Agenda - Planning Commission - 02/02/2006

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Page 6-- December I0, 2005 ~ Variance--Property owner Wants to put family cemeter~ in industrial area Property located on top of SO-foot flY ash mound Citation: Brown v. PainesviIle Township Board of Zoning Appeals, Court of Appeals of Ohio, 11th App. Dist? Lake County, No. 2004-L-047 (2005) OHIO ([0/21/05) -- Brown filed a request for a use variance to develop a family cemetery on a five-acre parcel she owned. The parcel was situated atop a 26-acre fly ash landfill. Fly ash was a byproduct of burning coal. The landfill had been used by the Cleveland Electric Illuminating Company for several years. The fly ash formed a mound almost 50-feet high with a plateau covering seven acres. It was zoned for I-2 heavy industrial uses. Cemeteries were not allowed in I-2 districts. During the variance hearing, a civil engineer testified as an expert on Brown's behalf. He testified that the five-acre site had no economic viability based on the condition of the property due to its use as a fly ash landfill. He also stated that the proposed cemetery use would have been "very good because you're not going to put heavy loads on it." However, he also testified that he had no knowledge of the permissible uses under the township's zoning classification for heavy industry uses, or the township master plan. Ultimately, the board denied the variance. Brown sued, and the court ruled in favor of the board. Brown appealed, arguing the expert testimony of the civkl engineer clearly demonstrated an unnecessary hardship. DECISIOn: Affirmed. Interference with desires or plans for particular property was not sufficient to entitle the landowner to a variance. The I-2 heavy industry zoning classification ordinance listed permissible uses, and included "similar uses not listed above but with the approval by resolution of the Board of Township Trustees." The transcript from the hear- ing indicated there was much discussion as to various alternative uses that could have been appropriate for the five-acre site under its present zoning classification. Brown testified that it was her desire to develop the property for the sole use as a farrfily cemetery. However, her particular desire for how to develop the property was not enough to create a hardship. see also: Strike the Gold v. Board of Zoning Appeals, 2003 Ohio 5694 (~00~). see also: Shemo v. Mayfield Heights, 765 N.E. 2d 345 (2002). 128 © 2005 Quinlan pubtis~in§ Group. An,v reproOuc:ion ~s prohibited. For more information ptease catl (617) 542-0048.