Two fraternities, separately, took State College borough and its zoning hearing board to court over whether they could continue to operate as fraternity houses without Penn State’s recognition, and won.
Centre County Judge Katherine Oliver reversed the State College Zoning Hearing Board’s decisions on Alpha Chi Rho and Sigma Alpha Mu.
Alpha Chi Rho, 425 Locust Lane, was placed on a one-year suspension by Penn State in July 2017. Sigma Alpha Mu, 329 E. Prospect Ave., was placed on a two-year suspension by the university in April 2017.
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When a fraternity in State College borough loses its university recognition, it’s also no longer considered a “fraternity house” in the borough’s zoning code.
Both fraternities are located in the borough’s R-2 (residential) zoning district, which doesn’t allow “fraternity house” use.
But Alpha Chi Rho’s use of its property as a fraternity house began in the 1920s, well before the creation of the R-2 zoning district and therefore giving it prior legal nonconforming status, according to court documents.
According to court documents, a two-story residence was built on the property at 329 E. Prospect Ave. for use as a fraternity house after the zoning hearing board granted a special exception in 1989. The property has been under different ownership since then, but it’s, at all relevant times, been used as a fraternity house. Sigma Alpha Mu has occupied the property since 1998.
425 Property Association of Alpha Chi Rho and 329 Prospect Avenue Corporation each filed separate land use appeals to Centre County court against the zoning hearing board and intervenor State College borough, as a result of the zoning hearing board’s decisions in December 2017 that the properties violated the borough’s zoning ordinance by continuing to operate as fraternities after they lost their university recognition.
“A municipality lacks the power and authority to restrict a property use when the property was not so restricted when purchased and the use is otherwise lawful,” Oliver wrote in the Alpha Chi Rho and Sigma Alpha Mu decisions — both of which were filed on Nov. 19.
The borough’s zoning code was amended in 2010 to add the “university recognized” part to the definition of a “fraternity house.” Previously, a fraternity house was defined as being “university affiliated.”
Oliver wrote in both decisions that the zoning hearing board, looking to this most recent definition, determined that although the properties had enjoyed nonconforming use status, the ordinance nonetheless requires Penn State recognition if the use is to qualify as a “fraternity house.”
“The board’s conclusion in this regard ignores the law of nonconforming uses and the vested property rights of landowner,” both decisions state.
Both orders say that “the court concludes that appellant’s use of the property as a fraternity house qualifies as a lawful pre-existing nonconforming use.”
Douglas Shontz, State College borough’s communications specialist, said in an email that the borough is reviewing the decision and evaluating if an appeal will be filed.
Asked whether the borough will change its zoning code, specifically the definition of a “fraternity house,” Shontz said “it’s important to note that the borough’s zoning ordinance is undergoing a major update. The borough council will continue its work to look at every component of the zoning ordinance.”