                         This opinion will be unpublished and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
                                    A15-1406

                                   John Aydt, et al.,
                                     Appellants,

                                           vs.

                                Steven A. Hensel, et al.,
                                     Respondents,

                                  City of St. Michael,
                                     Respondent.

                                 Filed March 21, 2016
                                       Affirmed
                                  Kalitowski, Judge


                             Wright County District Court
                              File No. 86-CV-15-2072

John T. Peterson, Johnson, Larson & Peterson, P.A., Buffalo, Minnesota (for appellants)

Sylvia Ivey Zinn, John Patrick Brendel, Brendel and Zinn, Ltd., Lake Elmo, Minnesota
(for respondents Steven A. Hensel, et al.)

David J. Lenhardt, Gries & Lenhardt, P.L.L.P., St. Michael, Minnesota (for respondent
City of St. Michael)

      Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and

Kalitowski, Judge.



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                         UNPUBLISHED OPINION

KALITOWSKI, Judge

       Appellants John and Sheila Aydt argue the district court erred by granting

respondents Steven and Lois Hensel’s motion to discharge a lis pendens recorded by the

Aydts. We affirm.

                                      DECISION

       Absent disputed facts, this court reviews the basis for discharging a notice of

lis pendens de novo. Nelson v. Nelson, 415 N.W.2d 694, 697 (Minn. App. 1987). “[T]he

sole function of [a] lis pendens is to give constructive notice to all the world of the

pendency of [an] action, which is, alone, notice to all persons of the rights and equities of

the party filing the lis pendens in the land therein described.” Trask v. Bodson, 141

Minn. 114, 117, 169 N.W. 489, 490 (1918). Minn. Stat. § 557.02 (2014) governs when a

notice of lis pendens may be recorded. It states:

                     In all actions in which the title to, or any interest in or
              lien upon, real property is involved or affected, or is brought
              in question by either party, any party thereto, at the time of
              filing the complaint, or at any time thereafter during the
              pendency of such action, may file for record with the county
              recorder of each county in which any part of the premises lies
              a notice of the pendency of the action, containing the names
              of the parties, the object of the action, and a description of the
              real property in such county involved, affected or brought in
              question thereby.

Minn. Stat. § 557.02. Under the statute, “a notice of lis pendens may be properly filed

only if plaintiff pleads a cause of action which involves or affects the title to, or any




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interest in or a lien upon, specifically described real property.”      Rehnberg v. Minn.

Homes, Inc., 236 Minn. 230, 233-34, 52 N.W.2d 454, 456 (1952).

       Here, the Aydts alleged causes of action against the Hensels and respondent City

of St. Michael. They alleged that the Hensels committed a trespass and a nuisance by

building a shed too close to the property line that the two parties share. They alleged that

the City of St. Michael violated the Aydts’ procedural and substantive due-process rights

as well as denied them equal protection by granting the Hensels a setback variance that

allowed them to build the shed 0.8 feet from their property line. In their prayer for relief,

the Aydts requested (1) declaratory judgment that the city’s variance from November 7,

2012 is void; (2) a writ of mandamus compelling the city to vacate the variance;

(3) declaratory judgment that the city acted unconstitutionally and unlawfully when it

granted the variance; (4) monetary damages along with costs, disbursements, and

attorney fees; and (5) issuance of an order to the Hensels to abate the nuisance.

       After the Aydts filed their summons and complaint, they recorded a notice of

lis pendens on the Hensels’ property. The Hensels responded with a motion to the district

court to discharge or remove the notice of lis pendens on the ground that the Aydts’

complaint does not support the recording of the notice. The district court agreed and

granted the Hensels’ motion.

       On appeal, the Aydts concede that their claims of trespass and nuisance have not

been recognized as supporting the recording of a notice of lis pendens. But they claim

that they have a sufficient property interest based on their allegation that pursuant to the

city’s unlawful approval of the variance, the Hensels’ shed violates the side-yard setback


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ordinance. The Aydts contend that the shed “robs [them] as adjacent property owners of

the beneficial use and enjoyment of their property.”

       But the Aydts’ argument is contrary to Minnesota Supreme Court precedent.

According to the supreme court:

              No one acquires any right of passage or other use to the
              exclusion of the owner over that part of the lot upon which
              buildings or structures are forbidden [by an ordinance
              establishing setback lines]. The effect of setback lines and
              open yards and spaces in zoning ordinances is merely to
              regulate the use of property. It gives no beneficial use to
              another, except as light and air may rest undisturbed in the
              space where structures are prohibited. This restriction of use
              is based upon the exercise of the police power for the general
              welfare, and is not based on contract rights or the exercise of
              the power of eminent domain.

McCavic v. DeLuca, 233 Minn. 372, 378, 46 N.W.2d 873, 876 (1951) (emphasis added)

(quotation omitted). The Aydts acknowledge “that Minnesota law has recognized that

zoning ordinances do not create a property right in adjacent landowners” but seek to

distinguish this case on the facts.

       They argue this case is different than McCavic because the Hensels’ shed was 0.8

feet away from the neighboring property line as opposed to 8 feet like the property in

McCavic. Id. at 374, 46 N.W.2d at 874. But the rule in McCavic does not differentiate

between properties that slightly encroach the setback line and those that encroach a great

deal. Id. Moreover, we see no basis to rely on somewhat different facts to ignore the

supreme court’s bright-line rule. Nor are we convinced that it would be consistent with

the language of Minn. Stat. § 557.02. Thus, we conclude that the alleged violation of the




                                            4
setback ordinance and the action against the city does not support the recording of a

notice of lis pendens.

       Although the Aydts concede that their trespass claim alone does not support

granting a notice of lis pendens, they argue that the water runoff from the shed is a

continuing trespass and that it would be impossible for the Hensels to conduct any

maintenance on the shed without trespassing. But the proper remedy for a continuing

trespass to land is the reasonable rental value of that land during the period of trespass.

In re Minnwest Bank Litig. Concerning Real Prop. v. RTB, LLC, 873 N.W.2d 135, 147

(Minn. App. 2015).       And the proper remedy for a single trespass is monetary

“compensation for all damages to the property resulting from the trespass.” Ziebarth v.

Nye, 42 Minn. 541, 544, 44 N.W. 1027, 1028 (1890). The payment of reasonable rental

value, or monetary damages of any type, does not affect or involve title to or any interest

in or lien upon real property under Minn. Stat. § 557.02.

       We conclude that the district court did not err by granting the Hensels’ motion to

discharge or remove the notice of lis pendens because none of the Aydts’ claims involve,

affect, or bring into question “title to, or any interest in or lien upon, real property[.]”

Minn. Stat. § 557.02.

       Affirmed.




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