In re SSTS Soil Dispute Resolution.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0195

In re SSTS Soil Dispute Resolution.

Filed October 4, 2021
Affirmed
Hooten, Judge

Arthur Township
File No. RES-12142020

Gary R. Leistico, Jayne E. Esch, Aaron P. White, Rinke Noonan, Ltd., St. Cloud,
Minnesota (for relators)

Jessica E. Schwie, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for
respondent)

Considered and decided by Hooten , Presiding Judge; Smith, Tracy M , Judge; and
Halbrooks, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this certiorari appeal, relator s challenge the decision of respondent township
resolving a disagreement which arose during relators’ purchase of a resort by determining
that the resort’s septic system was in compliance with Minnesota law. Relators argue that
the township lacked the authority to resolve the disagreement because it failed to follow
the procedure set forth in Minn. R. 7082.0700, subp. 5(A) (2019) , and the township’s

 Retired judge of the Minnesota Court of Appeals, serving by appointment p ursuant to
Minn. Const. art. VI, § 10.
resolution does not meet the requirements of Minn. R. 7082.0700, subp. 5 (A)(4). We
affirm.
FACTS
In 2019, James and Diana Dahl hired Amy Thompson to inspect the septic system
of Fish Lake Resort, a campground resort owned by the Dahls in Mora, Minnesota.
Thompson inspected the septic system in November 2019 and issued a notice of
noncompliance. The notice of noncompliance indicated, among other things, that the
system’s drainfield did not meet the requirements set forth in Minn. R. 7080.1500 (2019) ,
which provides that septic systems are not to be installed at depths or in soils that put the
system in close proximity to, or at risk of contaminating, groundwater. Kanabec County
Ordinance #6, Article III, sect. 2.03 (2019) indicated that the drainfield must have a three-
foot vertical separation between the bottom of its infiltrative surface or rock bed and
periodically saturating soils , with no more than a 15 percent reduction in this separation
distance to account for “settling of sand or soil, normal variation of separation distance
measurements and interpretation of limiting layer characteristics .” Minn. R. 7080 .1500,
subp. 4(F), and Kanabec County Ordinance #6, Art. III, sect. 2.03, provide that the vertical
separation measurement must be measured outside the area of system influence in an area
of similar soil. Thompson, after completing a vertical soil boring, found that the drainfield
did not meet this requirement.
In early 2020, the Dahls entered into an agreement to sell the resort to relators Merle
and Laura Mauer.1 As part of the purchase agreement the Dahls agreed to bring the septic
system at the resort into compliance with Minnesota law. The Dahls hired Robert
Whitmyer of MATRIX Soil & Systems, Inc. to perform a second inspection of the septic
system in June 20 20. Whitmyer conducted two site visits and determined that the septic
system’s drainfield was in compliance with Minnesota law. Whitmyer explained in his
report that the regulations required that the system’s drainfield have a minimum of 31.5
inches of “ consistently unsaturated permeable soil though which discharged septic tank
effluent passes” under Minn. R. 7082.0700, subp. 5 (2019), and that the current drainfield,
which had 37 inches of consistently unsaturated permeable soil, met this requirement.
Thompson and Whitmyer completed their inspections of the resort’s septic system
as part of licensed Subsurface Sewage Treatment System (SSTS) businesses. Because of
their conflicting reports regarding the compliance of the septic system ’s drainfield , the
inspectors were required under Minn. R. 7082.0700, subp. 5(A)(2), to “meet at the disputed
site in an attempt to resolve differences.” Thompson and Whitmyer met and inspected the
septic system at the resort on November 20, 2020. Brian Koski of Septic Check, who was
retained by the Mauers, and Troy Winterfield, the Arthur Township Zoning Administrator
and licensed SSTS inspector, were also present for the site visit. At the conclusion of the
site visit, Thompson and Whitmyer were unable to resolve their difference in opinion as to
the compliance of the septic system’s drainfield.

1 Mauer Properties, LLC , is also a relator. We will collectively refer to relators as “the
Mauers.”
On December 1, 2020, Winterfield submitted a letter to respondent Arthur
Township Board of Supervisors (the board) concerning the soil dispute. Winterfield stated
that he was of fering his opinion as the “Arthur Township SSTS Professional” to satisfy
Minn. R. 7082.0700, subp. 5(A)(3), which specifies the procedure that must be followed
when there is a documented discrepancy between SSTS inspectors and a meeting of the
disputing inspectors fails to resolve the disagreement. Winterfield opined that the report
prepared by Whitmyer was accurate and that the drainfield was in compliance with Minn.
R. 7080.1500, subp. 4(D).
On December 14, 2020, the board met and discussed the soil di sagreement. The
board considered the reports from Thompson and Whitmyer, the written opinion from
Winterfield, and a soil boring log prepared in 2008 by J.B. Inspection, LLC , which also
indicated that the drainfield was in compliance in 2008 . The board adopted an SSTS soil
dispute resolution that determined that the report prepared by Thompson was not an
accurate description of the soils in the area outside of the area of influence, and therefore,
it did not satisfy Minn. R. 7080.1500, subp. 4(F). The board concluded that the report
prepared by Whitmyer and the 2008 soil boring log satisfied Minn. R. 7080.1500, subp.
4(F), and that, based on these documents, the septic system of the resort is in compliance
with Minn. R. 7080.1500. The Mauers now appeal by writ of certiorari.
DECISION
The Mauers argue that the record does not support the board’s determination that
the septic system was in compliance with Minn. R. 7080.1500. Because no Minnesota
statute authorizes judicial review of such a decision, review is limited to review by
certiorari. Township of Honner v. Redwood County , 518 N.W.2d 639, 641 (Minn. App.
1994), rev. denied (Minn. Sept. 16, 1994).
On certiorari appeal from a quasi -judicial agency decision not
subject to the [Minnesota] Admini strative Procedure Act, we
examine the record to review questions affecting the
jurisdiction of the agency, the regularity of its proceedings,
and, as to the merits of the controversy, whether the order or
determination in a particular case was arbitrary, oppressive,
unreasonable, fraudulent, under an erroneous theory of law, or
without any evidence to support it.

Anderson v. Comm’r of Health , 811 N.W.2d 162, 165 (Minn. App. 2012), rev. denied
(Minn. Apr. 17, 2012) (quotation omitted).
The Mauers argue that the board did not have the authority to resolve the SSTS soil
dispute because the proper procedure was not follow ed. As discussed above, Minn. R.
7082.0700, subp. 5, establishes the procedure that must be followed when licensed SSTS
inspectors disagree “on the depth of the periodically saturated soil.” The disputing parties
must meet and attempt to resolve their differences. Minn. R. 7082.0700, subp. 5(A)(2). If
the inspectors are unable to resolve the ir differences, the rule specifies that one of the
following resolution methods that must be employed:
(a) Obtain an opinion from a qualified employee of the local
permitting authority with jurisdiction, if the local permitting
authority is willing to provide an opinion [;]

(b) Obtain an opinion from an SSTS technical evaluation
committee, if a committee has been developed for this purpose
and is available and willing to render an opinion. The
committee must be created in cooperation with the
commissioner [; or]

(c) Obtain an opinion from a Minnesota licensed professional
soil scientist who is a certified SSTS designer or inspector and
who is independent of, and agreed upon by, both parties.

Id., subp. 5(A)(3). If the dispute remains unresolved , then “all initial and follow -up
documents and information generated must be submitted to the local unit of government,”
which “shall take into consideration all information and opinions rendered and make a final
judgment.” Id., subp. 5(A)(4).
Here, Thompson and Whitmyer disagree d as to whether the drainfield was in
compliance with the regulatory requirement. The inspectors then met at the site of the
septic system, attempted to resolve their differences, and were unable to do so. Winterfield
then offered his opinion as the “Arthur Township SSTS Professional” to satisfy Minn. R.
7082.0700, subp. 5(A)(3). 2 Only then did the board review the soil dispute and render a
judgment. Accordingly, we conclude that the board had the authority to consider and
resolve the soil dispute under Minn. R. 7082.0700, subp. 5(A)(4).

2 The Mauers argue that Winterfield is not a “qualified employee” under Minn. R.
7082.0700, subd. 5(A)(3)(a) because he is an “intermediate inspector” and is therefore not
certified to inspect septic systems with a design flow of greater than 2,500 gallons per day.
Winterfield’s letter indicates that he is offering his opinion to satisfy Minn. R. 7082.0700,
subp. 5(A)(3). But, as argued by respondent, t he Mauers did not challenge Winterfield’s
qualifications until this review, and as a result, the record does not contain information
regarding Winterfield’s certification level or the design flow of the resort’s septic system.
The Mauers ask this court to find that the design flow is greater than 2,500 gallons per day
based on the number of cam psites visible in an aerial photograph of the resort. To do so
would require us to make factual findings, which is outside the province of this court.
Kucera v. Kucera , 146 N.W.2d 181, 183 (Minn. 1966). Moreover, in the context of a
certiorari review of a county board decision, we cannot consider issues or evidence raised
for the first time before our court. In re Block, 727 N.W.2d 166, 178-79 (Minn. App. 2007)
(citing Thiele v. Stich, 425 N.W.2d 580, 582-583 (Minn. 1988).
The Mauers next argue that the record does not support the board’s determination
because the board improperly relied on a soil boring log from an expired certificate of
compliance. The Mauers argue that this reliance renders the decision on the soil dispute
arbitrary and capricious. The board considered four soil profiles when addressing the soil
dispute: one prepared in 2008 by JB Inspections, one prepared by Thompson, and two
prepared by Whitmyer. The board determined that the soil borings prepared by JB
Inspections and Whitmyer provided accurate descriptions of the soil in the immediate area
of the septic system but not under the area of effluence as required by Minn. R. 7080.1500,
subps. 4(D), (F), but the soil boring prepared by Thompson did not.
Under Minn. R. 7082.0700, subp. 4(b)(2) (2019):
A soil separation compliance assessment must be
completed by a licensed inspection business or a qualified
employee inspector with jurisdiction. Comp liance must be
determined either by conducting new soil borings or by prior
soil separation documentation made by two independent
parties. The soil borings used for system design or previous
inspections are allowed to be used. If the soil separation has
been determined by two independent parties, a subsequent
determination is not required unless requested by the owner or
owner’s agent or required according to local regulations.

Thus, soil borings from previous inspections are explicitly allowed to be considered. And
although the Mauers are correct that a soil separation compliance assessment may only be
based on prior soil borings prepared by two independent parties, the board did not rely
solely on the 2008 soil boring. The board also determined that t he new soil borings
prepared by Whitmyer were accurate. Because compliance may be determined “either by
conducting new soil borings or by prior soil separation documentation made by two
independent parties,” the new soil borings prepared by Whitmyer are i ndependently
sufficient to support the board’s compliance determination.
Finally, the Mauers argue that the soil dispute resolution adopted by the board is
inadequate as a matter of law. Under Minn. R. 7082.0700, subp. 5(A)(4), if a documented
dispute as to SSTS compliance is not resolved and is to be submitted to the local unit of
government
all initial and follow-up documents and information generated
must be submitted to the local unit of government. The local
unit of government shall take into consideration all information
and opinions rendered and make a final judgment. The local
unit of government shall render findings of fact, conclusions of
law, and findings setting forth the reasons for any final
decisions it renders.

The Mauers argue tha t three documents 3 were not mentioned in the resolution, and
therefore the board failed to satisfy the requirement that they “take into consideration all
information and opinions.” However, the Mauers do not cite to any legal support for the
proposition that the board’s resolution was required to explicitly address every piece of
information that was submitted and considered. Rather, a board’s decision must generally
be accompanied by a sufficient articulation of the reasons for the board’s decision. See
Zylka v. City of Crystal , 167 N.W.2d 45, 50 (Minn. 1969). This is consistent with the
above-stated requirement that the local unit of government must set “forth the reasons for
any final decision it renders.” Minn. R. 7082.0700, subp. 5(A)(4).

3 Specifically, the Mauers assert that a notice of noncompliance prepared by Thompson
following the November 20, 2020 inspection, an opinion letter from Koski, and an opinion
letter from Whitmyer refuting the conclusions of Thompson and Koski were submitted to
the board but not considered as part of the final judgment.
Here, the findings of fact set forth the procedural history and indicate that the board
considered the four soil profiles and the “Fact Find” prepared by Winterfield, which
contained “adequate exhibits, documents and MN Rule references that were examined” by
the board to reach its final decision. In the resolution and findings of fact, the board
explains that the soil profile prepared by Thompson was not an accurate record of the soil
surrounding the septic system because it was taken within five feet of the system , and
therefore within the area of system influence. Under Minn. R. 7080.1500, subp. 4(F), the
soil separation measurement “must be measured outside the area of system influence in an
area of similar soil.”
The Arthur Township Resolution accepted the findings of fact by Winterfield, the
township’s SSTS Professional, that the soil borings of Whitmyer and JB Inspections were
accurate representation s of the vertical separation between the bottom of its infiltrative
surface or rock bed and per iodically saturating soils and that the soil boring taken by
Thompson was not an accurate representation because it was taken outside the area of
system influence. We conclude that , under these circumstances, the board provided a
sufficient articulation for its decision that the drainfield was in compliance with Minnesota
law.
Affirmed.