After hearing three hours of testimony Tuesday, the State College Zoning Hearing Board still isn't sure whether the former Phi Delta Theta fraternity house is indeed a fraternity or a rooming house.
The board instead decided to have its solicitor draft opinions for both sides of the argument regarding the zoning status of the property.
One opinion will argue the house is now a rooming house, and the second opinion will say the property is still used as a fraternity house. The board will evaluate both options Feb. 24 and has 45 days from Tuesday to submit a final opinion.
Drafting two opinions "doesn't happen terribly often," board member Stanford Lembeck said.
The property's future with the borough has been in question since a zoning officer deemed the century-old house a "rooming house" less than a year after the resident fraternity lost university recognition.
The fraternity, renamed The Phi Society, has contended the house is still a fraternity house -- members live in it, as well as students from the houseless Kappa Alpha Order.
Meanwhile, Penn State wants to buy the house, having filed a lawsuit in November asking the court to transfer ownership of the property after fraternity alumni refused to sell.
The board considered all sides Tuesday but delayed making a preliminary judgement. Although the hearing was not part of the ongoing lawsuit, two of the board's three voting members expressed uneasiness about making a snap decision that could affect the buy.
A fraternity house, as defined by zoning code, is "a building designed for use as a residence of students or members of a Pennsylvania State University-affiliated fraternity or sorority," borough zoning officer Herman Slaybaugh said.
Based on a precedent set in two previous cases, the property at 240 N. Burrowes Road has become a rooming house, Slaybaugh said, because the former Phi Delta Theta members are no longer part of a university-affiliated fraternity.
Penn State attorney James Horne agreed, and said the university hasn't recognized fraternities like the Phi Society since 2004.
Defense attorney Bernie Cantorna based his response on the code's wording. The ordinance says fraternity house residents must be "students or members" of a university-affiliated fraternity, and the word "affiliated" is different from "officially recognized," Cantorna said.
There are two fraternities living in the house, he added -- including Kappa Alpha Order, which is "officially recognized" by the university.
"At the end of the day, it's pretty darn simple," Cantorna said. "It's a fraternity house -- why should we let Penn State be the sole and final arbitrator as to whether this fraternity is a fraternity?"
Board member Paul Brown shared Cantorna's concerns, saying the university holds the board "hostage" because Penn State determines the definition of a fraternity.
Horne said the university's interest in the hearing was simply that of being an adjoining land owner, but the board's ruling could play a major factor in the university's attempt to purchase the property, said James Bryant, Cantorna's legal partner.
"If there is no fraternity, then Penn State can get the property for almost diddly squat," Bryant said.
According to the deed, the university can purchase the property if it "should cease to be used as a chapter or fraternity house" for the Pennsylvania Theta Chapter of the Phi Delta Theta Fraternity.
"This is Penn State making war on many fronts," Bryant said. "This is getting the opponent in many positions of vulnerability."
