SU`PERSEDED BY OP. A'I`TY. GEI\'. jZSA. OFYTOBER 18, 2001

COUNTY: BUILDING CODE: ADOPTION: Count_v. wherein building code was rejected

bv referendum. mav not adopt code bv ordinance '
resubmitted to reli:rendum. Minn. Stai. § 16B.72 fl992).1 mm m code application may be

125a
lCr. Ref`. 593-9)

April 20. 1994
Ann L. Carrott
Dou_itlas County Attorney
Douglas County Courthouse

305 8th Avcnue West
.-\le:tandria. MN 56308

Dear Ms. Carrott:
ln your letter to our ofi'ice. you set forth substantially the l`ollowing.
FACTS

On September 11. 1979. a special election was held in Doui_zlas County teitclusive
of the City of Alexandria). The question presented to the voters was 'Shall the
State Biiildini_t Code be adopted in Dougias Cr\unty‘.’” 'Ihe vote was th.at Douglas
County should gm adopt the state building code. lt has recently been proposed
that the county adopt the State Build‘in; Code by ordinance. You then ask
substantially the following questions:

QUESTION ONE

May the county adopt the State Building Code by ordinance in the described
circumstances?

OPINTON
We answer your question in the negative
Bei_tinm`ng July l. 1977. all cities. counties and urban town.-. .vere required to adopt and
enforce '.hc State Building Code within their respective jurisdictions §_e_e Act_of June 2. 1977.
ch. 38l. l§§ l. 2. 1977 Minn. Laws 847. 848. However. that requirement was substantially
modified two years later when thc legislature authorized non-metropolitan counties to conduct

referenda upon the application ot` the code within the areas of their counties outside

.\nnlw Cunon
Page l

.Dmril 20 , `.?94

municipalities which had ‘.'oluntarily adopted the code beiore 1971 ` hat aut`nority. now

contained in Minn Stat. § loB.'/’Z 11992i provides in part:

.\lotwithstanding any other provision of law to the contrar_»'. a county that
is not a metropolitan county as defined by section 473.121. subdivision 4. may
provide, by a vote ot` the majority ot` its electors residing outside ot` municipalities
that have adopted the state building code before .lanuary l. 1977. that no part of
the state building code except the building requirements t`or handicapped persons
applies within its jurisdiction

`l`be county board may submit to the voters at a regular or special election
the question of adopting the building code. The county board shall submit the
question to the voters it` it receives a oetition t`or the question signed by a number
of voters equal to at ieast tive percent oi` those voting in the last general election
`l`lie question on the ballot must be stated substantially as follows:

"Shall the state building code be adopted in County."'

lf the ma`Loritv of the votes cast on the proposition is in the negative,the
state building code does not wth in the subi;t countv, outside borne rule
charter or statutory cities or towns that adopted the building code before
lanuary l. 1977. except the building requirements for handicapped
persons do apply.

Nothing in this section precludes a home rule charter or statutory city or
town tiiat did not adopt the state building code before january l. 1977.
from adopting and enforcing the state building code within its jurisdiction

(Emphasis added i.

Thus. it seems clear that alter a referendum against code application. the code will not
apply in the county outside cities and towns that had adopted the code before 1977. While this
preclusion is subject ‘.‘) later voluntary adoption of the code by "a horne rule or statutory city
or town". there appears no express authority for the county itself to adopt the code by
ordinance following a negative referendum result. _\lor should such authority be implied. To
do so would effectively negate the statutory right of the voters to compel a referendum by
petition and to express their will at the polls Qf_. Op. t'\tty. Gen. 59a-32. December 20. 1989

(_City Council may not disregard referendum result by adopting ordinance rejected by voters.l

.-\nn L. Carrott
Page 3
Aoril EO, 1994

z

Ql_§ESTlON T\VO

.\/Iay the application of the code be resubmitted to referendum pursuant to Minn.
Stat. § loB.’/Z l1992‘i.

OPINION
We answer your questions in the affirmative While the express statutory language is
much more ambiguous on this issue. we believe that resubmission to the voters should be
permitted to further the underlying purposes ot` the legislation pertaining to the code. As noted

above. Section 16B.72 provides that

.A. county that is not a metropolitan county ns defined by section 473.121.
subdivision 4. may provide. by a vote of the majority of its electors residing
outside of municipalities that have adopted the state building code before

lanuary l. 1977. that no part of the state building code except the building

requirements for handicapped persons applies within its jurisdiction.

If the majority of the votes cast on the proposition is in the negative. the state

building code does not apply in the subject coungg, outside home rule charter or

statutory cities or towns that adopted the building code before lanuary l. 1977.
except the building requirements for handicapped persons do apply.

(_Emphasis addedl.
Tbat language if applied |iteraliy. would suggest that once a negative referendum result
n occurs. the code may never again apply to areas of the county outside cities and towns that had
adopted the code before .lanuary l. 1977. or voluntarily adopted it thereafter
However. the remaining language of the section does not support the one-way approach

to the question. The paragraph falling in between the paragraphs quoted above states:

The county board may submit to the voters at a regular or special election
the guestion of adopting the building code. The county board shall submit the
question to the voters if it receives a petition for the question signed by a number
of voters equal to at least five percent of those voting in the last general election.
The question on the ballot must be stated substantially as follows:

Ann L. Carrott
Page 4

"Shall the state building code be adopted in _ County'?"
Id_. (Emphasis added)

This language is not limited to cases where the voters wish to halt application of the
code. but also encompasses cases where the code is not in effect and the issue is whether to
adopt it in the future.

In light of the apparent general purpose oi` Minn. Stat. §§ 16B\59-16B.73 to provide
basic and uniform building construction standards throughout the state. subject to a limited
right of the people in certain counties to avoid its application ig Minn. Stat. §§ 16B.59.
16B-62, 16B.72 (1992)), we are inclined to construe section 16B.72 to permit the people of a
county which has rejected the code to later support its adoption by means of a subsequent

referendum

Best regards.

HUBERT H. HUMPHREY III
Attorney Genera|

KENNETH E. RASCHKE. JR. ‘
Assistant Attomey Genera|

KER:sr.ets