When a Minnesota city extends its subdivision regulations to land within two miles outside its limits, and the surrounding county has its own zoning ordinance covering the same land, whose rules govern subdivision and zoning on that land?

Plain-English summary

In 1972, Mille Lacs County adopted a Development Code that included a zoning ordinance. In 1978, the City of Milaca adopted a subdivision ordinance that, under Minn. Stat. § 462.358, subd. 1a, extended to the two-mile radius of unincorporated area around the city. Mille Lacs County's zoning ordinance zoned that two-mile area as an Agricultural Preservation District requiring a 300-foot minimum lot width. Milaca's zoning ordinance allowed lot widths under 300 feet.

A developer proposed to subdivide land within the two-mile zone with lots under 300 feet. The proposed subdivision met Milaca's subdivision and zoning ordinances but did not meet Mille Lacs County's zoning ordinance.

Mille Lacs Assistant County Attorney John Wenker and Milaca City Attorney Steven Anderson jointly asked AG Humphrey four questions about which government's rules controlled.

Assistant AG Kenneth Raschke, signing for AG Humphrey, answered them as follows.

Q1: Subdivision regulations. Milaca's subdivision ordinance controls. Section 462.358, subd. 1a gives a city authority to extend subdivision regulations into unincorporated territory not covered by town regulations, even if covered by county subdivision regulations. The statute does not require the city to defer to the county. A prior 1972 AG opinion confirmed that city subdivision regulations supersede county ones in the two-mile zone. The 1977 AG opinion (Op. Atty. Gen. 59a-32, Nov. 4, 1977) was consistent: the county can enforce subdivision controls only if the city chooses not to and no town regulations apply. The 1995 opinion noted that the city's subdivision ordinance must include a coordination requirement (review with affected political subdivisions including the county), but coordination does not require agreement.

Q1 (continued): Zoning. Mille Lacs County's zoning ordinance controls. Section 462.357 (added in a 1969 amendment) is different from § 462.358's subdivision authority: zoning extension is permitted only into unincorporated territory not covered by county or town zoning. The 1969 amendment "expressly precluded extension or enforcement of city zoning regulations in unincorporated areas covered by town or county zoning." The same limitation applies in 1995. Costley v. Caromin House (Minn. 1981) confirmed that municipal zoning authority is limited to the power granted by the legislature.

The practical result. A developer in the two-mile zone must seek approval from both the county's zoning authority and the city's platting authority. The developer's lots that meet Milaca's standards but fail Mille Lacs County's 300-foot minimum cannot proceed without either a county zoning amendment or a variance.

Q2: When zoning ordinances conflict, do the more restrictive provisions control? Not reached because the answer to Q1 was that only one zoning ordinance (the county's) controls.

Q3: Building code. The city is authorized under Minn. Stat. § 16B.62 to extend State Building Code enforcement into the two-mile zone. Section 16B.62 lets a city extend code enforcement up to two miles, and after extension the city enforces the code in the designated area "to the same extent as if the property were situated within its corporate limits." If Mille Lacs County has rejected the code in a § 16B.72 referendum, the code does not apply countywide; but a city can still extend the code into the two-mile zone under § 16B.62 because the city's extension is treated as bringing the area "within its jurisdiction." Handicapped-persons and elevator-safety code provisions continue to apply regardless of the referendum result.

Q4: Zoning and building permits in the unsubdivided areas. Mille Lacs County's zoning ordinance controls zoning permits in the two-mile zone. If the city has extended building code enforcement, the city handles code-related permits; if not, the code does not apply (except handicapped-persons and elevator-safety). The opinion noted that other permits (watershed, wetlands, electrical code) might still apply under separate statutes.

The joint board option. Section 462.3585 provides for creation of a joint board to exercise planning and land-use control authority in the two miles surrounding a municipality. The joint board serves as the "governing body" and board of appeals and adjustments. Cities and counties that want to unify control can pool authority through this mechanism.

Currency note

This opinion was issued in 1995. 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. Minnesota's extraterritorial subdivision and zoning statutes (Minn. Stat. §§ 462.357, 462.358, 462.3585) have been amended since 1995. The state building code framework (Minn. Stat. ch. 326B in current code) has been substantially reorganized. The fundamental allocation (city subdivision wins; county zoning wins where county zoning exists) appears to remain established, but specific procedural mechanics may have shifted.

Historical context: what the AG concluded

The opinion is a careful reading of two parallel but textually different grants of extraterritorial authority.

Subdivision: § 462.358, subd. 1a. Cities may extend subdivision regulations into unincorporated territory within two miles. The only carve-out is for towns that have adopted subdivision regulations. Counties are not in the carve-out, so county subdivision regulations yield to extended city subdivision regulations.

Zoning: § 462.357. Cities may extend zoning regulations into unincorporated territory within two miles. The carve-out is broader: cities cannot extend into areas with either town or county zoning. Counties are in the zoning carve-out, so county zoning regulations control over extended city zoning.

Why the difference? The two provisions came into the statute at different times. Section 462.358 (subdivisions) was enacted in 1965 with the town-only carve-out. Section 462.357 (zoning) was also enacted in 1965, but the extension provision was added in a 1969 amendment that included the broader carve-out (towns and counties). The AG observed that the textual difference is intentional and dispositive.

The Costley principle. Municipal authority is limited to powers granted by the legislature; the municipality cannot exceed the limitations imposed by the enabling legislation (Costley v. Caromin House, Minn. 1981). Section 462.357's plain text precludes city zoning extension where county zoning is in effect. Mille Lacs County zoning is in effect everywhere in the two-mile zone, so Milaca's zoning cannot extend there.

Coordination but not agreement. Section 462.358, subd. 3b requires subdivision regulations to include preliminary and final review provisions and coordination with affected political subdivisions. So Milaca's subdivision ordinance must coordinate review with Mille Lacs County. But coordination is a process requirement, not a substantive veto: the city need not reach agreement with the county to approve a subdivision.

The combined practical effect. A developer's subdivision plat in the two-mile zone has to satisfy:
- Milaca's subdivision ordinance (standards for lot size, street layout, drainage, etc.)
- Mille Lacs County's zoning ordinance (use, lot width, building setbacks, density)
- Whichever building code applies (Milaca's extension of the state code, if any; otherwise nothing except handicapped-persons and elevator-safety provisions)
- Other applicable state laws (watershed, wetlands, electrical)

The developer in the case at hand could not proceed with lots under 300 feet wide without either a county zoning amendment or a variance.

The joint board solution. Section 462.3585 lets cities and counties create a joint board with combined zoning and planning authority over the two-mile zone. This unifies the two regulatory layers and reduces developer confusion. The provision is opt-in; many cities and counties have not used it.

Building code interaction. The 1977 building code adoption requirement was substantially modified by the 1979 referendum option. Counties that rejected the code (apparently including Mille Lacs County, per the facts presented) lost the countywide code application except for handicapped-persons and elevator-safety. But a city in a rejecting county can still extend code enforcement under § 16B.62 to its two-mile zone, treating the extension as bringing the area within its building-code jurisdiction. This was the AG's path to allow Milaca to enforce the code in the developer's project area even though the county had rejected the code.

Common questions

Q: I'm a developer subdividing land within two miles of a Minnesota city. Whose rules do I need to follow?
A: Under the 1995 opinion, you need to satisfy both the city's subdivision ordinance and the county's zoning ordinance (if the county has one). The city's subdivision regulations control subdivision approval; the county's zoning regulations control land use, lot size, and similar zoning matters.

Q: Do I need to apply to both the city and the county?
A: Yes, separately. The city handles plat review under its extraterritorial subdivision authority. The county handles zoning permits under its zoning ordinance. The city is required to coordinate review with the county, but you typically interact with both bodies separately.

Q: What if the city's zoning standards are looser than the county's?
A: The county's zoning controls. You cannot use the city's looser standards if you are in the county zoning's area. The 1969 amendment to § 462.357 specifically blocks city zoning extension where county zoning exists.

Q: What if there's a town in the two-mile zone too?
A: A town that has adopted subdivision regulations blocks the city's extraterritorial subdivision extension (§ 462.358, subd. 1a). A town with zoning blocks the city's zoning extension (§ 462.357). If both town and county have ordinances, both protections apply.

Q: Can the city and county pool authority to make things simpler?
A: Yes. Section 462.3585 provides for a joint planning board that combines authority across the two miles. The board serves as the governing body and board of appeals and adjustments. Many city-county pairs have used this mechanism to avoid the dual-application problem.

Q: What about the State Building Code? Does it apply in the two-mile zone?
A: It depends. If the county adopted (or did not reject) the code, the code applies countywide including in the two-mile zone. If the county rejected the code in a § 16B.72 referendum, the code does not apply countywide except for handicapped-persons and elevator-safety. But the city can extend the code under § 16B.62 by ordinance, in which case the city's extension treats the two-mile zone as if it were within city limits for code purposes.

Background and statutory framework

Minnesota's municipal planning law is in Minn. Stat. ch. 462 (Municipal Planning Act, sections 462.351 to 462.364). The chapter addresses zoning, subdivision regulation, comprehensive planning, official maps, and related land-use tools.

Two parallel provisions allow cities to reach beyond their corporate boundaries into surrounding unincorporated territory:
- Section 462.357 (zoning extension): up to two miles, but not where town or county zoning exists.
- Section 462.358, subd. 1a (subdivision extension): up to two miles, but not where town subdivision regulations exist.

The county is in the zoning carve-out but not the subdivision carve-out. This textual asymmetry, the AG concluded, was intentional and produces the split outcome: city subdivision wins, county zoning wins.

Section 462.3585 lets cities and counties create joint boards for unified extraterritorial planning. This is an alternative to the default split.

The State Building Code in Minn. Stat. § 16B.59 et seq. (since reorganized into ch. 326B) historically required all cities and counties to adopt and enforce the code. The 1979 referendum option allowed counties (and certain other areas) to opt out, with a backstop preserving handicapped-persons and elevator-safety provisions. The 1995 amendment (ch. 166, § 3) further refined this. A city can always voluntarily adopt the code "within its jurisdiction" under § 16B.72, and § 16B.62 lets the city extend that adoption into the two-mile zone.

Hubert H. Humphrey III was Minnesota AG from 1983 through January 1999. Kenneth E. Raschke, Jr. signed as Assistant AG. The opinion bore the file note .ad4.

Citations and references

Statutes:
- Minn. Stat. § 16B.62 (1994) (city extension of state building code; two miles)
- Minn. Stat. § 16B.62, subd. 1 (1994)
- Minn. Stat. § 16B.72 (1994) (county referendum to reject building code)
- Minn. Stat. § 103D.345 (watershed permits)
- Minn. Stat. § 103G.221 (wetlands)
- Minn. Stat. § 326.244 (Electrical Code)
- Minn. Stat. § 462.357 (1994) (city zoning; extraterritorial extension; carve-out for towns and counties with zoning)
- Minn. Stat. § 462.358 (1994) (subdivision regulations)
- Minn. Stat. § 462.358, subd. 1a (extraterritorial subdivision extension; carve-out for towns with regulations)
- Minn. Stat. § 462.358, subd. 3b (coordination requirement)
- Minn. Stat. § 462.3585 (1994) (joint planning board)
- Act of May 22, 1965, ch. 670, §§ 7-8, 1965 Minn. Laws 1000-1003 (original §§ 462.357, 462.358)
- Act of April 30, 1969, ch. 259, § 1, 1969 Minn. Laws 402 (1969 zoning extension amendment with county carve-out)
- Act of June 2, 1977, ch. 381, § 2, 1977 Minn. Laws 846, 848 (mandatory state building code adoption)
- Act of May 31, 1979, ch. 287, § 2, 1979 Minn. Laws 626, 631 (referendum to reject building code)
- Act of May 15, 1995, ch. 166, § 3, 1995 Minn. Laws (handicapped-persons and elevator-safety carve-out)

Cases:
- Costley v. Caromin House, Inc., 313 N.W.2d 21 (Minn. 1981) (municipal authority limited to legislative grant)

Related AG opinions:
- Op. Atty. Gen. 59a-32, December 1, 1972 (city subdivision regulations supersede county in two-mile zone)
- Op. Atty. Gen. 59a-32, November 4, 1977 (county may enforce subdivision controls only if city does not and no town regulations apply)
- Op. Atty. Gen. 59a-9, February 14, 1979 (cities and counties must adopt and enforce state building code)
- Op. Atty. Gen. 125a-66 (cross-reference)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/59a32-19950818.pdf

Original opinion text

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

CITIES: ZONING: City may extend subdivision regulations and building code enforcement, but not zoning controls, two miles beyond city limits where county zoning regulations are in effect. Minn. Stat. §§ 16B.62, 16B.72, 462.357, 462.358 (1994).

59a-32
(Cr. Ref. 59a-9, 125a-66)
August 18, 1995

John Wenker Steven Anderson
Assistant County Attorney City Attorney, City of Milaca
Mille Lacs County Courthouse Arnold, Anderson, & Dove
635 2nd Street SE 501 South Fourth Street
Milaca, MN 56353 Princeton, MN 55371

Dear Messrs. Wenker and Anderson:

In your joint letter to the Office of the Attorney General, you set forth the following:

FACTS

In 1972, Mille Lacs County adopted a Development Code, which included a zoning ordinance. In 1978, the City of Milaca adopted a subdivision ordinance which was extended to include the two mile radius of unincorporated area extending around the city limits, pursuant to Minn. Stat. § 462.358, subd. 1a. The Mille Lacs County zoning ordinance zones this two mile radius as an Agricultural Preservation District which requires a 300 foot minimum lot width. The City of Milaca's zoning ordinance allows for a lot width of less than 300 feet.

Mille Lacs County has not adopted the state building code, but does issue land use permits before permitting construction. The City of Milaca has adopted the state building code.

A situation has arisen where a developer wants to subdivide land within the two mile radius of Milaca's city limits. The proposed lots would be less than the 300 foot minimum required by Mille Lacs County's zoning ordinance, but would meet the requirements of the City of Milaca's subdivision and zoning ordinances.

You then ask substantially the following questions:

QUESTION ONE

In the two-mile zone, does Mille Lacs County's or the City of Milaca's zoning ordinance control in the subdivided area?

OPINION

In our opinion, while the city's subdivision regulation and plat-approval authority control subdivision approval in the area at issue, it is the county's zoning controls which apply.

A. Subdivision Regulations

Milaca extended its subdivision ordinance pursuant to Minn. Stat. § 462.358, subd. 1a (1994) which provides:

A municipality may by resolution extend the application of its subdivision regulations to unincorporated territory located within two miles of its limits in any direction but not in a town which has adopted subdivision regulations ...

(Emphasis added)

Subdivision 1a gives a city the authority to extend subdivision regulations into an unincorporated territory not covered by town regulations, even though it may already be covered by county subdivision regulations. Minn. Stat. § 462.358 does not require a city to defer to the county ordinance if the county and city subdivision ordinances conflict. This office has previously opined that where a city has exercised subdivision control pursuant to Minn. Stat. § 462.358, county subdivision regulations otherwise operative in the two mile radius are superseded by city regulations. Op. Atty. Gen. 59a-32, Dec. 1, 1972.

Subdivision regulations adopted pursuant to Minn. Stat. § 462.358, subd. 1a may establish standards, requirements, and procedures for the review and approval or disapproval of subdivisions. Minn. Stat. § 462.358, subd. 3b provides that subdivision regulations must include preliminary and final review of subdivision applications provisions, and the coordination of such review is to occur with affected political subdivisions. Therefore, the subdivision ordinance adopted by Milaca must have a provision whereby applications for review of proposed subdivisions in the two mile radius will be coordinated with the county, which is a political subdivision. However, this requirement of coordination between the city and the county does not mean that any agreement needs to be reached concerning such application.

The county may enforce subdivision controls within the two mile zone only if the city chooses not to, and there are no applicable town subdivision regulations. Op. Atty. Gen. 59a-32, Nov. 4, 1977. Inasmuch as your letter makes no mention of town subdivision regulations, we assume that there are none. Thus, the city's subdivision regulations would control the area to the exclusion of the county's subdivision regulation.

B. Zoning

Notwithstanding the city's authority over subdivision regulations, it is our view that Mille Lacs County's zoning ordinance applies within the two mile zone of unincorporated territory, including areas already subdivided. Minn. Stat. § 462.357 (1994) provides that:

A city may by ordinance extend the application of its zoning regulations to unincorporated territory located within two miles of its limits in any direction, but not in a county or town which has adopted zoning regulations ...

(Emphasis added).

This provision differs from its counterpart relating to subdivisions in Minn. Stat. § 462.358 quoted above, which provides that subdivision ordinances may not be extended in any town with subdivision ordinances. The extension language relating to subdivision regulations was part of Minn. Stat. § 462.358 as enacted in 1965. Minn. Stat. § 462.357 was also enacted in 1965, however, the provision permitting zoning regulations to be extended was added in a 1969 amendment. See Act of May 22, 1965, ch. 670, §§ 7-8, 1965 Minn. Laws 1000-1003; Act of April 30, 1969, ch. 259, § 1, 1969 Minn. Laws 402. That amendment expressly precluded extension or enforcement of city zoning regulations in unincorporated areas covered by town or county zoning. The same limitation exists presently.

Municipal authority to enact and enforce zoning ordinances is limited to the power granted by the legislature. Costley v. Caromin House, Inc., 313 N.W.2d 21, 27 (Minn. 1981). A municipality is not allowed to exceed the limitations imposed on it by the enabling legislation. Id. at 27. Since the enabling legislation at issue here expressly provides that a municipality may extend its zoning ordinance into the two miles of unincorporated territory only if neither the county nor town has not adopted zoning regulations, it seems clear that the Mille Lacs County zoning ordinance controls in the entire area surrounding Milaca, including the subdivided areas. However, the Milaca subdivision ordinance also controls in the two-mile area. This means that, in order for a developer to subdivide and develop land in the two mile region, the developer must seek approval from both the zoning authority of the county and the platting authority of the city.

While this result may seem less than satisfactory to developers and local governments alike, it is nonetheless required by the plain wording of the statutes. The legislature has, however, provided an available solution for the potential problems posed by divided land use and development control in the two miles surrounding the city. Minn. Stat. § 462.3585 (1994) provides for the creation of a joint board to exercise planning and land use control authority in the two miles of unincorporated territory surrounding a municipality and to serve as the "governing body" and board of appeals and adjustments over the territory for land use control purposes.

QUESTION TWO

If the answer to question one is that both zoning ordinances apply where they are not inconsistent, in situations where they are inconsistent do the more restrictive provisions of either the City or the County zoning ordinance control over the other's less restrictive provisions?

OPINION

In light of our answer to Question One, no response to this question is required.

QUESTION THREE

Does the City or County Building Code control in the subdivided areas of the two mile zone?

OPINION

In our opinion, the City is authorized to extend enforcement of the State Building Code (Code) into the two mile zone. [Footnote 1: We note that inasmuch as the State Building Code supersedes local codes, the question would appear to involve application of the State Building Code rather than differing municipal codes.] Absent such an extension, application of the Code in that area depends upon the status of the county's actions regarding the Code. Commencing in 1977, all cities and counties were required to adopt and enforce the Code within their jurisdictions. See Act of June 2, 1977, ch. 381, § 2, 1977 Minn. Laws 846, 848; Op. Atty. Gen. 59a-9, February 14, 1979. The 1977 law also provided that a city could extend its enforcement of the Code up to two miles from the city limits. The operative language, now contained in Minn. Stat. § 16B.62 (1994) provides:

A city may by ordinance extend the enforcement of the code to contiguous unincorporated territory not more than two miles distant from its corporate limits in any direction .... After the extension, the city may enforce the code in the designated area to the same extent as if the property were situated within its corporate limits.

Commencing in 1979, however, persons in certain areas of non-metropolitan counties were permitted, by referendum, to reject application of the code in areas of the county "outside home rule charter or statutory cities or towns that adopted the building code prior to January 1, 1977 ...." Act of May 31, 1979, ch. 287, § 2, 1979 Minn. Laws 626, 631. See Minn. Stat. § 16B.72 (1994). [Footnote 2: The Code provision relating to handicapped persons and elevator safety, however, will continue to apply, notwithstanding the referendum results. Minn. Stat. § 16B.72 (1994); Act of May 15, 1995, ch. 166, § 3 (1995) Minn. Laws ____.] Notwithstanding the referendum, however, a city which had not adopted the code before January 1, 1977 was still permitted to adopt the code voluntarily "within its jurisdiction." Id.

We assume from your statement that Mille Lacs County "has not adopted" the code, reflects a negative result in a referendum held pursuant to that authority. Thus, pursuant to section 16B.72, the code would not generally apply outside any cities or towns which had adopted it prior to 1977 or voluntarily chose to adopt it subsequent to the referendum. Thus, it might be argued that, after such a referendum, cities may not extend code application into unincorporated territory.

However, section 16B.72 (1994) permits any municipality to choose to adopt and enforce the Code "within its jurisdiction." Inasmuch as section 16B.62, subd. 1 (1994) expressly allows a city to extend code enforcement two miles into unincorporated territory "to the same extent as if the property were .... within its corporate limits," the city can extend its building code "jurisdiction" beyond its corporate limits.

Consequently, it is our view that the city is authorized to extend code enforcement into the zone by ordinance. If the city has not done so, however, the code would not at present be applicable in the zone, except for the provisions relating to handicapped persons and elevator safety.

QUESTION FOUR

Which entity controls zoning and building permits within the two-mile zone in the unsubdivided areas?

OPINION

As stated above, Mille Lacs County's zoning ordinance controls in the two mile zone of unincorporated territory. Therefore, the Mille Lacs County authority charged by ordinance with responsibility for approving permits related to zoning would be responsible for that function in the two mile zone of unincorporated territory just as they were responsible for such functions before the city of Milaca extended its subdivision authority.

If the city has extended enforcement of the Code into the two mile zone, the city is responsible for the code-related permitting process. If not, then code-related permitting would not be in effect except for that related to handicapped persons and elevator safety. Administration of these provisions would, it appears, remain county responsibility.

We have confined our answer here to permits relating directly to local zoning or state building code enforcement. There are, of course, many other permit requirements which might apply to particular development and building projects. See, e.g., Minn. Stat. §§ 103D.345 (Watershed); 103G.221 (Wetlands); 326.244 (Electrical Code).

Best regards,

HUBERT H. HUMPHREY III
Attorney General

KENNETH E. RASCHKE, JR.
Assistant Attorney General
(612) 297-1141

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