Agenda - Planning Commission - 10/04/2007

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September 15, 2007 I Volume 1 I No. 18 lower courr erred by basing its decision on the fact that the evidence equally supported Jacques and the Department's plans. The lower court had also stated that it could not see anything in the record that indica"j:ed that the driveway would be more detrimental to the dunes than the park-and-walk proposal, but the Department had found that the park-and-walk design impacted less square footage, con- fined that impact to a more limited area of the property while minimiz- ing impacts to regulated slopes, that the access provided by the park- and-walk proposal would more closely follow the natural terrain, and that it would require less vegetation removal to implement. Jacques also claimed that the Department had erred by faili...T1g to con- sider his personal circumstances, specifically his wife's osteoporosis, in deciding whether a practical difficulty would occur if the special excep- tion to build the driveway was not granted. State law provided that a special exception could be issued if "a practical difficulty [would] occur to the owner of the property" if the special exception was not granted. In deterJIl.ining whether a practical difficulty would occur, primary con- sideration was "given to assuring that human health and safety [were] protected by the determination and that the determination complie[d] with applicable local ZOnil1.g, other state laws, and federal law. " There was a zorlli""lg plan for critical dune areas in the state uilder which a practical difficulty could be found if "the denial deprive[d] an owner of the use of the property, compliance would be unnecessarily burdensome, or "gra.i"1ting a variance would do substantial justice to the oVl-ner." But the court here found that "the concept of 'practical diffi- culty' in zoning law relate [ d] to problems inherent in the property itself, not to the personal conditions of its occupants." Jacques also argued that the Department had not considered all of his arguments; namely that the park-and-walk plan posed a safety is- sue. However, there was evidence in the record that showed the Depart- ment had considered this argument, and it had found that the driveway was actually more potentially dangerous. Part of this evidence included a Department visit to the other homes in the neighborhood that had im- plemented the parking system and statements from those homeoVl-ners indicating their satisfaction. Because the lower court erred by substituting its judgment for that of the Department, and because" the original decision denying the driveway was supported by substantial evidence, the decision of the Department was reinstated. 9 55