942 N.W.2d 816
N.D.2020Background
- Johnson bought property in Burlington in the 1970s and operated an auto body shop at the site beginning in 1973; the property later became zoned C-1 (residential/limited commercial).
- A 1989 fire damaged the building; after 1991 repairs Johnson leased part of the property and later operated his business from another location; he sold that second business location in 2012.
- Neighbors complained about the Burlington site; City officials notified Johnson in 2013 that a body shop was not an allowed use and the city attorney opined the nonconforming use had been abandoned.
- Johnson obtained a temporary injunction in 2013 to continue operations, then applied for a variance in October 2016; the planning commission recommended denial and the city council unanimously denied the variance in December 2016 citing ordinance nonconformance and adverse impacts on neighbors.
- Johnson appealed to district court, which affirmed the denial in August 2019; Johnson appealed to the North Dakota Supreme Court, arguing the City’s findings were arbitrary, capricious, unreasonable, and unsupported by substantial evidence.
Issues
| Issue | Johnson's Argument | City of Burlington's Argument | Held |
|---|---|---|---|
| Were the City’s written findings arbitrary or unreasonable because they were prepared later, the boards’ composition changed, and they cited ordinances not discussed at hearings? | Delay and post‑hearing changes rendered findings arbitrary/capricious. | Written findings were properly added to complete the record and summarize the hearings; cited ordinances related to issues raised. | Court: Findings were permissible additions to the record and not arbitrary; argument without merit. |
| Did the City misapply controlling law by failing to provide or follow a board of adjustment appeal under N.D.C.C. § 40‑47‑09? | City should have afforded board of adjustment process or otherwise misapplied statute. | City has not created a board of adjustment; § 40‑47‑09 is not mandatory. | Court: No error; City not required to have a board and no appeal to one was used. |
| Did the City misapply its zoning ordinances in denying the variance (i.e., was variance available)? | Ordinances were misapplied or could support the variance. | The Burlington ordinances do not authorize a variance for converting a C‑1 parcel to an auto body shop; variance provisions address limited subjects (flood, subdivision, dimensional relief). | Court: Ordinances do not provide relief for Johnson’s request; denial was rational and supported by the record. |
| Is Johnson entitled to equitable estoppel because the property was continuously used as an auto body shop since 1973? | Continuous historical use estops City from denying the variance. | Equitable estoppel against government is disfavored; no findings or record development on estoppel in this appeal. | Court: Declined to apply estoppel in this limited appeal; not within scope without appropriate factfinding. |
Key Cases Cited
- Hagerott v. Morton Cty. Bd. of Comm’rs, 778 N.W.2d 813 (N.D. 2010) (scope of review for appeals under N.D.C.C. § 28‑34‑01 is very limited).
- Tibert v. City of Minto, 720 N.W.2d 921 (N.D. 2006) (administrative decisions must not be arbitrary, capricious, or unreasonable; review standards explained).
- Gullickson v. Stark Cty. Bd. of Cty. Comm’rs, 474 N.W.2d 890 (N.D. 1991) (variance law: hardship must relate to land, uniqueness requirement, and protection of neighbors).
- Gowan v. Ward Cty. Comm’n, 764 N.W.2d 425 (N.D. 2009) (court may permit amendments or additions to the administrative record to complete it).
- Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 912 (N.D. 1984) (equitable estoppel against government is not freely applied).