Court rules for Kent crematorium

By Diane Smith Record-Courier staff writer Published:

Both sides are claiming victory over a recent court decision that would allow Bissler and Sons Funeral Home in Kent to build an addition, including a crematory. The 11th District Court of Appeals recently handed down a ruling that sides partially with the funeral home and partially with the 28 residents who appealed the Kent Board of Zoning Appeals' decision to approve an addition to the funeral home. But both groups are unsure what the next step will be and whether the decision will put to rest a two-year battle over whether the crematory belongs at the funeral home. In January 1996, the board of zoning appeals approved funeral director Rick Bissler's proposed 1,000-square-foot addition to the rear of his building for office space and a vehicle storage area. He planned to convert the existing garage into a crematory. Bissler and Sons, which has been at the same location since 1942, is a legal, nonconforming use in the city's R-2 residential district. The city's zoning code states a nonconforming use may expand if the cost during a 10-year period does not exceed the assessed value of the structure in 1985, when the zoning code went into effect. The proposed cost of the renovation was $130,000. Residents who opposed the plans for a crematory appealed to the Portage County Common Pleas Court, arguing the expansion should be limited to the "tax value" of the land, or 35 percent of the fair market value of the property. That figure is $45,290, or $24,290 when other improvements in recent years are subtracted. They also argued the zoning board did not consider other factors, such as practical difficulties or undue hardship, and those factors were arbitrarily deemed not applicable to the expansion request. Although the appeal did not specifically challenge the crematory itself, it focused on the expansion accompanying it. Resident Wayne Lackner said the crematory was the reason behind the appeal. The appeals court ruling called the crematory "most relevant to this appeal." "If he just wanted to put in an addition, I don't think he would have gotten this much resistance," Lackner said. Bissler said he has proposed the crematory because it is important to ensure cremations are done properly. "People have heard about all the abuses . . . and they've asked me, 'How can you guarantee that's not going to happen?' " he said. "The only way I can do that as a funeral services professional is to do it myself." Judge Joseph Kainrad last October upheld the zoning board's decision, but lowered the amount Bissler could spend to $108,400, which is the market value of the property in 1985 after the recent improvements were subtracted. But the appeals court sided with residents and determined that "tax value" is a valid definition of "assessed value." However, it also ruled the zoning board acted correctly in considering only the dollar amount of the expansion when making its decision, citing state law which gives a definition of "funeral homes" that includes a crematory as an accessory use. Bissler said he views the second part of the court's ruling as a victory. "The court agrees with us that the crematory belongs here," Bissler said. "It's part and parcel of what I do." But residents said although they are pleased with the part of the ruling that limits how much Bissler can spend on his addition, they're not sure if it will put a stop to the crematory. They plan to continue to fight the addition. "We're not going to stop," said Jane Conrad, one of the appellants. "We've got 142 households who have spoken against (the crematory) or are willing to sign their names against it. I don't think Mr. Bissler understands how opposed the public is." Bissler noted the ruling limits not only how much he can spend on an expansion, but also affects others who want to expand their non-conforming uses. Law Director James Silver said the city's zoning code may be changed because of the court's ruling, but doesn't expect other non-conforming uses expanded under the existing standard to be challenged. "I don't think there's anything pending that's ripe to be challenged," he said. Bissler said the city needs to revisit its zoning laws to make them more equitable. If that happens, he said he would try to gain approval for his expansion under the new standard, adding that he could not do the kind of expansion he is requesting for less than $100,000. "I feel it is a necessary upgrade," he said. "I think it is necessary for our restrooms to be handicapped accessible. I think we owe that to the community. I think it is necessary to have the business office separated from the funeral home. I think we owe that to the community." Conrad said the effect of the crematory on their residential homes, not the quality of the expansion, is the issue. "He can make it look as nice as he wants, but don't put the crematorium in there," she said.

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