Last month, the North Carolina Supreme Court held that municipalities must provide landowners with a clear description of an alleged violation when enforcing zoning ordinances in Durham Green Flea Market v. City of Durham.
Durham Green Flea Market runs a flea market in the City of Durham. In January of 2020, a zoning officer inspected the property and found numerous violations because of changes to the property that were not in the Market’s approved site plan. Durham subsequently issued an intentionally vague Notice of Violation (NOV), alleging the Market failed “to comply with an approved site plan” and giving the Market thirty days to “remove all alterations inconsistent with the approved site plan[.]” The Market appealed the NOV to Durham’s Board of Adjustment, arguing that the NOV was not sufficiently descriptive to provide meaningful notice of what conditions created zoning violations. One Board Member agreed, stating he could not determine what the violation was after reading the NOV. The remaining Board Members dismissed the Market’s appeal.
A Superior Court and a divided panel of the Court of Appeals affirmed the Board’s decision. In an appeal to the North Carolina Supreme Court, the Market argued the NOV violated Section 15.2.1.C of Durham’s UDO, which requires NOVs to include “a description of the violation and its location” and “the measures necessary to correct it[.]” The Court agreed, holding that the vague language left the Market guessing as to what property conditions formed the basis of the violations and how it needed to fix them to come into compliance with the UDO. When reaching this conclusion, the Court emphasized that property owners must receive clear notice of alleged violations to ensure due process and to enable them to take corrective action.
Fundamental to the Court’s analysis was that UDO Section 15.2.1.C placed higher standards on Durham’s zoning enforcement officials than Section 160D-404 of the North Carolina General Statutes, a law requiring local government to initiate formal zoning enforcement proceedings by delivering a notice of violation to property owners. The Court construed Section 15.2.1.C’s heightened requirements to indicate Durham’s intent to provide more stringent detail in its notices than that required by the General Assembly. So, moving forward, what must a municipality include in its notices of a zoning violation? Local governments must give clear notices of zoning violations, identifying the violation with enough detail to give the recipient a reasonable understanding of the alleged violation and the corrective measures they must take. General and nondescript notices will not suffice. In the same vein, municipalities should remain aware that if they include a higher standard in their ordinances than that set forth by the legislature, they will be held to it down the line.
