Despite reluctance from some members, the State College Zoning Hearing Board decided unanimously Tuesday that the former Phi Delta Theta fraternity house has become a rooming house.
While the decision has no immediate effect on the residents of the house, it could lower the value of the property if Penn State succeeds in its lawsuit to purchase the house, said attorney James Bryant, who represents the now-defunct Phi Delta Theta chapter.
An appeal could be filed as soon as Wednesday, Bryant said.
The board partially based its decision on the fact that the residents of the 240 N. Burrowes Road house are members of an unsanctioned fraternity. Under zoning guidelines, the borough defines a fraternity as "a building designed for use as a residence of students or members of a Pennsylvania State University-affiliated fraternity or sorority."
The former Phi Delta Theta fraternity, formerly affiliated with Penn State, had its charter suspended because of a drinking violation in 2007 and has since re-emerged as the unrecognized Phi Society.
The property's 1905 deed gives Penn State the option to purchase the property if it's no longer used as a fraternity or chapter house for the Pennsylvania Theta Chapter of the Phi Delta Theta Fraternity. After its offer to purchase the property this summer was rejected, the university filed a lawsuit in November asking the court to enforce the right to purchase option.
At Tuesday's hearing, board members admitted it was hard to ignore Penn State's interest in the case -- and the fact that Penn State controls which fraternities are "recognized" -- but ultimately voted against the organization's claims that it was still a fraternity house.
Board member Rosalie Bloom-Brooks said she changed her vote about a dozen times Tuesday, but was still "wrestling" with the decision after 40 minutes of discussion and an almost four-hour hearing two weeks ago.
Although she wanted to vote that it was a fraternity house, she thought calling it a rooming house was the more legally defensible decision.
"I wish there was some third way out," she said minutes before the vote.
And although members of the university-recognized Kappa Alpha Order also live in the house, they are outnumbered by members of the unsanctioned fraternity and have no bearing on the decision, the board wrote in its ruling.
When those in favor of deeming the property a rooming house were asked to say "Aye," Bloom-Brooks said softly, "Aye ... regretfully."
The students voluntarily chose to ignore the fraternity's national dry-house policy, forfeiting their right to be recognized by the university, Board Chairman Stanford Lembeck reasoned.
But the fraternity feels it has been treated unfairly, Bryant said. Alumni have expressed concern that Penn State is targeting their property while neglecting its right to purchase the neighboring Beta Theta Pi fraternity house, 220 N. Burrowes Road, he said.
Penn State's Beta Theta Pi chapter was disbanded last week after allegations of partying and hazing violations. The property's deed has a similar clause, allowing the university to purchase the house if it is not used as a fraternity or chapter house for the Alpha Upsilon Chapter of the Fraternity of Beta Theta Pi.
Penn State spokesman Geoff Rushton said he was not aware of any university plans to purchase the Beta Theta Pi property.
However, Roy Baker, director of fraternity and sorority life, said there is a key difference between the two former fraternity chapters. Beta Theta Pi plans to re-colonize with new members in the next two or three years -- once again becoming a national fraternity -- but the Phi Society has no plans to reunite with Phi Delta Theta, he said.
As a local fraternity, the Phi Society cannot be recognized by Penn State, Baker said.
Regardless, Bryant said, the zoning hearing board made the wrong decision.
"The zoning hearing board is singing 'We are Penn State,' " Bryant said. "We have 30 days [to appeal], so I'm thinking tomorrow, maybe the next day."
