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Brzinski v. Ramsey County2/26/2004
ing successive motions and appeals based on ever-evolving theories of immunity. See Weckerling v. McNiven Land Co., 231 Minn. 167, 173, 42 N.W.2d 701, 704 (1950).
In Wiederholt v. City of Minneapolis, 581 N.W.2d 312, 316 (Minn. 1998), the ordinance at issue required the immediate repair of "any sidewalk slab projecting more than one inch above the adjacent slab." Discretion was unnecessary to determine if the criteria had been met to require the immediate repair of the sidewalk once an inspector identified the broken slab. Id. Wiederholt involved the city's own zoning ordinance, but in this case, Ramsey County was only authorized to operate this site on certain terms and conditions and its activities were proscribed by two other regulatory bodies. And while this situation did not involve an immediate repair obligation, it required an immediate and unconditional adherence to the limits set by the MPCA and the City of Maplewood. As we stated in Wiederholt, "public officials clearly have a duty to adhere to ordinances and statutes." Id. In the present case, adherence to the grass removal mandates of the CUP and facility design limitations was especially important in that the compost limits imposed by the MPCA and the city appear to have been designed specifically to avoid the type of nuisance problems the Slettens now assert occurred. The residents living close to the Beam Avenue site allege not only that they experienced odor problems emanating from the site since the late 1980s, but also that the site was alleged to have produced gram/negative bacteria, various pathogenic bioaerosols from an anaerobic fermentation process, resulting physical ailments, and property damage.
The application of official immunity or vicarious official immunity to claims of nuisance is a question of law and involves a policy question dependent on the particular facts of the case. This analysis must take into consideration Minn. Stat. ยง 561.01 (2002), the nature of the Slettens' claim, and the particular government activity that is alleged to have given rise to this claim. The type of claim at issue, in this case nuisance, is not in itself dispositive of official immunity one way or the other. While we look into the cause of the nuisance and who created and maintained it, it is the nature of the underlying government activity that controls whether or not official immunity is involved. The court of appeals held that Ramsey County " not have discretion to operate a compost site that creates a nuisance that is dangerous to public health." Sletten II, 2002 WL 109272, at *4. While we agree with the result reached by the court of appeals, our analysis does not focus on the nuisance but rather on the nature of the underlying governmental activity that caused the nuisance. The application of vicarious official immunity to a nuisance claim is not automatic as Ramsey County argues, but rather is a policy question based on the facts presented. The determination of whether to grant immunity in each case depends on the kind of discretion which is exercised and whether or not the challenged government activities require something more than the performance of ministerial duties. If the activity is absolute, certain, and imperative, involving the execution of a specific duty arising from fixed and designated facts, it will be deemed ministerial, and official immunity will not be available. Watson, 553 N.W.2d at 414.
There are a number of duties at the operational level that the Slettens alleged caused this nuisance and resulting harm. We agree with the district court that the turning of the windrows on the site, the failure to follow composting guidelines published by the MPCA, and the allegations relating to water runoff are
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