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? 
Mr. Robert G. Mitchell, Jr. 

May 13, 2002 

Page 2 

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., 688A 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 
Mr. Robert G. Mitchell, Jr. 

May 13, 2002 

Page 3 

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