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32
<br />MINNESOTA LEGAL REGISTER
<br />Published monthly and containing all Opinions
<br />of the Minnesota Attorney General
<br />Published by The Progress - Register
<br />200 Upper Midwest Bldg., Minneapolis, Mn. 65401
<br />Sold only in combination with The Progress -
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<br />nesota. Out -of -state $17.00 per year. Payable
<br />in advance. Binder and index service included.
<br />Second -class postage paid at Minneapolis, Mn.
<br />in !its discretion provide special instruction and ser-
<br />vices. "It is a well- recognized rule in the law that the
<br />express enumeration of one or more instances of many
<br />belonging to the . same class impliedly excludes the
<br />others." Tynan v. HSTP, Inc., 247 Minn. 168, 172, 77
<br />N.W.2d 200, 203 (1956).
<br />Based upon the foregoing and under the facts
<br />presented, it is our opinion that the School District is
<br />without authority to provide special instruction and
<br />services to an individual who is less than 21 years of
<br />age but who has graduated from secondary school.
<br />However, since the School District's decision to grad-
<br />uate the individual has the effect of removing the
<br />availability of special education services, the decision
<br />is subject to the procedures established by Minn.
<br />Stat. 4120.17, subd. 3b (1976). We note also that the
<br />individual may be entitled to participate in other .pro-
<br />grams in the School District pursuant to Minn. Stat.
<br />4120.06 (1976).
<br />WARREN SPANNAUS, . Attorney General
<br />Charles T. Mottl, Spec. Asst. Atty. Gen.
<br />CITIES: ZONING: INTEREST OF "COUNCILMAN:
<br />Council not prevented by Mirm. Stat. 9 471.87 from re-
<br />zoning property owned by council member or his client.
<br />Council member may not participate in consideration.
<br />11rnn. Stat. 9 412.311, 471.87 (1976).
<br />Ms. Deborah Hedlund September 11, 1978
<br />Minnetonka City Attorney 59a -32
<br />14600 Minnetonka Boulevard (Cr. Ref. 90)
<br />Minneapolis, Minnesota 55343
<br />In your letter to Attorney General Warren Span -
<br />naus you present substantially the following
<br />FACTS
<br />Minnetonka City councilman X is the owner of cer-
<br />tain property located within the City of Minnetonka, a
<br />home rule charter city. On October 20, 1975 such pro-
<br />perty was rezoned from R -1 to R -2 and B -1. Councilman
<br />X took no part in the portion of the meeting involving
<br />the rezoning. In August 1977, Councilman X applied
<br />again to have the lots rezoned. Following a public hear-
<br />ing and conditional approval of the application by the
<br />Planning Commission, Councilman X contracted to sell
<br />part of the property contingent upon rezoning. On Nov-
<br />ember 21, 1977, a proposed ordinance to rezone the pro-
<br />perty was tabled.
<br />SEPTEMBER 1978
<br />On November 28, 1977, the prospective purchaser Y
<br />applied for rezoning of the property based upon the pre-
<br />viously submitted site plans. Following approval of Y's
<br />application by the Planning Department, the council
<br />approved the application on January 23, 1978 and ulti-
<br />mately adopted the rezoning ordinance on February
<br />21, 1978.
<br />Councilman X did not participate in any council
<br />votes affecting the rezoning. His application to rezone
<br />a portion of the property is still pending.
<br />You then ask substantially the following
<br />QUESTION ONE
<br />Is a rezoning, by a city council, of property owned
<br />by a member of the council, precluded by the prohi-
<br />bitions of Minn. Stat. § 412.311, or § 471.87.
<br />OPINION
<br />Subject to the qualifications set forth below, we
<br />answer your question in the negative.
<br />Minn. Stat. § 471.87 * provides:
<br />Except as authorized in section 471.88, a public
<br />officer who is authorized to take part in any manner
<br />in making any sale, lease, or contract in his official
<br />capacity shall not voluntarily have a personal finan-
<br />cial interest in that sale, lease, or contract or per-
<br />sonally benefit financially therefrom. Every public
<br />officer who violates this provision is guilty of a gross
<br />misdemeanor.
<br />(Emphasis added.)
<br />This office has previously ruled that the prohibi-
<br />tions of this statute are operative only where all ele-
<br />ments are present. Op. Atty. Gen. 90c -5, Jan. 15, 1960.
<br />Plainly, section 471.87 only precludes certain officers
<br />from interest in or benefits from a government "sale,
<br />lease or contract." Municipal zoning is justified as an
<br />exercise of the delegated police power to enact ordin-
<br />ances for the health, safety and welfare of the citi-
<br />zenry: See, e.g., State ex rel. Berndt v. Iten, 259 Minn.
<br />77, 106. N.W.2d 366 (1960); Higes v. City of St. Paul,
<br />et al., 240 Minn. 522, 62 N.W.2d 363 (1953). As such, it
<br />cannot be seen as a matter of "sale, lease or contract"
<br />within the meaning of Minn. Stat. § 471.87.
<br />A similar. result was reached in Op. Atty. Gen.
<br />90E-4, Aug. 18, 1949 wherein it was determined that
<br />Minn. Stat. §412.311, which prohibited any direct or
<br />indirect interest of village council members in village
<br />contracts, did not preclude issuance of a beer license
<br />to a councilman.
<br />It is significant to note that, by virtue of required
<br />residence in the city, council members are affected, to .
<br />their benefits or detriments, by many exercises of the
<br />local police power including zoning. To hold that a
<br />city council is powerless to act whenever an ordinance
<br />will affect the individual interests of any member
<br />would render the police power wholly ineffectual in
<br />many situations.
<br />Thus, it is our opinion that Minn. Stat. § 471.87
<br />does not operate to prohibit enactment or amendment
<br />of a zoning ordinance which affects property of a
<br />council member. Substantial self- interest by a council
<br />member may, however, disqualify the member from
<br />participation in the council proceedings involving the
<br />* Minn. Stat. § 412.311 (1976), which imposes similar re-
<br />strictions upon council members, is applicable only to
<br />statutory cities. ...
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