[Cite as McMillan v. Lakewood, 2018-Ohio-94.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105463

JOHN MCMILLAN, ET AL.

PLAINTIFFS-APPELLANTS 

vs. 

CITY OF LAKEWOOD, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

AFFIRMED

Administrative Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-14-830974 

BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: January 11, 2018 
ATTORNEYS FOR APPELLANTS 

Stephen M. Nowak 

Steve Nowak Law, L.L.C. 

30628 Detroit Road, #251 

Westlake, Ohio 44145 

Solvita McMillan 

17904 Lake Road 

Lakewood, Ohio 44107 

ATTORNEYS FOR APPELLEES

For City of Lakewood and City of Lakewood Board of Zoning Appeals 

Kevin M. Butler 

Law Director 

Jennifer L. Swallow 

Chief Assistant Law Director 

City of Lakewood 

12650 Detroit Avenue 

Lakewood, Ohio 44107 

Also listed: 

Daniel Oldfield, pro se 

17906 Lake Road 

Lakewood, Ohio 44107 
SEAN C. GALLAGHER, J.: 

{¶1} Plaintiffs-appellants, John McMillan and Solvita McMillan, appeal the 

decision of the trial court that found appellants’ administrative appeal moot and, 

alternatively, affirmed the decision of the Lakewood Board of Zoning Appeals 

(“Lakewood BZA”) that granted a variance to an adjoining property owner. Upon 

review, we affirm. 

{¶2} The McMillans own a home in Lakewood, Ohio. In June 2014, their 

next-door neighbor, Daniel Oldfield, applied for a three-foot variance to a required 

ten-foot side-yard setback requirement in order to install an air conditioner condenser unit 

(“A/C unit”) on the side yard of his property. On his application, Mr. Oldfield described 

his request as follows: “planning on a patio addition behind the 3 season porch, to 

maximize enjoyment of the river.” In his letter to the Lakewood BZA requesting the 

area variance, Mr. Oldfield elaborated on his request, stating: 

We are in the process of adding AC to our home and would like to place the 

condensing unit on the North side of our home & our neighbor’s driveway. 

We are planning on adding a patio to the rear of our home in the next few 

years so that we can enjoy our backyard & also the view of the Rocky 

River. 

{¶3} At the June 19, 2014 public hearing of the Lakewood BZA, Mr. Oldfield’s 

application was considered. Mr. Oldfield indicated that he was trying to locate the A/C 

unit in the most efficient location. He indicated that the requested placement for the A/C 

unit was the shortest distance to the basement furnace, and that in order to meet the 
ten-foot side-yard setback requirement, the lines would have to be run approximately 20 

additional feet to the end of a screened-in porch on the back of the home. 

{¶4} Comments from Lakewood’s city architect, Mike Molinski, were read into 

the record at the hearing. Mr. Molinski opposed the application and expressed that 

“there does not seem to be a reasonable hardship in this case. The applicant has plans to 

install a rear patio in the future, but there is ample rear yard to accommodate a patio and 

A/C unit.” Mr. Molinski was not present at the hearing. 

{¶5} The McMillans also opposed the variance request. They expressed concerns 

with the close proximity of the proposed site of the A/C unit, which was opposite from 

their family room and the french doors that they keep open for ventilation during the 

warmer months for air circulation. At the hearing, Mrs. McMillan stated that the A/C 

unit would be too close to and visible from their family room. Although appellants 

previously had been granted a four-foot variance in order to install their own air 

conditioner unit, that request was supported by the McMillans’ other neighbor, whose 

property was adjacent to the unit. 

{¶6} Mr. Oldfield countered that the condenser would be screened with perennial 

plantings. He also indicated that the proximity between the proposed location of the A/C 

unit and the McMillans’ family room was 35 feet. 

{¶7} The Lakewood BZA granted the variance request with the following 

stipulations: “[1.] That the noise limit levels are met, [2.] That servicing of the unit can be 

done without going onto the neighbor’s property, and [3.] [That] the unit was screened 
aesthetically.” The variance application contained the notation “sound level 71.” The 

BZA chairperson stated he authorized installation of the A/C unit that emitted a decibel 

“sound level of 71.” Mr. Oldfield proceeded to install the A/C unit the day after 

obtaining the variance. 

{¶8} The McMillans filed a complaint against the city of Lakewood and the City 

of Lakewood Board of Zoning Appeals (collectively “the City”) challenging the decision 

of the Lakewood BZA. The City filed a motion for hearing to present additional 

evidence pursuant to R.C. 2506.03(A)(1). The McMillans opposed the motion and 

argued that the court had “all of the relevant evidence” necessary to make a determination 

on review. The trial court denied the City’s motion. 

{¶9} While the case was pending in the court of common pleas, Lakewood 

amended Section 1121.07 of the Codified Ordinances of the City of Lakewood (“L.C.O.”) 

to reduce the minimum side-yard setback requirement for an A/C unit from ten feet to two 

feet. Following briefing in the matter, the trial court issued its ruling. The trial court 

found “appellants[’] appeal is moot[,]” and “alternatively, the decision of the zoning 

board is affirmed because appellants have not shown that the zoning board’s decision was 

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a 

preponderance of the evidence.” 

{¶10} The McMillans timely filed this appeal. The sole assignment of error 

challenges the trial court’s decision to affirm the Lakewood BZA’s decision to grant the 

variance. 
{¶11} First, we address the trial court’s determination that this matter is moot. 

The City argues that the trial court’s determination should be upheld because the 

McMillans did not obtain an order staying Mr. Oldfield’s installation of the A/C unit and 

did not intervene when Mr. Oldfield built a fence to address the noise and aesthetic 

concerns raised at the zoning hearing. However, we agree with the McMillans that the 

construction case cited by the City is distinguishable from this matter and, therefore, does 

not support the claim that this matter is moot.1

 

{¶12} Nonetheless, the City also argues that the trial court’s determination should 

be upheld because the placement of the A/C unit is in conformance with Lakewood’s 

amended ordinance, which imposes a minimum side-yard setback requirement for an A/C 

unit of two feet. As amended, L.C.O. Section 1121.07 provides in relevant part: 

An air conditioning unit with an ANSI/AHRI sound rating of less than 70 

db shall be excluded from the side yard setback, provided that the unit is 

placed not closer than 24 inches from the property line, the unit is entirely 

serviceable without needing to enter onto the adjoining property, and 

screening of the unit is maintained. 

{¶13} The McMillans claim the City failed to provide adequate notice of the 

zoning amendment. Because the McMillans failed to raise the notice argument in the 

trial court, we will not address the argument on review.2

 

 1

 See Adire v. Westlake City Council, 8th Dist. Cuyahoga No. 99347, 2013-Ohio-3533.

2

 The references by the McMillans to the record do not show that any specific objection was 
{¶14} Insofar as the McMillans contend that the amended ordinance conflicts with 

the City’s criminal noise ordinance, this argument fails because any such conflict would 

result in a preference afforded to the later enactment pursuant to L.C.O. Section 

101.06(c). Nevertheless, we recognize that as amended, L.C.O. Section 1121.07 allows 

for “[a]n air conditioning unit with an ANSI/AHRI sound rating of less than 70 db” to be 

excluded from the side yard setback requirement. The McMillans argue that because the 

lowest sound rating for Mr. Oldfield’s A/C unit is 71 db, the amended ordinance does not 

apply. Arguably, this might raise a question of substantial compliance that is not before 

us on review. 

{¶15} Even assuming the matter is not moot, the trial court reached an alternative 

determination that appellants failed to show that the zoning board’s decision was 

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a 

preponderance of the evidence. We shall review the trial court’s alternative 

determination. 

{¶16} Under R.C. 2506.04, the common pleas courts and the courts of appeals 

apply different standards of review for administrative appeals. When a party appeals an 

administrative agency’s decision to the common pleas court, the court “considers the 

‘whole record,’ including any new or additional evidence admitted under R.C. 2506.03, 

and determines whether the administrative order is unconstitutional, illegal, arbitrary, 

capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, 

 

raised as to “notice.” 
and probative evidence.” Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 

142, 147, 2000-Ohio-493, 735 N.E.2d 433. 

{¶17} In contrast, the standard of review to be applied by an appellate court 

reviewing a judgment of a common pleas court in an R.C. 2506.04 appeal is narrower, 

more limited in scope, and more deferential to the lower court’s decision. Cleveland 

Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 

1161, ¶ 25. A review by the court of appeals is limited to questions of law and does not 

include the same power to weigh the evidence. Id. “The standard of review for the 

court of appeals in an administrative appeal is designed to strongly favor affirmance. It 

permits reversal only when the common pleas court errs in its application or interpretation 

of the law or its decision is unsupported by a preponderance of the evidence as a matter of 

law.” Id. at ¶ 30. 

{¶18} The standard for granting an area variance is that the property owner is 

required to show “practical difficulty,” which requires a showing that the application of 

an area zoning requirement to the property is inequitable. Duncan v. Middlefield, 23 

Ohio St.3d 83, 85-86, 491 N.E.2d 692 (1986). This is a lesser standard than that for a 

use variance, and does not require a showing of unnecessary hardship. Kisil v. Sandusky, 

12 Ohio St.3d 30, 35, 465 N.E.2d 848 (1984). “The key to the [practical difficulties] 

standard is whether the area zoning requirement, as applied to the property owner in 

question, is reasonable.” Duncan at 86. Further, “no single factor controls in a 

determination of practical difficulties.” Id. 
{¶19} In Duncan, the Supreme Court of Ohio set forth the following factors “to be 

considered and weighed” in determining if a property owner has encountered practical 

difficulties in the use of his property, including but not limited to 

(1) whether the property in question will yield a reasonable return or 

whether there can be any beneficial use of the property without the 

variance; (2) whether the variance is substantial; (3) whether the essential 

character of the neighborhood would be substantially altered or whether 

adjoining properties would suffer a substantial detriment as a result of the 

variance; (4) whether the variance would adversely affect the delivery of 

governmental services (e.g., water, sewer, garbage); (5) whether the 

property owner purchased the property with knowledge of the zoning 

restriction; (6) whether the property owner’s predicament feasibly can be 

obviated through some method other than a variance; (7) whether the spirit 

and intent behind the zoning requirement would be observed and substantial 

justice done by granting the variance. 

Id. at 86. 

{¶20} L.C.O. Section 1173.04 includes the Duncan factors in its list of factors to 

be considered and weighed by the board in determining whether an applicant for a minor 

area variance will experience practical difficulty, with the addition of the following two 

factors: 
(1) Whether there exist site conditions, such as narrowness, shallowness, 

or topography, unique to the property in question that are not applicable 

generally to other lands or structures in the same zoning district; 

(2) Whether the property in question is located near a non-conforming or 

non-harmonious use, structure, or site conditions, or whether the property in 

question abuts a less restrictive zoning district[.] 

L.C.O. Section 1173.04(c). 

{¶21} We recognize that the trial court in deciding the administrative appeal was 

not required to issue any findings of fact and conclusions of law. 3910 Warrensville 

Ctr., Inc. v. Warrensville Hts., 20 Ohio App.3d 220, 222, 485 N.E.2d 824 (8th Dist.1984). 

 Further, we can adequately review this matter given the record before us. 

{¶22} The record establishes that Mr. Oldfield had requested a three-foot variance 

because he was planning a patio addition behind his home, he wanted to maximize 

enjoyment of his backyard and the view of the Rocky River, and in order for the A/C unit 

to be placed in the most efficient location. There was evidence that the McMillans had 

been granted a variance for their own A/C unit a year prior. The Lakewood BZA was 

not required to follow the opinion of the city architect, who found a lack of “reasonable 

hardship” and was not present at the hearing. Upon this and other evidence that was 

presented, the board could adequately consider and weigh the factors for determining 

practical difficulty and find in favor of granting the variance. 

{¶23} The trial court affirmed the decision of the Lakewood BZA upon concluding 

that appellants had not shown that the zoning board’s decision was unconstitutional, 
illegal, arbitrary, capricious, unreasonable, or unsupported by a preponderance of the 

evidence. On review, we conclude that the preponderance of substantial, reliable, and 

probative evidence supports the trial court’s decision. 

{¶24} Judgment affirmed. 

It is ordered that appellees recover from appellants costs herein taxed. The 

court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

EILEEN A. GALLAGHER, A.J., and 

ANITA LASTER MAYS, J., CONCUR