NH Supreme Court upholds ruling against Alpha Delta

by Anthony Robles and Peter Charalambous | 4/12/17 2:40am

by Paula Kutschera / The Dartmouth

UPDATED: April 20, 2017, at 11:52 p.m.

On April 11, the New Hampshire Supreme Court upheld a ruling against derecognized fraternity Alpha Delta in the case of Dartmouth Corporation of Alpha Delta v. Town of Hanover. The ruling concludes a lengthy legal battle between AD and the town and means AD cannot use its house on 9 East Wheelock Street as a student residence.

The opinion reaffirmed the September 2015 decision of the Grafton County Superior Court in support of Hanover’s Zoning Board of Adjustment, which determined that using AD’s house as a student residence violated the town’s zoning ordinance. The zoning ordinance requires student residencies to operate in conjunction with an institution, which in this case is the College.

“The Supreme Court appeal was one avenue for us to clarify our zoning status, but there are others that we are exploring, and our corporation maintains its intention for our undergraduate organization to return and make a positive impact on Dartmouth and the community over time,” AD board chair Lionel Conacher ’85 wrote in an email statement. “While we don’t agree with the decision of the Supreme Court, we respect the judicial process and will live with the decision.”

Civil attorney Carolyn Cole, who represented AD in the case, declined to comment on the Supreme Court’s decision because she is representing another fraternity that currently has a case pending in the Superior Court.

The College derecognized AD as a student organization in April 2015 because of a “violation of the school’s standards of conduct” related to allegations of branding. This derecognition resulted in the College revoking the fraternity’s residential status.

According to the Supreme Court’s opinion, the town first notified AD on April 23, 2015 that continued use of the property violated town zoning ordinances and the town of Hanover also told Alpha Delta that continued occupancy of the property needed to “cease immediately.” The fraternity appealed this decision to the ZBA on April 29, 2015.

Despite the order, Hanover town manager Julia Griffin said that the house remained occupied that following summer. Griffin said that there were a couple of emergency calls to the house during this period, including one instance when the fire alarm was pulled and the fire department was subsequently barred from entering by the residents.

“We worked with the trustees of Alpha Delta as a result of the experiences that summer to ensure that students were not living in the property starting in the fall of 2015,” Griffin said. “The trustees were very helpful in ensuring that that [did] not happen. By the time the fall term started, the house had been completely vacated.”

Griffin added that aside from some minor issues, such as the occasional usage of the house’s parking lot and a few incidents in which someone entered the house, there have been no significant incidents on the property since it was vacated.

Following the appeals hearing in June 2015, the ZBA reaffirmed its previous decision and issued a statement rejecting AD’s argument that the house was grandfathered, or exempt from the town’s zoning ordinance because students had lived in the house before the zoning ordinance was adopted. Additionally, the ZBA wrote that AD did not sustain the burden of proving its property fell under “nonconforming use,” which would have allowed the lawful use of the house as a student residence even without conforming to the ordinance requirements. Had it been able to do so, the house could have been legally used as a student residence despite its inability to conform to the town’s ordinance requirements.

The board further rejected the fraternity’s argument that it met the town’s “in conjunction with” requirement, which would have allowed for usage of the house in conjunction with another institution besides the College on the basis that all residents of the house have been and would be students of the College.

AD subsequently requested a rehearing with the ZBA, which was denied. Soon after, in September 2015, AD appealed the ZBA’s ruling to the Grafton Country Superior Court.

The Superior Court ruled in favor of the ZBA, stating that their decision was “neither legally erroneous nor unreasonable.” Much like the ZBA, the court rejected AD’s grandfathering argument and its argument regarding the “in conjunction with” requirement, as the fraternity did not provide sufficient evidence to show an association with the College after its derecognition.

AD then appealed the decision of the Superior Court to the New Hampshire Supreme Court. The court released its opinion last Tuesday morning after hearing the case on Feb. 16. The court stated that AD’s example of a 2014 zoning board decision regarding Kappa Kappa Kappa fraternity, which was allowed to maintain its status as a student residence despite renovations due to being grandfathered in, was not sufficiently convincing because the example failed to address the “in conjunction with” language of the zoning ordinance. The court also did not think that past examples of laxness by the ZBA prohibit future enforcement.

In the past, then-derecognized Zeta Psi fraternity was denied status as a student residence in 2003 due to aesthetic objections. In 2005, Phi Delta Alpha fraternity became a student residence after asking for approval to renovate its house.

Because the College derecognized AD as a student organization, the court agreed with the ZBA’s ruling that the fraternity has no association with the College and therefore cannot operate in conjunction with the College. The court ended its statement by reiterating its affirmation of the lower court’s decision, which found that AD’s use of its property as a student residence violated Hanover zoning rules. The court additionwally stated that any further arguments by Alpha Delta did not merit further discussion.

The legal battles of Alpha Delta prelude those of derecognized Sigma Alpha Epsilon, which is currently awaiting a decision from the Superior Court in regard to its appeal on zoning ordinances.

“From the town’s perspective, the Sigma Alpha Epsilon case and the Alpha Delta case are virtually the same,” Griffin said. “The Sigma Alpha Epsilon case was heard in Superior Court about two and a half weeks ago, and we’ll wait for the Superior Court to issue the decision.”

In an email statement, College spokesperson Diana Lawrence said that in regards to the Supreme Court decision, the College was pleased that the matter had been resolved.