If a Minnesota county rejected the State Building Code in a 1979 referendum, can the county now adopt the Code by ordinance without going back to the voters?

Plain-English summary

Blue Earth County adopted the Minnesota State Building Code by ordinance in June 1978, effective January 1, 1979. Two months later, in March 1979, county voters held a referendum on whether to keep the Code, and the result was rejection. Twenty-two years later, the county board wanted to adopt the Code again. Blue Earth County Attorney Ross Arneson wrote to the AG: did the county have to go back to the voters, or could the board just adopt the Code by ordinance?

The 1994 AG opinion (Op. Atty. Gen. 125a, April 20, 1994) had answered that question one way: a county could not bypass a failed referendum by simply passing an ordinance. The voters' decision controlled until another referendum. But the 1994 opinion was based on the 1992 version of Minn. Stat. § 16B.72.

The legislature amended § 16B.72 twice between then and now. First in 1994 (Act of May 10, 1994, ch. 634, art. 2, § 8), the legislature changed the statute's last sentence from "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" to "Nothing in this section precludes a municipality that did not adopt the state building code before January 1, 1977, from adopting and enforcing by ordinance or other legal means the state building code within its jurisdiction" (emphasis on the substituted word "municipality"). Then in 1998 (Act of April 3, 1998, ch. 359), the legislature deleted "before January 1, 1977" entirely.

The key was the defined term "municipality." Under Minn. Stat. § 16B.60 (1994), "municipality" included counties along with cities and urban towns. So the 1994 amendment changed the safe-harbor sentence from one that covered only cities and towns to one that covered counties too. The 1998 amendment removed the temporal cutoff. Read together, the post-1998 § 16B.72 says any municipality (including a county) that does not currently have the Code in effect may adopt and enforce it by ordinance, regardless of whether it has voluntarily adopted it before or had it rejected in a referendum.

The AG flagged the alternative reading: "has not adopted" might mean has never adopted at any time. But under the 1977 statewide mandate, every city, county, and urban town had to adopt the Code between 1977 and 1978. So "never adopted" would apply to nobody. Such an absurd and ineffectual result was presumably not what the legislature intended, citing Minn. Stat. § 645.17. The better reading: "has not adopted" includes municipalities where the Code is not in effect, including counties where it was repealed by referendum.

So Blue Earth County could adopt the Code by ordinance. The April 1994 AG opinion was superseded "to the extent inconsistent."

Currency note

This opinion was issued in 2001. 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 State Building Code framework has moved between statutory chapters since 2001; the current locations are in Minn. Stat. ch. 326B and related provisions. Anyone applying this opinion today should check the current location of the referendum-and-ordinance authority, and any subsequent legislative changes to how counties may opt back into the Code.

Historical context: what the AG concluded

The opinion is a careful piece of statutory archaeology. Three statutory snapshots matter.

1979 (Section 16.868, later recodified as 16B.72). The original referendum-opt-out language as it stood when Blue Earth County rejected the Code: "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 prior to January 1, 1977, that no portion of the state building code except the building requirements for handicapped persons shall apply within its jurisdiction." After a negative vote, "the state building code shall not apply in the subject county, outside home rule charter or statutory cities or towns that adopted the building code prior to January 1, 1977." The safe-harbor language at the end: "Nothing in this section shall preclude a home rule charter or statutory city or town that did not adopt the state building code prior to January 1, 1977, from adopting and enforcing the state building code within its jurisdiction." Note that the safe harbor did not include counties.

Post-1994 amendment. The Act of May 10, 1994, ch. 634, art. 2, § 8 changed the safe harbor to: "Nothing in this section precludes a municipality that did not adopt the state building code before January 1, 1977, from adopting and enforcing by ordinance or other legal means the state building code within its jurisdiction." The word "municipality" (defined to include counties under § 16B.60 (1994)) replaced "home rule charter or statutory city or town."

Post-1998 amendment. The Act of April 3, 1998, ch. 359 deleted "before January 1, 1977": "Nothing in this section precludes a municipality that has not adopted the state building code from adopting and enforcing by ordinance or other legal means the state building code within its jurisdiction." That language remained in effect at the time of this opinion.

The 1994 AG opinion (125a, April 20, 1994) interpreted the 1992 version of the statute. Under that earlier version, the safe harbor only covered cities and towns, so a county that had rejected the Code by referendum could not adopt it by ordinance; it could only revisit the question by holding another referendum. The 1994 amendment overturned the textual basis for that interpretation by extending the safe harbor to "municipalities" (which includes counties).

The 1998 amendment then removed the limiting date language. The literal language ("has not adopted") might be read to require that the municipality have never adopted the Code at any time. But the AG noted that everyone had been required to adopt the Code between 1977 and 1978 under the original statewide mandate, so the literal reading would make the safe harbor apply to no one. Minn. Stat. § 645.17 directs courts to assume the legislature did not intend "an absurd or unreasonable result." The AG read "has not adopted" to include municipalities where the Code is currently not in effect, including counties where the Code had been repealed by referendum.

So Blue Earth County, which had had the Code briefly in effect (June 1978 ordinance, January 1979 effective date, March 1979 negative referendum), was now in the same posture as a county that had never adopted it: the Code was not in effect. The safe-harbor language let the county board re-adopt by ordinance without another referendum.

This was a meaningful change in MN AG advice. The 1994 opinion read the law as preserving voter sovereignty: once the voters had said no, the board could not override. The 2001 opinion, applying the amended statute, read the law as preserving local discretion: a county could opt back in by ordinance without going back to the voters. Anyone relying on the older 1994 opinion would now reach a wrong answer for any county that had a similar Code-rejection history.

Common questions

Q: I'm a county commissioner. Our county rejected the State Building Code by referendum in the 1980s. Can we adopt it by ordinance now?
A: Under the 2001 opinion, yes. The 1994 and 1998 amendments to § 16B.72 changed the rule. Once the Code is not in effect in your county (whether because it was never adopted or because a referendum repealed it), the board can adopt it by ordinance under the statute's safe-harbor language. The 2001 opinion explicitly superseded the 1994 opinion to the extent inconsistent. Confirm the current statute before acting; the State Building Code provisions have moved between chapters since 2001 and are now in Minn. Stat. ch. 326B and related provisions.

Q: Do residents have any way to challenge the board's re-adoption?
A: The 2001 opinion doesn't address that. The statute as it stood in 2001 did not require a confirming referendum for ordinance re-adoption, but the voters could still circulate a petition to initiate a new referendum on the question (assuming the county is non-metropolitan, the petition-triggered referendum mechanism in § 16B.72 remained in place). Cities and towns within the county that had not adopted the Code before January 1, 1977 still have their own discretion under the statute. Check the current statute for the petition mechanism and timing rules.

Q: Does this mean the 1979 voter rejection in Blue Earth County was meaningless?
A: It was effective at the time and kept the Code out of Blue Earth County for over 20 years. The legislative changes since then changed the rules going forward. Voter referenda on the Code remain available under § 16B.72; the legislature did not remove the referendum mechanism. The change was that the board no longer needs to go back to the voters before re-adopting after a prior rejection.

Q: Why did the legislature make this change?
A: The 2001 opinion does not recount specific legislative history. The structural shift (1979 narrow safe harbor for cities/towns, 1994 broader safe harbor for "municipalities," 1998 removal of the date restriction) reflects a legislative pattern of expanding local-government discretion to adopt and enforce the Code. The State Building Code is the statewide default; the referendum opt-out is a narrow carve-out, and the recent legislative trajectory has been toward making the carve-out narrower and easier to reverse.

Q: Does this opinion apply to cities that rejected the Code by referendum?
A: The opinion specifically addresses counties. Cities and towns operate under somewhat different mechanics under § 16B.72 (they could voluntarily adopt the Code at any time, even pre-1994, if they had not done so before January 1, 1977). The post-1998 language ("a municipality that has not adopted the state building code may adopt and enforce by ordinance") encompasses both, but a city or town with its own prior Code history should still pull the statute and consult counsel to confirm the rule for its specific situation.

Background and statutory framework

Minnesota adopted a statewide State Building Code in 1971 and required all cities, counties, and urban towns to adopt and enforce it by July 1, 1977 (Act of June 2, 1977, ch. 381, §§ 1, 2). In 1979, the legislature added a referendum opt-out for non-metropolitan counties (Act of May 31, 1979, ch. 287, § 2). The opt-out preserved the building requirements for handicapped persons but let county voters reject the rest of the Code.

The 1979 opt-out came codified at Minn. Stat. § 16.868, recodified at § 16B.72 in 1984. The 1994 amendment broadened the safe harbor (substituting "municipality" for "home rule charter or statutory city or town"). The 1998 amendment removed the "before January 1, 1977" date restriction. The 2001 opinion applied the post-1998 statute to a county with a 1979 Code-rejection history.

Subsequent amendments have moved Minnesota's State Building Code framework into Minn. Stat. ch. 326B and related provisions. The principle that municipalities (including counties) may adopt or re-adopt the Code by ordinance appears to remain part of Minnesota practice but should be confirmed against the current statutes.

Mike Hatch was AG in 2001. Assistant AG Kenneth E. Raschke, Jr. authored this opinion as he did many in the 1990s and 2000s on local-government and election questions.

Citations and references

Statutes (as in effect in 2001):
- Minn. Stat. § 16B.60 (1994) (definition of "municipality" includes counties)
- Minn. Stat. § 16B.72 (2000) (referendum opt-out and safe harbor)
- Minn. Stat. § 645.16 (statutory interpretation: consider other laws on similar subjects)
- Minn. Stat. § 645.17 (legislature does not intend an absurd result)

Session laws:
- Act of June 2, 1977, ch. 381, §§ 1, 2, 1977 Minn. Laws 847, 848 (statewide adoption mandate)
- Act of May 31, 1979, ch. 287, § 2, 1979 Minn. Laws 626, 631 (county referendum opt-out, originally Section 16.868)
- Act of May 10, 1994, ch. 634, art. 2, § 8, 1994 Minn. Laws 2130, 2147 ("municipality" amendment)
- Act of April 3, 1998, ch. 359, 1998 Minn. Laws 590, 598 (removal of January 1, 1977 cutoff)

Prior AG opinions:
- Op. Atty. Gen. 125a, April 20, 1994 (county may not adopt Code by ordinance after voter rejection; superseded by this 2001 opinion to extent inconsistent)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/125a-20011018.pdf

Original opinion text

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

COUNTY: BUILDING CODE: ADOPTION: County may adopt and enforce State Building Code by ordinance notwithstanding previous referendum. Op. Atty. Gen. 125a. April 20, 1994, superceded. Minn. Stat. § 16B.72 (2000).

125a
(Cr. Ref. 59a-9)
October 18, 2001

Ross E. Arneson
Blue Earth County Attorney
410 South Fifth Street
P.O. Box 3129
Mankato, MN 56002-3129

Dear Mr. Arneson:

Thank you for your letter of September 18, 2001 in which you request an opinion of the Attorney General concerning the authority of Blue Earth County to adopt the State Building Code under the facts described below.

FACTS

The Minnesota State Building Code was adopted on June 28, 1978 by ordinance in Blue Earth County, with an effective date of January 1, 1979. On March 11, 1979, a referendum was held in the County on the question of adoption of the building code. The result of the referendum was to reject the building code.

You ask if Blue Earth County wishes to adopt the building code at this time, must the adoption be by means of a referendum since it was defeated by referendum, or can it be by means of the county board passing an ordinance.

ANALYSIS

In our opinion, the county board of commissioners may adopt the Minnesota State Building Code by ordinance.

Legislation governing adoption and enforcement of the State Building Code has changed substantially over the past twenty-five years. Prior to 1977 local governments were permitted, but not required, to adopt the State Building Code. Beginning on July 1, 1977, all cities, counties and urban towns were required to adopt and enforce the Code within their jurisdictions. See Act of June 2, 1977, ch. 381, §§ 1, 2, 1977 Minn. Laws 847, 848. However, in 1979 the legislature authorized non-metropolitan counties to conduct referenda on the application of the code outside of municipalities that had voluntarily adopted the Code before January 1, 1977. Act of May 31, 1979, ch. 287 § 2, 1979 Minn. Laws 626, 631. That section provided:

Sec. 2 [16.868] REFERENDA ON STATE BUILDING CODE IN NON-METROPOLITAN COUNTIES. 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 prior to January 1, 1977, that no portion of the state building code except the building requirements for handicapped persons shall apply within its jurisdiction.

The county board may, and upon petition therefor signed by voters equal in number to at least five percent of those voting in the last general election shall submit to the voters at a regular or special election the question of adopting the building code. The question on the ballot shall 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 shall not apply in the subject county, outside home rule charter or statutory cities or towns that adopted the building code prior to January 1, 1977, except the building requirements for handicapped persons shall apply.

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

(Emphasis added)

[Footnote 1: From 1972 to 1977, the State Building Code superceded other municipal building codes previously adopted and was applicable to any municipality choosing to adopt a building code.]

In Op. Atty. Gen. 125A, April 20, 1994, this office determined that, under that emphasized language, cities and towns could voluntarily adopt and enforce the Code notwithstanding a negative referendum vote within their county. However a county could not adopt or enforce the code following a negative referendum vote absent approval at a subsequent referendum.

[Footnote 2: In 1984, Section 16.868 was recodified at Section 16B.72.]

Following that opinion, the language of Sections 16B.72 was amended in part as follows:

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

Act of May 10, 1994, ch. 634, art. 2, § 8, 1994 Minn. Laws 2130, 2147. Inasmuch as the definition of "municipality" included counties in addition to cities and urban towns, the plain wording of the statute permits counties that had not adopted the Code before January 1, 1977 to adopt the Code by ordinance, in spite of a negative referendum.

[Footnote 3: Minn. Stat. § 16B.60 (1994).]

The language of Section 16B.72 was amended yet again in 1998 to remove the limiting date as follows:

Nothing in this section precludes a municipality or town that did has not adopt adopted the state building code before January 1, 1977, from adopting and enforcing by ordinance or other legal means the state building code within its jurisdiction.

Act of April 3, 1998, ch. 359 and 314, 1998 Minn. Laws 590, 598. That language has not been changed. It is possible to interpret this present language as permitting voluntary Code adoption by only those municipalities that had never adopted the Code at any time in the past. However, since all municipalities were mandated by law to adopt the Code between July 1, 1977, and July 1, 1978, such a construction would mean that the permissive-adoption language would apply to no municipalities, or at least to no municipalities that had complied with the 1977 law. Such an absurd and ineffectual result was presumably not intended by the legislature. See Minn. Stat. § 645.17. Rather, it appears that the intent of the legislature was to remove the date reference that was seen as limiting those municipalities that could voluntarily adopt the code by ordinance. Therefore we interpret the reference to a municipality that "has not adopted" the Code to include those in which, due to a negative referendum, the Code has not been in effect.

CONCLUSION

It is our opinion that Blue Earth County is authorized to adopt and enforce the State Building Code by ordinance, notwithstanding a previous negative referendum vote. Op. Atty. Gen. 125A, April 20, 1994 is superceded to the extent inconsistent with this opinion.

Respectfully submitted,

MIKE HATCH
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General