Zoning Issues for Closed Greek Houses

Sean Callan, Manley Burke, sean.callan@manleyburke.com

Recent events leave the future of the Greek system at Penn State University uncertain at best.  Penn State President Dr. Eric Barron recently wrote as follows:

In the past, Greek life had a powerful positive effect on many of our alumni. The positive is well worth protecting – the value of brotherhood and sisterhood and the great service associated with Greek life. But . . . [if poor behavior continues] . . . I predict that we will see many empty houses and then the end of Greek life at Penn State.

The legal implications of a public university attempting to banish Greek organizations are addressed elsewhere in this issue of the Fraternal Law Newsletter.  The purpose of this article is to examine a different question – what might happen to those empty houses?

Like other municipalities, college towns have zoning ordinances.  Many of these local ordinances regulate the location and use of fraternity and sorority houses.  Today, these local zoning ordinances increasingly condition the lawfulness of use as a fraternity/sorority house upon recognition by the host college or university.

For instance, the zoning ordinance in Hanover, New Hampshire, home of Dartmouth College, permits fraternity chapter houses only when “operated in conjunction with another institutional use” (i.e. Dartmouth College, arguably the only institution in Hanover).  Similarly, the City of Bloomington, Indiana allows fraternity houses only where “Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such a sanction or recognition”.  Under these ordinances, where Dartmouth or Indiana withdraws recognition of a Greek organization, the condition is broken and zoning approval for the chapter house fails.

State College, Pennsylvania has such a conditional ordinance.  Under the State College ordinance, fraternity houses are defined with reference to Penn State.  The State College ordinance reads in pertinent part as follows:

Fraternity House. An organized living arrangement within a building having common dining and kitchen facilities and multiple bedrooms where residents are students of the Pennsylvania State University (hereinafter called University) and are members of a University recognized fraternity or sorority. University recognition shall be determined by the University through its procedures as may be established from time to time. . . .

As in Hanover and Bloomington, municipal approval of the chapter house use is conditioned upon recognition from the host institution, in this case Penn State.

Under these types of ordinances, the loss of zoning approval as a chapter house is significant.  In that event, the chapter house must be used in compliance with the underlying zoning district designation.  Often, that designation is some form of residential zoning meaning the chapter house may be used only as (i) a single family residence or (ii) an apartment building or rooming house.  Either way, the value of the property is substantially reduced.

The prospect of these dominoes falling is alarming.  It is bad enough to lose a chapter.  But the economic loss arising from loss of zoning approval as a chapter house may be overwhelming.  But all is not lost.  There are several legal arguments that may be successfully arrayed in a given case to avoid the economic loss attendant to loss of recognition.

The legal arguments available in these cases are highly fact specific requiring care in their presentation.  For example, a house corporation recently challenged the Hanover zoning ordinance arguing that because its use as a chapter house pre-dated the applicable zoning ordinance by decades that the chapter house use was a lawful non-conforming use.  The New Hampshire Supreme Court recently ruled against the house corporation because it presented no evidence that the chapter house did not operate in conjunction with an institution prior to the enactment of the zoning ordinance.  Dartmouth Corporation of Alpha Delta v. Town of Hanover, (unpublished), (http://www.courts.state.nh.us/supreme/opinions/2017/2017020alphadelta.pdf).

While an unfortunate result, the decision dramatically points out how fact sensitive these cases can be.  The New Hampshire Supreme Court required specific proof of arcane facts, failing which it ruled against the house corporation.  Given the detailed nature of these cases, a robust discussion of the possible defenses to a zoning action based on de-recognition is beyond the scope of this article.

What can be said is that given the value of these assets, it may be prudent to review the zoning ordinances applicable to these portfolios to understand what de-recognition may mean.  It may be that prophylactic measures could be taken to improve the legal position of the house corporation before adverse university action occurs.  At the very least, house corporation and Greek organizations can be prepared for action if de-recognition occurs.  We encourage all interested parties to consult their legal counsel to determine the zoning risks attendant to their real estate positions.