*1 713 subject devices that were of this control category search would fall into the of items GRANT, Respondent, TOWN OF disposed are unlikely quickly. v. First, generally is known that traffic COUNTY, WASHINGTON et appropriated by control devices are individ- al., Respondents, personal uals for their use. The items are a part
often made of the home decor. Davis, Inc., Appellant. Davis and cause has been held stale Probable even after the of several passage months where No. 81-857. sought “enduring utility
the items are of Supreme Court of Minnesota. Flom, their taker.” 285 State N.W.2d 476, 477 It need not be neces- 28, May sary for to specifically the affidavit de- scribe decor of room where traffic
control magis- devices were seen to enable a
trate to likely conclude that such items are
to continue to be for personal retained use. concluding
A second reason question in they
items remained where
been seen the lack of ready market for Dauphinee, items. United States v. 1, (1st 5 1976),
538 F.2d Cir. the Court of
Appeals 30-day lapse held that a time was long (hand
not too where the contraband
grenades) rapid did not lend dispo- itself to
sition even marketplace. the criminal
Traffic control devices certainly not the accepted by
kind of item pawn shops or potential repositories
other goods. stolen
Finally, judge trial noted in his
memorandum, would have in special
curred in attempting dispose risks property. Traffic control devices are conspicuous, visible and
the attempt to remove them a small
town like Pipestone would likely have led to Rahn,
detection. See United States v. 511 290, (10th Cir.), denied,
F.2d 293 cert. 825, (1975).
U.S.
96 S.Ct.
For these we hold that the court
was with sufficient information conclude that there was
probable cause to believe that the items
described search warrant would be premises
found on days after
were initially observed there.
Affirmed. *2 Lammers, Wolff,
Eckberg, Briggs & Still- water, for Town of Grant. Stillwater, Swenson, Douglas for Wash- ington County, et al.
SCOTT, Justice.
appealed
The Town of Grant
to the dis-
Washington
trict court from an order
County
Appeals
which,
decision
reversing
Planning Department, had directed
County
county zoning administrator
to issue
Davis, Inc.,
allowing Davis &
owner
permits
town,
a 2.5 acre lot in the
to construct a
sewage disposal
on-site
court reversed that
system.
district
there was not sub-
order after
stantial evidence
findings
proposed system complied
County Development
health,
endanger
safety or
would not
welfare,
appeals
Davis
and Davis &
court’s order. Based on our
district
independent
review of the evidence sub-
to the
mitted to the Board and
district
court, we reverse the court’s order and di-
permits pursuant
rect issuance of
Board’s decision.1
is one in a
Appellant’s lot
subdivision
tracts,
single family
similar
all zoned for
Homes have been con-
residential use.
lots,
surrounding
each
structed on
own-
permitted
er has been
to construct an on-
sewage disposal system. There was
site
municipal
evidence that
installation of a
system
contemplated
sewer
is not
before
year
County Development
2000. The
following regulations
for
Code contains
systems:
on-site
Simon,
402.09: The
shall con-
Stacker,
Tansey,
R. J.
Section
Ravich &
Paul,
sewer,
Johnson,
building,
septic
tank
Jr.,
Q.
sist of
Lyman
P.
St.
Johnson,
A.,
absorption unit. The soil ab-
P.
Inver Grove
and a soil
J.
Lance
sorption unit
consist of
subsurface
appellant.
shall
Heights, for
Planning Department’s
transcript
hearings
denials of the re-
held before
A
documentary
quested permits.
parties stipulated
to this
evidence
Board and the
court,
participation
as also
record without direction or
to it was furnished to the district
court,
clearly adequate
prior applications
for
which had
and the record was
were
Cf.,
County Planning Depart-
purposes of
Honn v.
of Coon
review.
been filed with the
ment,
Rapids,
supporting
applications,
313 N.W.2d
data
those
disposal
field. All
shall be treat-
urged that
is not “impermea-
septic
septic
tank
ble,”
ed in the
tank and
it concedes that the subsoil conditions
discharged
dispos-
effluent shall
require a specially designed alternative sys-
al field. The
tank
tem, which is permitted by section 402.09
only accepta-
tem
shall be considered
provided
demonstrates that
ble
for installation unless
can
the alternative system “will not create a
this
fea-
demonstrated that
*3
pollution problem.”
particular
question
sible
the
lot in
and
on
In
appellant
October 1979
made an appli-
if it
that the system
can be demonstrated
cation for
the necessary
to con-
provided
an
being
alternative will not
struct an
alternative
which calls for
pollution problem.
create
two drain field trenches
dug through
to be
405.05(1): In areas of shallow
Section
clay
the
layer layer
the sand
beneath it.
groundwater,
depth
the
ta-
water
clay through
Since the
which the trenches
absorp-
ble shall be determined. No soil
dug
would be
permit
does not
sufficiently
tion
shall be installed in an area
rapid drainage,
the trenches themselves
where the water table is at
time less
would be filled with sand. This alternative
ground
than 6½ feet below
level or 4 feet
system,
first
by appellant in Octo-
the
below the bottom of
rejected
ber
was then
by the Planning
systems
absorption
trench. Soil
installed
Department following
by Lyle
consultation
impermeable layers
in areas where
Doerr,
official,
county
building
with Mar-
at
less
depths
found
of
than 6V2feet shall
tin Ziebell of the United
Soil
States
Conser-
design.
of special
considered to be
vation
Roger
Service and Dr.
Machmeier of
sys-
septic
The conventional
tank drain field
University Minnesota,
the
of
the latter a
in-
by
tem authorized
section 409.09 was
professional
agricultural engineer
with
vicinity
appel-
stalled on other lots in the
of
expertise
considerable
in on-site
however,
undisputed,
It
property.
lant’s
is
systems.
experts
treatment
These
had
appellant’s
the
of
nature
the subsoil on
agreed that
the concept
extending
of
use
permit
system.
lot does
of that
through
trenches
clay
the
to underlying soil
lot,
slopes
which
a hill in the
had
by
not been substantiated
research and
northeast corner to a low area in the south-
ignored
aspects
some
of on-site waste treat-
corner,
top
west
an
layer
silty
has
18-inch
of
disposal.
ment and
appel-
October 1979
clay,
clay layer
beneath which lies a
5 to 6
again applied
lant
for the necessary permits
thick;
layer
feet
beneath that
of
bed
essentially
to construct
type
the same
of
gravel which
to and
extends
beneath
system.
again
Mr. Doerr
consulted Ziebell
water table 22 feet below the earth’s sur-
and Dr. Machmeier and also consulted Mi-
borings
presence
face. Soil
also showed the
Hansel,
engineer
chael
a staff
the
of
Pollu-
clay layer
of water in the
within a few feet
Agency,
tion Control
this system.
about
surface,
the
and percolation
of
tests estab-
These
agreed that
the design did
through
gravel
lished that water drains
the
requirements
not meet the
of the County
at the rate of 1 inch
every minutes but
Code,
Development
Planning
and the
De-
through
clay layer
drains
at a rate
1of
partment
application.
then denied the
per
county
inch
480 minutes. State and
appellant’s
Following
appeal
Coun-
require
percolation
standards
rate of less
ty
Appeals,
every
than 1 inch
60 minutes for use of a
hearings.
first,
Board held two
At the
held
septic
system.
conventional
drain
tank
field
2, 1980,
February
David Briggs,
reg-
C.
Additionally, during
or 4 months of the
engineer
istered
who had
year, amount
snow melt and rain is
posed
told
Board
clay layer
sufficient
saturate the
problems
by
posed
the slowness of
past
years
few
has
ponding
caused
drainage through
on the
surface water
the low area
the lot.
by
Although
lot
parties
extending
differ on
were eliminated
drain
whether
through
clay
saturated water
an
field
the sand
conditions
addi-
trenches
create
table,
tional
by filling
water
has also
it and
the trenches
below
them-
opinion
He
trenches,
sand.
ed into
the drain field
selves
exactly as a
would work
drainage
slow
through
them and that
drainage
tank
field
conventional
biomatt
ordinarily develops
He also said that Mr. Hansel
tem does.
spreads on the
at the
sand
bottom of the
but
concept
deep
trenches
approved the
trenches would act also as a valve slowing
about whether the soil
had been concerned
drainage through the sand. Consequently,
the trenches could become satu-
adjacent to
disputed
he
analyses
Huntrods’
of flow
them, resulting
rated and be attracted into
rate, although Dr. Machmeier conceded that
system. To meet this
overloading of the
interceptor
trench would cut off lateral
Briggs proposed modify
his de-
objection
flow of water into the drain field trenches
trench on a
sign
interceptor
to include an
interceptor
unless the
plugged
itself became
divert surface
above the drain field to
slope
experts presented
fine materials. The
He
from the drain field trenches.
water
Planning Department
felt
discussed this
represented that Hansel had
was essential
that the drain field trenches
design
with him and had
modification
*4
remain in an
condition
in-
unsaturated
to
theory
solve the
agreed that
it would
adequate
sewage
sure
treatment of the
and
expressed.
he had
Doerr and other
concern
digging
said that
the effect of
Planning
employees told the
Department
filling
through clay
trenches
them with
the
experts
by
that
the
consulted
Board
a different soil was difficult
to determine.
expressed the
Planning Department had
migration
Dr. Machmeier said that
the
could be-
opinions
proposed system
that the
particles
trenches,
fine
into the drain field
might
hydraulically
come
overloaded
occurred,
if it
eventually
could
create a
They
treatment.
also
provide adequate
not
soil,
tighter
reducing the time in which
experts
opportu-
had no
said that these
it,
liquids
through
possibly
could drain
proposed
effect of the
nity to consider the
thought
could even seal the trenches. He
intercep-
include an
design modification to
biomatt,
that the
adequate
also
essential for
order to obtain that review
tor trench.
In
treatment,
impaired
destroyed
could
or
if
permit
appear,
and to
these
to
the finer soils washed down the trenches.
hearing
April
Board held a second
on
agreed
Doerr and Hansel also
that
the in-
trench,
terceptor
if it
properly,
functioned
hearing appellant presented
At that
as
would cut off
flow water
lateral
into the
firm,
hydrologist
Briggs’
with
witness a
trenches,
but like Dr. Machmeier
Huntrods,
pre-
who had
Terry Huntrods.
possibility
interceptor
raised the
that
analysis” and a
pared a “saturated soil flow
plugged by
itself could become
fine parti-
analysis,” expressed the
slope
“down
flow
Machmeier,
explained
cles. Dr.
who
these
interceptor
that
trench would
fully,
concerns most
admitted that he did
prevent
surface water above it from
all
not know whether
would be realized.
reaching the drain field and that water
He
the interceptor
recommended that
not
falling directly
from snow or rain
on the
dug
into the
and also that
through
drain field would drain
the drain
draintile be laid at the bottom of the inter-
enough
prevent
field trenches
to
rapidly
ceptor
edge
slope
and returned to. the
becoming
drain field itself from
saturated.
migra-
in order to drain water and decrease
Briggs
He concurred with
that the
tion of fine materials. Doerr and Hansel
designed system
effectively treat
concurred in these recommendations.
waste,
hydraulically
would not become
hearing,
At the conclusion of the second
overloaded,
threat
no
Board,
one,
by
votes of two to
decided
These conclusions were chal-
environment.
require
appellant modify
to
that
lenged
Planning Department’s offi-
by the
posed system
incorporate
to
Dr. Machmei-
cial, Doerr,
Machmeier,
by
Dr.
and Mr.
er’s recommendations and
others forth-
Machmeier,
Hansel. Dr.
with whom the
coming in a reasonable time and then voted
agreed,
others
doubt
that
to
proposed system
properly.
necessary
direct issuance
would function
migrat-
said that if fine
modified.
particles
He
of soil
construct
as
appeal,
the district court
On
Town’s
hydrologist,
qualified
both
by education and
found,
Appeals’
to the Board of
experience, expressed
opinions.
the stated
findings,
that
there was a water table on While the
appearing
witnesses
for the Plan-
feet of
ground
within 6½
ning Department
possibilities
raised the
court determined also
level.
district
might not provide adequate
that
there was not substantial evidence in
treatment of
and that
it could be-
support
finding
record
come hydraulically overloaded,
poten-
with
complied
the alternative
with
tially
consequences,
serious
these experts
Washington County Development
say
could not
any certainty
their
system designed
and its
concerns would ever be realized.
It was the
danger
present
did not
function of the Board to determine
health, safety
welfare.
or
expert opinions
accept,
and since
required to
We are
make an inde
expressed by appellant’s
those
witnesses
pendent
review of the Board’s decision.
furnish
substantial
for the Board’s
College
of Arden
Northwestern
findings, we
compelled
to conclude that
Hills,
relevant “if only can be used field
tank drain it “will not demonstrated”
it can be problem.” pollution create Petitioner, GIESNER, Jean Katherine and has nev- experimental here Respondent, be demon- Its effect cannot er been tried. experi- of successful by evidence strated their witnesses Applicant’s ence. GIESNER, Lawrence Frederick satisfactorily, and work that it will belief Appellant. capacity it will have the
they theorized that of water would accept whatever amount No. 81-976. the soil above during the times that enter it Supreme Court of Minnesota. They did drainfield was saturated. system. The the success of the “guarantee” May Hun- furnished validity analyses ability prove trods Dr. Ma- disputed by was
accept such water
chmeier, qualifications whose academic exten- considerably more
experience were experts. applicant’s Nei-
sive than those Machmeier, Hansel, Doerr were nor
ther was ade- proposed system
satisfied con- While conceded
quate. their *6 realized, they questioned might
cerns not be overloading hydraulic
whether the de- would occur and also whether
tem necessary for ade-
velopment of the biomatt destroyed or im- would be
quate treatment particles fine into
paired by entry of
trenches. suggests that no witness
The record thus pro- state with assurance
could would or would not function
posed system that a
satisfactorily. requirement that his owner demonstrate
property would not cause
posed legislative determina-
pollution reflects a requires welfare
tion that it means that
proof even if which it to the use for
cannot be devoted designers
was zoned. The experience, not backed
research, analysis, accepted nor theoretical a reasonable infer-
are insufficient basis for pollution not occur.
ence that