Pennsylvania Appellate Court Issues Two Decisions Protecting Fraternity Houses from New Zoning Requirements

Tim Burke, Manley Burke LPA, tburke@manleyburke.com

Increasingly, local zoning codes are being used to attempt to close fraternity and sorority chapter houses. In recent years, some municipalities have added provisions to their zoning codes defining fraternity and sorority houses as requiring the Greek chapters occupying the houses to be recognized by the local universities that the student members attend. It appears that the list of zoning authorities with such requirements is growing. Unsurprisingly, this has led to an increasing number of lawsuits being filed, as the owners of fraternity houses seek to defend their property. Notably, many of these lawsuits have been successful.

            Last month, December 12, 2019, the Commonwealth Court of Pennsylvania, a state appellate court, announced two cases upholding lower court decisions in favor of fraternity houses. These decisions came after the fraternity houses were declared (by the local zoning authority) to be illegal uses requiring the houses to be vacated as a consequence of the resident chapters having lost their recognition by Penn State University (“Penn State”).[1]

            Alpha Chi Rho’s house had been continuously occupied as a fraternity house since the 1920s. That was well before any zoning ordinance existed in State College, Pennsylvania, which is where Penn State is located. Indeed, it was not until 2010 that the zoning ordinance requiring university recognition as a condition of meeting the definition of “fraternity house” was added. But on July 28, 2017, the Vice President for Student Affairs at Penn State wrote to the State College Borough, the local municipality, advising that the University had withdrawn Alpha Chi Rho’s recognition. That action triggered the zoning dispute that followed: State College ordered the use of the property as a fraternity house to cease, Alpha Chi Rho appealed of that order, and the Borough’s Zoning Hearing Board subsequently denied of Alpha Chi Rho’s appeal.

            The Fraternity then appealed the Zoning Hearing Board’s decision to the Common Pleas Court of Centre County (the trial court), arguing two major points. First, the use of the property as a fraternity house was a lawful, nonconforming use. That is, the lawful use of the property had been established prior to when the zoning code provisions, under which the Borough was attempting to shut the house down, had been adopted. Courts across the country have long recognized that where a legal use is established, prior to the adoption of a restrictive zoning regulation, the use remains legal, even though it is non-conforming.

The zoning code definition also stated that “university recognition shall be determined by the university through its procedures as may be established from time to time.” This, Alpha Chi Rho argued, was an unconstitutional delegation of State Colleges’ legislative authority. Essentially, the municipality had given the University the ability to determine which chapters were legal uses and which were not, and to make that determination in any way the University desired. Moreover, the University could change how it made that determination from time to time.

As to the first argument, having established a legal non-conforming use, a property owner has vested rights to continue that use even if a later zoning ordinance or an amendment thereto would prohibit the use. The Court, in agreeing with Alpha Chi Rho, relied heavily on a decision by Pennsylvania Supreme Court, In Re Appeal of Miller, 511 Pa. 631 (1986). There, that court “rejected a Township’s attempt to extinguish lawful, preexisting uses on a property through an amendment of definitions in the Township zoning ordinance.” That is the same thing that occurred in this case, where State College amended its definition of “fraternity houses” to require that the inhabiting chapters be recognized by the University. As the appellate court reviewed the matter, it noted that the fraternity house was first constructed on the property in 1922, and that the property had been continuously used as a fraternity house since then. When built, there was no zoning ordinance. Zoning was apparently first adopted by State College in 1959, it was not amended to include a definition of a “fraternity house” until 1980. And only in 2010 did that include a requirement of university recognition. The critical paragraph from the appellate court is:

We agree with the trial court that Landowners’ prior use of the Property as a fraternity house entitles it to lawful nonconforming use status. When use of the Property as a fraternity house was first established, there was no R-2 district in the Zoning Ordinance. Later, when the version of the Zoning Ordinance creating the R-2 district was first adopted in 1959, there was no definition for “Fraternity House.” Only in 1980 did the Borough first adopt a definition of “Fraternity House,” which was less restrictive than the current definition of Fraternity House, merely requiring Penn State “affiliation” as opposed to “recognition.” Because the Property was used as fraternity house for decades before the Borough added the current definition for “Fraternity House” to the Zoning Ordinance, use of the Property as a fraternity house is a lawful, preexisting nonconforming use.[2]

When the trial court had reached the same result, it declined to answer the question of whether the requirement of university recognition and giving the university the ability to define how that was determined, constituted an unconstitutional delegation of legislative authority. It is not unusual for a court to answer only enough questions necessary to decide a case and leave other questions for another day.

But in a somewhat unusual move, the Commonwealth Court did not stop with ignoring the unconstitutional delegation question. Before closing out its decision, it added a lengthy,  five-paragraph footnote that begins with the following:

Because we conclude that use of the Property as a fraternity house was a lawful, nonconforming use, it is unnecessary to address whether the Zoning Ordinance issubstantively invalid due to impermissibly delegating regulatory and decision-making powers to Penn State. However, were we to address this issue we would conclude that the Borough has unconstitutionally delegated its authority to determine the existence of a “Fraternity House” under the Zoning Code.[3]

This footnote goes on to provide an explanation for why the court would have reached that decision even though technically it was not doing so.

The companion decision issued that same day by the Commonwealth Court involved property housing the Nu Lambda Chapter of Sigma Alpha Mu. The house involved in that case was newer, having only been used as a fraternity house since it was built in 1989 pursuant to a special exception granted by the Borough of State College under its Zoning Ordinance. At that time, however, the Zoning Ordinance did not include any requirement that a fraternity have recognition from Penn State. The appelleate court was not impressed by the Borough’s effort to minimize the non-conforming status of the Sigma Alpha Mu property because it was initially approved as a special exception. The Court made it clear that:

Just because the Board granted a special exception to permit construction of a fraternity house on the Property does not mean that the Property was not entitled to nonconforming use status after the definition of “Fraternity House” in the Zoning Ordinance was amended in 2010.[4]

            In its holding, the Court adopted the legal rationale more fully articulated in the Alpha Chi Rho case decided the same day, stating that:

Therefore, for reasons set forth in 425 Property Association, we conclude that the use of the Property as a fraternity house prior to the adoption of the more restrictive definitions for “Fraternity House” in 2010 entitles the Property to lawful nonconforming use status, which precludes the Board from compelling Landowner to comply with the more restrictive 2010 definition.[5]

It should be noted that the Court was not unaware of the concerns of both Penn State and the Borough’s and their efforts to control certain activates in fraternity houses. In fact, the Court added a final footnote in the Alpha Chi Rho case, noting:

While we appreciate the Borough’s and Penn State’s attempt to restrict and curtail inappropriate, disapproved, and dangerous social behaviors occurring at fraternities and sororities, these concerns do not provide a sufficient basis for upholding the Board’s actions. However, we note that our disposition in this case is not intended to, and does not restrict, the ability of the Borough or Penn State to curtail activities of fraternities and sororities by lawful means.[6]

There is no question that the well-publicized deaths due to hazing and the abuse of alcohol frequently associated with them, have led to increased regulatory and punitive measures against fraternities and sororities. Zoning, however, does not work well as a tool for such regulation. Courts have a difficult time upholding zoning regulations that would essentially turn a property designed as a single, special-use building to house dozens of university students, into an illegal use. These are not properties that could be transformed easily into a single-family home or, for that matter, into an apartment building. They are not designed in a way that allows for that kind of transformation. In essence, a building that may be worth millions of dollars as a fraternity or sorority house given its size and unique design, could lose most, if not all, of its value if the use it was designed for is declared to be illegal.

 At this writing, a similar case is pending on appeal in Indiana.[7]

[1]425 Prop. Ass’n of Alpha Chi Rho, Inc. v. State Coll. Borough Zoning Hearing Bd., No. 1634 C.D. 2018, 2019 WL 6765776 (Pa. Commw. Ct. Dec. 12, 2019); 329 Prospect Ave. Corp. v. State Coll. Borough Zoning Hearing Bd., No. 1635 C.D. 2018, 2019 WL 6770148 (Pa. Commw. Ct. Dec. 12, 2019).

[2]425 Prop. Ass’n, 2019 WL 6765776 at *8.

[3]Id.at *9 n.9.

[4]329 Prospect Ave., 2019 WL 6770148 at *5.

[5]Id.

[6]425 Prop. Ass’n, 2019 WL 6765776 at *10 n.10.

[7]See Gary Founds & Mike Allen, Bloomington Ordinance Found Unconstitutional, 158 Fraternal Law1 (Mar. 2019); Tim Burke, Hang ‘Em All… It Is Easier Than Figuring Out Who Is Guilty, 159 Fraternal Law1 (May. 2019).