Posted by: Patricia Salkin | February 2, 2020

IN Appeals Court Finds City’s Issuance of Notices of Violation Against Tau Kappa Epsilon Fraternity was Unconstitutional

This post was authored by Matthew Loeser, Esq.

In August 2016, UJ-Eighty Corporation, the owner of the subject property located in the City of Bloomington, entered into a lease with the Gamma-Kappa Chapter of Tau Kappa Epsilon (“TKE”). In 2016, TKE was a sanctioned fraternity with Indiana University. Following this, Bloomington enacted a Unified Development Ordinance that contained the definition of a fraternity or sorority house and required students to be enrolled in Indiana University and sanctioned by the university, through whatever process the university chose, as members of a fraternity or sorority. In February 2018, the members of TKE were notified that they could no longer reside at the property because the university no longer sanctioned TKE. While most of the residents moved out, two individuals continued to reside at the property.

Following the loss of TKE’s status as a sanctioned fraternity, the City determined that the property no longer met the Ordinance definition of a “Fraternity/Sorority House” and issued two notices of violation (“NOV”) to UJ-Eighty. UJ-Eighty appealed the issuance of the NOVs before the Bloomington Board of Zoning Appeals (“BZA”). The BZA affirmed the issuance of the NOVs, and UJ-Eighty sought judicial review of the BZA’s decision. The trial court granted UJ-Eighty’s petition, finding that the City had improperly delegated authority to Indiana University to determine whether the property was being used by students in a sanctioned fraternity and holding that the Ordinance was unconstitutional under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 4, § 1 of the Indiana Constitution.

On appeal, the BZA contended that the City’s Ordinance did not “violate the due process clause of the Fourteenth Amendment to the United States Constitution.” The record reflected that the City delegated its legislative authority to Indiana University to determine whether the Property was being used by students in a sanctioned fraternity, without providing any mechanism for reviewing Indiana University’s decision. Nevertheless, the BZA claimed that the Ordinance was constitutional because Indiana University no longer sanctioned TKE as a fraternity for students attending Indiana University. As such, the City argued UJ-Eighty could no longer lease the property to TKE.
Here, it was undisputed that UJ-Eighty did not take any affirmative action to violate the Ordinance. Additionally, it was the University’s action of removing TKE from the list of sanctioned fraternities that triggered the ordinance violation that the City sought to enforce against UJ-Eighty. The court found that by allowing a third party to engage in actions, using whatever procedures it deemed necessary, to trigger zoning violations against a property owner would arbitrarily and unreasonably deprive the property owner of its due process rights under the Fourteenth Amendment. Accordingly, the court affirmed the holding to set aside the BZA’s decision to uphold the issuance of the NOVs as unconstitutional and not in accordance with law.

City of Bloomington Board of Zoning Appeals v. UJ-Eighty Corporation, 2020 WL 485930 (IN App. 1/30/2020)

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