Two Good Zoning Decisions – Newark Delaware Changes Course

Tim Burke, Fraternal Law Partners, tburke@fraternallaw.com

The City of Newark, Delaware embarked on an effort to permanently shut down the Kappa Alpha house that was first occupied by students who were members of the fraternity at the University of Delaware more than seventy (70) years ago. But in this instance, alumni of the chapter organized legal and lobbying effort. Last month, this lobbying effort resulted in a change of zoning on the property and a commitment to make further changes to the zoning code that will allow the property to continue to be used as a fraternity house.

Newark had added a provision to its zoning code that to conform to zoning, a chapter house had to be occupied by a fraternity or sorority approved or sanctioned by the University of Delaware (the “University”). After the University stripped Kappa Alpha of its recognition for disciplinary reasons (relatively minor ones at that), Kappa Alpha planned to lease the house to another Greek organization until it could regain university recognition. But the city refused to permit that, mandating that without university recognition, the house had to comply with the zoning requirements for a single-family home, which meant it could only be occupied by three (3) unrelated adults; the house normally housed twenty-one (21) individuals as a chapter house.

The house was a historical property, one of the few left in the university neighborhood. It was entirely surrounded by the University. The closest single-family home is two blocks away and that is the University President’s home.

Without some relief from the city regulations, the Kappa Alpha house was likely doomed. But alums of Kappa Alpha were determined not to let that happen. Utilizing a combination of legal efforts and old-fashioned organizing and lobbying, they made their position clear to the city. One lawsuit was filed and is currently pending in state court (handled by Richard Abbott, a Delaware zoning attorney), while threats of another suit being filed in federal court were also made. Alums also started communicating directly with members of the Newark City Council. And they made the case to local historic preservation advocates that the house needed to be preserved. They showed up at public hearings and presented their points.

Ultimately, Newark changed course. In June 2020, the city changed its zoning code to provide special use permits for fraternity and sorority houses and established standards that, if violated, could result in the permit being withdrawn.

There is now a clear process that must be followed, and the City cannot take away the permit without following constitutional due process standards, which courts have long recognized. That is far different than leaving things in the hands of a local university, where due process rights are not as well recognized. It appears the City is also moving to make another important change to its zoning code, which will provide that to be a legal chapter house, there must either be recognition by the University orthe chapter using the house must be affiliated with a national Greek organization. 

As has been discussed in Fraternal Law, recent court decisions have recognized that local zoning authorities cannot effectively turn over their zoning controls to the local university, nor strip a chapter house—that had already established a legal use conforming to then-existing zoning—of its right to continue as a legal nonconforming use even after a zone change (such as one requiring university recognition).1  

Zoning cannot be changed without impacted property owners being notified of the public hearings at which such changes will be considered. House corporations and the chapters occupying houses that may be impacted need to understand that and take advantage of the opportunity to speak up at those hearings. House corporations should consider engaging in voter registration campaigns so that those speaking on behalf of protecting the property and constitutional rights of the owners and occupants of chapter houses are recognized by the municipal leaders as registered voters. There is no question that local elected officials who make these decisions will listen more closely to registered voters. The law is very clear that college students can register and vote where they are living while in college. Take advantage of that.

And yes, it helps to have solid legal representation.

1Tim Burke, Pennsylvania Appellate Court Issues Two Decisions Protecting Fraternity Houses from New Zoning Requirements, 163 Fraternal Law(Jan. 2020), Sean P. Callan, Bloomington Zoning Ordinance Unconstitutional Says Indiana Court of Appeals, 164 Fraternal Law(Feb. 2020).