On October 21, 2005, the 11th Appellate District rendered a decision in Brown v. Painesville Twp. Bd. of Zoning Appeals (Oct. 21, 2005), 11th App. Dist. No. 2004-L-047, 2005-Ohio-5608. In Brown, the 11th District rejected an appellant's self-imposed hardship argument on the basis that the Board of Zoning appeals did not specifically make a finding on that issue. Because "there was no finding by the BZA that [the applicant] was denied the use variance . . . on the basis of self-imposed hardship * * * we cannot address [her] issue of self-imposed hardship." Id. The Brown court went on to say that "any inferred finding of self-imposed hardship would be extraneous to the BZA's decision that [the applicant] failed to meet her burden of showing an unnecessary hardship." Id.
Another interesting aspect of Brown is the court’s treatment of takings and use variance law. In State ex rel Shemo v. Mayfield Heights (2002), 96 Ohio St. 3d 379, 496, the Ohio Supreme Court held that “a compensable regulatory taking could occur either if the application of the zoning ordinance to the particular property is constitutionally invalid, i.e., it does not substantially advance legitimate state interests, or denies the landowner all economically viable use of the land.” Similarly, in a use variance hearing, the “critical issue in the determination of whether to grant a requested use variance is whether a literal enforcement of the resolution will result in an unnecessary hardship to the party requesting the use variance.” In re Appeal of Dinardo Constr. Inc. (March 31, 1999), 11th App. Dist. No. 98-G-2138. Ohio courts have held that a zoning regulation imposes an unnecessary hardship sufficient to support the granting of a use variance if the only permitted uses are not economically feasible. Consequently, one could say that the legal standards in takings and use variance laws appear to be the same.
However, the 11th District held in Brown that a finding of economic infeasibility in a takings case does not prove economic infeasibility for a use variance. The Brown court noted that in a use variance request, an applicant must prove that the unique characteristics of the property render it economically infeasible to put the property to its legal use - - much like in a takings case. However, in addition, the applicant must prove that the proposed use is in the public interest. A takings, on the other hand, only seeks compensation. As such, a takings analysis only addresses the first requirement of a use variance (i.e., economic infeasibility) but does not address the second requirement, that the proposed use is in the “public interest."