After Minnesota lowered the council-vote threshold for most zoning amendments to a simple majority, can a home-rule charter city still require a two-thirds council vote by its own ordinance?

Plain-English summary

Minnesota cities used to need a two-thirds vote of their full council to adopt or amend a zoning ordinance under Minn. Stat. § 462.357, subd. 2. The 2001 Legislature changed that. The Act of May 29, 2001, ch. 207, § 13, dropped the threshold to a simple majority for most zoning enactments. The only carve-out: changing a residential zoning classification to commercial or industrial still requires a two-thirds majority.

The City of Moorhead, a home-rule charter city, had a city ordinance that mirrored the old two-thirds requirement and applied it to all zoning issues. After the statutory change, Moorhead City Attorney Brian Neugebauer asked the AG: can a charter city keep its more restrictive two-thirds rule even though the state has moved to majority?

Assistant AG Kenneth Raschke, signing for AG Mike Hatch, said no. Three lines of reasoning carried the answer.

First, local units of government have only the powers expressly granted or necessarily implied (Borgelt v. City of Minneapolis (1965); Alexander v. City of Minneapolis (1963); City of Birchwood Village v. Simes (1998)). Cities derive their zoning authority from Minn. Stat. §§ 462.351 et seq.; they cannot impose conditions or restrictions at variance with the express terms of that grant. Even when statutory language is permissive ("the governing body may adopt and amend a zoning ordinance by a majority vote"), the city cannot use that permissiveness as a license to impose stricter requirements (RES Investment Co. v. County of Dakota (1992)). A city council also cannot, by ordinance, divest its successors' legislative power to act under the statutory majority rule (Minneapolis Street Railway Co. v. City of Minneapolis (1949); Hanna v. Rathje (Ia. 1969)).

Second, the statutory majority-vote provision supersedes any contrary charter provision. The Minnesota Constitution (art. XII, § 4) and Minn. Stat. § 410.07 grant home-rule cities substantial authority, but that grant "does not impair the ultimate power of the legislature to pre-empt local authority on matters it considers to be of statewide concern" (State ex rel. Town of Lowell v. City of Crookston (1958); Lilly v. City of Minneapolis (1995)). The Municipal Planning Act (Minn. Stat. §§ 462.351 to 462.364) makes the legislature's preemption clear: § 462.351 states the purpose is to provide municipalities "in a single body of law, with the necessary powers and a uniform procedure for adequately conducting and implementing municipal planning." And § 462.352 defines "municipality" to include "any city, including a city operating under a home rule charter." So charter cities are within the scope of the statutory framework.

Third, the same conclusion was reached on the reverse facts in Op. Atty. Gen. 59A-32, October 13, 1955: the statutory two-thirds requirement then in effect prevailed over inconsistent charter and ordinance provisions. The 2001 opinion just runs the same reasoning the other direction (statutory majority requirement prevails over more-restrictive charter and ordinance provisions).

Bottom line: Moorhead had to update its ordinance. The statutory majority rule applied, and the city could not impose its own supermajority on zoning amendments that the legislature had decided to make easier to pass.

Currency note

This opinion was issued in 2002. 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. Minn. Stat. § 462.357 has been amended since 2002, and the specific provisions governing supermajority requirements should be checked against the current statute. The general principle (state Municipal Planning Act preempts inconsistent charter or local ordinance provisions) appears to remain sound.

Historical context: what the AG concluded

The opinion is short and follows a clean three-step structure.

Step 1: Cities have only delegated powers. The standard principle: "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." That principle is grounded in Borgelt v. City of Minneapolis, Alexander v. City of Minneapolis, and City of Birchwood Village v. Simes. Cities' zoning authority comes from Minn. Stat. §§ 462.351 et seq.

The legislature amended § 462.357, subd. 2 in 2001. The new text reads in relevant part: "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." (Emphasis as in opinion.)

After the 2001 amendment, the statute provides no remaining authority for a two-thirds requirement except for the residential-to-commercial/industrial carve-out. A majority of council members can adopt or amend any other zoning provision.

Step 2: Permissive language is not a license to impose stricter conditions. The fact that § 462.357 says cities "may" adopt or amend by majority does not authorize cities to add their own restrictions on that authority. The AG cited RES Investment Co. v. County of Dakota (1992) for the proposition that a board could not impose limits on its own statutory jurisdiction to consider tax abatement applications. By analogy, a city council cannot impose a supermajority requirement on its own statutory authority to amend zoning by majority. The AG also cited the rule that a current city council cannot, by ordinance, divest its successors' legislative power (Minneapolis Street Railway Co. v. City of Minneapolis (1949) on the city's police power; Hanna v. Rathje (Ia. 1969) on city zoning ordinances; McQuillin on Municipal Corporations).

Step 3: Statute supersedes inconsistent charter. Home-rule cities have charter authority under Minn. Const. art. XII, § 4 and Minn. Stat. § 410.07. But that authority "does not impair the ultimate power of the legislature to pre-empt local authority on matters it considers to be of statewide concern" (State ex rel. Town of Lowell v. City of Crookston (1958); Lilly v. City of Minneapolis (1995)). The legislature made its intent on zoning clear in § 462.351: "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." And § 462.352 defines "municipality" to include "any city, including a city operating under a home rule charter."

The AG also pointed to the parallel 1955 opinion (Op. Atty. Gen. 59A-32, October 13, 1955) that had reached the same structural conclusion when the rule was reversed: the statutory two-thirds rule then in effect superseded inconsistent charter provisions that would have required only a majority. The 2002 opinion applies the same principle to the now-flipped circumstance.

Common questions

Q: I'm a city attorney for a Minnesota home-rule charter city. Our charter requires a two-thirds council vote for all zoning ordinance amendments. Is that still good?
A: Under the 2002 opinion, no, except for the narrow category of amendments that change residential zoning to commercial or industrial. For all other zoning amendments, the statutory majority-vote rule preempts the charter's supermajority requirement. Your council should amend the charter (with voter approval, since charter amendments typically require a referendum under Minn. Stat. § 410.12) or at least be aware that the charter rule is unenforceable. Confirm against the current text of § 462.357 before acting.

Q: What about rezoning a parcel from residential to multi-family residential? Is that still a simple majority?
A: Under the statute as it stood in 2002, yes. The carve-out is specifically for changes from residential to either commercial or industrial. Residential-to-residential changes (single-family to multi-family, for example) fall under the general majority-vote rule. Pull the current statute to confirm; classification categories and rezoning rules have been refined since 2002.

Q: Can a city impose a supermajority requirement on a specific zoning change through a development agreement or settlement with property owners?
A: The 2002 opinion doesn't directly address that, but the underlying principle (council cannot divest its successors' legislative power) would make such a private agreement problematic. A development agreement might require the city to take certain administrative actions, but binding the council to a supermajority vote on a future legislative act would likely fail under the principles the AG cited.

Q: What about a comprehensive plan amendment? Does the simple-majority rule apply?
A: The 2002 opinion focused on the change in § 462.357, subd. 2. Comprehensive plan amendments are governed by § 462.355, subd. 3, which (as of the 2002 opinion in the companion 63b-14 opinion) required a two-thirds majority. Whether the legislature has subsequently changed that rule must be checked against the current statute.

Q: If the council passes a zoning amendment by simple majority and a developer challenges it, what's the city's defense?
A: The city's defense is the statutory authority in § 462.357, subd. 2 to amend zoning by majority. Under the 2002 opinion, an inconsistent charter or ordinance does not override that statutory authority. The developer's argument would have to rely on a different theory (procedural due process, equal protection, takings, or specific statutory non-compliance), not on the supermajority requirement.

Q: Does this opinion apply only to home-rule charter cities, or also to statutory cities?
A: It applies to both. Statutory cities operate under the general law in Minn. Stat. ch. 412 and have no separate charter to invoke as a basis for a supermajority requirement. The 2002 opinion specifically addresses the harder case (a home-rule charter city that argues its charter authority overrides the statute); the rule applies a fortiori to statutory cities.

Background and statutory framework

Minnesota's Municipal Planning Act, Minn. Stat. §§ 462.351 to 462.364, governs city zoning and land-use planning. Section 462.351 expressly states the legislature's intent to provide "a single body of law" and "uniform procedure" for municipal planning, signaling that the act preempts inconsistent local enactments.

Before 2001, § 462.357, subd. 2 required a two-thirds council vote for any zoning amendment. The Act of May 29, 2001, ch. 207, § 13, lowered the threshold to a simple majority for most amendments, keeping the two-thirds requirement only for residential-to-commercial/industrial rezonings. That change reflected a legislative judgment that ordinary zoning adjustments should not be subject to a supermajority chokepoint, while rezonings that change the fundamental character of a neighborhood (residential to industrial) deserve heightened council consensus.

Home-rule charter cities operate under Minn. Const. art. XII, § 4 and Minn. Stat. § 410.07, which let cities adopt their own charters and legislate on matters of municipal concern. But matters of statewide concern (zoning being one) are subject to legislative preemption (State ex rel. Town of Lowell v. City of Crookston (1958); Lilly v. City of Minneapolis (1995)).

The 1955 precursor opinion (Op. Atty. Gen. 59A-32, Oct. 13, 1955) confirmed the same structural rule from the opposite direction: a charter could not lower the statutorily-required supermajority. The 2002 opinion runs the same rule now that the statute has flipped.

Mike Hatch was AG in 2002. Kenneth E. Raschke, Jr. was the Assistant AG of record.

Citations and references

Statutes:
- Minn. Stat. § 410.07 (2000) (home-rule charter authority)
- Minn. Stat. § 462.351 (Municipal Planning Act purpose: uniform procedure)
- Minn. Stat. § 462.352 (definition of "municipality" includes home-rule cities)
- Minn. Stat. § 462.357, subd. 2 (2000) (pre-amendment: two-thirds vote)
- Minn. Stat. § 462.357, subd. 2 (Supp. 2001) (post-amendment: majority vote, with two-thirds carve-out for residential-to-commercial/industrial)

Session laws:
- Act of May 29, 2001, ch. 207, § 13, 2001 Minn. Laws 849, 854 (zoning-vote threshold change)

Constitution:
- Minn. Const. art. XII, § 4 (home-rule cities)

Cases:
- 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)
- RES Investment Co. v. County of Dakota, 494 N.W.2d 64 (Minn. Ct. App. 1992)
- Minneapolis Street Railway Co. v. City of Minneapolis, 229 Minn. 502, 40 N.W.2d 353 (1949)
- Hanna v. Rathje, 171 N.W.2d 876 (Ia. 1969)
- State ex rel. Town of Lowell v. City of Crookston, 252 Minn. 526, 91 N.W.2d 81 (1958)
- Lilly v. City of Minneapolis, 527 N.W.2d 107 (Minn. Ct. App. 1995)

Treatise:
- 4 McQuillin, Municipal Corporations § 13.03.15 (3rd Ed.)

Prior AG opinion:
- Op. Atty. Gen. 59A-32, October 13, 1955 (statutory two-thirds requirement prevailed over inconsistent charter and ordinance allowing majority vote; structurally parallel)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/59a32-20020125.pdf

Original opinion text

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

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. § 462.357, subd. 2 (2000) authorized adoption or amendment of zoning ordinances only by a two-thirds vote of all members of the governing body.

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 charter. Pursuant to the Constitution, 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

[Footnote 1: Minn. Const. art. XII, § 4.]