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. § 4562.357, subd. 2 (2000) authorized adoption or amendment 

of zoning ordinances only by a two-thirds vote of all members of the governing body. 
Mr. Brian D. Neugebauer 

January 25, 2002 

Page 2 

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 
Mr. Brian D. Neugebauer 

January 25, 2002 

Page 3 

charter. Pursuant to the Constitution,1 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

 

1

 Minn. Const. art. XII, § 4.