DISSENTING OPINION
White, J. —While absolute exclusion of churches from residential districts is an impermissible infringement of the constitutional right of freedom of worship,1 the right to use residentially zoned property as a church “is subject to such reasonable regulations as may be necessary to promote the public health, safety and general welfare.” Board of Zoning Appeals v. Jehovah’s Witnesses (1954), 233 Ind. 83, 88, 117 N.E.2d 115. Thus the failure of the ordinance in question to make express provision for church use of land in areas zoned only for residents does not mean that churches wishing to locate in such areas can ignore established procedures for avoiding or resolving the conflicts, potential or actual, between such use and the health, safety and welfare of the public. The procedure established by law for that purpose in Marion County is the variance procedure provided by Ind. Ann. Stat. §§ 18-7-2-70 and 18-7-2-71. § 18-7-2-70 makes provision for “commitments relative to the use ... of... [the] property” and empowers the board of zoning appeals to place conditions on the granting of the variance. Since the ordinance contains no regulations specifically applicable to church use in residential areas, the variance procedure is the only means of subjecting such use to reasonable regulations. Cases such as Board v. Schulte (1961), 241 Ind. 339,172 N.E.2d 39, and Board v. Jehovah’s Witnesses, supra, *356and the authorities cited by the majority furnish a guide as to what is reasonable.
Cases cited by the majority in support of its holding to the effect that the Church has gone through the equivalent of seeking a variance because it has appealed to the Board an order denying it permission to construct off-street parking do not sustain that proposition. In Board v. LaDow (1958), 238 Ind. 673, 680, 153 N.E.2d 599, Judge Bobbitt (the author of Board v. Jehovah’s Witnesses, supra) notes in his concurring opinion that “[although the petition to the Zoning Board is loosely drawn, its effect is to seek a variance from the terms of the ordinance.” And from the voluminous evidence recited in that case’s majority opinion as having been heard by the Board, it appears that the Board gave virtually the same consideration to the appeal from the building commissioner’s denial of a building permit as it would have given to a petition for a variance. The unanimous opinion in Board v. Koehler (1963), 244 Ind. 504, 511, 194 N.E.2d 49, notes that “[t]he Board treated her appeal as a request for a variance to permit the construction of a shopping center”. In each of those cases the boards and the reviewing courts apparently had before them all the available evidence relevant to whether, under the particular circumstances of that case, the denial of permission to utilize the land for a particular purpose not then permitted by the zoning ordinance would deprive the appellant of a constitutional right and whether conditions to such use should be imposed. The decision of the Board in each such case was the equivalent of denying a variance. Not so here, however.
Here, by contrast, as the appellant’s brief states:
“The Church and Robert [Morse, a contract purchaser with the church] did not apply for a variance of the property and the property was not varied. During the hearing before the Board, there was no evidence introduced that the Petitioners or their activities interfered with or were detrimental to the public health, welfare or morals or injured property. In fact, the Administrator conceded such evidence was irrelevant to the issues before the Board.” (My emphasis.)
Since the Church has not applied for a variance it has not been excluded from the residential zone in question.
*357The majority holds that because Ind. Ann. Stat. § 18-7-2-71 (Burns Code Ed., 1974) requires a showing of hardship as a condition to the grant of a variance it is unconstitutional to require a variance for church use of residentially zoned real estate. I agree that in many instances hardship as defined in the statute and case law applicable to variances for other uses may be impossible to prove in church cases. In such cases that requirement is obviously unconstitutional. In other church cases it may be impossible to meet other statutory criteria for a variance. In any such case where the failure to qualify for the variance does not also show that the particular church use petitioned for will breach such reasonable regulations as may be necessary to promote the public health, safety and general welfare, the statutory criteria must be ignored.
But the fact that statutory variance criteria cannot always be strictly adhered to without violating the First Amendment does not mean that churches can ignore all zoning statutes and ordinances. Nor does the fact that the Indianapolis zoning ordinance makes no express provision for using residentially zoned real estate for church purposes mean that churches can completely ignore zoning laws, substantive or procedural, which do not unreasonably impinge upon the right of worship.
I see nothing unreasonable about requiring a church to obtain a variance before it locates itself in a residential neighborhood, unless the board of zoning appeals denies the variance because the church fails to meet unconstitutional requirements. The courts are open to worshipers who appeal from such attempted oppression.
While it appears the Church deliberately elected not to apply for a variance there may well be mitigating circumstances which render it inequitable to require it to start all over again by applying for one. I would therefore vote to reverse the judgment and to remand the cause to the reviewing court with instruction to direct the zoning appeals board to treat the Church’s application as a petition for a variance giving the Church permission to amend as it may desire.
NOTE — Reported at 371 N.E.2d 1331.
. Incidentally, I do not believe exclusion can be effectively achieved by private mutual covenants as suggested in Board of Zoning Appeals v. Schulte (1961), 241 Ind. 339, 349, 172 N.E.2d 39, 43, in a quotation from State, ex rel. Synod of Ohio v. Joseph (1942), 139 Ohio St. 229, 249, 39 N.E.2d 515, 524, 138 A.L.R. 1274. It is to be noted that this Ohio opinion was handed down six years before the United States Supreme Court held, in Shelley v. Kraemer (1948), 334 U.S. 1, that while covenants excluding blacks from residential areas were not violative of the Fourteenth Amendment their enforcement by state courts was.