(dissenting). Appellants’ 7 questions in their “statement of questions involved” do not request reversal because the board of zoning appeals failed to set forth the facts that resulted in the board’s granting of variance.
Appellants inform this Court that they did not “charge the board with ‘fraud or bad faith.’ ”
The Detroit corporation counsel and attorneys for appellees ask this Court to keep in mind the character of the block involved by stating:
“On the north end of the block on the east side of Wyoming avenue, which is a heavily traveled main street, there is located a Cunningham drug' store and a supermarket. Directly south thereof is, .a. *223large parking lot zoned P-1, which classification allows the parking of motor vehicles only. .On the south end of the block, there are located 3 multiple dwellings 2 of which were erected under permits granted by the city plan commission of the city of Detroit in 1952. The third building was erected, after a denial by the city plan commission, as a result of an action for a writ of mandamus filed in the circuit court in 1956. The circuit court issued its writ directing the department of buildings and safety engineering to issue a permit for the erection of said multiple dwelling. The rest of the block remains vacant, and it is on the vacant portion that the defendants Chernick now wish to erect the 2 multiple dwellings aforementioned. Permits have been issued by the department of buildings and safety engineering for said multiple dwellings.”
The board in its findings alleges that “field inspections of the .premises were made, reports of which were given, at. the hearing” and that “based upon the information obtained and evidence presented * * * the board found that the proposed construction and use would not be unduly harmful or injurious to other property owners in interest.” The board also found that defendants were faced with “practical difficulty and unnecessary hardship.”
Justice Smith, after setting forth the provisions of the ordinance that: “The decision of the board in these and all other matters heard by it shall be final insofar as it involves discretion or the finding of facts,” properly concludes that courts, including this Court, are precluded from a reversal unless there is a showing of arbitrary action or a clear abuse of discretion.
In my opinion the record in this case does not disclose arbitrary action or clear abuse of discretion and does not call for.reversal of the decisions of the board of zoning appeals and the circuit court of “Wayne county. , . ,
*224Plaintiffs’ bill of complaint (filed January 29, 1959) to review tbe orders of the board of zoning appeals was filed 85 days after tbe board’s orders (November 5,1958). Plaintiffs were represented by counsel at tbe bearing before tbe board.
Justice Smith sets forth the paragraph of the enabling act stating that the decision of the board becomes final after the expiration of 5 days from the entry of the order. (CLS 1956, § 125.585, subd [d] [Stat Ann 1958 Rev § 5.2935, subd (d)].)
I agree with appellees that the decision of the board became final because of failure of timely appeal and to sustain this conclusion refer to our decisions in Jones v. DeVries, 326 Mich 126; Mitchell v. Grewal, 338 Mich 81; and McVeigh v. City of Battle Creek, 350 Mich 214.
In Jones v. DeVries, supra, appealed to this Court since the zoning enabling statute was amended to provide that the orders of zoning appeal boards are final after 5 days unless made immediately effective, we stated (p 133) :
“Right of review by the courts if the proceedings are instituted within the time prescribed, as was done in the instant case, is clearly indicated in the amended statute to which the ordinance must conform, and such is established practice in this jurisdiction.” (Emphasis supplied.)
In Mitchell v. Grewal, supra, at page 92, we said:
“Immediate effect was given to the order of the board, and that order must be held to be final in the absence of fraud or bad faith. No evidence of this nature was adduced. The trial judge was correct in refusing to substitute his discretion for that of the board.”
In McVeigh v. City of Battle Creek, supra, it was held that the board of zoning appeals could not grant a rehearing of its own decision after the expiration *225of 5 days upon the request of the city itself, and that its original order was final and conclusive against the city.
Decree should be affirmed. No costs, a public question being involved.
Dethmers, C. J., and Carr, J., concurred with Kelly, J.