haven house memorandum 3.24.15
TRANSCRIPT
BEFORE THE ASSEMBLY OF THE CITY AND BOROUGH OF JUNEAU
ANDREW HUGHES and TALL )
TIMBERS NEIGHBOHOOD )
ASSOCIATION, )
)
Appellants, )
)
vs. )
)
CBJ PLANNING COMMISSION, )
)
Appellee, )
) Appeal of Planning Commission
and ) Notice of Decision
) UNL 2014-0001 &
) USE 2014-0008
HAVEN HOUSE, )
)
Appellee-Intervenor. )
____________________________________)
HAVEN HOUSE’S MEMORANDUM IN SUPPORT OF PLANNING COMMISSION’S
DECISION TO GRANT HAVEN HOUSE A CONDITIONAL USE PERMIT
I. Overview ................................................................................................................................... 3
II. Standard of Review ................................................................................................................... 4
III. Chronology .............................................................................................................................. 4
IV. Haven House meets a community need. .................................................................................. 7
A. The provision of supportive housing to the formerly incarcerated reduces recidivism. ....... 7
B. Haven House is modeled after New Hope Safe Living House in Anchorage. ...................... 9
C. How Haven House Operates ................................................................................................. 9
Mission and Purpose of Haven House ...................................................................................... 10
Haven House Program elements .......................................................................................... 10
House Rules on drug and alcohol use, visitor policy and absences ..................................... 10
Application and selection of residents .................................................................................. 12
Staff, resident manager, and volunteers ............................................................................... 13
Phone number for complaints ............................................................................................... 14
Cooperation with Probation/Parole officers ........................................................................ 14
2
V. Haven House maintains that Haven House should be permitted as a single family
residence or a group home but is holding its appeal in abeyance. ............................................... 14
VI. The record contains substantial evidence to support the Planning Commission’s
determination that Haven House meets the requirements to receive a permit under the Use Not
Listed provision of CBJ 49.20.320. .............................................................................................. 16
A. The proper interpretation of CBJ 49.80.120 is that Haven House is not a halfway house
as defined by that ordinance. .................................................................................................... 16
B. The Table of Permissible Uses with respect to halfway houses is, on its face, arbitrary.
20
C. In the Use Not Listed hearing, Appellants did not argue that Haven House met the
definition of halfway house in CBJ 49.80.120. ........................................................................ 21
D. Haven House is clearly not a halfway house within the criminal justice definition of
halfway house. .......................................................................................................................... 22
E. The record contains substantial evidence that Haven House is similar in general
character to uses permitted in Category 1.610. ......................................................................... 23
VII. The record clearly contains substantial evidence that Haven House meets the provisions of
CBJ 49.15.330(d)(5) to receive a conditional use permit. ............................................................ 23
A. The record clearly has substantial evidence that Haven House will not materially endanger
the public health or safety. ........................................................................................................ 24
1. Appellants’ evidence from halfway houses is not relevant to whether the residents of
Haven House will material endanger the health and safety of a residential neighborhood. . 25
2. Appellant’s assertion that Haven House “would bring convicts to Juneau from other
parts of Alaska” is not valid evidence to exclude Haven House from a residential
neighborhood. ....................................................................................................................... 26
3. Appellants’ assertions that the women at Haven House will threaten the
neighborhood are not valid evidence. ................................................................................... 27
B. The record has substantial evidence that Haven House will not substantially decrease the
value of the property in the neighboring area. .......................................................................... 28
C. The record has substantial evidence that Haven House will not be out of harmony with
property in the surrounding area. .............................................................................................. 28
Conclusion .................................................................................................................................... 29
3
I. Overview
The issue before the Assembly is whether it should set aside the Planning Commission’s
determination that Haven House met the conditions to receive a conditional use permit to provide
transitional housing at 3202 Malissa Drive for up to nine women who have recently been
released from prison. This property is a single family residence in a residential district. The
women living at Haven House have chosen to live at Haven House. They have chosen to
participate in a program to help them recover from the problems that led to their imprisonment
and to help them successfully reenter society.
The underpinning of all of Appellants’ arguments is that the Planning Commission was wrong
because Haven House is a halfway house.1 Under the CBJ Land Use Code, a halfway house is
not allowed in a residential district. A halfway house is only allowed in a Light Commercial
District (LC), General Commercial District (GC), a Mixed Use District (MU, MU2), or Rural
Reserve (RR). Appendix A shows where halfway houses are allowed in the Mendenhall Valley
and Lemon Creek.
If the Assembly accepts Appellants’ argument, Appendix A to this memorandum shows where in
the Mendenhall Valley and Lemon Creek the women at Haven House could live, while they were
participating in the Haven House Program. The women at Haven House would be confined to
living in a small part of the Valley and would be required to live away from people. It would be
a type of apartheid for these women after they have been released from prison.
If the Assembly accepts Appellants’ argument, it would be adopting a definition of halfway
house that the Department of Corrections has rejected. Appendix B to this memorandum is a
statement by the Commissioner of the Department of Corrections, “While the Department
supports the development of housing for persons who are on probation or parole, and has stated
its support for the missions and goals of Haven House, Haven House would not be a ‘halfway
house’ or CRC [community residential center]. A woman on probation or parole could choose to
live at Haven House, just as she could choose to live at any other residence in Juneau.”2
If the Assembly accepts Appellants’ argument, it would create a truly irrational and arbitrary
result. It is beyond dispute that the CBJ Land Use Code would allow these very same women to
live at this property as a single family, if they were simply renting the property themselves and
were not participating in the Haven House Program. It would be arbitrary and irrational and
against public policy if the Assembly interpreted the CBJ Land Use Code to prevent these
women from living at this property, and at any single family dwelling in any residential district
in Juneau, because they had chosen to participate in a program to better their lives.
1 Appellants’ opening brief states at page 3, “But the issues in this appeal are remarkably simple. This
Assembly has unambiguously prohibited halfway houses in D-5 districts. Haven House is a halfway
house. The decisions below must be reversed.” (infra page citations omitted). 2 Appendix B is a statement from Ronald Taylor, when he was Deputy Commissioner for Reentry and
Population Management, the Department of Corrections. Since then, Mr. Taylor has become
Commissioner of the Department. http://www.correct.state.ak.us/commissioner.
4
II. Standard of Review
The Assembly may set aside a Planning Commission decision only if it Appellants show one of
the following under CBJ 01.50.070, Standard of review and burden of proof:
(a) The appeal agency or the hearing officer may set aside the decision being
appealed only if:
(1) The appellant establishes that the decision is not supported by substantial
evidence in light of the whole record, as supplemented at the hearing;
(2) The decision is not supported by adequate written findings or the findings
fail to inform the appeal agency or the hearing officer of the basis upon which the
decision appealed from was made; or
(3) The appeal agency or the hearing officer failed to follow its own procedures
or otherwise denied procedural due process to one or more of the parties.
(b) The burden of proof is on the appellant.
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”3
III. Chronology
Haven House, Inc. (Haven House), is a faith-based nonprofit corporation operating under section
501(c)(3) of the United States tax code. Haven House was granted a conditional use permit by
the Planning Commission (Commission) on October 14, 2014 to develop safe, sober and stable
transitional housing in a home environment at 3202 Malissa Drive for up to nine women coming
out of prison. Haven House has opened pursuant to CBJ 49.20.120.4
Below are some key dates in the development of Haven House and in the legal proceedings
before CBJ. [R] stands for Record. [S] stands for Supplemental Record.
2008 Ellen Campbell and other community members begin discussing the need for
transitional housing in Juneau for women coming out of prison. [R. 402, R. 430]
2010 Haven House, Inc. is formed as a non-profit corporation and receives tax-exempt
status as a 501(c)(3) corporation. [R. 309]
2012, 2013 Through the efforts of our local delegation, Haven House receives CAPSIS grants
of $30,000 (2012) and $50,000 (2013) from the State of Alaska. [R. 402]
December Haven House reaches agreement with owner of 3202 Malissa Drive to rent
2013 the home to provide reentry housing for women coming out of prison. [R. 402]
3 Luper v. City of Wasilla, 215 P. 3d 342, 345 (Alaska 2009).
4 “Unless ordered otherwise by the commission or the assembly, a decision by the commission shall not
be stayed pending appeal, but action by the appellee in reliance on the decision shall be at the risk that the
decision may be reversed on appeal.” CBJ 49.20.120.
5
12-23-13 Haven House applies for an allowable use permit for a group home. [R. 263–264]
1-24-14 CDD Director Decision #1 denies application stating that [1] Haven House is not
a group home because the residents will not have a disability and [2] Haven
House is a halfway house. [S. 933]
2-14-14 Haven House files notice of appeal [S. 2 – 5]
2-21-14 Haven House holds an informational meeting with neighbors. [R. 402]
3-10-14 Haven House provides additional information to CDD and files a legal brief]:
[1] Haven House’s intended use of 3202 Malissa Drive is as a single family
residence as defined by CBJ 49.80.120; [2] In the alternative, Haven House is a
group home, as defined by CBJ 49.80.120 [S. 7 – 48]
3-18-14 CDD Director Decision # 2 rescinds Decision #1, issues a new decision:
[1] CBJ Title 49 regarding halfway houses is likely unenforceable.
[2] CBJ Title 49 regarding group homes is likely unenforceable.
[3] Haven House is not a single family residence.
[4] CDD Director concludes that Haven House is a “use not listed” (similar use)
under CBJ 49.20.320 and is most similar to a boardinghouse and rooming house.
CDD believes that Planning Commission has the authority, after notice and public
hearing, to grant Haven House a permit to operate. [R. 197-198]
3-27-14 CDD holds neighborhood meeting [R. 25]
4-1-14 Tall Timbers Neighborhood Association (TTNA) files a notice of appeal of CDD
Director Decision #2. [S. 85 – 90]
4-4-14 Haven House files a notice of appeal of CDD Director Decision # 2 [S. 60 – 64].
5-2-14 Haven House applies for a permit as a “use not listed and of the same general
character as listed uses” in the D-5 residential district and, if necessary to operate,
a conditional use permit. [R. 30 – 31, R. 265]] Haven House reserves right to
appeal the denial of its permit to operate as a single family home and a group
home.
5-13-14 The Commission [1] accepts Haven House’s appeal; and [2] directs briefing on
whether TTNA has standing to appeal the CDD Director Decision # 2. [S. 380]
7-22-14 The Commission hears argument on whether TTNA has standing.
7-31-14 The Commission decides that Tall Timbers does not have standing to appeal
because Haven House has not received a permit to operate. Commission directs
6
staff to schedule hearing on Haven House’s application for a “use not listed”
permit.
8-13-14 CDD staff report evaluates Haven House’s application for a permit to operate as a
“use not listed” under CBJ 49.20.320. CDD recommends that the Commission
conclude that Haven House is a “use not listed” and is of the same general
character as a rooming house/boarding house, which is in Category 1.610 and is
allowed in a D-5 district with a conditional use permit. [R. 22 – 28]
8-21-14 Commission holds a public hearing on Haven House’s application for a Use Not
Listed Permit under CBJ 49.20.320. [R. 355- 368]
Commission receives written and oral presentations from CDD and attorneys
for Haven House and Appellants.
Commission hears testimony from 34 members of the public.
Commission deliberates until 11 p.m.
Commission, by a vote of 8 – 0, adopts CDD staff report and conclusions.
Commission issues a written decision, dated August 26, 2014, that Haven
House is a use not listed in the Table of Permissible Uses (TPU) and is similar
in general character to a rooming house/boarding house in Category 1.610.
[R. 353 – 354]
9-30-14 CDD Staff Report recommends granting permit with conditions [R. 369 – 379]
10-14-14 Commission holds a public hearing on Haven House’s application for a
conditional use permit to operate a reentry home for women coming out of prison.
[R 1298–1315]
Commission receives written and oral presentations from CDD and attorneys
for Haven House and Appellants.
Commission hears testimony from 22 members of the public: 11 for, 11
against,
Commission deliberates until 11 p.m.
Commission, by a vote of 9 – 0, adopts analysis and findings in Staff Repot,
grants Haven House and specifies conditions in permit
Commission issues written decision, dated October 16, 2014 [R. 1296–1297].
7
IV. Haven House meets a community need.
A. The provision of supportive housing to the formerly incarcerated reduces recidivism.
With over 725,000 persons released from federal and state prisons in our nation every year, the
need for housing assistance for the formerly incarcerated is immense. 5
In Alaska,
approximately 6,300 persons are in custody (5,500 men and 800 women)6 and the overwhelming
number of persons in prison (95%) are eventually released from custody [R. 473]. In Juneau,
there are about sixty women who have been released from custody and are on supervised
probation or parole.7
A person coming out of prison faces significant barriers to success including atrophied life skills;
low earning potential; potentially destructive habits and relationships; and limited access to
successful role models, supportive relationships, housing, and employment. The National
Housing Law Project stated that finding housing is the biggest problem for people coming out of
prison:
Formerly incarcerated individuals struggle to secure employment, obtain medical care
and avoid substance abuse. According to criminal justice officials, however, finding
housing is the biggest challenge faced by individuals returning to the community.[R. 532]
To evaluate the problems of prisoners reentering society in Alaska, the Alaska Department of
Corrections established the Alaska Prisoner Reentry Task Force. The Task Force produced a
landmark document, a “Five-Year Prisoner Reentry Strategic Plan, 2011 – 2016.” The record
has significant excerpts from this important document [R. 468 – 500] and the entire Strategic
Plan is available on line.8
The Strategic Plan documented that Alaska is like the rest of the nation; two out of three
prisoners return to prison within three years of being released. [R. 473]. The Alaska Strategic
Plan concluded that lack of housing in Alaska was a significant contributing factor to recidivism:
5 “In Our Backyard: Overcoming Community Resistance to Reentry Housing” (A NIMBY Toolkit), by John
Jay College and The Fortune Society (2011) at page1. An additional 230,000 come out of county jails each
week. Report at http://www.jjay.cuny.edu/TOOL_KIT_1-NIMBY_FINAL.pdf.
6 Alaska Department of Corrections 2013 Offender Profile,
http://www.correct.state.ak.us/admin/docs/2013Profile_Final.pdf 7 Statement of Brent Wilson, Juneau District Supervisor, Juneau Adult Probation Office (April 17, 2014).
His office supervises 61 women on probation/parole; only 2 do not reside in Juneau. [R. 508] 8 http://www.correct.state.ak.us/TskForce/documents/Five-Year%20Prisoner%20Reentry%20Plan.pdf
8
As rightly observed by the 2010 Council of State Governments Justice Center,
‘[w]ithout a stable residence, it is nearly impossible for newly released
individuals to reconnect positively to a community.’9
When individuals are released from prison or jail, the ability to access safe
and secure housing within the community is crucial to their successful reentry.
Studies have shown that the first month after release is a vulnerable period
“during which the risk of becoming homeless and/or returning to criminal
justice involvement is high.” Yet, in most communities to which individuals
return after incarceration, accessible and affordable housing is in exceedingly
short supply. The additional challenges unique to people with criminal
histories make it even more difficult for them to obtain stable housing. 10
The Strategic Plan lauds the faith community for its potential role in reducing recidivism because
“citizens from the faith community provide much of the mentorship required to help released
prisoners turn away from the negative influences that lead back to prison. Without the
stabilization that comes from access to housing, employment, sober/mental health and positive
peer supports, individuals . . . revert back to old patterns.” [R. 474]
The Strategic Plan has eleven recommendations to decrease recidivism. Recommendation # 6
was: “Improve former prisoners’ access to affordable housing.” [R. 477] The Strategic Plan cites
state and local faith-based organizations, such as Haven House, as “partners to turn the curve”
and reduce spending on prisons. [R. 500] The Strategic Plan concludes that more transitional
community residences like Haven House are needed because “far too many people coming back
to their home communities are in need of the kind of support and care that these residences
provide.” [R. 500]
Just last month (February 2015), a Statewide Recidivism Reduction Workgroup prepared a
Report, “2015 Recidivism Reduction Plan: Cost-Effective Solutions to Slow Prison Population
Growth and Reduce Recidivism,”, that concluded: "The access to affordable, sober, stable and
supportive housing is critical in promoting successful reentry. This type of housing is not readily
available to returning citizens due to federal, state and private landlord restrictions on renting to
people with criminal histories.”11
Haven House will be safer, more stable, more supportive, and more structured than most other
places where a women released from prison might live. It will only house a maximum of nine
women. But Haven House is a modest step to making Juneau safer because a woman living at
Haven House is less likely to reoffend.
The record before you bears that out. The record has extensive evidence that persons in
supportive housing are less likely to reoffend. See, in particular, these written statements:
Alaska Prisoner Reentry Task Force Five-Year Prisoner Reentry Strategic Plan, 2011-2016 [R.
468 – 500]; Resolution Number 13-16 Alaska Native Brotherhood and Alaska Native Sisterhood
9 Alaska Strategic Plan at page 65
10 Alaska Strategic Plan at page 66.
11 Report at page 25, available at http://www.ajc.state.ak.us/acjc/recidivism/HB266-2015.pdf, ,
9
Grand Camp [R. 501 – 502]; Statement from Brent Wilson, Juneau District Supervisor, Juneau
Adult Probation Office; Statement of Chaplain Brenda Nagunst, Executive Director, Alaska
Correctional Ministries, Inc. [R. 512 – 513]; Statement from Mariya Lovishchuk, Executive
Director of The Glory Hole [R. 528]; Statement from Mike Pellerin, Executive Director,
Gastineau Human Services [R. 524]; Statement from Ann Lockhart, Executive Director, Love
INC [R. 525]; Report from the Housing Law Bulletin [532 – 534]; Summary of Studies on
Effectiveness of Housing Former Offenders [R. 535 – 536].
B. Haven House is modeled after New Hope Safe Living House in Anchorage.
The Strategic Plan specifically cited the New Hope Safe Living House, a transitional home for
women coming out of prison in Anchorage, that is run by the Anchorage-based Alaska
Correctional Ministries, Inc. (ACM). The Strategic Plan states that ACM uses “best practices in
mentoring, case management and transitional services programs.” [R. 497]
Chaplain Brenda Nagunst, Executive Director of ACM, stated: “Alaska Correctional Ministries
strongly supports the work of Haven House, Inc. in Juneau. We believe the successful practices
of New Hope Safe Living House and Alaska Correctional Ministries, Inc. can be replicated by
Haven House. This is our opportunity to show that all members of the Juneau community
deserve to be shown acceptance and forgiveness as we strive to create an Alaska that is safer for
and supportive of all of our residents.” [R. 512]
Ms. Nagunst stated, “[O]f residents who successfully complete their stay at New Hope Safe
Living House, 80% continue to lead healthy, law-abiding lives after cultivating a self-sufficient
lifestyle and moving on from the supportive environment of New Hope Safe Living House.” [R.
512]
Ms. Nagunst also states: “In the 4 years New Hope Safe Living House has been operating in our
Anchorage neighborhood, we have never had complaints or negative interactions with our
neighbors.” {R. 512].
C. How Haven House Operates
Haven House provided a detailed description to CDD and to the Planning Commission as to
how Haven House would operate. [R. 683-692]. Haven House provided the application that
prospective residents would have to submit [R. 445-457]. Haven House submitted copies of the
House Rules [R. 458 – 466] .
Haven House submitted 44 exhibits with its application for a permit. Many of the exhibits were
letters of support from members of the community with knowledge about the problems of
persons getting out of prison. Appendix C is the list of Haven House’s exhibits. Commissioner
Voelkers said that he was “very impressed by the depth and quality of the application that has
been presented.” [R. 367].
Haven House will describe here the Mission and Purpose of Haven House; the Haven House
Program Elements; House Rules; the application and selection of residents; the staffing which
10
includes a resident manager; the availability of a 24/7 line for complaints; and Haven House’s
cooperation with probation/parole officers.
Mission and Purpose of Haven House
The House Rules state the mission and purpose of Haven House:
MISSION
Haven House is a faith-based organization providing supported and structured
living opportunities to foster healing and self-sufficiency for women coming
out of prison.
PURPOSE
Haven House is designed to be a positive, supportive living environment
which will stimulate personal and spiritual growth, encourage accountability
and financial responsibility, and provide referrals to essential reentry services
during the participant’s re-adjustment into the community. Haven House staff
and volunteers will assist participants as they navigate their reentry by
providing support and referrals to other community services for assistance
with food, treatment, counseling, clothing, transportation, employment, and
career development, among other services. Additionally, Haven House
participants will be expected to participate fully in community activities,
including house meetings, meals, and chores.
Haven House will provide up to two years of transitional housing, a faith-
based community with successful role models and opportunities for positive
relationships, life skills training, and an opportunity for participants to support
one another. Haven House is unique in that it is a faith-based home providing
natural supports to its residents based on the presumption that women in safe,
stable housing situations are less likely to reoffend. [R. 460]
Haven House Program elements
The Haven House Program Elements are described at page 2 of the House Rules: [1] Individual
Action Plan by each resident and weekly meeting with Haven House staff to review progress
toward the goals identified by the resident; [2] Referrals to Community Services; [3] Communal
Living; [4] Faith-sharing; and [5] Performing Household Responsibilities. [R. 460]
House Rules on drug and alcohol use, visitor policy and absences
The House Rules speak for themselves on subjects such as drug and alcohol use, visitor policy,
and absences from the home:
11
HOUSE RULES
Haven House staff will explain each rule to the participant and the participant
must follow the guidelines and expectations of each rule in order to continue
residing in Haven House. All interpretations of the following rules,
assessments of violation, and assignment of discipline shall be at the
discretion of Haven House staff. Any violation of any federal, state,
borough, or city law on the property is a violation of these rules and may
result in dismissal and/or notifying the participant’s probation/parole
officer. Participants must comply with all their conditions of
parole/probation while living in Haven House and any violation of said
conditions may result in immediate dismissal from Haven House.
[emphasis in original]
GUIDELINES AND EXPECTATIONS
Staff will ensure a safe, sober, and stable home environment and will meet
weekly with each participant to discuss her Individual Action Plan, refer
participants to resources provided by other agencies, provide discipleship and
faith guidance, facilitate house meetings, and administer UAs or breathalyzer
tests when appropriate. [R. 461]
LENGTH OF STAY
A participant may reside at Haven House for up to two years (1 month
adjustment period + 23 additional months) and is required to commit to stay
for at least 6 months (1 month adjustment period + 5 additional months). [R.
462]
VISITOR POLICY
Only legal family members may visit participants. Legal family members
include: spouse, mother, father, brothers, sisters, children, grandchildren,
grandparents, and cousins. Visitors must be scheduled at least 48 hours in
advance and approved (background checks may be required) by staff. Visiting
will occur in the main living room and visitors must leave by 10:00 pm. The
visitors must complete a confidentiality form on their first visit. [R. 462]
ABSENCES FROM THE HOUSE
All participants must return each evening to Haven House by curfew at 10:00
p.m., unless at a scheduled job or with the prior permission of the staff. Each
participant is required to obtain pre-approval from staff if she will be away
from the house for more than 24 hours. Any participant absent from the house
for more than 24 hours without notifying Haven House staff and obtaining
approval will be subject to disciplinary action and her probation/parole officer
may be notified. Any participant absent for more than 48 hours will be
dismissed. Participants must provide a copy of all travel passes, if applicable
to their parole/probation conditions. [R. 463]
12
DISMISSAL FROM HAVEN HOUSE
Haven House or the participant may voluntarily terminate this agreement,
with or without any reason. Haven House requests that the participant give a
seven day written notice before leaving and Haven House may terminate this
agreement by giving a seven day written notice to the participant. Failure to
pay any contributions to household expenses or fees when due may result in a
seven-day dismissal notice. Haven House staff may dismiss a participant
immediately if deemed appropriate. Anyone absent from the house for
more than 48 hours without giving prior notice to Haven House staff or
anyone who uses alcohol and/or substances in Haven House or on Haven
House property will be dismissed. [emphasis in original] [R. 463 – 464]
A participant may be dismissed immediately from Haven House if she does
not abide by the following:
HAVEN HOUSE REQUIRES THAT:
o Participants do not use, possess, manufacture, distribute, share, sell, or
store illicit drugs, mind-altering substances, tobacco, alcohol, controlled
substances, or drug equipment off Haven House property or in any vehicle
parked off Haven House property.
o Participants submit to inspection and/or testing when requested by Haven
House staff, the participant’s probation/parole officer, or any other
authority.
o Participants keep all prescribed medication in its original, labeled
container in the staff office.
o Participants do not use tobacco within sight of Haven House property. [R.
465]
Application and selection of residents
Once a full application has been received, Haven House staff will contact the applicant to
arrange an interview to better understand her background and past experiences and to assess her
ability to abide by the House Rules of Haven House. The interview will usually be in person
although, if that is not feasible, the interview may be telephonic. Staff will then contact her
probation/parole officer to verify that Haven House is the proper environment for her.
Each participant of Haven House will be admitted based on her openness to participate fully in a
faith community; her sincere desire for change; and the recommendation from her chaplain,
pastor, counselor, or probation/parole officer. A resident must sign the House Rules, states she
has read and understands them, and state that she agrees to abide by them. [R. 466]
While Haven House desires the best outcome for every woman exiting prison, Haven House
recognizes that the Haven House program may not be the best fit for every applicant. The
application process will attempt to assess sincere desire for change and readiness for community
participation.
13
The residents will be carefully selected. Based on a model of peer support, the other residents
will very likely be a force to help each other move towards recovery and self-sufficiency. If a
resident was considering violating a house rule, she would not be able to count on any prolonged
absence of, collectively, the house manager, staff, volunteers, visitors and the other residents. It
also bears repeating that these women can reside anywhere and they have chosen to live at
Haven House with full knowledge of the philosophy and rules of Haven House.
Staff, resident manager, and volunteers
The Haven House Board of Directors has established House Rules and the elements of the Haven
House Program. Haven House has a Program Director who will oversee implementation of the
Haven House Program, who will work out of Haven House, and who will oversee other staff.
Haven House has a resident house manager, who lives on site. That is a requirement of a
boarding house/roominghouse in Category 1.610 and is a requirement of the conditional use
permit Haven House received in October. [R. 1296]
Appellants’ brief refers several times to the statement by Haven House that it wished to have the
choice of a resident manager or a nighttime supervisor.12
Haven House did initially state in its
application for a Use Not Listed permit that it wished to have the choice of a resident manager or
a nighttime supervisor in case there were times when it could find a suitable resident manager
[R. 689]. In response, Appellants stated in their written memorandum that a resident manager
was important to them: “Living on site offers a main, essential component to the Miscellaneous
Rooms for Rent subcategory because live on site managers have extra incentive to ensure
compliance with the rules of the establishment because the manager will be living amongst and
with the clientele.” [R. 259] Appellants also stated, “For the neighborhood, that on site live in
manager affords some protection that the structure imposed by Haven House on its clientele will
always be enforced.” [R. 260] And a resident manager was a requirement for Category 1.610,
the miscellaneous rooms for rent category, and CDD thought Haven House should receive a
permit in that category. Therefore, Haven House changed its proposed use to include a
requirement for a resident manager [R. 375], did not object to that condition, does not object to
that condition, and will abide by that condition.
Haven House will also engage members of the faith community and the recovery community to
act as volunteers at Haven House, to act as mentors, and to participate in House activities. Most
residents at Haven House will be in recovery from addiction because most persons in prison have
been addicted to drugs or alcohol.13
Haven House has reserved seven of its nine spaces for
women who are in recovery from addiction. [S. 46] Part of the recovery process will be
participating with peers in the recovery community in Juneau.
12
For example, Appellants’ Opening Brief at page 42. 13
The Strategic Plan cites statistics from a 200l Alaska study that over 90% of all prisoners surveyed
reported having a substance abuse problem at some point in their lives and 79% of those prisoners
reported an active substance abuse problem within 12 months of their most recent arrest. [S 44].
14
Phone number for complaints
Haven House has a regular office number phone. Haven House promised the neighbors that it
would establish a phone number, which would be answered 24/7 to receive complaints. [R 689]]
Haven House has established a 24/7 complaint line.
Cooperation with Probation/Parole officers
After a person convicted of a felony gets out of prison, they are usually on supervised probation
or parole. A person on supervised probation or parole will have a probation/parole officer and
must regularly report to their probation/parole officer. If a person on probation or parole does
not abide by their conditions of probation/parole, they may have to go back to prison and serve
an additional part of their sentence.
With respect to housing, Alaska Statutes require that a person on supervised probation/parole
“shall reside at a stated place and not change that residence without notifying, and receiving
permission from, the parole officer assigned to the parolee.” AS 33.16.150. The same condition
applies to a person on supervised probation.
A unique feature of Haven House is that Haven House staff will cooperate and share information
with a resident’s probation officer. Haven House has consulted with the Juneau District
Probation Office in developing its program. Brent Wilson, Juneau District Supervisor, stated:
A critical component, from my perspective, is the promise of open and timely
communication between Haven House staff and the probation and parole
officers. Keeping the probation and parole office apprised of positive
progress, as well as concerns, increases the ability for officers to play a
comprehensive role in supporting transitional progress and swiftly reacting to
issues inhibiting rehabilitation. Further, I know Haven House is well aware
that at any point the probation and parole office believes continuing residence
there is not healthy and/or safe a resident would be required to move. This
relationship and level of communication is lacking with other approved
residences often preventing timely interventions. [R. 506 – 507]
V. Haven House maintains that Haven House should be permitted as a single family residence or a group home but is holding its appeal in abeyance.
Appellants stated that the Planning Commission “entered final judgment on October 16, 2014,
disposing of all claims by all parties.” This is not accurate. After the CDD Director’s First
Decision (January 24, 2014), Haven House filed an extensive legal brief that Haven House was a
single family home as defined by CBJ Land Use Code.
Haven House also submitted detailed argument that a refusal by CBJ to allow these women to
live together in a residential district would likely violate federal statutes, namely the Fair
15
Housing Act and the Americans With Disabilities Act. That is because most of the women
living at Haven House will be in recovery from alcohol or drug dependence, which is a disability
under these statutes. [S. 9 – 48]
CBJ 49.80.120 defines family as follows: “Family means one or more persons living as a single
housekeeping unit, as distinguished from a group occupying a group home.” This definition of
family does not have any requirement that the members must be legally related. This definition
of family does not require that the persons must live there a specified period of time. This
definition of family does not exclude persons that are on probation or parole. That is, this
definition does not state that “one or more persons” who are on probation or parole and who live
together as a single housekeeping unit cannot be be a family.
And, of course, obviously a person on parole living by him or herself would be “one . . . person
living as a single housekeeping unit.” And a husband and wife both on probation or parole living
together would be a family. Thus, it is beyond dispute that nine women on probation could rent
this home and they would be a family as defined by the CBJ Land Use Code.
The CBJ definition of family is similar to the definition of family in other municipalities, namely
family meaning “one or more persons living as a single housekeeping unit.” Haven House
submitted strong legal authority that courts are not hesitant to tell municipalities that the
definition of “family” means what it says and that the they may not add conditions and qualifiers
to the definition of family when the ordinance does not have conditions and qualifiers. The fact
that the women at Haven House will be part of an organized program and the home would will
have a resident manager does not mean that the group arrangement is not a single housekeeping
unit and therefore a family. 14
After receiving Haven House’s legal brief and additional information, the CDD Director issued a
second decision (March 18, 2014) that Haven House was not a single family home but that
Haven House might be able to receive a permit under the Use Not Listed process. Haven House
filed a Notice of Appeal of the challenging that the women at Haven House did not meet the
simple, clear definition of family as “one or more persons living as a single housekeeping unit.”
[S. 60-64]
In its Notice of Appeal, Haven House also stated that CDD was violating federal statutes by
requiring an organization seeking housing for this group of women with this disability to go
14
See, e.g., Saunders v. Clark County Zoning Department, 421 N.E. 2d 152 (Ohio 1981)(foster care
facility for nine delinquent boys with house parents and paid staff and receiving payments from the state
come within the definition of family); State ex rel Ellis v. Liddle, 520 S.W. 2d 644 (M. 1975)(home for up
to ten dependent, neglected or delinquent boys living with two counselors is a family); City of West
Monroe v. Ouachita Ass’n. for Retarded Children, 401 So. 2d 259 (La. Ct. App. 1981)(a home for six
mentally retarded adults with two house parents was family noting that the houseparents would see that
the rules were followed “much as in any home”); Township of Washington v. Central Bergen Community
Mental Health Center, Inc., 383 A. 2d 1194 (N. J. Super. 1978)(home for former mental patients with 24
hour supervision was family; supervision was to aid the reorientation of the residents to every day living,
no therapeutic or medical services were provided onsite, and both the outward appearance and operation
of the home were similar to other family residences).
16
through an extensive public hearing process whereas a group of persons with other disabilities or
a group of persons with no disabilities would not have to go through that process. [S. 60 – 64]
Haven House put its appeal in abeyance while it followed the recommendations of CDD to seek
a permit through the Use Not Listed process, even though Haven House believed that it should
have received a permit outright. Haven House chose the Use Not Listed process over an
immediate appeal because it wished to open; it wished to avoid litigation, if possible; and it
preferred to work with CBJ, rather than be adverse to it.
Haven House still has what it believes are strong grounds that the women at Haven House should
be treated as a family within the CBJ Land Use Code. If the Assembly decided that Haven House
can only operate where halfway houses are allowed to operate, which Haven House believes is
unlikely given the record, that would confine Haven House residents to such a narrow part of
Juneau and would be so offensive that Haven House would have no choice but to challenge that
outcome on all legal fronts.
VI. The record contains substantial evidence to support the Planning Commission’s determination that Haven House meets the requirements to receive a permit under the Use Not Listed provision of CBJ 49.20.320.
Appellants argue that the Assembly must set aside the Planning Commission determination that
Haven House is a “use not listed” because Haven House is a listed use, namely a halfway house.
Two meanings of the term “halfway house” are relevant here: the definition of halfway house in
the CBJ Land Use Code and the definition of halfway house used by corrections officials.
A. The proper interpretation of CBJ 49.80.120 is that Haven House is not a halfway house as defined by that ordinance.
The definition of halfway house in the CBJ 49.80.120 is as follows:
Halfway house means a single-family dwelling for not more than nine persons
over the age of 12, together with not more than two persons providing
supervision and other services to such persons, all of whom live together as a
single housekeeping unit. Residents may be serving a sentence for a criminal
act. Uses with ten or more residents shall be regulated as institutional correction
facilities. [emphasis added]
One difficulty with this definition is the sentence: “Residents may be serving a sentence for a
criminal act.” This means that residents may or may not be serving a sentence for a criminal act.
That is no distinguishing feature of a halfway house from any other land use because every
person in the world either is or is not serving a sentence for a criminal act. That sentence
includes everyone. Thus, the CBJ definition of “halfway house” has nothing to do with a
person’s involvement with the criminal justice system. That is odd, more than a little confusing,
and almost certainly not the Assembly’s intent.
17
So the ordinance must be read without the “serving a sentence” sentence because it adds nothing
to the definition, which is one sign among many that this ordinance must be rewritten. Without
the “serving a sentence” sentence, a halfway house is a single-family dwelling for not more than
nine persons over the age of 12, together with not more than two persons providing supervision
and other services to such persons, all of whom live together as a single housekeeping unit. In
short, a dwelling where two adults provide services and supervision to other persons over the age
of 12 (but not more than nine persons over the age of 12).
The key phrase is “providing supervision and other services to such persons.” If that is read to
mean any services, a “regular” family where all the children are over twelve would be a halfway
house. The parents provide supervision and usually services (driving, overseeing parties,
laundry). Or consider the following “non-regular” families. A college fraternity rents a house,
hires house parents, establishes house rules, and provides laundry and housekeeping services for
the residents. Or a religious order rents a home for its members, has a mother superior and an
assistant mother superior, has house rules, and provides laundry and housekeeping services. Or a
couple owns a home, rents out a few rooms, makes sure the renters are quiet and do not disturb
the neighbors, and provides internet services to the renters. In each of those instances, there are
persons over the age of 12, two persons providing some supervision and some services. These
are not anyone’s definition of a halfway house.
The solution is to interpret “services and supervision” to mean services and supervision that are
qualitatively different from that provided by family members to each other and to mean “services
and supervision” of the type provided in a commercial, medical or correctional facility. This
reasoning is carefully explained in Haven House’s initial legal brief to CDD. Although the
excerpt is lengthy, Haven House’s prior attorney (Pamela Finley) did an excellent job explaining
this point:
IV. Haven House is not a Halfway House. The director’s decision stated that
Haven House “best fits the definition of halfway house because it would be
people, living together, who could be serving a sentence.” Under CBJ Ord.
49.80.120, “halfway house” means:
a single-family dwelling for not more than nine persons over the age of 12,
together with not more than two persons providing supervision and other
services to such persons, all of whom live together as a single
housekeeping unit. Residents may be serving a sentence for a criminal
act. Uses with ten or more residents shall be regulated as institutional
correction facilities
. . . .
[A]lthough residents in halfway houses may be service a sentence, they do not
need to be doing so. So, the effective parts of the definition (other than the
maximum number of adult residents) is that there are also one or two persons
“providing supervision and other services” to the other persons living there. The
“supervision and services” requirement is all that distinguishes a halfway house
from those living together as a “family”. Initially, it should be noted that the
18
house manager and co-directors of Haven House will be supervising activity in
the home. However, the general supervision of the resident’s elsewhere in the
community will [be] provided by probation and parole officers. In addition, as
Haven House’s business plan clearly indicates, Haven House staff will not
provide services to the residents, but instead will encourage the residents “to
participate in life skills development, job skills training, substance abuse
recovery, and similar programs available through external organizations.” Haven
House’s focus is on providing safety—“physical safety and safety from life
patterns that lead back to prison.” Co-directors and the house manager will
provide only “community, individual mentoring/support, life skills modeling, and
friendship,” which describes the support given friends and family members, not
“services” provided to patients or clients.
Construing “services” as used in the definition of “halfway house” to mean only
those of a commercial or medical nature makes sense because those uses may be
inappropriate in a residential district. This is the distinction made in Township of
Washington v. Central Bergen Community Mental Health Center, Inc., 383 A. 2d
1194 (N.J. Super. 1978), discussed above, between support and services similar to
those given family members on the one hand and services typically given in a
clinic or commercial setting on the other. The former do not change the
residential nature of the dwelling’s use, whereas the latter would.
Similarly, in Jeffrey O. v. City of Boca Raton, 511 S. Supp. 2d 1339 (S.D. Fla.
2007), the court found that an ordinance violated the FHAA [Fair Housing Act
Amendments] when it excluded substance abuse treatment housing from
residential areas simply because the housing required residents to be subject to
drug testing. The city took the position that a treatment center that provided
services of a commercial or medical nature was inappropriate in a residential area.
The court did not disagree, but pointed out that no such services were being
provided at the residence. The residents were required to undergo drug and
alcohol testing as a condition of continued residence, but the court did not believe
this was a prohibited medical “service.” As the court stated, the drug testing
requirement “would make no change to the outward appearance of the residence”
and did not change the essential residential use of the housing. Id. 511 F. Supp.
2d at 1352. See also Sammons v. City of Batavia, 557 N.E. 2d 1246 (Ohio Ct.
App. 1988)(“uses of a service type” construed to include court reporting service
business, as opposed to sales of goods; ambiguity in definition to be construed in
favor of free use of property.).
It may also be that the “supervision and services” aspect of the halfway house
definition should be even more strictly construed so that the phrase describes the
level of supervision and services present in a correctional facility. The CBJ
definition indicates that what would be a halfway house with nine or fewer
residents becomes an “institutional correction facility” when there are ten or more
residents. Therefore, the meaning of “supervision and services” that applies to the
CBJ’s definition of “halfway house” will also apply to “correction facility.”
19
Since the CBJ zoning ordinance does not define “correction facility”, the common
meaning of the term would apply. Sammons v. City of Batavia, supra. AS
33.30.901(4) defines “correctional facility” as “a prison, jail, camp, farm, half-
way house, group home, or other placement designated by the commissioner for
the custody, care, and discipline of prisoners.” “Prisoner” means a person held
under authority of state law “in official detention.” AS 33.30.901(12). “Official
detention” means custody, arrest, surrender in lieu of arrest, or actual or
constructive restraint under order of a court in a criminal or juvenile proceeding,
other than an order of conditional bail release.” AS11.81.900(b)(4). “Official
detention” does not include probation or parole. Williams v. State, 301 P. 3d 196
(Alaska Ct. App. 2013). It does include time spent at a correctional restitution
center (CRC) under AS 33.30.151 because the person is confined to the center
except for limited purposes, e.g., when at work or doing community service. AS
33.30.181. Similarly, a person can be in official detention at a treatment facility
if, among other things, the court ordered the person to the treatment facility and
the program imposes ”substantial restrictions on a person’s liberty that are
equivalent to incarceration” AS 12.55.027. Obviously the level of supervision
and services provided at correctional institutions is not remotely similar to what is
provided at Haven House. Subject to curfew, Haven House residents are free to
come and go at will, whereas the movement of prisoners in correctional
institutions, even low-security ones like CRCs or treatment facilities, is strictly
controlled.
A strict construction of “supervision and services” is necessary to ensure that the
CBJ is regulating uses instead of attempting to discriminate against users. As
discussed above, the only significant difference between a “family” and a
“halfway house” (aside from the maximum number of adults that can live in a
halfway house) is that in a halfway house one or two people are providing
“supervision and other services” to the others. Of course, in the typical family of
related persons, one or two persons (parents, grandparents, aunts, etc.) are also
providing what could be described as supervision an services to the others
(chidren). Or, one members of the family (perhaps an adult child) may be giving
supervision an services to an elderly parent or grandparent, or conceivably to both
parents and both sets of grandparents (6 adults). If the difference between family
residence an halfway house is to depend on the uses occurring in and about the
dwelling rather than on the identity of the users, as it should, the “supervision and
services” that delineate a halfway house have to be qualitatively different from the
supervision and services a parent, grandparent, aunt or similar person would give
to another family member. If, for example, a college alumni association decided
to rent a house where six or seven foreign students could live together along with
a housemother, or perhaps a head resident, and a member of the association
regularly visited the house to see how the students were doing and help them find
jobs, transportation, or recreation, this would not be a “halfway house” because
the supervision and services are similar to those that would be provided by family
members or friends. If six nuns and a Mother Superior lived together in a home,
they would not be a halfway house because the supervision and services were of a
20
familiar nature, rather than commercial or correctional. If three adult couples and
their children decided to live together for religious or philosophical reasons, or
just because they liked living together, they would not constitute a hallway house
because the supervision and services they would give to each other would be
typical of a family. On the other hand, if “supervision and services” is construed
to refer to the supervision and services given in what most people, and the state
Department of Corrections, see Exhibit D [R XX], think of as a “halfway
house”, i.e., a correctional restitution center or a treatment center under AS
12.55.027, then the different treatment of halfway houses and family homes
makes sense because the level of security and the therapeutic nature of the
services is qualitatively different from the supervision and services given by
family members.
Therefore, when the “supervision and services” requirement of the halfway house
definition is properly construed – to mean either services or a commercial or
medical type, or services and supervision of the sort found in state correctional
facilities – it is clear that Haven House does not fall within that definition.
Because Haven House will not be providing services of a medical or commercial
nature to the residents and the women will no longer be in prison, it does not fall
within the definition of a halfway house. [S. 27 – 30]
The Planning Commission determined Haven House was not a listed use. The Planning
Commission did not state why it determined that Haven House was not a halfway house. The
Assembly may and should affirm the Planning Commission’s decision on the legal grounds that
Haven House is not a halfway house because it does not provide the type of “supervision and
other services” required by a halfway house. The Assembly may also remand to the Planning
Commission for a legal finding on this point but, since this is a legal question and since the
parties have the opportunity to present argument to the Assembly, Haven House suggests that the
Assembly interpret the statute.
The CBJ Law Department advised the CDD Director that the halfway house ordinance was
arbitrary for several reasons and was likely unenforceable. [S. 207 – 221] Appellants’ Opening
Brief argued that CDD and the Planning Commission should have enforced it anyway because
ordinances are presumed valid and constitutional. Haven House’s proferred interpretation
preserves the ordinance and avoids the clearly unreasonable result that comes from saying that
any residence is a halfway house where two adults provide services and supervision to persons
over the age of 12.
B. The Table of Permissible Uses with respect to halfway houses is, on its face, arbitrary.
Haven House also argued to the CDD Director that the zoning ordinances were arbitrary and
irrational because a halfway house of nine or less was not allowed in a residential district and a
halfway house of ten or more was allowed in a residential district with a conditional use permit
as a correctional facility. [S. 036 – 037]. Based on this problem, and others with the ordinance,
the CDD Director was advised that the halfway house ordinance was likely unenforceable. [R.
207 – 221] The CDD Director concluded that it would have been arbitrary to classify Haven
21
House as a prohibited use in a residential district because it only had nine persons. [R. 197-
198] Under that logic, if Haven House resubmitted its application to housing ten women, Haven
House would have been allowed in a residential district with a conditional use permit.
The Executive Branch has a duty to apply laws fairly and uphold the constitution. This duty
should not be carried out so that it infringes upon the Legislature’s duty to establish laws. But
when it is clear that an ordinance has numerous mistakes, rather than stonewalling the public and
blinding applying an arbitrary ordinance, the CDD Director may not enforce the ordinance and
work the Assembly to correct the problem and adopt a statute consistent with legislative intent.
C. In the Use Not Listed hearing, Appellants did not argue that Haven House met the definition of halfway house in CBJ 49.80.120.
Appellants did not argue at the Use Not Listed hearing that Haven House was a halfway house as
defined in CBJ 49.80.120. Appellants Legal Memorandum submitted to the Planning
Commission argues strongly that Haven House is not a residence and does not fall within
Category 1.610 Miscellaneous Rooms for Rent. [R. 256 – 258] Appellants’ Legal
Memorandum argues strongly that CBJ should impose on Haven House a condition to have a
resident manager [R. 259 – 260]
Appellants only reference to “halfway house” or “group home” in its legal argument is that the
CDD Director has determined they are no longer valid uses. Appellants then state:
“Accordingly, those uses are no longer available as a listed, permitted use to which the Haven
House could be determined to be of the same general character.” [R 258] Appellants did not
submit any legal argument that Haven House fit the definition of a “halfway house” in the CBJ
ordinance.
Appellants argued that Haven House was a halfway house at the hearing before the Planning
Commission on the conditional use permit on October 14, 2014. But the context there was that
Appellants wanted to show that Haven House would endanger public health and safety. To do
that, Appellants introduced a study of “halfway houses” in Pennsylvania and a “halfway house”
in Massachusetts and newspaper reports of escaped convicts from “halfway houses.” Appellants
tried to argue that this evidence applied to Haven House because Haven House was a “halfway
house.” This brings us to the second definition of halfway house, the criminal justice definition.
But it is important to remember that whenever a newspaper article or study or report uses the
word “halfway house,” it is not, repeat not, using the idiosyncratic definition of halfway house in
the CBJ code. These sources are using the common definition of halfway house as a correctional
facility that is “half way” between a prison and living in the community but, nonetheless, a place
where you are ordered to live because you are in the custody of the Department of Corrections.
These reports are not describing anything like Haven House.
22
D. Haven House is clearly not a halfway house within the criminal justice definition of halfway house.
The record undeniably shows that Haven House is not a halfway house within the criminal
justice definition of halfway house. Haven House is a private home where women voluntarily
choose to live. The women living at Haven House have been released from the custody of the
Department of Corrections. If a woman wants to leave, if she decides the Program is not to her
liking or the rules are too onerous, she may leave. The women at Haven House have a choice of
where to live and have voluntarily chosen to live at a house with a faith-based program,
communal living, and strict rules, because they want to improve their lives.
A person living at a halfway house is not there voluntarily. A person living at a hallway house is
in the custody of the Department of Corrections. A person living at a halfway house is guilty of
the crime of escape if he or she leaves without permission.
All persons on probation or parole must obtain the permission of their probation/parole office to
live where they live. To live at Haven House, a woman on probation or parole must obtain the
permission to her probation/parole officer, just as she must obtain permission to live with her
mother, father, at the Glory Hole, or any other place in Juneau.
In Juneau, when people talk about the halfway house, they mean the facility run by Gastineau
Human Services on 5597 Aisek Street. That is also what the Department of Correction means.
Ronald Taylor, who is now Commissioner of the Department of Corrections,15
unequivocally
stated: “Haven House is not considered a ‘halfway house’ or community residential centers [sic]
(CRC).” His written statement is in the record at page 1238 and is attached to this Memorandum
as Appendix B:
In Juneau, Gastineau Human Services (GHS) operates as the only “halfway
house” or CRC on 5597 Aisek Street. Additionally, the only correctional facility
operated by the Department of Corrections is the Lemon Creek Correctional
Center (LCCC). A person ordered to reside either at GHS or LCCC is serving a
sentence that has been imposed by the court or the parole board. Any person who
leaves a LCCC or GHS without lawful authority is guilty of the crime of escape
within Alaska criminal statutes.
A person on DOC probation parole is no longer in the care and custody of the
Department of Corrections. They must receive the approval from their
probation/parole officer for their residence, and are responsible for locating their
own residence.
While the Department supports the development of housing for persons who are
on probation or parole, and has stated its support for the mission and goals of
Haven House, Haven House would not be a “halfway house” or CRC. A women
15
http://www.correct.state.ak.us/commissioner
23
on probation or parole could choose to live at Haven House, just as she could
choose to live at any other residence in Juneau.
In short, Haven House is voluntary. A halfway house is involuntary. That is a clearcut,
enormous difference. It is the difference between liberty and incarceration. That is why Haven
House is not, and could not be, classified as a “halfway house” according to how that term is
used in the corrections field.
E. The record contains substantial evidence that Haven House is similar in general character to uses permitted in Category 1.610.
CBJ 49.20.320 provides:
Use not listed. After public notice and a hearing, the board may permit in any district
any use which is not specifically listed in the table of permissible uses but which is
determined to be of the same general character as those which are listed as permitted
in such district. Once such determination is made, the use will be deemed as listed in
the table of permissible uses. [emphasis added
The Planning Commission adopted the CDD Staff Report that Haven House was of the same
general character as Category 1.610. Category 1.600 in the Table of Permissible Uses is
“miscellaneous, rooms for rent situations. Category 1.610 is
Rooming, boarding houses, bed and breakfasts, single room occupancies with shared
facilities, and temporary residences. Owner or manager must live on site.
CBJ 49.80.120 defines “boardinghouse and rooming house” as “a dwelling in which more than
two bedrooms are used for commercial lodging provided by the owner or operator who lives on
side. The term ‘boardinghouse and rooming house’ includes houses offering bed and breakfast.”
Haven House believes it should have been permitted as a single family home or group home.
Haven House filed a notice of appeal of CDD’s actions but, as noted, is holding that appeal in
abeyance. The record of this appeal contains substantial evidence to support the Planning
Commission’s determination that Haven House is of the same general character as the uses in
Category 1.610. That evidence is the CDD Staff Report , the documentation relied on by CDD,
and any other evidence cited in the Planning Commission’s Opposition Brief.
VII. The record clearly contains substantial evidence that Haven House meets the provisions of CBJ 49.15.330(d)(5) to receive a conditional use permit.
CBJ 49.15.330(f) provides regarding a Conditional Use Permit:
24
(f) Commission determinations; standards. Even if the commission adopts
the director’s determinations pursuant to subsection (e) of this section, it may
nonetheless deny or condition the permit if it concludes, based upon its own
independent review of the information submitted at the hearing, that the
development will more probably than not:
(1) Materially endanger the public health or safety;
(2) Substantially decrease the value of or be out of harmony with property in
the neighboring area; or
(3) Lack general conformity with the comprehensive plan, thoroughfare plan,
or other officially adopted plans.
The Commission found that Haven House did none of those things. The record easily contains
“such relevant evidence as a reasonable mind might accept to support the [Planning
Commission’s] conclusion.”16
A. The record clearly has substantial evidence that Haven House will not materially endanger the public health or safety.
“Materially” means something like substantially. The ordinance did not want a project stopped
because it might affect public health and safety. A project can be stopped only if it would likely
“materially endanger” the public health or safety.”
The Planning Commission heard extensive public testimony on both sides of this issue at both
the Use Not Listed Hearing and the Condition Use Permit Hearing. After listening to the
testimony and evaluating the written record, the Planning Commission adopted the analysis and
findings in the CDD Staff Report that the project would not materially endanger public health
and safety. The record easily contains “such relevant evidence as a reasonable mind might
accept to support the conclusion” that Haven House will not materially endanger the public
health or safety.
The record actually shows that Haven House is likely to promote public health and safety, even
though that is not what Haven House had to prove to receive a permit. The first six months after
a woman (or a man) leaves prison is critical. If a woman lives at Haven House, she will have
safe, stable, structured, affordable housing and will be less likely to reoffend while living in that
type of environment.
Haven House will be probably be safer, more stable, more supportive, and more structured than
many other places where a woman released from prison might live. And with Haven House’s
cooperation with the Juneau Probation Department, Haven House will provide the opportunity
for the probation/parole officers to intervene more quickly if a resident starts to get in trouble.
Haven House also decreases the chances that a woman will reoffend after leaving Haven House
because the community at Haven House will help her develop a sober, recovery-oriented
lifestyle; will help her develop improved life skills; and will help her connect with employment
and longer-term stable housing.
16
Luper v. City of Wasilla, 215 P. 3d 342, 345 (Alaska 2009).
25
Haven House described the substantial evidence in the record that this type of housing decreases
the likelihood of its residents returning to prison in section IV A and B. This evidence clearly
outweighs evidence offered by the Appellants. Further, Appellants’ arguments on public health
and safety are invalid and are not based on “such relevant evidence as a reasonable mind might
accept to support the conclusion.” CDD contacted the Juneau Police Department and it had no
comments or concerns about Haven House. [R. 375].
1. Appellants’ evidence from halfway houses is not relevant to whether the residents of Haven House will material endanger the health and safety of a residential neighborhood.
Appellants submit articles and studies about “halfway houses” that report problems of escape
from halfway houses, drug uses at halfway houses and the lack of effectiveness of halfway
houses at decreasing recidivism. [R. 953 – 1154]. Besides assertions, this is the only “evidence”
that Appellants submit to show that the residents of Haven House should not be allowed to live
in a residential neighborhood. Appellants’ halfway house evidence is not relevant to whether the
residents of Haven House will material endanger the Tall Timbers neighborhood for two reasons.
First, Haven House is not a halfway house according to the standard corrections definition of
halfway house.17
A person living at a halfway house has not chosen to live there. A person
living at a halfway house has not been determined to be safe for release. A person living at a
halfway house is not legally free to leave a halfway house, which is why they can be charged
with the crime of escape. The residents of Haven House, and Haven House itself, are completely
different from halfway houses. The residents of Haven House have been carefully selected,
have chosen to life there, have chosen to participate in a program of recovery and reenty, and can
leave if they wish.
Before the Assembly relies on any of Appellants’ evidence regarding halfway houses,
Appellants must show that the “halfway houses” in any article or study they cite are homes
where the residents are not in State custody and are homes where the residents have voluntarily
chosen to live. Otherwise, this evidence is not relevant to evaluating Haven House.
Second, the halfway houses in the articles cited by Appellants are large correctional facilities.
Appellants submit a newspaper article, “More than half of offenders fail surprise drug tests at
Oklahoma City halfway house.” [R. 1134]. The Oklahoma authorities tested 153 offenders, so at
least that many were living there. [R. 1134]. Appellants submit an article describing dangerous
personse with no oversight escaping from the New Jersey halfway house system, “As Escapees
Stream Out, a Penal Business Thrives.” [R. 1140 – 1154]. New Jersey’s system “has about
3,5000 beds in two dozen or so halfway houses.” That is 145 residents per halfway house. One
contractor “runs six large facilities, with a total of 1,900 beds for state inmates and parolees,
along with others for county and federal inmates.” [R. 1146] That is 316 beds for state inmates
and parolees alone. One of the halfway houses was for a 1,200-bed facility in Newark! [R.
1151]! The article states,
17
Appendix B and section V (D) of this memorandum.
26
Many of these halfway houses are as big as prisons, with several hundred beds,
and bear little resemblance to the neighborhood halfway houses of the past, where
small groups of low-level offenders were sent to straight up. [R. 1141]
To compare these homes to a single home for up to nine women who are carefully selected and
fairly easily monitored is terribly misleading. No wonder some people do not want Haven House
in their neighborhood if they think it is a “halfway house” like the horror stories described in
this article.
Similarly, Appellant submits an article from the New York Times, “Pennsylvania Study Finds
Halfway Houses Don’t Reduce Recidivism” [R. 1000] and the Pennsylvania study itself [R. 953
– R. 97] This article does not show the horror stories described in the New Jersey system but
does state that halfway houses in Pennsylvania may not be reducing recidivism. Here, too, the
halfway houses are enormous when compared to Haven House. One company runs four halfway
houses in Pennsylvania with 780 beds, which is 195 per halfway house. [R. 1006] The New
York Times article said the Pennsylvania study looked at 38 privately-run and 14 state-run
halfway houses and the Pennsylvania system has 4500 beds, which means about 85 inmates per
halfway house. [R. 1006].
Appellants’ arguments are frustrating to Haven House. For the Neighborhood Association to be
telling the neighbors, the public and the CBJ that Haven House is like the New Jersey halfway
house system is terribly misleading. Haven House is different from any halfway house because
it is voluntary. Haven House is different from the halfway houses that Appellant shows are
either really bad (New Jersey) or ineffective (Pennsylvania) because of the characteristics that
describe the Haven House particularly: small; faith-based; residents must apply; careful
screening of participants; clear rules; development of a positive peer recovery culture; 18
modeled
after a successful small program in Anchorage that has been praised as a model in the faith
community to help women better their lives.
The Planning Commission’s decision to grant Haven Housea permit to operate – in all its
particularity -- is easily supported by “such evidence as a reasonable mindmight accept as
adequate to support a conclusion.”19
2. Appellant’s assertion that Haven House “would bring convicts to Juneau from other parts of Alaska” is not valid evidence to exclude Haven House from a residential neighborhood.
In response to the evidence that Haven House is safer than other places where these women
might live, Appellants argue that these women would not be here without Haven House.
Appellants assert, “The obvious fallacy in this is that Haven House would bring convicts to
Juneau from other parts of Alaska and specifically channel them into the Tall Timbers
neighborhood.”20
The record has substantial evidence that there are women who live in Juneau
18
The Program Director is in recovery and is a former offender. [R. 363 ] 19
Luper v. City of Wasilla, 215 P. 3d 342, 345 (Alaska 2009). 20
Appellants Opening Brief at 42.
27
now and who would benefit from Haven House. 21
Haven House does not need to “bring
convicts to Juneau” and “channel them into the Tall Timbers neighborhood.” To stay at Haven
House, a woman will have to get herself to Juneau and will have to want to live in Juneau.
Haven House believes that most programs in Juneau are available to people who live in Juneau.
Haven House is not aware that CBJ requires people to have lived here a certain length of time to
apply for any benefits or privileges.
It is true that Haven House has stated, “We also anticipate that some women exiting Hiland
Mountain Correctional Center near Anchorage that have strong ties to Juneau will want to settle
here.” [R. 691] Hiland Mountain CC is the only large prison for women in Alaska and it is where
women serving felony sentences from all over the State serve their sentence. The record has
statistics on the number of women released from custody in Alaska. [R. 551 – 553]. For
example, in 2011, of the 1691 women released from custody in Alaska, 1047 were released from
Hiland Mountain, only 51 from Lemon Creek Correctional Center [R. 553]
The record has heartfelt statements from three women who served time in Hiland Mountain, who
are in recovery, who are living productive lives in Juneau, and who feel something like Haven
House could have helped them [R. 555 – 557]. Two women identify themselves as lifelong
Juneau residents, except when they were incarcerated. [R. 555, 557] Without Haven House,
there will be women getting out of Hiland Mountain who want to return to Juneau. CBJ should
not be saying to people like them that the zoning ordinances mean that, if they return to Juneau
and want to participate in a residential program to assist their recovery and reentry, they are not
allowed to live in residential districts.
3. Appellants’ assertions that the women at Haven House will threaten the neighborhood are not valid evidence.
Finally, Appellants simply assert that children and the elderly will not be safe walking to school
in the presence of the women at Haven House.22
Appellant provide no evidence for this cruel
assertion. The reference to children is particularly disturbing because it paints all former
offenders as something like pedophiles. Haven House will not provide housing to any women
who are sex offenders, which is virtually a nonexistent category anyway.23
21
E.g. Statement of Brent Wilson, Juneau District Supervisor, Juneau Adult Probation Office (of 59
women living in Juneau on supervised probation/parole, he estimates that, for 20 of them, Haven House
would be a better living situation and 8 might be interested) [R.508]; Statement of Michael Pellerin,
Executive Director of Gastineau Human Services (“Gastineau Human Services has been serving
individuals re-entering the community from the prison system for many years, and we often see one of the
greatest hurdles to successful re-entry for women is an affordable home that is safe and supportive of their
unique needs.”) [R. 524]; Statement of Ann Lockhart Executive Director of Love INC (“[W]e see daily
evidence of the critical need for reentry programs for women. There are many single moms calling for
our assistance, who desperately need the support and guidance provided by transitional housing, such as
this.”) [R. 525] 22
Appellants Opening Brief at 41 – 42. 23
Eight out of 546 women in State custody in 2012 were convicted of offenses which require
registration as a sex offender. [R. 688]
28
To repeat: the women at Haven House are there voluntarily to participate in a program of
recovery and reentry into society. The record certainly has ample evidence to support the
Planning Commission’s determination that Haven House will not materially endanger the public
health and safety. As noted, the record actually has ample evidence that Haven House will
enhance public safety.
B. The record has substantial evidence that Haven House will not substantially decrease the value of the property in the neighboring area.
The record easily contains substantial evidence that supports the Planning Comnission’s
determination that Haven House will not likely substantially decrease the value of property in the
neighboring area: the CDD Staff Report [R. 369 – 379]; the statement of James Wakefield,
former President of Alaska Association of Realtors [R. 517]; the statement of John Shinholser,
President of the McShin Foundation, who has started over 60 recovery homes in other states [R.
514 – 516]; a review of literature by Habitat for Humanity [R. 698]; an empirical study of
supportive housing in New York City by the Furman Center for Real Estate and Urban Policy
[R. 698]; the testimony of Honey Bee Anderson before the Planning Commission in favor of the
project [R. 1307]; the conclusion of the CBJ Assessor with regard to a prior multifamily project];
and the conclusion of the CBJ Assessor with regard to this specific project [R. 376].
Although neighbors sometimes fear that this type of project will decrease property values, the
above evidence supports the Planning Commission’s conclusion that this is not likely to happen.
And, as with the public health and safety finding, Appellants must show that the Planning
Commission could not have reasonably concluded that the project would likely not substantially
decrease property values.
Further, to date, Haven House has improved the property [R 376 ], which was on the market for
13 months before it was bought in December 2014 to rent to Haven House. [R 1243] Haven
House is modeled after the New Hope Home in Anchorage and that home has had no adverse
interactions with the neighbors [R 512], which is further evidence that Haven House will not
decrease property values.
C. The record has substantial evidence that Haven House will not be out of harmony with property in the surrounding area.
This criteria is “substantially decrease the value or be out o harmony with the property in the
surrounding area,” not the property owners. CDD correctly interprets this as whether Haven
House fits with the physical characteristics and predominant uses of the property in the
neighborhood and concludes it is in harmony with the property in the surrounding area. [R. 376].
Haven House is a single family dwelling. It will have no unusual exterior signage. It is in
harmony with the uses of property in the surrounding area, which are predominantly singe family
dwellings. It will be a maximum of ten persons living together as a single housekeeping unit.
The prior family living at the property had 12 or 13 people, so the maximum number of Haven
House residents will be fewer than the prior family that was living in the same house [R. 358]..
This criterion does not require the Planning Commission to determine if Haven House is
supported by a majority of persons in the neighborhood and to reject the project, if it were. If the
