Dartmouth Corporation of Alpha Delta v. Town of Hanover
159 A.3d 359
N.H.2017Background
- Alpha Delta is a Dartmouth College fraternity that has occupied 9 East Wheelock Street as student housing (≈18–22 students) since 1920.
- Hanover’s 1976 zoning ordinance places the property in the Institution district; a “student residence” there is allowed only by special exception and must be “operated in conjunction with another institutional use.”
- Dartmouth College derecognized Alpha Delta in April 2015 for hazing/branding incidents, terminating college services and stating the chapter no longer had institutional status or protections.
- The Town’s zoning administrator concluded derecognition ended the fraternity’s operation “in conjunction with” the College and ordered cessation of occupancy beyond three unrelated persons; Alpha Delta appealed to the ZBA.
- The ZBA and the superior court upheld the administrator: Alpha Delta failed to show it ever operated apart from the College (so it was not a lawful nonconforming use as to the “in conjunction with” requirement) and derecognition eliminated the association required by the ordinance.
- The Supreme Court affirmed, holding the record supports the finding that Alpha Delta no longer operated in conjunction with Dartmouth and thus violated the zoning ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alpha Delta’s longstanding fraternity use is lawfully nonconforming and thus exempt from the ordinance’s “student residence” definition | Alpha Delta: its fraternity use pre-existed zoning and was never required to obtain the special exception, so it is grandfathered and not a “student residence” subject to the additional requirements | Town: use was nonconforming only as to the special-exception requirement; but Alpha Delta must still meet the separate “in conjunction with” requirement or show it was operating apart from the College when that requirement was adopted | Held: Alpha Delta was nonconforming only regarding the special-exception requirement; it failed to prove it was operating other than “in conjunction with” Dartmouth in 1976, so it is not grandfathered from the “in conjunction with” requirement |
| Meaning of “operated in conjunction with another institutional use” | Alpha Delta: phrase should not be read to require institutional oversight; occupation by College students or alumni involvement suffices; ZBA’s health-and-safety reading is vague/arbitrary | Town: phrase requires an association/union with the institution — reasonably read to include potential health and safety oversight by the institution | Held: Court adopts plain-meaning construction — “conjunction” implies union/association; record shows derecognition ended the association and oversight, so Alpha Delta no longer operated in conjunction with Dartmouth |
| Effect of Dartmouth’s derecognition on zoning status | Alpha Delta: derecognition does not automatically destroy its grandfathered status or lawful nonconforming rights | Town: derecognition removed the institutional relationship required by the ordinance, so continued use as a large student residence violates the zoning provision | Held: Derecognition eliminated the relevant institutional relationship and attendant protections; that change made the use violative of the ordinance |
| Whether prior ZBA decisions or selective enforcement bar enforcement here (stare decisis/estoppel) | Alpha Delta: prior ZBA decisions (e.g., Tri‑Kap) and Town’s past lax enforcement should preclude current enforcement or bind ZBA to a different rule | Town: prior decisions did not address the “in conjunction with” clause; past lax enforcement does not bar present enforcement | Held: Prior ZBA decisions cited are inapposite; selective lax enforcement does not preclude proper present enforcement |
Key Cases Cited
- Greene v. Town of Deering, 151 N.H. 795 (2005) (standard for setting aside zoning board decision)
- Lone Pine Hunters’ Club v. Town of Hollis, 149 N.H. 668 (2003) (trial court review limited to whether zoning board decision is unlawful or unreasonable)
- Town of Salem v. Wickson, 146 N.H. 328 (2001) (nonconforming uses depend on facts at time ordinance changed)
- Hurley v. Town of Hollis, 143 N.H. 567 (1999) (zoning ordinance does not apply to uses existing when enacted)
- New London Land Use Assoc. v. New London Zoning Board, 130 N.H. 510 (1988) (purpose of nonconforming use protection)
- Ray’s Stateline Market v. Town of Pelham, 140 N.H. 139 (1995) (constitutional and statutory protection for established land uses)
- Town of Seabrook v. Vachon Management, 144 N.H. 660 (2000) (continuity requirement for nonconforming use protection)
- Town of Wolfeboro v. Smith, 131 N.H. 449 (1989) (burden to prove lawful nonconforming use on claimant)
- Anderson v. Motorsports Holdings, 155 N.H. 491 (2007) (past lax enforcement does not bar present enforcement)
- Feins v. Town of Wilmot, 154 N.H. 715 (2007) (ordinance meaning must be read in context; avoid isolating phrases)
- Appeal of Town of Nottingham, 153 N.H. 539 (2006) (ascribing ordinary meaning to undefined ordinance terms)
- Vogel v. Vogel, 137 N.H. 321 (1993) (appellate rule limiting discussion of additional unpersuasive arguments)