Facing a lawsuit from Kappa Alpha, the city of Newark appears poised to relax its restrictions on fraternity and sorority houses.
In an unexpected move Monday, city council directed the planning department to research and draft legislation that would allow property owners in a certain areas of the city to seek a special-use permit to operate a fraternity or sorority house.
If passed, the legislation would 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 proposal – crafted by Councilman Jason Lawhorn – fraternity and sorority uses would be allowed in the RM zoning, a zoning classification that allows apartment buildings and is most common in student-dominated areas. Approval would be contingent on city council granting a special-use permit, which can have conditions attached and can be suspended if the property causes problems.
Monday night’s discussion was the latest twist in the debate 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 the four-year suspension.
The suspension triggered the loss of the property’s grandfathered status, meaning it can never again be used as a fraternity house under current city law, even if Kappa Alpha is 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.
Planning Director Mary Ellen Gray asked city council to classify the property as low-density residential, a move that would all but guarantee a lengthy court fight.
“It’s going to cost the city a whole lot of money litigating this because it will go on for a long time in multiple courts, state and federal,” Richard Abbott, a lawyer for Kappa Alpha, told council. “I’m not trying to threaten you, I’m just saying my clients have no choice.”
Abbott said the organization is currently renting the 16-bedroom house to three students unaffiliated with the fraternity in order to comply with the law. However, if the law is changed, it will rent the house to another fraternity or sorority until the suspension is lifted, at which time Kappa Alpha will move back in.
If the property cannot be used as a fraternity house, Kappa Alpha Educational Foundation will have to sell it to UD or a developer, he said
“It’s a death knell for both the house and the fraternity,” he said.
Rather than act on Gray’s recommendation, council instead began debating Lawhorn’s proposal.
“I think it’s a fair compromise on both sides,” Lawhorn said. “This would give us the ability to save your property and allow you to continue with the use it has had for many years while also giving council and residents of our town some confidence the students will behave in the best interest of the town. If they don’t, we have some ability to revoke that use.”
Councilman James Horning Jr. noted that the Kappa Alpha house is surrounded by the UD campus, making it an appropriate place for a frat house.
“It’s a great, central place with not a lot of residents too close,” Horning said.
Mayor Jerry Clifton, who as a councilman voted in favor of the 2002 ban on frat houses, noted that the concern then was from residents upset about frat houses in their neighborhoods. The city needs to think hard about the appropriate places for fraternity houses, he said, agreeing that Amstel Avenue is a good place for one.
“I would like to see a resolution that addresses the petitioners’ concerns, addresses our concerns and addresses still the preservation of the traditionally residential areas,” Clifton said. “I think we have the capability of doing it.”
Councilman Stu Markham said Lawhorn’s proposal “finds a way out of this conundrum.”
“One thing I like about the special-use permit is it’s not guaranteed,” Markham said. “If you apply, you may not get it, and if you get it, you may lose it.”
Council voted to change the comprehensive development plan designation for the Kappa Alpha house to high-density residential and to direct staff to draft an ordinance allowing fraternity houses with a special-use permit.
The only opposition came from Councilwoman Jen Wallace.
“I don’t take kindly to threats by counsel for suing the city, particularly when the actions were brought on by the fraternity themselves,” Wallace said.
She added that she doesn’t see a need for the legislation.
“I doubt very seriously the residents of this city are clamoring for us to have a special-use permit for fraternities,” Wallace said.
Once the legislation is drafted, it will have public hearings in front of the planning commission and city council before a final vote is taken. If the law is passed, Kappa Alpha would have to apply for the special-use permit and go through another public hearing before council decides on its request.