In a Minnesota home rule city where the mayor votes only to break a tie, how do you compute a two-thirds majority for a zoning amendment under Minn. Stat. § 462.357?

Plain-English summary

The City of Minnetonka Beach has had its home rule charter since 1894. Article III creates a five-member council: a mayor, a recorder, and three trustees. The charter has an unusual voting rule: the mayor can vote only to break a tie. The charter does not contemplate any supermajority requirements.

State law, on the other hand, sometimes does. Two zoning statutes require a two-thirds majority of all council members: Minn. Stat. § 462.355, subd. 3 (adopting or amending a comprehensive plan), and Minn. Stat. § 462.357, subd. 2 (rezoning residential property for industrial or commercial use). In a five-member body, two-thirds of five is 3.33; the next whole number up is four. So in a normal five-member council, four affirmative votes are needed to pass a measure under either statute.

Minnetonka Beach's mayor can't vote unless there's a tie. So if the mayor is counted in the five, the four non-mayor members would have to vote unanimously to pass a supermajority measure, because the mayor would never get to cast a vote unless the count was 2-2 (a tie), in which case the mayor could break the tie only to make it 3-2, which is still not two-thirds of five. Effectively, the supermajority statutes would become unanimity statutes for Minnetonka Beach.

Counsel for the city, Robert Mitchell, asked the AG whether that result was right or whether the mayor was entitled to vote on all such matters notwithstanding the charter.

The AG answered no to the mayor-votes-on-everything question, but identified a workable middle path. The mayor is not counted in computing a supermajority for measures that don't produce a tie. So for Minnetonka Beach, the council is treated as a four-member body, and three out of four is a two-thirds majority. Three affirmative votes pass a § 462.355 or § 462.357 supermajority measure.

But here's the twist the AG flagged: if the non-mayor members split 2-2, the mayor's tie-breaking vote does come into play, and that brings the mayor back into the count. With the mayor counted, the body is five members, and a 3-2 vote (the result after the mayor breaks a tie) is not two-thirds. So a measure that draws a 2-2 split among the trustees and recorder cannot be saved by the mayor's vote; it fails.

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. The zoning statutes (Minn. Stat. §§ 462.355, 462.357) have been revised since 2002. The Minnetonka Beach charter is also subject to amendment by its voters. Any specific present-day vote calculation should be redone against the current statute and charter.

Historical context: what the AG concluded

The opinion stacks five sub-arguments to reach its conclusion.

First, the AG agreed with counsel's premise that the legislature would not have intended the supermajority statutes to operate as a unanimity rule for Minnetonka Beach. Counting the mayor when the mayor will never have an opportunity to affect the result would produce an absurd outcome (Minn. Stat. § 645.17(1)).

Second, two readings could rescue the statutes from absurdity: let the mayor vote on all supermajority measures notwithstanding the charter limitation, or treat the council as a four-member body for those measures. The AG preferred the second because it "give[s] effect to both the statutory and charter provisions." The first reading would override the charter; the second harmonizes the two.

Third, the AG looked to out-of-state cases on parallel mayor-vote-only-on-ties charters: Biddeford Bd. of Ed. v. Biddeford Teachers Ass'n, 688 A.2d 922 (Me. 1977); Hutton v. Town of Elkton, 2002 WL 57324 (Va. Cir. Ct. 2002); Davis v. City of Robinson, 919 S.W.2d 49 (Tex. Ct. App. 1996). All three reached the same conclusion: when a mayor can only vote on ties, the mayor is not counted in computing a quorum or required voting majority, unless an actual tie vote is before the body.

Fourth, the AG cited the Minnesota Court of Appeals decision in In re 1989 Street Improvement Program v. Denmark Twp., 483 N.W.2d 508 (Minn. Ct. App. 1992), for the parallel rule that members of a body who are disqualified from voting are not included in the majority calculation. There, three affirmative votes constituted a four-fifths majority of a five-member board because two members were disqualified. By the same logic, the mayor of Minnetonka Beach, disqualified from voting unless there's a tie, is not counted in the supermajority calculation for matters that don't produce a tie.

Fifth, the AG pointed to a parallel statute, Minn. Stat. § 429.031, subd. 1(f) (assessable public improvements), which explicitly codifies the same approach: "When there has been no such petition, [by property owners] the resolution may be adopted only by vote of four-fifths of all members of the council; provided that if the mayor of the municipality is a member of the council but has no vote or votes only in case of a tie, the mayor is not deemed to be a member for the purpose of determining a four-fifths majority vote." (Emphasis added.) Under Minn. Stat. § 645.16, the AG may consider other laws on the same or similar subjects to ascertain legislative intent. Section 429.031 supports applying the same rule to the two-thirds zoning supermajority.

Counsel's conclusion for Minnetonka Beach: for a § 462.355 comprehensive plan amendment or a § 462.357 residential-to-industrial/commercial rezoning, three affirmative votes (out of the four non-mayor council members) are sufficient. If those four split 2-2, the mayor's tie-breaking vote can't save the measure, because with the mayor in the count the body becomes five members and 3-2 falls short of two-thirds.

Common questions

Q: I'm a council member in a small Minnesota home rule city where the mayor only votes on ties. How many affirmative votes do I need to pass a zoning amendment under § 462.357?
A: Under the 2002 opinion, you need a two-thirds majority of the non-mayor council members. In a five-member council where the mayor doesn't vote unless there's a tie, that means three out of four affirmative votes. Confirm the current text of § 462.357; the 2002 opinion is based on the 2001 Supp. version. Also check your own charter to confirm the mayor-votes-only-on-ties rule.

Q: Can the mayor save a measure by breaking a 2-2 tie?
A: Not for a supermajority measure. The 2002 opinion flagged this clearly. If the four non-mayor members split 2-2, the mayor's tie-breaking vote brings the mayor into the count. The body then has five voting members for that vote, and a 3-2 result (mayor breaks the tie in favor) is not two-thirds. So a supermajority measure that produces a 2-2 split among the trustees and recorder fails. The mayor's tie-breaking power is intact for simple-majority measures; it just can't help meet the supermajority requirement.

Q: Does the charter trump the statute, or vice versa?
A: The AG read the two as harmonizable rather than in conflict. The charter says the mayor only votes to break ties (controls who can vote and when). The statute says a supermajority is required (controls how many votes are needed to pass). The AG treated those as complementary: the mayor stays out of the supermajority math unless a tie is on the table. Neither rule has to give way.

Q: What about a quorum, does the mayor count for that?
A: The 2002 opinion does not directly address quorum. The out-of-state cases the AG cited (Biddeford, Hutton, Davis) treat the mayor-vote-only-on-ties rule as excluding the mayor from both quorum and voting calculations unless a tie is in play. Minnesota practice would likely follow the same logic, but check the charter language and consult counsel for a definitive answer.

Q: What if our charter says the mayor votes on every matter, not just ties?
A: The 2002 opinion only addresses charters that limit the mayor to tie-breaking votes (like Minnetonka Beach's). A charter that lets the mayor vote on every matter wouldn't raise the issue: the mayor would be a normal voting member, the body would be five for all purposes, and four affirmative votes would be needed for two-thirds.

Q: Does this rule apply to school boards, county boards, or other governmental bodies?
A: The 2002 opinion is specific to a home-rule city council under a charter that limits the mayor to tie-breaking votes. Other governmental bodies operate under different statutes and rules. The general principle (members disqualified from voting are not counted in the majority calculation) from In re 1989 Street Improvement Program v. Denmark Twp. has broader applicability, but each body's specific rules should be checked.

Background and statutory framework

Minnesota home rule cities (cities with their own voter-adopted charters under Minn. Stat. ch. 410) have significant latitude in designing their council structure, including how the mayor votes. Some charters give the mayor a full vote; others, like Minnetonka Beach's 1894 charter, restrict the mayor to tie-breaking.

State law overlays certain supermajority requirements regardless of charter. Two appear in the planning and zoning chapter (Minn. Stat. ch. 462): § 462.355, subd. 3 (comprehensive plan adoption/amendment) and § 462.357, subd. 2 (residential-to-industrial/commercial rezoning). Both require a two-thirds majority of all council members.

Section 429.031 (assessable public improvements, requiring a four-fifths majority absent property-owner petition) had been amended to explicitly address the mayor-only-votes-on-ties situation. The 2002 opinion reasons by analogy from § 429.031's express rule to the (silent) supermajority rules in §§ 462.355 and 462.357.

Mike Hatch was Minnesota AG in 2002. Assistant AG Kenneth E. Raschke, Jr. authored this opinion.

Citations and references

Statutes:
- Minn. Stat. § 429.031, subd. 1(f) (2000) and subd. 2 (four-fifths majority for assessable improvements; mayor-only-votes-on-ties carve-out)
- Minn. Stat. § 462.355, subd. 3 (2000) (two-thirds majority for comprehensive plan amendment)
- Minn. Stat. § 462.357, subd. 2 (2001 Supp.) (two-thirds majority for residential-to-industrial/commercial rezoning)
- Minn. Stat. § 645.16 (2000) (interpretation: consider other laws on similar subjects)
- Minn. Stat. § 645.17(1) (legislature does not intend an absurd or unreasonable result)

Cases:
- Biddeford Bd. of Ed. v. Biddeford Teachers Ass'n, 688 A.2d 922 (Me. 1977)
- Hutton v. Town of Elkton, 2002 WL 57324 (Va. Cir. Ct. 2002)
- Davis v. City of Robinson, 919 S.W.2d 49 (Tex. Ct. App. 1996)
- In re 1989 Street Improvement Program v. Denmark Twp., 483 N.W.2d 508 (Minn. Ct. App. 1992)

Cross-reference:
- Op. Atty. Gen. 61-c (general home-rule city council and voting rules)

Source

• Landing page: https://www.ag.state.mn.us/Office/Opinions/
• Original PDF: https://www.ag.state.mn.us/Office/Opinions/63b14-20020513.pdf

Original opinion text

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

CITIES: COUNCIL: ORDINANCES: Computation of two-thirds majority when mayor may only vote in case of a tie. Minn. Stat. §§ 462.355, subd. 3 (2000), 462.357, subd. 2 (2001 Supp.)

63-b-14
(Cr. Ref. 61-c)
May 13, 2002

Mr. Robert G. Mitchell, Jr.
LINDQUIST & VENNUM
444 Cedar Street, Suite 1700
St. Paul, MN 55101-3157

Dear Mr. Mitchell:

Thank you for your letter of April 11, 2002. In your letter you set forth the facts described below.

FACTS

The City of Minnetonka Beach adopted its home rule charter in 1894. Article III of the Charter provides for a council consisting of the mayor, a recorder and three trustees. Article III allows the mayor to vote on matters before the council only in the case of a tie. The charter does not contemplate a requirement for a super-majority vote.

Two Minnesota statutes require a two-thirds majority vote for certain zoning-related actions. Adopting or amending a comprehensive plan requires such a two-thirds vote of all the council members. Minn. Stat. § 462.355, subd. 3 (2000). Minn. Stat. § 462.357, subd. 2 (2001 Supp.) also requires a two-thirds super-majority vote of all members to rezone residential property for industrial or commercial use. A two-thirds majority of a five-member body requires four affirmative votes. If the mayor may not vote due to lack of a tie, passage of such a measure will require unanimous approval of the remaining members.

You have found no controlling cases in Minnesota on the issue of computing the requisite two-thirds majority where a member can only vote in case of a tie.

QUESTION

Based on the above, you ask whether the mayor of Minnetonka Beach is entitled to vote on all zoning matters requiring a two-thirds majority vote notwithstanding the language of the home-rule charter?

OPINION

We answer your question in the negative. However, it is our view that under the Minnetonka Beach form of government as described in the facts, three affirmative votes would be sufficient to approve a measure requiring a two-thirds majority.

First, we agree with your conclusion that the legislature would not intend the cited statutes to be construed so as to count the mayor for purposes of computing the size of the body and the requisite majority, even though the mayor would never have an opportunity to affect the result by breaking a tie vote. See, e.g., Minn. Stat. § 645.17(1) (The legislature does not intend an absurd or unreasonable result).

Second, the apparent contradiction might be resolved either by permitting the mayor to vote on all such matters notwithstanding the lack of a "tie" vote, or by viewing the council as a four-member body for the purpose of such proposals. The latter approach appears most reasonable to give effect to both the statutory and charter provisions.

Third, while we have located no Minnesota cases directly on point, cases in other jurisdictions have determined that, when a mayor may only vote in the case of a tie, the mayor is not counted in computing a quorum or the required voting majority, unless an actual tie vote is before the body. See, e.g., Biddeford Bd. of Ed. v. Biddeford Teachers Ass'n., 688 A.2d 922 (Me. 1977); Hutton v. Town of Elkton, 2002 WL 57324 (Va. Cir. Ct. 2002); Davis v. City of Robinson, 919 S.W.2d 49 (Tx. Ct. App. 1996).

Fourth, that result is consistent with the rule recognized by Minnesota courts that, when computing the majority vote need to pass a particular measure, members of the body who are disqualified from voting are not included. See In re. 1989 Street Improvement Program v. Denmark Twp. 483 N.W.2d 508 (Minn. Ct. App. 1992) (Three affirmative votes constitutes four-fifths majority of a five-member board where two members are disqualified.) Under the Minnetonka Beach charter, the mayor is disqualified from voting unless there is a tie vote. Therefore, for most purposes, the council consists of four voting members. Three affirmative votes would be a two-thirds majority of the body. However, if a two-to-two tie were to occur, a vote by the mayor pursuant the charter could not affect the result, since the council would then be considered a body of five voting members and a 3-2 vote would not constitute the two-thirds majority required for approval.

Fifth, that result is also in keeping with the legislature's direction in the case of another statutorily imposed super-majority vote. Minn. Stat. § 429.031, subd. 1(f) (2000), pertaining to approval of assessable public improvements, provides in part:

When there has been no such petition, [by property owners] the resolution may be adopted only by vote of four-fifths of all members of the council; provided that if the mayor of the municipality is a member of the council but has no vote or votes only in case of a tie, the mayor is not deemed to be a member for the purpose of determining a four-fifths majority vote.

(Emphasis added). See also, id. subd. 2. The intention of the legislature may be ascertained by considering other laws on the same or similar subjects. Minn. Stat. § 645.16 (2000). Therefore, Section 429.031 may be seen as supporting a similar approach to the two-thirds vote required for the zoning-related actions at issue.

For these reasons, it is our opinion that, when a two-thirds vote of all the Minnetonka Beach council members is required, three affirmative votes, excluding the mayor, are needed to approve the measure.

Yours very truly,

KENNETH E. RASCHKE, JR
Assistant Attorney General