State of Minnesota, Respondent, vs. John Wayne Wood, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. §480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA IN COURT OF APPEALS A03-123

 

State of Minnesota,
Respondent,
 
vs.
 
John Wayne Wood,
Appellant.

 

Filed July 27, 2004

Affirmed

Peterson, Judge

 

Isanti County District Court

File No. T2012437

 

Jeffrey R. Edblad, Isanti County Attorney, Thad N. Tudor, Assistant County Attorney, 555 18th Avenue Southwest, Cambridge, MN  55008 (for respondent)

 

Steven K. Marden, Box 359, 2136 Ford Parkway, St. Paul, MN  55116 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Anderson, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

In this appeal from the sentence imposed following conviction of misdemeanor zoning violations, appellant argues that the district court abused its discretion in requiring, as a condition of probation, that appellant grant officials access to his property to perform soil borings.  We affirm.

FACTS

            Appellant John Wayne Wood owns land in Isanti County.  The Isanti County Zoning Department received several anonymous complaints regarding zoning violations on appellant's property.  The property is located in a zoned Agricultural District.  The Minnesota Pollution Control Agency (MPCA) did a requested fly-over inspection in May 2001, and aerial photographs revealed a significant number of junked vehicles, which are not permitted on the property under the zoning ordinance.  A search warrant to examine the property was executed on July 5, 2001.

            Zoning officials and law-enforcement officers who searched the property found many unlicensed vehicles, at least ten old school buses, seven large tanker trucks, a pile of scrap iron, tires, plastic, bricks and concrete, old machinery, several fuel tanks, scrap wood, and old mobile homes. 

An initial complaint filed on September 11, 2001, and an amended complaint filed on September 12, 2002, charged appellant with: (1) Zoning Violation (Permitted Uses) in violation of Isanti County, Minn., Zoning Ordinance, § 6, subd. 2 (2001); (2) Zoning Violation (Solid Waste) in violation of Isanti County, Minn., Solid Waste Ordinance, § IV, subd. 1 (2001); (3) Misdemeanor Public Nuisance in violation of Minn. Stat. § 609.74 (2002); (4) Zoning Violation (Septic System) in violation of Isanti County, Minn., Zoning Ordinance, § 6, subd. 2(18)(h) (2001); and (5) Zoning Violation (Certificate of Occupancy) in violation of Isanti County, Minn., Zoning Ordinance, § 19, subd. 2(1) (2001).  Count 4 was later dismissed.

            A jury found appellant guilty of counts 2 and 5 and not guilty of counts 1 and 3.  The district court imposed a 90-day jail term for each count, stayed execution, and placed appellant on probation for one year.  One of the conditions of probation required appellant to allow "[z]oning access to prop[erty] for inspections soil boring."

D E C I S I O N

District courts have broad discretion in setting the terms and conditions of probation. State v. Franklin, 604 N.W.2d 79, 82 (Minn. 2000).  Probation conditions "must be reasonably related to the purposes of sentencing and must not be unduly restrictive of the probationer's liberty or autonomy." Id. (quoting State v. Friberg, 435 N.W.2d 509, 515 (Minn. 1989)).

Appellant argues that the probation condition that requires him to allow zoning authorities access to his property to take soil borings violates his fundamental rights against unreasonable searches under the United States and Minnesota constitutions and was an abuse of the district court's discretion because there is no evidence that there was any solid waste on his property that could be detected by a soil boring.  He implies that the condition of probation is not reasonably related to the offense.

            Under the Isanti County Solid Waste Ordinance, "solid waste" means:

garbage, refuse, sludge from a water supply treatment plant or air contaminant treatment facility, or other discarded waste materials and sludges in solid, semi-solid, liquid or contained gaseous form, resulting from industrial, commercial, mining, or agricultural operations, or from community activities, but does not include hazardous waste; animal waste used as fertilizer; earthen fill, boulders, rock, sewer sludge, solid or dissolved material in domestic sewage or other common pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents or discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended . . . or source material, special nuclear material, or by-product material as defined by the Atomic Energy Act of 1954, as amended.

 

Isanti County, Minn., Solid Waste Ordinance, § 1, subd. 29 (2001).

Holly Nelson, a compliance technician for the Isanti County Zoning Department who was present during the July 5, 2001, search of appellant's property, testified that there were several fuel tanks on the property.  Nelson also testified that there were barrels on the property, and one of the barrels had tipped over. 

Tim Anderson, the solid-waste officer for Isanti County, was also present during the search of appellant's property, and, at trial, he described what he saw on the property.  The following exchange occurred at trial:

Q Mr. Anderson, based on what you personally observed on the place, the old gas tanks, based on what you were told about the outhouse, would you like to go out there and do soil borings? 

AI certainly would. Or actually I would prefer that a licensed septic inspector do an inspection.

. . . .

 

QBased on your personal experience with Mr. Wood, would you feel comfortable just going out to the property any time subsequent to the July visit to do soil boring testing?

ANo, I wouldn't unless I had his express consent, and he has indicated that I'm not supposed to go back out there again, but if he would invite me I would feel comfortable doing it, yeah.

 

Because we do not have a copy of the sentencing transcript, we cannot determine whether anything further was said about soil boring before the court imposed the sentence and conditions of probation.  On appeal, the appellant has the burden of providing the record, which includes the papers filed in the district court, the exhibits, and the transcript of the proceedings.  Minn. R. Civ. App. P. 110.01, 110.02, subd. 1; Minn. R. Crim. P. 28.02, subds. 8, 9; State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984).  

            The record before us supports the conclusions that appellant stored solid waste on his property (i.e., barrels, fuel tanks, etc.) and that appellant's soil may be contaminated by solid waste (i.e., fuel or other liquid released from the barrels or fuel tanks).  Therefore, we conclude that the probation condition allowing zoning officials access to appellant's property to take soil borings is reasonably related to appellant's violation of the solid-waste ordinance and to ensuring compliance with the solid-waste ordinance and is not unduly restrictive of appellant's liberty or autonomy. 

            Affirmed.