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Dartmouth Corp. of Alpha Delta v. Town of Hanover

Supreme Court of New Hampshire

April 11, 2017


          Argued: February 16, 2017


          Cole 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.

          DALIANIS, C.J.

         The 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.

         I. Background

         The 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 fraternity.

         In 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.

         In 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.

         On 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."

         In 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."

         On 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.

         Accordingly, the zoning administrator informed Alpha Delta that "[t]he continued occupancy of the property [by at least 18 ...

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