Counties: Planning and Zoning: Subdivision Regulations: Fees: County may not prevent
recording of all land conveyance documents that do not comply with county land use controls
and fee requirements. Minn. Stat. §§ 272.12, 272.121, 394.37.

                                                                                         125a-66

                                         August 12, 2003


Christopher J. Strandlie
Assistant County Attorney
Cass County Attorney’s Office
PO Box 3000
303 Minnesota Avenue
Walker, MN 56484-3000

Dear Mr. Strandlie:

         Thank you for your correspondence of May 29, 2003.

                                        BACKGROUND

         You state that the present practice in Cass County is for a land title document to be
submitted for recording to the county auditor/treasurer. The auditor/treasurer determines
whether there are delinquent taxes owing and whether the document creates a “split” of an
existing parcel. If a parcel split is involved, a “split fee” must also be paid. When current taxes
and applicable fees are all paid, the document is referred to the county Environmental Services
Department which determines whether the transaction is consistent with Cass County zoning
regulations and with state requirements pertaining to sewage treatment systems. If all the
foregoing requirements are satisfied, the document is submitted to the county recorder. If the
foregoing regulations are not satisfied the document is “rejected” and not recorded. The county
board is considering enacting an ordinance that would memorialize the current practice.1
Members of the local bar have expressed the view that the county has no authority to prevent the
recording of a document that is in proper form if taxes have been paid in full. You ask whether
the county has authority to prohibit the filing of land title documents in circumstances where
county-imposed fees have not been paid or where the transaction represented by the documents
is not in compliance with authorized county regulations.

1
    The ordinance would read:

         In addition to the provisions of Minnesota Statutes regulating the subdivision of
         land and the recording of such subdivision, no subdivision of land within the
         unincorporated areas of Cass County shall be recorded without compliance with
         all Cass County ordinances, Board approved procedures, and payment of all
         Board required fees.
Christopher J. Strandlie
August 12, 2003
Page 2



       We answer your question in the negative.

                                     LAW AND ANALYSIS

1.     HISTORY AND DISCUSSION OF RELEVANT LAWS.

       First, it is axiomatic that local units of government, including counties and their officers,
have only those powers that are granted by the legislature either expressly or by reasonable
implication. See, e.g., Cleveland v. Rice Co., 238 Minn. 180, 56 N.W.2d, 641 (1952).

        Second, counties have been delegated substantial authority to impose official controls
upon the use and subdivision of land within the county. See, e.g., Minn. Stat. § 394.25 (2002).
In addition, state law requires county adoption and enforcement of particular regulations
affecting use and subdivisions of property. See, e.g., Minn. Stat. §§ 103F.211-103F.215 (Shore
land Development); 115.55 (2002), and Minn. Rules 7080.0305 (regulation of individual sewage
treatment systems).”

        Counties have also been authorized to employ various mechanisms to enforce compliance
with those regulations. See Minn. Stat. § 394.37 (2002). Between 1971 and 1974, Minn. Stat.
§ 394.37, subd. 1 specifically provided that, with certain exceptions, conveyances of property
subject to county subdivision regulations could not be filed or recorded absent county approval
of any parcel splits that were thereby created. That language stated:

       In a county in which subdivision regulations or controls are in force and have
       been filed or recorded as provided in section 394.35, no conveyance of land to
       which the regulations are applicable shall be filed or recorded if the land is
       described in the conveyance by metes and bounds or by reference to an
       unapproved registered land survey made after June 4, 1971, or to an unapproved
       plat made after such regulations have become effective. The foregoing provision
       does not apply to a conveyance if the land described:

               (1) was a separate parcel of record on the date of adoption of subdivision
       regulations under sections 394.12 to 394-37, or

              (2) was the subject of a written agreement to convey entered into prior to
       such time, or

               (3) was a separate parcel of not less than two and one half acres in area
       and 150 feet in width on June 4, 1971 or is a single parcel of land of not less than
       five acres and having a width of not less than 300 feet.

       In any case in which compliance with the foregoing restrictions will create an
       unnecessary hardship and failure to comply does not interfere with the purpose of
       the subdivision regulations, the board may waive such compliance by adoption of
Christopher J. Strandlie
August 12, 2003
Page 3


       a resolution to that effect and the conveyance may then be filed or recorded. Any
       owner or agent of the owner of land who conveys a lot or parcel in violation of
       the provisions of this subdivision shall forfeit and pay to the county a penalty of
       not less than $100 for each lot or parcel so conveyed. A county may enjoin such
       conveyance or may recover such penalty by a civil action in any court of
       competent jurisdiction.

Minn. Stat. § 394.37, subd. 1 (1971).

      That language was, however, deleted in 1974.2 See Act of April 11, 1974, Ch. 571, § 46,
1974 Minn. Laws 1401, 1416.

       Following the 1974 amendment, this Office rendered an opinion that, absent the deleted
language, counties lacked authority to prevent the filing or recording of land conveyance
documents on the basis of non-compliance with county subdivision regulations. See Op. Atty.
Gen. 125-A-66, December 18, 1974.

       In 1977, the legislature added specific language, which is still in place, authorizing
counties to require review of conveyance instruments after recording, to determine compliance
with county platting and subdivision regulations. That language provides:

       In a county in which subdivision regulations or controls are in force and have
       been filed or recorded as provided in section 394.35, the board may by ordinance
       require that a copy of some or all instruments which convey real estate be
       submitted by the county recorder to the administrative officer as provided in
       section 394.29, for review after recording. The officer shall examine each such
       instrument to determine whether the proposed conveyance complies with the
       subdivision and platting regulations of the county. If the conveyance does not
       comply with regulations, the administrative officer shall give notice by mail of the
       potential violation to the parties to the conveyance.

Act of May 20, 1977, Ch. 189, , § 1, 1977 Minn. Laws 311. (Emphasis added)

         Third, Minnesota law requires certain actions by the county auditor in connection with
land title transfers. For example, Minn. Stat. § 272.12 (2002) provides in part:

       When:

       (a) a deed or other instrument conveying land,

                                               ...

2
  A similar provision continues to apply, however, in connection with enforcement of city and
town subdivision regulations. See Minn. Stat. §§ 462.358, subd. 4b, 272.162 (2002).
Christopher J. Strandlie
August 12, 2003
Page 4


       is presented to the county auditor for transfer, the auditor shall ascertain from the
       records if there be taxes delinquent upon the land described therein, or if it has
       been sold for taxes.

                                                ...

       If there are taxes delinquent, the auditor shall certify to the same; and upon
       payment of such taxes, or in case no taxes are delinquent, shall transfer the land
       upon the books of the auditor’s office, and note upon the instrument, over official
       signature, the words, “no delinquent taxes and transfer entered,” or, if the land
       described has been sold or assigned to an actual purchaser for taxes, the words,
       “paid by sale of land described within;” and, unless such statement is made upon
       such instrument, the county recorder or the registrar of titles shall refuse to
       receive or record the same.

       (Emphasis added). Minn. Stat. § 272, 121, subd. 1 (2002) provides:

       Except as provided in subdivision 2, if a deed or other instrument conveys a
       parcel of land that is less than a whole parcel of land as described in the current
       tax list, the county auditor shall not transfer or divide the land in the auditor’s
       official records, and the county recorder shall not file and record the instrument,
       unless the instrument of conveyance contains a certification by the county
       treasurer that the taxes due in the current tax year for the whole parcel have been
       paid. This certification is in addition to the certification for delinquent tax
       required by section 272.12.

       (Emphasis added). Furthermore, Minn. Stat. § 272.16 (2002) provides in part:

       Subdivision 1. Transfer of specific part. When any part less than the whole of
       any parcel of land, as charged in the tax lists, is conveyed, the county auditor shall
       transfer the same whenever the seller and purchaser agree, in a writing signed by
       them, or personally appear before the county auditor and agree, upon the amount
       of the net tax capacity to be transferred therewith. If the seller and purchaser do
       not so agree, the county auditor shall make a division of the net tax capacity that
       appears just to the auditor.

       Finally, Minn. Stat. § 373.41 (2002) authorizes the county to fix and charge fees not
otherwise fixed by law for recording, filing or certification of any document by a county official.
As a general matter, government agencies clearly may require the payment of lawful fees prior to
or contemporaneously with, the providing of the relevant service. Cf. Op. Atty. Gen. 218-R,
September 26, 1978 (city determination to allow credit sales at municipal liquor store must be
supported by public purposes).
Christopher J. Strandlie
August 12, 2003
Page 5


2.     ANALYSIS.

        As noted above, while counties have substantial authority to impose official controls on
land use and subdivision, they do not have unfettered authority in choosing the means of
enforcing those regulations. Rather, the several means of enforcement for those controls are
expressly set forth in Minn. Stat. § 394.37. Those do not include preventing the recording of
documents. To the contrary, the authority to do so was specifically deleted from section 394.37
and replaced with a procedure whereby documents may be examined after recording to
determine compliance with county land use controls. Where a statute expressly identifies
specific objects or circumstances to which it pertains, others are implicitly excluded. See, e.g.,
Maytag Co. v. Commissioner of Taxation, 218 Minn. 460, 17 N.W.2d 37 (1941). Nor do we find
any authority in section 272.12 for the county auditor to interfere with filing or recording of
documents on the grounds that they do not conform to county land use controls. Section 272.12
states that if the taxes are paid or none are due the auditor “shall transfer the land” on the
auditor’s books and certify to that fact on the document. Section 272.121 also requires a tax
certification regarding any larger parcel from which the new one was separated. Those sections
however, contain no authority to withhold the required certifications for reasons unrelated to tax
payments. Therefore, in our opinion, the county lacks authority to prevent recording of all land
title documents that do not conform to county zoning or subdivision ordinances.

        With respect to fees, it is our view that the county may require the payment of permitted
fees as a pre-condition of performing services. Where those services are, by statute, required for
recording such as the certification of no delinquent taxes on the parcel transferred (Minn. Stat. §
272.12) and on the entire large parcel in the case of transfer of a portion of an existing parcel
(Minn. Stat. § 272.121) the county may, in effect preclude filing of documents until such fees
have been paid.

        We find no authority, however, for preventing the filing and recording of documents for
failure to pay for county services that are not statutorily required as a condition of recording. For
example, Minn. Stat. § 272.16 requires a division of net tax capacity among parts of a subdivided
parcel, either pursuant to agreement between seller and purchase, or by the county auditor.
There appears no statutory requirement that certification of that division be made as a
pre-condition for recording. Therefore, while a fee might be imposed for the auditor’s services
in connection with such apportionment, we do not believe that payment of such a fee may be
made a condition of recording.
Christopher J. Strandlie
August 12, 2003
Page 6



                                        OPINION

        In light of the foregoing, it is our opinion that the proposed ordinance exceeds the
authority of the county to prevent recording of land title documents.

                                          Very truly yours,

                                          MIKE HATCH
                                          Attorney General
                                          State of Minnesota


                                          _____________________
                                          KENNETH E. RASCHKE, JR.
                                          Assistant Attorney General

                                          (651) 297-1141
AG: #882574-v1
Counties: Planning and Zoning: Subdivision Regulations: Fees: County may not prevent
recording of all land conveyance documents that do not comply with county land use controls
and fee requirements. Minn. Stat. §§ 272.12, 272.121, 394.37.


                                                                                  125a-66
