North Carolina’s Supreme Court has sided with the Durham Green Flea Market, ruling that a Notice of Violation (NOV) issued by the City of Durham was fundamentally flawed because it failed to clearly describe the alleged zoning infractions. The high court reversed the previous ruling by the Court of Appeals, ordering the City to dismiss the enforcement action entirely.
The decision hinges on the plain language of the City of Durham’s own Unified Development Ordinance (UDO), which mandates that any official notice of violation must contain a clear “description of the violation.”
Vague Notice Sparks Legal Battle
The dispute began in January 2020 when a City planning officer inspected the Durham Green Flea Market. The resulting NOV, dated February 10, 2020, cited the Market for one generalized issue: “Failure to comply with an approved site plan (D1300045).”
While the NOV included attachments—blurry photographs, a hard-to-read site plan copy, and an aerial photo—it did not specify *which* elements of the site plan were allegedly violated. The notice informed the Market it had 30 days to “remove all alterations inconsistent with the approved site plan” or face civil penalties up to $500 per day.
The Market appealed the NOV, arguing it was too vague to allow them to mount a proper defense or correct the issue.
During a hearing before the Board of Adjustment (BOA), City planning staff admitted the NOV was intentionally broad. The planning department manager testified that they deliberately avoided listing specific violations because there were “several different issues” on the property, and listing only some would allow the Market to fix those specific items while ignoring others.
This approach drew skepticism from at least one BOA member, who stated he couldn’t determine the actual violation from the notice. The Market’s owner and counsel confirmed that he had no idea what specific actions he needed to take to comply. Despite this concern, the BOA voted 6-1 to deny the appeal.
Lower Courts Upheld the City
The Market took its fight to the Durham County Superior Court, asserting due process violations because the notice failed to detail the alleged breaches. The Superior Court affirmed the BOA’s decision in June 2023, giving the Market 36 months to comply with an approved site plan.
The case moved to the Court of Appeals, where a divided panel affirmed the lower court’s ruling. The Court of Appeals majority found that the NOV, by citing the specific site plan number and instructing the Market to remove “all alterations inconsistent with the approved site plan,” contained the “necessary components” required by UDO Section 15.2.1.C. The dissenting judge strongly disagreed, arguing that a non-specific “failure to comply” notice leaves the property owner without fair notice of the violation or the necessary corrective steps.
Because the Court of Appeals decision featured a dissent, the Durham Green Flea Market had an automatic right to appeal to the Supreme Court.
Supreme Court Focuses on Plain Language
Writing for the Supreme Court, Justice Allen emphasized the fundamental principle that local governments must enact clear and unambiguous zoning rules. The Court noted that when interpreting zoning ordinances, courts look first to the plain meaning of the text.
The Court focused squarely on UDO § 15.2.1.C, which states that the notice “shall include a description of the violation and its location, [and] the measures necessary to correct it.”
Justice Allen reasoned that if the City Council required a “description of the violation,” it meant property owners should not have to guess what was being alleged. Rendering the description requirement meaningless by accepting a generalized statement would violate established rules of statutory construction.
“Hence, for an NOV to satisfy the description requirement, it must leave the property owner with a reasonable understanding of the alleged violation,” the opinion stated. This generally means specifying *which* UDO provisions are at issue and *what* conditions on the property violate those provisions.
The Court found the City’s NOV utterly failed this test. The notice essentially told the Market, “You know what you did. Now fix it.”
The opinion also addressed the City’s argument that attached photographs could cure the vague text. The Court dismissed this, noting that the blurry, black-and-white copies provided could not offer effective notice of any specific violation.
Furthermore, the Court highlighted the inherent unfairness of the City’s strategy: threatening steep daily fines while simultaneously refusing to specify what needed to be corrected.
“We do not believe that this is the kind of notice the Durham City Council envisioned when it adopted UDO § 15.2.1.C,” Justice Allen concluded.
By finding that the NOV violated the City’s own ordinance (UDO § 15.2.1.C), the Supreme Court stopped short of ruling on the Market’s related due process claims, stating they were unnecessary given the ordinance violation. The Court reversed the Court of Appeals and remanded the case with instructions for the City of Durham to dismiss the Notice of Violation.