The opinion
Christley, J., dissents.
Christley, Judge.
I respectfully dissent.
The problem with this case is the interpretation of the Ohio Supreme Court cases, Kisil v. Sandusky (1984), 12 Ohio St.3d 30 , 12 OBR 26, 465 N.E.2d 848 , and Duncan v. Middlefield (1986), 23 Ohio St.3d 83 , 23 OBR 212, 491 N.E.2d 692 .
Those cases stand for the proposition that an applicant for an area variance need only show practical difficulty rather than unnecessary hardship. The difficulty in applying those cases to the instant fact situation is that those two cases did not argue or distinguish between a municipal zoning board as opposed to a township board of zoning appeals. Both Kisil and Duncan involved municipalities rather than townships; however, the distinction between the two is not raised in either case.
There are also two similar cases from this district which, at first glance, seem to support the wholesale application of Kisil and Duncan to the townships. However, like Kisil and Duncan , neither of these cases addressed the issue directly. Thus, the pertinent pronouncements in them are, at best, dicta. See Fulmer v. Randolph Township (Sept. 30, 1988), Portage App. No. 1815, unreported, 1988 WL 102610 ; and, likewise, In re Appeal Hixson’s Flowers (Feb. 10, 1989), Geauga App. No. 1458, unreported, 1989 WL 11286 .
Other districts have also adopted the practical difficulties standard in township area variance settings. The Fifth District considered almost exactly the identical issue in Barr v. Monroe Twp. Bd. of Zoning Appeals (May 23, 1990), Licking App. No. CA-3499, unreported, 1990 WL 70101 . Specifically, the board of zoning appeals, in that case, argued that Duncan, supra, was inapplicable to it since Duncan involved a municipal zoning ordinance, not a township regulation. The Monroe Township Board of Zoning Appeals further urged in light of the language contained in R.C. 519.14 that the court of common pleas should use the unnecessary hardship standard rather than the practical difficulties test of Duncan .
The Licking County Court of Appeals in Barr affirmed the court of common pleas decision stating that Duncan does not require so narrow a reading, and further held that the trial court did not err in applying the test articulated in Duncan . Accord Peterson v. Washington Ct. Athletic Club (1986), 28 Ohio App.3d 90, 92 , 28 OBR 133, 134-135, 502 N.E.2d 252, 254 ; Ebosh v. Haydn (Apr. 6, 1988), Lorain App. No. 4229, unreported, 1988 WL 37623 .
*61 While I agree with the underlying logic of Kisil and Duncan , I cannot argue with the common pleas judge’s conclusion that the clear statutory mandate present in R.C. 519.14(B) precludes the application of Kisil and Duncan to township zoning cases.
R.C. 519.14(B) states:
“Authorize, upon appeal, in specific cases, such variance from the terms of the zoning resolution as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the resolution will result in unnecessary hardship, and so that the spirit of the resolution shall be observed and substantial justice done[.]” (Emphasis added.)
I would, therefore, affirm.