Steven Schussler, et al., Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0919

Steven Schussler, et al.,
Appellants,

vs.

City of the Village of Minnetonka Beach,
Respondent,

Lake Minnetonka Conservation District, et al.,
Respondents.

Filed February 22, 2021
Affirmed in part, reversed in part, and remanded
Rodenberg, Judge*

Hennepin County District Court
File No. 27-CV-20-2647

James H. Gilbert, Adam L. Sienkowski, Jo dy Nahlovsky, James H. Gilbert Law Group,
P.L.L.C., Eden Prairie, Minnesota (for appellants)

Paul D. Reuvers, Jason J. Kuboushek, Iverson Reuvers Condon, Bloomington, Minnesota
(for respondent City of the Village of Minnetonka Beach)

Justin L. Templin, Hoff Barry, P.A., Eden Prairie, Minnesota (for respondents Lake
Minnetonka Conservation District, et al.)

Considered and decided by Slieter, Pres iding Judge; Gaïtas, Judge; and Rodenberg,
Judge.
*

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

2
NONPRECEDENTIAL OPINION
RODENBERG, Judge
When respondent, City of the Village of Minnetonka Beach (the city), applied for a
municipal multiple use dock permit from resp ondent Lake Minnet onka Conservation
District (LMCD), appellants Steven Schussl er and Sunhi Ryan-Schussler (appellants)
objected. At issue was Dock #10, one of 24 docks on Lake Minnetonka managed by the
city. Dock #10 is situated at the end of a de dicated fire lane that runs along and over the
southernmost 30 feet of appella nts’ property. Appellants sued, asserting that Dock #10
interferes with their riparian ri ghts as fee owners of the fire lane, is not legal under the
relevant LMCD ordinance, constitutes a nuisance, and that their rights as property owners
are otherwise violated by the existence and placement of Dock #10.
After all parties moved for summary judgm ent, the district court concluded that
appellants own the fire lane in fee and that the public, via the city as trustee, has an
easement over it for use as an “avenue.” But the district court declined to adopt appellants’
remaining contentions that they hold a superior interest in the fire lane and that Dock #10
is not legal.
We determine that the district court did not err in granting in part and denying in
part appellants’ motion for summary judgmen t on the issues of the parties’ property
interests in the fire lane and the LMCD Code of Ordinances consent requirement. And we
discern no error in the district court’s dete rminations that the city has riparian rights
consequent to the city’s fire lane that ends at the water’s edge, that the city may construct
and maintain a dock at the water’s edge for ac cess to the lake and rent boat storage units

3
on the dock to members of the public, that appellants cannot defeat the city’s riparian rights
by declining to consent to Dock #10, and th at Dock #10 lawfully existed in 1984.
Therefore, we affirm those portions of the summary judgment. Because we conclude that
genuine issues of material fact remain concerning whether the city’s use of Dock #10 is a
reasonable exercise of the city’s riparian rights and whether the changes to the legal
nonconforming dock that existed in 1984 render it no longer a permitted nonconforming
use, we reverse in part, and remand.
FACTS
Appellants own fee title to a homestead in Minnetonka Beac h. The property
includes approximately 110 feet of shoreline on Lake Minnetonka with attendant riparian
rights. A 30-foot-wide “fire lane” over appellants’ lot was dedicated to the city in an 1889
supplemental plat. The 1889 pl at states that “The Avenues, Streets, Alleys and Parks as
shown on the annexed plat are hereby dedicate d to the public for the uses contemplated
therein.”
Dock #10, a municipal dock owned and licen sed by the city, has been situated at the
lake’s edge since at least 1977. At that time, six boat storage units were installed on Dock
#10 and the dock was 90 feet long. Since 1 977, the number of bo at storage units has
decreased to four, the length of the dock increased to 158 feet, and the configuration of the
dock has changed as neighboring land owners provided or rescinded their consent for the
dock to encroach on their authorized dock use areas (ADUA).1

1 An authorized dock use area is an area extending into the lake which can be used for
mooring or docking boats. LM CD Code of Ordinances (L MCD Code) § 1-3.01, subd. 8

4
The diagram below shows the configuration of Dock #10 in relation to appellants’
property as of 2019:

Appellants’ property narrows as it approaches the lake. Be cause of this shape, the
extended lot lines are not parallel, but instea d meet and cross one another some distance
into Lake Minnetonka. The fire lane, on the other hand, has parallel lot lines. In 2019,
Dock #10 had four boat storage units, extended 158 feet into the lake, and was configured
so that it was parallel with the extended lot lines of the fire lane. But because appellants’
property and corresponding ADUA narrows as it extends into the lake, Dock #10, although

(2019). The ADUA is bounded on one end by the shoreline. LMCD Code § 2-3.03, subd.
2(a) (2019). The sides of the ADUA are th e extended lot lines of the property and are
parallel into the lake. Id.

5
still within its own ADUA, extended into the sightlines of appellants’ homestead.
Appellants also claim that their ability to use the lake in front of their home is impaired by
the dock’s existence because, am ong other things, the lake is quite shallow well out into
the lake in that area.
Since at least 1978, Dock #10 has been subject to a permitting system established
by the LMCD. The LMCD is the regulatory body for Lake Minnetonka. LMCD Code
§ 1 1.01(d) (2019); Minn. Stat. § 103B.611, subd. 3 (2018). Under the LMCD’s permitting
scheme, the city must apply annually for a municipal multiple dock use license in order to
maintain docks on the lake.
2 LMCD Code §§ 4-1.03; 4-2. 05, subd. 4 (2019 ). Then, the
city may lease individual boat storage units on those docks to city residents and members
of the public for use. Minnetonka Beach, Minn. City Code (MBC) § 906(1)(B), (2)(A)
(2008). Like the city, lease holders must reapply annually. Id., § 906(2)(C), (F); (5) (2008).
In 2019, appellants objected to the city’s application for a municipal multiple dock
license for 2020. Appellants believed their rights to the fire lane were superior to those of
the city, and that the city did not have the authority build or maintain Dock #10. Despite
appellants’ objections, the city submitted the application to the LM CD. In response,
appellants sued.
Appellants made a number of claims in their complaint concerning their riparian
rights as fee owners of the fire lane and the validity of Dock #10. Appellants also moved

2 A municipal multiple dock is any dock constr ucted for the storage of five or more
watercraft that is owned, operated, or licen sed by a municipality, county, or state agency.
LMCD Code § 1-3.01, subds. 52, 55 (2019). Because the parties do not raise any issue as
to Dock #10 only holding four boat storage units, we do not address the question here.

6
the district court for a temporary restraining order to bar the LMCD from granting the city’s
license. The district court denied appellants’ motion, but instructed the city not to issue
permits for Dock #10 until the proceedings in district court were completed.
All parties then moved the district cour t for summary judgment. Appellants sought
summary judgment declaring that: (1) appellants own fee title to the entire fire lane; (2) the
fire lane was dedicated to the public for use as an avenue by the 1889 plat; (3) the public
has an easement over the fire lane for use as an avenue; (4) the city’s permitting and
licensing of the use of Dock #10 violates th e 1889 plat and Minnesota law; (5) the city
must void all permits related to Dock #10; (6) the city must no longer issue any permits
related to the fire lane or Dock #10; (7 ) the 2020 municipal dock license application
violates the LMCD Code and is void as a ma tter of law because it is unsupported by the
consent of the fee owners of the fire lane; an d (8) no dock can be placed at the end of the
fire lane without appellants’ consent as fee owners. Appellants also moved for a temporary
injunction. The city and LMCD argued in th eir motions for summary judgment that the
use of the fire lane was consistent with the 1889 plat, was consistent with the relevant
LMCD ordinances, was a preexisting nonconf orming use, and did not interfere with
appellants’ riparian or other rights.
After a hearing on the motions, the district court granted appellants’ motion in part
and denied it in part. The dist rict court declared that appellants are the fee owners of the
fire lane, that the fire lane is statutorily dedicated for public use as an avenue by the 1889
plat, and that the general public has an easemen t over the fire lane. But the remainder of
appellants’ motion was denied. The district court also denied as moot appellants’ motion

7
for a temporary injunction. Except for the declarations the district court made in favor of
appellants, and the denial of LMCD’s claim that appellants’ complaint was barred, all other
portions of the respondents’ motions for summary judgment were granted.
This appeal followed.
DECISION
Appellants raise five arguments before this court. First, they assert that the fire lane,
as a publicly dedicated avenue, cannot be used for placement of a “private” dock. Second,
appellants assert that, even if maintaining Dock #10 is a valid exercise of the city’s riparian
rights, it violates LMCD Code because appellants have not consented as fee owners to the
dock’s existence. Underlying these arguments is appellants’ third contention that there
remain unresolved genuine issues of material fact with regard to their riparian rights. Next,
appellants argue that the dock was never lawfu lly in existence, but if it was, subsequent
changes in the dock’s structure have defeated the dock’s status as a legal nonconforming
use. Finally, appellants claim that the dist rict court erroneously based its decision on
appellants’ knowledge of these property issues before they bought their home.3
Appellate courts review a district c ourt’s ruling on motions for summary judgment
de novo. Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628 (Minn. 2017). A
grant of summary judgment is appropriate wh ere there are no genuine issues of material

3 Appellants challenge the district court’s dismis sal of counts 1, 2, 3, 4, and 9 of their
complaint. Their briefing on appeal does not expressly challenge the dismissal of counts
5 (nuisance), 6 (implied easement for view, air, and light over the fire lane), 7 (due-process
violations), or 8 (open-meeting-law violations).

8
fact and the district court correctly applied the law. Id. With this legal standard in mind,
we turn to appellants’ arguments.
We begin our de novo review of the district court’s partial denial of appellants’
motion for summary judgment by considering the foundational question of whether the city
has riparian rights to the lake via the fire lane and whether it validly exercised those rights
in the construction and regulation of Dock #1 0. Then we consider whether the consent
requirement in the LMCD Code is unenfor ceable, whether Dock #10 was once a legal
nonconforming structure, and whether subse quent changes to the dock’s structure and
configuration have resulted in the loss of that status. Fi nally, we address whether the
district court improperly relied on appellants’ knowledge of these issues before they bought
the home.
I. The district court did not err in determ ining that the city has riparian rights
as a result of the dedication of the fire lane in the 1889 pl at, but there is an
unresolved genuine issue of material fact concerning the reasonableness of the
exercise of the city’s riparian rights in constructing and maintaining Dock #10
as it now exists.
Appellants argue that the city’s current use of the fire lane is impermissible. They
assert that the city’s rights w ith respect to the fire lane ar e limited to uses specifically
identified by the 1889 plat and are subordinate to appellants’ rights as fee owners of the
fire lane. Based on this interpretation, appellants contend that the city’s use of the fire lane
and Dock #10 is illegal because it allows for private use of a public easement.
The district court granted appellants’ mo tion for a summary decl aration that they
own the fire lane in fee, but it granted re spondents’ motion for summary judgment that
Dock #10 and the city’s permitting scheme are a valid exercise of the city’s authority. The

9
district court determined that the city, as trus tee of the public’s riparian rights to the fire
lane, has “paramount” rights to the lane.
A. The district court correctly concluded that the city easement over the
fire lane includes riparian rights to access Lake Minnetonka.
Land donated for public purposes via plat dedication is held in trust for the public
by the municipality in which th e land is located and for th e purposes described in the
dedication language. Minn. St at. § 505.01, subd. 1 (2018). A “public way dedicated or
donated on a plat shall c onvey an easement only.” Id.; see also Bolen v. Glass ,
755 N.W.2d 1, 4 (Minn. 2008) (concluding th at when land is transferred via plat
dedication, the property intere st conveyed is a terminable easement). Where dedicated
land ends at a body of water, the dedication includes riparian rights to that water. Troska
v. Brecht, 167 N.W. 1042, 1044 (Minn. 1918).4 Fee title to the dedicated land remains with
the dedicator and subsequent fee owners wh ile the municipality ma intains an easement
over the land—so long as the easement is used for the purposes described in the dedication.
Bolen, 755 N.W.2d at 4.
Here, the 1889 plat dedication specified that “The Avenues, Streets, Alleys, and
Parks as shown on the annexed plat are hereby dedicated to the public for the uses
contemplated therein.” It identified a fire la ne as one such dedica tion along the southern

4 In Minnesota, a riparian owner has the “right to make such use of the [waterway] over its
entire surface, in co mmon with all other abutting owners.” Johnson v. Seifert ,
100 N.W.2d 689, 697 (Minn. 1960). These rights include the right to “build and maintain,
for private or public use, wharves, piers, and landings and extending into the water,” and
the right to use the water for “hunting, fish ing, boating, sailing, [and] irrigating.”
McLafferty v. St. Aubin, 500 N.W.2d 165, 168 (Minn. App. 1993).

10
boundary of the lot now owned by appellants. By this language, the dedication conveyed
to the city a terminable easement over the fire lane, held in trust for the “uses contemplated
therein” by the public. Because the fire lane ends at the shore of Lake Minnetonka, the
easement includes riparian rights to the lake. Troska, 167 N.W. at 1044.
The city currently provides for public use of Dock #10 via a permitting system.
Anyone may apply for a permit to use one or mo re of the four boat storage units that the
city places on Dock #10. MBC § 906(2)(C). The city has a system of priority in place that
may favor one applicant over another, but no me mber of the public is restricted from
applying to use Dock #10’s boat storage units. Id. Nor does the city’s regulation of Dock
#10 conflict with the public’s ability to use the dock, fire lane, or shoreline for other
purposes. Furthermore, the re gulation of public access to th e dock is within the city’s
authority to “prescribe rules to secure to the public the public uses of which the waters are
susceptible and to preserve public order.” Nelson v. De Long, 7 N.W.2d 342, 349 (Minn.
1942). Therefore, the regulated use of Dock #10 is within the scope of uses contemplated
by the 1889 plat dedication.
Appellants attempt to persuade us that th e city cannot use the fire lane by placing
Dock #10 at the end of it. They cite a numbe r of cases not involving riparian rights, but
concerning parcels of land dedicated fo r public use. In one such case, Headley v. City of
Northfield, the issue was whether the city could convert a major ity of the town’s public
square into a high school athletic complex and playground. 35 N. W.2d 606, 607 (Minn.
1949). The appropriate use of a pub lic square was also at issue in City of Zumbrota v.
Strafford Western Emigration Co. , where the municipality sough t to sell the square to a

11
private developer for the constr uction of a senior citizen’s home. 290 N.W. 2d 621, 622
(Minn. 1980). But these cases, and others relied upon by appellants to support their
argument, do not address the issue of riparian rights. And riparian rights are central here.
As such, we decline to accept appellants’ invitation to import the reasoning in those cases
to the analysis here. The law on which we rely is Minn esota’s well-established law
concerning riparian rights.
We agree with the district court’s conclusi on that, as a matter of law, the city has a
terminable easement over the fire lane which includes riparian rights to Lake Minnetonka.
Because the city’s use of Dock #10 as truste e for the public’s ea sement interest is
compatible with the uses contemplated by the 1889 plat, the city may use and regulate the
public use of both. Bolen, 755 N.W.2d at 4; Minn. Stat. § 505.01, subd. 1.
The district court correctly a pplied the relevant law in its analysis. It did not err in
determining that the city has riparian rights as a result of the dedicated easement over the
fire lane and that those rights do not, as a matter of law, violate appellants’ riparian rights
as fee owners of the fire lane. But that doe s not end our analysis. Because the city and
appellants have competing riparian rights, we turn to the common law concerning riparian
rights to determine whether any genuine issues of material fact exist with regard to the
appellants’ legal and equitable claims.
B. There remains a genuine issue of mate rial fact concerning appellants’
claim that Dock #10 impairs their riparian rights.
Both appellants and the city have riparian rights based on their property interests.
Appellants argue that, as fee owners of the fire lane, their rights are superior to the city’s

12
rights. But the district court concluded that, when riparian interests are in conflict, a fee
owner may not interfere with an easement holder’s rights. Citing the Minnesota Supreme
Court decision in McLafferty, the district court determined that the c ity, as holder of the
public’s rights to the fire lane, has “paramount” rights to the fire lane. 500 N.W.2d at 168.
On that basis, it summarily dismissed appellants’ complaint. But because both the district
court and this court are boun d by supreme court precedent, State v. Curtis , 921 N.W.2d
342, 346 (Minn. 2018), and because one owner of riparian rights may not unduly interfere
with another’s enjoyment of riparian rights, we must reverse and remand.
When riparian rights are in conflict, as they are here, the rights are held in common
and must be shared. Seifert, 100 N.W.2d at 697. No ri ghts holder may unduly impede
another’s ability to enjoy their riparian rights. Id. at 696-97. Whether a rights holder’s use
is permissible is a ques tion of reasonableness. Id. (“[A]n abutting or riparian owner of a
lake . . . has a right to make such use of the lake over its entire surface, in common with all
other abutting owners, provided such use is reasonable and does not unduly interfere with
the exercise of similar rights on the part of other abutting owners.”). Reasonableness “is a
question of fact to be determined fro m the circumstances of each case.” Petraborg v.
Zontelli, 15 N.W.2d 174, 182 (Minn. 1944). Th e question of reasonableness must be
considered even though the public’s right to use the water body may be “paramount” to the
rights of other riparian owners. Nelson, 7 N.W.2d at 349 (“[T]h e riparian rights of all
concerned were subject to the paramount rights of the public to public use of the waters
and to the power of the state to adopt reasonable regulations to secure such uses to the

13
public.” (Emphasis added)). The McLafferty decision, relied upon by the district court in
granting the city’s dispositive motions, supports this reasonableness test.
In McLafferty, the parties disputed a city’s ab ility to restrict abutting property
owners with attendant riparian rights from us ing an avenue for lake access. 500 N.W.2d
at 166. Although the city had riparian rights by virtue of a street easement along the lake,
the Minnesota Supreme Court determined that the city did not hold exclusive riparian rights
over the avenue. Id. at 167-68. Instead, the supreme court, citing Seifert, affirmed that
when riparian rights are in conflict, the que stion of whether a part y’s use is permitted by
the law is one of reasonableness. Id. at 168.
Here, although the city has riparian rights by virtue of the 1889 plat dedication, those
rights are not exclusive. The city’s exercise of riparian rights must still be measured for its
reasonableness. Seifert, 100 N.W.2d at 697.
As shown in the diagram above, appellants’ lot is much narrower at the shoreline
than it is in the portions of the lot remote from the shoreline. The extension of appellants’
north lot line intersects with the extension of the south lot line at a point somewhat farther
into the lake than the end of Dock #10. Appellants contend that, because Lake Minnetonka
is very shallow in the area, Do ck #10 impairs their ability to enjoy their riparian rights.
Although appellants complain mightily about the impact of Dock #10 on their view of the
lake, it is not the only impairment they claim. They also claim th at Dock #10’s current
configuration prevents them from navigating mo torized boats into the portion of the lake
in front of their home. According to an e xpert affidavit produced by the appellants, the
existence of Dock #10 in its current configuration presents an unreasonable risk of danger

14
to swimmers entering the lake from appellant s’ property and to us ers of non-motorized
watercraft in the area.
The district court erred in determining th at, as a matter of law, the city is not
impairing appellants’ riparian rights by its placement of Dock #10. On our de novo review,
we conclude that there remains an unresolv ed fact issue concerning whether the city’s
exercise of its riparian rights is reasonable. We therefore reverse the district court’s
summary judgment dismissing that portion of appellants’ complaint alleging violation of
their riparian rights. We remand for resoluti on of the factual issue of the reasonableness
of the city’s use of Dock #10 in its current co nfiguration. Factors to consider include the
purpose of the use, the way in which the right is used, the necessity of the use, and the
injury alleged by the other rights holder. Petraborg, 15 N.W.2d at 182. We hold only that
the fact issue remains for resolution on this record; we express no opinion concerning how
that issue will be or should be resolved by the finder of fact on remand.
II. The district court correctly conc luded that the LMCD Code provision
requiring the appellants’ consent to Dock #10 is unenforceable.
Appellants next argue that, even if Dock #10 is a valid use of the fire lane
contemplated by the 1889 plat , it is still invalid under th e LMCD Code. According to
appellants, the LMCD Code requires the city to obtain appellants’ consent to construct and
use Dock #10 because appellants own fee title to the fire lane. The district court disagreed.
It determined that although the LMCD Code, read strictly , requires the consent of fee
owners, the provision conflicts with common law principles concerning riparian rights and
cannot be enforced. Because we determine that the district court applied the correct legal

15
standard and that there are no genuine issues of material fact concerning that issue, we
affirm the district court’s summary judgme nt dismissing this aspect of appellants’
complaint. Montemayor, 898 N.W.2d at 628.
The LMCD Code provides that “No person shall use any area of the Lake within
any authorized dock use area for docks, moorings, [or] waterc raft storage . . . without the
consent of the riparian owner.” LMCD Code § 2-3.01, subd. 2 (2019). An owner is “the
fee owner of land or the bene ficial owner of land whose in terest is primarily one of
possession and enjoyment in co ntemplation of ultimate owne rship.” LMCD Code § 1-
3.01, subd. 67 (2019). Based only on a strict reading of LMCD Code, the city would be
required to obtain the consent of appellants, fee owners of th e fire lane with appurtenant
riparian rights, to construct Dock #10. But our analysis does not end here.
As discussed above, Minnesota common law requires that holders of riparian rights
share access to the body of wate r, and must act reasonably. Seifert, 100 N.W.2d at 696-
97. Rights holders must ensure that their use of the water body is reasonable and does not
unduly impair the ability of other users to enjoy the water body. Id. at 697. But the LMCD
Code conflicts with these well-establishe d common law principles because the code
purports to permit one user to restrict another’s use of his or her riparian rights, regardless
of the reasonableness of the restriction. Th erefore, we agree with the district court’s
conclusion that, as a matter of law, th e consent requirement in LMCD Code is
unenforceable as inconsistent with well-esta blished Minnesota law concerning riparian
rights. Curtis, 921 N.W.2d at 346.

16
III. The district court properly determined that Dock #10 lawfully existed in 1984,
but there remains a genuine issue of material fact regarding whether
subsequent changes to Dock #10, includi ng extension of the dock’s length to
158 feet, renders it ineligible for treatment as a prior nonconforming use.
Appellants argue that the city’s municipal multiple dock system was never “a legal
nonconforming use.” They further argue that, even if it had once been a legal
nonconforming use, it has since lost that status because of changes made since 1984. The
district court, focusing only on Dock #10, disagreed with appellants’ assertions. The
district court determined that Dock #10 was a legal nonconforming structure in 1984 and
that the subsequent changes in dock length and configuration did not make Dock #10
illegal. We consider the district cour t’s summary judgment on this issue de novo. 5
Montemayor, 898 N.W.2d at 628.
All docks on Lake Minneto nka must comply with th e LMCD Code. § 2-2.01
(2019). But there is a limited exception to this general rule for some docks with a historical
presence on the lake. Docks in existence as of May 3, 1978, may continue to exist—even
if they fail to comply with current LMCD Code provisions —so long as the number of
restricted watercraft docked at that locatio n does not exceed the number docked there on
May 3, 1978. LMCD Code § 2-4.09, subd. 3 (2019). Such nonconforming docks may not

5 Although appellants contend that the entire dock system of the city is illegal, the district
court properly focused only on Dock #10. The LMCD Code provides no indication that if
one dock in a municipal multiple use system violates code provisions, the entire system
should be considered invalid. Moreover, the only dock that has any impact on appellants
is Dock #10. This case presents no occasion for examining the legality or appropriateness
of docks remote from appellants’ property, wh ich plainly have no e ffect on appellants’
riparian or other asserted rights.

17
be changed or reconfigured from their state on May 3, 1978, without the approval of the
LMCD. LMCD Code § 2-8.05, -8.11 (2019).
If a change or a reconfiguration of a legal nonconforming dock is proposed, the
LMCD must consider whether the proposed changes would result in increased boat storage
units, linear footage of boat storage units, or the nonconforming nature of the dock, or if it
would create new nonconformities. Id., § 2-8.11. If the LMCD finds that any of these
changes would occur, the LMCD may not issue a license for the proposed changes. LMCD
Code § 6-2.17, subd. 1 (2019). With these provisions of the LMCD Code in mind, we look
to the history of Dock #10 to determine whether it was a legal nonconforming dock in
existence on May 3, 1978.
In 1984, the LMCD approved the city’s application for a new multiple dock license
“from 1977” for 86 boat storage units. Included in the license was Dock #10, which at that
time had six boat storage units and was 90 feet long. We agree with the district court that,
as a matter of law, Dock #10 was in existence as a legal nonconforming dock as of May 3,
1978, by virtue of the 1984 license for the city’s docks dating back to 1977.
We next consider whether the subsequent changes to Dock #10 have resulted in the
dock no longer being a legal nonconforming use.
Since 1984, Dock #10 has undergone a number of change s and reconfigurations.
As of 2019, Dock #10 had four boat storag e units and extended 158 feet into Lake
Minnetonka. Dock #10 was also positioned parallel to the exte nded lot lines of the fire
lane in 2019; in 1984, it was angled slightly southward and was not located entirely within

18
the fire lane’s ADUA. As such, the dock was then angled away from the water directly in
front of appellants’ home.
As explained above, the LMCD Co de does not allow any changes to a
nonconforming dock that would result in incr eased boat storage units, increased linear
footage of boat storage units, increased nonconforming nature of the dock, or the creation
of new nonconformities. LMCD Code § 2-8.11.
Whether the extension of Do ck #10 to 158 feet and its reorientation are permissible
changes involve questions of fact. The extens ion of Dock #10 to the length of 158 feet
cannot be said as a matter of law to be an insubstantial modification of the preexisting
nonconforming use. And the orientation of the dock to put it more directly in front of the
appellants’ home and nearer appellants’ ADUA at least raises a fact question about whether
changes to the prior nonconforming use deprives Dock #10 of its status as a nonconforming
use that may be lawfully continued.
It is true, as the district court noted in granting summary judgment, that Dock #10
as it is currently oriented is “cabined” in the ADUA defined by the extended lot lines of
the fire lane. But since those lot lines are parallel, the extensions of them would continue
across the lake to the opposite shoreline without crossing one another, meaning that a dock
could extend to the opposite shore of the bay and still remain within the ADUA. It seems
axiomatic that not every extension of the dock within the ADUA as so defined would be a
permissible change to the city ’s prior nonconforming use. And Dock #10 is now 68 feet
longer than it was in 1984—exten ding over 50 yards into the lake. Here again, we hold
only that the district court improperly gr anted summary judgment where there exist

19
genuine issues of material fact; we express no opinion concerning resolution of the fact
issues.
Although the district court correctly de termined that Dock #10 was a legal
nonconforming structure as of May 3, 1978 as a matter of law, it erroneously concluded
that no genuine issue of materi al fact exists concerning whet her the changes to the dock
after 1984 result in its no longer being a legal nonconforming structure.6
IV. The district court did not improperly rely on appellants’ knowledge of the
history of their property when it ruled on the summary-judgment motions.
Finally, we address the appellants’ claim th at the district court improperly relied on
appellants’ prior knowledge of these propert y issues in ruling on the competing motions
for summary judgment. Although the district court did reference appellants’ knowledge of
the property’s unique challenges before they bought their house—a fact on which the
parties agree—it did not improperly rely on that fact.
Appellants’ predecessor in interest had th e same concerns that appellants have in
this lawsuit. The purchase price negotiated by appellants reflected these concerns, along
with other buyer-seller considerations. But the district court did not summarily adjudicate
appellants’ claims for this reason. Instead, the district court noted the reality that there has
been prior litigation concerning the city’s dock system and that appellants were aware that

6 We also note that, while the LMCD approved the changes to and reconfiguration of Dock
#10 over the years, the LMCD’s lack of enforcement of the LMCD Code does not
necessarily mean those changes were valid. McCavic v. De Luca , 46 N.W.2d 873, 877
(Minn. 1951) (“[T]he validity of an ordinance is not affected by failure to enforce it or by
its wrongful enforcement or by the fact that it is repeatedly violated.”). On this record, we
see no determination by the LM CD concerning these fact issues. Accordingly those fact
issues are appropriate for resolution on remand.

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the LMCD was allowing Dock #10 to exist at the 158 foot length in the configuration about
which they now complain. We see no error in the district court having accurately
characterized the history of how this protracted dispute resulted in appellants’ current
claims.
In sum, on de novo review of the distri ct court’s summary adjudication, we affirm
the district court’s judgment except insofar as it determines as a matter of law that
Dock #10 as currently situated is a reasonable exercise of the city’s riparian rights and that
Dock #10 continues to be a legal nonconforming use despite changes to its orientation and
length after May 3, 1978. On those issues, there remain genuine issues of material fact for
resolution on remand.
Affirmed in part, reversed in part, and remanded.