After a Minnesota county's voters rejected the State Building Code in a referendum, can the county board later adopt the code by ordinance without going back to the voters?

Plain-English summary

On September 11, 1979, Douglas County (outside the City of Alexandria) held a special election asking "Shall the State Building Code be adopted in Douglas County?" The voters said no. Fifteen years later, the County Board considered adopting the State Building Code by ordinance instead. Douglas County Attorney Ann L. Carrott asked the AG whether the board could do that, and whether the matter could be put back to the voters in a new referendum.

The AG answered the first question no and the second question yes.

The relevant statute, Minn. Stat. § 16B.72, gave non-metropolitan counties a "referendum opt-out" for the State Building Code. If county voters outside cities that had adopted the code before January 1, 1977 voted no on the proposition, "the state building code does not apply in the subject county" outside those grandfathered cities. The AG read this as meaning: after a voter rejection, the code is gone, and the county cannot simply turn around and re-impose it by ordinance. To allow ordinance re-adoption would "effectively negate the statutory right of the voters to compel a referendum by petition and to express their will at the polls." The AG cited a 1989 AG opinion (Op. Atty. Gen. 59a-32) for the parallel rule that a city council may not disregard a referendum result by adopting an ordinance the voters rejected.

For the second question (resubmission), the AG read § 16B.72 to permit a fresh referendum. The statute said the county board "may submit to the voters at a regular or special election the question of adopting the building code" and "shall" submit it if 5% of last-general-election voters petitioned. Neither sentence was limited to never-voted-yet counties. The AG concluded that the broader purpose of the State Building Code framework (uniform construction standards across the state, subject only to a limited opt-out) supported reading the statute to allow a county that had said no to revisit the question later.

The practical takeaway for Douglas County was straightforward: the county could not adopt the State Building Code by ordinance after the 1979 negative referendum, but it could put the question back to the voters in a future election and let them choose again.

Currency note

This opinion was issued in 1994. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The AG opinion notes in its header that it was "SUPERSEDED BY OP. ATTY. GEN. 125A, OCTOBER 18, 2001." Anyone applying the 1994 reasoning today should also pull the 2001 opinion (already enriched in this corpus elsewhere or available on the AG site) to understand the modern position.

Historical context: what the AG concluded

The opinion turned on a careful read of Minn. Stat. § 16B.72 (1992). The AG quoted three sentences from the statute:

1. The opt-out: "Notwithstanding any other provision of law to the contrary, a county that is not a metropolitan county... may provide, by a vote of the majority of its electors residing outside of municipalities that have adopted the state building code before January 1, 1977, that no part of the state building code except the building requirements for handicapped persons applies within its jurisdiction."

2. The referendum mechanism: "The county board may submit to the voters at a regular or special election the question of adopting the building code. The county board shall submit the question to the voters if it receives a petition for the question signed by a number of voters equal to at least five percent of those voting in the last general election. The question on the ballot must be stated substantially as follows: 'Shall the state building code be adopted in ___ County?'"

3. The effect of a "no" vote: "If the majority of the votes cast on the proposition is in the negative, the state building code does not apply in the subject county, outside home rule charter or statutory cities or towns that adopted the building code before January 1, 1977..."

The AG read the first and third sentences together to mean that after a voter rejection, the code is off the table for the county outside grandfathered cities. The statute "preclus[es]" code application in the subject county. The only escape valves the statute itself recognizes are (a) later voluntary adoption by an individual home-rule or statutory city, and (b) resubmission of the same question to the voters in a later referendum. The statute "does not expressly authorize the county itself to adopt the code by ordinance following a negative referendum result." Implication of such authority would defeat the referendum right the legislature gave to county voters.

On the resubmission question, the AG noted the second sentence is "much more ambiguous." If read literally with the third sentence, once a county votes no the code might never apply again. But the second sentence's referendum mechanism is not limited to counties that have never voted. The AG read it to authorize resubmission, reasoning that the legislature's broader purpose was to provide "basic and uniform building construction standards throughout the state, subject to a limited right of the people in certain counties to avoid its application." That purpose is served by letting a county that once said no consider the question again later.

The opinion does not address the timing of resubmission (how soon after a no vote can the question return), and does not address whether the petition-triggered route (5% of last general election voters) functions the same way as the board-initiated route after a prior negative vote.

Common questions

Q: Could Douglas County have adopted some pieces of the State Building Code by ordinance even after the no vote?
A: The opinion does not parse a piecemeal adoption scenario. It addresses the whole-code adoption that the county board apparently contemplated. The statute's "no part of the state building code except the building requirements for handicapped persons" language suggests that even partial post-referendum re-adoption by ordinance would be problematic.

Q: Did individual cities in Douglas County still have to follow the State Building Code despite the no vote?
A: Cities that had adopted the State Building Code before January 1, 1977 (grandfathered cities) continued to apply it. Cities and towns that had not adopted it before that date could voluntarily adopt it on their own, independent of the county vote.

Q: What happens to handicapped-accessibility building requirements after a county no vote?
A: The statute explicitly preserves "the building requirements for handicapped persons" even when the rest of the code is rejected. These continued to apply in non-adopting counties.

Q: Has the legislature since changed § 16B.72?
A: The opinion is based on the 1992 version of the statute, and a later opinion (Op. Atty. Gen. 125a, Oct. 18, 2001) supersedes parts of this 1994 opinion. The State Building Code provisions have moved between chapters and been substantially amended since 1994. Anyone applying this opinion today should check the current location in Minn. Stat. (now Minn. Stat. ch. 326B and related provisions) and the 2001 superseding opinion.

Q: Can a Minnesota city overturn a voter-rejected ordinance simply by passing a new ordinance?
A: The 1989 AG opinion (Op. Atty. Gen. 59a-32) cited here said no: a city council may not adopt an ordinance the voters had rejected by referendum. That principle, parallel to the 125a result, would prevent that workaround.

Q: Is the AG's reasoning binding on a Minnesota court?
A: No, AG opinions are advisory. But the reasoning here closely tracks the statutory text and the implied-prohibition principle from the legislature having spoken on a topic. A court would likely follow the same reasoning.

Background and statutory framework

Minnesota adopted a statewide State Building Code in 1971 (Laws 1971, ch. 561) and required cities, counties, and urban towns to adopt and enforce it by July 1, 1977. Two years after that effective date, the legislature created the referendum opt-out for non-metropolitan counties, then codified at Minn. Stat. § 16B.72 (1992). The opt-out narrowly preserved the building requirements for handicapped persons while letting county voters reject the rest of the code.

Section 16B.59 stated the purpose of the State Building Code program: uniform construction standards. Section 16B.62 was the general adoption requirement. Section 16B.72 was the referendum opt-out. Section 16B.73 was the enforcement framework.

The 1994 opinion read these together to mean: the State Building Code was the statewide default, and counties could opt out only by voter referendum. Once they opted out, ordinance re-adoption was not a permissible escape.

The opinion is signed by Assistant Attorney General Kenneth E. Raschke, Jr., on behalf of AG Hubert H. Humphrey III. The PDF header notes the opinion was superseded by Op. Atty. Gen. 125a, October 18, 2001.

Citations and references

Statutes:
- Minn. Stat. §§ 16B.59-16B.73 (1992)
- Minn. Stat. § 16B.72 (1992) (principal provision)
- Laws of June 2, 1977, ch. 381, § 1, 1977 Minn. Laws 847, 848 (original statewide adoption deadline)

Other AG opinions referenced:
- Op. Atty. Gen. 59a-32, December 20, 1989 (city council may not adopt ordinance rejected by voters)
- Op. Atty. Gen. 125a, October 18, 2001 (superseding this opinion)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/125a-19940420.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

SUPERSEDED BY OP. ATTY. GEN. 125A, OCTOBER 18, 2001

COUNTY: BUILDING CODE: ADOPTION: County, wherein building code was rejected by referendum, may not adopt code by ordinance. Matter of code application may be resubmitted to referendum. Minn. Stat. § 16B.72 (1992).

125a
(Cr. Ref. 59a-9)
April 20, 1994

Ann L. Carrott
Douglas County Attorney
Douglas County Courthouse
305 8th Avenue West
Alexandria, MN 56308

Dear Ms. Carrott:

In your letter to our office, you set forth substantially the following.

FACTS

On September 11, 1979, a special election was held in Douglas County (exclusive of the City of Alexandria). The question presented to the voters was "Shall the State Building Code be adopted in Douglas County?" The vote was that Douglas County should not adopt the state building code. It has recently been proposed that the county adopt the State Building Code by ordinance. You then ask substantially the following questions:

QUESTION ONE

May the county adopt the State Building Code by ordinance in the described circumstances?

OPINION

We answer your question in the negative.

Beginning July 1, 1977, all cities, counties and urban towns were required to adopt and enforce the State Building Code within their respective jurisdictions. See Act of June 2, 1977, ch. 381, § 1, 1977 Minn. Laws 847, 848. However, that requirement was substantially modified two years later when the legislature authorized non-metropolitan counties to conduct referenda upon the application of the code within the areas of their counties outside municipalities which had voluntarily adopted the code before 1977. That authority, now contained in Minn. Stat. § 16B.72 (1992) provides in part:

Notwithstanding any other provision of law to the contrary, a county that is not a metropolitan county as defined by section 473.121, subdivision 4, may provide, by a vote of the majority of its electors residing outside of municipalities that have adopted the state building code before January 1, 1977, that no part of the state building code except the building requirements for handicapped persons applies within its jurisdiction.

The county board may submit to the voters at a regular or special election the question of adopting the building code. The county board shall submit the question to the voters if it receives a petition for the question signed by a number of voters equal to at least five percent of those voting in the last general election. The question on the ballot must be stated substantially as follows:
"Shall the state building code be adopted in ___ County?"

If the majority of the votes cast on the proposition is in the negative, the state building code does not apply in the subject county, outside home rule charter or statutory cities or towns that adopted the building code before January 1, 1977, except the building requirements for handicapped persons do apply.

Nothing in this section precludes a home rule charter or statutory city or town that did not adopt the state building code before January 1, 1977, from adopting and enforcing the state building code within its jurisdiction.

(Emphasis added).

Thus, it seems clear that after a referendum against code application, the code will not apply in the county outside cities and towns that had adopted the code before 1977. While this preclusion is subject to later voluntary adoption of the code by "a home rule or statutory city or town," there appears no express authority for the county itself to adopt the code by ordinance following a negative referendum result. Nor should such authority be implied. To do so would effectively negate the statutory right of the voters to compel a referendum by petition and to express their will at the polls. Cf. Op. Atty. Gen. 59a-32, December 20, 1989 (City Council may not disregard referendum result by adopting ordinance rejected by voters.)

QUESTION TWO

May the application of the code be resubmitted to referendum pursuant to Minn. Stat. § 16B.72 (1992)?

OPINION

We answer your questions in the affirmative. While the express statutory language is much more ambiguous on this issue, we believe that resubmission to the voters should be permitted to further the underlying purposes of the legislation pertaining to the code. As noted above, Section 16B.72 provides that:

A county that is not a metropolitan county as defined by section 473.121, subdivision 4, may provide, by a vote of the majority of its electors residing outside of municipalities that have adopted the state building code before January 1, 1977, that no part of the state building code except the building requirements for handicapped persons applies within its jurisdiction.

If the majority of the votes cast on the proposition is in the negative, the state building code does not apply in the subject county, outside home rule charter or statutory cities or towns that adopted the building code before January 1, 1977, except the building requirements for handicapped persons do apply.

(Emphasis added).

That language, if applied literally, would suggest that once a negative referendum result occurs, the code may never again apply to areas of the county outside cities and towns that had adopted the code before January 1, 1977, or voluntarily adopted it thereafter.

However, the remaining language of the section does not support the one-way approach to the question. The paragraph falling in between the paragraphs quoted above states:

The county board may submit to the voters at a regular or special election the question of adopting the building code. The county board shall submit the question to the voters if it receives a petition for the question signed by a number of voters equal to at least five percent of those voting in the last general election. The question on the ballot must be stated substantially as follows:
"Shall the state building code be adopted in ___ County?"

Id. (Emphasis added)

This language is not limited to cases where the voters wish to halt application of the code, but also encompasses cases where the code is not in effect and the issue is whether to adopt it in the future.

In light of the apparent general purpose of Minn. Stat. §§ 16B.59-16B.73 to provide basic and uniform building construction standards throughout the state, subject to a limited right of the people in certain counties to avoid its application (see Minn. Stat. §§ 16B.59, 16B.62, 16B.72 (1992)), we are inclined to construe section 16B.72 to permit the people of a county which has rejected the code to later support its adoption by means of a subsequent referendum.

Best regards.

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General