This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Charles H. Robin, Jr., et al.,


Jeffrey D. Puls, et al.,


Filed August 28, 2002

Reversed and remanded

Peterson, Judge


Scott County District Court

File No. C0014231


Steven J. Weintraut, Siegel, Brill, Greupner, Duffy & Foster, P.A., Suite 1300, 100 Washington Avenue South, Minneapolis, MN  55401 (for appellants)


Michael J. Orme, Dana K. Nyquist, Orme & Associates, LTD., 3140 Neil Armstrong Boulevard, Suite 203, Eagan, MN  55121 (for respondents)


            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


In this appeal from a partial summary judgment for each party, the parties dispute whether a dock added to the end of an easement that gives access to a lake is an expansion of that existing, nonconforming access easement.  The district court determined as a matter of law that the dock was not an improper expansion of the easement.  Appellants argue that (a) the dock is inconsistent with various aspects of the county zoning ordinance and Minnesota law, and therefore is inconsistent with the declaration governing the easement, which incorporates the relevant zoning limitations; (b) the district court’s ruling that the zoning ordinance does not apply is based on a misreading of both appellants’ argument to the contrary and of the ordinance; and (c) under the terms of the declaration, appellants are entitled to recover their attorney fees.  Respondents seek review of the district court’s determination that a voting requirement in the declaration applies to installation of the dock.  We reverse and remand.


            Respondents Jeffrey D. Puls, Jeanine K. Puls, Monty Raben, Molly Raben, Rob Rivera, and Colleen Rivera are the owners of individual lots in Canterbury Woods 2nd Addition in Spring Lake Township, Scott County, Minnesota.  Respondents Rob Sloan and Lisa Sloan are the owners of a lot in Canterbury Woods 2nd Addition in Spring Lake Township, Scott County, Minnesota.  Respondents’ lots do not physically abut Fish Lake, but they are benefited by an easement granting them access to the lake.  Appellants Charles H. Robin, Jr., and Camille Robin are the owners of two lakeshore lots on Fish Lake in Canterbury Woods 2nd Addition in Spring Lake Township, Scott County, Minnesota.  The easement benefiting respondents’ lots burdens one of appellants’ lots.

            The lot that is burdened by the easement is described as:

Lot 6, Block 2, CANTERBURY WOODS 2ND ADDITION, Scott County, Minnesota, according to the recorded plat thereof, together with and reserving therefrom unto Grantors and their successors and assigns, the following described easement for the purposes of ingress to and egress from Fish Lake and exercise of riparian rights incidental thereto, which easement shall be appurtenant to Lots 1 to 6, inclusive, Block 1 and Lot 1, Block 2, CANTERBURY WOODS, and Lots 1 to 5, inclusive, Block 1, and Lots 6 and 7, Block 2, CANTERBURY 2ND ADDITION, and is subject to restrictions contained in declaration of conditions, covenants and restrictions, made July 26, 1989, recorded September 21, 1989 as document 262452.


The easement runs along 30 feet of lakeshore.

            The declaration filed in connection with the easement prohibits the commencement on the easement property of any “improvements, alterations, construction, vegetation removal or planting” that violate any restrictions imposed by the Minnesota Department of Natural Resources or any other governmental body having jurisdiction over the easement property.  The declaration grants lot owners the right to enforce declaration provisions.

            In 1992, Scott County amended its zoning ordinance to include a provision governing lots providing controlled-access to lakes:

            Lots intended as controlled accesses to public waters or as recreation areas for use by owners of nonriparian lots within subdivisions are permissible and must meet or exceed the following standards:

            1.  They must meet the width and size requirements for residential lots, and be suitable for the intended uses of controlled access lots.

            2.  If docking, mooring, or over-water storage of more than six (6) watercraft is to be allowed at a controlled access lot, then the width of the lot (keeping the same lot depth) must be increased twenty-five percent (25%) for each watercraft beyond six (6).

            3.  They must be jointly owned by all purchasers of lots in the subdivision or by all purchasers of nonriparian lots in the subdivision who are provided riparian access rights on the access lot; and

            4. Covenants or other equally effective legal instruments must be developed that specify which lot owners have authority to use the access lot and what activities are allowed.  The activities may include watercraft launching, loading, storage, beaching, mooring, or docking.  They must also include other outdoor recreational activities that do not significantly conflict with general public use of the public water or the enjoyment of normal property rights by adjacent property owners.  Examples of the nonsignificant conflict activities include swimming, sunbathing, or picnicking.  The covenants must limit the total number of vehicles allowed to be parked and the total number of watercraft allowed to be continuously moored, docked, or stored over water, and must require centralization of all common facilities and activities in the most suitable locations on the lot to minimize topographic and vegetation alterations.  They must also require all parking areas, storage buildings, and other facilities to be screened by vegetation or topography as much as practical from view from the public water, assuming, summer, leaf-on conditions.


Scott County, Minn., Zoning Ordinance No. 3, ch. 1, § 8-9-2 (1996).


            In the spring of 2000, respondents installed a dock in the water adjacent to the easement.  Scott County concluded that if there was not previously a dock at the end of the easement, the dock is an impermissible expansion of a legal nonconforming use.  In a July 28, 2000, letter to appellant Charles Robin, Marty Schmitz, a senior planner for the Scott County community development division, stated:

This letter is in regard to the joint access easement over Lot 6 Block 2 Canterbury Woods 2nd Addition.  Scott County views this easement as a legal nonconforming use.


A legal nonconforming use is a use that legally existed prior to the adoption of the Scott County Zoning Ordinance, but is not a permitted use under the current ordinance.  These uses can continue subject to the provisions [of the Scott County Zoning Ordinance].


The zoning ordinance contains the following provision governing a legal nonconforming use:

Any use which legally existed prior to the adoption date of this Ordinance, but which is not a permitted use under the current Ordinance, may be allowed to continue subject to the following provisions:

            1.  The use may not expand unless brought into compliance with this Ordinance.  If applicable, the use may be brought into compliance through the issuance of a conditional use, or interim use permit.


Scott County, Minn., Zoning Ordinance No. 3, ch. 1, § 1-9 (1996).



            On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  In re Estate of Palmen, 588 N.W.2d 493, 495 (Minn. 1999).  This court must view the evidence in the light most favorable to the nonmoving party.  Id.

1.         Appellants argue that the dock violates the Scott County Zoning Ordinance, thereby entitling them to require its removal under the declaration’s enforcement provision.

            The interpretation of an ordinance is a question of law, and a reviewing court need not defer to the district court’s conclusion.  Medical Servs., Inc. v. City of Savage, 487 N.W.2d 263, 266 (Minn. App. 1992).  Three rules guide interpretation of an ordinance:  (1) terms should be construed according to their plain and ordinary meanings;  (2) zoning ordinances should be strictly construed in favor of the property owner; and (3) the underlying policy goals of the ordinances must be considered.  Id.; see also Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 339 n.3 (Minn. 1984) (“Ordinances are construed according to the recognized principles of statutory construction.”).

            Under the Scott County Zoning Ordinance, a use that was previously legal “but which is not a permitted use under the current Ordinance” may not be expanded unless brought into compliance with the zoning ordinance.  Scott County, Minn., Zoning Ordinance No. 3, ch. 1, § 1-9, (1996).  The zoning ordinance defines “use” as “[t]he purpose or activity for which the land or building thereon is designated, arranged, or intended, or for which it is occupied, utilized or maintained.”  Id. at § 1-4.

Respondents argue that a controlled-access lot is a permissible use under the current zoning ordinance and, therefore, section 1-9 does not apply to the easement.  Respondents argue that the only nonconformity of the easement is that it fails to meet lot-size requirements.  Scott County, Minn., Zoning Ordinance No. 3, ch. 8, § 6-8-5-2(1) (1992).  But creating an easement to provide lake-access rights to nonriparian land owners also fails to comply with the requirement that a controlled-access lot be jointly owned by non-riparian lot owners who have access rights.  Id. at § 6-8-5-2(3).  A lake-access easement is not a permitted use under the current zoning ordinance; therefore, section 1-9 applies to the easement benefiting respondents’ lots.

            The next question is whether installation of the dock expanded the use of the easement.  The undisputed evidence shows that the dock facilitated access to the lake, that one end of the dock rested on the land, and that, in previous years, no dock had been installed on or along the easement.  Under these circumstances, the dock, as a matter of law, expanded use of the easement.

            Respondents argue that docking is a riparian right and that a local zoning ordinance cannot limit or eliminate a riparian right.  A riparian owner has the right to project docks to the point of navigability.  State by Head v. Slotness, 289 Minn. 485, 487, 185 N.W.2d 530, 532 (1971).  But riparian rights are subordinate to the public’s rights in navigable waters.  State v. Kuluvar, 266 Minn. 408, 418, 123 N.W.2d 699, 706 (1963).  Thus, riparian rights are subject to state regulation in the public interest.  Bartell v. State, 284 N.W.2d 834, 838 (Minn. 1979).

State regulations governing controlled-access lots are intended to address several possible impacts, including

prevention of overcrowding of lakes by people and watercraft, prevention of various “spill-over” impacts onto adjacent properties, and adequate control of the design and use of structures and other facilities on these lots to avoid soil erosion and preserve a natural appearance of the property as viewed from the lake.


            Overcrowding is proposed to be avoided by requiring all of these lots to at least meet the minimum size and width requirements for residential lots on the lake.  If the lot will be used for docking, mooring, or over-water storage of watercraft, then the size of the lot would have to be increased proportionately based on the number of watercraft intended to make use of the lot and the size and shape of the lake.


Minn. Dep’t of Natural Resources, Div. of Waters, Minn. Shoreland Management Program, Statement of Need and Reasonableness for the Proposed Revisions to Minnesota Rules Parts 6120.2500-6120.3900, pg. 19 (Aug. 1988).  Minn. R. 6120.3300, subpt. 2, provides that if a local government allows controlled-access lots, they must meet or exceed minimum size requirements and that lot size must be increased by at least a specified percentage when more than six watercraft are allowed to be docked at a controlled-access lot.

            The Scott County zoning ordinance is consistent with state regulations governing controlled-access lots, and the state regulations further the public interest.  The Scott County zoning ordinance prohibition against expanding the use of the easement benefiting respondents’ lots by adding a dock is a permissible restriction of any riparian rights respondents may have under the easement.  We, therefore, reverse the partial summary judgment for respondents and remand for proceedings consistent with this opinion.

            Because the zoning ordinance prohibits installation of the dock, the declaration’s voting requirement is inapplicable, so we reverse the partial summary judgment for appellants on the breach-of-declaration claim.

2.         Attorney fees generally are not recoverable absent authorization by a statute or a contract.  Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn. 1983); Glarner v. Time Ins. Co., 465 N.W.2d 591, 597 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).  When attorney fees are available, the reviewing court will only reverse an award when the trial court has abused its discretion.  Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn. 1987).

The declaration’s enforcement provision states:

[E]ach lot owner shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of the Declaration.  * * * Attorney’s fees and costs of any such actions to restrain violation or to recover damages shall be assessable against and payable by any person violating the terms contained herein.


Because installation of a dock is impermissible under the zoning ordinance, respondents violated a declaration restriction by installing it, and appellants are entitled to attorney fees on remand.

            Reversed and remanded.