“You Know What You Did” Is Not Enough: Specificity in Zoning Notices of Violation under Durham Green Flea Market v. City of Durham

I. Introduction

In Durham Green Flea Market v. City of Durham, the Supreme Court of North Carolina sharply constrained how municipalities may draft zoning enforcement notices. Interpreting Durham’s Unified Development Ordinance (UDO), the Court held that a Notice of Violation (NOV) must do more than generically state “failure to comply with an approved site plan.” It must describe the alleged violation with enough specificity that the property owner has a reasonable understanding of:

which ordinance provisions are allegedly violated, and
what physical conditions on the property are claimed to constitute those violations.

Because Durham’s NOV to the Durham Green Flea Market did not meet that standard, the Court reversed the Court of Appeals and ordered the City to dismiss the NOV. In doing so, the Court reaffirmed several important principles:

Local governments must follow the procedural protections they write into their own ordinances.
Zoning ordinances are construed by their plain language and, where ambiguous, in favor of the free use of land.
Vague, boilerplate notices that effectively tell an owner “you know what you did—now fix it” are inconsistent with those principles.

The ruling has significant implications not only for Durham but for zoning enforcement practices across North Carolina, particularly in jurisdictions that, like Durham, require NOVs to “include a description of the violation.”

II. Summary of the Opinion

Durham Green Flea Market (the Market) operates a flea market within the City of Durham. After a January 2020 inspection, a City site compliance officer issued an NOV stating that the following zoning violation had been observed:

“Failure to comply with an approved site plan (D1300045).”

The NOV cited UDO § 3.7.2 (site plan applicability) and § 15.1.2 (violation), ordered the Market within thirty days to “remove all alterations inconsistent with the approved site plan,” threatened up to $500 per day in civil penalties, and advised of a right to appeal. It attached:

four blurry black-and-white photos of structures on the property,
a hard-to-read copy of the approved site plan, and
an aerial photograph of the property.

The NOV did not identify:

which specific features or structures were noncompliant,
the particular deviations from the site plan, or
specific corrective measures for particular violations.

At the Board of Adjustment (BOA) hearing, Planning staff openly acknowledged they intentionally kept the NOV “very broad” because there were “several different issues,” and they did not want the Market to “fix” only the listed ones and leave others. One BOA member candidly stated that, from the NOV, he was “unable to determine what the violation was,” and he voted to overturn it. The remaining six members affirmed the NOV.

The Superior Court affirmed the BOA and granted the Market thirty-six months to come into full compliance with an approved site plan. A divided Court of Appeals also affirmed, concluding that the NOV met UDO § 15.2.1.C’s requirement that a notice include “a description of the violation” and “the measures necessary to correct it.” The dissent argued the NOV was noncompliant and violated due process.

On appeal of right based on the dissent, the Supreme Court:

Applied de novo review to the legal question whether the City followed its own ordinance.
Held that UDO § 15.2.1.C, by its plain language, required a description of the violation sufficient to give the owner a reasonable understanding of what was wrong and what had to be fixed.
Concluded the NOV’s generic assertion of “failure to comply with an approved site plan” and instruction to remove “all alterations inconsistent with the approved site plan” did not satisfy that requirement.
Rejected the City’s reliance on the attached photographs as curing the deficiency.
Reversed the Court of Appeals and remanded with instructions that the City dismiss the NOV.

Because it resolved the case on ordinance grounds, the Court expressly declined to reach the Market’s constitutional due process arguments or its other claims (e.g., about the impartiality of the BOA or the 36‑month compliance period).

III. Detailed Analysis

A. Factual and Procedural Background in Context

The underlying dispute is common in land-use practice: a long-operating business had made incremental changes to its site—such as adding or expanding temporary structures, including in required parking areas—without formally amending its approved site plan.

After inspecting the property, the City alleged “failure to comply with an approved site plan” but deliberately declined to list the specific deviations. The planning manager’s rationale was explicit:

There were “several different violations,” and the City did not want to limit the NOV to “fix this, this, this, and this” if there were “a whole lot of things” on the site.
By keeping the NOV “very broad,” the City hoped to force the Market to prepare and submit a new or amended site plan showing “all the changes that were made.”

In effect, the City was using a single, intentionally vague NOV as a blunt instrument to compel a comprehensive re‑permitting of the property, under the threat of substantial daily civil penalties.

The Market objected that:

the NOV was too vague to provide notice of what exactly was being alleged,
the lack of specificity prevented it from knowing what to fix or how to prepare for the BOA hearing, and
this violated both Durham’s UDO and its due process rights.

The BOA majority and the lower courts nevertheless upheld the NOV, essentially treating the generic description plus attachments as sufficient. The Supreme Court disagreed, taking a markedly more demanding view of what “a description of the violation” requires.

B. Precedents and Authorities Cited, and How They Shaped the Decision

1. Arter v. Orange County, 386 N.C. 352 (2024)

The Court opens with a quotation from Arter: “Local governments have a responsibility to enact clear, unambiguous zoning rules.” That framing serves two purposes:

It situates this case within a recent line of North Carolina decisions insisting on clarity in land-use regulation.
It signals that the Court will apply ordinary statutory-interpretation principles to the UDO’s NOV provisions, rather than defer to administrative practice or “flexible” understandings of notice.

Arter is later cited again for the method of interpreting zoning ordinances:

Zoning ordinances are interpreted like statutes.
If the text is clear and unambiguous, courts apply the plain meaning.

2. Coastal Ready-Mix Concrete Co. v. Board of Commissioners, 299 N.C. 620 (1980)

Coastal Ready-Mix provides the standard interpretive touchstone: “The basic rule is to ascertain and effectuate the intent of the legislative body.” Here, the “legislative body” is the Durham City Council that adopted the UDO. This reinforces that the question is not what the Planning Department prefers administratively, but what the ordinance itself requires.

3. Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142 (2012)

Cited through Arter, Lanvale supports the canon that, when language is clear, courts implement the plain meaning. The Court uses this to justify reading “description of the violation” in UDO § 15.2.1.C as requiring substantive specificity, not a perfunctory formula.

4. Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 (1990)

Burgess articulates the “anti-surplusage” canon: courts presume the legislature did not intend any provision to be meaningless or redundant. The Court applies this to UDO § 15.2.1.C:

If “a description of the violation” could be satisfied by a bare statement “failure to comply with an approved site plan,” then that requirement would add virtually nothing to the ordinance.
The Court refuses to interpret the UDO in a way that renders that phrase empty, and uses this to support a robust reading of the description requirement.

5. Schooldev E., LLC v. Town of Wake Forest, 386 N.C. 775 (2024)

Schooldev is used for two key propositions:

Standard of review in quasi-judicial zoning appeals: Errors of law receive de novo review.
Substantive canon for zoning ordinances: Ambiguities are resolved in favor of “the free use of land,” citing Westminster Homes (discussed below).

The Court invokes this second aspect in the alternative: even if the phrase “description of the violation” were ambiguous, any “well-founded doubts” must be resolved in favor of more protection for the landowner’s use, which implies a more demanding standard for what an NOV must contain before the government may interfere with that use.

6. Westminster Homes, Inc. v. Town of Cary Zoning Board of Adjustment, 354 N.C. 298 (2001)

Cited via Schooldev, Westminster supplies the “free use of land” canon. The logic is:

Zoning regulations restrict otherwise lawful property uses.
Accordingly, any interpretive ambiguity in those restrictions should be resolved narrowly, to minimize interference with property rights.
Here, zoning enforcement via an NOV is itself a form of interference; thus, the City must clearly and specifically state what it claims is unlawful before penalties and corrective orders can fairly attach.

7. Hamilton v. Adams, 6 N.C. (2 Mar.) 161 (1812); McMillan v. Robeson County, 262 N.C. 413 (1964); County of Lancaster v. Mecklenburg County, 334 N.C. 496 (1993)

These cases anchor the opinion in longstanding due process principles:

Hamilton (1812) articulates a foundational principle: no one should be deprived of property or rights “without notice and an opportunity of defending them.”
McMillan applies the federal Due Process Clause and the state “law of the land” clause (N.C. Const. art. I, § 19) to protect against deprivation of property without adequate procedural safeguards.
County of Lancaster makes clear that these due process standards apply to quasi-judicial zoning decisions, which must observe all “fair trial standards.”

These cases frame the due process backdrop. Importantly, though, the Court ultimately does not decide the constitutional issue; it resolves the case on UDO‑interpretation grounds while referencing due process principles as context for why specificity in NOVs matters.

8. PHG Asheville, LLC v. City of Asheville, 374 N.C. 133 (2020)

PHG Asheville is cited for the Court’s role in reviewing Court of Appeals decisions: when a case reaches the Supreme Court, “the issue is whether the Court of Appeals committed any errors of law.” This reinforces that the core question is whether the intermediate appellate court properly interpreted and applied UDO § 15.2.1.C.

9. Statutes: N.C.G.S. §§ 7A‑30(2), 160D‑404, 160D‑1402

Section 7A‑30(2): Provided an appeal of right to the Supreme Court when there is a dissent in the Court of Appeals. Although repealed, it still applies here because the case was pending before repeal; this explains the Supreme Court’s jurisdiction.
Section 160D‑404: Governs enforcement of development regulations and requires written NOVs as the starting point for formal enforcement. The Court notes that 160D‑404 was not in effect when this NOV was served and thus is not directly governing, but highlights it to show the statutory framework reflecting the General Assembly’s concern for owner notice.
Section 160D‑1402: Provides standards and scope of review for quasi-judicial zoning appeals to superior court. Subsection (j)(2) confirms de novo review for errors of law, which frames the standard used by the courts below.

C. The Court’s Legal Reasoning

1. Standard of Review and Posture

The Market’s central contention was that:

The City failed to follow its own ordinance (UDO § 15.2.1.C), and
By doing so, it violated the Market’s due process rights.

As an alleged error of law in a quasi-judicial zoning decision, the Supreme Court applied de novo review, “considering the matter afresh and freely substituting its own judgment for that of the board.” The Court agreed that the trial court and Court of Appeals used the correct standard of review, but concluded they misapplied it by erroneously upholding the NOV as compliant with the UDO.

2. The Text of UDO § 15.2.1.C

The critical ordinance provision reads:

“The notice shall include a description of the violation and its location, the measures necessary to correct it, the possibility of civil penalties and judicial enforcement action, and notice of the right to appeal. The notice shall also state the time period allowed, if any, to correct the violation….”

The Court approaches this text with the canons described above:

Plain meaning: “Description of the violation” must be given its ordinary sense—an explanation of what, specifically, is being alleged.
Anti-surplusage: The requirement must have some real content; it cannot be satisfied by a generic, conclusory label that would apply in virtually every enforcement case.
Free use of land: Any doubt as to how specific an NOV must be should be resolved in favor of the landowner, because zoning enforcement restricts the free use of property.

From this, the Court distills a standard:

“[F]or an NOV to satisfy the description requirement, it must leave the property owner with a reasonable understanding of the alleged violation. To accomplish this, the NOV will normally have to specify (1) which UDO provisions are at issue and (2) what conditions on the owner’s property violate those provisions.”

Note that the Court does not demand microscopic detail or a formal “charging document” akin to a criminal indictment. Instead, the touchstone is functional: does the owner, upon reading the notice, reasonably understand what is claimed to be wrong and why?

3. The Function of Specificity: Link to Corrective Measures and Time Period

The Court emphasizes that § 15.2.1.C does not stop at “description of the violation.” It also requires:

“the measures necessary to correct it,” and
“the time period allowed, if any, to correct the violation.”

These elements are interdependent:

One cannot meaningfully describe “measures necessary to correct” an unspecified or vaguely described violation.
Nor can an owner effectively use the allotted time period to “correct the violation” if he or she is unsure what specifically needs to be corrected.

Thus, by design, the ordinance links:

description of violation →
description of corrective measures →
time period for compliance →
potential penalties and enforcement.

A breakdown at step (1) undermines the entire structure, which is why the Court treats noncompliance with the description requirement as fatal.

4. Application to the City’s NOV

The Court concedes that the NOV:

did identify a specific UDO reference: § 3.7.2 (site plan applicability) and § 15.1.2 (violation), and
did say “failure to comply with an approved site plan (D1300045),” and
did prescribe a general corrective directive: “remove all alterations inconsistent with the approved site plan.”

However, this was not enough. The NOV:

did not say which structures, improvements, or changes were unauthorized,
did not identify which portions of the site plan were being violated (e.g., parking area, building footprint, setbacks), and
did not differentiate among multiple alleged deviations.

The Court characterizes the NOV as effectively telling the Market:

“Basically, the NOV told the Market, ‘You know what you did. Now fix it.’”

This, the Court concludes, is not what the City Council envisioned when it adopted § 15.2.1.C. The NOV leaves the owner to guess what the City is targeting while simultaneously exposing the owner to significant monetary penalties if those guesses are wrong.

5. The City’s Intentional Vagueness and the Fairness Problem

The opinion gives unusual weight to the Planning Department’s own testimony about why the NOV was drafted vaguely. Staff admitted they:

purposefully avoided listing “this, this, this, and this” because there were “several different violations,” and
wanted to compel the Market to submit a comprehensive site plan showing “all the changes that were made,” rather than focus on specific, identified violations.

The Court labels this “not just inconsistent with the description requirement; it was also unfair.” The combination of:

an intentionally broad and non-specific NOV, and
the threat of up to $500/day per violation,

created a scenario where the Market faced:

uncertainty about what conduct or conditions would actually be sanctioned, and
a heavy financial risk if its interpretation of the City’s concerns did not match the City’s unstated list of grievances.

While the Court couches this critique partly in terms of fairness and due process principles, it grounds its holding squarely in the City’s failure to adhere to its own ordinance’s specificity requirement.

6. The Role (and Limits) of Attachments and Photographs

The City argued that the attached photographs and other documents, when read together with the NOV, were enough to “identify the violation and how the violation can be cured.” The Court was willing, arguendo, to assume that photographs might count as part of “written notice” for purposes of UDO § 15.2.1.A. But even so:

The particular photos here were “blurry, black-and-white” copies.
They did not, on their face, point to specific code sections or articulate the nature of any violation.
Nothing in the NOV or attachments explicitly connected any particular photo to any particular asserted violation.

As a result, the Court concluded the attachments did not rescue the notice. At best, they showed that something had been built or was present on the property; they did not perform the function of describing why those conditions were regarded as violations of the UDO.

7. Institutional Consequences for the BOA

The Court also highlights a systemic consequence: when an NOV lacks the required description, the Board of Adjustment ends up spending its time debating:

whether the NOV itself is valid or sufficient, instead of
evaluating the evidence of actual violations.

A properly drafted NOV would allow the BOA to:

focus on factfinding (did the described conditions exist?), and
apply law to those specific facts (do those conditions violate the referenced UDO provisions?).

A vague NOV undermines the BOA’s quasi-judicial role, further reinforcing the need for specificity.

8. Disposition and Avoidance of Constitutional Issues

Having held that the NOV failed UDO § 15.2.1.C’s description requirement, the Court:

Reversed the Court of Appeals’ judgment.
Remanded the case “with instructions to the City to dismiss the NOV.”

The Court explicitly declined to reach:

The Market’s due process arguments (federal or state constitutional),
Arguments about the impartiality of the quasi-judicial hearing, and
The propriety of the trial court’s 36‑month compliance condition under N.C.G.S. § 160D‑1402(k).

This is a classic application of “constitutional avoidance”: when a case can be resolved by applying nonconstitutional law (here, municipal ordinance interpretation), courts do so and avoid deciding constitutional questions unnecessarily.

D. Impact and Implications

1. Immediate Consequences for Durham

For Durham, the decision:

Invalidates this specific NOV and any enforcement action tied to it.
Effectively requires the Planning Department to revise its NOV practices to:
- Identify specific deviations from approved site plans (or other UDO standards).
- State which UDO sections those deviations violate.
- Describe what corrective measures are needed for each violation.
Discredits the practice of issuing intentionally vague NOVs designed to force wholesale resubmission of site plans “showing all changes,” without specifying which changes the City regards as unlawful.

The City remains free, as a matter of substantive zoning law, to enforce its site plan requirements and require amendments where necessary. What it cannot do, after this decision, is initiate that enforcement via a boilerplate, non-specific NOV.

2. Broader Effect on North Carolina Zoning Enforcement

Although the holding formally interprets Durham’s UDO, its reasoning has broader persuasive force:

Many North Carolina jurisdictions have similar provisions requiring that an NOV include a “description of the violation” and corrective measures.
Even where the local language is not identical, the Court’s canons—plain meaning, anti‑surplusage, and “free use of land”—will push courts toward requiring a comparable level of specificity.
Case law is now clear that local governments cannot dilute these text-based requirements by informal administrative practices or convenience.

Practically, zoning and code-enforcement officials will need to:

Abandon generic “failure to comply with site plan” statements as standalone descriptions.
Prepare NOVs that function more like concise, factual charge letters:
- “On X date, you erected Structure A in Area B which is designated as required parking on the approved site plan D1300045, contrary to UDO § [citation].”
Ensure that attachments (photos, plans) are clearly referenced in the text and tied to specific alleged violations, not merely appended as an undifferentiated packet.

3. Reinforcement of “Follow Your Own Rules” Doctrine

The decision underscores a powerful administrative-law theme: when a government body adopts procedural rules (here, in its own UDO), it must follow them. The Court does not permit the City to:

argue that the Market could have called Planning staff to “ask what the problem is,” or
rely on the availability of hearings or appeals to cure deficiencies in the initial notice.

The ordinance itself prescribes what must be in the written notice. Failure to meet those requirements is itself a legal error that can invalidate the enforcement action.

4. Practical Consequences for Property Owners and Counsel

For property owners and their lawyers, this decision provides:

A concrete standard to challenge vague enforcement notices:
- Does the NOV articulate specific factual conditions alleged to violate specific ordinance provisions?
- Would a reasonable owner, reading the NOV, know what must be done to cure the problem?
A strategic path:
- Contest the adequacy of the NOV itself as a threshold issue before the BOA and in judicial review, especially where the language mirrors Durham’s UDO § 15.2.1.C.
- Argue that vague NOVs not only fail local law but also implicate due process concerns, even if courts, as here, may choose to resolve on nonconstitutional grounds.

5. Interaction with Civil Penalties and Enforcement Strategy

The Court’s decision will likely influence how cities use civil penalties. The greater the sanctions (e.g., $500/day per violation), the more critical it is that:

The owner knows precisely what is being penalized.
The NOV’s description allows a clear determination of when and whether violations have been corrected, to stop the penalty clock.

Municipalities that rely heavily on penalty-driven enforcement will now have a strong incentive to invest more effort up front in drafting specific NOVs, rather than relying on vague, “clean up everything” directives.

IV. Clarifying Key Legal Concepts and Terms

1. Notice of Violation (NOV)

An NOV is the formal written document by which a municipality or county notifies a property owner (or permit holder) that the government believes the property is in violation of zoning or development regulations. It typically:

Describes the alleged violation.
Identifies the property and relevant approvals (e.g., site plans, permits).
Specifies what must be done to correct the problem.
Warns of potential penalties.
Advises of appeal rights.

In North Carolina, N.C.G.S. § 160D‑404 contemplates that a written NOV is the starting point for formal enforcement.

2. Site Plan

N.C.G.S. § 160D‑102(29) defines a “site plan” as:

“scaled drawing and supporting text showing the relationship between lot lines and the existing or proposed uses, buildings, or structures on the lot.”

It typically details:

Building locations and dimensions.
Parking areas and circulation.
Landscaping and open space.
Setbacks, buffers, and easements.

Once a site plan is approved, the owner is generally required to develop and maintain the property in accordance with that plan unless a formal amendment is approved.

3. Unified Development Ordinance (UDO)

A UDO is a comprehensive local code that consolidates zoning, subdivision, and related land-use regulations into a single document. Durham’s UDO:

Defines permitted uses, dimensional standards, and procedures for approvals.
Includes enforcement provisions, including NOV requirements (Art. 15).

4. Quasi-Judicial Hearing and Board of Adjustment (BOA)

A quasi-judicial hearing is a formal, evidence-based proceeding before a local board (often a Board of Adjustment) where:

Evidence is presented under oath.
Witnesses may be examined and cross-examined.
The board makes findings of fact and applies legal standards.

Unlike legislative decisions (e.g., adopting a zoning map), quasi-judicial decisions must:

Be based on competent, material, and substantial evidence.
Observe due process and “fair trial standards,” as recognized in County of Lancaster.

5. Due Process and “Law of the Land”

The federal Due Process Clause (U.S. Const. amend. XIV, § 1) and North Carolina’s “law of the land” clause (N.C. Const. art. I, § 19) both protect individuals from being deprived of life, liberty, or property without appropriate procedures. Core components include:

Notice: Timely and adequate information about what the government is alleging or proposing to do.
Opportunity to be heard: A fair chance to present one’s side, challenge evidence, and argue the law.

In zoning enforcement, inadequate notice can undermine the fairness of any subsequent hearing, because the owner lacks a clear understanding of the case to be met.

6. De Novo Review

“De novo” review means the reviewing court considers the issue anew, without deferring to the decision-maker below. In quasi-judicial zoning appeals, questions of law—such as whether an NOV satisfies ordinance requirements—are reviewed de novo under N.C.G.S. § 160D‑1402(j)(2).

7. Canons of Interpretation Used

Plain Meaning: Words are interpreted by their ordinary meaning, unless the context clearly indicates otherwise.
Anti-Surplusage: Courts avoid interpretations that render statutory or ordinance language redundant or meaningless.
Free Use of Land Canon: Ambiguous zoning provisions are construed in favor of unrestricted property use.
Constitutional Avoidance: Courts avoid deciding constitutional issues when a case can be resolved on nonconstitutional grounds.

V. Conclusion

Durham Green Flea Market v. City of Durham establishes a clear and consequential rule in North Carolina zoning law: when a local ordinance requires that a Notice of Violation include “a description of the violation,” the notice must do more than recite a generic conclusion like “failure to comply with an approved site plan.” It must provide enough detail to give the property owner a reasonable understanding of:

what specific conditions on the property are alleged to be unlawful, and
which specific ordinance provisions those conditions violate.

The Court grounds this requirement in:

the plain text and structure of Durham’s UDO,
traditional canons of statutory interpretation,
the “free use of land” principle, and
longstanding due process values of fair notice and opportunity to be heard.

By rejecting Durham’s intentionally vague, boilerplate NOV—and requiring its dismissal—the Court sends a strong signal to local governments: zoning enforcement must begin with clear, specific, ordinance-compliant notice. Vague directives that effectively tell an owner “you know what you did—now fix it” are incompatible with both local law and the broader principles that govern fair land-use regulation.

As a practical matter, this decision will shape how NOVs are drafted and litigated across the state, offering property owners a meaningful procedural shield and compelling municipalities to articulate their enforcement claims with precision at the outset.