Docks of White Bear Lake, LLC, Appellant,

This opinion is nonprecedential except as provided by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
A20-1594

Docks of White Bear Lake, LLC,
Appellant,

vs.

Dockside Waterski Company, d/b/a Tally's Dockside,
Respondent,

and

City of White Bear Lake,
Respondent.

Filed July 12, 2021
Affirmed
Bryan, Judge

Ramsey County District Court
File No. 62-CV-20-2273

Nathan M. Hansen, North St. Paul, Minnesota (for appellant)

Christopher L. Olson, Peter J. Frank, Timothy R. Geck, GDO Law, White Bear Lake,
Minnesota (for respondent Dockside Waterski Company, d/b/a Tally’s Dockside)

Jessica E. Schwie, Joshua P. Devaney, Kennedy & Graven, Chartered, Minneapolis,
Minnesota (for respondent City of White Bear Lake)

Considered and decided by Reilly, Pres iding Judge; Slieter, Judge; and Bryan,
Judge.

NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges the summary-judgment dismissal of his claim of nuisance.
Because there is no genuine issue of material fact regarding whether appellant suffered an
actionable injury, we affirm the district court’s decision to dismiss appellant’s claim.
FACTS
The facts in this case are mostly undi sputed. Respondent Dockside Waterski
Company known as Tally’s Dockside (Tally’s ) is a full-service marina located on White
Bear Lake. Tally’s leases a neighboring parcel of land (the parcel) from respondent City
of White Bear Lake (the City). Tally’s ha s maintained an aboveground fuel tank on the
parcel since 1991 and uses the fuel tank to st ore gasoline that it se lls to boaters. The
location of the fuel tank does not comply with th e general Minnesota Fire Code setback
regulations, which require that the fuel tank be at least 15 feet from the property line of the
parcel. Directly next to the parcel, appella nt Docks of White Bear Lake, LLC, (DWBL)
operates a marina. DWBL leases this land from a third party, th e White Bear Shopping
Center, Inc.
In 2004, Tally’s sought to replace the 50 0-gallon fuel tank that had been on the
parcel with a 2,000-gallon fuel tank. After city council meetings and inspections by the
fire marshal, the City approved a permit for Tally’s to install a 2,000-gallon aboveground
tank on the same location as the previous 500-gallon tank. The permit noted that the fuel
tank was approved under “permit” and “zoning.” A fire in spector also inspected the fuel
tank location and listed it as “a pproved.” After receiving approval from the City, Tally’s

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installed the larger fuel tank. In 2005, th e owners of the White Bear Shopping Center
alerted Tally’s that the fuel tank was placed across the parcel property line and partially on
the White Bear Shopping Center’s land. In November 2005, Tally’s relocated the fuel tank
fully onto the parcel, where it remained for the next 14 years.
In fall 2018, Tally’s sought to update the grounds and dispenser line for the fuel
tank. Tally’s also requested an extension of its lease of the parcel with the City. The City
agreed to extend the lease and to reinforce the retaining wall for the parcel.1 Work on the
fuel tank site began in fall 2019 when the City requested that Tally’s temporarily remove
the fuel tank for them to repair the retaining wall. Tally’s re moved the fuel tank, made it
inoperable, and the City completed the retaining wall maintenance. In the spring of 2020,
Tally’s replaced the concrete slab on which th e fuel tank rested and proceeded with the
planned reinstallation of the same fuel tank in its previous location.
DWBL sought a temporary injunction, claiming that the location of the fuel tank
constituted a nuisance. The district court denied the temporary injunction because DWBL
failed to show harm. Tally’s and the City subsequently moved for summary judgment,

1 On appeal, DWBL briefly mentions that th e City’s reinforcement of the retaining wall
was also a nuisance because it did not comply with regul ations promulgated by the
Minnesota Department of Natural Resources. The district court rejected this argument
because the amended complaint made no explic it reference to the retaining wall or any
injury resulting from the reinforcement of the retaining wall. DWBL does not cite to any
legal authority or further argue this separate nuisance theory on a ppeal. We decline to
review this portion of the district court’s decision. Scheffler v. City of Anoka, 890 N.W.2d
437, 451 (Minn. App. 2017) (“An assignment of error on mere assertion, unsupported by
argument or authority, is forfeited and need not be considered unless prejudicial error is
obvious on mere inspection.”), review denied (Minn. Apr. 26, 2017); Ganguli v. Univ. of
Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994 ) (stating court of appeals declines to
address allegations unsupported by legal analysis or citation).

4
asserting that the claimed nuisance did not cause an actionable injury. In support of their
motion, Tally’s and the City submitted evidence that the appropriate permits and variances
were granted for Tally’s to operate the fuel tank despite the general fire code regulations,
that the city council approved the fuel tank location, that fire officials insp ected the fuel
tank, and that the fuel tank had not experienced spills or leaks in the past 15 years.
DWBL opposed summary judgment, argui ng that the location of the fuel tank
resulted in an injury because it violates the Minnesota State Fire Code setback
requirements. In support of this position, DWBL relied on a report attached to the amended
complaint (the expert report). At the summa ry judgment hearing, DWBL reiterated that
the nuisance claim did not stem from the ma intenance work completed in 2019 or from
temporary removal and replacement of the fu el tank. Instead, DWBL argued that the
nuisance resulted from the “existence and locati on” of the fuel tank alone. The district
court determined that DWBL’s nuisance claim failed as a matter of law because the alleged
code violation, by itself, could not constitute an actionable injury. In addition, the district
court concluded that “[t]here have been no spills or accidents related to the fuel tank during
the time it has been situated on [the parcel],” and “the fuel ta nk is located in a safe and
practical location.” In the alternative, 2 the district court also concluded that because the
fuel tank had been in the same location fo r 14 years, the statut e of limitations barred

2 DWBL argues that we must reverse because the district court’s order is “internally
inconsistent.” This argument, however, mischa racterizes the district court’s order. The
district court provided two, independent, alternative grounds for granting summary
judgment. Assuming that a nuisance exists for the sake of addressing the statute-of-
limitations argument does not pr eclude the alternative conclusion that the alleged code
violation does not constitute an actionable injury.

5
DWBL’s nuisance claim. The district cour t granted Tally’s and the City’s motion for
summary judgment on these two, independent grounds.
DWBL appeals, arguing that the record contains disputed facts regarding injury and
directing us to ten subparagraphs in the expert report labeled as “[n]uisance findings.”3 In
subparagraphs 1, 2, 4, and 5, the expert opines that the lo cation of the fuel tank and the
City’s decision to lease the parcel failed to comply with various regulations. In
subparagraph 3, the expert raises a concern about the risk of future gas leaks or explosions:
“vehicle impact could cause immediate leak or explosion hazard to property, or enjoyment
of lake use to affected property or public.” In subparagraphs 6 and 7, the expert observes
that DWBL cannot install additional safety measures absent a permanent easement and
cannot easily record an easement. In subpara graph 8, the expert re fers to unspecified
“injurious actions” and appears to criticize th e City for its decision to lease the parcel:
“Deliberate or predetermined injurious actions to owner and general public known to City
due to placement of [the fuel tank] in designa ted ‘town’ areas subject to a ‘lease’ and the
public revenues associated w ith the continued leased Mari na fueling operation.” In
subparagraph 9, the expert states the possibility that the fuel tank is a public nuisance: “it
is likely the ‘Nuisances’ could also be applied to the general public for each year of [fuel
tank] operation.” In subparagraph 10, the e xpert opines that the municipal code itself

3 DWBL did not make this argument to the district court. Instead, DWBL used the report
only to support its proposition th at the location of the fuel ta nk violated the fire code.
DWBL argues that it has not fo rfeited this argument because it attached the expert report
to the amended complaint. We assume without deciding that the statements in the expert
report fall within our scope of review.

6
constitutes a nuisance: “the current City Code standards for properties located within the
Lake Village Mixed Use district would create ‘nuisance’ to the owner or general public.”
DECISION
DWBL argues that the record shows disputed questions of fact regarding its asserted
injury. Because the record cannot support a finding that the existence and location of the
fuel tank materially and substantially interfered with DWBL’s property interests, we affirm
the district court’s decision to grant summary judgment.
“We review the grant of su mmary judgment de novo to determine ‘whether there
are genuine issues of material fact and whether the district court erred in its application of
the law.’” Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628 (Minn. 2017)
(quoting Stringer v. Minn. Vikings Football Club, LLC , 705 N.W.2d 746, 754 (Minn.
2005)). “In conducting this review, we view the evidence in the light most favorable to the
nonmoving party and resolve all doubts and factual inferences against the moving parties.”
Fenrich v. The Blake Sch., 920 N.W.2d 195, 201 (Minn. 2018) (quotation omitted). When,
as here, the defendant moves for summary judgment, the motion must be granted when the
record lacks proof of “an essential element of the plaintiff’s claim.” Lubbers v. Anderson,
539 N.W.2d 398, 401 (Minn. 1995).
Minnesota Statutes section 561.01 (2020) codifies a cause of action for nuisance,
“which implicitly recognizes a need to balance the utility of [a defendant’s] actions against
the harm to [a plaintiff].” Matter v. Nelson, 478 N.W.2d 211, 214 (Minn. App. 1991); see
also Hagen v. Windemere Township , 935 N.W.2d 895, 901 (Minn. App. 2019), review
denied (Minn. Aug. 6, 2019) (defining nuisance as occurring when a person “intentionally

7
maintains a condition that is inju rious to health, or indecent or offensive to the senses, or
which obstructs the free use of property” (quotation omitted)). As it relates to this case,
the parties dispute whether the record presents a genuine issue of material fact regarding
injury to DWBL. Not every asserted harm constitutes an actionable injury, and we must
determine whether the record can support a finding that the fu el tank actually, materially,
and substantially interfered with DWBL’s real property interests. Minn. Stat. § 561.01;
see also, e.g., Anderson v. State, Dep’t of Nat. Res. , 693 N.W.2d 181, 192 (Minn. 2005)
(“Private nuisance is limited to real property interests.”); Highview N. Apartments v.
County of Ramsey , 323 N.W.2d 65, 70 (Minn. 1982) (noting that the nuisance statute
defines nuisance in terms of a “resultant harm”); Citizens for a Safe Grant v. Lone Oak
Sportsmen’s Club, Inc., 624 N.W.2d 796, 803 (Minn. App. 2001) (“For an interference
with the enjoyment of life or property to co nstitute a nuisance, it mu st be material and
substantial.”).
In its amended complaint and before the district court, DWBL identified its alleged
injury: the existence and location of the fuel tank does not comply with the Minnesota State
Fire Code. This is not an actionable injury for two reasons. First, DWBL cites no authority
to support its proposition that a code violation alone constitutes an actionable injury.
Indeed, DWBL’s proposed legal rule conflic ts with well-established caselaw requiring
actual, material, and substantial interference w ith property, not simply an asserted code
violation. For instance, in Citizens for a Safe Grant , this court affirmed a finding of
nuisance because property owners near a shooting range experienced loud noises, showers
of shotgun pellets on their property, and bullets hitting pine trees around their home. 624

8
N.W.2d at 804. The court did not find a nuisance based on the violations of the Minnesota
Environmental Rights Act, which it analyzed as a separate cause of action. Id. at 805-06;
see also Anderson, 693 N.W.2d at 192 (affirming dismissa l of nuisance claim for lack of
an actionable injury to the plaintiffs’ prope rty interests, but reversing summary judgment
against plaintiffs on their separate claim of negligence per se stemming from violations of
pesticide-use regulations); Highview N. Apartments , 323 N.W.2d at 70-71 (finding
actionable, “resultant harm ” based on flooding caused by a municipality’s storm sewer
construction project). Pursuant to these and other cases, an alleged code violation, without
more, cannot establish the actua l, material, and substantia l interference with property
interests necessary for a private nuisance claim.
Second, DWBL’s argument overlooks the effective variance given to Tally’s.
While the parties agree that th e location of the fuel tank doe s not strictly comply with
general code provisions, the record also cont ains this undisputed fact: Tally’s received
regulatory permission and approval to operate the fuel tank at that location despite the
general code provisions. Even assuming that a code violation constituted a per se injury
for purposes of stating a nuisan ce claim, there can be no genuin e issue of material fact in
this case because DWBL does not dispute the approval of Tally’s variance.4

4 We also note that the approval of the fuel tank’s location and its use might defeat DWBL’s
nuisance claim under the reasonable-use doctrine. See Matter , 478 N.W.2d at 215
(affirming finding of nuisance li ability and damages only after concluding that plaintiffs
suffered an actionable injury and that the injury resulted from defendants’ unreasonable
use of a water drainage system); see also Highview N. Apartments , 323 N.W.2d at 73
(affirming finding of nuisance liability and damages only afte r concluding th at plaintiff
suffered actual harm resulting from defendant’s unreasonable construction project).

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Finally, we observe that before this court, DWBL advances an argument that it did
not directly make to the district court: that th e expert report includes a list of ten separate
injuries in the subparagraphs referred to as “[n]uisance findings.” DWBL now argues that
each subparagraph establishes a genuine issue of material fa ct regarding injury. We
disagree. Contrary to DWBL’s characteri zation, the subparagraphs do not identify ten
different injuries. For example, subparagraphs 1, 2, 4, and 5, reflect the expert’s legal
opinion regarding noncompliance with various local, state, and federal regulations. They
do not explain, however, how any noncomplianc e materially or actu ally injured DWBL.
Likewise, subparagraphs 6 and 7 do not describe an injury, but rather reflect the expert’s
opinion that DWBL cannot easily record an easement necessary to install additional safety
measures. Subparagraph 8 includes references to unspecified “injurious actions” and faults
the City for leasing the parcel, but does not state a separate injury or explain how the City’s
actions caused an injury to DWBL. Subparagraph 9 contains a vague statement speculating
about a potential public nuisance, but DWBL never pleaded a claim under the public
nuisance statute. 5 Subparagraph 10 asserts that the municipal code itself is a separate
nuisance, also something that DWBL chose not to plead in its amended complaint.
We can characterize only one of the ten listed “[n]uisance findings” as a statement
expressing a potential injury under the private nuisance stat ute: subparagraph 3, which
expresses a concern about the risk of a future gas leak or explosi on. This speculative

5 The district court concluded that altho ugh the amended complain t “mentions ‘public
nuisance,’” DWBL did not reference the public nuisance statute, allege the elements of a
public nuisance claim, or argue a public nuisa nce theory. The district court declined to
analyze any public nuisance claim, and DWBL does not challenge this decision on appeal.

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statement regarding the risk of a future inju ry cannot create a genuine issue of material
fact. See, e.g. , Citizens for a Safe Grant, 624 N.W.2d at 803 (requiring injuries to be
material and substantial, not hypothetical). In addition, the district court conc luded that
the record contained no evidence of spills or accidents related to the fuel tank during the
time it has been situated on the parcel, and that the fuel tank was in a safe location. DWBL
does not contest either conclusion or direct th is court to any evidence properly before the
district court that could indicate a dispute regarding prior leaks, spills, explosions, or
accidents.6
Viewing the record in the light most fa vorable to DWBL, we conclude that no
genuine dispute exists regarding whether the fuel tank has materially and substantially
interfered with DWBL’s property interests. DWBL’s nuisance claim fails as a matter of
law, and we affirm the district court’s decision to grant summary judgment.7
Affirmed.

6 We also note that other jurisdictions have determined that fuel tanks standing alone,
despite fear of speculative spills or ex plosions, do not constitute a nuisance. See City of
Spickardsville v. Terry, 274 S.W.2d 21, 26 (Mo. Ct. App. 1954) (determining that fear or
anticipation of danger due to a fuel tank, without more, is not sufficient to justify an
injunction on grounds that it would constitute a nuisance); Harper v. Standard Oil Co., 78
Mo. App. 338, 344 (Mo. Ct. App. 1899) (det ermining that suitable fuel tanks do not
constitute nuisance per se and c ould only become a nuisance because of some neglect or
improper use); Morrison v. Standard Oil Co. of N.J. , 147 A. 161, 162 (N.J. Ch. 1929)
(concluding that apprehension of danger of explosion or fire from fuel tank was insufficient
to prevent construction of fuel tanks on basis of nuisance), aff’d, 151 A. 906 (N.J. 1930);
Ferriman v. Turner, 227 P. 443, 446 (Okla. 1924) (rejecting argument that a proposed fuel
tank construction near a busin ess establishment constituted a nuisance based on potential
fire or explosion).
7 Because we conclude that DWBL’s nuisance claim fails as a matter of law, we decline to
address the alternative basis for summary judgment: the statute-of-limitations defense.