Borough housing code probably legal

Editor's Note: This is the first article in a three-part series about the State College Borough Council's proposed amendments to limit student housing. This story focuses on the legality of the amendments.

Some say it's unfair. Some say it's discriminatory. But it's probably legal.

As much as students may not like it, the proposed "student home" amendment to the State College Borough housing code has a strong legal basis.

Similar ordinances involving students and residents have survived challenges in both Lower Merion and Haverford townships. Bryn Mawr College is near Lower Merion Township and Villanova University is near Haverford Township.

"I think (the rulings) indicate the position of the federal courts," State College borough solicitor Terry Williams said. "These types of ordinances are valid exercises of the general zoning power that every municipality has."

Municipalities can make zoning laws to preserve the character and integrity of single-family neighborhoods, maintain property values and prevent undue concentration of population and traffic congestion -- some of the reasons the borough has given for the proposed amendment.

A student housing ordinance that limits student housing in residential neighborhoods may not be unconstitutional if it is to prevent illegal parking, impassable streets, disturbances, accumulation of debris, lack of routine maintenance, vandalism or theft.

"Those are the general reasons why any zoning is permitted at all," Williams said.

If the council does approve the amendments, Williams is not sure if someone would challenge the housing code in court. The court cases in Lower Merion and Haverford townships were mainly prompted by home owners or landlords who were denied permission to rent their properties to students.

"Any time a municipality enacts regulation that affects someone's right in how they use their property, there's always the possibility of a court challenge," he said. "You can never predict the outcome of litigation, but at present, the judicial climate tends to be toward upholding those types of regulations."

Regulating student housing has a long history in the borough.

In 1979, the borough passed an amendment to the housing code that said no more than three unrelated people could live together in single-family homes in residential areas. In the 1990s, the borough has considered various proposals to further limit housing but none have reached the council, said Carl Hess, borough planning director.

Before drafting the proposed amendment, the borough's staff was waiting to see what the courts said about similar ordinances in other parts of the state. When they survived court challenges, the borough modeled part of the current amendment after them, Hess said.

"There's no point in adopting an ordinance that an appellate court overturned in another municipality," he said.

As much as they may not like it, students in the Penn State chapter of the American Civil Liberties Union also said the proposed amendment is probably legal, said David Benderson, a co-coordinator for the University chapter.

The group contacted an ACLU lawyer in Philadelphia, but she told the students the ACLU probably would not take the case, Benderson said.

The chapter at Penn State then decided to fight the proposed amendment in other ways -- including circulating a petition and going to the public hearings.

"Their means don't meet their ends," Benderson said. "The new proposal isn't going to do anything to help the problem right now. . . . They have valid concerns about their tax base and the aesthetic look of the town, but this isn't the way to do it."

The next public hearing on the issue is 7:30 p.m. Monday in the council room on the second floor of the State College Municipal Building, 118 S. Fraser St.