Michigan Land Use Institute

MLUI / Articles from 1995 to 2012 / Judge Upholds Sand Dune Law

Judge Upholds Sand Dune Law

Jankowski family cannot build a driveway through a fragile dune

March 11, 2001 | By Keith Schneider
Great Lakes Bulletin News Service

In an important legal decision to uphold the 1976 Sand Dune Protection and Management Act, a state judge earlier this month blocked a Grand Rapids couple from building a driveway through an unstable, state-protected dune along Lake Michigan in Oceana County.

In upholding the act, Administrative Law Judge Richard Patterson said Eugene and Judy Jankowski’s development plan would unnecessarily damage a fragile dune, and that there was a “feasible and prudent alternative.” Instead of constructing a new road to the crest of the dune, the Jankowski’s can build a less damaging stairway or tram. The Jankowski’s also could build their home at the base of the dune and use an existing driveway, said Judge Patterson, who decides disputes citizens have with the state Department of Environmental Quality.

The Jankowski case was widely viewed as a critical test of the DEQ’s resolve to enforce a state law that safeguards 70,000 acres of globally unique freshwater sand dunes in Michigan. Judge Patterson’s decision in the Jankowski case is especially significant because it comes in the midst of rising public criticism about the DEQ’s behavior as Michigan’s chief environmental stewardship agency. The ruling is a rare and decisive statement by a DEQ jurist that the provisions of a core state environmental statute are sound and that the department must enforce them.

Mr. and Mrs. Jankowski applied to the DEQ in 1998 for a permit to build a home at the crest of a towering dune and a driveway to get them up to it. Specialists with the DEQ approved the home but rejected the driveway, saying it would cause too much damage to the dune.

The Jankowski’s appealed, arguing that in 1994, the Legislature amended the Sand Dune Act to allow construction on steeper slopes. The amendments, they argued, also permitted greater latitude for exceptions to the law. Judge Patterson rejected these arguments.

Protecting Lake Michigan’s dunes is the focus of growing citizen interest. In Berrien County, for instance, Preserve the Dunes, a 750-member, nonprofit organization, is aggressively challenging a mining company application to excavate in a protected critical dune area just north of St. Joseph. In 1995, the Department of Natural Resources denied the company’s request.

But six months later, after the Engler administration established a separate enforcement agency — the Department of Environmental Quality — the mining company resubmitted its application. With no changes to the original permit application, the newly established DEQ approved the request. Citizens sued, and late last year a state judge ruled against them. Citizens are appealing the case.

Michigan Land Use Institute

148 E. Front Street, Suite 301
Traverse City, MI 49684-5725
p (231) 941-6584 
e comments@mlui.org