             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


329 Prospect Avenue                       :
Corporation                               :
                                          :   No. 1635 C.D. 2018
             v.                           :
                                          :   Argued: September 17, 2019
State College Borough                     :
Zoning Hearing Board                      :
                                          :
             v.                           :
                                          :
State College Borough,                    :
                  Appellant               :


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


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                   FILED: December 12, 2019


             State College Borough (Borough) appeals 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.


                                    Background
             The 329 Prospect Avenue Corporation (Landowner) is the owner of
property located at 329 East Prospect Avenue (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 two-story structure that has been used
as the location of a fraternity known as Sigma Alpha Mu, Mu Lambda Chapter
(Sigma Alpha Mu). (F.F. Nos. 3-4.) On May 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State had withdrawn recognition of Sigma Alpha Mu as a fraternity and identifying
the Property as the place where the fraternity resided. (F.F. No. 11.) 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, Sigma Alpha
Mu 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. 12.)
               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. 13.) The
Code Administration Letter noted that the director had observed people moving into
the building who identified themselves as members of Sigma Alpha Mu, but that the
Property did not possess a valid rental permit. (Reproduced Record (R.R.) at 84a.)
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.1 (F.F. No. 14.) Notably,

       1
          Section 201 of the Zoning Ordinance provides, in pertinent part, the following definition
of fraternity house:

               Fraternity House. An organized living arrangement within a
               building having common dining and kitchen facilities and multiple
               bedrooms where residents are students of the Pennsylvania State
               University (hereinafter called University) and are members of a
                                                2
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 fraternity house definition. (F.F. No. 14; R.R. at 86a.) The Zoning
Officer based her determination on information she received from the Code
Administration Letter and the Penn State Letter. (F.F. No. 16.)
              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 prior to the adoption of the current definition of “Fraternity House”
in 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 zoning and decision-
making authority to a third-party entity, i.e., Penn State. (R.R. at 64a-67a.)
              Following the hearing, the Board made findings of fact and conclusions
of law. The Board found that the structure on the Property had been built after the
Board granted a special exception in 1989. (F.F. No. 6.) The Property was
purchased by Landowner from Alpha Chi Rho Educational Foundation, Inc. in 1996.
(F.F. No. 7.) At the time of that transaction, Kappa Alpha Fraternity occupied the
Property. Id. The Board found that Sigma Alpha Mu fraternity had continuously



              University recognized fraternity or sorority. University recognition
              shall be determined by the University through its procedures as may
              be established from time to time. A recognized fraternity or sorority
              shall only be in a single location. Property owners seeking
              designation as a fraternity must submit written confirmation from
              the University that the sorority or fraternity is recognized. In
              addition to University recognition, a fraternity or sorority is only
              permitted in buildings where fraternity occupancy is either currently
              permitted under the zoning ordinance or is a validly existing non-
              conforming use as a fraternity or sorority. Fraternities shall be
              subject to other appropriate municipal regulations.

Zoning Ordinance, §201, R.R. at 157a.
                                               3
occupied the house on the Property since 1998. (F.F. No. 8.) Beginning in 1998,
Landowner entered into a series of master leases with Sigma Alpha Mu, which had
in turn entered into an agency agreement with Greek Housing Services Corporation
to put in place leasing contracts with individual fraternity members. (F.F. Nos. 9-
10.) The Board observed that the Borough relied on Penn State’s determination
regarding whether a fraternity was recognized, and that the Borough was unaware
of the procedures Penn State followed to determine whether to terminate its
recognition of a fraternity, including whether Penn State afforded the fraternity a
hearing or appeal process. (F.F. Nos. 18-19.)
             The Board noted that the Property was located in the R-2 Residential
zoning district and had been used as a fraternity house since 1989. The Board
concluded that although a fraternity house was not permitted in the R-2 district, the
Zoning Ordinance recognized that a fraternity house was permitted on the Property
as a nonconforming use. (Board decision at 5.) The Board determined that the
Zoning Ordinance that created the R-2 district was enacted in 1959 and that a
“Fraternity House” definition was first added to the Zoning Ordinance in 1980. Id.
The Board observed that although the definition of “Fraternity House” that existed
before 2010 required fraternities to be “affiliated” with Penn State, the 2010
amendment changed the definition to require that fraternities have Penn State
“recognition.” Id. Accordingly, the Board concluded that since 2010, in order for a
property’s use to qualify as a “Fraternity House,” the group occupying the house
must be recognized by Penn State as a valid fraternity. Id.
             Before the Board, Landowner argued that the 2010 “Fraternity House”
definition in the Zoning Ordinance did not apply to it because a fraternity was
established on the Property before 2010 and, therefore, use of the Property as a
fraternity was a nonconforming use. Id. at 6. Conversely, although the Borough
conceded that use of the Property as a “Fraternity House” was a nonconforming use
                                         4
because fraternity houses were not permitted uses in the R-2 district, it argued that
fraternity houses require Penn State recognition and once that recognition is lost, so
is the nonconforming status of the Property. Id.
             The Board determined the Zoning Officer correctly applied the Zoning
Ordinance when she issued her notice of violation. Id. at 7. The Board concluded
there was “no dispute that the [P]roperty was established prior to the enactment of
the applicable zoning regulations and that it enjoyed nonconforming status as a
fraternity house” in the R-2 district, and that it was “also undisputed that the [Zoning
Ordinance] require[d] [Penn State] recognition of a fraternity for the property in
which it [was] located to qualify as a ‘Fraternity House.’” Id. at 7-8. The Board
determined that Sigma Alpha Mu was recognized by Penn State up until May 18,
2017, when its recognition was revoked. Id. at 8. 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 ability 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.
             With respect to the substantive validity challenge, the Board concluded
that the need to regulate student housing was a legitimate exercise of police power
                                           5
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 11. The Board
determined that fraternities have a special status due to the control exercised by
universities over them 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 12.
             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, Sigma Alpha
Mu lost its recognition on May 18, 2017, and Landowner’s use no longer qualified
as a “Fraternity House” under the Zoning Ordinance. Id. at 12. 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, that the Zoning Officer correctly determined that the use of the Property
did not meet the fraternity house definition, which, consequently, rendered that use
illegal, and that the occupants were required to vacate the premises. Id. at 13.
             Landowner appealed the Board’s decision to the trial court raising the
same issues it raised before the Board. 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 6. According to
the trial court, determining whether Landowner’s use of the Property qualified as a
lawful nonconforming use required reference to the ordinance at the time the use
was established. Id. The trial court concluded that “[a]dherence to subsequently
                                          6
enacted, more restrictive, ordinance provisions, even definitional provisions therein,
would run afoul of the well-established law protecting nonconforming preexisting
uses.” Id. at 6-7.
             The trial court explained that “[a]t the time use of the Property as a
fraternity house was first established, and a special exception was granted, the
definition of ‘[F]raternity [H]ouse’ did not include any requirement that a fraternity
have recognition from Penn State” or any other third party. Id. at 7. Although the
Board stated that Sigma Alpha Mu was accorded Penn State recognition up until
May 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 7. While the building on the Property was constructed in 1989 for occupancy
by members of the Sigma Alpha Mu fraternity, the trial court determined there was
no evidence in the record that Sigma Alpha Mu 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 [May] 18,
2017 letter from Penn State informing the State College Borough Manager that Penn
State had withdrawn recognition from Sigma Alpha Mu.” 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 non-conforming 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,” and that a
definition for Fraternity House was not added to the Zoning Ordinance until 1980.
Id. at 8. The trial court observed that although “Fraternity House” was previously
                                          7
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 that 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
               On appeal,2 the Borough argues that (1) the trial court erred in relying
on Miller, by holding that the refinement of the definition of “Fraternity House” was
designed to extinguish the lawful preexisting use status of the Property; (2) the trial
court erred in treating the Property as though it enjoyed a lawful nonconforming use
status, when it actually existed lawfully as a special exception prior to Sigma Alpha
Mu losing Penn State recognition; (3) the trial court exceeded its authority by
substituting its findings for that of the Board; and (4) since the trial court did not
address the substantive validity challenge, it is improper for this Court to address the

       2
         Where, as here, the trial court takes no additional evidence, our scope of review is limited
to determining whether the Board committed an abuse of discretion or an error of law. Hamilton
Hills Group, LLC v. Hamilton Township Zoning Hearing Board, 4 A.3d 788, 792 n.6 (Pa. Cmwlth.
2010).

                                                 8
issue.3 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.
                We first address whether the trial court erred in treating the Property as
a lawful nonconforming use instead of as a special exception. The Borough contends
that Sigma Alpha Mu enjoyed the Property by way of a special exception, for which
the prior owner had applied before the Property was occupied by members of the
fraternity. The Borough argues that “[w]hen the special exception was applied for,
had the group of young men applying . . . not been a [Penn State] recognized
fraternity, said exception would not have been granted.” (Borough’s Br. at 16.) The
Borough maintains that the Board would not have allowed any group of men
referring to themselves as a fraternity to obtain a special exception and live in the
fraternity house without some Penn State affiliation above and beyond that of simply
being students. Thus, the Borough asserts that the Property lost its special exception
status when Sigma Alpha Mu lost its Penn State recognition.
                Landowner acknowledges that the Borough granted a special exception
to permit construction of the fraternity house on the Property. However, Landowner
contends that the Borough’s subsequent amendment of the definition of “Fraternity
House” in the Zoning Ordinance imposed a new restriction in the definition that
made use of the Property as a “Fraternity House” a nonconforming use, because the
Property’s use as a fraternity house was lawful before the change in definition.
Landowner argues that as long as Sigma Alpha Mu’s use of the Property is consistent
with the use that was legally established in 1989, it cannot be limited or restricted
by an after-amended zoning provision. Landowner asserts that because the Zoning


      3
          Penn State filed an amicus curiae brief in support of the Borough.
                                                 9
Ordinance did not require Penn State recognition until 2010, there is no basis for the
Borough’s argument that a special exception would not have been granted in 1989
if the fraternity had not been recognized by Penn State. Landowner notes that the
1989 special exception approval made no mention of Penn State recognition. It also
alleges that “members of a ‘fraternity’ participate in and live within a house as
‘brothers,’ and there is nothing in the record to suggest that recognition by the
University was an integral aspect of the relationship.” (Landowner’s Br. at 15.)
             The Board found that the fraternity house on the Property was
constructed after the Board granted a special exception in 1989. (F.F. No. 6.) The
record confirms that the Board granted a special exception in 1989 for construction
of a fraternity house on the Property. See R.R. at 94a-109a. At that time, the Zoning
Ordinance permitted, by special exception, the construction of a fraternity house on
land already owned by a fraternity organization. See R.R. at 96a-97a.
             Just because the Board granted a special exception to permit
construction of a fraternity house on the Property does not mean that the Property
was not entitled to nonconforming use status after the definition of “Fraternity
House” in the Zoning Ordinance was amended in 2010. In an equivalent situation
encountered in 425 Property Association of Alpha Chi Rho, Inc. v. State College
Borough Zoning Hearing Board (Pa. Cmwlth., Nos. 1634 C.D. 2018, 1659 C.D.
2018, filed December 12, 2019), we concluded that a landowner’s use of a property
as a fraternity house prior to the Borough amending the definition of “Fraternity
House” in the Zoning Ordinance in 2010 entitled the property to nonconforming use
status. Unlike 425 Property Association, here, the construction of the fraternity
house on the Property was permitted by special exception. However, the fact that
the construction of the fraternity house on the Property was initially permitted by




                                         10
special exception does not change the analysis employed in that case. 4 Therefore,
for the reasons set forth in 425 Property Association, we conclude that the use of the
Property as a fraternity house prior to the adoption of the more restrictive definitions
for “Fraternity House” in 2010 entitles the Property to lawful nonconforming use
status, which precludes the Borough from compelling Landowner to comply with
the more restrictive 2010 definition.
               The remaining issues and arguments are identical to those set forth in
425 Property Association. Accordingly, for the reasons articulated in 425 Property
Association, we affirm the order of the trial court.




                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge



Judge Cohn Jubelirer did not participate in this decision.




       4
          To the extent the Borough argues that the 1989 special exception would not have been
granted if the original fraternity that applied for the special exception had not been a Penn State
recognized fraternity, such allegation lacks any support in the record. The Borough also does not
attempt to argue that Sigma Alpha Mu has ever not satisfied the pre-2010 “Fraternity House”
definition, which only required Penn State “affiliation” instead of “recognition.”
                                                11
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


329 Prospect Avenue                    :
Corporation                            :
                                       :    No. 1635 C.D. 2018
            v.                         :
                                       :
State College Borough                  :
Zoning Hearing Board                   :
                                       :
            v.                         :
                                       :
State College Borough,                 :
                  Appellant            :


                                   ORDER



            AND NOW, this 12th day of December, 2019, the November 19, 2018
order of the Centre County Court of Common Pleas is affirmed.



                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge
