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Facing lawsuit, Newark overturns ban on new fraternity houses

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Of the 51 fraternities and sororities recognized by the University of Delaware, only nine have their own houses.

That could soon change, however, now that Newark has legalized the creation of new fraternity and sorority houses.

Facing a lawsuit from Kappa Alpha, city council voted Monday night to overturn Newark’s de-facto ban on fraternity/sorority houses – giving Kappa Alpha a way to resume use of its historic house on Amstel Avenue and opening the door for the creation of new fraternity or sorority houses elsewhere in the city.

In 2002, city council approved an ordinance that essentially outlawed fraternity and sorority houses in Newark. The only exceptions are properties owned by the University of Delaware – which is exempt from most zoning regulations – and existing fraternity/sorority houses that are grandfathered in as a legal non-conforming use. By law, a fraternity or sorority loses that grandfathered status if the organization is suspended for more than a year.

Under the new law, fraternity and sorority uses can be allowed in areas zoned RM or RA, which are zoning classifications that allow apartment buildings and are most common in student-dominated areas. Approval is contingent on city council granting a special-use permit, which can have conditions attached and is not transferrable from one fraternity to another.

City council can vote to revoke the permit if the property causes problem, but it would not automatically be revoked if UD suspends the fraternity.

While the new law creates a path for fraternities and sororities to establish their own houses, Mayor Jerry Clifton said he does not expect a flood of applications.

Clifton noted that an organization would have to acquire land in the RM or RA zoning and then get through the city’s approval process. Most land in that zoning is already occupied by apartment buildings or townhouses.

“I’ve heard some concern about fraternities exploding all over in the RM zoning category,” Clifton said. “I think this is a creative solution for this house, but I don’t think this opens all these floodgates of other places doing the same thing.”

The law passed Monday was intended to resolve a legal battle over the fate of the Kappa Alpha “KAstle.”

The house, built in 1905 and known for its iconic castle-like design, was once a doctor’s office and has been occupied by the fraternity since 1946. However, that ended last year, when UD suspended Kappa Alpha.

The fraternity received an initial suspension for trashing hotel rooms in Ocean City, Md. When members returned to Ocean City for a graduation party in violation of the suspension, they received a four-year suspension.

The suspension triggered the loss of the property’s grandfathered status, meaning that under the existing law, it could never again be used as a fraternity house under current city law, even if Kappa Alpha was reinstated by the university.

The Kappa Alpha Educational Foundation, the nonprofit that owns the 115-year-old building, filed suit against the city last fall. The complicated legal dispute revolves around conflicting interpretations of the city’s zoning code and a comprehensive development plan designation that city officials say is a mistake.

At Newark’s request, the court stayed the lawsuit so the city could attempt to address the issue legislatively.

“We can’t say enough about how open-minded and fair-minded everyone has been on the city side on this piece of legislation,” Richard Abbott, a lawyer for Kappa Alpha Educational Foundation, said Monday night.

The law was opposed by the Newark Police Department, which expressed “very strong concerns” about unintended consequences of the legislation. While sanctioned fraternities and sororities have to follow strict guidelines established by the university and aren’t known for causing problems in the city, unsanctioned “underground” fraternities are an issue.

“If the proposed ordinance change results in an increase in new sanctioned fraternal organizations within housing structures on private property, some of those organizations, if their special-use permit is discontinued, could later convert into unsanctioned ‘underground’ organizations that cause the most severe problems in the community,” NPD wrote in a report to council.

The law as proposed by the planning department required that a fraternity or sorority be officially recognized by UD in order to apply for a special-use permit. However, under pressure from Kappa Alpha, council expanded eligibility to organizations chartered by a national fraternity/sorority organization, even if UD doesn’t recognize it.

Abbott argued that the special-use permit should not be tied to UD’s judicial system, which Kappa Alpha alleges is unfair. The fraternity has accused UD of levying unfair sanctions in an attempt to coerce the organization to sell its property, which it believes UD wants to buy.

City council approved the new law 6-1, with the lone opposition coming from Councilwoman Jen Wallace.

“I have a problem with legislating to fix a problem for one particular property owner, and I have a problem with creating a whole new special permitting process for something that I don’t think that the majority of residents want,” Wallace said. “If we’re opening this process up to RM and RA zoning classifications, who knows where we could potentially end up with applications coming from for fraternities and sororities? And, again, that’s not a thing that I think that the majority of the residents in this city want.”

Many of the student-dominated areas of Newark are zoned RM or RA, including much of Cleveland Avenue, New London Road, North Chapel Street and the area surrounding Benny Street, Haines Street and South Chapel Street. Conceivably, a fraternity or sorority could also petition council to rezone a property elsewhere in the city.

Council’s action sets up the procedures for the special-use permit but does not automatically grant one to Kappa Alpha. The organization must now apply for a permit and go through another public hearing before council decides on its request.

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