Posted by: Patricia Salkin | February 24, 2021

IN Supreme Court Concluded Granting University the Right to Define Fraternities and Sororities does Not Constitute Improper Delegation of Legislative Authority

This post was authored by Olena Botshteyn, Esq.

UJ-Eighty sought judicial review under the state and federal constitutions, arguing that Bloomington improperly granted its legislative authority to Indiana University (IU), when it allowed IU to define fraternities and sororities. The trial court concluded there was violation of constitutions and the appellate court affirmed. The Supreme Court reversed the decision, concluding that there was no improper delegation of authority to the IU by the town of Bloomington, as the town merely defined fraternities and sororities in its zoning law based on their relationship with IU. The court concluded that this cannot be viewed as an impermissible delegation of legislative power, and thus, there were no constitutional violations.

In 2002, UJ-Eighty purchased the property, located in Bloomington’s zoning district with a limited residential use. One of the permitted residential uses in this district is a fraternity or sorority house. At the time of purchase, Bloomington zoning Ordinance defined a fraternity or sorority house as a “building or portion thereof … for groups of unmarried students in attendance at an educational institution.” The Ordinance was amended later on to require for such students to be enrolled at IU and be recognized by IU as being members of a fraternity or sorority. In February 2018, IU revoked its recognition of Tau Kappa Epsilon, Inc. (TKE), a fraternity that occupied the building, owned by UJ-Eighty. While most of its members vacated the property, two remained. Bloomington further mailed a Notice of Violation to UJ-Eighty, stating that UJ-Eighty engaged in an illegal land use. UJ-Eighty further sought judicial review and argued that Bloomington unlawfully delegated zoning authority to IU, when it allowed IU to define fraternities and sororities.

First, the court concluded that Bloomington did not delegate its legislative authority IU and thus, did not violate Indiana Constitution. According to the Indiana Constitution, “no one can modify or change the law except the legislature”. Bloomington was the sole entity that enacted the Ordinance, defining permitted uses and zoning districts. While the Ordinance did provide a definition of “fraternity” and “sorority”, such definitions were similar to others that referenced an outside entity, similar to IU. In summation, the court stated that nothing indicates that the legislative power was granted to IU here.

Further, the court concluded that Bloomington did not deprive UJ-Eighty of due process and thus, did not violate US Constitution. While proving their argument, UJ-Eighty referred to cases, where the landowners were required to obtain their neighbors’ consent to use their land. Here, UJ-Eighty never had to seek IU’s consent to use its land. IU had no direct power to prohibit UJ-Eighty from lawfully using its land. Instead, IU has power to regulate the status of fraternities and sororities, however, this power comes from its General Assembly, and not from Bloomington. “IU’s decision to recognize or sanction a fraternity may have had “collateral effects” on land use in Bloomington”, but such a decision cannot be viewed as a delegation of legislative power.

City of Bloomington Board of Zoning Appeals v UJ-Eighty Corporation, 2021 WL 717972 (IN 2/23/2021)

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