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<br />Zoning Bulletin <br /> <br />Special Exception-Homeowner applies for special <br />exception to build driveway in protected zone <br /> <br />Lower court disregards alternate park-and-walk system proposed <br />by environmental agency <br /> <br />Citation: Jacques v. Department of Environmental Quality, 2007 WL <br />2404542 (Mich. Ct. App. 2007) <br /> <br />M.-ICHIGAN (08/23/07)-Jacques owned la11d in the McCall Estates <br />subdivision in the town of PenrvvateL He wanted to build a lakeside <br />home in a "critical dune" area. <br />The proposed buildi11g site was separated from the nearest road by a <br />valley, over which Jacques wanted to construct a raised driveway that <br />would continue to an attached garage. Certain uses of critical dune areas <br />were prohibited without a variance; a special exception could be granted <br />by the Department of Environmental Quality if the local government did <br />not have an approved zoning ordinance, as was the case here. <br />Jacques applied to the Depar'"LlTIent for permission to build the drive- <br />way, but the Department derned the application, It suggested an alter- <br />native plan involving a ~'park-and-walk" design that other property <br />owners in the subdivision had been required to utilize. The Department <br />claimed that, among other tkLgS, the driveway involved a "contour <br />change" that would: increase erosion, decrease stability, and was more <br />extensive than necessary. <br />Jacques appealed the Department's decision to court, which found <br />in his favor. The court stated that: the evidence equally supported the <br />driveway and park-and-walk design proposals, so "the prerogative <br />ought to [have been] with the property owiler." <br />The Depar'"Lillent appealed. <br /> <br />Decision: Reversed. <br /> <br />The lower court's review of the Department's factual findings should <br />have been "limited to determining whether the decision was supported <br />by competent, material,and substantial evidence on the whole record, <br />was arbitrary or capricious, or was clearly an abuse of discretion." Sub- <br />stantial evidence was "that which a reasonable mind would accept as <br />adequate to support a decision." <br />Under judicial review, it did not matter if a contrary position was <br />supported by more evidence or if the court would have reached a dif- <br />ferent conclusion. If the position adopted by the agency in question was <br />supported by evidence from which legitimate and supportable inferences <br />were drawn, the decision of that agency should be affirmed. Here, the <br /> <br />8 <br /> <br />54 <br />