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Kappa Alpha, suspended since last year, pleads their case at city hall to save the KAstle

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Kappa Alpha
Mitchell Patterson /THE REVIEW
Richard L. Abbot, the legal counsel for Kappa Alpha, made his case to the Newark City Council on Monday, Feb. 24, 2020.

BY
Executive Editor

Last year, the Kappa Alpha fraternity was suspended from the university for a four-year period. As a result, the city council voted Monday in favor of officially changing the property designation of Kappa Alpha’s iconic fraternity house located at 19 Amstel Ave (sometimes referred to colloquially as the “KAstle”) from “University” (UN) to “Residential, low density” (RS).

This small matter of property law minutiae has thrown the fraternity’s future on campus into uncertainty. It is also the basis for a lawsuit between them and the city government.

A 2002 Newark city ordinance effectively banned privately-owned sorority and fraternity houses within the city. The Kappa Alpha Educational Foundation, Inc., however, was permitted to retain the KAstle as a “legal nonconforming use:” in other words, they were given a special, grandfathered exception to the law while they remained on university property.

Pursuant to Newark’s city code, a “fraternity or sorority, however, that is suspended by the University of Delaware so that it is no longer approved and/or sanctioned to operate as a fraternity or sorority for a period of more than one year shall vacate the building and the use as a fraternity or sorority shall be terminated immediately upon such University suspension.”

In January, the Kappa Alpha Educational Foundation sued the City of Newark for their grandfathered-in right to continue to reside in and operate the house, which they have owned since 1946. On March 2, they plead their case to the city council, arguing that if it can no longer use the KAstle as a fraternity house, it will have to sell it to a developer or the university.

City Councilmember Jennifer Wallace of District 3 viewed the litigation with hostility.

“I don’t take kindly to threats,” Wallace said. “It is inappropriate for the property to be zoned UN. This is the frat’s fault, so they have to deal with the consequences. I have a real problem with legislating based on one single case and the threat of litigation.”

Newark Mayor Jerry Clifton took a similar stance, however he noted he was open to a solution that would maintain the property as a residence.

“I will never legislate just because a lawyer stands up and tells me I have to, or else,” Clifton said. “However, I would like a resolution addressing all concerns and the preservation of the traditionally residential area.

If the property is sold, Kappa Alpha claims that it will certainly be demolished. They cite the example of Kappa Sigma, which was suspended in 2018 and lost its ability to use its house on Academy Street. They ultimately sold the property to Lang Development Group. The Kappa Sigma house has not been demolished, and Lang has not announced any plans to do so.

The city argues that the UN zoning and university comprehensive plan designation can only apply to land owned by the university. Because the Kappa Alpha house is a private entity, it cannot have a UN designation. Private properties located on 9 Innovation Way, 489 Wyoming Road and 1 Innovation Way are designated UN because they have a “university-related” usage.

“A privately-owned fraternity house is not a permitted use in the University (“UN”) or RS districts,” James Horning, the Newark City Councilmember for District 1, stated in an email. “However, the Kappa Alpha fraternity was permitted to operate as a legal nonconforming use per City Code until it was suspended by the University in 2019 for four years. Because of the suspension, the 19 Amstel property is no longer allowed to operate as a nonconforming fraternity per City Code.”

Kappa Alpha was suspended last year during a spring break trip to Ocean City, Maryland. Their hotel received noise complaints about the group and found their rooms trashed after they had left. The hotel banned the fraternity from returning for at least a year. However, a few months later, the group returned for a graduation party wearing Kappa Alpha t-shirts. At this point, the university administration became involved and suspended Kappa Alpha for a four-year period.

“A four-year suspension is known as a death sentence for fraternities,” Richard Abbott, the attorney for Kappa Alpha, said.

The university’s suspension of the fraternity from campus is not within the city council’s authority to change.

The 105-year-old property on Amstel Ave. is now designated as a residential parcel, meaning no more than three unrelated persons can legally rent the house. According to Abbott, Kappa Alpha is currently renting it to three students unaffiliated with the fraternity. If they prevail in the Delaware Superior Court, they will rent the KAstle to another fraternity or sorority until the suspension is lifted. Then, they will return.

Abbott argued that the university was punishing the entire Kappa Alpha organization for the actions of only a few fraternity members. He claims that the KAstle has had no violations from fire marshal and no complaints from law enforcement, students or neighbors within the past five years.

Abbott also contended that the law forcing Kappa Alpha out of the house only applies if the university sells the property designated UN. Because the fraternity was only suspended, and their property was not sold by the university, Abbott believes the property does not then revert to the city government for rezoning.

Other high-occupancy residences are perfectly valid under Newark law. However, fraternities and sororities are specifically banned. In effect, you could have the same amount of people living in a residence doing the same things, but they cannot legally be a fraternity or sorority.

While the fraternity wishes to simply return to their pre-suspension status quo, the city council offered alternative solutions for them to retain their KAstle while designating it legally as RS.

“The home has 20 bedrooms,” Horning stated in an email. “An alternative to amending the Comprehensive Plan to low-density residential [RS] is to use a high-density classification that allows for a use such as a boarding house. A high-density classification would also allow for conversion of a single family dwelling into a dwelling unit for two or more families, subject to City Code compliance and a special use permit.”

Councilmember Jason Lawhorn of District 5 offered the solution with the most support. He proposed that the council investigate the potential creation of a new zoning designation entirely for private property currently designated UN with a special use permit for a fraternity.

“Categorically, it sounds like we’re against keeping it UN,” Lawhorn said. “I think there’s a way out if we table this for now and create a new zoning altogether. Now we can’t approve that here in council without a planning committee first, I think. At a minimum, I think this would require a special-use permit, which would allow us to then revoke that permit if [Kappa Alpha] was ever doing something really bad at that house.”

Council unanimously passed Lawhorn’s motion to have the city’s planning department to research and draft legislation that would allow property owners in certain areas of the city to seek a special-use permit to operate a fraternity or sorority house.

If carried out, the new legislation would effectively negate the city’s ban on fraternity and sorority houses. This would signal a major relaxation in city policy towards Greek Life organizations in general.

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