## Facts

- John L. Leo owned a one-story, single-family dwelling in Detroit located in an R-1 district limited to single-family residential use.
- Leo listed the home for sale for more than a year, with an asking price of $38,500, while typical homes in the area were offered for about $20,000 to $25,000.
- After receiving no purchase offers at his asking price, Leo applied to the Detroit Board of Zoning Appeals for a use variance.
- The requested variance would allow the dwelling to be used as a dental and medical clinic and would allow use of part of the side yard for off-street parking, subject to conditions imposed by the Board.
- The Board granted the variance, finding “unnecessary hardship” and “practical difficulty,” citing heavy traffic on Puritan Avenue and the property’s proximity to a business district, including a nearby gasoline service station.
- Puritan-Greenfield Improvement Association, a neighborhood nonprofit corporation, filed suit in circuit court to set aside the Board’s action.
- The circuit court treated the matter as one for superintending control and reviewed the case on the record made before the Board.
- The circuit court set aside the variance, concluding the record did not show the property could not be reasonably used as a residence or that it could not yield a reasonable return if used only for permitted residential purposes.
- Leo appealed the circuit court’s order to the Michigan Court of Appeals.

## Issues

1. Whether a zoning board may grant a use variance based on heavy traffic and nearby commercial activity when the record does not show, through competent, material, and substantial evidence, that the property cannot reasonably be used as zoned (single-family residential).
2. Whether the circuit court, on superintending control, properly set aside the variance under the constitutional standard requiring that the board’s decision be authorized by law and supported by competent, material, and substantial evidence on the whole record.

## Decision

- The Michigan Court of Appeals affirmed the circuit court’s judgment setting aside the Board’s grant of a use variance.
- The court held that a use variance should not be granted unless the board can find, on the basis of substantial evidence, that the property cannot reasonably be used in a manner consistent with existing zoning.
- The Board’s reliance on traffic volume and closeness to a business area did not, by itself, establish the type of hardship required to justify changing a single-family dwelling to a clinic by variance.
- The record did not establish that the property was not reasonably usable as a residence or that it could not yield a reasonable residential return.
- Evidence that Leo received no offers while asking $38,500—well above the area’s typical prices—did not demonstrate that the home was unmarketable for residential purposes or that the land was unusable as zoned.
- On review by superintending control, the circuit court was permitted (and required) to assess whether the Board’s findings and order were authorized by law and supported by competent, material, and substantial evidence on the whole record; the circuit court did not exceed that limited role.

## Legal Principles

- A use variance is not proper unless the zoning board can find, based on substantial evidence, that the property cannot reasonably be used as permitted under the current zoning classification.
- “Unnecessary hardship” in the use-variance setting focuses on whether the land would otherwise be left without a reasonable permitted use, not whether a different use would be more attractive or more profitable.
- Conditions common to many boundary-area lots—such as traffic and adjacency to more intensive uses—do not alone prove that a residentially zoned parcel lacks reasonable residential use.
- Lack of sales at an inflated asking price does not, without more, prove inability to sell or inability to obtain a reasonable return from permitted residential use.
- In Michigan, review of a zoning board’s variance decision is obtained through superintending control, and the reviewing court applies the constitutional minimum: whether the decision is authorized by law and supported by competent, material, and substantial evidence on the whole record. (Const. 1963, art. 6, § 28.)
- Variances cannot be used to accomplish lot-by-lot changes in land use that function as rezoning outside the legislative rezoning process.

## Conclusion

The court upheld the circuit court’s order setting aside the Detroit Board of Zoning Appeals’ use variance because the administrative record did not contain competent, material, and substantial evidence that Leo’s property could not reasonably be used as a single-family residence or yield a reasonable return under R-1 zoning, and traffic and nearby business activity were insufficient grounds to convert the home to a clinic by variance.


Puritan-Greenfield Improvement Association v. Leo, 153 N.W.2d 162 (1967)