Op. Atty. Gen. 59a-32 (Cr. Ref. 441h 477b-34) ( 2002 )

MUNICIPALITIES: ZONING: AMENDMENT: With certain exceptions, municipal zoning
ordinances may be adopted or amended by majority vote of governing body notwithstanding
charter provision, or ordinance requiring greater majority. Minn. Stat. §§ 462.351, 462.357.
59a-32
(Cr. Ref. 441h; 477b-34)
January 25, 2002
Mr. Brian D. Neugebauer
Moorhead City Attorney
Ohnstad Twichell, P.C.
901 13th Avenue East
P.O. Box 458
West Fargo, ND 58078-0458
Dear Mr. Neugebauer:
Thank you for your letter concerning the number of city council votes required to adopt
or amend zoning ordinances.
FACTS
In 2001, the legislature amended Minn. Stat. § 462.357, subd. 2 to reduce the necessary
voting majority for adoption or amendment of most municipal zoning ordinances from two-thirds
to a simple majority of all members of the governing body. The City of Moorhead, a home-rule
charter city, has enacted a zoning ordinance that requires a two-thirds council vote on all zoning
issues in accordance with the previous state law.
You ask whether a home-rule charter city may adopt a more restrictive voting
requirement than that required by state statute for adoption or amendment of zoning ordinances.
OPINION
We answer your question in the negative.
First, it is well established that local units of government have no inherent powers, but
can only take those actions expressly authorized by statute or home-rule charter or implied as
necessary to carry out the powers expressly conferred. See, e.g., Borgelt v. City of Minneapolis,
271 Minn. 249, 135 N.W.2d 438 (1965); Alexander v. City of Minneapolis; 267 Minn. 155,
125 N.W.2d 583 (1963); City of Birchwood Village v. Simes, 576 N.W.2d 458 (Minn. Ct.
App. 1998). Authority for municipalities to enact land use controls, including zoning
ordinances, is expressly provided by Minn. Stat. §§ 462.351, et seq. See, e.g., Alexander.
Prior to 2001, Minn. Stat. § 4562.357, subd. 2 (2000) authorized adoption or amendment
of zoning ordinances only by a two-thirds vote of all members of the governing body.
Mr. Brian D. Neugebauer
January 25, 2002
Page 2
According to the facts provided, the Moorhead zoning ordinance is consistent with that
requirement. It appears that two-thirds voting requirement in the ordinance was based solely
upon the provisions of section 462.357, subd. 2 (2000). As you have noted, however, the
legislature, by the Act of May 29, 2001, ch. 207 § 13, 2001 Minn. Laws 849, 854, amended that
subdivision as follows:
Subd. 2. GENERAL REQUIREMENTS. (a) At any time after the
adoption of a land use plan for the municipality, the planning agency, for the
purpose of carrying out the policies and goals of the land use plan, may prepare a
proposed zoning ordinance and submit it to the governing body with its
recommendations for adoption.
(b) Subject to the requirements of subdivisions 3, 4 and 5, the governing
body may adopt and amend a zoning ordinance by a majority vote of all its
members. The adoption or amendment of any portion of a zoning ordinance
which changes all or part of the existing classification of a zoning district from
residential to either commercial or industrial requires a two-thirds majority vote
of all its members of the governing body.
(c) The land use plan must provide guidelines for the timing and sequence
of the adoption of official controls to ensure planned, orderly, and staged
development and redevelopment consistent with the land use plan.
(Underlined material added by amendment.)
Therefore, after the effective date of the 2001 amendment, there appears no remaining statutory
authority for imposition of a two-thirds voting requirement for municipal zoning enactments
other than those changing residential classification to commercial or industrial. Rather, a
majority of the members of each city council is statutorily authorized to adopt or amend zoning
ordinances.
Second, the fact that the statutory language is permissive in nature does not authorize the
city to impose conditions or restrictions at variance with those expressly provided by statute.
Cf., RES Investment Co. v. County of Dakota, 494 N.W.2d 64 (Minn. Ct. App. 1992) (County
board did not have authority to impose limits on their own statutory jurisdiction to consider tax
abatement applications). Nor may a council, by ordinance, impair or divest its successors’
legislative power. See, e.g., Minneapolis Street Railway Co. v. City of Minneapolis,
229 Minn. 502, 40 N.W.2d 353 (1949) (Municipal corporation cannot, by contract, surrender or
curtail police power); Hanna v. Rathje, 171 N.W.2d 876 (Ia. 1969) (City zoning ordinance could
not impair successors’ authority to amend); 4, McQuillin, Municipal Corporations § 13.03.15
(3rd Ed. ).
Finally, it is our opinion that the statutory provision for enacting or amending zoning
ordinances by a majority vote supercedes any contrary provision that might be found in a city’s
Mr. Brian D. Neugebauer
January 25, 2002
Page 3
charter. Pursuant to the Constitution,1 the legislature has granted city residents substantial
authority to adopt home-rule charters, to empower and direct the governance of their cities and to
provide for city legislation on matters of municipal concern. See Minn. Stat. § 410.07 (2000)
State ex rel Town of Lowell v. City of Crookston, 252 Minn. 526, 91 N.W.2d 81 (1958). That
grant of power does not, however, impair the ultimate power of the legislature to pre-empt local
authority on matters it considers to be of statewide concern. Id., Lilly v. City of Minneapolis,
527 N.W.2d 107 (Minn. Ct. App. 1995). As to matters of zoning, the legislature has made clear
its intent that the provision of sections 462.351 et seq. should be followed, rather than any
conflicting local enactments. Minn. Stat. § 462.351 specifically states:
It is the purpose of sections 462.351 to 462.364 to provide municipalities, in a
single body of law, with the necessary powers and a uniform procedure for
adequately conducting and implementing municipal planning.
Furthermore, section 462.352 defines the term municipality for purposes of sections 462.351 to
462.364 to mean, “any city, including a city operating under a home rule charter . . . ”
For the foregoing reasons, it is our opinion that Minn. Stat. § 471.357, subd. 2 (Supp.
2001), authorizing adoption or amendment of certain zoning ordinances by a majority of all
members of the governing body, prevails over inconsistent municipal ordinances or charter
provisions. This reasoning is consistent with that reached in Op. Atty. Gen. 59A-32, October 13,
1955, which determined that the statutory requirement for a two-thirds vote to amend a zoning
ordinance prevailed over inconsistent provisions in a city charter and ordinance.
Respectfully submitted,
MIKE HATCH
Attorney General
KENNETH E. RASCHKE, JR.
Assistant Attorney General
AG: 540296,v. 01
1
Minn. Const. art. XII, § 4.