Positive Development in Pennsylvania Zoning Case

Jeffrey Rosario Turco, Law Office of Jeffrey Rosario Turco

Another significant zoning victory has been allowed to stand by the Pennsylvania Supreme Court. Here is the report from Jeffrey Rosario Turco, an attorney from Chelsea, Massachusetts, who represented the Alpha Chi Rho chapter house at Penn State:

I am pleased to report that after three long, and expensive years of litigation, by Order dated June 23, 2020, the Pennsylvania Supreme Court DENIED the Borough of State College’s Petition for Allowance of Appeal. The case is now over and the rights of “non-conforming use” property owners of the Alpha Chi Rho chapter house has been upheld.

By way of background, Alpha Chi Rho (AXP) built its present fraternity house in 1922. The Borough of State College enacted its zoning ordinance in 1959, thereby making the AXP house a protected non-conforming use. In 2010, the Borough amended its zoning ordinance to define a fraternity as being a “Pennsylvania State recognized fraternity.” In 2017, PSU suspended AXP for one year. As a result, the Borough took the position that the loss of Pennsylvania State University (PSU) recognition meant that AXP was no longer a legal fraternity under the zoning code, and therefore no longer protected by the “legal non-conforming use” status of its house.

The Borough’s enforcement action was upheld by its Zoning Board of Appeals but subsequently overturned in a thoughtful decision by the Centre County Court. State College elected to pursue a further appeal to the Commonwealth Court. As Fraternal Law previously reported, in December 2019, the Commonwealth Court repudiated the Borough’s arguments and upheld the finding that the zoning definition could not be retroactively applied to the fraternity. Equally as important, the Commonwealth Court opined in a footnote that, though they did not need to rule on the substance of the ordinance, if they were to rule, the ordinance would be struck down as an unlawful delegation of the Borough’s zoning authority to PSU.

The Borough, this time with the full backing of PSU, filed the Petition for the Allowance of Appeal, claiming all sorts of chaos would result if the Borough and PSU could not enforce the requirement that to be a legal use, the fraternity occupying the house had to be recognized by PSU. Despite such claims of chaos, the Pennsylvania Supreme Court ended the case with the denial of the Petition.

It should be noted that the rationale articulated in the Commonwealth Court’s footnote was the same reason why an Indiana Court struck down a Bloomington, Indiana zoning provision that required the recognition of Indiana University for occupancy of fraternity or sorority houses.

For more information on this matter, see Tim Burke, Pennsylvania Appellate Court Issues Two Decisions Protecting Fraternity Houses from New Zoning Requirements, 163 Fraternal Law 1 (Jan. 2020), and Tim Lynch & Jeffrey Rosario Turco, Court Finds for Alpha Chi Rho in Zoning Challenge, 153 Fraternal Law 2 (Jan. 2019).