COUNTY

COl.iNTl': BUILDING CODE: ADOPTION· Count\' wh ·Man:; e ȼ•; ȽȾȿɀmg cɁe ɂ·as reJecled by refȺrendum . may not adopt code by ord 1Ȼance. . apphcauon may be rcsubmured 10 retcrendum. Minn. Srar. § 168. 72 (J 992). SUPERSEDED BY OP. A TTY. GEJ\'. :25A, or:TOBER 18, 2001 · · l25a (Cr. Ref. 59a-9) April 20. 1994 Ann L. Carron Douglas County Attorney Dougtas Coumy Counhouse 305 8th AvɃnue West Alex:indn:i . .MN .56308 Dear Ms. C:urott: ln your letter to our office. you set tonh substantially the following. FACTS On September 11. 1979. a special election was held in Douglas County (exclusive of the City of Alexandria). The question presented to the voters was "Shall the State Building Code be adopted in D0ugias Cnunry'!" The vote was that Douglas County should nm adopt me state building code. lt has recently been proposed chat the county adopt the State Building Code by ordinance. You then ask substantially the followmg questions: QUESTION ONE May the county adopt the State Building Code by ordinance in the described circumstances'? OPINION We :mswer your question in the negati\•e. Beginning July l. 1977. all cities. counues and urban town;. .,:ere required to adopt and enforce Ʉhe Stale Building Code within their respective Jurisdictions. Ʌ Act_of June 2. 1977. Ɇh. 38 l. 1}§ 1. :. 1977 MiM. L:iws 847. 848. Howe\'er. that requirement was subnantially modified two years later when the legislarure authorized non-metropolitan counties to conduct referenda upon the :ipphcauon of the coɇe within the areas of their counties ou:side :\nn L. Cirrorr P:ige 2 .:\.nril 20, ?94 municip:ilities which had ';nlumar1ly adopted the coue bt>rnre Is>̅ -:.-. That authorny. 00w contained in Yi inn. Stat. ̆ :oB. 72 r 1992) provides in pan: '.'/otwi!hstanding any other provision ot law to the <.:nmrary . a coumy that 1s not a metropolican county as denned by se<.:tion 4 73. I 21. ::i:Jbdivision 4. may provide. by a \"Ole or' the majority or' ics electors residing outside or municipalities that have adopted ̇ he slale building code before January I. 1977. that no pan of the state building code except the building requirements for handicapped persons applies within its jumd1ccion. lhe coumy hoard may submit to the vocers at a regular or special election 1he question of adoormg the building code. The coumv hoard shall submit the uuestion 10 1l1e vrHer̈ 1r" it receives a l"'emi0n i"or the quesllon signed b̉ · a number •>f vmers equal ro al ̊̋ asc r1\·e percem ni" those \"nting in 1he last ̌ enerai dection.o The quesuon on the hallot must be SlJled subscanually as follows:o ··Shall the state building code he adopted in _____ Coumy .1 •• If the majori1\· of che votes case on the proposition is in the ne!!ative. the scace buildinl! Lode does not applv in the subject coumv, outside home rule chaner or scarutory cities or towns that adopted the building code before January I. 1977. t!xcepc the building requirements for handicapped persons do apply. Nothing in this section precludes a home rule charter or scanuory city or town mat did not adopt the SlJte huilding code before January l. 1977. from adopcin̍ :.ind enforcing the state building code within its jurisdiction. ( Empha̎ is added l. Thus. it seems clear tilat a:rer a referendum against code application. the code will r.oc apply in the coumy outsidl.! cnws and towns thac had adopt.!d the code before l 977. While this preclusion is subject ·,> lalcr \ otumary adoption of the code by "J home rule or starutory city or cown... there appears no express authority for the c.:oumy itself to adopt the code by ordinance following a nega1ivc referendum result. ̏ or should such authority be implied. To do so would dfeccively negate the starucory right uf the voters rn compel a referendum by petition and to express their will at che polls Cf. Op. Any. Gen. 59a-32. December 20. 1989 (City Council may not disregard referendum result by adopcmg 0rdinance rejected by voters. I :\nn L. Carrott Page .3 Aoril 20, 1994 <)t.;ESTION TWO \fay the application l)f the code he resubmitted to referendum pursuant to Minn. Stat. Ȯ 16B.72 (1992). OPINION We answer your qw.:stions in the affinn:itive. While the express statutory language is much more ambiguous on this issue. •.ve helieve that resubmission co the voters should be penniued to limher the underlying purposes or' the legislation penaining to the code. As noted above. Section 16B. T2 provides th:it A county thal is not a metropolitan ..:ounty as defined by section 473.121. subdivision 4. may provide. by a vote ot the majority of its eleccors residing our.side of municipalities ,hat have adopted the state building code before January l. 1977. that no pan of the state building code except the building requirements for handit.:apped 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 applv in the subject councy, outside home rule charter or statutory cities or towns that adoptȯd the building code before January l. 1977. except the building requirements for handicapped persons do apply. (Emphasis added). That language. if applied literaliy. would suggest that once a negative referendum result occurs. the code may never again apply to areas of the county outside cities and towns that had adopted the code before January I. l 977. or voluntarily adopted it thereafter. However. the remaining ianguage of the section does not support the one-way approach to the question. The paragrar,h falling in between the paragraphs quoted above states: The 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 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. Carron Page 4 "Shall the state building code be adopted in ____ Coumy"?" Id. (Emphasis added) This language is nor limited co cases where the voters wish co hale application of the code. but also encompasses cases where the code is not in effect and the issue is whether to adopt ic in the future. In light of the apparent general purpose oi' Minn. Stat. §§ 16B.59-16B. 73 10 provide basic and unifonn building construction standards throughout the stale. subject co a limited right of the people in certain countic!s to avoid its application (see Minn. Scat. §§ 16B.59. 16B-62, 16B.72 (1992)), we are inclined to construe section ltiB.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 General KENNETH E. RASCHKE. JR. Assiswnt Attorney General KER:sr.et3