Puritan-Greenfield Imp. Ass'n v. Leo

• Decision Date: 16 October 1967
• Docket Number: No. 1,Docket No. 841,PURITAN-GREENFIELD,1
• Parties: IMPROVEMENT ASSOCIATION, a mon-profit Michigan corporation, Plaintiff-Appellee, v. John L. LEO (also known as John R. Leo), Defendant-Appellant, and Henry Small, Abe S. Pearlman, Board of Zoning Appeals and the Members thereof, and Department of Buildings and Safety Engineering and its Commissioner of the City of Detroit, a municipal corporation, Defendants
• Court: Court of Appeal of Michigan — District of US

Page 162

153 N.W.2d 162

7 Mich.App. 659

PURITAN-GREENFIELD IMPROVEMENT ASSOCIATION, a mon-profit Michigan corporation, Plaintiff-Appellee, v. John L. LEO (also known as John R. Leo) Defendant-Appellant, and Henry Small, Abe S. Pearlman, Board of Zoning Appeals and the Members thereof, and Department of Buildings and Safety Engineering and its Commissioner of the City of Detroit, a municipal corporation, Defendants.

Docket No. 841.

Court of Appeals of Michigan, Division No. 1.

Oct. 16, 1967.

Joseph M. Weiss, Detroit, for appellant.

Neill T. Peters, Armstrong, Helm, Marshall & Schumann, Detroit, for appellee.

Before LESINSKI, C.J., and BURNS and LEVIN, JJ.

LEVIN, Judge.

Defendant-appellant John L. Leo claims the circuit judge erred in setting aside a use variance granted by the Detroit Board of Zoning Appeals.

Leo owns a one-story, one-family dwelling ¹ at the northwest corner of Puritan avenue and Prest avenue, located in the northwest section of Detroit in an R--1 (single family residence) zoning district. On application and after hearing, the board granted Leo ² a variance to permit the use of the property as a dental and medical clinic (an RM--4 use) and to use the side yard for off-street parking on certain conditions.

The order of the board states that immediately to the west of the westerly boundary of Leo's property is a gasoline service station (at the corner of Puritan and Greenfield); that there was testimony Leo had not received any offers from residence-use buyers during the period of over a year the property had been listed and offered for sale; and, in the event a variance was granted, it was intended to preserve the present exterior of the building without significant alteration so that it would continue to appear to be a one-family dwelling.

The appeal board's dominant finding was:

'That the board found unnecessary hardship and ³ practical difficulty because of the heavy traffic ⁴ and the closeness to the business section immediately to the west.'

The board also found that the proposed use would not alter the essential character of the neighborhood, would not be injurious to the contiguous property, would not be detrimental to the surrounding neighborhood, and would not depreciate property values.

Plaintiff-appellee, Puritan-Greenfield Improvement Association, filed a complaint with the circuit court which was treated by the court as one for superintending control. ⁵ The matter was heard by the circuit judge on the record made before the board. The circuit judge reversed the decision of the board, stating Inter alia that it had not been shown the land could not yield a reasonable return or be put to a proper economic use if used only for a purpose allowed by existing zoning and that such showing of hardship as had been made was of 'self-created' hardship attributable to the character of the structure thereon.

The applicable enabling act provides for a board of zoning appeals authorized to grant a variance upon a showing of practical difficulties or unnecessary hardship. ⁶ The Detroit ordinance requires evidence of special conditions ⁷ and unnecessary hardship or practical difficulties. ⁸

The enabling act specifies neither a particular procedure for obtaining review of board of zoning appeals' action nor the scope of review. Review is obtained by means of an application for superintending control (see footnote 5) which replaces certiorari. The minimum constitutional standard establishes the scope of review. The circuit judge and we are required by the Michigan constitution to determine whether the findings of the board and its order are authorized by law and whether they are supported by competent, material, and substantial evidence on the whole record. Const.1963, art. 6, § 28.

Although there has been a great deal of judicial effort expended in Michigan in considering challenges to the reasonableness or constitutionality of zoning as applied to individual properties, we find no Michigan appellate decisions construing the words 'unnecessary hardship or practical difficulties.' ⁹

The first modern zoning regulations were adopted by the city of New York and the phrase 'practical difficulties or unnecessary hardship' was fashioned as the applicable standard to guide New York's board of appeals in considering applications for variances. ¹⁰ A comparison of the relevant language of the applicable Michigan enabling act with that of the original New York city legislation shows that the Michigan provision authorizing the vesting in a board of zoning appeals the authority to grant variances parallels the corresponding New York city provision.

It appears that most State enabling acts, and ordinances based thereon, use 'unnecessary hardship' as the governing standard. ¹¹ In those States (like Michigan and and New York) where the applicable standard is 'unnecessary hardship Or practical difficulties,' the phrase 'practical difficulties' has been regarded as applicable only when an area or a dimension variance is sought, and in determining whether a use variance will be granted the decisive words are 'unnecessary hardship.' ¹² In the light of this history, we have turned for guidance to decisions of other States applying the 'unnecessary hardship' standard.

A text writer, Rathkopf, states that courts have held, variously, that a property owner seeking a variance on the ground of 'unnecessary hardship' must show credible proof that the property will not yield a reasonable return if used only for a purpose allowed by the ordinance or must establish that the zoning gives rise to hardship amounting to virtual confiscation or the disadvantage must be so great as to deprive the owner of all reasonable use of the property. He concedes that the showing required 'is substantially equivalent to that which would warrant a court in declaring the ordinance confiscatory, unreasonable, and unconstitutional in its application to the property involved.' 2 Rathkopf, The Law of Zoning and Planning, p 45--14.

These principles also find expression in the frequently stated generalizations that variances should be sparingly granted, ¹³ that it is not sufficient to show that the property would be worth more or could be more profitably employed if the restrictions were varied to permit another use, ¹⁴ and that the board of appeals, being without legislative power, may not in the guise of a variance amend the zoning ordinance or disregard its provisions. ¹⁵

The judicial attitudes so expressed could well have been influenced by the early history of the boards of zoning appeal and the need to declare more precise standards than the somewhat nebulous 'unnecessary hardship.' ¹⁶ When zoning was in its infancy it was thought by some that without a board of zoning appeals the individual declarations of zoning ordinance invalidity would be so numerous it would become necessary to declare the legislation void as a whole and, thus, 'the chief value of the board of appeals in zoning is in protecting the ordinance from attacks upon its constitutionality.' ¹⁷ That view of the purpose of the board of zoning appeals has been said to require a standard related to the reasonableness of the zoning:

'The hardship contemplated in this legislation has constitutional overtones, and it is the purpose of the variance to immunize zoning legislation against attack on the ground that it may in some instances operate to effect a taking of property without just compensation.' R.N.R. Associates v. City of Providence Zoning Board of Review (1965), R.I., 210 A.2d 653, 654. ¹⁸

It has been said that the function of a board of zoning appeals is to protect the community against usable land remaining idle and it is that purpose which gives definition to 'unnecessary hardship.'

'Since the main purpose of allowing variances is to prevent land from being rendered useless, 'unnecessary hardship' can best be defined as a situation where in the absence of a variance no feasible use can be made of the land.' 74 Harv. Law Rev. p. 1401; quoted in State ex rel. Markdale Corporation v. Milwaukee Board of Appeals (1965), 27 Wis.2d 154, 133 N.W.2d 795, 799.

Whatever the rationale may be, it has been held that a variance should not be granted until it appears the property cannot be put reasonably to a conforming use (Brackett v. Board of Appeal of Building Department of City of Boston (1942), 311 Mass. 52, 39 N.E.2d 956, 961; Stolz v. Ellenstein (1951), 7 N.J. 291, 81 A.2d 476, 478); or the application of the ordinance is so unreasonable as to constitute an arbitrary and capricious interference with the basic right of private property (Stolz v. Ellenstein, supra); or that the property cannot be used for a conforming purpose (Brown v. Beuc, supra, 384 S.W.2d at p. 852; similarly C. & C., Incorporated v. Semple (1966), 207 Va. 438, 150 S.E.2d 536, 539; Searles v. Darling (1951), 46 Del. 263, 83 A.2d 96, 100).

'An unnecessary hardship exists when all the relevant factors taken together convince that the plight of the location concerned is unique in that it cannot be put to a conforming use because of the limitations imposed upon the property by reason of it classification in a specific zone.' Peterson v. Vasak, supra, 76 N.W.2d at p. 426.

The authors of a number of scholarly studies appear to agree that an applicant desiring a variance must show

'(a) that if he complies with the provisions of the ordinance, he can secure no reasonable return from, or make no reasonable use of, his property; (b) that the hardship results from the application of the ordinance to his property; (c) that the hardship of which he complains is suffered by his property directly, and not merely by others; (d) that the hardship is not the result of his own actions; and (e) that the hardship is peculiar to the property of the applicant.' Green, The Power of the Zoning Board of Adjustment to Grant Variances from the Zoning Ordinance (1951), 29 N.C. Law Rev. 245, 249. ¹⁹

The ...