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N.H. Supreme Court sends SAE fraternity case back to Hanover Zoning Board

  • Sigma Alpha Epsilon, on College Street in Hanover, N.H., on April 20, 2016. (Valley News- Sarah Priestap)

Valley News Staff Writer
Published: 3/26/2019 3:05:19 PM
Modified: 3/27/2019 11:08:29 AM

CONCORD — The residential zoning status of a former fraternity house at Dartmouth College remains in limbo after a ruling issued Tuesday by the New Hampshire Supreme Court.

The court in a 5-0 decision affirmed only parts of a 2016 Hanover Zoning Board of Adjustment ruling that the Sigma Alpha Epsilon fraternity could no longer use its College Street property as a residence because it had been derecognized by the college as a student organization.

But the ruling hinged, in part, on the fact that SAE was in a zone that required it to be operating “in conjunction with an institutional use.” Lawyers for the fraternity argued that SAE itself, and not just Dartmouth should be regarded as an institution, and the Supreme Court said that question needed to be heard again by the Zoning Board.

As a result, the court vacated the Zoning Board ruling and sent the case back to the town board for “further proceedings consistent with this opinion.”

SAE had its ties to the college severed in the winter of 2015, amid accusations of alcohol-related hazing, resulting in the loss of its residential zoning status.

The issue of whether SAE was an institution came up at a rehearing by the Zoning Board in 2016. The board had initially ruled that the status of the fraternity was “grandfathered” under town zoning ordinances. But another ordinance requires that residences in the campus’ “institutional” district be operated “in conjunction with an institution.”

SAE, which was founded in 1908 on campus, was active before that code was adopted in 1976, and fraternity members argued at the rehearing that this fact obviated the newer ordinance’s requirement.

In its decision issued on Tuesday, the court wrote, “The ZBA’s finding that SAE did not qualify as an ‘institution’ was predicated upon its erroneously narrow interpretation of the term.”

The Zoning Board had concluded that the term “institution” was intended to cover only “major institutions” like the college or the former Mary Hitchcock Memorial Hospital, which was in Hanover at the time the zoning ordinance was amended in 1976, according to the decision.

As of Tuesday, Hanover’s timeline for next steps is undetermined.

“We will get guidance from counsel and based on that guidance move it through the Zoning Board process,” said Rob Houseman, Hanover’s director of planning, zoning and codes.

Houseman added that the town “will make sure we give the applicant appropriate due process.”

If the town does determine that SAE is an institution, then the next question the board would have to consider is whether residential use is permitted, according to Laura Spector-Morgan, attorney for the town of Hanover.

She said an institution is engaged in some kind of public service, like education, research or health.

“Does the residential use relate to whatever makes it an institution?” Spector-Morgan said.

SAE’s attorney could not be reached for comment on Tuesday.

Throughout the court’s decision regarding the SAE fraternity, it referenced its 2017 ruling in the Alpha Delta fraternity case. In that case, the court affirmed earlier rulings that the Alpha Delta fraternity house lost its residential zoning status when it was stripped of its affiliation with Dartmouth.

Spector-Morgan said that ruling showed that the status of those buildings is in the town’s jurisdiction, not the college’s.

“It was important the court affirmed the Alpha Delta decision,” Spector-Morgan said. “The basic legal principles remain in place. That will be important in Hanover should this issue arise again.”

Dartmouth currently has a policy that forbids students from living in unrecognized Greek-letter residences; though not officially a residence now, the SAE building still hosts functions and parties.

Retired Superior Court Judge Larry Smukler sat in on the Supreme Court case and participated in the 5-0 ruling in lieu of Justice James Bassett, a 1978 Dartmouth graduate who recused himself.

Daniela Vidal Allee can be reached at dallee@vnews.com or 603-727-3211.

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