This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







James Welmer Schultz, et al.,





Beth Ann Frank, et al.,



Lake Belt Township,



Filed August 1, 2000


Huspeni, Judge*


Martin County District Court

File No. C19949



Sharon L. Van Dyck, 5120 IDS Center, Minneapolis, MN 55402-2246 (for respondents)


Frank J. Rajkowski, Rajkowski, Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN 56302 (for appellants)


Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.

U N P U B L I S H E D  O P I N I O N


            Appellant Lake Belt Township challenges denial of its motion for summary judgment, contending the district court erroneously concluded that respondent James Schultz’s claims were not barred by statutory immunity.  Because the governmental conduct challenged by respondent is entitled to statutory immunity, we reverse.


            On August 8, 1998, respondent James Schultz and defendant Beth Frank were involved in a motor-vehicle accident at the uncontrolled intersection of 100th Avenue and County Road 6 in Lake Belt Township.  As Frank approached the intersection traveling south on 100th Avenue, Schultz was traveling east on County Road 6.  Frank contends her view of eastbound traffic on County Road 6 was impaired by trees and brush growing in the ditch along the right-of-way.  When Frank entered the intersection, she collided with Schultz and both drivers were injured.

Schultz commenced this action against Frank for negligent driving and against Lake Belt Township (township) and Alvin Hovick, the farmer who owns the property located at the corner of County Road 6 and 100th Avenue, for negligently failing to maintain the right-of-way.  Following preliminary discovery, Hovick moved for summary judgment dismissing Schultz’s action, arguing that he owed no duty to clear trees or brush from the right-of-way.  Concluding that a township ordinance imposed such a duty on all owners of property abutting township roads, the district court denied Hovick’s motion.  Soon thereafter, Michael Prust, a farmer who leased the property in question from Hovick, was added as a defendant.

            The township enacted an ordinance in 1982 declaring rocks, trees, noxious weeds, and vegetation in roadside ditches and township road right-of-ways to be a public nuisance affecting public health.  In relevant part, the ordinance provided:

Section 1.04.  Duty of owners and occupants of property within the township.

(A)No person owning or occupying property within the township shall permit the following in any public place abutting his or her property:


* * * *


4.The growth of trees, noxious weeds, or vegetation other than grasses.


(B)Any person owning or occupying property within the Township shall cut the grass and weeds on Township road shoulders and ditches abutting his or her property on or before July 15 of each year and again during the month of September of each year.


* * * *


Section 1.05.  Clearing of public places.

(A)Notice to remove.  The Clerk of the township is hereby authorized to notify the owner or occupant of any property within the township to remove any material in a public place abutting his or her property which constitutes a public nuisance.  Such notice shall be by registered mail addressed to the owner or occupant at his or her last known address.


(B) Action upon non-compliance.  Upon the failure of any owner or occupant so notified to take the action specified by the Clerk within 10 days after receipt of the written notice provided in subsection (A) above, the Clerk is authorized to pay for the removal or to order its removal by the township.


In 1989, the Lake Belt Township Board sent all property owners in the township a letter reminding them of their obligations under the ordinance and informing them that failure to comply with the ordinance would require the city to order the work done and to bill respective property owners.  With minor modifications to the mowing requirements and mowing dates, the township ditch policy has remained unchanged since 1989.  Rather than sending the same letter to property owners each year, the township board established the practice of publishing a public notice in the Fairmont Sentinal twice annually to remind property owners of their obligations under the ordinance.  Accordingly, in 1998, the public notices were published on June 20 and August 8.

            The record shows Hovick purchased the property on the northwest corner of the intersection of 100th Avenue and County Road 6 in the late 1980s or early 1990s.  While Hovick received the township’s 1989 letter regarding the ordinance, he ignored the letter and never cleared any of the brush or cut down any trees along the township road right-of-way.  In 1995, Hovick leased the land to Prust, but did not require him to clear away brush or cut down any trees.  Township Board member Lynn Thate testified that she drove past the intersection twice daily during the summer of 1998 and was aware of the overgrowth; other township board members drove past the intersection during the year before the accident.  There is no evidence the township did anything to enforce the ordinance or require the right-of-way to be cleared.

The township moved for summary judgment, arguing that:  (1) it had no duty to maintain the township-road right-of-way, and (2) even if such a duty exists, statutory discretionary immunity protects the township from Schultz’s claims.  The district court denied the township’s summary judgment motion, concluding that:  (1) the township owed a duty to maintain the township road’s right-of-way, and (2) Schultz’s claims were not barred by statutory discretionary immunity. 


This court reviews an order denying summary judgment by determining “whether there are genuine issues of material fact and whether the district court erred in applying the law.”  Gleason v. Metropolitan Council Transit Operations, 582 N.W.2d 216, 219 (Minn. 1998) (citation omitted).  Whether immunity applies is a legal question, which is reviewed de novo.  Id. at 219.  The party asserting a defense of immunity has the burden of demonstrating facts showing it is entitled to immunity.  Gerber v. Neveaux, 578 N.W.2d 399, 402 (Minn. App. 1998), review denied (Minn. July 16, 1998).  In reviewing a denial of summary judgment based on a claim of immunity, this court presumes the truth of the facts alleged by the nonmoving party.  Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

Statutory immunity, sometimes referred to as “discretionary immunity,” protects government units from claims arising from performing or failing to perform a discretionary act, regardless of whether it abused its discretion.  Minn. Stat. §§ 466.02, .03, subd. 6 (1998).  While almost all governmental acts require some discretion, statutory immunity only protects actions involving the balancing of policy objectives such as social, economic, and political factors.  Christensen v. Mower County, 587 N.W.2d 305, 307 (Minn. App. 1998).

The first step in analyzing a claim of immunity is to ascertain exactly what governmental conduct is being challenged.  Watson by Hanson v. Metropolitan Transit Comm’n, 553 N.W.2d 406, 411 (Minn. 1996); Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994).  Here, Schultz challenges the township’s failure to enforce the ditch ordinance by itself removing the vegetation overgrowth and charging the property owner, Hovick in this case, for the removal.  The township responds that the ordinance authorizes, but does not require, enforcement of the challenged provisions.  The argument of the township is persuasive.

The township’s ordinance clearly places upon each property owner the responsibility to remove vegetation overgrowth from “Township road shoulders and ditches abutting his or her property on or before July 15 of each year and again during the month of September of each year.”  Lake Belt Township, Minn., Nuisance Ordinance § 1.04(B) (1982).  And, as argued by the township, the ordinance’s enforcement provisions authorize the township clerk to notify the property owner to remove the vegetation overgrowth, but do not mandate that notification.  See Lake Belt Township, Minn., Nuisance Ordinance § 1.05(A) (1982) (authorizing written notice of notice of removal by registered mail).  Similarly, the township clerk has discretion in deciding whether to enforce the charge-back provision in the event the property owner fails to remove the vegetation within ten days of the notice to remove.  See Lake Belt Township, Minn., Nuisance Ordinance § 1.05(B) (1982).

The township contends that Riedel v. Goodwin, 574 N.W.2d 753 (Minn. App. 1998), review denied (Minn. Apr. 30, 1998), is controlling.  In Riedel, this court held that a county and township were entitled to statutory immunity based on a roadside vegetation policy requiring that low-volume roads be cut after high-volume roads, and only if time permitted; township laws did not require mowing.  Id. at 755.  The court held that because the township and county each balanced limited economic resources with safety considerations in arriving at roadside mowing practices, their decisions not to cut site triangles were entitled to statutory immunity.  Id. at 756-57.

The district court in this case rejected the township’s reliance on Riedel, noting instead that the ordinance in Riedel contained a provision differentiating between high- and low-volume roads, and, therefore, did not involve an operational failure or breakdown of day-to-day management.  While recognizing that the ordinance in this case places primary responsibility for maintenance of the road right-of-way on the landowner, the district court determined that failure of the township to enforce the charge-back provision of the ordinance was an operational level decision not involving discretion, and as such was not entitled to immunity.  Our review of the record, however, convinces us that the decision of the township not to enforce the charge-back provision was a discretionary one, and involved a balancing of social, economic, safety, and legal considerations that entitle that decision to immunity.

The record shows that the township was financially unable to enforce the charge-back provision of the ordinance.  Township supervisor Markwardt explained that the township did not charge property owners the cost of hiring a party to remove vegetation because the process legally requires:  (1) one oral and two written notices; (2) county authorization; and (3) a delay of one year for assessment.  Asked whether enforcing the ordinance was too big of a hassle, Markwardt testified it was “not a hassle,” but difficult and problematic considering the township’s limited resources.  Markwardt’s undisputed testimony is the only evidence presented on why the township decided not to enforce the ordinance or implement the charge-back provision.  It is sufficient, however, to demonstrate that the township is entitled to statutory immunity.[1]

Schultz also contends the township amended the ordinance in 1989 to add a mandatory charge-back enforcement provision.  But the record does not contain a copy of an amended 1989 ordinance.  In addition, there is no proof the township amended the language in 1989 to make enforcement of the ditch ordinance mandatory.  While Schultz argues that this court can infer from annual letters and notices that enforcement of the ordinance became mandatory after 1989, we are reluctant to do so without proof of the alleged changes.  Without evidence of the 1989 amended language, we cannot conclude that the township’s annual letters and notices were more than strongly worded warnings to property owners to clean up township road right-of-ways.

            Although the ordinance specifically describes enforcement procedures, and there is language authorizing the township to enforce the ordinance, there is no language mandating enforcement.  Instead, the ordinance leaves room for discretion in deciding whether to enforce its provisions requiring the removal of vegetation overgrowth.  Because the township’s decision not to enforce the ordinance was based on the balancing of social, economic, safety, and legal considerations, it is entitled to statutory immunity.



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  We note that in an unpublished case, this court recently held that a city’s decision not to trim certain trees was entitled to statutory immunity because the city exercised discretion and balanced numerous policy considerations in determining which trees dangerously impeded traffic visibility.  Soltis-McNeal v. Erickson, No. C2-99-854 (Minn. App. Dec. 14, 1999).