If a Minnesota city and township have signed an orderly annexation agreement with time frames, can the city bypass those time frames using the 1992 annexation-by-ordinance procedure?

Plain-English summary

In 1992 the legislature added a new subdivision 2a to Minn. Stat. § 414.033, the statute governing annexation by ordinance. The new subdivision said: notwithstanding the usual requirement that annexed land must be contiguous (abut the city), if the land is owned by the municipality, or if all of the landowners petition for annexation, and the land is within an existing orderly annexation area established under § 414.0325, then the city may declare the land annexed by ordinance. The Municipal Board (the state agency that supervises city-township boundary changes) faced a question: how does this new power interact with orderly annexation agreements that contain specific time frames for staged annexation of the area?

Municipal Board Executive Director Terrance A. Merritt asked two questions. First, whether the Board was bound by time frames set out in orderly annexation joint resolutions. Second, whether the Board could invalidate an annexation ordinance enacted under the new subdivision 2a on the ground that it was inconsistent with the time frame in the prior orderly annexation resolution. The AG answered no to both.

On the first question, the AG read § 414.0325 to give the Board jurisdiction over annexations in orderly annexation areas, but not to bind the Board to the agreement's specific provisions. The statute provides that the Board "may deny the annexation if it conflicts with any provision of the joint agreement." That is permissive ("may"), not mandatory ("shall"). The Board has discretion. The 1984 court of appeals decision in Township of Fergus Falls v. City of Fergus Falls had held the Board bound by an agreement provision incorporating a statutory referendum procedure, but the 1985 Watertown decision had narrowed that holding to situations where the agreement incorporated a specific statutory procedure. Time frames are not in that category, the AG concluded.

On the second question, the AG read the new subdivision 2a as designed to create a summary annexation procedure not subject to Board policy review. Subdivision 2a "places no further conditions" on annexation beyond the city-ownership-or-unanimous-petition requirement. It would defeat the legislature's purpose if the Board could refuse to approve a subdivision 2a annexation because it conflicted with time frames in an orderly annexation agreement. The Board's "approval" role for subdivision 2a annexations is limited to verifying that the ordinance is in proper form and meets the jurisdictional requirements of that subdivision.

The opinion also addressed § 414.033, subd. 10, which gives the Board discretionary authority to require additional information about annexations by ordinance to evaluate conformance with the statutory criteria in §§ 414.01 and 414.031. The AG read subdivision 10 as informational only, not as a back-door grant of denial authority. Its purpose appears to be to let the Board form a view of how the annexation procedures are working in practice, and to comment to the parties without blocking the annexation.

Currency note

This opinion was issued in 1993. 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.

Historical context: what the AG concluded

The 1993 opinion turned on the difference between three annexation mechanisms in chapter 414 of the Minnesota Statutes:

1. Annexation under an orderly annexation agreement (§ 414.0325). Two or more townships and one or more cities adopt a joint resolution designating an unincorporated area as in need of orderly annexation. Within that designated area, annexations proceed under § 414.0325, and the Board has jurisdiction to consider them based on statutory factors and the terms of the joint resolution. Some joint resolutions remove Board substantive review altogether (the Board "may review and comment, but shall, within 30 days, order the annexation in accordance with the terms of the resolution"). Others leave the Board with discretion to deny if the annexation conflicts with the agreement.
2. Annexation by ordinance (§ 414.033). Cities may annex by ordinance under several scenarios. Subdivisions 3 and 5 contemplate hearings and Board evaluation when timely objections are filed. Subdivision 7 and 9 mention Board approval. The newly enacted subdivision 2a, the centerpiece of this opinion, gives cities a streamlined path within orderly annexation areas when the city owns the land or all the landowners petition.
3. Annexation by petition or by Board action under other parts of § 414.033 or § 414.031. These follow their own procedural tracks.

The AG read subdivision 2a as a legislative judgment that, in the narrow category of cases it covers (city-owned land or unanimous landowner petition within an orderly annexation area), the legislature wanted a summary procedure without Board substantive review. The statute attaches "no further conditions" to the annexation. Reading the Board's "approval" power in subdivisions 7, 9, and 10 to permit substantive denial would, in the AG's view, gut the purpose of the new subdivision.

The opinion drew support from the contrast between subdivision 2a and subdivisions 3 and 5. Those other subdivisions expressly contemplate hearings and Board evaluation when objections are filed. Subdivision 2a contains no parallel provision. The legislature knew how to require substantive review when it wanted to, and it chose not to here.

The opinion's treatment of the existing case law was careful. Township of Fergus Falls v. City of Fergus Falls, 357 N.W.2d 428 (Minn. Ct. App. 1984), had held the Board bound by an agreement that incorporated the referendum requirement of § 414.031, subd. 5 (a subdivision the opinion notes was later repealed). The Watertown decision in 1985 limited Fergus Falls to cases involving "incorporation of specific statutory procedures." A time frame for annexation is not a specific statutory procedure, so the Board is not bound by it. The Board "may," in proper circumstances, deny an annexation that conflicts with some provision of the agreement, but is not required to do so.

For subdivision 2a annexations, the AG went further: the Board cannot deny on the basis of inconsistency with a time frame in the prior orderly annexation joint resolution. The express legislative authorization of subdivision 2a overrides the contrary time frame in the joint resolution.

The opinion was signed by Assistant Attorney General Kenneth E. Raschke Jr. on behalf of AG Hubert H. Humphrey III.

Common questions

Q: What is an "orderly annexation area"?
A: An unincorporated area that a city and township have jointly designated as in need of orderly annexation, in a joint resolution filed with the Municipal Board under § 414.0325. The resolution typically sets out the area description, the rules for annexing parts of it over time, and sometimes specific time frames.

Q: What does annexation by ordinance under subdivision 2a require?
A: Three conditions: (1) the land is within an existing orderly annexation area; (2) either the city owns the land, or all landowners petition for annexation; and (3) the city enacts an annexation ordinance. The usual "abutting" (contiguity) requirement of subdivision 1 does not apply.

Q: Can the Municipal Board reject a subdivision 2a annexation ordinance?
A: Only on jurisdictional and form grounds. The AG concluded the Board's review is limited to whether the ordinance is in proper form and meets the jurisdictional requirements of subdivision 2a. The Board cannot reject the ordinance for inconsistency with a time frame in the orderly annexation joint resolution.

Q: What if the orderly annexation agreement includes a specific statutory procedure?
A: That is the situation in the 1984 Fergus Falls case. If the agreement incorporates a specific statutory procedure (like the now-repealed referendum requirement of § 414.031, subd. 5), the Board may be bound by it. But the 1985 Watertown decision read Fergus Falls narrowly. Time frames and consent provisions that are not "specific statutory procedures" do not bind the Board.

Q: What does the Board's "approval" function involve for ordinance annexations?
A: For annexations under subdivision 2a, approval is essentially ministerial: the Board checks form and jurisdiction. For annexations under subdivisions 3 and 5, the Board may hold a hearing if objections are filed and evaluate the statutory factors. Subdivision 10 gives the Board discretion to gather additional information about how an ordinance annexation conforms to the criteria in §§ 414.01, subd. 1 and 414.031, subd. 4, but the AG read that authority as informational rather than as a denial power.

Q: What was the legislative purpose of subdivision 2a?
A: To allow summary annexation in specific circumstances, without the procedural and policy review that would otherwise apply. The AG observed: "The entire purpose of the new subdivision 2a would appear to be to allow, in specific circumstances, summary annexation without adhering to the terms and procedures which would otherwise be required."

Q: Could a township block a subdivision 2a annexation by signing an agreement that bars it?
A: The AG did not directly answer that question. The opinion's logic suggests that even an agreement provision purporting to bar subdivision 2a annexations could not override the legislative authorization of the ordinance procedure, but readers should treat that as inference, not as a stated holding.

Background and statutory framework

Chapter 414 of the Minnesota Statutes governs incorporation and consolidation of municipalities, annexation, and detachment of land from cities. The Municipal Board (since reorganized into a different administrative structure) was the state agency that supervised most boundary changes.

Three statutory mechanisms operated in 1993:

1. Orderly annexation under § 414.0325. A consensual framework for staged annexation of a designated area. Joint resolution between city and township defines the area, often the timing and conditions. Board jurisdiction over annexations within the area.
2. Annexation by ordinance under § 414.033. A unilateral municipal procedure for annexing land. Several subdivisions create different scenarios:
   - Subd. 2a (1992): land in orderly annexation area, city-owned or unanimous-petition.
   - Subd. 3: contiguous platted land, with hearing if timely objection filed.
   - Subd. 5: contiguous land surrounded by city, with hearing if timely objection filed.
   - Subd. 7 and 9: Board approval steps.
   - Subd. 10: Board discretion to require additional information on conformance with §§ 414.01 and 414.031.
3. Annexation by petition under other parts of chapter 414. Initiated by petition of landowners or city, decided by Board after hearing.

The 1992 enactment of subdivision 2a (Minn. Laws 1992 ch. 556, § 6) added a fourth path to municipalities that already controlled (or had unanimous landowner support for) land within an orderly annexation area. The 1993 AG opinion answered the first interpretive question after the new subdivision took effect: how to reconcile it with the time frames in pre-existing orderly annexation agreements.

Citations and references

Statutes:
- Minn. Stat. § 414.0325 (orderly annexation)
- Minn. Stat. § 414.0325, subd. 1 (joint resolution and Board jurisdiction)
- Minn. Stat. § 414.0325, subd. 3 (Board factors and criteria)
- Minn. Stat. § 414.033 (annexation by ordinance)
- Minn. Stat. § 414.033, subd. 2a (1992 amendment: ordinance annexation in orderly annexation area)
- Minn. Stat. § 414.033, subd. 3 (contiguous platted land)
- Minn. Stat. § 414.033, subd. 5 (surrounded land)
- Minn. Stat. § 414.033, subds. 7 and 9 (Board approval)
- Minn. Stat. § 414.033, subd. 10 (Board's information-gathering authority)
- Minn. Stat. § 414.01, subd. 1 (general annexation criteria)
- Minn. Stat. § 414.031, subd. 4 (statutory factors)
- Minn. Stat. § 414.031, subd. 5 (since repealed)
- Minn. Laws 1992 ch. 556, § 6 (enactment of subd. 2a)

Cases:
- Township of Fergus Falls v. City of Fergus Falls, 357 N.W.2d 428 (Minn. Ct. App. 1984)
- Matter of Joint Resolution of City of Watertown and Town of Watertown, 375 N.W.2d 582 (Minn. Ct. App. 1985)

Cross-references:
- Op. Atty. Gen. 59a-1
- Op. Atty. Gen. 484e-1
- Op. Atty. Gen. 484t

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/484a1-19930301.pdf

Original opinion text

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

CITIES: ANNEXATION: Time conditions in orderly annexation agreements do not bind determinations of Municipal Board or preclude annexation by ordinance pursuant to Minn. Stat. § 414.033, subd. 2a (1992). Minn. Stat. §§ 414.0325, 414.033.

484a-1
(Cr. Ref. 59a-1, 484e-1, 484t)
March 1, 1993

Terrance A. Merritt
Executive Director
Municipal Board
475 McColl Building
366 Jackson Street
St. Paul, MN 55101-1925

Dear Mr. Merritt:

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

FACTS

The legislature in 1992 amended Minn. Stat. § 414.033 (1990) which deals with annexation by ordinance to add a subdivision 2a which provides:

Subd. 2a. MUNICIPALITY MAY ANNEX. Notwithstanding the abutting requirement of subdivision 1, if land is owned by a municipality or if all of the landowners petition for annexation, and the land is within an existing orderly annexation area as provided by section 414.0325, then the municipality may declare the land annexed.

See Minn. Laws 1992 ch. 556, § 6.

The Minnesota Municipal Board has on file numerous joint resolutions for orderly annexation previously submitted pursuant to Minn. Stat. § 414.0325 which contain designated time frames for annexation of portions of the orderly annexation areas.

You then ask substantially the following:

QUESTION ONE

Is the Municipal Board bound by the time frames set out in such orderly annexation resolutions?

OPINION

We answer your question in the negative. With the exception of orderly annexation agreements incorporating specific statutory procedures which would apply in absence of such an agreement, the Board may, in proper circumstances deny an annexation which is contrary to some provision of the agreement, but is not required to do so.

Minn. Stat. § 414.0325, subd. 1 (1992), provides in part:

One or more townships and one or more municipalities, by joint resolution, may designate an unincorporated area as in need of orderly annexation and may confer jurisdiction on the board over annexations in the designated area and over the various provisions in said agreement by submission of said joint resolution to the executive director. The resolution shall include a description of the designated area. Thereafter, an annexation of any part of the designated area may be initiated by submitting to the executive director a resolution of any signatory to the joint resolution or by the board of its own motion.

Thus, within an area designated for orderly annexation, the Board has jurisdiction to consider annexation either upon petition of one of the signatories or upon its own motion. Unless a joint resolution specifically calls for annexation without Board consideration pursuant to other provisions of section 414.0325, subd. 1, the decision to grant or deny annexation pursuant to section 414.0325 is to be made by the Board after hearing based upon the factors and criteria set forth in section 414.0325, subd. 3. That subdivision does provide that:

The board may deny the annexation if it conflicts with any provision of the joint agreement.

(Emphasis added.)

In Township of Fergus Falls v. City of Fergus Falls, 357 N.W.2d 428 (Minn. Ct. App. 1984), the Court of Appeals held that the Board was bound by an agreement in the joint resolution that any annexation would be subject to a referendum which would otherwise be required by Minn. Stat. § 414.031, subd. 5. However, that holding was subsequently limited to situations involving incorporation of specific statutory procedures in Matter of Joint Resolution of City of Watertown and Town of Watertown, 375 N.W.2d 582 (Minn. Ct. App. 1985), when this court held that the Board was not bound by an agreement provision requiring consent by a majority of landowners before annexation could occur.

Thus, it seems clear, that the Board is not bound, as a matter of law, by time frames for annexations within an orderly annexation area which may be contained in joint resolutions pursuant to Minn. Stat. § 414.0325.

You then ask substantially the following:

QUESTION TWO

If the Board receives an annexation ordinance enacted pursuant to Minn. Stat. § 414.033, subd. 2a, for an area covered by an orderly annexation agreement, may the Board invalidate the ordinance where the annexation would be inconsistent with the time frame contained in the agreement?

OPINION

We answer your question in the negative. The express language of section 414.033, subd. 2a, quoted above clearly expresses the intent of the legislature that property which is within an orderly annexation area established pursuant to section 414.0325 may be annexed by ordinance if it is either owned by the city or if all the landowners petition for annexation.

Section 414.033 places no further conditions upon the annexation. In this respect, subdivision 2a differs from subdivisions 3 and 5, which call for hearings and board evaluation of certain ordinance annexations when timely objections are filed.

Indeed, there would seem little, if any, purpose to permitting annexation by ordinance pursuant to section 414.033, subd. 2a, if such annexations would require satisfaction of the provisions of section 414.0325 and would be subject to the terms of the joint resolution, in any event.

Rather, the entire purpose of the new subdivision 2a would appear to be to allow, in specific circumstances, summary annexation without adhering to the terms and procedures which would otherwise be required.

It might be argued that the mention of Board approval of the ordinance in subdivisions 7 and 9 of section 414.033 implies some general discretion in the Board to refuse to approve, thus preventing the annexation from taking effect. However, aside from the jurisdictional requirements for accomplishing annexation by ordinance, section 414.033 does not set forth any additional defined standards for approval of an ordinance not requiring a hearing under subdivision 3 or 5. Nor is there any other standards or authority in section 414.033 upon which the Board may rely to withhold approval from an ordinance which is authorized under subdivision 2a. Thus, it appears that the "approval" authority of the Board in such circumstances must be limited to determination whether the ordinance is in proper form and meets the jurisdictional requirements contained in that subdivision.

We are aware of Minn. Stat. § 414.033, subd. 10, which provides:

Subd. 10. The municipal board may, at its discretion, require the city or property owners to furnish additional information concerning an annexation by ordinance to inform the board about the extent to which the proposed annexation conforms to the statutory criteria set forth in sections 414.01, subdivision 1 and 414.031, subdivision 4.

The exact intended purpose of this subdivision is not particularly clear. We do not believe, however, that the intent is implicitly to empower the Board to refuse to permit ordinance annexations which would otherwise be permitted without Board hearing upon a substantive evaluation of the statutory factors contained in sections 414.01 or 414.031. The subdivision itself contains no express direction or authority for the Board to deny such annexations. To so construe subdivision 10 would, in effect, eliminate any real value to the annexation by ordinance procedure which is generally intended to provide, in carefully defined situations, a summary annexation procedure not dependent upon policy determinations by the Board.

It appears that subdivision 10 was intended merely to permit the Board to inform itself concerning the nature of property which is being annexed without Board hearing so that it has a basis upon which to evaluate generally the effectiveness of the statutory procedures in furthering the sound planning goals set forth by the legislature. The purpose may also be to enable the Board to express its views, in an advisory way, to the parties in much the same fashion that it does in situations pursuant to section 414.0325, subd. 1, where it may review and comment but not deny annexation.

In any event, subdivision 10 only addresses itself to statutory criteria contained in sections 414.01 and 414.031. No mention is made of evaluating the ordinance, in terms of the provisions of any agreement or resolution entered pursuant to section 414.0325.

For the foregoing reasons, it is our view that the Board is not authorized to deny approval of an ordinance authorized by Minn. Stat. § 414.033, subd. 2a, on the grounds that it is not in keeping with time frames set out in a prior joint resolution for orderly annexation enacted pursuant to Minn. Stat. § 414.0325.

Very truly yours,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE JR.
Assistant Attorney General

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