State of Minnesota by Lorie Afremov and Michael R. Afremov v. Anne L. Remes, Martha W. Gabbert

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2037

State of Minnesota by Lorie Afremov and Michael R. Afremov,
Appellants,

vs.

Anne L. Remes, et al.,
Respondents,
Martha W. Gabbert, et al.,
Respondents

Filed August 10, 2015
Affirmed
Stauber, Judge

Hennepin County District Court
File No. 27-CV-13-20253

Jack Y. Perry, Kari S. Berman, Maren F. Grier, Briggs and Morgan, P.A., Minneapolis,
Minnesota (for appellants)

Ryan A. Olson, Daniel R. Haller, Felhaber Larson, Minneapolis, Minnesota (for
respondents Anne Remes, et al.)

D. Charles MacDonald, Peter J. Berrie, David A. Snieg, Faegre Baker Daniels, L.L.C.,
Minneapolis, Minnesota (for respondents Martha Gabbert, et al.)

Considered and decided by Bjorkman, Presiding Judge; Schellhas, Judge; and

Stauber, Judge.
 UNPUBLISHED OPINION

STAUBER, Judge

On appeal from the district court’s summary judgment dismissal of appellants’

Minnesota Environmental Rights Act (MERA) claim arising from respondents’ lake-

access agreement, appellants argue that the district court erred by dismissing their MERA

action because (1) respondents’ lake-access agreement violates the Wayzata City Code’s

prohibition against the granting of private easements for lakeshore access and (2) the

Wayzata City Code’s prohibition against the granting of such easements constitutes an

environmental quality standard, limitation, or rule under MERA. Respondents filed a

notice of related appeal challenging the district court’s conclusion that appellants’ MERA

claim was not barred by the statute of limitations. Because we conclude that appellants’

MERA claim is barred by the statute of limitations and fails on the merits, we affirm the

dismissal of appellants’ MERA action.

FACTS

Appellants Michael and Lorie Afremov own Lot 3, Block 1 of the Bell Fauth

Addition, which is riparian property on Lake Minnetonka. Respondents John and Martha

Gabbert own Lot 3, Block 1 of the Gabbert Bell Addition, which is also riparian property

and is adjacent to the Afremovs’ property. Respondents Peter and Anne Remes own Lot

1, Block 1 of the Gabbert Bell Addition, which is near the Gabberts’ and the Afremovs’

properties, but is non-riparian All of the properties are located in Wayzata.

On August 19, 2005, the previous owners of the Remeses’ property entered into a

formal lake-access agreement with the Gabberts. Under the terms of the agreement, the

2
owner of the benefited lot (the Remeses’ lot) would have the right to access Lake

Minnetonka from the Gabberts’ riparian property, including the right to install and use a

covered boat dock upon the shores of the lake. The lake-access agreement was registered

with the Hennepin County Registrar of Titles on August 22, 2005.

On the same day that the lake-access agreement was executed, a warranty deed

was executed and delivered to the Remeses conveying title to the benefited lot. The

warranty deed was recorded on October 3, 2005, and the certificate of title was issued

that same day.

In January 2006, the Afremovs purchased their property. The northeastern-most

boundary of the Afremovs’ property is immediately adjacent to the Remeses’ lake-access

easement, which is ten feet wide and runs along the southwestern-most boundary of the

Gabberts’ property. In the spring of 2006, the Remeses installed a covered boat dock on

the Gabberts’ property, as permitted by the lake-access agreement. A year later, they

installed a boardwalk within the lake-access easement, which traverses an area of alleged

wetland located on the Gabberts’ property and leads to the Remeses’ dock.

In November 2013, the Afremovs commenced this MERA action against the

Gabberts and Remeses (collectively “respondents”) alleging inter alia that the lake-access

agreement violates the City of Wayzata’s ban on lake-access easements as set forth in

Wayzata, Minn., City Code (WCC) § 805.33(E) (2014). The Afremovs claim that

because this section is an environmental-quality standard, limitation, or rule, they are

entitled to declaratory relief under MERA.

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 The Afremovs moved for summary judgment on their claims. In response,

respondents sought summary judgment in their favor under Minn. R. Civ. P. 56.03. The

district court denied the Afremovs’ motion for summary judgment and granted in part

respondents’ motion for summary judgment. The district court rejected respondents’

argument that appellants’ MERA claim was barred by the statute of limitations. But the

district court concluded that (1) the lake-access agreement does not violate WCC

§ 805.33(E) and (2) WCC § 805.33(E) is not an environmental-quality standard,

limitation, or rule under MERA. The Afremovs subsequently filed this appeal, and

respondents filed a notice of related appeal challenging the district court’s conclusion that

the Afremovs’ MERA claim was not barred by the statute of limitations.

DECISION

A motion for summary judgment shall be granted “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that either party is entitled

to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. When considering a

summary-judgment appeal, we review de novo whether there is a genuine issue of

material fact and whether the district court erred in applying the law. STAR Ctrs., Inc. v.

Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). An award of summary

judgment will be affirmed if it can be sustained on any ground. Winkler v. Magnuson,

539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).

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 I.

The Minnesota legislature enacted MERA to provide persons in the state with a

“civil remedy to protect air, water, land and other natural resources located within the

state from pollution, impairment, or destruction.” Minn. Stat. § 116B.01 (2014). The

civil remedy authorized by the legislature is an action “for declaratory or equitable relief

in the name of the state of Minnesota against any person, for the protection of air, water,

land, or other natural resources located within the state, whether publicly or privately

owned, from pollution, impairment, or destruction.” Minn. Stat. § 116B.03, subd. 1

(2014).

To maintain an action under MERA, a plaintiff must make “a prima facia showing

that the conduct of the defendant has, or is likely to cause the pollution, impairment, or

destruction of the air, water, land or other natural resources located within the state.”

Minn. Stat. § 116B.04 (2014); State by Archabal v. County of Hennepin, 495 N.W.2d

416, 421 (Minn. 1993). “Pollution, impairment, or destruction” is defined as (1) “any

conduct by any person which violates, or is likely to violate, any environmental quality

standard, limitation, rule, order, license, stipulation agreement, or permit of the state or

any instrumentality, agency, or political subdivision thereof which was issued prior to the

date the alleged violation occurred or (2) “any conduct which materially adversely affects

or is likely to materially adversely affect the environment.” Minn. Stat. § 116B.02, subd.

5 (2014).

Here, it is undisputed that the Afremovs invoked only the first prong of section

116B.02, subdivision 5. They argue that the environmental quality standard violated by

5
respondents is the Wayzata City Code’s prohibition of the platting granting of private

easements for private lakeshore access. See WCC § 805.33(E). In other words, the

Afremovs argue that they are entitled to declaratory relief under MERA because

(1) respondents’ easement agreement violated WCC § 805.33(E)’s prohibition of the

platting granting of private easements and (2) the violated ordinance, section 805.33(E),

is an environmental quality standard, limitation, or rule.

A. Did respondents violate WCC § 805.33(E)?

The rules of statutory construction apply to municipal ordinances and resolutions.

Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d 523, 535 (Minn. 2010).

Statutory interpretation is a question of law subject to de novo review. Caldas v.

Affordable Granite & Stone, Inc., 820 N.W.2d 826, 836 (Minn. 2012).

The object of statutory interpretation is to ascertain and effectuate the intention of

the legislative body. Minn. Stat. § 645.16 (2014). When interpreting an ordinance, we

first look to whether the language, on its face, is clear or ambiguous. Motokazie! Inc. v.

Rice Cnty., 824 N.W.2d 341, 344 (Minn. App. 2012). Words and phrases are construed

according to their common and approved usage. Minn. Stat. § 645.08(1) (2014). If the

language of the ordinance is clear and unambiguous, statutory construction is “neither

necessary nor permitted” and we must apply the ordinance’s plain meaning. Am. Tower,

L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn. 2001). In matters of statutory

construction, a statute is only ambiguous when the language is subject to more than one

reasonable interpretation. Motokazie! Inc., 824 N.W.2d at 344.

6
 The ordinance at issue, WCC § 805.33(E), provides: “The platting granting of

private easements across private property or property lines for the purpose of providing

lakeshore access is prohibited.” The district court concluded that the term “platting

granting” is unambiguous because “the plain language” of section 805.33(E) “restricts the

granting of private lake access easements by plat.” The district court determined that

because the disputed lake-access agreement was created by private agreement, and not by

plat, it does not fall within the prohibition of WCC § 805.33(E).

The Afremovs argue that the district court’s determination is erroneous because

the district court effectively re-wrote the ordinance by inserting the word “by” between

“platting” and “granting” to reach its interpretation that the ordinance only prohibits the

granting of lake-access easements by plat. The Afremovs argue that a proper

interpretation of the term “platting granting,” and the ordinance as a whole, is to prohibit

the granting of all private lakeshore easements. The Afremovs contend that because

WCC § 805.33(E) prohibits the granting of all private lakeshore agreements,

respondents’ lake-access agreement is in violation of the Wayzata City Code.

The Afremovs’ argument is without merit. Although somewhat awkwardly

phrased, the clear and unambiguous language of the ordinance states that the “platting

granting of private easements across private property or property lines for the purpose of

providing lakeshore access is prohibited.” WCC § 805.33(E). As the district court

determined, the plain language of this provision prohibits the granting of lakeshore

easements by plat. And despite the Afremovs’ claim to the contrary, this conclusion does

not require the word “by” to be read into the ordinance between the words “platting” and

7
“granting.” Rather, the insertion of the word “by” into the ordinance simply rephrases

the prohibition of the ordinance: the “platting granting” of private easements over private

property for the purpose of providing lakeshore access.

Moreover, in order to reach their desired conclusion, the Afremovs must insert the

word “and” into the language of the prohibition (“platting and granting”), a practice that

is clearly forbidden. See Premier Bank v. Becker Dev., LLC, 785 N.W.2d 753, 760

(Minn. 2010) (stating that courts may not add words to a statute “that are purposely

omitted or inadvertently overlooked” by the legislature). This is exemplified in their

brief where the Afremovs quote WCC § 805.33(E) to support their argument that “[a]nd

the more, and indeed only reasonable interpretation of City Code § 805.33(E)’s

‘prohibit[ion]’ on ‘private easements . . . for . . . private lakeshore access’ is that it

‘prohibt[s]’ ‘the platting [and] granting’ of such ‘easements.’” (Emphasis added.) It is

only by inserting “and” between “platting” and “granting” that the Afremovs’ desired

interpretation of the ordinance can be reached: to prohibit all easements over private

property for the purpose of providing lakeshore access. Without the word “and,” the

ordinance simply prohibits the “platting granting” of private easements, not the platting

and granting of all easements.

Further, we must construe the ordinance so “as to harmonize and give effect to all

its parts, and where possible, no word . . . will be held superfluous, void, or

insignificant.” Jackson v. Mortg. Elec. Registration Sys., Inc., 770 N.W.2d 487, 496

(Minn. 2009) (quotations omitted). If we were to adopt appellants’ argument, the word

“platting” in WCC § 805.33(E) would be rendered irrelevant.

8
 Finally, the district court’s interpretation of WCC § 805.33(E) is also consistent

with the Minnesota Statutes. Minn. Stat. § 505.021, subd. 7 (2014) provides that

“[e]asements created on [a] plat shall be limited to public utility and/or drainage

easements.” (Emphasis added.) And WCC § 805.21 states that plats “shall be prepared

in accordance with provisions of Minnesota State Statutes.” By prohibiting the granting

by plat, or “platting granting” of lake-access easements across private property for the

purposes of providing lakeshore access, section 805.33(E) simply ensures that the City of

Wayzata’s regulations with respect to plat development are consistent with the Minnesota

Statutes. See Minn. Stat. § 462.358, subd. 3a (2014) (stating that a municipality’s

platting regulations “shall not conflict with the provisions of chapter 505 but may address

subjects similar and additional to those in that chapter”).

In sum, the plain language of WCC § 805.33(E) prohibits the “platting granting”

of private easements across private property for the purpose of providing lakeshore

access. It does not prohibit the granting of private easements by agreement. Because the

lake-access easement at issue here was granted by agreement and not by plat, it does not

violate WCC § 805.33(E). Therefore, the Afremovs’ MERA claim fails, and the district

court did not err by granting summary judgment in favor of respondents.

B. Is WCC § 805.33(E) an environmental quality standard?

Even if we were to conclude that respondents’ lake-access easement violates WCC

§ 805.33(E), the Afremovs are entitled to relief under MERA only if they can

demonstrate that the violated ordinance is an environmental-quality standard, limitation,

or rule. See Minn. Stat. § 116B.02, subd. 5; see also Archabal, 495 N.W.2d at 421.

9
MERA, however, does not define what constitutes an environmental-quality standard,

limitation, or rule. And because there is a lack of authority pertaining to the first prong

under MERA, the district court looked to caselaw analyzing the second prong under

MERA for guidance.

To establish a claim under MERA’s second prong, the challenged conduct must be

likely to have a “materially” adverse effect on the environment. Minn. Stat. § 116B.02,

subd. 5. But the supreme court recognized that almost every human activity adversely

impacts a natural resource, and MERA cannot be construed “‘as prohibiting virtually all

human enterprise.’” State by Schaller v. Cnty. of Blue Earth, 563 N.W.2d 260, 265

(Minn. 1997) (quoting State ex rel. Wacouta Twp. v. Brunkow Hardwood Corp., 510

N.W.2d 27, 30 (Minn. App. 1993)). Consequently, the supreme court adopted five

factors to be considered when determining whether conduct materially adversely affects

the environment:

(1) The quality and severity of any adverse effects of the
proposed action on the natural resources affected;

(2) Whether the natural resources affected are rare,
unique, endangered, or have historical significance;

(3) Whether the proposed action will have long-term
adverse effects on natural resources, including whether the
affected resources are easily replaceable (for example, by
replanting trees or restocking fish);

(4) Whether the proposed action will have significant
consequential effects on other natural resources (for example,
whether wildlife will be lost if its habitat is impaired or
destroyed);

10
 (5) Whether the affected natural resources are
significantly increasing or decreasing in number, considering
the direct and consequential impact on the proposed action.

Id. at 267.

The district court found the caselaw analyzing the second prong under MERA to

be “instructive.” The district court then stated that “[j]ust as the appellate courts have

construed the second prong of MERA to be confined to cases with serious environmental

implications, they would be likely to construe the first prong of MERA to be confined to

statutes, rules, or codes whose embodiment of environmental quality standards is their

primary function, and not an incidental or tangential effect.” Applying this reasoning to

the issue before it, the district court concluded that WCC § 805.33(E) does not constitute

an environmental-quality standard, rule, or code under MERA because section 805.33(E)

“does not prohibit any specific activity to protect Lake Minnetonka from pollution,

impairment, or destruction. It does not limit the number of boats stored or used on the

lake, nor does it limit the number of docks on the lake. . . . [It] simply prohibits the

‘platting granting’ of lake access easements.”

The Afremovs argue that the district court erroneously applied the “materiality”

standard used in analyzing the second prong under section 116B.02, subdivision 5,

because, under the plain language of the statute, “[n]either an ‘environmental quality

standard, limitation [or] rule,’ including a violation thereof, needs to be ‘material’ to be

actionable under the first part of MERA’s two-part definition of ‘pollution, impairment,

or destruction.’” Instead, the Afremovs argue for a broader interpretation of MERA,

asserting that an “environmental quality standard, limitation, or rule” under MERA’s first

11
prong is a standard, limitation or rule that is “designed for, or has as one of its underlying

purposes, the protection and preservation of Minnesota’s natural resources.”1

To support their assertion, the Afremovs refer to Minn. Stat. § 116B.01, which

states that MERA was enacted to protect Minnesota’s natural resources. The Afremovs

claim that because section 116B.01 sets forth an “exceedingly broad environmental

protection purpose” the first prong of section 116B.02, subdivision 5 should be construed

to reflect that broad purpose. And the Afremovs attempt to bolster their position by

referring to several statutes enacted in other states that allow its citizens to bring an action

for violations of environmental-protection standards.

The Afremovs’ arguments are unpersuasive. A review of the district court’s order

reflects that it did not specifically apply the materiality standard to the issue before it; the

court never applied the five factors set forth in Schaller, nor did it read into the first prong

a requirement that in order for MERA to apply, the environmental quality standard,

limitation, or rule be a “material” environmental-quality standard, limitation, or rule. But

the district court did find a standard akin to the “materiality” standard to be applicable,

and concluded that, like the construction of the second prong under MERA, the first

prong should be construed to focus on statutes, rules, or codes that are aimed at

1
The Afremovs also assert that a standard, limitation, or rule is an “environmental quality
standard, limitation, or rule” if it was adopted or issued by a governmental
instrumentality or agency, such as the Minnesota Pollution Control Agency or the
Minnesota Department of Natural Resources, “which is charged by the State of
Minnesota with the protection and preservation of the environment and Minnesota’s
natural resources.” But the Afremovs make no claim that the code at issue here, WCC
§ 805.33(E), was adopted by a governmental agency charged with the protection and
preservation of Minnesota’s natural resources.

12
protecting environmental-quality standards instead of statutes, rules or codes that may

have some indirect effect on environmental standards.

Because there is no Minnesota caselaw establishing the requirements of an

“environmental quality standard, limitation, or rule,” under the first prong of section

116B.02, subdivision 5, we agree that it is logical to refer to caselaw interpreting the

second prong of that section in order to maintain consistency in the interpretation of

MERA. Caselaw analyzing the second prong recognized that MERA “requires

something more than merely an adverse environmental impact to trigger its protection.”

Schaller, 563 N.W.2d at 265. And this narrower interpretation of MERA is appropriate

because, as the supreme court has recognized in interpreting the second prong, “almost

every human activity has some kind of adverse impact on a natural resource.” Id. at 266.

Indeed, under the Afremovs’ “broader” interpretation of an environmental-quality

standard, limitation, or rule, a claim could be brought under MERA for practically any

violation of a standard, limitation, or rule because almost any standard, limitation, or rule

could be construed as having some tangential environmental implications. For example,

as the district court found, under the Afremovs’ interpretation, “a simple zoning

violation, such as a single-family residential subdivision with three-foot-wide sidewalks

(instead of the requisite four-feet width), in apparent violation of Wayzata City Code

§ 805.30, could give rise to a MERA suit.” We conclude that such a result is absurd and

cannot be the rule. See Minn. Stat. § 645.17(1) (2014) (“[T]he legislature does not intend

a result that is absurd, impossible of execution, or unreasonable.”).

13
 Moreover, the statutes cited by the Afremovs from other states actually support a

position that in order for a claim to be actionable under MERA, the primary purpose of

the standard, limitation, or rule that is alleged to be violated must be environmental in

nature. For example, Mass. Gen. Laws ch. 214, § 7A (2014) allows citizens to bring an

action for declaratory relief if “damage caused or about to be caused by such person

constitutes a violation of a statute, ordinance, by-law or regulation the major purpose of

which is to prevent or minimize damage to the environment.” (Emphasis added.)

Similarly, N.J. Stat. § 2A:35-4 (2013) provides that any person may bring an action for

injunctive or equitable relief “against any other person alleged to be in violation of any

statute, regulation, or ordinance which is designed to prevent or minimize pollution,

impairment, or destruction of the environment.” (Emphasis added.) These statutes do

not merely have some ancillary or tangential effect on environmental protections. Rather,

they require that, in order to bring an action for environmental violations, the statute or

rule that is alleged to be violated must be “designed to” or have a “primary purpose of”

protecting the environment. Therefore, consistent with the statutes from other states that

are similar to MERA, as well as the caselaw analyzing the second prong of section

116B.02, subdivision 5, we conclude that under the first prong of section 116B.02,

subdivision 5, an “environmental quality standard, limitation, or rule” is a standard,

limitation, or rule with a primary purpose of protecting Minnesota’s natural resources.

The Afremovs argue further that WCC § 805.33(E)’s prohibition on private

easements for private lakeshore access was “adopted for one purpose,” “the ‘protect[ion]’

and ‘enhance[ment]’ of Lake Minnetonka” “against lake overcrowding and pollution.”

14
(alterations in original). Thus, the Afremovs argue that regardless of whether an

“environmental quality standard, limitation, or rule” under MERA is construed to mean a

standard, limitation, or rule that has a primary purpose of protecting and preserving the

environment “the district court’s holding must be reversed.”

We disagree. There is nothing in the language of section 805.33(E) indicating that

its purpose is to protect and enhance Lake Minnetonka. WCC § 805.33(E) does not

prohibit any specific activity to protect Lake Minnetonka from pollution, impairment, or

destruction. It simply prohibits the “platting granting of private easements across private

property . . . for the purpose of providing private lakeshore access.” WCC § 805.33(E).

In fact, because section 805.33(E) limits only the “platting granting” of private

easements, and not the granting of easements by agreement, the section does not limit the

number of boats stored or used on the lake, nor does it limit the number of docks on the

lake. And any limitation that might result from the prohibition against the platting

granting of private easements would be a tangential effect of section 805.33(E).

Finally, the Afremovs point to WCC § 805.02(B)(5) (2014), which states that one

of the goals of chapter 805 of the Wayzata City Code is to “[r]elate

development/redevelopment to the natural characteristics of the land to enhance the

development through the preservation of attractive natural amenities.” The Afremovs

argue that this goal is consistent with a conclusion that WCC § 805.33(E) is an

environmental standard, limitation, or rule.

A review of the Wayzata City Code reveals that the purpose of Chapter 805,

entitled “Subdivision Regulations” is:

15
 (1) To encourage well planned, efficient and attractive
subdivision by establishing adequate and impartial standards
for design construction.

(2) To provide for the health and safety of residents, by
requiring properly designed streets and adequate sewer and
water service.

(3) To place the cost of improvements against those
benefiting from their construction.

(4) To secure the rights of the public with respect to public
lands and waters.

(5) To set minimum requirements to protect the public
health, safety, comfort, convenience, and general welfare.

WCC § 805.02(A). (2014). None of these stated purposes is environmental in nature.

Moreover, section 805.33(E) is located in the subdivision of Chapter 805 entitled “Design

Standards.” The rules and regulations encompassed in the “Design Standards”

subdivision focus on the uniformity and efficiency of subdivisions. Although one of the

stated goals of chapter 805 is environmental in nature, this does not make the primary

focus of every section in chapter 805 environmental in nature such that it constitutes an

environmental standard, limitation, or rule. As discussed above, such a conclusion would

lead to an absurd result because a violation of every section under chapter 805 of the

Wayzata City Code would then be a basis for bringing a MERA claim. Accordingly,

WCC § 805.33(E) is not an environmental-quality standard, limitation, or rule for

purposes of Minn. Stat. § 116B.02, subd. 5, and the district court did not err by

dismissing the Afremovs’ MERA action.

16
 II.

Respondents filed a related appeal challenging the district court’s determination

that the Afremovs’ MERA claim is not barred under the applicable statute of limitations,

which the parties agree is six years under Minn. Stat. § 541.05, subd. 1(2) (2014). The

statute of limitations begins to run on a claim when “the cause of action accrues.” Minn.

Stat. § 541.01 (2014). “A cause of action accrues when the elements of the action have

occurred, such that the cause of action could be brought and would survive a motion to

dismiss for failure to state a claim.” Park Nicollet Clinic v. Hamann, 808 N.W.2d 828,

832 (Minn. 2011). We review “de novo the construction and application of a statute of

limitations, including the law governing the accrual of a cause of action.” Sipe v. STS

Mfg., Inc., 834 N.W.2d 683, 686 (Minn. 2013) (quotation omitted).

Courts occasionally recognize that a continuing wrong may suspend a limitation

period. Radloff v. First Am. Nat’l Bank, 455 N.W.2d 490, 492 (Minn. App. 1990), review

denied (Minn. July 13, 1990); see, e.g., Sigurdson v. Isanti Cty., 448 N.W.2d 62, 67-68

(Minn. 1989) (recognizing the doctrine in a discrimination claim). To suspend the

limitation period, the alleged tortious conduct must be “continuous in nature.” Radloff,

455 N.W.2d at 492-93. But where such acts are “separate, unrelated acts, individually

motivated,” they will not be considered “continuous in nature.” Id. Acts are considered

separate when each “had a beginning and an end, each was separated from the next by

some period of relative quiescence . . . .” Id. at 493 (quotation omitted).

The district court determined that the continuing-wrong doctrine was applicable

because “[e]ach use of the easement does not constitute a separate, unrelated act; rather it

17
is the continued use that would result in an ongoing series of injuries, provided the

requirements of MERA are satisfied.” Respondents argue that this decision is erroneous

because the focus must be on “what the relevant statute (or in this case, ordinance)

actually prohibits.” Respondents contend that because the allegedly prohibited conduct is

the granting of an easement under WCC § 805.33(E), and because that conduct occurred

at the time the easement was granted, the district court erred by concluding that the

continuing-wrong doctrine was applicable.

We agree with respondents. In Citizens for a Safe Grant v. Lone Oak Sportsmen’s

Club, Inc., 624 N.W.2d 796, 803 (Minn. App. 2001), this court concluded that the

continuing-wrong doctrine was applicable because the gun club’s conduct was “not

limited to a single transgression, but must be viewed as an ongoing series of injuries to

respondents’ properties.” Similarly, in Radloff, this court stated that to suspend the

limitations period, the alleged tortious conduct must be “continuous in nature.” 455

N.W.2d at 492-93.

Here, the Afremovs do not claim that the ordinance prohibits the use and

maintenance of private easements. Indeed, WCC § 805.33(E) does not prohibit such

conduct. Instead, the alleged wrongful conduct is that respondents violated WCC

§ 805.33(E) by granting the private easement. Unlike Citizens for a Safe Grant, in which

a new offense arose each time the shooting range was used without the provision of

safety features or sound abatement, the alleged wrongful conduct here occurred only

once, in August 2005, when the lake-access easement was granted and registered.

Therefore, the continuing-wrong doctrine is not applicable.

18
 Finally, the Afremovs argue that because the lake-access agreement violates WCC

§ 805.33(E), the agreement is void as a matter of law and, therefore, respondents’ statute-

of-limitations defense is moot. But as respondents point out, the Afremovs failed to raise

this issue below, and the district court never considered or decided the issue. It is well

settled that a “reviewing court must generally consider only those issues that the record

shows were presented and considered by the [district] court in deciding the matter before

it.” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted). Thus,

because the issue was not raised below and not considered by the district court, the issue

has been waived.

Because the continuing-wrong doctrine does not apply, the Afremovs’ action must

have been brought within six years from the time the cause of action accrued to survive

Minn. Stat. 541.05. The record reflects that the easement agreement was granted and

registered in August 2005. The record also reflects that the Afremovs did not file their

complaint until November 2013, more than six years after the “granting” of the easement

agreement. Therefore, the district court erred by concluding that the Afremovs’ claims

were not barred by the statute of limitations.

Affirmed.

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