# Duncan v. Village of Middlefield > Ohio Supreme Court · April 11, 1986 · 23 Ohio St. 3d 83 URL: https://www.frixlaw.com/law-library/cases/6759251 ## Case - **Full name:** Duncan v. Village of Middlefield - **Court:** Ohio Supreme Court - **Decided:** April 11, 1986 - **Citations:** 23 Ohio St. 3d 83; 23 Ohio B. 212; 491 N.E.2d 692; 1986 Ohio LEXIS 610 - **Precedential status:** Published - **Opinion:** Dissent by Brown - **Judges:** Brown, Celebrezze, Douglas, Holmes, Locher, Only, Sweeney, Wright - **Cited by:** 100 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6759251 ## Opinion text Clifford F. Brown, J., dissenting. Although I agree that the appropriate standard for determining area variances is “practical difficulty,” as we held in Kisil v. Sandusky (1984), 12 Ohio St. 3d 30 , I must dissent from the result reached in the case at bar. Middlefield Ordinance 1133.06, the basis upon which the Duncans’ application for an area variance was denied, requires by its terms a proof of “unnecessary hardship” as a precondition to the grant of a variance. The court of appeals correctly held that as to “area” variances, the “unnecessary hardship” standard was impermissibly used. Rather, as this court stated in Kisil, supra, at 35 , “the standard for granting a variance which relates solely to area requirements should be a lesser standard than *89 that applied to variances which relate to use. An application for an area variance need not establish unnecessary hardship. It is sufficient the application show practical difficulties.” However, I cannot support the majority’s position that the Duncans “did not suffer ‘practical difficulties’ as a result of the restriction,” that “construction of an eight-unit dwelling on the Duncans’ lot would ‘alter the essential nature of the neighborhood,’ ” and that the record reveals “that community interests outweigh the competing interests of the Dun-cans in this case.” Although the fulcrum of this court’s decision is a newly announced series of some seven factors to be weighed, in my view a careful consideration of those factors supports the Duncans’ application. The sole testimony offered in support of the resolution denying the application belies the basis for its denial. As to the effect on the “essential character of the neighborhood,” zoning board of appeals chairman Dave Adams stated that although there were “minute differences in the footage on the properties” and there were “very few properties in that neighborhood that are wide enough to have multi-family dwellings,” he conceded “[t]here are instances where there are multi-family dwellings,” just “not to the quantity” that the Duncans sought to construct. Adams also testified to his opinion that the proposed construction would be “detrimental to public welfare,” thus failing to satisfy another ordinance criterion. On that issue, Adams spoke of his concern that the windows in the proposed dwelling would face windows of existing structures, and “[depending upon the nature of those persons renting those properties, being at the back of those houses, I just felt that it really wasn’t good for the neighborhood * * *.” Of course, the “nature” of the potential tenants is an impermissible basis upon which to determine requests for area variances. Thus, the flimsy community interests expressed are outweighed by the competing interests of the Duncans. The majority’s speculation that the Duncans could have “received a reasonable return” either by construction of additional duplexes or of a four-unit dwelling enjoys no evidentiary support. The principle of our enlightened, 1984 zoning decision in Kisil , by which we put life into the strict letter of zoning law provisions relating to area variances, has not been overruled by our decision today. It is still good law, as the majority clearly notes. However, in my view, the court of appeals carefully applied Kisil , and in reaching its result, correctly held that “[a]pplying the requirement of an unnecessary hardship finding to a request for an area variance constitutes error since unnecessary hardship is not the proper standard in ruling on ‘area’ variance requests.” In essence, the application of the majority’s seven-factor practical difficulties test to the Duncans’ application compels a conclusion based on reasonableness and justice, the bottom line in any case, that the court of appeals be affirmed and that appellees be granted the slight area variance *90 that they seek. Indeed, the majority’s application of those seven factors against appellees on this case reveals that the practical difficulties test has been rendered so spongy and flexible as to validate any arbitrary and capricious restriction on use of property that may be desired. Accordingly, I would affirm the judgment of the court of appeals. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6759251. Public record. Not legal advice.