NEIGHBORS SEEKS TO OUTLAW GREEKS

Timothy M. Burke, Manley & Burke

The City Council of Salt Lake City is threatening to eliminate off-campus fraternity houses associated with the University of Utah. Nonstudent residents of the Federal Heights neighborhood where the fraternity houses are located claim that the residents of fraternity houses have repeatedly staged raucous, late-night parties and that inebriated students destroy the peace and quiet of the neighborhood. The irate neighbors have petitioned the Salt Lake City Council to take a very aggressive role in clamping down on, or perhaps shutting down, fraternity houses. The Salt Lake Tribune quotes one City Council member as saying, “I want to know how we can pull the plug on fraternities and sororities in this neighborhood.”

[To treat a fraternity house differently than the City treats other houses used for group living arrangements in response to political pressure from neighbors would probably be unconstitutional.]

Fraternities have responded that they are in compliance with an ordinance adopted in 1987 which put significant controls on fraternity parties, requiring the employment of Salt Lake City police officers to assist in monitoring parties at which more than 60 individuals are in attendance and regulating party times, music hours and most aspects of parties from guests to food and “alternative nonalcoholic beverages.” Fraternity spokesmen also argue that they have been working closely with neighborhood representatives in trying to be better neighbors and that in response to complaints about debris from fraternity parties littering the neighborhood, the fraternities actively clean up the neighborhood every Sunday morning.

Press accounts from Utah suggest that so far the fraternities are losing the argument. City Council is reported to be considering several options, including attempting to relocate the fraternity houses from private property off campus onto the campus of the University of Utah. The Desert News quotes another member of Salt Lake City Council as saying, “I think what might work is relocating them on (the University of Utah) campus.”

Another option being reviewed  includes the possibility of licensing fraternity houses as if they were group homes. Group homes frequently are buildings which look like single family homes in which groups of unrelated individuals requiring some specialized care or oversight live in a family-like setting. Oftentimes, group homes house people with mental or developmental disabilities, those recovering from alcohol or drug addictions, or even inmates in a halfway house. The licensing option is attractive to some Salt Lake City officials who believe it may enable them to revoke the license and thereby shut down a fraternity house, if the residents of the house violate local ordinances.

To treat a fraternity house differently than the City treats other houses used for group living arrangements in response to political pressure from neighbors would probably be unconstitutional. To apply special rules to a fraternity house that do not apply to a rooming house would be an arbitrary classification under City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985).

City Council and the neighbors are also looking at the option of bringing nuisance actions against fraternity houses. Such a step would provide for a court to ultimately  review the facts and determine whether or not the fraternity house was a nuisance based on the conduct of its members.

Utah’s nuisance abatement law has the potential to be a source of problems for fraternities. The law specifically declares that “party houses” which “frequently create conditions” including “those which are injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as to interfere with comfortable enjoyment of life or property” can be the subject of lawsuits under Utah law.¹   Where a court finds that the facts justify a declaration of nuisance, a court may remedy the nuisance  by ordering “an abatement by eviction.” That remedy would permit the court in Utah, if it found that the conditions of a nuisance existed, to order a property to be vacated. The existence of this remedy does not necessarily mean that a lawsuit  against a particular fraternity house would be successful and it is certainly unlikely that a lawsuit against all Greek houses would be successful. However, if plaintiffs could establish a pattern of actions meeting the definition of nuisance associated with one particular house, such a remedy can theoretically be ordered.

[While new zoning restrictions may make it difficult for fraternity  houses  to expand, they , could not, however, put fraternity houses out of existence. Rather, fraternity houses would continue to exist as a legal, though nonconforming use.]

At press time, negotiations involving all parties: the neighbors; City; Chapters; and the Inter Fraternity Alumni Association (IFAA), whose members own the houses involved, were underway seeking a solution that could  work for everyone.

The situation at the University of Utah bears watching. In the meantime, fraternity chapters associated with the university will do well to take several steps.

First, they ought to aggressively respond to the complaints of neighbors. Treat them seriously. Where the complaints are legitimate, deal with the problem and correct the improper behavior.

[Students, particularly fraternity and sorority members, would be well-advised to recognize that they have the right to register and vote in Salt Lake City elections.]

Second, the Greek system must work together to ensure that  the  legal  rights of  the  chapters  are  protected. From a legal standpoint, fraternities can argue with substantial accuracy that local zoning authorities must recognize the property rights of existing users and property owners. Municipal authorities cannot simply put a use out of existence by adopting a new, more restrictive zoning  code  than  existed  at  the time when the use originally located on the property.  While new zoning restrictions may make it difficult for fraternity houses  to expand,  they  could  not,  however,  put fraternity houses  out of existence.   Rather, fraternity houses would continue to exist as a legal, though nonconforming, use.

Third, there are 26,000 students at the University of Utah. The campus has eight men’s groups, six  women’s groups, and a total of 13 Greek houses near  campus.  Students, particularly fraternity and sorority members, would be well-advised to recognize that they have the right to register and vote in Salt Lake City elections. Perhaps if more  students took advantage of that  right,  the  elected  members of City Council would pay as much attention to their position as they apparently are to the arguments of the neighbors.

¹ Utah Code Ann. Section 78-38-1 et seq.