New York 221. 19Plumb v. Zoning Boardof Appeals, Conn. 108 A 2d. 899, 901. . Indianapolis v. Ostram, 95 Ind. App. 376, 176 N.E. 246. 2°Levy v. Board of Appeals, 243 A.D. 609, 276 NYS 370. Cassell v. Lexington Twp. Bd. of Zoning, 127 N.E. 2d. 11 (Ohio). 21Nectow v. Cambridge, 277 U.S. 183. Norcross v. Bdl of Adjustment, 255 Mass. 177, 150 N.E. 887. Hopkins v. O'Meara, 197 Va. 202, 205, 89 S.E. 2d. 1,3. legisla city cc in an i of hot} prOpert the boa suffici court 1 mental zen in and res; cess, g by Stat, °f Pred: fOrCemer uniVErsE thOSe Of tion Of ‘ formulat; existin?) 45 legislation usually prohibits appeal of a board's action to the city council or its equivalent. Such a procedure would result in an intrusion of the legislative function on the jurisdictions of both the board of appeals and the courts. Neither is the prOperty owner usually permitted to re-appeal his case before the board unless the circumstances surrounding the case have suffiCiently changed since the original appeal. The circuit court is the prOper place to seek further relief. CONCL US I ON O Inherent in the foregoing discussions of the govern- mental agencies concerned with zoning and the role of the citi- zen in relation to each, are the essential rights, privileges, and responsibilities Of the property owner in the zoning pro- cess. The limitations placed upon the powers of these agencies by state laws, local ordinances, and the courts are guarantees of predictability in the legislation, administration, and en- forcement of zoning laws. Although the general principles are universal to zoning, variations of details should be noted in local ordinances. Procedures pertaining to zoning law are much like those of other legal systems in that there is defined separa- tion of governmental functions, public participation in the formulation of regulations, the privilege of amendment to existing law, the right to appeal enforcement measures, provisi: the rig the fun basis f and non 46 provision for extenuating circumstances, and, of course, the right of judicial appeal. These principles, as well as the functions Of the various governmental agencies, are the basis for the following discussions Of variances, amendments, and non-conforming use provisions. CHAPTER THREE Variances, Amendments, and Non—conforming Use Provisions vision distri with e unders stions uses, zoning means funera Zoning genera tOWard ments are pa tion C distri and in . INTRODUCTION Variances, amendments, and non-conforming use pro- visions are means Of changing, or departing from, zoning district regulations. The principles and procedures associated with each are detailed within this chapter to promote a better understanding of their possible application to particular situ— stions. Although these provisions involve all types of land uses, they are especially Significant to considerations of zoning for funeral homes. Variance is one of the principle means by which the funeral director attempts to establish a funeral home in a location prohibited by district regulations. Zoning provisions pertaining to funeral home location are generally outdated and inadequate, and most of the progress toward more equitable provisions will be realized through amend— ments to existing ordinances. Non-conforming use provisions are particularly important to funeral homes as a large prOpors tion of them are designated as non-conforming uses in the districts in which they are presently located. The purposes and implications Of each of these three types of provisions are Often misunderstood by planners, legislators, and funeral directors who are concerned with the location and Operation of funeral homes in the community. 47 tions on ‘ power, li' restrictil lar piece to its ow regulatio of the va plication cases inv. IEliEf fo ordinance the appli this sens 0f Zoning Zoning Or °f aPPEal InstituLc W wel9ht 0 48 VARIANCES Although a zoning ordinance imposes general restric- tions on the use of prOperty as a valid exercise Of the police power, literal interpretation Of its provisions may result in restrictions which, due to unique circumstances Of a particu- lar piece of prOperty, deny reasonable use of that prOperty to its owner. Such situations require a variation in the regulations applied to the prOperty in question. The function of the variance is to provide necessary flexibility in the ap- plication of zoning regulations by extending limited relief in cases involving extenuating circumstances. Failure to provide relief for such situations within the structure of the zoning ordinance would result in many rulings of unreasonableness in the application of regulations to particular prOperties. In this sense, the variance iS a means of preserving the validity of zoning provisions. Conditions. The most common provisions found in zoning ordinances stating the conditions under which the board of appeals may grant a variance permit are: l. ethat the strict interpretation of the zoning provisions would result in unnecessary hardship or practical difficulty inconsistent with the intent and general purpose of the regulation. 1taken in part from: Southwestern Legal Foundation, Institute on Planning and Zoning, Dallas, Texas, Volume 1, 1961, page 117, and modified by this writer's analysis of various state enabling acts, local zoning ordinances, and the greater weight of case law. 49 2. that there are exceptional circumstances appli- cable to the prOperty in question which do not apply to other prOperties in the same district. 3. that the claimed unnecessary hardship was not created by the applicant himself, is not pri- marily a result of the applicant's desire for a greater financial return from the prOperty, and is not merely a difficulty which could be remedied by a minor and reasonable change in the applicant's plans. 4. that the granting of the variance will not be detrimental to the public welfare or injurious to Surrounding prOperties. 5. that the variance will not be inconsistent with the purposes and intent of the regulations, and will not result in an extreme departure from the terms of the ordinance. 6. that in granting the variance, the board of appeals may act only within the powers con- ‘fided to it by the state enabling aCt and the local ordinance. It iS impossible to enumerate all of the minor dif- ferences among the states in the conditions for the granting of variances. The courts themselves are not consistent in their interpretations and decisions involving variances. The above points do, however, include the most common and 50 widely accepted requirements. Cases in which variances are granted which do not comply with these or Similar conditions are the exception rather than the rule. MOSt Often they are a result of a misuse of the board's powers which has not been challenged in the courts. Only a very small percentage of variance cases are actually litigated. In some states, how- ever, the courts have, when the occasion arose, interpreted these powers more broadly than in most. These principles are not unique to situations in- volving funeral homes. They are applicable to all land uSes and make no distinction among them. With a few exceptions as noted hereafter, the funeral director, or any other pro- perty owner, who evaluates his request for a variance in terms of the aforementioned conditions will not be misled. The intent of a variance is to alleviate unneces— sary hardship created by zoning regulations and to allow the use of a prOperty in parity with other properties in the same district. Its purpose is not to grant special privileges to certain prOperty owners. If the power of variance is used properly and the ordinance is well written, the variance will be a very infrequent occurance. It is, however, commonly misused as a substitute for re-zoning, and some boards of ap- peals have been known to use it indiscriminately. Although essential to valid and effective zoning, imprOper use of the variance can destroy all that zoning attempts to accomplish. 51 Extent of Variance. The greatest differences found in variances are in the extent Of departure from the literal terms of the zoning ordinance which they authorize. It is the opinion of the author and of most zoning experts that the variance should not deal with matters concerning the actual use Of the property.2 In other words, the variance should not be utilized as a means of permitting a use of land in a district in which the ordinance does not specifically permit that use. To do so is an extreme departure from the terms of the ordinance, and actually constitutes a re—zoning Of the prOperty in question. The use variance is very Similar to spot zoning, and confers a privilege upon a prOperty owner which is not afforded to others in the same district. Fre— quent granting of use variances is the antithesis of zoning. Many state enabling acts limit the extent of vari- ance to minor departures from the literal interpretation of the local ordinance.3 In such states, variances can be uti- lized to authorize departures from the Specific zoning regu- lations for such matters as yard dimensions, building height, percentage of lot coverage, placement of accessory buildings, off street parking, and numerous Similar items of Site develOp- ment. Among unique characteristics of a particular prOperty 2See in particular: Bair and Bartley, The Text Of a Model Zoning Ordinance, American Society of Planning Offi- cials, Second Edition, 1960, p. 58-59. 3Some state enabling statutes which Specifically prohibit use variances are found in Arkansas, Arizona, Okla- homa, Missouri, Iowa, North Dakota, Texas, and Utah. In most other states the matter is subject to interpretation. 52 which might create unnecessary hardship and justify the granting of a variance, are size and Shape of the lot and natural fea- tures such as tOpography and water Courses. One rule of thumb frequently cited is that a variance Should not permit any de- viation from the terms of the ordinance which would result in a non-conforming use of the prOperty. Most boards of appeals have no expressed power to grant use variances. Many times, however, such power may be inferred and thus validly exercised. Even in these situations, neighboring non-conforming uses, uses permitted in other.dis- tricts, and proximity to another use of Similar character should not be factors which constitute the basis for the granting of a variance. Some enabling acts and local ordi- nances specifically authorize the granting of use variances if the land in question, because of unique circumstances, can— not reasonably be used for a purpose permitted in that dis— trict. However, most situations of this type Should be remedied through re—zoning by the legislative body. Variances Should not be used as an instrument for correcting inadequate or outdated zOning. When conditions in a district or a neighborhood are such that permitted uses therein are no longer suited to it, re-zoning is the prOper remedy. The prOperty owner who finds himself in such a Situation Should consider requesting a re- zoning rather than a variance. Although use variances are generally undesirable, they nevertheless are valid in many communities and must be 53 considered here as a possible alternative which the prOperty owner may pursue. Many times it is not so much the language of the state enabling act that is responsible for the incon- sistent use of variances as it is the disCretion of boards of appeals and the interpretations of local provisions by the courts. Inconsistencies in the interpretation of variance powers are found within the states as well as among them. Where, in compliance with state acts, local ordinances per- mit use variances to be granted, the courts have no alterna- tive but to sustain them if the Other conditions required by law are satisfied. Since it is impossible to determine and state every community in which use variances may be granted, the prospective petitioner Should become familiar with the powers of the board of appeals and the general conditions requisite to the granting of variances set forth in the local zoning ordinance. Examples of prOper and imprOper granting of use variances are presented here to serve as guides, but not as rules of law under all similar circumstances. A typical provision expressly authorizing the granting of use variances and adOpting the more liberal ap- proach is Section 91-21, III, 3 of the Rochester, New York zoning ordinance (1961). It states: VARIANCES. Upon appeal, after due notiCe and hearing the Board may vary or modify the application of any of the regulations or provisions of this chapter relating to the use, construction, structural changes in, equip- ment or alteration of buildings and structures, or the use of land, SO that the Spirit Of the ordinance shall be observed, public safety and welfare secured and sub— stantial justice done, when and only when there are 54 practical difficulties or unnecessary hardship in the way of carrying out the strict letter of this Chapter. Any relief granted shall be only the minimum required to effect substantial justice. New York courts, in ruling on the validity Of use variances granted under this type of provision, have declared that mere "practical difficulty" is not a sufficient basis, and that "unnecessary hardship" is the foundation upon which the bOard of appeals is empowered to act.4 What constitutes unnecessary hardship is somewhat difficult to determine, but is ordinarily based on three factors: (1) the prOperty in question cannot yield a reasonable return if used only fOr a use permitted in that district; (2) hardship is due to unique circumstances of the prOperty, not to general conditions of the entire neighborhood which, in-actuality, reflect the in- adequacies Of the ordinance itself; and (3) the use autho- rized by the variance will not alter the essential character of the neighborhood.5 Such a set Of conditions is desirable in that the necessary flexibility in the application of zoning regulations is preserved, while the possibility of indiscrim- inate granting of use variances by the board of appeals is definitely limited. In the case of Clark v. Zoning Board of Appeals,6. a New York court ruled that the granting of a use variance 4Otto v. Steinhilber, 282 N.Y. 71, 24 N.E. 2d 851. 5Ibid. Bellamy v. Board of Appeals, (Sup. Ct., N.Y.) 32 Misc. 2d 520, 223 N.Y.S. 2d 1017. 6Clark v. Zoning Board of Appeals, 301 N.Y. 86, 92 N.E. 2d 903, (1950). 55 for a funeral home in a residential district was not warranted merely because another funeral home was located around the corner from the proposed site, and the district permitted gas stations, churches, and professional offices. Neither did the fact that the proposed location was on a major street and adjacent to commercial uses justify the variance. The ques- tion before the court was not the desirability Of a funeral home in the neighborhood, but was that the petitioner could not prove unnecessary hardship unique to his prOperty. In applying for a variance based on the general conditions of the neighborhood, the funeral director did not meet the tests as set forth in the local ordinance. (He did not Show a hard- ship peculiar to his prOperty, but pointed out a condition common to the entire area.‘ The Situation appears to be one in which a request for re-zoning of the neighborhood would be a more appropriate approach. Examples Of this type where the funeral director utilizes the wrong approach to Obtaining re- lief because of insufficient knowledge of the principles and. conditions associated with the various procedures Of zoning are common. The greatest freedom of discretion in granting use variances is afforded the boards of appeals in some Eastern states.' Rhode Island is probably the most distinct example. In Messinger v. Zoning Board Of Review,7 a change in the 7Messinger v. Board of Review, (Sup. Ct., R.I.), 99 A 2d 865 11953). 56 character of a residential neighborhood was seemingly the basis for the court's sustaining a variance permitting the establishment of a funeral home in the area. The court stated that Since the neighborhood was in transition and was no longer purely residential, the funeral home was an accept- able use. The existing building on the property in question was also declared to be outmoded for residential use. Two points that stand out in the court's decision as reasons fOr upholding the granting of the variance are that: (l) the proposed location was on a major thoroughfare between two commercial districts which permitted funeral homes, and (2) the board had recently granted a variance for an apartment develOpment in the same districtand near the proposed Site of the funeral home. Such a decision would not be forth- coming in most states. The situation Obviously called for a re-zoning request rather than a variance. As previously mentioned, the general character of a neighborhood ordinarily cannot be the basis for the granting Of-a variance. A Similar decision is noted in the Rhode Island case of Buckminster v. Zoning Board of Review,8 where the court sustained the granting of a use variance for a funeral home in a residential district which otherwise prohibited the use. The court stressed that the lot in question was only 8Buckminster v. Zoning Board of Review, 69 R.I., 396, 33 A 26 199, (1943). 57 350 feet from a business zone that permitted funeral homes, and that between the prOposed site and that zone was a com- mercial establishment. Regardless of the fact that the location appears to be an exCellent one for a funeral home as a buffer or transition between the residential and busi— ness districts, this is not a generally accepted function of the variance permit. These two cases, although yielding desirable re- sults for the funeral directors involved, are poor examples of prOper granting of the variance and should not be cited as rules Of law in cases Of similar circumstances. Both cases illustrate the granting of a use variance by the board of review as a substitute for reszoning by the legislative body. In most states such action by the board would not be sustained. Although not directly involving a question of funeral home location, the decision and comments handed down by the Pennsylvania Supreme Court in the matter of English v. Zoning Board of Adjustment of Norristown illustrate this rule very aptly:9 . . .before a variance may be granted. . .it must be shown that the circumstances that effect the land are unique and. . .are not conditions which effect the whole neighborhood. Only a hardship peculiar to the applicant's prOperty merits. . .a variance. If there 9English v. Zoning Board of Adjustment of Norristown, 148 A 2d 912_(1959), quoted from Zoning Digest, American Society of Planning Officials, Volume 11, 1959, p. 193—194. 58 is a general hardship the Situation Should be remedied by a revision of the general zoning regulation, not by the grant of a Special privilege to Single owners. . . It is the responsibility of the prOper legislative- authorities to keep abreast of the changes SO that zoning ordinances do not become Obsolete but realisti- cally reflect the changes which occur in the community. Even though the temptation be great if the legislative body fails to act, still the legislative function does not pass to the zoning board of adjustment. There does appear to be some limit to the discre- tion of boards Of appeals in Rhode Island as noted in the 10 decision Of Tripp v. Zoning Board of Review. The Supreme Court of Rhode Island affirmed the Pawtucket Board of Review's denial of a variance for the use of a residence in a residen- tial district as a funeral home. The court stated that the establishment of a funeral home in the vicinity of two public schools was not apprOpriate to the neighborhood. It also pointed out that since the applicant did not own the property in question, but only held an Option to buy it, no hardship could exist on his part. This case is Significant in that the variance was judged on the basis of proof of unnecessary hardship and the effect the prOposed use would have upon the surrounding neighborhood. The rule that one who does not own the property for which a variance is sought cannot claim hard- ship is a universal one. The owner Of the prOperty is the only one who can legitimately claim unnecessary hardship. Although no cases pertaining to funeral homes in particular have been noted, the courts of Connecticut appear 10Tripp v. Zoning Board of Review, 123 A 2d 144 (1956). 59 to be equally liberal in their affirmation of use variances. If the applicant proves practical difficulty or unnecessary hardship, the courts infrequently hold that a variance per- mitting a use otherwise prohibited by the ordinance is an attempt to re—zone without legislative process.11 This at— titude is prevalent in many states. . An excellent example Of a zoning ordinance which is very clear on the matter Of the board of appeals' power to grant variances is that of Michiana Shores, Indiana.' The administrative provisions of the ordinance are modeled c10sely after those suggested by the American Society of Planning Officials in The Text of a Model Zoning Ordinance.12 The Michiana Shores ordinance states:13 Variances. The Board of Zoning Appeals may vary or adapt any provisions Of this ordinance. Except as authorized by Section 7(C) (l) of article IV, the Board shall not grant a variance to allow a use not permitted by the terms of this ordinance. NO variance shall be granted unless the Board first makes positive findings on all of the following points: 1. That the lot is exceptionally irregular, narrow, shallow, or steep, or that the land, or building, or structure is subject to other exceptional physi- cal conditions peculiar to it; ' 11See Boston University Law Review, Volume 36, num- ber 3, Summer, 1956, p. 440-448. 12 Bair and Bartley, op. cit., Section 9, p. 51. 13"Zoning Ordinance of the Town of Michiana Shores," Article V, Section 2, D. Text quoted from Mandelker, Daniel R., Managing Our Urban Environment: Cases, Texts, and Problems, BObbs-Merrill, Inc., 1966, p. 611. 60 2. That the applications Of the provisions Of this ordi- nance to the land, building, or structure would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land, building, or structure; 3. That the granting of the variance will be in harmony with the general purposes and intent of this ordinance, and will not be injurious to the neighborhood or other- wise detrimental to the public welfare. An ordinance of this type leaves no doubt as to the 14 prOper role Of the variance. In DeFlavia v. Hill, the West- chester County (New York) court upheld the board of appeals' denial of a variance for a funeral home to be located in a purely residential district which prohibited the use. The court stated that the board had no power to grant a variance which would permit a use otherwise excluded by the ordinance.‘ The ordinance in this Situation, like the Michiana Shores ordi- nance, prohibited the board Of appeals from issuing use vari— ances. Under such a provision, a use variance constitutes an amendment tO the zoning map. Again, the queStion before the court was not the desirability of a funeral home in the area, but was the power Of the Board of Appeals to grant use vari- ances. DeCisions against the granting of use variances have been set forth in several states. The bases for these decisions frequently vary. The Court Of Appeals of Georgia, for example, has held that the granting of a use variance allowing the establishment of a funeral home in a residential 14DeFlavia v. Hill, 158 N.Y.S. 2d 436. 61 district which otherwise prohibits the use, is invalid.15 The basis of the application for the variance was that the Board had previously granted a variance for an office building to be located in the neighborhood, and that like treatment should be afforded the funeral director who wished to construct a funeral home in the same neighborhood. The Court stated that' a funeral home is not an Office building, and that previous granting of variances in a district does not, in itself, justi- fy additional such actions. It added that each request must be judged on its own merits and particularly on the proof of unnecessary hardship. The appellants asserted, and the Court agreed, that the variance in question amounted to a re-zoning of the prOperty since the applicant had failed to Show unneces- sary hardship as the local ordinance required. The.Board of Appeals, in granting the variance without such proof, had actually re-zoned the prOperty and acted outside of its juris— diction.16 15Mobley v. Thomasville, 104 S.E. 2d 586 (1958). 16for additional decisions involving funeral homes and use variances, see: ‘ Cefalo v. Ellis, 124 N.E. 2d 247, (Mass. 1955) prOperly denied. Keiser v. City of Plainfield, 10 N.J. Misc., 496, 159 A 785 upheld denial in residential district. . Ackerman v. Board of Commissioners, 62 A 2d 476 (Sup. Ct., N.J. 1948) imprOperly granted in residential district. Woodbury v. Zoning Board of Review of Warwick, 82 A 2d 164, (Sup. Ct., R.I., 1951) prOperly granted in residential district. Miller v. Planning Commission of Torrance, 292 P 2d 278, (Cal., 1956) prOperly granted in retail district. . Brown v. City of Los Angeles, 183 Cal. 783, 192 P 716, (1920) cannot be granted in business district. Drabble v. Zoning Board of Review, 52 R.I. 228, 159 A 828, denial affirmed. . 62 Unnecessary Hardship. The irreducible factor in the granting of a variance, whether it be a use varianCe or minor variance, is the necessity for the petitioner to prove unnecessary hardship. AS the preceding examples point out, the definition Of what constitutes unnecessary hardship is not consistent among the states, or even within them. Some basicprinciples are, nevertheless, valid. All zoning regu- lations constitute a hardship Of some sort to the prOperty owner; but in order to substantiate the granting of a vari- ance, an "unnecessary" hardship must be proven. A hardship which is not necessary to the legitimate purposes Of the regulation qualifies as such. An unnecessary hardship must exist as a result of circumstances unique to the prOperty in question, and cannot be construed to include a hardShip im- posed upon all prOperties alike in a particular district.17 Unnecessary hardship claimed by the petitioner must be resultant from the terms Of the ordinance in conjunc- tion with unique circumstances affecting the prOperty.l If the circumstances which render the prOperty incapable of reasonable use in accordance with the provisions of the ordi- nance have been caused or created by the owner himself after the passage of the ordinance, unneceSsary hardship cannot be '— 17This tenet is rather universally held, but is ex- pressed exceptionally well in Lee v. Board of Adjustment, Supreme Court of North Carolina, 226 N.C. 107, 37 S.E. 2d 128, 168 A.L.R. l. (1946). 63 claimed. For example, if a prOperty owner erected a structure which, through his ignorance of the regulations or through miscalculation, did not comply with the zoning ordinance, the hardship would be "self-created," and not subject to relief through variance. The same rule applies to hardship created by prior owners or tenants Of the property. To justify the granting Of a variance, a hardship must have been created by the provisions of the ordinance. There is a divergence of Opinion as to whether or not purchase with prior knowledge of the restrictions appli- cable tO a piece of prOperty constitutes grounds of unneces- sary hardship. An individual who purchases prOperty under particular zoning restrictions, Often cannot claim hardship as a result of those restrictions. In many states, case law indicates that the rule of self-created hardship applies to such Situations.18 In these states, one who purchases pro- perty with prior knowledge (either actual or presumed) of its restrictions is assumed to have created the hardship him- self through purchase. It is inferred that the buyer was aware of the possible hardship before his transaction, and that he therefore paid a lower price for the property due to its incapabilities. The individual who purchases prOperty and subsequently requests a variance to alleviate hardship 18New York, California, Connecticut, Kansas, Mary- land, Pennsylvania, Rhode Island and Florida are examples. 64 which he was previously aware of, Should acquaint himself with the greater weight of case law in his state. New York and Pennsylvania courts have been most consistent in upholding this rule. One example is Clark v. ZoninggBoard of Appeals,19 where the New York court stated: One who knowingly acquires land for a prohibited use cannot thereafter have a variance on the ground Of "special [unnecessary] hardship." This case, involving a variance granted for a funeral home, is invariably cited as authority in New York decisions. Courts in most states, however, take a more liberal view of this rule. They generally hold that although purchase with knowledge of the restrictions is an element to be con- sidered, it does not absolutely deprive the board of the power to grant a variance. There are usually more substantial grounds for denial, and this reason is seldom used singularly. The fact that a prOperty owner could realize a greater financial return from his prOperty if used for pur- poses Or in a manner other than specified in the ordinance is insufficient ground for a claim of unnecessary hardship. In Marocco v. Board Of Adjustment,20 a New Jersey court ruled that even though the neighborhood in question was "shifting" 19Clark v. Zoning Board of Appeals, Op. cit. See also Caldarone v. Zoning Board Of Review, (Sup. Ct. of R.I.) 137 A 2d 419 (1957), for a Similar decision involving a funeral home. 20Marocco v. Board Of Adjustment, 5 N.J.S. 94, 68 A 2d 470 (1949). 65 from predominantly single-family residential uses to apart- ment, rooming house, and office uses, the claim that the prOposed site could yield a greater economic return if used for a funeral home was not sufficient hardship. .ThiS parti- cular Situation appears to have warranted a request for re- zoning or an amendment to permit a funeral home as a transi- tional use, rather than application for a variance. Attempts to prove unnecessary hardship on the basis of lower financial gain, as in the Marocco case, are most frequent where prOperty owners or developers desire a com- mercial use of residential prOperties. Although the funeral home is not a commercial use in the strict sense of the term, many funeral directors have unsuccessfully utilized this same approach. TO prove hardship for financial reasons, a property owner would have to Show that he can realize no reasonable return from his land. The previously stated rule that hardship must be unique to the prOperty in question and not a general neigh— borhood condition is illustrated in the decision Of Phillips 21 The court ruled that v. Board of Appeals of Springfield. the fact that owners were unable to rent or sell large houses in a particular residential district for residential purposes because the neighborhOOd was no longer desirable for suCh use, was insufficient to sustain the board's action in granting 21Phillips v. Board of Appeals of Springfield, 286 Mass. 469, 199 N.E. 601, (1934). 66 a variance for a funeral home. The condition was not unique to the prOperty in question, but was characteristic of all properties in the neighborhood. It added that unnecessary hardship as required by law was not proven, and that re-zoning was the most prOper approach to alleviating the Obviously outdated zoning classification of the area. Variance, Conditional Use, and Exception. The dis- tinction between a "variance" and a "conditional use" is clear. .A conditional use is a use of prOperty which is ex- pressly permitted by the ordinance subject to the existence of Specified conditions. It does not involve a varying of the terms of the ordinance, but rather a strict compliance with them. 1 Likewise, an "exception" is a deviation from the general terms of a zoningprovision only as Specifically authorized in the ordinance. Exceptions arenot unlike con— ditional uses in that they require conditions as Specified in the ordinance as requisites to their approval. Provision is usually made for an exception when a frequent hardship would be created by strict interpretation of the regulations, but when the provision is still applicable to the vast ma— jority of prOpertieS in a district. Whenever such a general condition exists, it is best handled as a part of the ordi- nance rather than as a variance. The extent of relief that can be afforded by an exception varies from minor details of develOpment to conditional uses. In some ordinances, the 67 conditional use is referred to as an exception, but in all cases the variance is distinctly different from both. ‘ Discretion of the Board. AS previously discussed, zoning boards of appeals are administrative agencies which possess quasi-judicial powers. They, in essence, supplant the lower courts in this particular area of law. Thus the higher courts are reluctant to alter the decisions of such boards unless clear abuse of discretion is proven by the plaintiff. The most common finding against a board of ap- peals concerning variances is that it acted."ultra vires,“ or outside its jurisdiction. Cases in which the courts have termed the action of a board an attempt to exercise legisla- tive power are most frequently those in which a variance has been granted without sufficient proof of unnecessary hard- ship due to circumstances unique to the property in question. Many such cases have been cited herein. The courts cannot overrule a board's decision which is supported by evidence and which is in compliance with its powers as set forth in both the local ordinance and state law. . The burden of proof rests with the plaintiff. A decision of the board in granting or denying a variance is presumed valid until abuse of discretion is proven. The dis- cretion of the zoning board of appeals in granting variances is looked upon by the courts in much the same manner as is the legislative discretion of local governing bodies. The doctrine Of presumptive validity rules. However, if the 68 board utilized imprOper procedures in granting a variance, its action will normally be declared invalid by the courts. Court Action.. In a proceeding brought against a board of appeals, the courts will consider only those facts that were presented before and considered by the board in the initial appeal. The court's review is of the board's decision, not of the virtues of the use in question or its location. An appeal from a decision of the board is judged only on the basis of the procedure and discretiOn exercised by the board in granting or denying the variance. The con- stitutionality or reasonableness of a zoning provision is not at stake in such a proceeding. The rule that a court of law will only review an appeal in terms of the reasonableness of the board's decision on the facts presented before it, points out the importance of the board's records of the case. Courts have been known to reverse a decision of the board merely because adequate records stating the reasons for the decision were not kept and presented before the court. Ifa board cannot Show its reasons for a particular decision, that decision runs the risk of reversal. Most frequently, however, the court will remand the case to the board for rehearing or clarification.22 22For an example of this procedure see: Buckminster 'v. Zoning Board of Review, 68 R.I. 515, 517, 30 A 2d 104, (1943). 69 The granting of a variance is a matter of grace, not a matter of right. A variance merely restores to the property owner something previously taken away by the zoning regulations. It iS the ordinance that restricts the property' owner in the use of his prOperty, not the denial Of a variance. For these reasons, the applicant concedes, for the purpose of his application, that the zoning provisions are valid, but re— quests administrative relief due to unique circumstances. In an appeal of a board's decision to a court of law, the plain- tiff does not attack the ordinance, as he has previously con— ceded its validity; but he may question the propriety of the board's action. Provisions of the ordinance may, Of course, be attacked through separate proceedings. Additional Conditions. The board of appeals usually requires additional conditions and safeguards attached to a variance permit as it deems necessary. Since the board can; not exercise legislative functions, these additional condi- tions are subject to limitations in that they must conform with the general purpose and intent of the zOning regulations and must be necessary for the promotion of the general welfare. The courts will uphold such conditions of variance unless they are clearly unreasonable and outside the jurisdiction Of the board. In the absence Of additional conditions, the applicant 23Southwestern Legal Foundation, Institute on Plan— ning and Zoning, Dallas, Texas, Vol. 1, 1961, p. 122. 23 70 might use a favorable ruling in such a way as to result in injury to neighboring prOperties or the public as a whole. In some instances, courts have been quick to criticize boards of appeals for failing to attach adequate conditions to a variance permit. Violation of additional conditions required by the board constitutes violation of the ordinance itself. Public Hearings. The board of appeals must conduct a public hearing where any party affected by a proposed vari— ance can be heard. The required procedures for such hearings are detailed in the ordinance within the section outlining the powers and duties of the board. Such body cannot grant or deny a variance as requested until a public hearing has been provided in accordance with the provisions of the ordi- nance. The public hearing is an essential element of the zoning process whether it be in connection with a prOposed ordinance, amendment, conditional use, or variance. Just as it is the duty of the board of appeals to conduct public hearings where prescribed by law, it is the responsibility of affected parties to make their views known through parti- cipation. It is normally advisable for the petitioner to encourage thOSe who favor his request to appear or submit a written statement on his behalf. Too frequently, only those parties who are violently Opposed to a variance request make themselves heard. This is particularly important in hearings involving variances for funeral homes, as public sentiment is 71 often distorted by a vociferous few, and legitimate issues can be overlooked. ‘s Public relations on a personal basis prior to a public hearing is frequently helpful to the petitioner. Summary. The individual contemplating a request for a variance permit should review the procedures as set forth in the local ordinance. In general, these usually conform to the following steps: 1. Make application to the zoning administator for a building permit. (if denied) Appeal the administrator's decision to the zoning board Of appeals. Make written application for variance in con- junction with the appeal. Demonstrate unneces- sary hardship and additional conditions stipu- lated in the ordinance. A public hearing is conducted by the board of appeals. The board makes a decision based on the facts presented and solicited. .The variance is granted or denied by the zoning board of appeals. (if granted) Secure a building permit from the zoning administrator. (if denied) Take further action if warranted by the facts of the case: 72 a. Petition the circuit court for review of the board's decision. Prove unreasonable- ness, abuse of discretion, or improper procedure. b. Request a re-zoning or other amendment. The last alternative is the subject of the following discus- sion. AMENDMENTS From time to time the zoning ordinance must be changed, or amended, to meet the constantly changing growth patterns and develOpment needs of the community. The local legislative body is empowered to amend, supplement, change, modify, or repeal the regulations, restrictions, and bound— aries set forth in the zoning ordinance. Amendment is not only legally possible, it is frequently necessary. Types of Amendments. A zoning ordinance consists of both a map delineating district boundaries and text de- scribing the uses permitted and regulations applicable within each district. General and administrative provisions are also a part of the zoning text. A change in any element of the text or map constitutes an amendment to the ordinance. A re-zoning is an amendment which involves a change in dis- trict boundaries and, consequently, an altering of the official zOning map. For example, if an individual requests that his prOperty be reclassified from residential to commercial, he 73 is asking for an amendment to the ordinance; but more Speci- fically, he is requeSting a re-zoning of the prOperty. If the amendment is adOpted by the legislative body, a change in the official zoning map will be required. Many persons fail to realize that the map is a part of the ordinance; and a re-zoning or Change in the map is an amendment tO the ordi- nance. The distinction between an amendment to the zoning text and an amendment which involves a re-zoning is basic to this discussion. For the purposes of this analysis, amendments are classified into six Specific types. They are: 1. Comprehensive updating of the entire zoning structure. 2. Change in general or administrative provisions. 3. Addition to the Official zoning map to accom- modate newly annexed areas. 4. Change in develOpment standards within a dis- trict. 5. Change in the uses permitted within a district. 6. Re-zoning, or change in the district classifi- cation of particular prOperties. Significance to Regulation of Funeral Homes. The last two types of amendments are most Often concerned directly with funeral home location and will be afforded the most at— tention herein. Frequently, a funeral director requests that the zoning ordinance be amended to permit funeral homes in a 74 district currently prohibiting them, or requests that his property be re-zoned to a district which already permits funeral homes. The two methods have also been used in con- junction with one another. When a re-zoning which would have subsequently enabled the establishment of a funeral home on a particular property has been denied, a funeral director will Sometimes request that the text of the ordinance be amended to permit funeral homes in the diStrict in which his prOperty is located. Amendment to the zoning text involves a re-evaluation of the regulations pertaining to funeral homes.~ For this type of amendment, it is important to identify the characteristics which make the funeral home compatible with other uses per- mitted in the district. Equally important are the develop- ment standards and other conditions to be required if the funeral home is to be permitted as a conditional use. A re- zoning of particular prOperties, on the other hand, involves analysis of the neighborhood in question and a determination of which district classification is most apprOpriate in view of the character of the area. The issue in this case, is not whether a funeral home is compatible with the area in question, but is whether the area is suited to a particular district classification. The possibility of having the zoning text amended to permit funeral homes in a particular district is too Often 75 overlooked in favor Of re-zoning. —Re-zoning Of an individual property is difficult to justify; and re-zoning of a larger (area may be denied as not complying with the comprehensive plan or, if granted, may ultimately result in a type of de— velOpment which is incompatible with the neighborhood as a whole, as well as with the Operation of the funeral home. Amending the ordinance to permit funeral homes in certain more desirable districts, even if only as a conditional use, may be more feasible and advantageous in the long run. Conditions which normally substantiate a re-zoning or other amendment are set forth in the ensuing discussions. However, justifications for permitting funeral homes in cer- tain districts, whether through amendment or enactment of the original ordinance, are related to the subject of funeral home location dealt with in Chapter Four. Relative Permanence Of Zoning. One of the funda- mentals of zoning particularly applicable to the subject of amendment is that Of "relative permanence." Zoning implies a relative permanence of districts and regulations upon which the individual relies when he purchases and develops property. Some of the legitimate purposes Of zoning are to stabilize land uses, prOperty values, and the general character of neighborhoods. These purposes cannot be accomplished through frequent and indiscriminate amendment of the zoning ordinance. 76 Although prOperty owners have no vested rights by reason of the enactment of an ordinance establishing use dis? tricts, they do have the right to rely on the rule of law that zoning regulations will not be changed unless such change is required for the public good.24 The power to amend cannot be exercised arbitrarily or merely because certain individuals desire change. This principle does not imply that change is never apprOpriate, but only that it must be necessary and justifiable. Privilege of Amendment. Through zoning, the public interest is paramount. The individual relinquishes certain property rights in order that the public welfare, his own in- cluded, is protected and promoted. Zoning views prOperty in a collective sense, and regulates all prOperties in a defined district in a like manner. When an individual requests a change in the zoning regulations, he is actually asking the majority to change its mind concerning the laws it has for- mally enacted. In this sense, amendment is a privilege and not a vested right. One who requests an amendment must Show good reason why the law Should be changed. Reasonableness. The general requirement that change must be for the public good is usually satisfied if an amend- ment meets the criteria of reasonableness. An amendment is 24Page v. Portland, 178 0re. 632, 165 P 2d 280, 283, (1946). . Cassel Realty CO. v. Omaha, 144 Neb. 753, 14 N.W. 2d 600, (1944). .77 subject to the same tests of reasonableness and proper exer- cise of the police power as is the original ordinance.25 The same comprehensive analysis and careful consideration is required when amending an ordinance as when enacting it. Courts in some states have held that before property can be re-zoned, there must be proof of mistake in the origi- nal zOning or that the character of the neighborhood has suf- ficiently changed Since the regulations were established.26 The burden Of proving prior mistake or change is upon the proponents of the amendment. An unreasonable amendment, in this Situation, is one which was adOpted without adequate proof of previous error or change in conditions. In the ma- jority of jurisdictions, however, no mention is made of the necessity of this prior proof to substantiate a re-zoning. But even in those states where legislative and case law do not demand such proof, the courts recOgnize that total ab- sence of both of these conditions usually makes a re-zoning appear arbitrary and discriminatory. The general rule is that amendments of any type Should be adOpted with caution, and only when changed conditions of some type make such ac- tion necessary to further the public interest. 25Brady v. Keene, 90 N.H. 99, 4 A 2d 658. Courthouts v. Town of Newington, 140 Conn. 284, 99 A 2d 112. 26Maryland: Hardesty v. Board Of Zoning Appeals, 126 A 2d 621, 623. ‘ Oregon: Page v. Portland, Op. cit. . Connecticut: Strain v. Mims, 123 Conn. 275, 287, 163, A 754. Illinois: Wesemann v. Village_of La Grange Park, 407 Ill. 81 89, 94 N.E. 2d 904. 78 The fact that no one Objects to a proposed amend— ment is not sufficient to justify its adoption. Neither is a re-zoning or other amendment justifiable on the ground that it would enable an individual prOperty owner to realize a greater financial gain. Amendments which do not strengthen the total zoning structure and further its legitimate pur- poses, but only afford preferential treatment to the interests of a few, are ordinarily not upheld in courts of law. The reasonableness Of an amendment is normally determined by the evidence supporting its necessity for the public welfare.' Once enacted, an amendment is afforded the same presumption of validity as the original ordinance. DiSCre- tion Of the local governing body in adopting an amendment is treated by the courts in much the same manner aS their dis- cretion in enacting the original zoning regulations. However, in those jurisdictions requiring proof Of error or change in conditions prior to adOption, presumption is contingent upon findings of such. In most cases, the burden of proving un- reasonableness or abuse of discretion rests with the plaint— iff in a court proceeding, and it is not the responsibility of the legislative body to prove the amendment valid. If adequate proof is not shown, the courts are reluctant to substitute their judgment for that of the enacting body. It is, of course, the right Of any aggrieved party to appeal to- the courts for relief from an invalid amendment. 79 Although there is no universal rule as to what con- stitutes a valid amehdment, there are several distinct con- siderations which are normally taken into account. Amendments to the zoning text are probably more difficult to evaluate according to pre-established criteria because, many times, they are almost entirely a matter Of judgment. This is par- ticularly true in the case Of provisions regulating funeral home location. Re-zonings are somewhat easier to evaluate since they are dependent upon more recognizable conditions and are related to specific geographical areas. Each case, however, involves different facts and should be judged on its own merits. A reasonable amendment will generally be Sustained if it is based on informed judgment and prOper procedure and is necessary for the health, safety, and general welfare of the public. Amendment of the Zoning Text. One of the two types of amendments most frequently requested by funeral directors and others concerned with funeral home location is a change in the zoning text to permit funeral homes in particular dis- tricts. The classification of any land use type for zoning purposes is largely a matter of legislative judgment. AS previously pointed out in the section on "Legislative Judg— ment" in Chapter Two, Ordinances which have relegated funeral homes to commercial districts have been held reasonable. In certain Situations, it is also reasonable to permit them in several other districts. The permitting of funeral homes in 80 particular districts by amendment is as much a matter Of legislative judgment es is their original classification. The individual seeking a Change must point out that inclu- sion of funeral homes in certain districts is both reasonable and more apprOpriate than the existing classification. The real issue involved is that Of changing the legislative at- titudes toward the location of funeral homes. Changed conditions are the most common and defen—. Sible reasons for amending zoning provisions. Changed condi— tions are not always changes in physical develOpment patterns, but may be changes in attitudes, characteristics of a use type, or zoning concepts. Community attitudes change over time, and legislators, planners, and the public often adOpt a more enlightened view of the prOper place for certain ac- tivities in the overall land use pattern. This sometimes renders zoning provisions outdated with respect to present attitudes. Changes in the characteristics of a particular type of use can also make approaches to regulating that use Obso- lete. This is especially true in the case of funeral homes. Health codes, modern techniques of Operation, current funeral service customs, needs for off street parking, and attractive and spacious facilities have resulted in characteristics which no longer reflect the earlier image Of the funeral home. The fact that existing zoning provisions fail tO recognize 81 the current Operating characteristics and locational needs of funeral homes may be sufficient to justify amendment. One of the best means of proving this contention is for the funeral director to Show that under existing zoning there are no de- sirable and apprOpriate sites in the community for the loca- tion of funeral homes. Such a Situation is not infrequent. Changes in zoning concepts often make new approaches to zoning for funeral homes more feasible. SOphisticated me- thods of examining land uses have led to a more thorough knowledge of their character and needs. A frequent result is a revised approach to regulating them. Recently, more flexible zoning provisions based on the unique character of special land use types have replaced the rigid approaches where each use was relegated, for the sake of expediency, to a broad land use classification. Realization of the possible application of such techniques to funeral homes may justify amendment to existing provisions. Re-zoning. The most prevalent, and normally, the most valid reason for a re-zoning is a change in conditions occurring Since the prOperty was previously zoned. What con- stitutes a change in conditions sufficient to justify a re- zoning is a factual matter depending on the circumstances of each case. In determining if a change has occurred, major consideration is given to the character of develOpment in 82 the immediate area involved.27 On the whole, however, courts seem to view change in neighborhood conditions as only a ma— jor contributing factor, and not as the sole basis for a valid re-zoning.28 As in the case of amendments to the zoning text, there is no universal formula by which a re-zoning can be judged. There must, however, be valid and demonstrable rea- sons for change. A re-zoning must be suited to present and predicted land use characteristics of the area involved. For example, a re-zoning from residential to commercial would not be sustained if it was shown that the neighborhood was still essentially suited to residential purposes.' This was pointed out in the decision of Mueller v. Hoffmeister, 29 where the court ruled that a parcel singularly reclassified as a commercial district in order to permit the location of a funeral home was invalid because the parcel was in the midst of an entirely residential area which could be eXpected to retain its present character. A change that is incompa- tible with existing and eXpected develOpment is not legiti- mate. 27Southwestern Legal Foundation, Institute on Plan- ning and Zoning, Dallas, Tex., Vol. 5, 1965, p. 47. 28"Boston University Law Review," Vol. 36 NO. 3, Summer, 1956, p. 372 and cases cited therein. 29 Mueller v. Hoffmeister, 343 MO. 430, 121 S.W. 2d 775. 83 The most valid ground for a re-zoning is that an area is no longer suited to its present designation. Such a condition may result from changing land uses, circulation patterns, or population concentrations which materially af- fect the use of prOperty in a neighborhood. Many examples of this are provided in the previous discussion of "Variances." When an area can be reasonably used only for purposes other than those permitted in the present zoning classification, re-zoning is the prOper means to correct the obviously out- 30 ‘ dated and inadequate regulations. A re-zoning must normally be consistent with the objectives of the comprehensive develOpment plan for the community. If the prOperty owner can Show that the area in- volved is no longer appropriately zoned and that change to a particular zoning classification is in accordance with the master plan, hiS chances of being granted a re-zoning are tgreatly increased. Re-zoning in compliance with a compre- hensive plan helps to ensure that the change is based upon careful study and evaluation of the factors relevant to the growth of the community. It is, therefore, more likely to be in the public interest than one which bears no relation to the future develOpment patterns of the community. (A re- quest for zoning Change which is founded on the objectives 30See: English v. Zoning Board of Adjustment of Norristown, 148 A 2d“912, (Pa. Sup. Ct., 1959). 84 of the comprehensive plan provides the legislative body and the courts with an improved basis for evaluation.31 Any amendment made necessary by changing conditions should be carefully analyzed prior to adOption in view of the land use plan, circulation plan, and other elements of the total com- munity develOpment scheme. Spot Zoning. The re-zoning of singular or small groups of parcels which are completely removed from, and bear no physical relationship to other like classifications or to development in the immediate area is usually referred to as "Spot zoning." Upon the finding Of certain facts, courts ordinarily hold that such a practice is arbitrary and unrea- sonable, and thus invalid. To sustain a charge of illegal Spot zoning, it normally must be Shown that an individual parcel has been singled out and designated for uses totally different from those which can be made of surrounding pro- perties; that the Change is for the benefit of a few, rather than for the welfare of the public; that the change will be detrimental to the use Of neighboring properties; and that it is not in accord with a comprehensive plan. The cOurts, in general, appear to attack Spot zoning principally on the ground that it violates the comprehensive plan and is not 31For Opinions on the subject of compliance with a comprehensive plan see: Padover v. Farmington, 374 Mich. 622, 132 N.W. 2d 687, (1965); Fritts v. Ashland, 348 S.W. 2d 712, 714-715, (Kentucky, 1961); and Haar, Charles M., "In Accordance With a Comprehensive Plan", Harvard Law Review, Vol. 68, No. 7, May, 1955, p. 1154. 85 consistent with the purpose and intent of zoning. Widespread Spot zoning would create a pattern of haphazard develOpment rather than the coordinated land use scheme for which zoning is intended. The concept Of Spot zoning is especially applicable to many cases of re-zoning to accommodate the location of a funeral home. Since many funeral directors desire Sites- within or on the periphery Of residential districts, they often request re-zonings of their individual prOperties to districts, usually commercial, which would enable such loCa— tion. This appears to be the chief resort of funeral direc— tors who seek better locations for their establishments.32 As a rule, such requests would result in illegal Spot zoning, and are frowned upon by planning commissions and denied by legislative bodies. A small percentage of these cases are actually litigated. There are some court decisions which illustrate this general rule. In Huebner v. Philadelphia Savings Fund 33 Society, a Pennsylvania court ruled that the action of the city council in creating a separate commercial district com- prising a Single corner lot in order to permit a funeral home was invalid. It added that the re-zoning amounted to 32Conclusion of author based upon discussions with funeral directors and various state association officials. 33 Huebner v. Philadelphia Savings Fund Society, 192 A 139. ‘ 86 an illegal Spot zoning. A similar decision set forth by a Massachussetts court stated that the re-zoning of a single lot to accommodate the location Of a funeral home or any other use not permitted in the previous district classifi- cation constituted Spot zoning and served no public benefit.34 35 This Opinion was reiterated in Cassel v. Baltimore. The courts appear to be consistent in rulings againSt Spot zoning, whether it be to enable the location of a funeral home or any other~use. The fact that a re—zoning cannot be limited to per- mit a Specified single use, but inherently permits the loca- tion of all uses authorized in the district is important to the question of re-zoning. A re-zoning of an individual parcel is sometimes requested on the ground that the proposed funeral home would constitute a desirable transitional use between a commercial and a residential district. This argu- ment should not be used by itself. When a zoning change is requested, every possible use which would be authorized by the change should be considered. Although the funeral home may be an acceptable transition which would benefit the neighborhood by preempting the location of a less desirable use, there can be no guarantee included in the amendment that I 34Smith v. Zoning Board of Appeals, 313 Mass. 622, 48 N.E. 2d 620. 3SCassel v. Baltimore, 195 Md. 348. 87 the prOperty will be so used.36 This is equally true in ‘cases where a larger area is proposed to be re—zoned. The planning commission, legislative body, and neighboring pro— perty owners may have no Objections to the prOposed use of a portion of the area as a funeral home; but the fact that other uses more inapprOpriate to the neighborhood would be permitted in the balance of the area is sufficient reason for denial of the request. Funeral homes as transitional uses are best handled by conditional use permit in the resi- dential district. This would require an amendment to the zoning text rather than a re-zOning of the property in ques- tion. Re-zoning of individual or small groups Of parcels is not always considered to be illegal spot zoning. Some- times there are valid reasons for reclassifying relatively small areas. When an area is adjacent to a particular dis- trict but classified differently, and would best be used for purposes permitted in that adjacent district, a re-zoning may be justified. Occasionally, parcels are actually deve- loped contrary to present zoning, and can apprOpriately be re-zoned if they are adjacent to a district permitting like uses. Piecemeal zoning of this type frequently is a means 36See Church v. Town of Islip, 8 N.Y. 2d 254, 168 N.E. 2d 680. For a discussion Of court decisions concerning "contract zoning"; i.e. the granting of a re-zoning on the basis that the prOperty owner agrees to certain conditions not stipulated in the ordinance, see Mandelker, Daniel R., Managing Our Urban Environment, Bobbs-Merrill CO., New York, 1963, p. 795. - 88 of providing necessary eXpansion of a district or of recog- nizing expansion that has already occurred. This procedure is not unlimited, however. Courts Often hold that a rela- tively permanent district boundary must be established, and the process of piecemeal re-zoning of successive parcels ‘cannot result in an indefinite expansion Of a district.37 Re-zoning of small areas in accordance with a com— prehenSive plan is ordinarily valid if conditions in the com- munity as a whole and in the neighborhood in question warrant 'it. The demand for certain types of land uses may be such that the community needs only a very small district devoted to those uses. Within the more flexible concepts of zoning, piecemeal changes may also be consistent with the comprehen- sive plan as a means of creating transition zones to reduce .the Sharp demarcation between extremely incompatible dis- tricts. Re-zoning of small areas to accommodate neighborhood shopping Centers, planned residential developments, and in— dustrial parks is also becoming common as a method Of accom- plishing the purposes of the comprehensive plan. Checklist for Re-zonipg. Every re-zoning should be judged according to the following questions.38 They are 37This rule is well stated in Chouinard v. Zoning Commission, 139 Conn. 728, 732, 97 A 2d 562, 564. 38Taken in essence from Institute on Planning and Zoning, SOuthwestern Legal Foundation, Dallas, Texas, Vol. 1' 1961' p0 1360 ' 89 characteristic of those frequently asked by a planning com— mission in evaluating a request for a re-zoning. The indi— vidual Should be able to answer "no" to all of these questions concerning his request for a change in zoning. A. COMPREHENSIVENESS: 1. Would the change create a small isolated district unrelated to Similar districts: i.e. would it result in spot zoning? IS the change contrary to the established land use pattern, or ‘ 1 - Is the change contrary to the comprehensive~ plan? Are present district boundaries logically drawn in relation to existing and predicted conditions? Would change result in an overloading of public facilities or an excessive increase in traffic congestion? CHANGED CONDITIONS: 1. Are the land use characteristics of the neighborhood the same as they were when present zoning was adOpted? Has develOpment in the area been in accor- dance with existing regulations? PUBLIC WELFARE: 1. Will change adversely affect living condi- tions in the neighborhood? 90 2. Will change seriously reduce the light and air to adjacent prOperties? 3. Will change adversely affect property values in the adjacent area? ' 4. Will change be a deterent to the improve- ment or develOpment of adjacent prOperty? 5. Will change constitute a grant of a special privilege to an individual as contrasted to the public welfare? D. REASONABLENESS: 1. Is the area still appropriate for uses per- mitted by current zoning? - 2. IS the change requested out of scale with the needs of the neighborhood and of the community? 3. IS it possible to find adequate sites for the prOposed use in existing districts per— mitting such use? Amendment Procedure. Every citizen acting in good faith has the right to initiate procedure for an amendment 39 Enabling acts and local ordinances to the zoning ordinance. seldom specify exactly who may initiate an amendment, but the .general rule is that any Citizen or group of citizens, as well as the planning commission or legislative body may do so. 39Pitman v. Medford, 312 Mass. 618, 45 N.E. 2d 973, (1942). 91 The legislative body usually amends the ordinance on its own initiative when litigation has disclosed the in— adequacies of existing provisions, or when, by its own awareness of Changing conditions, it deems comprehensive updating neceSsary. However, most amendments originate from a recommendation by the planning commission. The planning commission and its staff are in the best position to realize the inadequacies of current provisions and to suggest changes in accordance with present needs and long range plans of the community. This is particularly true in larger cities where the council's time is occupied with more pressing matters, and responsibilities such as zoning are delegated to Spe- cialized agencies. Most petitions for amendment are filed by indivi- dual prOperty owners who desire a re—zoning of their parti- cular prOperty.40 It is in this Situation that the question of Spot zoning is most frequently raised. Many times the individual will request an amendment that the planning com- mission feels would not be prOper if limited only to his prOperty. In such case, the commission may, after study, initiate an amendment which involves the re-zoning of a larger geographical area in which the original prOperty is included. Usually, the conditions which warrant a re—zoning 40RathkOpf, Arden H., The Law of Planning and Zoning, Clark Boardman CO., New York, 1962, Vol. 1, p. 27-34. 92 of a singular prOperty are applicable to additional prOpertieS or to the entire neighborhood. To re-zone according to the initial petition may constitute illegal Spot zoning, while a change in zone of the larger area may be valid and highly de— sirable. The responsibility of recognizing such Situations normally falls upon the planning commission because all pro- perty owners affected may not request the re-zoning on their own initiative. The commission will consider the welfare of the entire area involved, while the individual requesting the re-zoning is usually concerned only with the use that can‘be made of his particular prOperty. Such procedure is common, and is also one of the major means by which the planning com— mission initiates re-zoning to meet the objectives Of the comprehensive plan. Procedures for enactment,_however, are the same for amendments initiated by the planning commission or by individuals. The role Of the planning commission in the amend— ment process is essential regardless of who requests the amendment. It iS much like its function in the preparation of the original ordinance. The individual requesting zoning change ordinarily submits his request to the commission which studies the prOposed amendment and makes necessary investi- gation as to its legal and planning implications, gives no— tice and holds public hearing, and makes a recommendation to the legislative body. Only the legislative body Can adOpt the amendment. 93 The legislative body must ordinarily receive and consider the recommendation of the planning commission before it may act. However, it is not necessarily cOmpelled to act in compliance with that recommendation. In most instances, amendments must be adopted ac- cording tO the same formality and pre-designated procedure required for the enactment Of the original ordinance. A typical provision detailing the procedure for adoption of an amendment as suggested by the American Society of Planning Officials states:41 The regulations, restrictions, and boundaries set forth in this ordinance may from time to time be amended, sup- plemented, changed, or repealed, provided however that no such action may be taken until after a public hearing in relation thereto, at which parties in interest and citizens Shall have an Opportunity to be heard. At . least fifteen days' notice Of the time and place of such hearing Shall be published in a newspaper of general circulation in the city. - When a prOposed amendment affects the zoning classifi- cation of prOperty, and in case a protest against such change is Signed by the owners of 20 percent or more either Of the area of the lots included in such pro- posed change, or of those immediately adjacent in the rear thereof extending (100) feet therefrom, or of those directly Opposite thereto extending (100) feet from the street frontage of such Opposite lots, such amendment shall not become effective except by the favorable vote of three- fourths of all the members of the legislative body of such municipality. The pro- visions of the previous section relative to public hearing and official notice shall apply equally to all changes or amendments. 41Bair and Bartley, The Text of a Model Zoning Ordi— nance, American Society of Planning Officials, Second Edition, 1"",‘960 p. 63- 64. 94 This model text follows closely the requirements of the Stan- dard State Zoning Enebling Act42 after which the vast majority of state acts are patterned. Although some of the details may vary among local ordinances, the principles are quite univer- sal. Regardless of the exact procedure in each community, an amendment cannot legally be adOpted until the requirements of the ordinance are met. The provision for twenty percent protest of neigh— boring prOperty owners is common. Courts have been consistent in upholding such a limitation on the power of the local leg- islative body to adOpt amendments which are protested. Public Hearing. AS has been mentioned in conjunc-' tion with the discussion of variances, the public hearing is an essential element of the zoning process. This iS equally true in the case of amendments. It is through this procedure that all interested parties are afforded the opportunity to present their views to the planning commission prior to its recommendation to the legislative body. The role Of the commission, usually through its staff, is to explain the prOposed change and its implications. Participants many times point out facts that the commission otherwise might overlook or fail to evaluate in a proper light. This exchange. of facts and opinions between the planning commission and the 42Advisory Committee on Zoning, United States Dept. of Commerce, TA Standard State Zoning Enabling Act Under Which Municipalities May AdOpt Zoning Regulations," Revised Edition, 1926, Section 5. 95 public is important to the amendment prOcess. Although the majority Opinion expressed is in no way compelling to the commission in its recommendatiOn to the council, it frequently is an influencing factor. However, the mere fact that no one objects to a proposed amendment does not, in itself, justify a recommendation for adOption. Public opinion. The public hearing is of Signifi- cance to the funeral director requesting an amendment to permit funeral homes in a particular zoning district or re- questing a re-zoning of his prOperty to a classification- which permits them. Since in most cases where he initiates such amendments, the funeral director has a specific Site in mind upon which to locate a funeral home, the hearing assumes a double purpose for him. He must not only substantiate the request for amendment, but frequently must defend his ultie mate purpose of establishing such use. The public does not always view the prOposed amendment in terms Of its merits. They Often raise a question as to the desirability of the location of the funeral home which adOption of the amendment would enable. Unfortunately, the legitimate facts concerning the amendment in question are sometimes distorted by neigh- boring prOperty owners who Object to the location of a funeral home in their neighborhood. Although the primary purpose Of the hearing is not to debate the desirability of such use, it is a legitimate factor to consider. Frequently it is the major issue to surrounding prOperty owners.~ 96 Public Opinion is generally opposed to the location of funeral homes in Or near residential areas regardless of certain conditions which may make such a location valid from a zoning standpoint. Many of these Objections are ill-founded and exPressed out of ignorance of the actual Operating charac- teristics and physical nature of the establishment. The funeral director is wise to communicate perSonally with neigh- boring prOperty owners prior to his request for amendment. He should discuss the affects that his facility will or will not have on the use of adjacent prOperties. Many objections can be dispelled by Showing them architects renderings and Site plans of the prOposed develOpment. A few minor alterations in site develOpment, yard widths, planting strips, fences, or screened parking and service areas can Often convert Ob- jectorS to supporters. This same procedure has been instrumental in averting court actions threatened by neighboring prOperty owners who would have sought an injunction to enjoin the establishment of a funeral home in their neighborhood. It does not, of course, relieve the funeral director Of the responsibility of substantiating his request for an amend- ment and of answering the legitimate Objections to his pro- posal which might be raised by the planning commission and other participants in"the public hearing. 97 NON-CONFORMING USE PROVISIONS ‘- Zoning cannot be retroactive. A use or structure legally established at the time of enactment of a zOning regulation, and not conforming to that regulation, must be permitted to continue. To require immediate and complete elimination of such uses and structures would raise both constitutional and confiscatory questions concerning due process and deprivation of prOperty without compensation. Although any use which is not in conformity with current regulations is a nonfconforming use, the term is generically applied to those uses which were legally established and maintained up to and at the time of adOption of zoning regu— lations which hence rendered them non-conforming}S Non- conformance provisions rest upon the principle of vested interest. An ordinance may extend protection beyond the doctrine of vested interest but cannot deprive the property owner of his right of continuance for a reasonable period of time.46 45RathkOpf, Arden H. The Law of Planning and Zoning, Clark Boardman CO., New York, Third Edition, 1962, Volume 2, p0 58-lo . 46This rule is universal and is reiterated in the majority of decisions concerning non—conforming use provi- Sions. It is well stated in: ‘ Firth v. Scherzberg, 366 Pa. 443, 77 A 2d 443. Orange County v. Goldring, 263 P 2d 321 (Calif.). Cassel Realty v. City Of Omaha, 144 Neb. 753, 14 N.W. 2d 600, 604. State ex rel.'Morehouse v. Hunt, 235 Wisc. 358, 291 N.W. 745. 98 One of the major problems of zoning, subject to con— siderable argumentation, is how to approach cases of pre- existing uses which, in some manner, do not conform to present zoning regulations. Most ordinances allow the continuation of them under the category of "non-conforming.uses," but restrict their expansion, extension, or enlargement. There are, how— ever, many qualifications to this general policy. Types of Non-conformities. There are different types_of non-conformities. A non-conformity may exist as a result of a structure, a use Of land and/or structure, or various characteristics of a use. There are'non—conforming uses, non-conforming structures, and non-conforming charac- teristics.47 The use of a structure may be in complete conformity with the zoning regulations, but the structure itself may be non-conforming by virtue of its location on the prOperty, percentage of lot coverage, floor area, height, or other factors. In addition, certain characteristics Of a use such as Off-street parking and loading Space, ingress and egress, screening, accessory structures, and other items of site develOpment may not conform to the zoning regulations; while the use itself may be permitted in that particular dis- trict. Few zoning ordinances clearly recognize this dis— tinction, and most refer to all types of non-conformities as "non-conforming uses." 47"The Text of a Model Zoning Ordinance" Op. cit. page 29. 99 For the purposes of this discussion, the term "non- conforming use" is intended to include all types of non- conformities unless a Specific distinction is hereafter made. Since most ordinances utilize this approach,departure from it would only confuse the matter. However, the distinction should be kept in mind by the funeral director as it applies to his particular Situation. The eXperienceSOf the author indicate that, although all types of non-conformities are significant to the funeral director, the greatest problems arise from non—conforming uses of premises. . Vested Interest. It has already been stated that a pre-existing use or structure is protected as a legal non— conforming use because it constitutes a vested interest. Questions frequently arise as to what qualifies as a vested interest. There is little confusion when a use is Obviously established and Operating, or when a structure is cOmpleted and occupied. Other situations require qualification. If construction has begun on a structure whiCh will be non-conforming or is intended for a non—conforming use, it Can ordinarily be completed and SO used. An ordinance normally does not require a change of plans, construction, or desig- nated use of a building on which actual construction was law— fully commenced prior to the effective date of the regulations which render it non-conforming. Most ordinances define con- struction as demolition of previous structures, excavation, or the permanent placing of construction materials. They also 100 stipulate that construction must be carried on diligently and without unavoidable interruption. Some Specify a time period, such as Six months or one year, within which the structure must be completed. If a building permit has been issued, but no construction has begun, vested interest is not usually considered to exist and the permit can be de- clared void after a certain period of time. Neither is mere purchase Of prOperty with contemplated use considered a vested interest. The right of continuance of a legal non-conforming use iS a right inherent with the prOperty. It is not con- fined to the Operator or owner at the time of enactment of the zoning regulations. Another tenant or owner may Operate the same non-conforming use provided that the regulations governing non-conforming uses are satisfied. _Zoning regula- tions are concerned with the use of prOperty and not with the ownership thereof.48 Frequently, a non-conforming use or structure can— not be maintained unless a certificate of zoning compliance Or verification Of pre—existing non-conformity has been is- sued by the administrative Officer. Under such circumstances, failure to apply for and receive such certificate constitutes 48O'Conner v. Moscow, 202 P 2d 401, 9 A.L.R. 2d 1033 (Idaho). Boulevard Scrap Compapy v. City of Baltimore, 216 Md. 6, 130 A 2d‘743. 101 presumptive evidence that the use is in conformanCe with the di- strict regulations ahd Shall not be afforded the privileges of legal non-conformity. Procedures vary among local ordi- nances. It is, however, the responsibility of the prOperty owner to prove pre-existing non-conformity. Problem of Non-conforminnguneral Homes. Funeral homes are frequently classified as non-conforming uses. There are several recognizable reasons for this. Many funeral homes were constructed in residential neighborhoods prior to the en- actment of a zoning ordinance. In addition, a Significant number of large residential structures near the centers of major cities were converted to funeral homes before zoning was in force. When zoning laws were adopted, they usually relegated funeral homes to commercial and industrial districts, rendering most of these existing establishments.non-conforming.. Many of these funeral homes are still in OperatiOn as non- conforming uses. In some cases, zoning regulations change, and an existing funeral home does not conform to the new provisions. Because of their relative permanence aSAa land use, many funeral homes have outlived the original zoning classifications of the areas in which they were built and have consequently be- come non-conforming. There are several basic reasons for this permanence which contribute to the frequency’of non-conforming funeral homes. They are; the substantial investment in ex- isting facilities and the extremely high cost of relocating, 102 very few business failures, frequent lack of desirable sites elsewhere in the community, reliance on an established ser- vice area, and the problem of what use to make of a structure no longer utilized as a funeral home. Undoubtedly, many funeral directors merely prefer to remain on the same site for personal reasons or because they enjoy locational advan- tages which could not be found elsewhere in the community. Many funeral homes have been forced by.zoning regu— lations and the unavailability of more desirable Sites to- locate in areas characterized by unstable land use conditions. Such areas of transition eventually experience re-zoning which many times results in a non-conforming funeral home. Branch funeral homes are sometimes established in outlying areas which are not subject to zoning regulations. As the area is develOped and annexed to the municipality, it is frequently zoned in a manner that renders the existing funeral home non-conforming. AS rapid urbanization takes place and the need for branch funeral homes increases, Situ— ations of this type will become more frequent. ExPanSion or extensive remodeling Of older.funera1 homes frequently becomes necessary to meet increased needs for visitation, service, and preparation facilities. These needs arise from both a normal increase in the number of funeral services performed and the increasing demands of clientele which muSt be met in order to remain competitive. As funeral customs and Operating procedures change, facilities 103 must be altered. ‘Needs for increased Off-street parking Space, loading and Service areas, and garages for funeral vehicles are also very common. Many times additional land is required to accommodate such needs. When the funeral director attempts to eXpand his structure or make certain other substantial improvements, he often finds that he cannot secure a building permit be- cause the funeral home is a non-conforming use. Neither can he rebuild the funeral home on the same Site or extend the use to adjacent prOperties. There are several others considerations of non-conformities which present common prob- lems to funeral directors in such Situations. The most Sig- nificant of these are detailed in the following tOpics. Enlargement, Extension, and Change of Use. Non- conforming uses or structures may not be enlarged or extended as a matter of right. The maximum enlargement or extension ' that is legally permissible is that which the ordinances specifically sets forth.49 The most common rule is that no structural change or expansion of use is permitted. However, a non-conforming structure which accommodates a permitted use is frequently permitted to be altered in such a manner as to decrease its non-conformity. It cannot be enlarged or in any way altered to increase its non-conformity. In such situations 49RathkOpf, Op. cit., Volume 2 p. 59-2 and cases cited therein. 104 it is important to determine exactly what characteristics render the structure non-conforming. Many times, there may be more than one factor to consider. The nature Of the non- conformity and the proposed alteration must be examined to determine what is permissible. Any structure devoted to a non-conforming use ordi- narily cannot be enlarged, rebuilt, or structurally altered unless to accommodate a conforming use. It is this principle that most Often affects the funeral director. Although his structure may be conforming, it may not be enlarged or ex— tensively remodeled to further its use as a non-conforming funeral home. A use may ordinarily be extended throughout any part of an existing structure which was designed and arranged for that use prior to its becoming non-conforming. Essentially, this provides that use may be made of areas within the structure which, for some reason, have remained unused although designed for purposes as a funeral home. This provision does not en- title the funeral director to convert attached garages, ac- cessory living areas, or enclosed porches or patios for the extension of the main use of the structure. Neither can a non-conforming use be extended to adjacent prOperties. Provisions prohibiting enlargement also restrict the erection of new structures or accessory buildings and the replacement of original structures. However, insubstantial alterations which do not enlarge or greatly increase the life of the non-conforming use are usually permissible. 105 Pennsylvania courts have been more liberal than most in that they Often uphold the expansion of non-confOrming uses resulting from natural increases in business activity.50 In these instances, the protection of vested interests is ex- tended further than is usually considered to be lawfully necessary. Even in Pennsylvania, however, case law indicates that expansion beyond the minimum necessary to protect the original prOperty interest is not permissible. Some Washing— ton decisions have adOpted a similar policy, although some- what less emphatically.51 ’ ‘ In most states, an increase in the volume of busi- ness or intensity Of use is normally not prohibited SO long as such increase does not involve a change in the Character of the use, a structural change, or expansion of facilities. Enlargement of a non-conforming use is usually interpreted to mean an increase in the Size of the structure or the area Of the property devoted to such use, and not an increase in the volume of activity. Sometimes this is a fine line of distinction. AS a rule, a non-conforming funeral home cannot be eXpanded, but a growth in the number of funeral services performed does not, in itself, constitute violation of non- conforming use provisions. soHumphreys v. Stuart Realty Copp. 73 A 2d 407, 364 Pa. 616, and cases cited therein. 51Coleman v. City of Walla Walla, 266 P 2d 1034. 106 There is a definite distinction between the en- largement of an existing non-conforming use and a change from one non-conforming use to another. The general rule is that one non—conforming use cannot be substituted for another. This is stated very well in the decision of Collins v. Moore,52 a landmark case in the State of New York. Case law appears to be uniform in upholding provisions which prohibit the exten—' sion of non-conforming privileges to new uses which are equally or more non-conforming. In its decision in Kensington Corp. v. Jersey City,53 the court ruled that a structure used as a non-conforming doc- tor's office and tea room could not be converted to a non- conforming funeral home, and reiterated the rule that protec- tion cannot be extended to non-conforming uses which were not in existence at the time of enactment of the zoning regula- tions. The Rhode Island Supreme Court has set forth a similar 54 The Court declared invalid a variance which decision. would have permitted a structure housing non-conforming law- yers' Offices to be converted to a non-conforming funeral home. 52Collins v. Moore, 125 Misc. 777, 211 N.Y.S. 437, 53Kensington Corp. v. Jersey City, 191 A 787 (New Jersey). 54Caldarone v. Zoning Board Of Review of Providence, 137, A 2d 419, Rhode Island, (1957). 107 Many ordinances, however, provide that the board of appeals may permit, as a Special exception, one non- conforming use to be replaced by another which the board feels is "equally appropriate or more appropriate" to the district than the existing non-conforming use.55 As in the cases of other Special exceptions and variances, the board may require additional conditions and safeguards aS autho- rized by the zoning ordinance. Such change in use is per- mitted only if no structural alterations which would increase the area devoted to the non-conforming use are made.) This approach is employed to enable upgrading of existing non- conforming uses and to make such uses more compatible with the surrounding neighborhood. Once change has been made to a more restricted use, the prOperty cannot revert back to a less restricted use. A change of one non—conforming use to another is presumptive evidence of intent to relinquish the non-conforming privilege associated with the original use. Repairs, Maintenance, and Minor Alterations. Re— pairs and maintenance frequently become necessary on non— cOnforming structures as they do on other structures. Some ordinances do not Specifically provide for such minor alter— ations, but their permissibility is generally assumed. Many ordinances do, however, cover the manner and extent of repair 55Bair and Bartley, "The Text of a Model Zoning Ordinance," p. 27 is a typical example. ' ‘ 108 which is permissible. This latter approach is more accept- able as it leaves little doubt of the right of keeping one's property in good repair even though it may be classified as non-conforming. Repairs or minor alterations of non-bearing walls, plumbing, heating, and electrical fixtures, and ordinary redecorating or general upgrading of facilities are usually permitted. In order to limit the extent of change, most ordinances Specify that improvements not exceeding a certain percentage Of the current value or replacement cost of the structure may be made. Ten percent is a common figure, al- though others are utilized. This ensures that alterations will be minor and will not greatly increase the life or ex- tend the area Of a non-conforming structure. The same pro- visions apply tO conforming structures housing non-conforming uses. Occasionally, zoning ordinances specify that if a non—conforming structure accommodating a non-conforming use becomes unsafe or unlawful as a result of a lack Of normal meintenance, it Shall not be restored or rebuilt except in conformity with the district regulations. This is a means of reinforcing the building code and of removing non-conformities which become unsafe and physically detrimental to the neighbor- hood. Failure to keep a non-conforming structure in repair can therefore result in the loss of non-conforming privileges. 109 Relief. The funeral director who wishes to expand his funeral home and cannot do SO because it is a non-conforming use usually inquires as to what relief he may seek. Provisions permitting minor alteration, repair and maintenance, Change in use, and alterations reducing the non-conformity Of a structure may not be applicable or sufficient in his particular caSe. Under certain circumstances relief may be possible. Since the intent of zoning is to eventually elim- inate non-conformities, instanceswhere expansion Of a non- conforming use is permitted are infrequent. Occasionally, however, expansion of such use is permitted as a SpeCial ex- ception. Where the local ordinance empowers the board of appeals to permit extension and enlargement of non-conformities, the courts will ordinarily uphold such action. The discretion of boards of appeals in such instances is great, as they usu- ally need only find that the requested extension would not be injurious to the surrounding neighborhood. In granting an ex— ception, the board may require such conditions and safeguards as it considers necessary to protect the public welfare. These conditions are usually related to screening and creating a buffer between uses, off-street parking and loading space, ingress and egress, Signs, yards and other Open spaces, and general compatibility with adjacent prOperties. This approach should not be confused with the concept of variance. NO proof of hardship is required and no departure from the terms Of the ordinance is involved. Special exception is provided for 110 within the ordinance contingent upon the presence of certain circumstances. This practice is not widespread, and is used primarily by communities holding a more liberal attitude to- ward the perpetuation of non-conformities. Enlargement by Special exception extends a privilege beyond that required by the vested interests doctrine and is not necessary to en- sure the constitutionality of non-conforming use provisions. Even where no Special exception provision is contained in the local ordinance, the board of appeals is generally assumed to have the power to permit enlargemenp or extension through the grant of a variance. In such cases, the granting of a variance is subject to the same requisites 56 and conditions as in any other Situation. Unless otherwise restricted by the zoning ordinance, the power of the board to grant variances applies equally to non-conforming uses.57 The de- gree of relief which can be granted to owners of non-conforming uses and structures is determined by the power of the board of appeals to grant variances in general. When the power Of the board is interpreted to enable it to grant use variances, the cOurtS will normally sustain variances which permit extension 56See discussion Of "Variances" in this chapter. 57Galvin v. Mupphy, 190 N.Y.S. 2d 510, 21 Misc. 2d 324. Gunther v. Zoning Board of Appeals of New Haven, 136 Conn. 303, 71 A 2d 91. 111 of non-conforming uses. The case of Grundlehner v. Dangler58 points this out. . The facts of the Grundelhner case are significant to this analysis as they involve several of the primary con- siderations of non-conforming use provisions. The defendant owned a non-conforming funeral home in a residential district and applied for a building permit to construct an addition. The permit was, of course, denied on the ground that the zoning ordinance Specifically prohibited enlargement Of non— conforming uses. Upon appeal to the Board of Adjustment, the funeral director was granted a variance on the basis that; a peculiar and exceptional difficulty and hardship existed, the extension Of the use would be without substantial detri- ment to the public good, and the variance wOuld not impair the purpose and intent Of the zoning plan. Although these factors are consistent with those required by the ordinance as requisites to the granting of a variance, the Board failed to find evidence to support its allegations. Objecting prOperty owners brought action, and the trial court upheld the granting of the variance. The Appel— late Court reversed the trial court's findings On the ground that the ordinance permitted only insubstantial extensions of non-conforming uses, and the proposed enlargement was far from insubstantial. After review Of the case, the New Jersey 58Grundelhner v. Dangler (Sup. Ct. Of N.J.) 148 A 2d 806 (1959). . 112 Supreme Court held and remanded to the Board on the ground that it did not Show appropriate reason for its action. The decision Of the Court is not as significant to this discussion as are its accompanying comments. Although in this particular case the Board acted imprOperly, the po- wer to grant variances for the enlargement of non-conforming uses in general was affirmed. The Court stated:59 Since a variance may, upon a prOper showing of special reasons within (the provisions of the State Enabling Act) be granted to create new non-conforming uses. . . it may clearly be granted to enlarge a pre-existing non-conforming use; it is entirely evident that a limited extension of a pre-existing. . .funeral home. . .will ordinarily be less likely to involve substantial impair- ment of the zoning plan than will the creation Of a wholly new use. ‘ From this decision it appears that a variance per- mitting the enlargement of a non-conforming use may be granted if the board of appeals is empowered to grant use variances, and if the requisites of state and local law are satisfied. Such action iS subject to strict scrutiny. However, where an ordinance Specifically prohibits enlargement, the board can- not act in such a manner that would violate the provision.60 One other principle of variance is sometimes ap- plicable to cases of non-conforming uses. _If a prOperty is , 5gouoted from American Society Of Planning Officials, Zoning Digest, Volume 11, 1959, page 190. 60Goodrich v. Seligman, 298 Ky. 863 S.W. 2d 625. Colati v. Jirout, 47 A 2d 613, (Maryland). 113 not capable of being used for conforming purposes and the requirements for thefgranting of a variance are met, the board of appeals may authorize its use for the purposes of the pre-existing non—conforming use.61 A variance in this instance would remove the non-conforming classification and relieve the prOperty from the application of non-conforming use provisions. Unnecessary hardship must be proven in such cases. An amendment to the zoning ordinance can, of course, be requested as a means Of relief from a non-conforming designation. Although a refizoning or other amendment cannot be adOpted merely to relieve the Situation of an individual, conditions may be such that amendment is necessary to promote the public interest.62 In such an instance, the individual can request an amendment that would eliminate the non-conformity of his use. Amendments not directly initiated by the funeral director may be pertinent to the problem of non-conforming funeral homes. It has been noted that re-zonings and other amendments inherently create a certain number of non-conforming uses. When a revision in zoning law is pending, the funeral director should be aware of the possibility that enactment may 61Cityof Dallas v. Rosenthal, 239 S.W. 2d 636 (Texas). Wohl v. Lee, 109 Misc. 448, 178 N.Y.S. 851. ‘ Hurley v. Kallogian, 129 N.E. 2d 920 (MaSS.). 62See discussion of "Amendments" in this chapter. 114 render his establishment non-conforming. If his case is de- fensible, the funeral director in this position should attempt to influence the proposed amendment so that his use will not become non-conforming. If a funeral home is Operating in a compatible and non-objectionable manner in a particular dis- trict, there is no compelling reason why a prOposed re-zoning or other amendment should designate it as a non-conforming use. The funeral director should point out to the planning commission the reasons why the funeral home could be permitted to remain as a conforming use. ‘ A pending amendment may also provide an opportunity to eliminate an existing non-conforming designation. When a general revision of the zoning map or district regulations is anticipated, it is normally to the funeral director's advan- tage to encourage an approach which would result in regula- tions with which his present non-conforming use would comply. Discontinuance. If a non-conforming use is dis- continued, the privilege of legal non—conformity is forfeited and the use cannot be resumed. There is normally no question as to the validity of zoning provisions which so specify. However, there is frequently disagreement as to what consti— tutes discontinuance. It is usually interpreted by the courts to mean a clear intent on the part of the prOperty owner to permanently cease to use his premises for its pre— sent non-conforming purpose. Some ordinances synonymously use the term "abondonment" in provisions concerning the ces- sation of a non-conforming use. 115 Cessation of use alone is normally not sufficient ground for the termination of non-conforming privileges. Courts have uniformly ruled that there must be a clear in- tent to permanently abandon the use. Most ordinances con- sider discontinuance for a specified period of time to be proof of such intent. Periods of from one to two years are most common. With a few notable exceptions, discontinuance of a use or abandonment of a structure for the period of time set forth in the ordinance results in loss of non- conforming privileges and any future use of the premises.must be in conformance with the distriCt regulations. Temporary cessation of use, even for a considerable length Of time, as a result of circumstances over which the property owner had no control, is generally not considered to be discontinuance. Discontinuances as a result of governmental actions restricting the use of or access to a prOperty,63 shortage of materials or supplies necessary for the Operation of the use,64 entry of the Operator into the armed services,65 financial inability to maintain the use,66 and inability to find a tenant to continue 63 So. 2d 159. 64Franmore Realty Corp. v. Le Boef, 279 App. Div. 795, 109 N.Y.S. 2d 525. Crandon v. State ex rel. Uricho, 158 Fla. 133, 28 65King Co. V. High, 219 P 2d 118, A.L.R. 2d 722 (Wash.). 66 N.E. 2d 193. Paul v. Selectmen of Scituate, 301 Mass. 365, 17 116 the non-conforming use67 have been held, under certain cir- cumstances, as insufficient grounds for the termination of continuance privileges. A non-conforming use which is superceded by a con— forming use cannot be resumed, and future use of the property must conform to district regulations. Such action on the part of the property owner is presumed to be evidence of in- tent to relinquish any claim of vested interest in the non-. conforming use. Voluntary demolition of a non-conforming structure or of any structure housing a non-conforming use is also considered to be proof that vested interest is no longer claimed. A non—conforming structure or a structure.accom— modating a non-conforming use which is partially destroyed by fire, flood, wind, other natural force, or by public enemy may ordinarily be rebuilt to no greater than its original extent. Partial destruction, for the purposes of such pro- visions, is usually defined as damage to an extent of fifty percent or less of the assessed valuation or replacement cost of the structure at the time of destruction. Both methods of determining extent of damage can be difficult to administer. Replacement cost is usually argumentative and hard to determine, while assessed valuation figures may not be up to date or re- alistic. Some ordinances use the totally unacceptable measures 67Landay v. MacWilliams, 173 Md. 460, 196 A 293. 117 of floor area, usable cubic space, or market value. There is no compelling reason why the figure of fifty percent is most frequently used. If the cOmmunity wishes to treat non— conformities with greater leniency, it may utilize a figure of sixty percent or more. As in the case of all non- conforming use provisions, it is important to be aware of the requirements of the local zoning ordinance. If destruc- tion is in excess of the extent specified in the ordinance, the structure can be restored and used only in compliance with the district regulations. Elimination. When the subject of non-conforming uses is approached, the question of the municipality's po- wer to eliminate them is usually raised. The question is prone to much argumentation among planners, legislators, and courts of law. Approaches to compulsory elimination of non— conforming uses vary to a considerable degree. EVen the courts have not reached a consensus of Opinion on the validity of the various methods. Although it is a matter of paramount importance to zoning administration, it is not sufficiently pertinent to the purpose of this thesis to warrant detailed analysis. There are, however, certain principles and trends worthy of mention. The owner of a nonfconforming use should, of course, become familiar with the local provisions per- taining to compulsory elimination of non—conformities. It is the purpose and intent of zoning that non— conformities will eventually cease to exist and that all 118 structures and uses will conform to district regulations. The courts generally agree on this point and evaluate non- conforming use provisions accordingly.68 This intent is manifested in the restrictions placed upon enlargement, ex- tension, alteration, and change in use and by the provisions conCerning discontinuance. Nevertheless, philosophies of local governments vary to an appreciable degree. It is obvious that some encourage or force elimination of non- conformities more aggressively than others. Experience has shown that non-conformities cannot be expected to eliminate themselves by the processes of ob- solescence, destruction by natural forces, and abandonment. The other alternative, compulsory elimination through zoning, is a much debated issue. In essence, the question is whether the due process clauses of State and Federal Constitutions prevent the removal, by zoning, of vested property interests. Many cases are clouded by the issue of nuisance. The power of the municipality to abate nuisances is often confused with the power to eliminate uses and structures strictly on the basis of their non-conformance with local zoning regu— lations. 68 P 2d 922. . Cassel v. City of Baltimore, 73 A 2d 486. Austin v. Older, 283 Mich. 667, 278 N.W..727. Brown v. Gambrell, 358 MO. 192, 213 S.W. 2d 931. San Diego v. Co. of McClurkin, 37 Cal. 683, 234 All" 1‘! In!" illl| 119 The general rule is well stated in the decision of City of Corpus Christi v. Allen.69 The Texas Supreme Court ruled that if the time period allotted for the removal of non-conforming uses was reasonable, and the prOperty owner's loss was slight in prOportion to the public benefit, com- pulsory elimination would be sustained. . This decision is most significant in that it points out the two major considerations for valid approaches to eliminating non-conformities. First, is the requirement of a reasonable amortization period, and second is the primary importance of public interest. The Court's comments are, however, typical of the lack of criteria as to what consti- tutes a "reasonable amortization period." -Each case must stand on its own merits as no general rule has been estab- lished. Cities in the State of California have led the ef- forts to eliminate non-conformities by assigning an economic life to a non-conforming structure and requiring its removal within such period.of time. A Los Angeles ordinance estab- lishing such an amortization schedule for the removal of non-conforming commercial and industrial uses in residential districts has been upheld by the California District Court 69City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W. 2d 759, (19531. ' 120 of Appeals.70 A similar approach was initiated in Richmond, Virginia in 1954.71. In recent years, numerous large and small cities have adOpted this technique to some degree. It is now quite common, although subject to strict scrutiny.72 In the majority Opinion of Harbison v. City of Buffalo,73 it was noted that compulsory elimination of non-' conforming uses within a period of time sufficient to permit amortization of the prOperty owner's investment is ordinarily held valid. The Court cited cases in ten states where such approaches have been sustained. Nevertheless, there is still no universal agreement as to the validity of the various techniques. The Ohio Supreme Court ruled that elimination of non- conformities as exercised by the Akron zoning ordinance was 74 unreasonable. In this case it was the specific language of the provision and its application to particular prOperties 70City of Los Angeles v. Gage, 127 Cal. App. 2d 442, 274 P 2d 34, (1954). 71City Planning Commission, "Elimination of Non— Conforming Uses in Single Family Districts," Richmond, Vir- ginia, February, 1954. 72Although cities in almost every state have adopted some form of compulsory elimination of certain non- conforming uses, as of 1960 at least six states had incorporated provi- sions into state law permitting local abatement Of non- conforming uses. Those states are: Colorado, Illinois, Kansas, Pennsyl- vania, Utah, and Virginia. 73Harbison v. City of Buffalo, 4 N.Y. 2d 553, 176 N.Y.S. 2d 598, 604, (1958). 74City of Akron v. Chapman, 160 Ohio St. 382, 116 N.E. 2d 687, (1953). 121 that was attacked by the Court. The Maryland courts have_ questioned provisions requiring elimination of non-conformities on the ground that a pre-existing non-conformity is a vested right.75 The problem of eliminating non-conformities is largely one of balancing relative interests. The prOperty owner is entitled to protection of his investment, while the public interest is usually best served if the zoning ordif nance achieves conformity. Zoning cannot be totally effective and its purposes cannot be fully accomplished if non- conformities are indefinitely protected. Although it is generally agreed that the legitimate intent of zoning is to eliminate non-conformities in time, the question remains as to what constitutes a reasonable amortization period. CONCLUSION An understanding of the conditions and procedures necessarily associated with variances and amendments will aid the funeral director in determining the reasonableness and validity of his particular approach to seeking relief from existing zoning regulations. Such an awareness will also enable him to determine if his request should be granted in view of legal principle and the facts of his specific case. Examples are numerous where considerable time, energy, and 7SHiggins v. Baltimore, 110 Atl. 2d 503, and cases cited therein. 122 money have been wasted by funeral directors on proceedings which should not have been initiated in the first place, or which were not approached in the prOper manner. Non- conforming use provisions are also the subject of frequent inconvenience and financial loss. Ignorance or misunder- standing of the implications of a non-conforming designation can result in troublesome and costly changes in plans and substantial impairment of the Operation and expansion of a funeral home. Cognizance of the prOper means of preserving a conforming classification and of the Opportunities.for- removal of an existing non-conforming designation can solve many of these problems. The outcome of many court actions could be pre— viously anticipated and numerous such actions could be avoided altogether if all parties concerned were familiar with the principles of variances, amendments, and non-conforming use provisions. If one is aware of the several basic principles as set forth by enabling legislation, zoning ordinances, and case law, he need not make a request or enter into a pro- ceeding which, by its nature and by the circumstances of his case, can yield no advantage. CHAPTER FOUR Regulation of Funeral Home Location, Operation, and Site Development INTRODUCTION Many zoning ordinances relegate the funeral home to districts where few, if any, desirable and apprOpriate sites are available. This practice has resulted in part from a dogmatic attitude toward the funeral home as a land use. [The unique nature of the use and the emotional associa- tions which surround it are equally responsible for this dilemma. Planners and legislators often fail to recognize the legitimate locational needs and true character of the. funeral home. As a result, a significant share of current zoning approaches are based on outdated and inaccurate con- cepts of the establishment. By restricting funeral homes from districts in which they are believed to be generally incompatible, zoning has inherently limited their location to districts which are clearly unsuitable. Traditional zoning classifications have not enabled workable compromises. Zoning is currently experiencing trends toward flexibility and greater SOphistication in methods of clas- sifying and regulating the various land uses. On the whole, there appears to be a greater awareness of the needs and character of each land use type resulting in zoning classifi— cations and regulations which not only adhere to the principles of zoning, but afford a reasonable degree of protection for all land uses. More detailed breakdowns of districts, increased 123 124 utilization of performance and develOpment standards, and transitional zoning techniques present opportunities for more appropriate approaches to zoning for funeral homes. This chapter summarizes, from the Verplanck thesis,1 the locational needs and Operating characteristics of the funeral home. It incorporates these considerations with the greater weight of case law, the legal principles of zoning, and the accepted trends of zoning, and results in a number of suggested approaches to regulating funeral home location, operation, and site develOpment. These apprOaches are de- signed to comply with the two primary purposes of zoning; the protection of the public health, safety, and welfare through the regulation of land uses, and the protection of individual land uses to ensure their operation without harm from others. CHARACTERISTICS AND LOCATIONAL REQUIREMENTS Although the Verplanck thesis2 discusses the characteristics and locational requirements of funeral homes in detail, a brief summary of these considerations is neces- sary here prior to the formulation of suggested zoning #7 w —v* 1James S. Verplanck, "Operational and Locational Aspects of Funeral Homes in the Urban Community" unpublished Master's thesis, School of Urban Planning and Lanscape Archi- tecture, Michigan State University.' 2Ibid, particularly Chapters III and IV. 125 techniques. Feasible approaches to zoning for funeral homes cannot be set forth without recognition of these factors. The Operating characteristics of the funeral home result directly in certain locational requirements. Both must be considered in conjunction with the principles of zoning in determining the prOper zone location for this land use. Characteristics. The major difficulty in zoning for funeral homes is the fact that the funeral establishment is 'sui generis," or of its own kind.3 It is a unique type of land use which cannot be readily classified within tradi- tional zoning districts. The nature of its function might - best qualify it as a service facility, although it is not comparable to most other service establishments to which the term is generally applied. There are three primary functions of the funeral home which involve; preparation of the de— ceased, visitation by friends and relatives of the deceased, and the funeral ceremony. In reference to these activities, the funeral home is a clinical facility, a place of public assembly of a limited nature, and a chapel or religious facility. However, it cannot be equated with a medical clinic or hospital, a public meeting hall, or a church. To compli- cate the situation, the funeral home must also provide a casket selection room, accessory living quarters, enclosed 3Mullin and Mullin v. Zoning Board of Adjustment, 204 Atl. 2d 255, (New Jersey, 1965). 126 delivery and storage areas, garages for funeral vehicles, of- fices for the funeral director, and family rooms and lounges. In view of these accessory, but essential, facilities, the funeral home possesses limited characteristics of residential, retail, and professional office uses. Such a combination and wide variety of primary and accessory facilities is not dupli- cated by any other land use type. ‘ZOning for funeral homes must take into consideration the sum of these activities as well as their individual nature. The cliche, "the whole is greater than the sum of its parts," applies very aptly to the funeral home. The unique character of the funeral home is further exemplified by the fact that, for the most part, these acti- vities are carried on within the structure and are not evi- dent from its exterior appearance. It more often than not resembles a large residential structure. Many times, the funeral home is actually a converted residential building.4 Funeral homes are ordinarily architecturally pleasing, well maintained, and surrounded by an air of dignity and good . taste. Newer establishments are usually situated on large sites with adequate off-street parking and attractively landscaped grounds. They are normally quiet, and contrary 4A survey by the National Selected Morticians, "Zoning - Regulations and Legal Opinions" (1945) pointed out that 63% of new branch establishments were located in converted residential structures. 127 to pOpular beliefs, expel no obnoxious odors and create no health hazards. Since the image and symbolism which the funeral home must project are essential to the Operation of the establishment, funeral directors are very intent on maintaining this character. Competition demands this. Although the physical appearance of the funeral home is seldom objectionable, there are additional factors which must be considered in determining the prOper zone loca- tion. One of the most important of these factors is traffic generation. At certain times the funeral home generates a significant amount of vehicular traffic. The volume depends on the number of services conducted and the local funeral customs. Although funeral homes in general do not create ”congestion on the streets," the nature and volume of the traffic generated by them cannot be overlooked. In addition to traffic resulting from visitors and funeral processions, some light commercial traffic is necessary for the delivery of caskets, flowers, and other items. Traffic is more of a problem with the mass mortuaries of the West Coast, and is one of the primary considerations of zone location for these establishments. One of the most perplexing traffic and noise pro— blems created by the funeral home is ambulance service. Al- though the number of funeral homes that provide ambulance service is declining, it is estimated that about one-half of 128. them currently engage in such service.5 The degree to which this activity affects surrounding prOperty depends on the character of the neighborhood, capacity of, and traffic upon, the streets, number of ambulance calls, and voluntary or mandatory controls concerning sirens, flaShing lights, and ambulance speed. Many Operators do not utilize sirens and lights in residential areas, while in some cases traffic and means of ingress and egress demand their use. There is also a certain amount of human activity associated with the funeral home. Persons entering and leaving the establishment and sometimes stOpping to greet friends and engage in conversation outside of the structure are often obvious and disturbing to neighbors. The physical layout of the funeral home and local customs will determine the significance of this factor. The characteristic of funeral homes that appears to be most significant to the question of location is the nature of the activities that take place within the estab- lishment. Common knowledge of these activities coupled with the public's general attitude toward death, and the funeral home as a symbol of such, have been a major consideration Of court decisions and zoning regulations concerning funeral home location. This important issue is discussed later in this chapter. 5Verplanck, OO. cit., p. 153. 129 Locational Requirements. As a result of its unique .. nature, the funeral home has distinct and sometimes contro- versial locational needs. Most important is a prOper atmos- phere for conducting funeral services and accommodating the bereaved. This requires a quiet, dignified, and reverent environment with freedom from noisy, congested streets. The funeral director desires a stable and aesthetically pleasing neighborhood which is conducive to the function of the funeral home, does not detract from its appearance, and affords pro- tection of the substantial investment involved. Industrial and general commercial uses are not compatible neighbors to the funeral home. If afforded a free choice, the average funeral director would probably select a site adjacent to a middle or upper income residential neighborhood and on a well traveled, but not congested, street. Such a choice is seldom available. The funeral home requires a location which is easily accessible to its primary service area. Close proximity to the persons it serves is essential, particularly in larger cities where service areas are more defined and where acces- sibility can be a major problem for clientele. Access to churches and cemetaries is also important. For these res- sons, sites on collector or arterial streets as opposed to minor residential routes are highly desirable. They not only provide better access, but can more easily accommodate the traffic generated by the funeral home. 130 Major streets also provide an advertising advantage. Since other means of advertising are limited, a location which enables members of the community to become familiar with the name and facilities of a particular funeral home isoften a locational consideration of the funeral director. The appropriate location of the funeral home pre- sents somewhat of a dichotomy. Although funeral homes require locations with characteristics usually associated with resi- dential neighborhoods, they also need locations near the center of urban activity which afford commercial advantages of accessibility and prominency. These two requirements are usually difficult to satisfy in one location. A requirement resulting from the numerous and varied facilities that the modern funeral home must provide is a large site. There are many obvious reasons for this need. First, the spatial requirements of the structure itself are great. The previously mentioned facilities which cOmprise the funeral home demand a large area.‘ In addition, the funeral director usually prefers a one-story arrangement with attached garages and enclosed loading and storage areas. Many times, garages must be provided to accommodate several vehicles. A large site is also desirable to provide the am- ple grounds ordinarily associated with the funeral home and to enable landscaped buffers between it and adjacent uses. This is particularly important if the site is contiguous to residential prOperties or is adjacent to commercial or 131 industrial activities that are not compatible with the funeral home. If the establishment is located on a major street, add- itional lot depth will be desirable to enable a setback that minimizes the street noise audible within the structure. One of the primary reasons for the necessity of large sites is the demand for off-street parking and circu- lation. The funeral director is obligated to his patrons to provide adequate off-street parking as close to the funeral home as possible. The size Of the Operation, the availability of adjacent church, municipal, and private parking areas, funeral customs, and zoning regulations will determine the need for on-site parking. In addition to parking, the funeral home must provide an unloading area for visitors directly ad- jacent to the building and an area for forming funeral proces— sions without obstructing street traffic. Ingress and egress, as well as interior circulation, also require considerable space. The lack of adequate parking area is a major problem of many existing funeral homes and is often cited as a con- tributing factor in a decision to relocate. The funeral director ordinarily prefers a site which can accOmmodate future needs and eliminate the neces- sity of relocation when the volume of his business increases to the point where present facilities are no longer adequate. As a result of his investment, the lack of available sites elsewhere, and the reliance on an established service area, the funeral director normally prefers to remain in the same 132 location unless other circumstances make it impossible. One of the major problems that zoning should seek to overcome is the lack of adequately sized sites in apprOpriate locations. Future Demand for Funeral Home Sites. Funeral homes are a relatively infrequent land use in the average community. It is estimated that on the national average, each funeral home serves about 8200 persons.6 Based on this fig- ure, it could be expected that there would be about six fu- neral homes in a community of 50,000 peOple. Although such a wideSpread average may not be applicable in many communities, it provides an indication of the frequency of funeral estab- lishments. There are, of course, significant variations depending on the character of each urbanized area. It is necessary for planners and legislators to have a general idea of the future demand in the community for each land use type. POpulation forecasts, economic studies, land use inventories, and other studies are ordinarily made to determine this. Comprehensive planning and zoning must reflect these anticipated demands. An existing ratio of funeral homes to pOpulation may be misleading as a means of predicting the future demand for sites in a particular community. Such demand may not be based on a like prOportion. Each community should evaluate 61bid., p. 110. 133 its future need for funeral homes on the basis of population growth, death rate, age distribution, and a variety of other factors. An increase in the number of funeral homes is de- pendent on many recognizable characteristics of the community and of existing facilities. If present funeral homes are located on sites ade- quate_to enable eXpansion, they may be sufficient to accom— modate much of the increased demand for services. However, if existing establishments are outmoded in their physical capabilities and are situated on small sites inadequate for expansion or reconstruction, the need for additional sites will be greater. The character of the neighborhoods in which present funeral homes are located is also a determining fac- tor. If these neighborhoods are no longer suited to the operation of the funeral home or are experiencing changes in land use characteristics or circulation patterns, the demand for new sites elsewhere in the community will likely be in— ' creased. The physical condition of existing facilities will also influence future demand. The pattern of urban growth is another primary determinant of the need for new sites. Funeral homes are usually located in relation to defined service areas based on pOpulation density or physical distribution of racial, ethnic, and religious groups. A shift in the populations of these service areas may prompt the funeral director to 134 -relocate the funeral home in Order to better serve these peo- ple. Although pOpulation shifts may not result in gross pOpulation increases, they may create a demand in a new area and thus increase the need for new sites.‘ Population increases in suburban areas may result in a greater need for new sites than would increased density in previously developed areas. A funeral director is most likely to expand his present facility in view of a pOpulation increase in his established service area, while population shifts or suburban growth may prompt relocation or the establishment of a branch funeral home. It is important to note whether demand is created in a new area or demand in an existing area is increased. Current zoning regulations have a direct impact upon the establishment of new funeral homes. Availability of sites in a particular district, non-conforming use provisions, and site develOpment standards affect funeral directors' deci— sions to expand, relocate, or construct branch facilities. Since funeral homes are relatively permanent land uses which rely on single purpose structures, and are charac— terized by few business failures and starts, future demand for sites is not difficult to determine. Ordinarily, future demand can be realized through communication with local fu- neral directors who can supply information as to their future plans and the anticipated situation in the community. The responsibility of making quantitative and qualitative needs known to planners and legislators often falls upon local 135 funeral directors. With knowledge of the local factors af— fecting their businesses, they are in a good position to help local officials to evaluate the future demand for funeral home sites in the community. EXCLUSION FROM RESIDENTIAL DISTRICTS With few exceptions, the courts have held that the funeral home is not an apprOpriate use in a purely residen- tial neighborhood. SO widespread and forthright are such decisions that they must be taken as the general rule. Al- though the funeral home is not a nuisance per se,7-i.e. a nuisance at all times under all circumstances, it is ordinarily judged by the courts to be nuisance in fact in strictly resi- dential areas. Each case, however, is evaluated on its merits and depends on the character of the particular neighborhood involved. As a result of this general rule, very few zoning ordinances permit funeral homes in residential districts. To do so would, in most cases, be misleading to the funeral di- rector who would expect to be able to establish a funeral home in compliance with district regulations without enjoin- ment by a court of equity. 7Dean v. Powell UndertakingCo., 203 Pac. 1015, (Cal.). Stoddard v. Snodgrass, 241 Pac. 73, (Ore). Westcott v. Middleton, ll Atl. 490, (N.J.). 136 Funeral homes have been held to be nuisances in ‘ fact in residential neighborhoods in at least 29 states.8 Such decisions have been forthcoming in situations where no 8Alabama: Laughlin Wood & Co. v. Cooney, 220 Ala. 556, 126 SO. 864. Mutualgervice Funeral Homes v. Fehler, (Sup. Ct. Ala.) 58 So. 2d 770 (1952). . . Arizona: City of Tuscon v. Arizona Mortuaries, 34 Ariz. 495, 272 P 923. Arkansas: Howard v. Etchieson, (Sup. Ct. Ark.) 310 S.W. 2d 473 (1958). Powell v. Taylor, (Sup. Ct. Ark.) 263 S.W. 2d 906 (1954). California: Brown v. Arbuckle, 198 Pac. 2d 550} Brown v. City of Los Angeles, 183 Cal. 783, 192 Pac. 716, (1920). ' ‘ Connecticut: Jack v. Torrant, (Sup. Ct. Errors Conn.) 71 A 2d 705 (1950). ' . Florida: Skillman v. City of Miami, 101 Fla. 585, 134 So. 541. Stephens v. City of Jacksonville, 103 F1a._l77, 137 So. 149, (1931). Georgia: McGowan v. May, 196 S.E. 705. Indiana: Albright v. Crim, 97 Ind. A 388,.185 N.E. 304 O Reiser v. Osborn, 53 N.E. 2d 545, (1944). Illinois: City of Springfield v. Vancil, 76 N.E. 2d 471 (111. Sup. Ct., 1947). Iowa: Bevington v. Otte, 273 N.W. 98. , . City of LeMars v. Fisch, (Sup. Ct. Ia.) 100 N.W. 2d 14, (1959). Kansas: Fink v. Smith, 140 Kan. 345, 36 P 2d 976, (1954). Leland v. Turner, 230 P 1061. Louisiana: Bultman Mortuary Service v. City of New Orleans, 174 La. 360, 140 So. 503, (1932).‘ Frederick v. Brown Funeral Homes, Inc., (Sup. Ct. La.) 62 So. 2d 100, (1952). ‘ Maryland: Cork v. Howard, 155 Md. 7, 141 A 340 (1928). Jack Lewis Inc. v. Baltimore, 164 Md. 146, 164 A 220, 290 U.S. 585, 54 Sup. Ct. 56, (1933). . ll|lll|u A ‘Il.l.l I lvll’l-IIA ..1' I II .“l: I. Ill...” l 1 III" 137 zoning ordinance was in force, where the ordinance permitted funeral homes in residential districts and neighbors sought injunctions on grounds of private nuisance, and where the use‘ Massachusetts: Brookline v. McManus, 263 Mass. 270, 160 N.E. 887. , Philips v. Board of Appeals of Springfield, 286 Mass. 469, I90 N.E. 601 (1934). - Michigan: Kudinger v. Bagnasco, 298 Mich. 15, 298 N.W. 386 (1941). Rockenbach v. Apostle, 330 Mich. 338, 47 N.W. 2d 636 (1951). Minnesota: Gunderson v.Anderson, 190 Minn. 245, 251, N.W. 515 (1933). . St. Paul v. Kessler, 46 Minn. 124, 178 N.W. 171. Mississippi: Smith v. Fairchild, 10 So. 2d 17i. Missouri: Street v. Marshall, 316 Mo. 698, 291 S.W. 494 (1927). . Clutter v. Blankenship, 144 S.W. 2d 119. New Jersey: Keiser v. Plainfield, 10 N.J. Misc. 496, 159 A 785 (1932). Apter v. City of Newark, 6 N.J. Misc. 554, 142 A 310 (1928). New York: Jones v. Chapel Hill Inc. 273 A.D. 510, 77 N.Y.S. 2d 867. Arthur v. Virkler, 258 N.Y.S. 886, 144 Misc. 483. Nebraska: Beisel v. Crosby, 178 N.W. 272. Oklahoma: Jordan v. Nesmith, 269_Pac. 1096. In re Dawson, 136 Okla. 113, 277 Pac. 226 (1929). Rhode Island: Tripp v. Zoning Board of Review of Pawtucket, 123 A 2d 133 (Sup. Ct. R.I. 1956). ' Drabble v. Zoning Board of Review of Providence, 52 R.I. 228, 159 A 828 (1932). South Carolina: Fraser v. Fred Parker Funeral Home, 21 S.E. 2d 577. Tennessee: Spencer Sturla Co. v. Memphis, 155 Tenn. 70, 290 S.W. 608 (1927). City of Memphis v. Qualls, l6 Tenn. A 387, 64 S.W. 2d 548 (1933). Texas: King v. Guerra, 1 S.W. 2d 373, (1933). Virginia: Bragg v. Ives, 149 Va. 482, 140 S.E. 656. Washington: Densmore v. Evergreen, 112 Pac. 255. Wisconsin: Cunningham v. Miller, 189 N.W. 531. 138 was in violation of the district regulations. Although these decisions are all similar, the findings of the various courts and the reasons for their rulings vary considerably depending on the circumstances of each case. For the most part, these cases represent the rule in their respective states. Despite the fact that many of them are outdated, they nevertheless are cOmmonly cited as precedent. Reminder of Death. The most frequent objections to funeral homes in residential neighborhoods eminate from the nature of the Operation and its association with the deceased and bereaved. Objections to the physical appearance of funeral homes are very rare. The majority of court decisions point out that a funeral home in a strictly residential area creates a discomfort to adjoining property owners due to its constant. reminder of death and thus impairs the enjoyment and use of such prOperty. This objection is primarily psychological and originates from a common fear of death and any reminder of it. Although the delivery of bodies and caskets, preparation of the deceased, and the funeral service itself are all conducted out of sight of neighboring prOperty owners, their awareness that these activities take place Often results in mental de- pression. The presence of a hearse and other funeral vehicles, the traffic of bereaved persons, and the funeral procession are outward reminders of death. Regardless of the physical attractiveness of the funeral home and the efforts to conceal its activities from the public, the courts generally rule that 139 it constitutes a private nuisance to adjacent prOperty owners. Similar decisions have been noted concerning the location Of funeral homes in residential areas in proximity to public schools and hospitals.9 The major objection in such cases is the psychological impact upon school children and hospital patients, although traffic generation also appears to be sig- nificant. Until these attitudes toward death and the funeral home change, they appear to be valid grounds for enjoinment. In a rather blunt Opinion, the Court, in the matter of Street v. Marshall, said:10 No amount of skill or tact can wholly eliminate from the undertaking business its constant reminders of death, the one thing from which the normal individual instinc- tively flees, whatever his religion or philOSOphy of life. To be compelled to live in a continuing atmosphere of death is intolerable. While the undertaking business is not only lawful but indispensable, there is no justifi- cation or excuse for its seeking out and establishing itself in localities devoted exclusively to homes, where it not only materially detracts from the comfort and hap- piness of those who dwell there, but ruinously depreciates the values of their real estate as well. Similarly, it was stated in Arthur v. Virkler that:ll The inherent nature of an undertaking establishment is such that, if located in a residential district, it will inevitably create an atmosphere detrimental to the use and enjoyment of residence prOperty, produce material 9See: Harris v. Sutton, 148 S.E. 403 (Ga.). Hatcher v. Hitchcock, 129 Kans. 88, 281 Pac. 869. Tripp v. ZOningBoard of Review of Pawtucket, 123 A 2d 144 (Sup. Ct. R.I., 1956). 10 Street V. Marshall, 316 Mo. 698, 291 S.W. 494 (1927). 11Arthur v. Virkler, 258 N.Y.S. 886, 144 Misc. 483. 140 annoyance and inconvenience to the occupants of adjacent dwellings, and render them physically uncomfortable, and in the absence of a strong showing of public necessity, its location in such a district should not be permitted over the protests of those who would be materially in— jured thereby. These decisions are representative of the greater weight of case law. Ironically, however, persons who have resided next to, or in the immediate vicinity of funeral homes often do not confirm these opinions.12 If the funeral home is situated on a large site with adequate yards and ample Off— street parking, is attractively designed and well maintained, and is Operated in a tasteful manner, objections are few: The apprehension of living next to a funeral home sometimes appears to be worse than the experience itself. These atti- tudes of neighboring prOperty owners is a subject worthy of considerable future analysis from the viewpoints of both zoning and public relations of the funeral directing profes- sion. PrOpertyiValues. A second ground for injunctive relief usually cited in connection with "the constant re— minder of death" is that of the depreciation of prOperty values in a neighborhood due to the presence of a funeral home. Depreciation of prOperty values is difficult to prove. As a result of the numerous factors that affect the value of a particular piece Of prOperty, the impact of a singular 12 this author. Verplanck, Op. cit. p. 158, and conclusions of 141 influence such as a funeral home is hard to isolate and mea- sure. For this same reason, it is equally difficult to Show that a prOposed funeral home would not impair the value of adjacent property. The best method of proving either argu- ment is to examine the market values of particular prOperties before and after the proposed location of a funeral home is made known. This requires that actual sales of prOperties be made and that a fair basis for compariSOn exists. Facts ap- plying to the situation in question can then be supported by studies of property values before and after the establishment of funeral homes in other communities. Courts are reluctant to accept results of property value studies cOnducted only in other communities because such studies are ordinarily based on a limited survey of local circumstances and cannot be di- rectly applied to the neighborhood in question. In the absence of conclusive proof, courts appear' to presume depreciation of value by virtue of the fact that neighboring property owners claim nuisance and seek relief. If nuisance is proven, the factor of reduced prOperty value is generally associated with it. This is pointed out in White v. Luquire Funeral Home:13 Conditions, inherent in the business, bring such an at- mosphere about the place as to render it less desirable as a place of residence, and if less desirable the pro- perty becomes less valuable for residence purposes. . . The issue of property values is discussed later in this chap- ter in connection with a case study. 13White v. Luquire Funeral Home, 221 Ala. 440, 129 So. 84. 142 Odor and Disease. Most earlier court decisions and .- a great many recent bills of complaint assert that the funeral home emits disagreeable and noxious odors and creates a dan- ger of infection and communicable disease.14 In view of modern operating techniques and state and local health codes, these allegations are completely unfounded and need no further rebuttal. For the most part, recent decisions do not recog- nize these accusations as being significant, and rely pri- marily on the depreciation of property values and the depres- sing reminder of death as grounds for enjoinment. - Traffic. Although less frequently cited by the courts as ground for enjoinment as a nuisance, the increased traffic generated by the funeral home is a major reason why most zoning ordinances prohibit such use in residential dis- tricts. ,The potential_traffic generation of any land use is a determinant of the district classification of that use. The normal activities associated with a funeral home such as funeral processions, ambulance_ service, and visitation, create traffic and a need for parking that many times cannot be accomm— odated by minor residential streets. Ingress and egress of this traffic present additional problems. Congested and otherwise unsafe conditions detrimental to the neighborhood and to the Operation of the funeral home may result. 14See: Saier v. qu, 198, Mich. 295 164 N.W. 507 (1917) and note Rockenbach v. Apostle, 330, Mich. 338, 47 N.W. 2d 636 (1951) where this argument was dismissed. 143 This relationship between traffic and land use is, in most cases, a valid reason for excluding funeral homes from sites on minor streets within residential districts. Requisites to Enjoinment. Case law involving the exclusion of funeral homes from residential neighborhoods in- dicate three primary tests requisite to such action. First, the prOposed location must be in a strictly residential area and usually must be designated as a residential district by the official zoning map. What constitutes a residential area normally depends on the predominant character of the uses in the neighborhood. Second, neighboring prOperty owners must show that the prOposed funeral home would have a depressive. effect upon them and would substantially impair the enjoyment of their property. Finally, the court must normally find that the funeral home would significantly depreciate the value of the surrounding prOperties for residential purposes. The issue of traffic congestion is sometimes a fourth con— sideration. Affect on Zoning Law. Zoning is, to'a large degree, limited by case law as it stands. Where a state supreme court has ruled against the location of funeral homes in residential neighborhoods, local legislators have no choice but to draft the municipal zoning regulations accordingly. Since the ma- jority of court decisions have declared the funeral home to be inappropriate in purely residential neighborhoods, it is entirely reasonable for zoning ordinances to prohibit them as 144 a use by right in residential districts. Courts of law have been consistent in upholding ordinances which do 30.15 Regardless of how much a funeral home may appear like a residence and how compatible with residences it may be made, it cannot be construed to be a residential use of prOperty. Unless "similar" uses are permitted in a particular residential district, the funeral home may be excluded solely 16 by reason of legislative discretion. Law of Equity. A funeral home will be allowed to be established and Operated in a particular location if it complies with zoning regulations and does not constitute a nuisance to adjacent prOperties by the manner in which it is Operated and maintained or by virtue of the nature of the area.17 It has been noted that it is normally considered to be a nuisance in a strictly residential neighborhood by rea- son of the nature of surrounding develOpment. A funeral home or any other use may also be enjoined by a court of equity if it is found that the manner in which it is Operated is detrimental to adjacent prOperties or to the community as a whole. Findings in either situation may be made regardless of conformance with district regulations. The law of equity 15See: "Legislative Judgement," Chapter 2. 16Ibid. 17Clark, Robinson, & Hellebush, "Some Practical Aspects of the Zoning Laws as They Pertain to the Operation of Funeral Homes" 1965, p. 5, 6. 145 will not permit the use of one's property in a way that con-‘ stitutes a nuisance:18 This distinction between the law of zoning and the law of equity is particularly pertinent to funeral homes. Zoning law often accomplishes the same purposes as the law of equity. If a land use violates the provisions of. the zoning ordinance, it is, of course, subject to the pena- lties set forth in the ordinance. In addition, the munici- pality or any adjacent prOperty owner may seek a court in- junction to restrain the owner from continuing the use.19 Many ordinances also provide that a use, although permitted by the district regulations, Operated in such a manner as to constitute a nuisance will be found in violation of the ordi- nance. An example of such an approach is the case of City of LeMars v. Fisch.20 Neighboring property owners initiated ac- tion to enjoin an existing funeral home in a residential dis- trict. The Supreme Court of Iowa ruled that the use in question constituted a nuisance in fact and violated the pro-- vision of the local ordinance which stated that a use may not be continued that was'bffensive or created any added burden on neighboring residents." 181bid., p. 14. 19Although this is an established rule, see in particular: Sapiro v. Frisbie, 93 Cal. App 277, 270 p. 280. 20City of LeMars v. Fisch, 100 N.W. 2d 14, (Sup. Ct. Iowa, 1959). 146 It is also a well established rule of the law of equity that adjacent‘prOperty owners have the right to seek an injunction against the establishment or Operation of a funeral home that would, or does, in fact, constitute a nui- sance in a residential district even though such funeral home is permitted by the zoning district-regulations.21 This rule was clarified in Jack v. Torrant, where the Supreme Court of Errors of Connecticut held that a particular funeral home constituted a nuisance in fact in a purely residential neighborhood, but added that:22 Had the defendants established and maintained this funeral home for a substantial period without objec- tion, a very different question might be involved in determining whether the plaintiffs could obtain in- junctive relief. 3 A Case Study.2 A case involving the Braun Funeral Home in Adrian, Michigan is especially significant to this analysis as it concerns each of the previous points pertaining 21Snow v. Johnson, 197 Ga. 146, 28 S.E. 270. Morrison v. City of Cleveland, 21 O.L. Abs. 396, (Ohio). Sweet v. Campbell, 9 N.Y.S. 2d 281. A22 JaCk V. Torrant, 71 A 2d 705 (1950). 23Information for this case study was obtained from: interviews with Edward and Richard Braun, owners of the Braun Funeral Home, December, 1966; "Bill of Complaint," "Answer to the Complaint," "Defendants' Brief," "Opinion of the Court," and other documents of the case of Wood et al. v. Braun et a1. State of Michigan, Circuit Court for the County of Lenawee, 1958; and various neWSpaper articles and items of correspon- dence concerning the case furnished by Edward and Richard Braun. 147 to funeral home location in residential districts. It also involves the issues Of variance, re-zoning, and amendment to the zoning text, and provides a typical example of the major zoning problems experienced by funeral directors. 4 The parties involved had Operated a funeral home in the city for over twenty-five years. The existing funeral home was located near the center of the business district, on a small site, and in a converted residential structure. A normal increase in business coupled with the traffic conges- tion in the area and the inability of the site and structure to accommodate future needs prompted the owners to seek a new location. They desired a quiet neighborhood free from traffic congestion but easily accessible, a large lot, and the prOper atmosphere to conduct funeral services and pro- tect the substantial investment involved. Since no appro— priate sites elsewhere in the community were available, they purchased a ten acre parcel near the edge of this city of about 20,000 pOpulation. The sitewas in a predominantly residential area of very low density and was designated by the local zoning ordinance as a residential district. The ordinance at this time permitted funeral homes only in com- mercial districts. Several other facts concerning the proposed site are significant. It was located on the corner of two streets, one of which served as a primary route through the city and was designated by the Master Plan as a future Federal trunkline. 148 The street one block to the east was a major route to a hospi- tal located one-half mile from the site. A church was prOposed on a ten acre parcel across the corner from the site and a funeral home was Operated two blocks away in the same district. Many of the existing homes in the area were of substantial value and were occupied by several of the community's promi- nent citizens. Although much of the immediate area was unde- velOped, recent construction indicated that the neighborhood‘ could be expected to remain primarily residential in character. When a building permit was refused, the owners re— quested a variance in order to construct a funeral home on the prOposed site. The variance was denied on the ground that it would grant a use of the property otherwise prohibited by the zoning ordinance.24 Subsequently, a re-zoning of the parcel to a commercial classification was requested. It was denied due to the fact that it would constitute illegal "spot zoning." Neither of these denials is surprising in view of Michigan and local zoning law and practice. Finally, an amendment to the zoning text to permit funeral homes as a use by right in re- sidential districts was initiated by the owners. Under most circumstances this would have been the prOper action to take 26 at the onset. The petitioners cited the lack of apprOpriate 24See "Variances" Chapter Three. 25See "Amendments" Chapter Three. 26Ibid. 25 149 sites in permitted districts and changing conditions in the community as reasons why the amendment should be adopted. Through public hearings on the matter, considerable contro- versy arose, and the issue became one of community-wide concern. The Planning Commission recommended that the amend— ment not be adOpted, but the City Commission was unable to reach a majority decision. Consequently, the prOposal was placed on the ballot in a Special Election and received a favorable advisory vote of the people. The Proposition read:27 Shall the Zoning Ordinance of the City of Adrian be. amended to permit the construction and Operation of funeral homes and mortuaries in residential zones? The City Commission then amended the ordinance accordingly and a building permit was issued. I Neighboring property owners who objected to the prOposed location of the funeral home sought an injunction in the Circuit Court to restrain the owners from constructing a funeral home on the site. It is interesting to note that the plaintiffs sought an injunction against the owners of the prOperty rather than attack the zoning ordinance because it permitted funeral homes in residential districts. This is usually the case in situations of this type. The plaintiffs, in the Bill of Complaint, made the usual allegations concerning the effect that the proposed 27City of Adrian, Michigan, "Ballot for Special Election," January 29, 1957. [Ill-lllll‘ll ll I'll! III]! II I '1'" I I‘ll 150 funeral home would have on their properties and themselves. They stated that the prOposed use "will create within the entire area a constant reminder of death which will have a. depressing and morbid affect upon the minds of these plain- tiffs, their neighbors, families, and friends. . ." because of: the presence and handling of dead bodies; the music, ”funeral dirges," and audible and visible bereavement; the affect upon neighborhood children; ambulance sirens; obnoxi- ous odors and health hazards; and "the commercial business of selling caskets."28 It was also alleged that the funeral home would create dangerous traffic conditions as a result of ambulances, funeral processions, and visitors to the es— tablishment. Finally, the plaintiffs asserted that the value of their prOperties would be substantially depreciated. Some of these objections, although dramatically set forth, were dismissed by the Court as not being applicable to the situ- ation at hand. The factors of noise, odor, health hazards, and traffic congestion did not appear to influence the Court's decision.29 In answering these allegations, the defendants uti- lized the arguments frequently set forth by funeral directors in similar situations. They asserted that: the handling of ZBSupra, Page 146, "Bill of Complaint," P- 4, 5- 29§EE£EI Page 145: "Opinion of the Court." 151 bodies and other items will be completely out of view; ambu- lances will not traVel at high speeds and sirens will not be sounded in the area; as a result of modern techniques and health codes, there will be no odor or health hazard; mourners will not be visible or audible to neighbors; adequate off? street parking will be maintained; and, the street is capable of accommodating the increased traffic and no congested con— dition will result. The defendants also pointed out that the proposed funeral home would be a sufficient distance from any residences, would be separated therefrom by adjoining streets, tOpography, and Open Spaces, and would be so designed and maintained as to be an asset to the neighborhood.30 To demonstrate their good intentions, the defendants consented to an injunction restraining themselves from con- structing any funeral home at the location other than one set back from the two adjoining streets not less than one hundred feet and with a masonry-veneer exterior with substantially the same lines and appearance, parking arrangement, and land- scaping as the model which they submitted as an exhibit in the case. The injunction also stipulated that the proposed funeral home would represent an investment of about $100,000. It is apparent that the defendants made a considerable effort to minimize, as much as possible,the objections to their proposed develOpment. 3oSupra, Page 146, "Defendants' Answer to the'Com- plaint" and i'Defendants' Brief." 152 Before noting the Court's decision in this case, it is necessary to examine two controversial points brought out by the facts. The first concerns the question of the maximum distance from a proposed funeral home within which property owners can claim nuisance. Several of the plaintiffs in this case owned prOperty a considerable distance from the proposed location. Seven of the fourteen prOperties owned by the plaintiffs were located from 500 to 1100 feet from the defendants' prOperty. The Court stated that these persons were situated such that they could not claim injury as a re-. sult of the funeral home, and that if no other complaintants were involved, it was doubtful that they would prevail. 'Al- though none of the remaining seven plaintiffs' prOperties were located within 210 feet of the proposed site and some were separated therefrom by streets, their testimonies were heard and considered. The Court ruled that they were located in such a manner that they could claim nuisance. In addition to proximity, the courts usually consider whether the plains tiffs reside within sight of the use in question.31 A second point significant to this case is that of property values. In defense of the complaint, the defendants produced an eXpert witness who had studied the affects of funeral homes on residential prOperty values in other communities. 31See Reiser v. Osborn, 53 N.E. 2d 545, 39 A.L.R. 2d 1000, (Ind., 1944). Iil Ill‘llll |lll l .illil‘ [I'll 153 His conclusion, based on an analysis of prices of comparable prOperties in the city and on the findings of his studies in other Michigan cities, was that the prOposed funeral home would have no significant impact upon the values of adjacent properties.32 This conclusion was supported by three indi- viduals who purchased prOperty directly Opposite the site and testified that knowledge of the funeral home as a possible neighbor had no effect on their decisions or the purchase prices of their prOperties. The plaintiffs produced as expert witnesses two real estate brokers who estimated that the value of adjacent properties would be substantially depreciated by the proposed funeral home. Both of them admitted that they had no prior experience in evaluating prOperty in such a situation, and neither had examined actual sales of prOperties in the area. In its opinion, the Court made no direct reference to the arguments of either the defendants or the plaintiffs, but simply stated:33 The value of the seven residences noted would be re- duced by the prOposed funeral home, for the record fully warrants the conclusion that it would render these homes less desirable as residences and thus less valuable as such. 32Supra, Page 146, "Defendants' Brief," p. 6-8. On this subject see: Verplanck, Op. cit? p. 155-157, and Wenger, Ralph, "The Effect of Funeral Home Location on Resi- dential PrOperty Values," Ralph Wenger and Company, Grand Rapids, Michigan, 1957. 33§gp£a, Page 146, "Opinion of the Court," p. 11. 154 This exemplifies the point made earlier in this chapter that ‘ it does not appear that depreciation of prOperty values must be proven beyond doubt in order for the courts to enjoin fu- neral homes in residential neighborhoods. It is common for the courts to rely on case law and assume depreciation of' property values as an inherent result of proven nuisance. Following the greater weight of Michigan case law,34 the Court issued an injunction restraining the defendantS‘ from establishing and operating a funeral home in the pro- posed location. The Court dismissed the defendants' claim that the plaintiffs' testimonies were hypothetical, specula- tive, and indefinite, and stated:35 . . .the testimony sufficiently establishes, and I so find, that if the prOposed funeral home is constructed and Operated on the site in question, it would adversely affect these Plaintiffs in the quiet enjoyment of their residential prOperty, because of the constant reminder of death necessarily attendant upon a funeral home what- ever its appearance and however carefully its owner seeks to conceal its Operation. A similar decision is noted in Rockenbach v. Apostle,36 where the Muskegon Heights (Michigan) zoning ordinance specifi- cally permitted funeral homes in the "B Residential" district _fi 34Saier v. Joy, 198 Mich. 295, 164 N.W. 507 (1917). Dillon v. Moran, 237 Mich. 130, 211 N.W. 67, (1926). Khndinger v. Bagnasco, 298 Mich. 15, 298 N.W. 386, (1941). REckenbach v. Apostie, 330 Mich. 338, 47 N.W. 2d 636, (1951). 35SUpra, Page 146, "Opinion of the Court," p. 10. 36 ' Rockenbach v. Apostle, Op. cit. 155 and the Michigan Supreme Court ruled that as the area actually develOped, such a use would constitute a nuisance and would not be permitted. Rockenbach ruled in the Braun case. Both cases clearly point out that, in the final analysis, it is public attitudes toward the funeral home and the emotional associations concerning it that largely deter- mine its location within the community develOpment scheme. Although predominant, however, these attitudes are not uni- versal. It is entirely feasible that in some communities, under certain circumstances, the funeral home may not be. objectionable in residential districts. These situations are not incorporated into case law as they seldom reach the courts. TRADITIONAL APPROACH: COMMERCIAL DISTRICTS In declaring that funeral homes are imcompatible in purely residential areas, the courts usually add that they are commercial in nature and as such belong in commercial dis-V tricts. As a result, most zoning ordinances limit funeral home location to some type of commercial district. For the most part, suCh an approach has been inappropriate and inad- equate. An analysis of the character of the funeral home as a land use reveals that it is not a commercial activity in the usual sense of the term. It is commercial in that it is Operated for a profit, but its association with a commercial 156 product is only incidental to the service it offers and is not reflected in the outward nature of the use. The funeral home has neither the physical characteristics nor most of the locational needs of retail commercial land uses. It does not require display space in view of the public or prox- imity to other commercial activities. The funeral home does require considerable Open space, a large lot, a quiet atmo— sphere, and on-site parking which are not ordinarily demanded by the usual retail uses. Its needs for vehicular access directly to the structure and circulation on the site are al- so important. In some cases, courts appear to recognize the fact that the funeral home is not a commercial activity per se. ' One notable decision was set forth in Mullin & Mullin v. 37 Zoning Board of Adjustment. A funeral director sought a building permit to construct a funeral home in a "Suburban Business" district which did not specifically permit such use. Among the permitted uses in the district were "a shop or store for the conducting of retail business" and "a busi- ness office." In upholding the denial of the permit, the Appellate Court stated that although a funeral home was a business, it was not a retail business or a business office as the term is usually understood. The Court added that the 37Mullin & Mullin v. Zoning Board of Adjustment, 204 Atl. 2d 225 (N.J., 1965). ' ‘ 157 funeral home was actually a use of its own kind and did not fit into traditional business classifications, and that some ordinances recognize its uniqueness by making special provi- sions for it. Although this decision was not favorable to the funeral director who desired to locate his funeral home in that particular district, it points out a fact signifi- cant to zoning for funeral homes. It should be noted that numerous types of "commer- cial" districts exist. They range from neighborhood convenié ence centers to central business districts. The uses permitted and the develOpment standards in each vary.- The size of a community and its particular needs determine the number and detail of commercial breakdowns. Large cities may have five to ten such districts with most differing in the nature of the uses permitted; while small and some medium size commun- ities may provide only one or two commercial districts with a greater range Of permitted uses. It is impossible to generalize as to the appropri- ateness for funeral homes of particular types of commercial classifications. Not only do the types of commercial dis- tricts provided by local zoning ordinances vary among dif- ferent communities, but the nature of a particular type of district is not consistent in all communities. In addition, although the same uses may be permitted and the same regula- tions may be applicable throughout a particular district, the character of develOpment normally varies considerably 158 within that district. Rather than attempt to evaluate dif- ferent types of commercial districts, it is more feasible to consider the land use situations that are acceptable to both the funeral home and the public, and to permit funeral homes in local district classifications that most closely approxi- mate these situations. Central Business Core. Central business core loca- tions for funeral homes have generally proven to be inappropri- ate from the vieWpoints of both funeral home Operation and land use planning. These areas are characterized by considerable noise, traffic congestion, pedestrian activity, and lack of parking space. They ordinarily do not provide the quiet dig— nified atmosphere that funeral home clientele demand. For the purposes of the funeral home, access to the central business area and to sites within it is often difficult. Sites large enough to accommodate the facilities that the modern funeral home must provide are seldom available. The cost of land in these areas, as well as in other densely develOped commercial areas, is frequently prohibitive to the funeral home. _The value of such properties is based upon a higher percentage of lot coverage and a greater number of stories than is charac- teristic of the average funeral home. This forces the funeral director to invest an unrealistic amount in land as compared to facilities and the economic return he can realize. In ad— dition, most central business areas do not provide the needed 159 protection of the substantial investment involved. This is an important consideration for a land use as permanent as a funeral home. From a land use planning vieWpoint, funeral homes are undesirable in these areas for several reasons. Ingress, egress, and traffic generated by visitors, funeral proces- sions, and ambulances add to the problems in these already congested areas. The lack of sites large enough to accommodate off—street parking and areas for the formation of funeral pro- cessions make the situation worse. In addition, funeral-homes are not an economical use of land in high density commercial areas. The large sites required for the use are in greater demand, and can be better used, for other purposes more suit- able to the function of the area. Marketing experts object to uses such as funeral homes in these and other retail areas, not because they are obnoxious in any way, but because they create "dead spaces" which break the continuity of pedestrian shOpping from one store to another. Many communities restrict funeral homes from the central business core for these sev- eral reasons. It should be noted that, in many communities, there may be several areas characterized by the same type of develOpment found in the central core. These areas are, of course, equally inapprOpriate for funeral homes. General Business Areas. Another type of commercial develOpment usually not suitable for the funeral home is that where all types of commercial and business activities are lo- cated. It is most Often zoned as a general business or heavy 160 commercial district, the least restrictive of the commercial classifications. Although most areas within this type of district are not compatible with the funeral home, it is, with very few exceptions a permitted use. General business areas are often located adjacent to the business core, and are the moSt pOpular locations for repair garages, warehouses, wholesale businesses, building supply yards, laundries, and other uses which are sometimes classified as light industrial. Many of the uses typically located in such areas are clearly detrimental to the Operation of a funeral home because of noise, odor, and general appear— ance. Traffic congestion in these areas varies according to exact location, but truck traffic is generally heavy. There may be considerable mixing of land uses and generally unstable land use conditions. Large sites may be available at reason- able cost, but protection of the funeral director's investment is often at a minimum. The approach of limiting funeral home location to general business or heavy commercial areas is, in view of mo- dern zoning concepts, inappropriate. Nevertheless, it is re— tained by many communities. In most situations, more appro- priate district classificationsare provided by the zoning ordinance and should be considered. Intermediate Commercial Areas. The most difficult type of commercial develOpment to characterizeis the "inter- mediate” commercial area. It is usually comprised of a‘ 161 variety of retail, service, office, and institutional uses at a lower density than the commercial core. Where the local ordinance does not provide an Office district, intermediate commercial areas are the most pOpular locations for profes- sional and business offices, clinics, colleges, motels, and similar uses. Heavy commercial actiVities such as those found in the general business area are seldom found. In some communities, these commercial areas may be no more than expanded neighborhood shOpping areas, while in others they may be purposely designed to serve several neigh- borhoods or the entire community cOnveniently. Often, they constitute a commercial fringe to the central core or con- stitute what is commonly referred to as "strip commercial develOpment" along major thoroughfares. Intermediate commercial areas may be zoned as "limited commercial," "community service," or "suburban busi- ness" districts. Sometimes they are actually a portion of the "central business district." With the exception of cen- tral business districts, funeral homes are normally permitted in these districts.38 Access to an intermediate commercial area is usually good, particularly if it is intended to serve specific neigh— borhoods. Its trade area is very likely to coincide with the 38For examples of this approach, see the zoning ordi— nances of: Denver, Col. (1959) ‘ Concord, N.C. (1965) District of Columbia (1956) Georgetown TWp. Mich. (1963) Seattle, Wash. (1955) Ithaca, N.Y. (1965) Vancouver, B.C. (1956) 162 service area of the funeral home. Traffic congestion may be a problem in some of these areas, but for the most part they are located along major streets capable of accommodating the additional traffic generated by the funeral home. These ma- jor streets also provide the advertising advantage and pro- minent location desired by most funeral directors. In some situations, intermediate commercial areas afford desirable locations for funeral homes. Sites are of- ten available in proximity to offices, clinics, churches, and various institutional uses which are normally considered to be apprOpriate neighbors to the'funeral home. There also may be sites available on the periphery of these areas adja- cent to residential develOpment, in which case the funeral home can serve as a transitional use. An intermixing of residential structures within intermediate commercial areas is common, and enables the conversion of outmoded residences to uses as funeral homes. Neighborhood Commercial Areas. There are considerable variatiOns in the nature of neighborhood commercial areas. For the purposes of this analysis, they are divided into two types depending on their purpose, size, and the uses located within them. A strict interpretation of a neighborhood commercial area is a center designed to provide for day to day needs of families residing in an adjacent neighborhood. Uses are nor— mally restricted to limited volume retail businesses and per- sonal service establishments such as barber and beauty shOps, 163 laundromats, and cafes. There is seldom more than one of each type of use. The area itself is usually very limited in size. It is most often oriented to pedestrian rather than vehicular access and is located in the center or on the periphery of a defined residential neighborhood. Many times it is develOped as a planned neighborhood center. This type of neighborhood commercial area will hereafter be referred to as a neighborhood convenience center. As a re- sult of its purpose, size, and character of develOpment, it is normally not an appropriate location for funeral homes. Most zoning ordinances recognize this fact and restrict them from such areas. In many communities, neighborhood commercial areas resemble the "intermediate" commercial areas, but are located in closer proximity to particular residential neighborhoods and are intended to exclusively serve them. Compared to convenience centers, they are somewhat larger and are charac-' terized by a wider range of uses, including retail businesses, personal service establishments, business and professional offices, banks, institutional uses, and medical and dental clinics. Retail businesses are Often limited by zoning to those catering primarily to the residents of the surrounding neighborhoods. ‘ Neighborhood commercial areas of this type afford a reasonable compromise of the residential and commercial locating needs of the funeral homes. They are usually located Iii] l llllil y 164 immediately adjacent to residential areas and on collector or arterial streets. Access to these neighborhoods, as well as to other points in the community, is normally excellent. These areas present a particular advantage to funeral homes which serve the same neighborhoods. Traffic congestion is usually less severe than in central and intermediate areas, and yet the volume of traffic is such that it provides the commercial advantages preferred by the funeral director. The additional traffic generated by the funeral home is sel- dom a problem, provided that means Of ingress and egress‘are located on major streets and that nearby residential streets do not serve as primary access routes. Due to their inherent proximity to residential de- velOpment, neighborhood commercial areas retain much of the quiet, dignity, and general residential character demanded by the funeral home. Large sites at a reasonable cost are frequently available, provided that the area is not excep- tionally small. This is particularly true in suburban areas. Sites directly adjacent to residential properties are usually available and provide a desirable transition between resi- dential and retail uSes. Areas of this type located among older reSidential develOpment can enable the conversion of. large residential structures to uses as funeral homes. In these respects, neighborhood commercial areas provide many - of the advantages of intermediate commercial areas. 165 Many communities permit the funeral home as a use ‘ by right in areas designated as neighborhood commercial dis- 39 and Richmond, Virginia40 are tricts. Birmingham, Michigan excellent examples. The Single Commercial District. The greatest prob- lems in zoning for funeral homes are noted in small communities where only one commercial district is provided by the zoning ordinance. Commercial areas in such communities are occupied by the entire range of commercial activities with little or no regulation of their relative locations within the district. There is characteristically an even greater mixing ofincom- patible uses than in the general business areas of larger cities. All of the problems associated with the commercial areas previously mentioned are sometimes present: noise, congestion, lack of parking, and unavailability of large sites. Nevertheless, funeral homes are permitted in the Sin-A gle commercial district almost without exception. It appears that, in this situation, funeral homes are often classified as commercial for the sake of expedi- ency as well as out of necessity. Few communities, parti- cularly small ones, provide a zoning district that accommodates 39Birmingham City Code, Chapter 39: Zoning. "B 2, Neighborhood Business DistrictF_(l963). 40Richmond City Code, Chapter 41. "C 2, Neighborhood Shepping Districtfii(amended to 1966). See also: Zoning Ordi- nance, Salisbury, North Carolina, "B 3, Neighborhood Business D1Strict" (1964). 166 the unique nature of the funeral home; and because the use is ~normally considered to be incompatible with residences, no. alternative is readily available. This is especially true when local zoning law and practice has not kept pace with the physical develOpment of the community. However, apprOpriate sites for the location of fu- neral homes are sometimes available within these districts. As in the case of intermediate and neighborhood commercial areas, locations on the fringe of commercial develOpment may be suitable. . General Permissibility. A funeral home permitted and prOperly Operated in a commercial district of any type ordinarily will not be enjoined as a nuisance to surrounding properties.41 This rule has been supported in the decisions of Kirk v. Mabis42 and Linsler v. Booth Undertaking €0.43 It has been applied even though the surrounding prOperties were used for residential purposes. The contrast between this rule and that concerning the location of funeral homes in residential districts should be noted. The case of Bauman v. Piser Undertaking Company44 provides an interesting example. Neighboring property owners sought an injunction to enjoin the establishment of a funeral 41Clark, Robinson, & Hellebush, Op. cit. p. 5._ 42Kirk v. Mabis, 246 N.@. 759 (Iowa). 4 3 * Linsler v. Booth Undertaking CO., 206 Pac. 976 (Wash.). 44Bauman v. Piser Undertaking CO., 180 N.E. 2d 705 (Illinois). 167 home in a commercial district where surrounding prOperties were devoted primarily to residential uses. In denying the injunction, the Court stated that a residential district must have a boundary, and that outside of that boundary it is not residential for the purposes Of zoning and is not entitled to residential benefits. However, the Court recognized the 2 right of surrounding prOperty owners to seek injunction if the use constitutes a nuisance in fact by the manner in which it is operated. There are some courts, no doubt, that would i! take a contrary opinion to the decision rendered in this.case. RECOMMENDATIONS Commercial Districts. Modern zoning concepts en- able the establishment of several types of commercial districts. Under certain circumstances, some of them may be apprOpriate for funeral homes. In order to determine the apprOpriateness of a particular commercial district, it is necessary to exa- mine the general character of that district. The title of the district in question is not so important as are the per- mitted uses and their compatibility with the funeral home, the manner in which the district boundaries are drawn in re- lation to existing and anticipated develOpment, and the num— ber of suitable sites for funeral homes within that district. Other types of districts provided in the local zoning struc- ture will also determine the solution in a particular com- munity. 1 1 III I i4lllul|l .Il.‘ I'll“ ll 168 It has been noted that commercial core areas, gen- eral business areas,'and neighborhood convenience centers are usually undesirable as locations for funeral homes for reasons of both funeral home Operation and land use planning. Zoning districts which are characterized by these types of deVelopment should ordinarily not permit funeral homes. It has also been noted that intermediate and neighborhood com— mercial areas Often afford suitable locations. It is recom- mended that funeral homes be permitted by right in, but not limited to, districts that include such areas.’ Even these commercial districts should not be considered as the only alternatives. In communities where only a single commercial dis— trict.is provided, it is usually desirable to permit funeral homes in that diStrict and to also allow them as conditional uses in residential districts of an apprOpriate nature. This possibility has been overlooked by most communities. It not i only enables a wider choice of possible locations, but it ensures that sites will be available elsewhere in the com- munity if none can be found within the commercial district. This approach should be encouraged in any situation where -existing zoning classifications do not enable a reasonable choice of sites suited to the unique nature and needs of the funeral home. The most significant point concerning funeral home location in commercial districts is its value as a transitional 169 use. The funeral home should be encouraged to locate on the outer edges of theSe districts to serve as a transition be- tween them and adjacent residential districts. To accomplish this, it is not normally necessary to limit the funeral home to a conditional use in the commercial district. The average funeral director will usually seek a site adjacent to resi- dential development on his own initiative; and normal district regulations pertaining to uses located in a commercial dis- trict, but abutting property in a residential district, should be adequate to ensure that the funeral home will not be ob— jectionable to neighboring residences. Office and Professional Districts. Some form of the "office and professional" district appears to be most appro- priate for funeral homes. Such districts provide an excellent environment for the funeral home in view of its Operating char- acteristics and locational needs. Uses permitted in these dis- tricts usually include: professional, business, governmental, religious, and institutional offices; clinics, laboratories, and hospitals; private clubs and lodges; and various public, semi-public, and institutional uses. Most of these activities require large lots, considerable Open space, off-street parking on the site, freedom from excessive noise and congestion, and access to nearby residential areas and to other points in the community. They generally desire locations separate from re- tail commercial activities. The uses permitted in these districts are normally characterized by substantial invest- lnents, relative permanence, well kept and attractively 170 landscaped grounds, and a pleasing aesthetic appearance. They have much the same character and needs as the funeral home, and certainly cannot be considered detrimental to the Opera- tion of such use. Neither can the average funeral home be considered a nuisance among them. DeSpite the apparent apprOpriateness of office and professional districts as a location for funeral homes, it is sometimes argued that the funeral home is not an "office or professional" use. Examination of the other uses normally permitted in these districts reveals that it need be neither. The academic argument as to whether the funeral home is a professional use is not pertinent to the question of permitting it in such districts, Some clarification Of this issue is necessary. Al— though the funeral director is normally considered a profes- sional, and funeral directing is prOperly referred to as a profession, it is generally conceded that the funeral home is not a professional establishment for the purposes of 45 zoning. The funeral home is not prOperly classified along with doctors' and lawyers' offices as a professional or ac- 46 cessory use in residential districts. A funeral home is 45Verplanck, Op. cit. p. 37-41. 46On this subject see: Bond v. Cook, 237 A.D. 229, 262 N.Y.S. 199; Pennock v. Fuller, 41 Mich. 153, 2 N.W. l76;and Veilhauer v. Leighton, 171 N.E. 2d 748 (Ohio, 1959). 171 not strictly "the office of a professional person," as it involves numerous other activities. Neither can it qualify as an accessory use to a residence. It is, however, related in such a manner that it may prOperly be included among pro- fessional uses in districts designed Specifically for them and related establishments. Such a zoning classification relies on the character and needs of particular uses rather than semantics. Since the funeral home is not an office of a pro- fessional person or even a business office, it must be specifically listed as a permitted use in office and profes- sional districts. Its permissibility in these districts can- not be assumed from the nature of the other permitted uses. This rule is pointed out in a general sense and in relation to other zoning districts later in this chapter. There appears to be no legitimate reason why the funeral home cannot be permitted as a use by right in office and professional districts. The problem is not so much justifying its inclusion, as it is the fact that many local zoning ordinances do not provide Such a district. There is, however, a recent trend toward providing some type of office and professional district and permitting the funeral home within it. This trend is exemplified in an analysis of zoning techniques by the International City Managers' 172 Association. It states:47 Even in smaller cities, it may be useful to establish separate districts for professional offices and ser- vice establishments such as funeral homes. These "pro- fessional" districts might be located in the vicinity of the courthouse and hospitals and on the fringes of retail marketing areas. They serve as buffer areas between business districts and residential districts and also serve as transitional uses for old residences bordering existing business districts. The references to "buffer areas" and "transitional uses" point out an important function of the funeral home as a land use. The possibility of converting large residential : structures within these districts to funeral homes shOuld be _ b noted also. In the conclusion to the American Society of Planning Officials' advisory report on zoning for funeral 48 homes, it was stated that: . . .there may be special office building and institu- tional districts in which mortuaries are apprOpriate. Many communities have adOpted this approach. Probably the best example is Knoxville, Tennessee. The Knoxville ordinance permits funeral homes by right in the "O—l Office, Medical, and Related Services District." The statement of 47International City Managers' Association, Local Planning Administration, Third Edition, 1959, p. 328. 48American Society Of Planning Officials, "Funeral Homes," Planning Advisory Service Report #97, Chicago, 1957, page 23. - . 173 the purpose of that district is particularly significant to this analysis. It reads:49 This District is intended to provide areas for profes- sional and business Offices and related activities that require separate buildings and building groups surrounded by landscaped yards and Open spaces. The intent here is to provide centralized, compact locations for business offices, clinics, medical and dental offices, as well as suburban locations near residential neighborhoods. Uses permitted in the district include: professional offices; hospitals, clinics, and medical offices; hotels and motels; private clubs and lodges; art galleries, museums, and libra- ries; and public and private schools and colleges. As in many such districts, residences are also permitted. The Lexington, Kentucky zoning ordinance provides a "Professional Office District" Which permits Similar uses in addition to business offices, governmental buildings, business colleges, and research laboratories.50 Funeral homes are permitted as a use by right in this district. Similar approaches are noted in several cities. 49Knoxville, Tennessee, ZoningOrdinance (1965) p. 43. 50Lexington, Kentucky, Zoning Ordinance (1966). 51Cincinnati, Ohio, Zoning Ordinance (1963) "Suburban Office District." A Muncie, Indiana, Zoning Ordinance (1958) "C-O, Office ShOpping District." Oak Ridge, Tennessee, ZoningOrdinance (1956) "O-Office Dis- trict." Dayton, Ohio, Building Zone Ordinance (1964) "Business AA District." ' East Providence, Rhode Island, (prOposed 1963) "C 1 Office Business." , 174 Some communities prefer to permit funeral homes in. office and professiOnal districts only as a conditional use.52 Due to the nature of the district and the normal characteris- tics of the funeral home, this appears to be unnecessary. In most situations, the funeral home can be permitted by right in such districts without any danger of harmful influences to : surrounding prOperties. A variation of the Office and professional district appears to be popular in several small North Carolina com- y munities. Entitled "Residential-Office" or "Apartment-Office" i districts, they are designed to serve as transition zones be- tween residential and commercial districts. Funeral homes are permitted by right in these districts. The Albemarle, North Carolina ordinance is an excellent example. The pur- pose of the "R-O, Residential-Office District" as stated in the ordinance is as follows:53 The regulations of this district are intended to pro- vide for new structures or the conversion of older homes into office or apartment structures where such are apprOpriate, and to provide a buffer between purely business and purely residential areas. Apartments, professional and business offices, medical and 52See: Lansing, Michigan (PrOposed 1966) "O 1 Of- fice District." Troy, Michigan Zoning Ordinance (1965) "O 1 Office District." 53Albemarle, North Carolina, Zoning Ordinance (1965) p. 21. See Also: Kings Mountain, N.C. Zoning Ordinance (1966) "R 0 Residential Office District," Zoning Ordinance of the City of Hickory, N.C. (1966)"Office and Institutional District," ~ VConcord, N.C., Zoning Ordinance (1966) "Apartment—Office District." 175 dental clinics, laboratories, rest homes, and various insti- tutional uses are permitted. A similar district in which funeral homes are permitted as a cOnditional use has been prOposed in New Orleans, Louisiana.54 The advantages of such a district to the funeral home are obvious. It provides the quiet residential atmo- Sphere usually preferred by the funeral director. The resi- dential-office district also enables the conversion of out- moded residences into funeral homes and reSults in a desirable transition between residential and commercial uses. Such an approach eliminates the complexities of providing transitions by conditional use permit, and yet retains the advantages of that system. This approach should be encouraged wherever possible. Standards in Commercial and Office Districts. The height, bulk, and area regulations of any commercial or Office district should ordinarily be no different for funeral homes than for other permitted uses in that district. District reg- ulations concerning minimum lot area, yards, and lot width, and maximum lot coverage and building height are usually suf- ficient to enSure adequate standards of develOpment for the funeral home in these districts. Zoning regulations are minimum requirements. The individual normally may, and often does, exceed these minimums 54New Orleans, Louisiana, Comprehensive Zoning Ordinance (Proposed 1966). 176 when he develOps his prOperty. It is the purpose of zoning to require minimum Standards that are necessary to promote the public health, safety, and general welfare; not to spe- cify optimum standards that a property owner feels are necessary for the develOpment and Operation of his parti- cular establishment. This distinction is particularly sig- nificant in the case of funeral homes. The nature of the use and its site develOpment needs inherently exceed minimum standards as they are usually set forth in commercial and Office districts.55 . - There are, however, a number of other factors con- cerning funeral home development and Operation that must be regulated in order to adequately promote the public welfare. Off-street parking space is probably the most critical of these. The parking need of a particular funeral home is a function of many variables. The number and size of funeral services conducted; number of employees, funeral vehicles, and residents on the premises; number of deceased likely to lie in state at a given time; and local funeral customs are all important. Although there are several methods of determining minimum parking requirements for funeral homes, the most feasible approach appears to be to requirea certain ratio of off-street parking Spaces to seats in the chapel or funeral 55Note Verplanck, Op. cit. Chapters III and IV. 177 service rooms. Since, in many cases, these seats are not permanently installed and their number can vary according to the demands of a particular funeral service, it is nec- essary for the provision to state that the number Of seats shall be determined by the total seating Capacity of these facilities. The seating capacity of chapels and service rooms is probably the best measure of the size of funeral services that will be conducted and the number of services that can be accommodated simultaneously. Many ordinances base parking requirements on the square feet of floor area in service and reposing rooms. This is not always a good indication of the critical factors that determine parking needs. Additional parking spaces should be required based on the number of employees, funeral vehicles, and residents of the funeral home. Subject to local adaptation, the following minimum parking requirements for funeral homes are suggested: One (1) parking space for each four (4) seats in chapel and funeral service rooms as determined by the total seating capacity of such rooms established by the fire marshal; plus one (1) space for each two (2) employees at periods of full use, one (1) space for each family in residence, and one (1) space for each funeral ve- hicle maintained on the premises. . It is normally desirable to permit joint use of parking facilities.‘ In a general provision applicable to all permitted uses, the ordinance might state that two or more uses located on contiguous premises may jointly provide Off-street parking if the total number of parking spaces ”7 j “.2; 178. provided is not less than the sum of the individual require- ments for each use. In addition, it may be useful for the general parking provisions to stipulate that the board of appeals may reduce the total number of required parking spaces by no more than a specified amount (no greater than 50%) if the uses that the joint parking facilities serve do not Op- erate during the same hours. As applied to funeral homes,- such a provision can be utilized to enable jointuse of adja- cent church parking lots. Zoning ordinances often provide that required off- street parking may be reduced by a use's prOportionate share of public parking areas located within a certain distance of the use. Some ordinances also allow required parking space to be provided within a Specified distance (usually no greater than 300') of the establishment, and not on the same) lot, provided that the area used for parking is owned by the same individual. Such a provision can enable the funeral director to utilize adjacent lots fOr parking if his site is not large enough, and is a particular advantage in commercial areas where only small sites are available. However, in most situations, the funeral director desires to provide all re- quired parking on the same site as the funeral home and as close to the building as possible for the convenience of his patrons. Provisions reducing the amount of required on-site parking should be evaluated in terms of local development, traffic, and parking conditions. 179 There are several other considerations of parking that are normally included in general provisions and pertain to items of parking lot design and develOpment such as access to individual stalls, paving and drainage, lighting, ingress and egress, and screening. In addition, parking is usually restricted from any front yard.. Often the owner must submit a site plan in order that these items and general circula- tion patterns can be approved by the planning commission. These various regulations should be no different for the funeral home than for other permitted uses in the district, although requirements concerning access and interior circu- lation may be more critical. General provisions ordinarily require that parking and loading areas not occupy the public streets or interfere with the traffic upon them. In the case of funeral homes, it is normally desirable to also require that sufficient area for the formation of funeral processions be provided on the site, and that such activity shall not take place on the pub— lic streets. Where the funeral home is located within a commercial or office district and is situated on a site adjacent to pro- perty in a residential district, it is necessary to require additional development standards. Whenever a parking, loading, or service area in a non-residential district abuts prOperty in a residential district, an approved fence or masonry wall should be required along the mutual boundaries in order to 180 screen these areas from adjacent residents. A minimum and maximum height of such fence or wall should be specified. A2 range of from four to six feet is normally acceptable, pro- vided that where such fence or wall is located along a side lot line within a front yard it should be no greater than three feet in height so as not to obstruct vision to streets and driveways. It is also desirable to require that where a rear or side yard of a funeral home abuts a lot in a residential district, such yard shall be no less than the minimum yard requirement for residential uses in that district. Another method of accomplishing the same result is to require that the principle building may be located no nearer than a Speci- fied distance from a residential prOperty line. The character of the districts in question will determine what the exact distance should be. Regulations such as these concerning screening and buffering are normally applicable to all permitted uses sim- ilarly situated. They are best included as general provisions, as they are not unique to the funeral home. Conditional Use in Residential Districts. A condi- tional use is a use that is permitted in a particular district only when certain facts and conditions prescribed in the zoning ordinance are determined by the board of appeals to exist. Provision is usually made in the schedule of district regula- tions for the Specific uses that may be allowed and the 181 conditions under which the board of appeals is empowered to grant a conditional hse permit. These conditions may relate to the nature of the area in which the use is permitted, site develOpment and Operating requirements of the use itself, or both. As has been noted in Chapter Two, the planning commis- sion or the local governing body is sometimes responsible for approving conditional uses. Although this possibility is recognized, this discussion assumes that the zoning board of appeals is charged with that function. The conditional use is sometimes called a "special use," "special exception," or "contingent use." An individual seeking to establish a use that is permitted as a conditional use normally must first apply to the zoning administrator for a building permit. Having no authority to grant the permit withoutprior approval of the board of appeals, the administrator will deny the request. The applicant then makes written application to the board for a conditional use permit. The application must state the provision of the ordinance under which the use is autho- rized and must show that the conditions stipulated therein would be satiSfied. The board of appeals, after giving no- tice and holding public hearing, makes a finding as to its desirability and compliance with the provisions of the ordi— nance. Before the permit may be issued, the board must find that it has the power to grant the permit in this particular instance, and that the proposed use would not adversely affect ‘ . p 182 the public welfare. It is ordinarily empowered to require additional conditions and safeguards as authorized in the ordinance. A lack of adequate standards within the ordinance to govern the action of the board in granting or denying conditional use permits can render the provision invalid. Although the degree of specificity of such standards or con- ditions varies among local ordinances, some courts have ruled that failure to provide specific requirements makes the granting of conditional use permits subject to the whim and caprice of the board of appeals and violates the consti- tutional guarantees of equal protection.56 However, in some states, boards of appeals are afforded almost complete dis- cretion in such matters and must find only that a specified use would serve the public welfare and convenience and would not be detrimental to the neighborhood in question.57 ASuch a practice is infrequent and ordinarily undesirable. The inclusion of only such general language is unjust to the ap- plicant and burdensome to the board of appeals. 56 La., 1956). Bultman Mortuary Service V. New Orleans, 174 La. 360, 140 So. 502. Osius v.-City of St. Clair Shores, 344 Mich. 693, 75 N.W. 2d 25. 57Note especially, ordinances in Rhode Island cities. For cases concerning this type of provision and funeral homes see: Budlong v. Zoning Board of Review of Cranston, 172 A 2d 590 (Sup. Ct. R.I., 1961); . Bastedo v. Zoning Board of Review of NeWport, 153 A 2d 531 (Sup. Ct. R.I., 1959); and - City of Atlanta v. Awtry & Lowndes CO., 205 Ga. 296, 53 S.E. 2d 358 (Sup. Ct.). See: McCauley v. Briede, 90 So. 2d 78 (Sup. Ct. 183 It has been held by some courts that if the condi- tions specified in the ordinance are met by the proposed use, the board of appeals must grant the conditional use permit.58 Although some ordinances state that the board "may" grant a permit if certain facts exist, it is generally understood that the intent of the provision is that if the board finds those facts to be present, the permit must be granted. The purpose of the conditional use permit is to accOmmodate those land uses which, because of their unique nature, require Special consideration. It is a means Of. regulating the location within a district, character of de- velOpment, and impact of certain uses which would generally not be desirable in a particular district if subject only to the regular district regulations. Special requirements con- cerning lot area, yards, screening and buffering, signs, traffic circulation, parking, intensity of use, and any pos— sible nuisance-creating characteristics are applied to the use in order to render it more compatible with surrounding land uses. Since it is impractical to include in the regular district regulations all those standards that would make the uSe acceptable, it is handled as an individual case. ‘The conditional use permit is also a means of rec- ognizing that particular uses may be appropriate only in certain portions of a district, depending on the character 58Shell Oil Company v. City of Manchester, 133 A 2d 501 (SUp. Ct. N.H.). McCauley v. Briede, Op. cit. 184 of the area. It affords a desirable degree of flexibility .- in the district use regulations and is one of the most im- portant methods of creating transition areas between resi- dential and commercial develOpment. The frequency of a land use type in a particular community determines, to some degree, if it can be approached f? as a conditional use. If a use is infrequent and unique in nature, it is normally best permitted as a conditional use. A use that is commonplace and can be reasonably regulated in ” the same manner as other uses in a particular district should generally be handled as a use by right in that district. Often, a use is permitted by right subject to certain condi- tions. This approach is utilized for land uses that require special consideration but are more common. It borders on the conditional use approach, but does not require approval of the board of appeals. Even where a use is allowed on condition in certain areas, it is normally desirable to also permit it as a use by right in other apprOpriate districts. A11 owners of a land use type may not desire the more advan- tageous locations usually afforded a conditional use, and should be prOvided the opportunity to establish the use in less restricted districts with more liberal regulations. (As a result Of its unique nature, locational needs, and infrequency as a land use, the funeral home can very often be apprOpriately permitted as a conditional use in certain 185 59 types of residential areas. The character of the area and the particular conditions requisite to the granting of the conditional use permit will determine the reasonableness of this approach. If prOper requirements concerning lot area and building placement, parking and circulation, Signs, and general compatibility with surrounding residential prOperties are set forth in order to minimize the legitimate objections to such use, it can become acceptable in a greater number of land use situations. There will necessarily be a wide vari- ation in approaches depending on the local community, but several basic considerations and general suggestions can serve as guides to all of them. Funeral homes may be permitted as cOnditional uses in residential districts for different reasons. One of the best is to encourage the funeral home as a transitional use between residential and commercial development. In this situation, the funeral home can reduce the Sharp demarcation between these two generally incompatible districts. To ac- complish this, the zoning ordinance may permit the funeral 59Some zoning ordinances that permit funeral homes as conditional uses in residential districts are: Midland, Michigan, Zoning Ordinance (1956) all Residential Districts. Pittsburgh, Pa., Zoning Ordinance (1958) all Multiple Family Districts. . ' N. Attleborough, Mass. Zoning_Ordinance (1962) "Open Resi- dential District." Goshen, Indiana, Zoning Ordinance (1961) Multiple Family Dis- tricts. Georgetown TWp., Mich. (proposed ordinance, 1963) "Rural Resi- dential District." E. Providence, R.I. Zoning Ordinance (1963) Multiple Family Districts. 186 home as a conditional use only in those portions of a resi- dential district adjacent to prOperties in a commercial dis- trict or in those areas where development is characterized by a mixing of residential and non-residential land uses. Such an approach appears to be defensible in View of the greater weight of case law enjoining funeral homes in resi- dential neighborhoods. Most such decisions clearly indicate that in order for the funeral home to be enjoined as a nui- sance, the area must be purely residential in character and not in transition. Courts are substantially uniform in ruling that a funeral home prOposed in an area characterized by a (mixing of residential and commercial land uses or in tranSi-- tion from a residential to a commercial character will not be enjoined as a nuisance by reason of its location.60- There appears to be a realization of the possible advantages of such an approach as is indicated in the Zoning Handbook of MetroPOlitan Dade County, Florida. On the sub- jeCt of funeral homes, the handbook states:61 As a transitional use between commercial and residential districts, a funeral home may sometimes be permitted if access and advertising are controlled. These cases may be handled as a special exception (conditional use) by the Zoning Appeals Board. . 60Clark, Robinson, and Hellebush, Op. cit., p. 12. White v. Laguire Funeral Home, 221 Ala. 440, 129 SO. 34. O'Conner v. Ryan, 159 S.W. 2d 531 (Texas). - Moss v. Burke and Trotti, 3 SO. 2d 281 (La.). Dawson v. Laufersweiler, 43 N.W. 2d 726 (Iowa). Devereaux v. Grand Americas Junior Corp., 85 N.Y.S. 2d 783.. Meldahl v. Halberg, 214 N.W. 802 (N. Dakota). 61MetrOpolitan Dade County Planning Advisory Board, Zoning Handbook, Miami, 1965, p. 59. . 187 It may be desirable to limit the funeral home to those areas where it would serve as a transitional use. In addition to Specifying particular develOpment standards, an ordinance utilizing such an approach Should make its intent clear. This could be stated in the ordinance as follows: The intent of this provision is to encourage the funeral _ home as a transitional use and to limit its location to rafi .areas within this District which are characterized by a 1 mixing of residential and non-residential land uses or “a to sites within this District which are located adjacent to or across a street from properties in non-residential Districts. Such a provision would rely, to some degree, on the discre- tion of the board of appeals in determining if the proper situation existed. It does, however, clearly indicate the intent of the conditional use permit and enables a necessary flexibility in its application. It may be appropriate to permit the funeral home as a conditional use in a greater variety of residential situations and not to limit it to a transitional use. Al- though local conditions may make such an approach feasible in any residential area, areas characterized by low density single family and high density multiple dwelling development are most suitable. These approaches are less defensible in view of the greater weight of case law, but local attitudes 'and needs may justify them. Whenever the funeral home is permitted as a con- ditional use in residential areas, it is necessary for the zoning ordinance to set forth adequate standards in order 188 to promote the public welfare. The most difficult standards to determine are those concerning lot area and yards. .They will vary considerably depending on the density and general character of the area in question. Often, it is both rea-_ sonable and desirable to require the same minimum lot area and open space for the funeral home as are required for other non-residential uses in the same district such as churches, schools, libraries, museums, and various institutional uses. . The major consideration in a low density area is to preserve the Open character of development and ensure' that the funeral home will be situated far enough from sin— gle family residences so as not to be disturbing to them. There are several methods of accomplishing the same result. The most practical appears to be to require a minimum lot size and a minimum distance that the.princip1e building may be located from the property lines. The minimum lot area and yards should, of course, be no less than those required for residences in the district. In mOSt cases, they should be greater. It may be reasonable, depending on the exact dens- ity of the area, to require a minimum lot area of one acre and to stipulate that no principle building shall be located within fifty feet of any lot line abutting a property in a residential district. Where the site abuts a non-residential district, it is not necessary to require the fifty foot yard. The provisions applicable to residential uses in the district 189 would apply in this case. In extremely low density areas, a minimum lot area of two acres and minimum side and rear yards of one hundred feet may be desirable. Similar standards are often applied to churches and other uses in these districts. Front yard requirements for funeral homes are crucial. Since parking is normally restricted from the front yard and Space is needed at the rear for parking and service, it is not reasonable to require an excessive front yard. In most cases, it need be no greater than that required for resi- dences. If lot depth is sufficient, the funeral director usually provides an adequate front yard on his own initiative. However, it may be desirable to require a larger front yard in order that persons gathering in front of the funeral home will not be obvious to adjacent residents. A minimum depth of 1 1/2 to 2 times that required for residential uses may be necessary. This also has aesthetic advantages. It is normally not necessary to state a maximum percent of lot coverage allowable for the conditionaluse. Off-street parking and circulation, lot size, and yard re- quirements are ordinarily sufficient to ensure an Open character. The maximum lot coverage and minimum lot width required for residential uses in the district should be sufficient. If the standards for the conditional use do not state otherwise, these requirements are automatically applied to the funeral home. 190 In high density multiple dwelling areas, standards are more critical in order to provide adequate Open space for light and air and fire protection. Open space will be less essential as a means of separating the funeral home from residential neighbors, as living patterns and develOpment are such that individuals may live closer to the establishment and be less aware of its activities. However, the community may desire to permit funeral homes in high density areas as a means of providing more open development. In this case, minimum lot size, yard requirements, and maximum lot coverage may be required which reflect this intent. In some communities, the intent of permitting funeral homes and other uses as con- ditional uses in multiple dwelling areas may be to encourage conversion of outmoded residential buildings to uses such as funeral homes, offices, clinics, and similar activities. The conditions requisite to the granting of conditional use per- mits would then be largely determined by existing develOpment characteristics. In any situation, site develOpment standards should be devised which are consistent with the intent of the proVision and which are adequate to promote the public welfare. Some of the most important requisites to funeral home location in residential areas are regulations concerning parking and circulation. It is necessary to ensure that the funeral home will not create traffic congestion in these areas. Probably the best approach to controlling access is to require that all means of vehicular ingress and egress be located on 191 major streets. This ensures that the funeral home will be located in such a mahner as not to increase traffic on minor residential streets. Such a provision enables the funeral home to front on a minor street, provided that the only ve- hicular access to the Site is from a major street. A pro- vision of this type is particularly advantageous in cases where the funeral home may be located on a corner or through lot. It is also necessary to require that no parking, loading and unloading, or formation of funeral processions take place on the public streets. Such a requirement guarantees minimum obstruction to through traffic and makes it necessary for the funeral director to provide adequate off-street space for these activities. It may be desirable to include a general statement that the use shall not creat a congeSted or other- wise unsafe traffic condition. This makes it possible for the board of appeals to require certain details of Site dee velOpment that would ensure maximum traffic safety. It also enables the board to deny a conditional use permit for any funeral home that would create an undesirable traffic condi- tion because of its prOposed location in relation to public streets and other land uses, its prOposed circulation plan, or the volume of services it is intended to accommodate. Although parking standards are usually set forth in a general provision, it is normally desirable for the conditional use provisions to simply state that those require— ments shall be met. Parking standards for a funeral home 192 permitted as a conditional use will generally be the same as those for funeral homes permitted in other districts. If not included in general provisions elsewhere in the ordinance, it is also important to require that all parking and service areas be screened from view of adjacent residential properties by an approved fence or masonry wall of specified height, and that such areas shall not be located within the front yard. This ensures that the major portion of activity will not be visible to neighbors and that vehicle headlights will not create a nuisance to adjacent residents. . . The regulation of pigpp is often a complicated and difficult task. The nature of the district will determine the exact requirements. In some areas, it may be necessary to limit signs to one identification sign of limited size attached flat against an exterior wall of the principle building. In others, a free standing Sign which is congruous with the architecture of the funeral home and not obnoxious by reason Of size, location, color, or lighting may be per- missible. As a general rule, it is not desirable to permit any sign that would not otherwise be permitted within the district. Small signs for traffig control upon the Site are normally permitted for all uses in a district and need not be mentioned in the conditional use regulations. It should be noted that an adequate sign, easily visible from the street and designed in good taste, is important to the funeral home. Every effort should bemade to permit signs which serve 193 the needs of the funeral home and which, at the same time, are harmonious with the neighborhood. An adequate sign for advertising purposes is often one of the sacrifices the funeral director must make in exchange for a residential lo- cation. It is normally necessary for the conditional use provisions to require that all aetivities be conducted en- tirely out of view of neighboring residents. This is an im- portant consideration in view of case law and the common objections to visible reminders of death. Although the loading and unloading of caskets and other items is normally done in an enclosed area, such a provision ensures that the building will be designed and the site develOped in a manner that con— ceals these and other activities as best as possibler It may also be desirable to require that all act- ivities be conducted within an enclosed principle building. Many ordinances include such a requirement as a general pro- vision applicable to all conditional uses. It ensures that accessory buildings will not be utilized for various phases of the funeral home Operation. It does not, however, restrict detached garages for the storage of funeral vehicles. Another general provision usually included in zoning ordinances is that the structure and all items of site devel- Opment must be harmonious with surrounding develOpment and shall not discourage the apprOpriate develOpment or use of adjacent prOperties or impair the value thereof. It is 194 designed to guarantee general compatibility with the neigh- borhood. It is also a "catch-all" phrase to enable the boards of appeals to evaluate the overall desirability of a prOposed use in a particular situation. In some communities, it may be advantageous to re- quire the written consent of abutting or nearby prOperty owners requisite to the approval of the conditional use permit. Al- though such an approach can be criticized in that it delegates administrative functions to a segment of the public, and that it may subject the applicant to personal attitudes and mis- guided Opinions of neighboring property owners, it does have certain advantages. If abutting prOperty owners consent to the location of the funeral home, they are less likely to seek a court injunction to enjoin the use after a permit has been issued and the funeral director has acquired a vested interest.-‘ This approach can avoid costly and unpleasant situations that otherwise might later arise. -Although such consent does not deny property owners the right to seek court action, it may constitute sufficient evidence that the funeral home is not a nuisance by reason of its location. To the knowledge of the author, suCh a case has not reached the courts. The beSt method of incorporating a written consent provision is to re- quire that a certain percentage (60% or greater) of the pro- perty owners located within a certain distance (possible 200') of the structure consent to the proposed funeral home. Such a petition is only one factor to be considered by the board 195 of appeals and cannot be the sole basis for granting a condi- tional use permit. In most communities, it is not necessary to limit the intensity of the funeral home as a land use. Although“ the number and size of funeral services conducted by funeral homes vary to an appreciable extent, few funeral homes con- duct a volume of businessthat would demand that they be regulated in a different manner than others. Local funeral customs will determine the necessity of additional provisions to limit the intensity of use. In areas where the large- volume ”mass mortuaries" are common, it may be desirable to restrict them from residential locations. .The volume of traffic and general activity generated by such establishments normally makes them inapprOpriate in residential areas. One- method of restricting them from these areas is to limit the seating capacity, number of employees, or casket display area of funeral homes. Usually, the previously mentioned provi- sions concerning general compatibility and traffic generation are sufficient. There are several methods in incorporating these various requirements into the structure of the zoning text. The format of the local ordinance will, of course, be the determining factor. As has been noted in connection with several of the foregoing points, many standards will be in- cluded as general provisions applicable to all conditional 196 uses. This alleviates the necessity of repeating these con- ditions in connection with each specified use and reduces the bulk and complexity of the zoning text. The following example is a suggested approach to regulating the funeral home as a conditional use in a single family residential distriCt. It may be appropriate in par- ticular situations. In the schedule of uses allowed by conditional use permit, the provision pertaining to funeral homes would read: Funeral homes: provided that - 1. Such use Shall occupy a site of not less than one (1) acre in area and no principle building shall be located nearer than fifty (50) feet to any pro- perty line abutting a lot in a Residential District. 2. All means of vehicular ingress and egress Shall be located on a major street. 3. Off-street parking shall be provided in accordance with Article , Section , and no parking, loading and unloading, or formation of funeral pro- cessions shall take place upon the public streets. 4. All activities shall be conducted entirely out of view of neighboring residents. 5. One (1) identification Sign attached flat against the principle building, not exceeding square feet in area Shall be permitted. Such Sign may be illuminated by floodlights providing the source of illumination shall not be visible and shall not be of an intermittent type. SPECIFICITY OF USE REGULATIONS If the funeral home is not Specifically listed as a permitted use by right or conditional use in a particular district, its location in that district will normally be prohibited. This rule as to the Specificity of use regulations 197 applies to all land uses. It is assumed by zoning administra- tors, boards of appeals, and courts of law that if a land use is not specifically permitted in the district uSe regulations, the intent of the zoning ordinance is to prohibit the use in- that district. Zoning ordinances Often state that certain uses are permitted and that "similar uses" are also allowed. Such a provision is acceptable only if the listed uses are represen- tative of a group of uses and the others in that group are commonly and obviously associated with them. This is parti- cularly significant to the case of funeral homes, as they are not similar to any other uses. Thus, a clause that permits "similar uses" cannot reasonably be construed to include fu— 62 neral homes. It is interesting to note that in the case of PeOple v. Bingby,63 the court declared the clause, "and similar uses," unconstitutional on the ground of ambiguity. A negative ordinance (one that lists uses that are prohibited in a particular district) must Specifically state the intent to exclude funeral homes, otherwise they may be permitted unless enjoined by a court of equity.64 Similarly, 62Provo v. City of Claudin, 63 P 2d 570 (Utah). Hennessy v. Ft. Lauderdale, 101 SO. 2d 176 (Fla., 1958). State ex rel. Vielhauer v. Leighton, 171 N.E. 2d 748 (Ohio, 1959). ‘ ’ Bauman v. Piser Undertaking CO., 180 N.E. 2d 705 (Illinois). 63PeOple v. Bingby, 303 Pac. 903 (Cal. App. Div., 1956). 64Sweet v. Campbell, 9 N.Y.S. 2d 281. 198 an ordinance which made it unlawful to establish and Operate a funeral home "in those parts of the city occupied mainly for residences" was held void by a North Dakota court for reason of uncertainty.65 However, the right to Specifically regulate funeral home location was reaffirmed. CONCLUSION There is nogenerally applicable formula by which a particular land use can be regulated or zoned. There can only be reasonable guidelines which are subject to situational modification and local adaptation. Thus, these suggested ap- proaches to regulating funeral home location, operation, and site develOpment are not intended to serve as universal axioms to be followed by each community. They must be adapted to the particular situation in the community in question. Zoning for funeral homes is, in many respects, a local matter relying on local conditions, attitudes, and funeral customs. It also re- lies heavily on the local zoning structure, the types of dis- triCts provided, the manner in which the district boundaries are drawn, and the existing develOpment within these districts. Zoning for funeral homes must, however, fit within the context of the legal principles and legitimate purposes Of zoning. '65Wasem v. City of Fargo, 49 N.D. 168, 190 S.w._546, 25 A.L.R. 758. . See also: St. Paul v. Kessler, 46 Minn. 124, 178 N.W. 171. BIBLIOGRAPHY BIBLIOGRAPHY Advisory Committee on Zoning, United States Department of Commerce. A Standard State Zoning Enabling Act Under Which Municipalities May Adopt Zoning Regu— lations. Rev. ed. Washington: U. S. Government Printing Office, 1926. Anderson, Robert M. Zoning Law and Practice in New York State. Syracuse: Lawyers' Co- -operative Publishing Company, Baker, Voorhis and Company, 1963. Babcock, Richard F. et al. "Preparing the Zoning Case." Planning 1958, Chicago: American Society of Plan- ning Officials, 1958, p. 32-50. 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