Argued: February 16, 2017
Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on
the brief and orally), for the plaintiff.
Mitchell Municipal Group, P.A., of Laconia (Laura
Spector-Morgan on the brief and orally), for the defendant.
plaintiff, Dartmouth Corporation of Alpha Delta (Alpha
Delta), appeals an order of the Superior Court
(MacLeod, J.) affirming the decision of the Zoning
Board of Adjustment (ZBA) for the defendant, the Town of
Hanover (Town), that the use of Alpha Delta's property at
9 East Wheelock Street (the property) violates the Town's
zoning ordinance. We affirm.
relevant facts follow. Alpha Delta has been a fraternity for
students at Dartmouth College (College) since the 1840s.
According to the printout from Alpha Delta's website
included in the certified record, in 1846 the installation of
the national organization of Alpha Delta Phi took place in a
College professor's office. The fraternity subsequently
changed its name to Alpha Delta, "to symbolize the
return to the literary traditions, which were purely
Dartmouth in nature." The fraternity "set up
operations in Dartmouth Hall until 1911, when a new house was
built to the west of the College Green." In 1920, Alpha
Delta sold that house and built its current structure, which
it has used continuously since as housing for approximately
18-22 College undergraduate students who are members of the
1931, the Town enacted its first zoning ordinance. At that
time, Alpha Delta's property was located in the
"Educational District" in which an
"[e]ducational use, or dormitory . . . incidental to and
controlled by an educational institution" was permitted
as of right. Between 1931 and the mid-1970s, the property was
located in various zoning districts where its use by Alpha
Delta as a fraternity was allowed as of right.
1976, the Town enacted its current zoning ordinance, under
which the property is located within the
"Institution" district. A student residence in the
Institution district is allowed only by special exception.
The ordinance defines a "student residence" in the
Institution district 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." Alpha Delta has never sought a special
exception for the use of its property.
April 13, 2015, the College notified Alpha Delta by letter
that, due to the fraternity's violation of the
school's standards of conduct, it had revoked recognition
of the fraternity as a student organization. The College
found that over two nights in November 2014, during a time
when the fraternity was under suspension by the College, 11
new members of the fraternity were branded with the Alpha
Delta fraternity letters, which had "caused physical
harm and . . . a subsequent threat to [the members']
continuing safety." The College also found that the
practice of branding new members "is an overtly condoned
and long-standing practice of the organization." The
letter stated that "derecognition" revoked the
following privileges: "recruitment of Dartmouth College
undergraduates; recognition as a 'college approved'
residential facility; use of College facilities or resources;
participation in any College activities such as intramurals;
and provision of insurance coverage."
addition, the College notified Alpha Delta that it would be
removed from the College's rooming system under which
student room rents are paid through the College, and would no
longer be under the jurisdiction or protection of the
College's department of safety and security. The letter
stated that "[a]s the Alpha Delta chapter will no longer
be recognized by the College as a student organization . . .,
the [Town] zoning requirements are likely to apply
differently." The College stated that it would
"notify the [Town] that Alpha Delta no longer has a
relationship with Dartmouth College" and that it was the
College's "understanding that under the Town zoning
ordinance no more than three unrelated people will be allowed
to reside on the property."
April 23, the Town's zoning administrator notified Alpha
Delta by letter of its decision that, because the College had
derecognized Alpha Delta, Alpha Delta's use of the
property violated the zoning ordinance. The letter stated:
The Adopted Zoning Ordinance requires that student residences
in the "I" Institution zoning district be operated
in conjunction with another institutional use. . . . Because
it has been derecognized by Dartmouth College, the facility
is no longer operated in conjunction with an institutional
use. The continued use of the property as a residence is
therefore a violation of the zoning ordinance.
the zoning administrator informed Alpha Delta that
"[t]he continued occupancy of the property [by at least