Indiana’s highest court name checks Animal House’s Dean Wormer as it hears arguments in Bloomington zoning case

The day after Monroe County’s health department announced that Alpha Epsilon Pi and Indiana University had reached an agreement to shut down the fraternity through next summer, Indiana’s five supreme court justices heard oral arguments that could impact how Greek organizations are defined in the state.

Screenshot of Indiana Supreme Court oral arguments in City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corporation on Sept. 24, 2020 Speaking (yellow box) is assistant city attorney Larry Allen.

The case heard by the Indiana Supreme Court on Thursday morning involves a decision by Bloomington’s board of zoning appeals dates back to summer 2018. A key question of law: Can a city rely on a university to decide what counts as a fraternity when it comes to the definition in the city’s zoning code?

Thursday’s oral arguments were unrelated to the recent AEP shutdown, or the COVID-19 county health regulations the fraternity apparently violated.

But COVID-19 did get a specific mention Thursday morning, from chief justice Loretta Rush, who opened proceedings by thanking people who’d sent well wishes for her recovery from the pandemic virus.

On Thursday morning, the court heard arguments on two questions. The first was whether the court would accept transfer from the court of appeals. That is, the court is still weighing whether to issue a ruling in the case at all. One option is to neither affirm nor reverse the court of appeals ruling, which went 2–1 against Bloomington. Not accepting transfer would let the court of appeals ruling stand.

The other question on which the court heard arguments on Thursday was the usual one: Was the court of appeals right? Specifically, was the court of appeals right in saying Bloomington’s zoning code violated the US Constitution because it delegated to Indiana University the city’s authority to determine zoning compliance?

The authority in question is the ability to determine if an organization is or is not a fraternity or sorority.

Justice Mark David posed a hypothetical scenario to Bloomington assistant city attorney Larry Allen, involving Phi Gamma Delta at IU Bloomington. Justice Mark Massa eventually followed up by saying, “I never thought, as a member of Phi Gamma Delta that Justice David has just referenced…that I would find myself echoing the concerns of Dean Wormer…”

Massa’s question for Larry Allen basically adopted Bloomington’s perspective on the question of law, counter to the finding of the court of appeals. Bloomington’s perspective is that the university has the ability to determine whether an organization meets the definition of a fraternity, and that the city can enforce its zoning laws based on that determination, independent of the property rights of the fraternity’s landlord.

Massa asked, “What does this decision of the court of appeals mean for universities’ ability to regulate the Greek system? I mean, does this mean now that because the landlord has these due process rights that, you know, a rogue fraternity can continue to be maintained even after the university has pulled its charter?”

Allen’s answer: “Yeah, that’s precisely the concern, Your Honor, in terms of going against particularly the health, safety, welfare of not only the students, but the area around it. ..[T]he BZA, then, would be required to look past the university’s determination about whether this organization has followed the rules of student conduct, and somehow make an independent determination.” Allen added, “And therefore, you could potentially have a fraternity or sorority that has been de-sanctioned or lost its sanction from Indiana University, but that nevertheless is somehow still able to operate without any control mechanisms of the university.”

The case originated out of a situation in 2016, when UJ-Eighty Corporation was leasing the property to Gamma-Kappa Chapter of Tau Kappa Epsilon, Inc. The case stemmed from Indiana University’s revocation of the fraternity’s sanction in early February of 2018. Not all of the residents of the fraternity house left the premises, so the city of Bloomington issued a notice of violation.

Why did Bloomington analyze the situation as a violation of the zoning code? The area was zoned as an institutional district (IN), which includes a fraternity or sorority house as a permitted use. But under the city’s definition of a fraternity or sorority house at the time, the requirements for residents of a fraternity house included:

…Indiana University has sanctioned or recognized the students living in the building as being members of a fraternity or sorority through whatever procedures Indiana University uses to render such a sanction or recognition.

Once IU revoked TKE’s sanction, the requirement in the definition was no longer met. When UJ-Eighty did not get satisfaction from the city’s board of zoning appeals, the case went to the Monroe Circuit court, which found in the UJ-Eighty’s favor.

Beyond the specific mention of Indiana University in the definition, in its complaint, UJ-Eighty pointed to the vague wording of the ordinance: “whatever procedures Indiana University uses.” That vagueness leaves it entirely to the university to decide whether a fraternity is sanctioned by whatever criteria it chooses, and by implication whether the use of the property is allowable under the zoning code, UJ-Eighty said. That’s something the city is supposed to do by its own authority, according to UJ-Eighty’s argument.

Owing in part to the ongoing litigation, last year in early December, the definition of a fraternity or sorority house was amended by Bloomington’s city council. The amendment came during the council’s consideration of myriad other amendments to the city’s updated unified development ordinance (UDO).

At that time, city attorney Mike Rouker told the city council that the definition was the subject of litigation, but the city’s legal department believed that the existing language defining a fraternity/sorority is constitutional. The amendment approved by the city council eliminated potential controversy by removing any specific mention of Indiana University,  Rouker told the council at the time.

On Thursday, the city’s change to the zoning code was the subject of questions from justices as it relates to mootness of the question. Justice Geoffrey Slaughter asked, “Why should we grant transfer, in a case to vindicate an ordinance of the city of Bloomington, that you have since repealed?”

Allen’s response started off: “We have updated the ordinance, but…this falls within this court’s recognized exception to mootness, in terms of matter of public importance.”

Allen added that the court of appeals ruling calls into question the citation to other third party agencies, even for objective facts that are standard. As an example, Allen gave the way Bloomington’s zoning ordinance cites to Indiana code for the procedures the state may have in recognizing and licensing certain bodies like group care homes for the developmentally disabled. Allen also said transfer to the Indiana Supreme Court should be granted because litigation like this was likely to reoccur, if the court of appeals ruling were allowed to stand.