Zoning Issues for Housed Groups Without Recognition

Tim Burke, Manley Burke, tburke@manleyburke.com

Zoning has become another potential problem for fraternity houses whose chapters do not have recognition by the college or university where they are located.

On April 20, 2015, the Alpha Delta Chapter of Dartmouth College was notified by the College that it had lost its recognition as a student organization after the College learned that the Chapter had branded new members.  As a result, the Chapter’s House no longer constituted “college-approved” residential housing, was removed from the College’s rooming system, and was no longer under the “jurisdiction or protection” of the College’s Department of Safety and Security.  But, that wasn’t the end of the consequences.

Just three days later, on April 23^rd, the Zoning Administrator of the Town of Hanover, New Hampshire, where the College was located, announced that without recognition by the College, the Chapter House, which housed 18 student members of the Chapter, no longer complied with Hanover’s zoning ordinance and therefore must be closed immediately.

The Chapter had existed at Hanover College since the 1840s.  It’s house was constructed in the early 1920s, a decade before Hanover even had a zoning ordinance.  In the mid 1970s, Hanover redid its Zoning Code, creating an “I” Institution District, which has imposed  around Dartmouth College.  Within that district, a student residence was an allowed use defined as “a building designed for and occupied by students, and operated in conjunction with another institutional use, which may include individual living units with social rooms and kitchen facilities for any number of students.”  The Chapter House met that definition for decades.

Alpha Delta fought the zoning determination, losing on a three to two vote before the Town Zoning Board of Adjustment.  Its appeal to the Superior Court, resulted in failure in May of this year when the court refused to buy the Chapter’s arguments.  Typically, if a use exists prior to zoning being applied to the property, or exists as a legal use under the zoning that is applied when the use began, the use may continue as a legal nonconforming use even if zoning is adopted or changed in a way that would make the use illegal.  That nonconforming use was the Chapter’s first argument as to why the zoning decision was wrong.  But what both the Zoning Board of Adjustment and the Court found was that the use was conforming as it did operate in a relationship with the College until Dartmouth’s recognition was lost.

The critical language in the Zoning Code was the “in conjunction with.”  Was the Alpha Delta House operated in conjunction with Dartmouth College prior to or after the adoption of that language in the Zoning Code?  Did it continue to be operated in conjunction with Dartmouth College after the College pulled the Chapter’s recognition?  The court found that Alpha Delta had the burden to show that it operated the Chapter House “in a manner that was not ‘in conjunction with another institutional use,’ at the time the ‘in conjunction with’ requirement was adopted.”  According to the Court, Alpha Delta did not meet that burden.  Therefore, the court found that the chapter was not grandfathered.

Alpha Delta attempted to argue that recognition by Dartmouth was not the critical factor in determining whether or not the Chapter was operated in conjunction with Dartmouth.  Rather, the Chapter pointed out that “the only people who reside at 9 East Wheelock Street are and have been Dartmouth students currently attending Dartmouth College and the only people who can belong to the corporation and participate in operating the property are Dartmouth alumni.”  As a result, they argue they were operating in conjunction with Dartmouth College, whether or not the College recognized the Chapter.

The Court, however, relied upon the “common and approved usage” of the words “in conjunction with,” relying on a dictionary definition of the word “conjunction, “being conjoined: union, association, combination.”  The Court also looked at those words in the context in which they were used and ultimately concluded that “the purpose of the ‘in conjunction with’ requirement was to ensure that student residents maintain the proper relationship to, or association with, the College, such that the ‘necessary safeguards are incorporated’.”  The decision¹ by the Superior Court is now on appeal.

Now, the House Corporation of another Chapter at Dartmouth, N.H. Alpha of SAE Trust, faces the same consequences.  The House Corporation lost before the Hanover Zoning Board of Adjustment, and has now appealed its own case to the Superior Court.

More concerning is that the Hanover Zoning Code is not a one off.  A recent review of the Zoning Code of the City of Bloomington, Indiana, where Indiana University is located, finds that the City of Bloomington has its own provision which could lead to similar consequences should Indiana University derecognize a chapter that operates its own chapter house.

Bloomington’s zoning language is at least clearer.  It defines fraternity/sorority house in part as “all students living in the building are enrolled at Indiana University Bloomington Campus: and 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.”²

Both the Dartmouth experience and the language of the Bloomington Zoning Code should encourage those national organizations whose chapters may be considering accepting the loss of recognition to take the time to understand what the unintended consequences of that decision may be.  The local zoning code might well make the continued use of the house as a fraternity house, illegal, even though they have been operating legally for decades.  While there may be valid legal arguments to protect the use of the property as a chapter house, know that the loss of recognition may well lead to a fight with the local government.

1              Dartmouth Corporation of Alpha Delta v. Town of Hanover, State of New Hampshire, Superior Court, Grafton, SS Docket No. 15-CV-259.

2.             Bloomington Indiana Unified Development Ordinances, Chapter 20.11 Definitions.