NOT IN MY NEIGHBORHOOD! Zoning Issues Continue to Impact Greek Chapter Houses

Daniel McCarthy, Manley Burke

Kicked over garbage cans.  Public urination.  Stolen street signs.  Those are just three of the many problems residents in State College, Pennsylvania complained about in a recent edition of the National Public Radio show “This American Life.”  During the December 18, 2009 episode (which can be streamed at thisamericanlife.org) Ira Glass and other journalists spent time visiting students at Penn State and Borough of State College residents to discuss the school’s recent “win” as the #1 party school in the country by the Princeton Review.

The show offered an enlightening look into the party culture present on campuses today and revealed the mind-set of many students.  The death of student Joseph Dado was featured during several segments (see accompanying article on page 2).

The show also highlighted the tension often present between college town residents and college students.  This is a problem that has existed for decades, if not centuries.  Residents and some governments are now seeking to enforce or change existing zoning laws to restrict where fraternities and sororities can have chapter houses.  Several such zoning disputes are highlighted below.

BERKELEY NUSIANCE COMPLAINT

As reported in the November 2009 issue of Fraternal Law, several residents in Berkeley, California, through an attorney, requested the City “abate the continuing public nuisance created and maintained by the inhabitants” of the fraternity houses on campus at the University of California-Berkeley.  Instead of treating each individual chapter house as a unique entity, the neighbors created one form letter that listed the exact same general complaints about each chapter.

The City declined to take any action upon the written request because the City did not deem the chapters to constitute a nuisance under the Berkeley Municipal Code.  Once the City declined to take action against the fraternities, under the Code, the neighbors could pursue a private cause of action.  They have now done so.

On January 19, 2010, a group calling itself the “South of Campus Neighborhood Association” and one individual, Paul Ghysels, filed suit against the “InterFraternity Council,” 36 fraternities, numerous house corporations and several individuals.  The complaint is captioned as a “Complaint for preliminary… and permanent injunction… to abate public nuisance…; private nuisance…; halt unfair business practices…; intentional tort; negligence…; and for damages….”

The case was filed in the Superior Court of Alameda County.  A hearing was held on Tuesday, January 19^th on the plaintiffs’ request for a temporary restraining order.  Specifically, the plaintiffs sought an order prohibiting the defendants from 1) providing alcohol to minors, 2) committing assault, 3) throwing objects, and 4) littering and making excessive noise.

However, Judge Frank Roesch denied the temporary restraining order, stating that, “The status quo is the status quo and we’re going to maintain it.”

This case is obviously in its very early stages as of press time for this issue.  However, it appears to be a most unusual case.  In fact, this appears to be the only case of its kind ever filed in the nation.  The plaintiffs are seeking class action status and have named every single fraternity on campus.  There appears to be little evidence that each chapter has committed the list of evils alleged in the complaint, such as “shooting projectiles, which have hit neighbors and could cause great bodily injury.”  The plaintiffs allege that each defendant has committed a long list of legal violations, including “regular, frequent and continuing disturbances of the peace,” “public drunkenness,” and “public urination and the creation of unsanitary conditions,” among numerous other complaints.

The plaintiffs’ complaint contains the following causes of action: private nuisance, public nuisance under the Berkeley Code, public nuisance under the California Water Code (because the defendants have allegedly “permitted, caused or threatens to cause the contamination of public waters of this state through discharge of unauthorized and illegal waste in the public waters”), public nuisance under the California Integrated Waste Management Act, unfair competition, general nuisance, violations of business and professions code, violations of the penal code, intentional tort, and for injunctive relief.

Now that the judge has denied the plaintiffs’ temporary restraining order, the case will proceed.  The defendants will get to answer the complaint and likely file a motion to dismiss.  Short of money for damages and the close of each fraternity chapter at the university, it is not clear what the plaintiffs are seeking at this point.

Look for updates on this case in the next issue of Fraternal Law.

STATE COLLEGE ADOPTS NEW DEFINITION OF “FRATERNITY”

Meanwhile, back in State College, Pennsylvania, the Borough Planning Commission recently adopted a new definition of “fraternity” for its zoning ordinance.  The decision is related to the former Phi Delta Theta chapter house on Penn State’s campus.

As reported in previous editions of Fraternal Law, Phi Delta Theta suspended the Pennsylvania Theta Chapter’s charter after a string of violations of the General Fraternity’s Alcohol-Free Housing Policy.  After many of the members were subsequently expelled from Phi Delta Theta for continuing to operate as Phi Delta Theta after the charter suspension, several members sued the General Fraternity, seeking to reverse both the member expulsions and the Chapter charter suspension, and to overturn the alcohol-free policy.  The General Fraternity won on all counts.

The former chapter members, however, continued to occupy the former Phi Delta Theta chapter house.  The Borough of State College Zoning Hearing Board declared that the former chapter house had become a “rooming house” for zoning purposes.  While fraternities are permitted under the Borough’s zoning code, a “rooming house” is not.

In an effort to allegedly avoid controversy in the future when a fraternity chapter loses its charter, the Borough’s Planning Commission recently changed its definition of a fraternity to require that each group be recognized by a governing student organization and also by Penn State’s Division of Student Affairs in order to qualify as a “fraternity” for zoning purposes.  The Borough’s Council must adopt the definition before it becomes final.

This issue is still progressing through both the political process as well as the legal process from the administrative appeal filed related to the zoning decision.

PROBLEMS AT EASTERN KENTUCKY AND NORTH TEXAS

Recent articles about problems involving fraternities at Eastern Kentucky University (EKU) in Richmond, Kentucky and at the University of North Texas (UNT) in Corinth, Texas also illustrate the complaints that neighbors assert about chapter houses.

At EKU, according to an article in the December 26, 2009 Richmond Register, residents of historic Richmond, Kentucky have complained repeatedly about a house used as a chapter house.  The neighbors have complained about excessive noise, traffic and parking congestion, and trash overflows.  The City is currently reviewing its comprehensive plan to determine what steps, if any, can be taken.

Similarly, at UNT, neighbors have complained repeatedly about a house into which six fraternity members moved about eight miles off campus.  The City is currently reviewing what it can do to prevent such problems in the future, such as whether it can pass an ordinance that limits the number of unrelated residents in a single-family home to.

CONCLUSION

Disputes between chapter houses and neighbors will continue to occur as long as the chapters are located in residential neighborhoods.  Like a certain insurance company motto, chapters should strive to be good neighbors.  While fraternity chapters have a right to exist under the zoning codes in most college towns, they do not have a right to become a nuisance to their communities.  The case at Berkeley will be an important case to watch.  As this is the first case of its kind, if the plaintiffs are successful, it could become a model for neighbors in other college towns.  However, the plaintiffs chances of success are far from certain, given the unusual nature of the case and the fact that they allege that every chapter on campus is guilty of the exact same behavior.