Michigan Fraternities Sever Ties With University

Sean Callan, Manley Burke, sean.callan@manleyburke.com

Michigan passed an ordinance amending elements of the Ann Arbor zoning code that specifically impact fraternity and sorority chapter houses. Of particular concern, the changes tie zoning compliance to the resident fraternity or sorority maintaining an affiliation with the University of Michigan (or another local institution of higher education) (collectively, “University”). In other words, a fraternity or sorority use is unlawful unless the resident chapter is recognized by the University. Prior to this amendment, University recognition had no bearing on the lawfulness of a chapter house use.

This is not the first time we have seen this kind of ordinance. For instance, the State College zoning ordinance provides that a lawful fraternity may house only “members of a [Penn State] University recognized fraternity or sorority”. Likewise, Bloomington, Indiana requires that “Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such a sanction or recognition”. In fact, these ordinances are becoming widespread.

Some of these ordinances are currently the subject of litigation. The highest court to consider such an ordinance is the New Hampshire Supreme Court. Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 744 (2017). The Dartmouth Corp. court considered a Hanover, New Hampshire zoning ordinance that required that a lawful fraternity operate “in conjunction with” Dartmouth College. Hanover adopted the “in conjunction with” requirement in 1976.

In 2015, Dartmouth College de-recognized the Alpha Delta fraternity for risk management violations involving branding pledges. In turn, the Town of Hanover revoked the zoning certificate for the Alpha Delta chapter house.

The Alpha Delta house corporation established that it had been using the property as a fraternity house since 1920. Accordingly, the house corporation asserted that it had established a non-conforming fraternity house use irrespective of the 1976 “in conjunction with” ordinance.

Instead of accepting the overall fraternity house use as the determinative finding, the Dartmouth Corp. court framed the inquiry by analyzing the individual components of the fraternity house use. The Court concluded that the Alpha Delta chapter house use was, in fact, non-conforming as to nearly all of the components of a lawful use. However, because the Alpha Delta chapter house operated “in conjunction with” the College in 1976, then the fraternity house use was not non-conforming as to the “in conjunction with: requirement. Accordingly, when Dartmouth College de-recognized Alpha Delta in 2015, the Town was correct to revoke the chapter house zoning permit.

The Court explained its reasoning as follows:

Because a fraternity was lawfully operating a student residence “in conjunction with” [Dartmouth College] in 1976, it was not until the college derecognized the fraternity in 2015 that the fraternity’s use of the property violated the town’s zoning requirement that a the fraternity’s use of the property violated the town’s zoning requirement that a student residence operate in conjunction with [Dartmouth College], and therefore the fraternity, which argued that it had a nonconforming use, had not shown that it was grandfathered from the “in conjunction with” requirement. Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 744 (2017)

The Ann Arbor recognition ordinance is not materially different than the Hanover “in conjunction with” ordinance. Under either ordinance, the Dartmouth Corp. case stands for the idea that if a fraternity is recognized by the applicable institution as of the effective date of the ordinance, then such a fraternity may not successfully assert later that it is a nonconforming use.

In Ann Arbor, there is a 10 day period between the passage of a zoning ordinance and its effective date. Within that 10 day period, and with due consideration of the Dartmouth Corp. case as well as any individualized circumstances, more than a dozen fraternities elected to disaffiliate from the University prior to the effective date of the Ann Arbor amendment. By disaffiliating from the University before the effective date of the new Ann Arbor ordinance, those fraternities protected their non-conforming chapter use in the event they are later de-recognized by the University.

These types of zoning ordinances are, and will remain, a significant issue for fraternities and sororities for the foreseeable future. Disaffiliation before such an ordinance takes effect is one of several available strategies to combat these ordinances. We will keep our readers updated as events unfold both in Ann Arbor and elsewhere.