Filed 5/7/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 81

Alton Johnson, Appellant

v.

City of Burlington, Appellee

No. 20190318

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Brian C. Balstad, Fargo, ND, for appellant.

Brian Schmidt (argued) and Scott K. Porsborg (on brief), Bismarck, ND, for

appellee.
1

Johnson v. City of Burlington

No. 20190318

McEvers, Justice.

[¶1] Alton Johnson appeals from a judgment denying his variance 

application. Johnson argues the City’s findings were arbitrary, capricious, 

unreasonable, and not supported by substantial evidence. We affirm the 

judgment.

I

[¶2] In the 1970s Johnson purchased land in Burlington, ND, and in 1973, 

opened an auto body shop. The auto body shop was zoned as a C-1 residential 

sometime after the shop was built. In 1989, a fire damaged the building. After 

building repairs in 1991, Johnson leased part of the property. Johnson began 

to use another location for his auto body business.

[¶3] In 2012, Johnson sold his business at the second location. Property 

owners neighboring the property raised concerns about the use of the property.

[¶4] In December 2012, a city council meeting was held, and neighbors of the 

property stated they had concerns about what would happen to the property 

after the current renters left the location. After the city council meeting, the 

City sent Johnson a letter in March 2013 stating “a body shop is not an allowed 

usage.” In May 2013, the city attorney issued an opinion regarding the body 

shop, stating it “was a non-conforming use when the zoning ordinance was 

initially passed, so it was essentially ‘grandfathered in’” and when the auto 

body shop’s use was discontinued, and the current renters went into the 

building, the auto body shop was no longer “grandfathered in” and would need 

approval by the planning commission. Johnson operated the auto body shop 

at the location of the property at issue subsequent to the sale of the second 

location. In October 2013, Johnson moved for a temporary injunction and ex 

parte restraining order to allow him to continue to use his auto body shop, 

which was granted by the district court.
2

[¶5] In October 2016, Johnson requested a variance from the City. A meeting 

of the City’s planning commission was held on November 29, 2016. At the 

meeting, Johnson’s counsel discussed the property and how Johnson was 

relying on the sale of the property for his retirement. Johnson testified about 

the type of work he would be doing and that auto body work had been done “off 

and on” at the Burlington location. One of the neighboring property owners 

testified and stated he was unaware of any auto body work that had been done 

at the property after Johnson opened the second location. Other members of 

the public also testified about their concerns with the property including the 

previous fire, concerns of another fire, and hazardous chemicals and fumes 

from painting. Commissioner Travis Grosche moved to recommend to the city 

council a denial of the variance application, stating:

I think if you want to go through with this, I think you need to go 

through the steps and get rezoning for the purpose you’re going to 

use if for. You’re going to have to have the fire department 

involved with fire suppression. If you’re going to do any painting, 

you’re going to have to have paint booth with air recovery system, 

explosion proof lights, explosion proof operators. I think that’s the 

way to go. You know if you were in Minot, you’d have to do that. 

That’s just the way it is. You gotta follow the rules.

The planning commission voted to recommend that the city council deny the 

variance.

[¶6] The city council met on December 5, 2016. Again, members of the public 

testified regarding the history of the property, concerns about the future 

owners of the property once Johnson retires, uncertainties about inspecting the 

property, hazardous chemicals and fumes, and potential fire hazards. The city 

council unanimously accepted the recommendation of the planning commission 

and denied the variance. The City’s findings included Johnson’s variance 

application was not in accordance with the City’s ordinances and his 

application would have an adverse impact on neighboring properties.

[¶7] In January 2017, Johnson appealed the City’s decision to the district 

court. In August 2019, the court issued its findings of fact, conclusions of law, 

and order for judgment affirming the denial of Johnson’s variance application. 
3

Johnson appeals to this Court, arguing the City’s findings were arbitrary, 

capricious, unreasonable, and not supported by substantial evidence.

II

[¶8] Johnson appealed the City’s determination under N.D.C.C. § 28-34-01, 

which provides the procedure for appeals from local governing bodies. Both 

Johnson and the City agree this Court’s scope of review is very limited.

[¶9] “When considering an appeal from the decision of a local governing body 

under N.D.C.C. § 28-34-01, our scope of review is the same as the district 

court’s and is very limited.” Hagerott v. Morton Cty. Bd. of Comm’rs, 2010 ND 

32, ¶ 7, 778 N.W.2d 813. This Court does not give any special deference to the 

district court and the decision of the governing body must be affirmed unless 

the body acted arbitrarily, capriciously, or unreasonably, or there is not 

substantial evidence supporting the decision. Tibert v. City of Minto, 2006 ND 

189, ¶ 8, 720 N.W.2d 921. This Court does not substitute its judgment for that 

of the local governing body. Dockter v. Burleigh Cty. Bd. of Cty. Comm’rs, 2015 

ND 183, ¶ 8, 865 N.W.2d 836. There is substantial evidence if a reasonable 

mind could accept the evidence as adequate to support the conclusion. Id. “[A]

reconsideration of evidence is limited to the extent that such evidence was 

presented to the county commission, and the evidence must be reviewed in 

light of the commission’s decision to determine whether that decision was 

arbitrary, capricious, or unreasonable.” Id. “A decision is not arbitrary, 

capricious, or unreasonable if the exercise of discretion is the product of a 

rational mental process by which the facts and the law relied upon are 

considered together for the purpose of achieving a reasoned and reasonable 

interpretation.” Tibert, at ¶ 8. “We fully review the interpretation of an 

ordinance, and a governing body’s failure to correctly interpret and apply 

controlling law constitutes arbitrary, capricious, and unreasonable conduct.”

Hagerott, at ¶ 7; see Gullickson v. Stark Cty. Bd. of Cty. Comm’rs, 474 N.W.2d 

890 (N.D. 1991).
4

III

[¶10] Johnson argues the City’s findings were arbitrary, capricious, 

unreasonable, and not supported by substantial evidence.

A

[¶11] Johnson argues the City’s findings were made more than two years after 

the hearings were held and the composition of the planning commission and 

the city council changed between the time of the public hearing and the written 

findings. Johnson also argues the City’s findings cite sections of the zoning 

ordinances not discussed at the public hearings. Johnson argues this renders 

the findings arbitrary, capricious, and unreasonable. The City argues the 

written findings were permitted additions to the record by the district court 

and were to summarize the hearings to comply with N.D.C.C. § 40-47-04. The 

City brought a motion in the district court to add the written findings to 

complete the record, which was granted.

[¶12] We have previously noted, “[u]nder N.D.C.C. § 28-34-01(2), the ‘court 

may permit amendments or additions to the record to complete the record.’” 

Gowan v. Ward Cty. Comm’n, 2009 ND 72, ¶ 10, 764 N.W.2d 425. Even though 

the written findings were made at a later time, the written findings summarize 

the hearings. Regardless of whether each ordinance was specifically discussed, 

the ordinances cited in the findings relate to the issues involved at the 

hearings. Johnson has not adequately explained how citing to the ordinances 

regarding the issues before the respective city bodies makes the findings 

arbitrary, capricious, or unreasonable. Johnson’s argument is without merit.

B

[¶13] Johnson argues the City failed to correctly interpret and apply 

controlling law.

[¶14] First, Johnson argues the City failed to correctly apply N.D.C.C. § 40-47-

09. Section 40-47-09, N.D.C.C., allows for an appeal process from a person 

aggrieved by an action by a city officer to a board of adjustment. However, the 

governing body of a city is not required to provide for a board of adjustment. 
5

N.D.C.C. § 40-47-01 (stating regulations may provide that a board of 

adjustment may determine and vary the application of regulations). Johnson’s 

argument is without merit, because the City has not created a board of 

adjustment and no appeal to a board of adjustment was utilized in this matter.

[¶15] Johnson also argues generally that the City failed to correctly apply the 

city ordinances. A city must issue written findings which must state the 

grounds upon which a request for a variance is approved or disapproved. 

N.D.C.C. § 40-47-04(3). The City issued written findings regarding Johnson’s 

variance application. The findings indicate, and for purposes of this appeal, 

the parties agree, the auto body shop is in a C-1 zoned neighborhood. Section 

18-1202 of the City of Burlington’s Zoning Ordinance discusses permissible 

uses of land in a C-1 zone:

(1) Any use permitted in the “R-3” General Residence District.

(2) Automobile parking area or lot.

(3) Clinic.

(4) Filling station.

(5) Florist shop or greenhouse.

(6) Laundromat.

(7) Offices and office building.

(8) Retail store, provided that in connection with such store, there 

shall be no slaughtering of animals or poultry on the premises.

(9) Tailoring, dressmaking, shoe repairing, repair of household 

appliances and bicycles, catering, dry cleaning, and pressing, and 

bakery with sale of bakery products on the premises, and other 

uses of similar character.

(10) Personal service uses including barbershops, banks, beauty 

parlors, photographic or artist studios, messengers, taxicab, 

newspaper or telegraphic service stations, restaurants, and other 

personal service uses of a similar character.

(11) Accessory building and use.

[¶16] An auto body shop is not a permissible use under the C-1 zoning 

ordinance of Burlington and was a nonconforming use that the City 

grandfathered in when the zoning ordinance was passed.
6

[¶17] The City’s findings also cite to ordinances regarding variances, including 

City of Burlington Zoning Ordinance Chapter 18, sections 18-2201, 18-2502, 

and Article XXVI. Section 18-2201, generally discusses the fees for requesting 

various applications, including variances from height, area, yard, parking or 

loading provisions. Section 18-2502, describes variances for tracts of land to 

be subdivided. Article XXVI, generally discusses flood protection, and provides 

for a variance necessary for flood protection and the conditions under which a 

variance may be granted. Under the City’s ordinances, a variance may be 

issued for relief from flood protection requirements, relief from a strict 

application of the requirements for subdividing a tract of land, and relief from 

height, area, yard, parking, or loading provisions.

[¶18] The City’s findings state that Johnson’s variance request is not 

addressed by the City’s ordinances. We agree. The ordinances do not provide 

for a variance for Johnson’s situation.

[¶19] In addition, the findings state: “Further, owners of neighboring 

properties have stated opposition to the request citing concerns with safety and 

nuisances. It appears Johnson’s application may have adverse impacts on 

neighboring properties and it is not in the best interests of the community to 

allow him to operate an auto body and repair shop in a ‘C-1’ district.”

[¶20] In Gullickson, we stated:

A variance “is invoked to avoid the confiscatory effect that 

would follow a literal enforcement of some term of a zoning 

ordinance operating to deprive an owner of all beneficial use of his 

land.” 3 E. Yokley, Zoning Law and Practice § 21-2 (4th ed. 1979). 

A variance is intended to waive the strict letter of the zoning 

ordinance while preserving its spirit and purpose. Id. A failure to 

establish a prerequisite to a variance is fatal. Id. “ The burden of 

proof is on the applicant to establish that his land is uniquely 

affected resulting in unnecessary hardship.” Id. at § 21-6. It is 

widely recognized that one important requirement for a variance 

is “that the hardship must come from circumstances unique to a 

particular lot, or perhaps a few, and at any rate not from 

circumstances general in the neighborhood.” 5 Williams Am. Land 

Plan. § 142.01 (1985 Rev). “[T]he unnecessary hardship which will 
7

suffice for the granting of a variance must relate to the land rather 

than to the owner himself.” 82 Am.Jur.2d, Zoning and Planning § 

275 (1976). These general rules relate the limited role of a 

variance in administration of an ordinance that regulates zoning.

Zoning ordinances usually contain well-defined standards 

for granting a variance. “A variance is proper only if there is 1. no 

adverse effect on public, 2. no adverse effect on neighbors, and 3. 

the property has characteristics making it eligible for a variance.

All standards must be met.” D. Hagman, Urban Plan. & Land 

Dev. Control Law § 106 (1971). “Even though there is no adverse 

effect on the public, or even if the public is benefited, neighboring 

property may be adversely affected by a variance. If so, the 

variance should not be issued.” Id. at § 108. A variance should not 

confer special privileges that are not enjoyed by neighboring 

property. Id. “The terms unique, special, exceptional and 

extraordinary and the like suggest that a variance is proper only 

where the property is somehow different from other property, 

particularly adjacent property. Legislative changes are the 

appropriate vehicle for a change which would affect a large number 

of properties.” Id. at § 109. “If a parcel is not unique but is 

disadvantaged by a zoning restriction equally with other property 

in the area, issuance of a variance is improper.” Id.

474 N.W.2d at 892. This Court’s review is very limited and evidence is 

reviewed in light of the city commission’s decision. Even if the ordinances 

could have provided relief, the City’s decision to deny the variance are 

supported by the record. The City considered the concerns about possible 

adverse effects to neighboring property owners. The City considered Johnson’s 

variance application and noted that it did not appear his application fell under 

the City’s ordinances. There were concerns brought to the City about safety, 

particularly in regard to fire and toxic fumes. “A decision is not arbitrary, 

capricious, or unreasonable if the exercise of discretion is the product of a 

rational mental process by which the facts and the law relied upon are 

considered together for the purpose of achieving a reasoned and reasonable 

interpretation.” Tibert, 2006 ND 189, ¶ 8, 720 N.W.2d 921. The City’s decision 

was rational in light of the facts and law before it. It was not arbitrary, 

capricious, or unreasonable for the City to deny Johnson’s variance application 

and there is substantial evidence to support the City’s decision.
8

C

[¶21] Johnson also argues that because the property has been continuously 

used as an auto body shop since 1973, the City should be estopped from denying 

Johnson’s variance application.

[¶22] Estoppel based on a party’s declaration, act, or omission, is allowed 

under N.D.C.C. § 31-11-06, which provides: “[w]hen a party, by that party’s 

own declaration, act, or omission, intentionally and deliberately has led 

another to believe a particular thing true and to act upon such belief, that party 

shall not be permitted to falsify it in any litigation arising out of such 

declaration, act, or omission.” While the doctrine of equitable estoppel is not 

absolutely barred against the government, it should also not be freely applied 

against the government. Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 

912, 920 (N.D. 1984). “Estoppel is ordinarily a question of fact.” Nelson v. 

Johnson, 2010 ND 23, ¶ 30, 778 N.W.2d 773.

[¶23] The City made no finding of fact whether Johnson continuously used the 

property as an auto body repair shop, but did note Johnson stated it was used 

“off and on.” The City also did not make any findings on the issue of equitable 

estoppel. Johnson made no request for amendments to the record.

[¶24] The cases relied on by Johnson under his estoppel theory involve claims 

against various local government bodies for damages or a declaration of rights. 

See Buegel v. City of Grand Forks, 475 N.W.2d 133 (N.D. 1991) (property owner 

sued the city for inverse condemnation and to enjoin city from enforcing an 

amendment to an ordinance); Minch v. City of Fargo, 297 N.W.2d 785 (N.D. 

1980) (property owner sued the city for damage for alleged taking caused by 

rezoning); City of Fargo v. Harwood Twp., 256 N.W.2d 694 (N.D. 1977) (city 

commenced a declaratory judgment action to determine whether the 

township’s regulations applied to the property). These types of actions would 

allow a fact finder to determine whether the elements of estoppel have been 

met. Johnson has cited no authority, nor have we found any, applying the 

doctrine of equitable estoppel to an appeal of the government’s denial of a 

variance.
9

[¶25] Given our limited scope of review, we are only reviewing and interpreting 

the ordinances and the City’s interpretations of the ordinances. We decline to 

apply the doctrine of equitable estoppel here because we are not convinced it 

is within our limited scope of review.

IV

[¶26] We have considered the remaining issues and arguments raised by 

Johnson and determine they are either unnecessary to our decision or are 

without merit.

[¶27] We affirm the judgment.

[¶28] Lisa Fair McEvers

Gerald W. VandeWalle

Jon J. Jensen, C.J.

Daniel J. Crothers

Jerod E. Tufte