Use variance application; Review of a Zoning Board of Appeals’ (ZBA) decision; Pegasus Wind, LLC v Tuscola Cnty; The Michigan Zoning Enabling Act; MCL 125.3606(1); Burden of establishing unnecessary hardship

The court held that the circuit court did not commit reversible error in upholding respondent-City’s ZBA’s denial of petitioner’s request for a use variance. Petitioner sought to use the property in question as a used car dealership. The property had been previously used for this purpose but the “use lapsed under the zoning ordinance, necessitating petitioner’s application for a use variance to resume” the use. On appeal, it primarily argued “that the ZBA was compelled to grant a use variance, asserting that substantial evidence established unnecessary hardship because (a) new car dealerships are permitted without restriction under respondent’s ordinances, whereas used car dealerships are not, and (b) the subject property lacks any other viable economic use.” However, after reviewing the certified record from the ZBA’s proceedings, and the circuit court’s review of the appeal, the court was “not left with a definite and firm conviction that the circuit court erred in affirming the ZBA’s denial of the” petition. The only hardship petitioner identified was “its inability to operate its preferred automotive-related business.” It failed to identify any record evidence showing “that ‘the site cannot reasonably be used for any of the uses allowed within the current zoning district designation.’” The zoning ordinance placed “the burden of establishing unnecessary hardship squarely on the petitioner, providing: ‘A use variance may be allowed by the ZBA only in cases where the applicant has shown a unnecessary hardship in the official record of the hearing.’” The court found that the certified record did not contain any “indication that petitioner presented evidence sufficient to establish the requisite unnecessary hardship.” As it failed to show on appeal that the record contained sufficient evidence “to satisfy its burden before the ZBA,” it also did not “establish a basis for granting the use variance” and failed to show that the circuit court did not apply the correct legal principles or “misapprehended or grossly misapplied the substantial evidence test in reviewing the ZBA’s factual findings.” Affirmed.