Court Finds for Alpha Chi Rho in Zoning Challenge

Tim Lynch (Fraternal Law) and Jeffrey Rosario, ESQ, (Office of Jeffrey Rosario Turco)

Fraternal Law previously reported on a Pennsylvania state case involving the Penn State fraternity chapter of Alpha Chi Rho (AXP) and the State College Borough Zoning Appeals Board.[1] In a major case update, the Centre County Court of Common Pleas overruled the Borough Zoning Appeals Board’s finding that AXP violated the Borough zoning ordinance for operating a fraternity house after losing its university recognition status.[2] The Court’s decision enforces the long-held rule that, under the due process clause, a property owner has the right to continue a legal nonconforming use of its property following zoning ordinance amendments. Under this rule, municipalities are prevented from restricting an existing legal nonconforming use of a property, despite a change to its zoning ordinance.

AXP’s house was built and used by its members, before the Borough zoning ordinance was amended to
include a definition of “fraternity house,” which required fraternities to obtain university recognition. When AXP lost its recognition in 2017, the Borough attempted to prohibit the AXP members from using their fraternity house, claiming the unrecognized AXP’s use violated the “fraternity house” definition under the zoning ordinance. On appeal to the Borough Zoning Appeals Board, the Board affirmed the Borough’s
finding of violation.

The AXP property association challenged the Board’s decision, claiming that AXP’s use of the property as a
fraternity house is a pre-existing nonconforming use and thus did not violate the zoning ordinance. The
property association also challenged the substantive validity of the Borough zoning ordinance.

Persuasively, AXP argued that the definition’s University recognition requirement gave Penn State authority to determine whether a fraternity house complied with the zoning ordinance, based solely on Penn State’s arbitrary recognition method.

In an astonishing victory, the Common Pleas Court agreed that the property’s use of the fraternity house
predated the zoning ordinance and was a legal nonconforming use. Judge Oliver in her opinion wrote: “a
municipality lacks the power and authority to restrict a property use when the property was not so
restricted when purchased and the use is otherwise lawful. (citation omitted).[3]

Unfortunately, the Court did not answer the validity challenge to the zoning ordinance. Fraternal Law has
been following similar cases where municipalities have arbitrarily delegating the determination of lawfulness of use to a university. Most notable is the Township of Hanover, who has delegated zoning power to Dartmouth College who, like Penn State, utilizes its derecognition method to revoke a house corporation’s zoning permit.[4] We at Fraternal Law believe these delegation arrangements are unlawful and will continue to provide our readers with updates as these challenges are presented.

Reflecting on this major victory, here are some thoughts from the AXP chapter attorney, Jeff Turco:
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In June of 2017, as the Phi Lambda Chapter of Alpha Chi Rho at Pennsylvania State University (PSU) prepared to celebrate its 100th anniversary, the University was still in the midst of the devastating news of Tim Piazza’s death. During this same time, PSU withdrew recognition of the Alpha Chi Rho Chapter for a period of one year beginning August 2017 and lasting through August 2018. PSU promptly sent notification of the suspension to the Borough of State College, which then refused to issue an occupancy permit for our AXP men to live in their fraternity house for the 2017-2018 school year. Of course, our men had already signed leases with us for the school year. We promptly appealed the Borough’s decision and continued with
business as usual in operating the house as our fraternity house.

A brief history is relevant to this discussion. AXP was founded at PSU in 1917 and our 425 Locust Lane
house was built by, and for us in 1922. The Borough of State College first adopted a zoning ordinance in
1959. The 1959 zoning ordinance made the AXP house a non-conforming use but importantly did not
contain a definition of a “fraternity.” In, or around, 1981, the Borough amended its zoning ordinance to add
a definition of “fraternity” which expressly required a fraternity to be “affiliated” with PSU. After litigation
which demonstrated a lack of clarity to the “affiliated” requirement, in 2010, the Borough again amended its zoning ordinance to expressly define a fraternity as a group “recognized” by PSU. It is based on this
definition, and the mere notice by PSU of the withdrawal of recognition, without any substantive detail, that the Borough attempted to prohibit the use of our house as the AXP house. The Borough’s position was that we could either: 1) rent to another PSU recognized fraternity or 2) apply for a non-renewable two-year
boarding house permit. It should be noted that AXP filed an extensive appeal of the Chapter’s suspension
detailing numerous violations of the written procedures then applicable to fraternity discipline with the PSU VP of Student Affairs. But AXP did not even receive the courtesy of an acknowledgement of receipt, much less a hearing or response.

Our zoning appeal was heard before the State College Borough Zoning Appeals Board. The basis of
our appeal was: 1) our use of the AXP house as a fraternity house was protected by our non-conforming
status and 2) the ordinance was both unlawful and unconstitutional due to it effectively delegating the
Borough’s zoning authority to PSU. At the Zoning Appeals Board hearing, the Borough zoning officer
acknowledged that she knew nothing about the underlying allegations against AXP by PSU nor did she have a copy of or know what, if any, due process PSU afforded AXP or any other fraternity similarly situated. AXP offered live testimony of a 1956 graduate brother who confirmed the fraternity house use prior to the 1959 adoption of the zoning ordinance. This undisputed testimony led the Zoning Appeals Board to conclude that the AXP house was in fact a protected non-conforming use. Despite this conclusion, the Zoning Appeals Board upheld the application of the 2010 definition to the AXP house because:

the Board finds persuasive the need to preserve the qualities of the single-family residential neighborhoods. There can be no question that it is a proper exercise of the Borough’s police powers to preserve an environment where it is safe and appropriate for people to be able to raise a family And it also goes without saying that a group of young people living in a communal setting, without controls, is prone to behavior that is less than appropriate for a family setting. Moreover, the Borough must have the ability to amend the definition of a particular use to meet the changes in mores and behavior that inevitable (sic) occur in any society over time.

As a result of the Board’s decision to apply the 2010 definition of fraternity to AXP, the Board denied AXP’s
appeal. Appeal to the Centre County Court was timely taken and in late August 2018 oral argument was
held. The primary arguments were the same, with an additional procedural argument related to the
admission of certain PSU documents. Approximately three times during the oral argument, the presiding
judge expressed concern over the Zoning Board’s understanding of and interpretation of the law of nonconforming status. For this reason, it did not come as a complete surprise when the Centre County Court issued its decision overturning the Zoning Board’s denial of AXP’s appeal. In so doing the Court’s decision reads in relevant part:

In argument before the Board and before this Court, the Borough cited to Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), arguing it has a legitimate interest in preserving the residential qualities of single family residential neighborhoods, and that it can best serve that interest by ensuring that controls are in place to curb unwanted behaviors that are many times associated with fraternity living. (citation omitted). The Court agrees that the Borough asserts a legitimate, indeed important, interest, and that it is an appropriate exercise of the Borough’s police powers to adopt ordinances that preserve desired qualities such as peace and tranquility in residential neighborhoods. The issue, however, is whether the Borough may extinguish an existing, lawful nonconforming use through the adoption of such ordinances. Based on the authorities cited and discussed above, the Court concludes it may not, and that the Board’s December 26, 2018 decision must be reversed.

The Court did not rule on the substantive validity challenge to the Borough zoning ordinance in light of its
decision. The Zoning Appeals Board filed a Notice of Appeal in early December 2018 with the Pennsylvania
Commonwealth Court. Anyone who would like a copy of the pleadings and decisions to date, can email me
at: jrturco@turcolawoffice.com. Special thanks to our great legal team led by Matthew J. Crème, Jr., of
Nikolaus & Hohenadel, LLP, 212 North Queen Street, Lancaster, PA 17603.

[1] Fraternal Law, Number 154, March 2018 Edition, “Losing University Recognition Could Mean Losing Your House”; Fraternal Law, Number 157, November 2018 Edition, “Penn State Fraternity Houses Should ‘at the very least’ Continue to be Used by Students.”
[2] 425 Property Association of Alpha Chi Rho, et al., v. State College Borough Zoning Appeals Board, et al., Court
of Common Pleas, Centre County, No. 2018-0285 (C.P. Nov. 19, 2018).
[3] Id. at 5.
[4] See Fraternal Law, Number 150, September 2017 Edition, “Dartmouth College and the Town of Hanover, NH A Dystopian Partnership.”