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Inc. v. State College Borough Zoning Hearing Board

Commonwealth Court of Pennsylvania

December 12, 2019

425 Property Association of Alpha Chi Rho, Inc.
v.
State College Borough Zoning Hearing Board
v.
State College Borough, Appellant 425 Property Association of Alpha Chi Rho, Inc., Appellant
v.
State College Borough Zoning Hearing Board
v.
State College Borough

          Argued: September 17, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge

          OPINION

          PATRICIA A. McCULLOUGH, JUDGE

         State College Borough (Borough) and 425 Property Association of Alpha Chi Rho, Inc. (Landowner) each appeal separately from the November 19, 2018 order of the Court of Common Pleas of Centre County (trial court) reversing the decision of the State College Borough Zoning Hearing Board (Board), which upheld a violation relating to an improper fraternity house use. The two appeals have been consolidated.[1]

         Background

         Landowner is the owner of property located at 425 Locust Lane (Property) in State College, Pennsylvania. (Board Findings of Fact (F.F.) No. 1.) The Property is located in the R-2 Residential zoning district and contains a three-story building occupied by the fraternity Alpha Chi Rho. (F.F. Nos. 3-4.)

         On July 18, 2017, the Vice President for Student Affairs at the Pennsylvania State University (Penn State) sent a one-sentence letter (Penn State Letter) to the Borough purporting to advise the Borough that Penn State had withdrawn recognition of Alpha Chi Rho as a fraternity and identifying the Property as the place where the fraternity resided. (F.F. No. 6.) In response to the Penn State Letter, on July 24, 2017, the Borough sent a letter to Landowner (Borough Letter) notifying it that based upon the action of Penn State, Alpha Chi Rho fraternity was no longer a recognized fraternity pursuant to the Borough zoning ordinance (Zoning Ordinance) and, therefore, the Property was in violation of the zoning ordinance. (F.F. No. 7.) Thereafter, on August 16, 2017, the acting director of Centre Region Code Administration sent a letter to Landowner (Code Administration Letter) advising it that the Property was in violation of the local building safety and property maintenance code for failing to possess a rental housing permit. (F.F. No. 8.) The Code Administration Letter noted that the acting director had observed individuals moving into the building who identified themselves as members of Alpha Chi Rho, but that the Property did not possess a valid rental permit. (Reproduced Record (R.R.) at 89a.) Subsequently, on August 17, 2017, the Borough's Zoning Officer issued a notice of violation letter to Landowner alleging the Property was being used as a fraternity house in violation of Section 201 of the Zoning Ordinance.[2] (F.F. No. 9.) The notice of violation stated that although a fraternity house was permitted at the Property, no documentation had been submitted to demonstrate that the current occupant met the definition of a fraternity house under the Zoning Ordinance. (F.F. No. 9; R.R. at 91a.) The Zoning Officer did not conduct an investigation, but rather, based her determination on information she received from the Code Administration Letter and the Penn State Letter. (F.F. Nos. 11-12.)

         Landowner appealed the Zoning Officer's determination to the Board on the grounds that (1) the Property had been continuously used and occupied as a fraternity house since the 1920s, which was before the adoption of the Zoning Ordinance and, therefore, constituted a lawful nonconforming use of the Property; and (2) the definition of "Fraternity House" in the Zoning Ordinance was invalid because the definition impermissibly delegated regulatory and decision-making authority to a third-party entity, i.e., Penn State. (R.R. at 80a.) The Board conducted a hearing on October 24, 2017. At the hearing, Landowner objected to the admission of the Penn State Letter, the Borough Letter, and the Code Administration Letter on hearsay grounds. (Board decision at 9.) The Board overruled the objections because it concluded that formal rules of evidence do not apply in land use cases and that given the issues raised in Landowner's appeal, Landowner did not challenge the fact that Penn State revoked Alpha Chi Rho's recognition and, thus, the letters were introduced for background information only and did not go to the heart of the issue before the Board. Id.

         Following the hearing, the Board made findings of fact and conclusions of law. The Board found that the version of the Zoning Ordinance that created the R-2 district was adopted in 1959. (F.F. No. 13.) The Board also found that the Zoning Ordinance was amended in 1980 to include a definition of "Fraternity House" for the first time, and that the definition was amended in both 1981 and 2010. (F.F. Nos. 14-15.) The Board noted that although the prior definitions required fraternities to be "affiliated" with Penn State, the 2010 amendment changed the definition to require that fraternities have Penn State "recognition." (F.F. No. 16.)

         The Board found that the house on the Property had been built in 1922 for use by Alpha Chi Rho as a fraternity. (F.F. No. 17.) Alpha Chi Rho occupied the Property from 1922 to 1989 but relocated from 1989 to 2003, during which time the Property was occupied by another fraternity. (F.F. Nos. 17-20.) Alpha Chi Rho returned to the Property in 2004. (F.F. No. 21.)

         Landowner argued before the Board that the Property's use as a fraternity began long before the Zoning Ordinance was adopted. Since the fraternity use had been created before there was a definition of "Fraternity House," Landowner argued that it should not be bound by the Borough's subsequent attempts to define and curtail its use. Landowner also contended that the 2010 amendment requiring official "recognition" of a fraternity by Penn State should not apply to it because it was not required to be recognized in its prior 88 years of existence.

         The Board recognized that it was uncontroverted that Alpha Chi Rho's use of the Property as a fraternity house began well before the creation of the R-2 district and, thus, that Landowner was afforded prior legal nonconforming status. (Board decision at 6.) The Board, however, concluded the Zoning Officer correctly applied the Zoning Ordinance when she issued her notice of violation. Id. at 8. The Board determined that Alpha Chi Rho was recognized by Penn State up until July 18, 2017, when its recognition was revoked. Id. The Board explained that "[d]espite that fact, the [P]roperty continued to be occupied by a group of individuals. Because they were not recognized by [Penn State], their use of the [P]roperty no longer amounted to a fraternity house." Id. With regard to Landowner's nonconforming use argument, the Board held that the Borough had a legitimate interest in preserving the qualities of single-family residential neighborhoods, that it was a "proper exercise of the Borough's police powers to preserve an environment where it [was] safe and appropriate for people to be able to raise a family," and that it "goes without saying that a group of young people living in a communal setting, without controls, is prone to behavior that is less than appropriate for a family setting." Id. The Board noted that the Borough must have the authority to amend definitions to address changes in society that occur over time and that to hold otherwise would permit Landowner to change from one nonconforming use to another. Id. at 8-9.

         With respect to the substantive validity challenge, the Board concluded that the regulation of student housing was a legitimate exercise of the Borough's police power and that the requirement that a fraternity be recognized by Penn State was rationally related to the interests that the Borough sought to address. Id. at 13. The Board determined that fraternities have a special status due to their relationship with and the control exercised by universities and that without university recognition a fraternity loses its special status. Id. The Board also determined that the Borough could delegate its authority to a government-related entity, such as Penn State. Id. at 14.

         In sum, the Board concluded that in order to qualify as a Fraternity House, an occupant must be recognized as a fraternity by Penn State, Alpha Chi Rho lost its recognition on July 18, 2017, and Landowner's use no longer qualified as a "Fraternity House" under the Zoning Ordinance. Id. at 15. The Board further concluded that the continued occupancy of the Property by students after the fraternity lost its recognition by Penn State violated the requirements of the Zoning Ordinance and that the Zoning Officer correctly determined that the Property was an unlawful use and, therefore, that the occupants were required to vacate the premises. Id.

         Landowner appealed the Board's decision to the trial court raising the same issues it raised before the Board, as well as reviving its hearsay objections to the three letters. With respect to the hearsay objections, the trial court noted that the Board's overruling of the objections was predicated on its determination that Landowner did not challenge the fact that Penn State had revoked Alpha Chi Rho's recognition and that the appeal was limited to issues concerning Landowner's nonconforming use status and the validity of the Zoning Ordinance. (Trial court op. at 5.) Examining Landowner's appeal documents and its zoning appeal narrative, the trial court agreed that "Landowner did not raise whether Penn State had revoked Alpha Chi Rho's fraternity status as a contested issue in its appeal and application for hearing before the Board." Id. Therefore, the trial court agreed that the letters at issue did "not go to the very crux of the issue before the Board, such that corroborative evidence was required as a prerequisite to their admission into evidence." Id. Accordingly, the trial court found no abuse of discretion or error of law with respect to the Board's ruling to admit the letters over Landowner's hearsay objections. Id.

         In addressing Landowner's nonconforming use argument, the trial court relied on In re Appeal of Miller, 515 A.2d 904 (Pa. 1986), in which the Pennsylvania Supreme Court rejected a township's attempt to extinguish lawful preexisting uses on a property through amendment of definitions in the township's zoning ordinance. (Trial court op. at 6.) The trial court concluded that the Board's conclusion that the Zoning Ordinance required Penn State recognition of a fraternity in order to qualify as a "Fraternity House" ignored the law of nonconforming uses and the vested rights of Landowner. Id. at 7. According to the trial court, a determination as to whether Landowner's use of the Property qualified as a lawful nonconforming use required reference to the ordinance in effect at the time the use was established. Id. The trial court concluded that "[a]dherence to subsequently enacted, more restrictive, ordinance provisions, even definitional provisions therein, would run afoul of the well-established law protecting nonconforming preexisting uses." Id.

         The trial court explained that at the time the Property was first used and established as a fraternity house, there was no R-2 district or zoning ordinance in existence. Id. Although the Board stated that Alpha Chi Rho was afforded Penn State recognition up until July 18, 2017, in an apparent attempt to align the present definition of Fraternity House with the acknowledged preexisting, nonconforming use, the trial court concluded that this finding was not supported by substantial evidence in the record. Id. at 8. While the building on the Property was constructed in 1922 for use as the Alpha Chi Rho fraternity, the trial court determined there was no evidence in the record that Alpha Chi Rho was officially recognized by Penn State at that time or at any time thereafter. Id. According to the trial court, "[t]he first time [Penn State] recognition appear[ed], from the record evidence, to have been considered vis-à-vis use of the Property was in connection with the July 18, 2017 letter from Penn State informing the State College Borough Manager that Penn State had withdrawn recognition from Alpha Chi Rho." Id. The trial court noted that the Penn State Letter did not state when, or whether, any such recognition had been granted in the first instance. Id. Therefore, the trial court held that the idea that Penn State recognition had always been part of the use and was "part and parcel of the nonconforming use [was] not borne out by the record." Id.

         The trial court also explained that when the Zoning Ordinance was first adopted in the 1950s, there was no definition of "Fraternity House," that there were fraternity houses already existing at that time, including on the Property, and that a definition for Fraternity House was not added to the Zoning Ordinance until 1980. Id. at 9. The trial court observed that although "Fraternity House" was previously defined in terms of Penn State "affiliation," it was not until 2010 that the Borough adopted the stricter "Fraternity House" definition requiring Penn State "recognition." Id. Ultimately, although the trial court agreed that the Borough asserted a legitimate interest and that it was an appropriate exercise of the Borough's police powers to adopt ordinances that preserve desired qualities in residential neighborhoods, it determined the issue before it was whether the Borough could "extinguish an existing, lawful nonconforming use through adoption of such ordinance." Id. Concluding the Borough could not extinguish a lawful nonconforming use, the trial court reversed the Board's decision. Id. Because it concluded that the Property qualified as a preexisting nonconforming use, the court declined to address Landowner's argument that the Zoning Ordinance was substantively invalid because it constituted an unlawful delegation of the Borough's police powers. Id.

          Discussion

         Both the Borough and Landowner appealed the trial court's order.[3] The Borough argues that (1) the trial court erred in relying on Miller, by holding that the refinement of the definition of "fraternity" was designed to extinguish the lawful preexisting use status of the property; (2) the trial court exceeded its authority by substituting its findings for those of the Board; and (3) since the trial court did not address the substantive validity challenge, it is improper for this Court to address the issue.[4] The Board makes similar arguments in support of the Borough's appeal, arguing that (1) the trial court erred when it held that the Board's decision ignored the law of nonconforming uses and the vested property rights of Landowner; and (2) the trial court erred in relying on Miller.

         In its appeal, Landowner contends (1) the trial court abused its discretion and committed an error of law by admitting the three letters over its hearsay objections; (2) the trial court correctly determined that Landowner's preexisting nonconforming status protects it from the subsequently enacted requirements of the Zoning Ordinance; and (3) the trial ...


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