(dissenting).
An independent review of the decision of the County Board of Adjustments and Appeals leads me to conclude that the district court properly determined that the Board’s findings that the proposed system complied with the County’s Development Code and that the zoning administrator’s denial of the Davis application had been inappropriate were not supported by substantial evidence in the record as a whole.
The trial court concluded that the applicant’s system is an alternative specially designed system; that, pursuant to section 402.09 of the Washington County Development Code, applicant’s proposed system on the property must have been demonstrated not to create a pollution problem prior to any approval of the alternate system; and that there was not substantial evidence in the record submitted to support the finding that the alternate system approved would not create any pollution problem or present a danger to the public health, safety or welfare. These conclusions were compelled.
The soil-boring tests of the lot in question showed water within a few feet of the surface, and applicant’s own experts admitted that the soil is saturated from April *718through June. The water table is thus such that the use of a soil-absorption system is prohibited by Development Code § 405.-05(1) unless it be one “considered to be of special design.”
The proposed system, being one of special design, must comply with Development Code § 402.09. Section 402.09 provides, in relevant part, that an alternative to a septic tank drain field system can be used only “if it can be demonstrated” that it “will not create a pollution problem.” The system proposed here is experimental and has never been tried. Its effect cannot be demonstrated by evidence of successful experience. Applicant’s witnesses expressed their belief that it will work satisfactorily, and they theorized that it will have the capacity to accept whatever amount of water would enter it during the times that the soil above the drainfield was saturated. They did not “guarantee” the success of the system. The validity of the analyses furnished by Hun-trods to prove the ability of the system to accept such water was disputed by Dr. Ma-chmeier, whose academic qualifications and experience were considerably more extensive than those of applicant’s experts. Neither Machmeier, Hansel, nor Doerr were satisfied that the proposed system was adequate. While they conceded that their concerns might not be realized, they questioned whether hydraulic overloading of the system would occur and also whether the development of the biomatt necessary for adequate treatment would be destroyed or impaired by entry of fine particles into the trenches.
The record thus suggests that no witness could state with assurance that the proposed system would or would not function satisfactorily. The requirement that a property owner demonstrate that his proposed alternative system would not cause pollution reflects a legislative determination that the public welfare requires such proof even if it means that the property cannot be devoted to the use for which it was zoned. The opinions of the designers of the system, not backed by experience, research, nor accepted theoretical analysis, are insufficient basis for a reasonable inference that pollution would not occur. The Board’s findings, based on such an inference, do not have substantial evidentiary support.
I would affirm.