iii

I. TABLE OF CONTENTS II. TABLE OF AUTHORITIES ............................................................................................... iv

III. AUTHORITIES PRIMARILY RELIED UPON .......................................................... vi

IV. RECORD PRIMARILY RELIEND UPON .................................................................. ix

V. JURISDICTIONAL STATEMENT .................................................................................... 1

VI. STATEMENT OF THE ISSUES .................................................................................... 1

VII. STATEMENT OF THE CASE ....................................................................................... 2

A. Haven House and its proposed transitional home ................................................................... 2

B. Procedural History ................................................................................................................... 5

1. Application and Director Decisions ................................................................................. 6

2. Appeals of Director Decision #2 ...................................................................................... 8

3. Board’s Unlisted Use Determination ............................................................................... 8

4. Commission’s Conditional Use Decision ........................................................................ 9

VIII. STANDARD OF REVIEW ............................................................................................ 10

IX. ARGUMENT .................................................................................................................. 11

A. The Board’s unlisted use decision complies with CBJ 49.20.320 as evaluated by CBJ 01.50.070....................................................................................................................................... 12

1. The Board determined transitional housing is of the same general character as category 1.610 uses, and it supported that decision with adequate written findings and substantial evidence. ................................................................................................................................ 13

2. Appellants provided the very evidence Appellants now claim is missing. .................... 17

3. Appellants’ severability analysis affirms their prior statements that the halfway house definition is unenforceable as applied to Haven House. ....................................................... 19

B. The Commission’s conditional use decision is supported by substantial evidence when it specifically considered public health and safety, property values, neighborhood harmony, and consistency with adopted plans. .................................................................................................... 21

1. Substantial evidence supports the Commission’s decision that transitional housing would not materially endanger the public health or safety. ................................................... 23

2. Substantial evidence supports the Commission’s decision that transitional housing would not substantially decrease the value of or be out of harmony with property in the neighboring area. ................................................................................................................... 28

3. Substantial evidence supports the Commission’s decision that transitional housing would be in general conformity with adopted CBJ plans. ..................................................... 30

X. CONCLUSION .................................................................................................................... 31

iv

II. TABLE OF AUTHORITIES

Cases Adamson v. Univ. of Alaska, 819 P.2d 886 (Alaska 1991) ............................................... 17, 20 Application of Volunteers of America, Inc., 749 P.2d 549 (OK 1988) ................................... 27 Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725 (9th Cir.

1999) ................................................................................................................................... 25 Bay Area Addiction Research And Treatment, Inc. v. City of Antioch, No. C 98-2651 SI,

2000 WL 33716782 (N.D. Cal. Mar. 16, 2000) ................................................................. 25 Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) ................................... 26 Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222 (Alaska 1997) ........................................... 11 City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) .................................... 12 City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995) ............................................... 26 City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802 (9th Cir. 1994) ...... 26 Commercial Fisheries Entry Comm'n, State of Alaska v. Baxter, 806 P.2d 1373 (Alaska

1991) ................................................................................................................................... 21 Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 136 (3d Cir. 2002) ........................ 15 Cornerstone Bible Church v. City of Hastings, 948 F.2d 464 (8th Cir. 1991) ....................... 12 Griswold v. City of Homer, 55 P.3d 64 (Alaska 2002) ........................................................... 10 In re Aiken Cnty., 725 F.3d 255, 259 (D.C. Cir. 2013) .......................................................... 16 J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir. 1983) .............................................. 12, 26, 27 Jamison v. Consol. Utilities, Inc., 576 P.2d 97 (Alaska 1978) ............................................... 17 Konstantinidis v. Chen, 626 F.2d 933 (D.C. Cir. 1980) ......................................................... 18 Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals, 904

P.2d 373 (Alaska 1995) ................................................................................................ 10, 13 Lindhag v. State, Dept. of Natural Resources, 123 P.3d 948 (Alaska 2005) ......................... 21 Luper v. City of Wasilla, 215 P.3d 342 (Alaska 2009) ..................................................... 10, 11 Milne v. Anderson, 576 P.2d 109 (Alaska 1978) .................................................................... 18 Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507 (1976) ............................... 27 Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996) .......................................... 26 Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008) ...................................... 26 Smith by Smith v. Marchant Enterprises, Inc., 791 P.2d 354 (Alaska 1990) ......................... 18 State Public Employee’s Retirement Board v. Cacioppo, 813 P.2d 679 (Alaska 1991) ........ 11 Swift v. Zoning Hearing Bd. of Abington Twp., 16 Pa. Cmwlth. 356 (1974) ......................... 12 THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330 (Pa. Commw. Ct. 2014) ........... 26 United States v. S. Mgmt. Corp., 955 F.2d 914 (4th Cir. 1992) ............................................. 26 United States v. Windsor, 133 S. Ct. 2675 (2013) .................................................................. 16 Wright v. State, 824 P.2d 718 (Alaska 1992) ......................................................................... 17

Statutes 42 U.S.C. 12102 ...................................................................................................................... 25 42 U.S.C. 12131 ...................................................................................................................... 25 42 U.S.C. 3601 ........................................................................................................................ 26 42 U.S.C. 3602 ........................................................................................................................ 26 A.S. 22.10.020 .......................................................................................................................... 1 A.S. 29.40.060 .......................................................................................................................... 1 A.S. 33.16.150 .......................................................................................................................... 3

v

CBJCode 2013 Comprehensive Plan ...................................................................................................... 30 CBJ 01.15.070................................................................................................................... 19, 20 CBJ 49.10.170......................................................................................................................... 13 CBJ 49.15.220......................................................................................................................... 13 CBJ 49.15.330.................................................................................................................. passim CBJ 49.20.320......................................................................................................... 1, 13, 17, 20 CBJ 49.25.300......................................................................................................................... 20 CBJ 49.25.300.1.100 .............................................................................................................. 14 CBJ 49.25.300.1.110 ........................................................................................................ 14, 20 CBJ 49.25.300.1.400 ........................................................................................................ 14, 20 CBJ 49.25.300.1.450 .............................................................................................................. 14 CBJ 49.25.300.1.520 .............................................................................................................. 19 CBJ 49.25.300.1.540 .............................................................................................................. 19 CBJ 49.25.300.1.610 ....................................................................................................... passim CBJ 49.25.300.5.100 .............................................................................................................. 19 CBJ 49.25.300.5.200 .............................................................................................................. 19 CBJ 49.25.300.5.400 .............................................................................................................. 19 CBJ 49.25.300.7.200 .............................................................................................................. 19 CBJ 49.25.300.7.400 .............................................................................................................. 14 CBJ 49.40................................................................................................................................ 23

Rules Civil Rule 11 ........................................................................................................................... 18 Rule of Appellate Procedure 601(b) ......................................................................................... 1

Treatises 2 Rathkopf’s The Law of Zoning and Planning § 23:26 (4th Ed.) .......................................... 26

OtherAuthorities Anchorage MC 21.05.010 ....................................................................................................... 12 City of Petersburg MC 19.04.580 ........................................................................................... 12 Homer MC 21.04.020 ............................................................................................................. 12 Presidential Auth. to Decline to Execute Unconstitutional Statutes, 18 U.S. Op. Off. Legal

Counsel 199 (1994) ............................................................................................................. 16 Seward MC 15.10.130 ............................................................................................................ 12 Soldotna MC 17.10.320 .......................................................................................................... 12

vi

III. AUTHORITIES PRIMARILY RELIED UPON

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. (Serial No. 92-36, § 2, 1992)

CBJ 49.20.320 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. (Serial No. 87-49, § 2, 1987)

CBJ 49.25.300, Table of Permissible Uses

Code Use description

RR D1 D3 D5 D10 SF

D10 D15 D18 LC GC MU MU2 WC WI I

1.110 Single Family

1 1 1 1 1 1 1 1 1 1 1 1 1 1 1

1.400 Group Homes

1 1 1 1 1 1 1 1 1 1

1.450 Halfway Houses

3 3 3 3 3

1.610

Rooming, boarding, bed and breakfasts, single room occupancies with shared facilities, and temporary residences. Owner or manager must live on site.

3 3 3 3 3 1,3 1,3 1,3 1,3 1,3 1 1 3N

7.400 Halfway Houses

3 3 3 3

7.500 Correctional Facilities

3 3 3 3 3 3 3 3 3 3 3 3 3

vii

Approval Type 1: Indicates the use requires Department approval.1

Approval Type 1,3: Indicates uses with minor developments require Department approval and uses with major developments require a conditional use permit from the Commission.2

Approval Type 3: Indicates the use requires a conditional use permit from the Commission.3

CBJ 49.15.330 (a, f-g), Conditional use permit.

(a) Purpose. A conditional use is a use that may or may not be appropriate in a particular zoning district according to the character, intensity, or size of that or surrounding uses. The conditional use permit procedure is intended to afford the commission the flexibility necessary to make determinations appropriate to individual sites. The commission may attach to the permit those conditions listed in subsection (g) of this section as well as any further conditions necessary to mitigate external adverse impacts. If the commission determines that these impacts cannot be satisfactorily overcome, the permit shall be denied. The procedures and standards established in this section shall also be applied to major subdivision preliminary plat approval pursuant to section 49.15.430.

***

(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.

(g) Specific conditions. The commission may alter the director's proposed permit conditions, impose its own, or both. Conditions may include one or more of the following:

(1) Development schedule. A reasonable time limit may be imposed on construction activity associated with the development, or any portion thereof, to minimize construction-related disruption to traffic and neighborhood, to ensure that

1 CBJ 49.25.300(b)(1). 2 CBJ 49.25.300(c). 3 CBJ 49.25.300(b)(3).

viii

development is not used or occupied prior to substantial completion of required public or quasi-public improvements, or to implement other requirements.

(2) Use. Use of the development may be restricted to that indicated in the application.

***

(8) Revocation of permits. The permit may be automatically revoked upon the occurrence of specified events. In such case, it shall be the sole responsibility of the owner to apply for a new permit. In other cases, any order revoking a permit shall state with particularity the grounds therefor and the requirements for reissuance. Compliance with such requirements shall be the sole criterion for reissuance.

***

(11) Sound. Conditions may be imposed to discourage production of more than 65 dBa at the property line during the day or 55 dBa at night.

(12) Traffic mitigation. Conditions may be imposed on development to mitigate existing or potential traffic problems on arterial or collector streets.

***

(14) Screening. The commission may require construction of fencing or plantings to screen the development or portions thereof from public view.

(15) Lot size or development size. Conditions may be imposed to limit lot size, the acreage to be developed or the total size of the development.

(16) Drainage. Conditions may be imposed to improve on and off-site drainage over and above the minimum requirements of this title.

(17) Lighting. Conditions may be imposed to control the type and extent of illumination.

(18) Other conditions. Such other conditions as may be reasonably necessary pursuant to the standards listed in subsection (f) of this section. (Serial No. 87-49, § 2, 1987; Serial No. 2006-15, § 2, 6-5-2006)

ix

IV. RECORD PRIMARILY RELIEND UPON

In consideration of the sheer size of the record for this appeal, the Board of Adjustment

and the Planning Commission primarily relied on the following pages of the record for this brief:

R. 933 1/24/14 Director’s Decision 1 R. 69-70 3/18/14 Director’s Decision 2 R. 199-206 7/31/14 Planning Commission Decision re standing Board of Adjustment Unlisted Use Determination R. 32-60 5/2/14 Haven House briefing re unlisted use R. 22-30 8/13/14 Unlisted use staff report R. 207-221 8/14/14 Law Department memo R. 256-262 8/20/14 Appellants briefing re unlisted use R. 355-368 8/21/14 Unlisted use minutes R. 353-354 8/26/14 Board of Adjustment Decision re unlisted use determination Planning Commission Conditional Use Permit R. 369-380 9/30/14 Conditional use staff report R. 399-427 5/2/14 Haven House briefing (this is the same as R. 32-60) R. 459-466 Haven House, house rules R. 598-633 10/1/14 Appellants briefing R. 1231-1234 10/1/14 Supplemental staff report R. 1248-1255 10/13/14 Appellants revised conditions re conditional use hearing R. 1300-1315 10/14/14 Conditional use hearing minutes R. 1296-1297 10/16/14 Planning Commission Decision re conditional use permit

1

V. JURISDICTIONAL STATEMENT

This is an appeal of a final decision by the City and Borough of Juneau (“CBJ”) Planning

Commission (“Commission”) approving the issuance of a conditional use permit for safe, sober,

and stable transitional housing for women released from prison (USE 2014-0008), which the

Board of Adjustment (“Board”) concluded was a use not listed (UNL2014-0001).

The Assembly has jurisdiction over the properly raised substantive issues within the

scope of the administrative appeal pursuant to CBJ 49.20.120 and CBJ 01.50.020.

To the extent the Appellants allege constitutional issues, the Assembly does not have

jurisdiction—siting in its quasi-judicial capacity—to determine if an ordinance is constitutional.4

However, the Assembly—siting in its legislative capacity—clearly has jurisdiction to amend an

ordinance.

VI. STATEMENT OF THE ISSUES

1. Use not listed. The use not listed provision in CBJ code, CBJ 49.20.320, like the use not listed provisions in other Alaska municipalities, gives the Board authority to determine how to regulate a hybrid land use. The Board received substantial public comments, legal briefing, and staff memorandums. Appellants even agreed that the halfway house definition was unenforceable against Haven House. The Board concluded the proposed use—transitional housing for women released from prison—was an unlisted use and of the same general character as those uses listed in CBJ 49.25.300.1.610. The Board also recommended that Title 49 be amended to include a definition and a specific subcategory in the Table of Permissible Uses for transitional housing in the D-5 zoning district with a conditional use permit. The issue is whether the Assembly should affirm the Board’s decision when its written decision is supported by adequate written findings and supported by substantial evidence consistent with CBJ 49.20.320.

2. Conditional use permit. The conditional use process provides the democratic forum for an applicant to present their proposal, for the public to comment, and for the Commission to mediate the different concerns. The decision whether a conditional use application satisfies the CBJ land use policies and ordinances is uniquely within the Commission’s sphere of expertise. The Commission properly applied CBJ 49.15.330 when it granted a conditional use permit to Haven House for transitional housing for women released from

4 See 12/16/14 Joint Stipulation of Issues on Appeal.

2

prison when it specifically considered public health and safety, property values, neighborhood harmony, and conformity with adopted plans. The issue is whether the Assembly should affirm the Commission’s decision when its written decision is supported by substantial evidence consistent with CBJ 49.15.330.

VII. STATEMENT OF THE CASE

The Commission issued a conditional use permit for Haven House’s safe, sober, and

stable transitional housing for women released from prison after finding transitional housing was

an unlisted use in Title 49. Despite the extensive public process and the reasoned decisions, the

Appellants adamantly want Haven House out of “their” backyards.5 Appellants premised their

opposition on the belief that residents of Haven House are cannibalistic rats6 or are deranged

people with uncontrolled mental illness.7 Those beliefs appear to serve as the foundation for this

appeal.

Despite Appellants’ beliefs, the record describes Haven House is an appropriate use on

Malissa Drive and should be allowed to provide safe, sober, and stable transitional housing for

women released from prison.

A. Haven House and its proposed transitional home

Haven House is a faith-based not for profit organization that applied to use an existing

house in a D-5 zone for transitional housing for women released from prison.8 Haven House fills

5 E.g., R. 360; R. 365 (area resident Roger McCoy describing that Haven House is a good idea but he thinks the Tall Timbers neighborhood is the wrong place).

6 R. 1307 (CUP minutes, the past attorney for the Appellants describing why occupancy should be limited to one person per bedroom, “it is like the experiment where they put too many rats in a cage and they kill each other.”)

7 R. 603; R. 1306 (“…Mr. Spitzfaden said that it appears that residents of Haven House will have substance abuse issues and mental health problems. That is the use that needs to be addressed, he said.”).

8 R. 1; R. 22; R. 24; R. 32.

3

the critical void in Juneau for formerly incarcerated women in need of housing.9 The concept of

Haven House is supported by national and local evidence that persons in supportive transitional

housing are less likely to reoffend.10

The residents of Haven House will be women who want to live in Juneau.11 Haven House

expects that most of the women will have lived in Juneau.12

Prior to being released from prison, each woman would be individually evaluated by the

Parole Board and if suitable for release, then assigned a parole officer.13 Consistent with A.S.

33.16.150, the parole officer would approve whether a woman could live at Haven House.14

The house, located at 3202 Malissa Drive, has six bedrooms and three bathrooms.15 No

more than nine women would be housed at any time in addition to a resident manager. Eight

residents will share four bedrooms, and one resident will have her own bedroom. The resident

manager will also have her own room and live on site.16

Although all of the residents may have a federally protected handicap or disability, seven

of the nine beds are specifically reserved for sober women in recovery from drug or alcohol

addiction.17 The Appellants even acknowledged the Fair Housing Act and the Americans with

9 R. 3-5; R. 1303; R. 44. 10 R. 32; R. 36-37. 11 R. 44. 12 R. 44. 13 R. 375. 14 R. 43-44; R. 42; R. 375. 15 R. 28; R. 22. 16 R. 1296; R. 43. 17 R. 173; R. 358.

4

Disabilities Act may affect this project.18 Despite the law, the Appellants premised their

opposition to the entire project on the unsupported and illegally discriminatory belief that people

recovering from substance abuse and mental illness problems are dangerous and should be

treated differently.19

If an applicant to Haven House completes the adjustment period, then the minimum

length of stay is six months.20 That six month minimum stay requirement was added in response

to neighborhood concerns, which will also benefit the residents of Haven House, despite the fact

that legislative personnel and summer workers in Juneau do not have the same minimum stay

requirement in residential neighborhoods.21 Transitional housing would be provided for up to

two years.22

In addition to the resident manager, program managers will work out of the house during

normal work hours.23

Haven House developed “house rules” that all residents must agree to follow in order to

maintain residency.24 The house rules determine resident eligibility requirements and establish

rules including: length of stay, visitor policy, curfews, absences from the house, and dismissal

18 R. 1248-1249. 19 E.g., R. 603 (“However, these alcohol and substance addicts, with the highest recidivism

rates, are the central focus of Haven House's operations.”); R. 1306 (“…Mr. Spitzfaden said that it appears that residents of Haven House will have substance abuse issues and mental health problems. That is the use that needs to be addressed, he said.”); R. 1307.

20 R. 45. 21 R. 45. 22 R. 45. 23 R. 42. 24 R. 7.

5

from the house.25 Each resident will create an individual action plan and will be required to meet

weekly with Haven House staff.26 No drugs or alcohol are allowed on the premises.27 Women

required to register on a state registry of sex offenders cannot be residents.28

The house rules, assigned chores, community support, and daily supervision, will

improve and keep the property on Malissa Drive well maintained.29

The location of the house in a residential neighborhood, the characteristics of the house,

and the house rules promotes Haven House’s purpose of being a positive supportive living

environment.30

B. Procedural History

Haven House applied to locate a transitional home in a residential neighborhood. The

Director of the Community Development Department (“Director”) issued preliminary decisions.

Haven House and the Appellants filed appeals. Haven House’s appeal has been continued

indefinitely. The Commission resolved the Appellant’s first appeal. The Board then determined,

8-0,31 Haven House’s proposed transitional home was an unlisted use and required a conditional

use permit to operate. The Appellants appealed, and the Assembly rejected the Appellants’

second appeal on ripeness grounds without prejudice to preserve Appellants’ right to appeal if

the Commission actually issued a conditional use permit. The Appellants never appealed that

25 R. 10; R. 39-41. 26 R. 8. 27 R. 10. 28 R. 42; R. 58. 29 R. 48; R. 52. 30 R. 38-39. 31 R. 1314.

6

decision to the judiciary. The Commission approved, 9-0,32 a conditional use permit to Haven

House for a safe, sober, and stable transitional housing for women released from prison.

Appellants commenced this appeal to challenge the Commission’s approval of the conditional

use permit, which is premised on the Board’s decision that transitional housing is an unlisted use

in Title 49.

1. Application and Director Decisions

On December 23, 2013, Haven House applied for a change of use permit from a single-

family use to a transitional group home use.33 A permit was not issued, but the application was

assigned the following number, BLD20130767.34

On January 24, 2014, the Director issued a decision (Director Decision #1).35 Director

Decision #1 stated that in a D-5 zone, group homes are allowed outright, but small halfway

houses are not generally permitted. Director Decision #1 concluded that “because operating a

halfway house is not a permitted use in this zoning district; Haven House cannot operate as

described in the business plan in this location.”36

On February 11, 2014, Haven House appealed Director Decision #1 and it was assigned

the following case number, APL2014-0001.37

On February 21, 2014, a neighborhood meeting was conducted by Haven House.38

32 R. 368. 33 R. 24. 34 R. 24; R. 1450. 35 R. 933 (DD #1) 36 R. 933 37 R. 24; R. 1445-1447. 38 R. 35.

7

On March 10, 2014, Haven House presented supplemental information and legal

argument to clarify and explain the proposed use and why it believed Director Decision #1 was

in error.39

On March 18, 2014, the Director issued a second decision (Director Decision #2).40

Director Decision #2 concluded, after receiving the supplemental information, the Title 49

provisions regarding halfway houses and group homes are likely unenforceable as applied to

Haven House.41 The Director concluded the proposed use was not a single-family residence

use.42 The Director also concluded that the proposed use is a use not listed, and it is or is most

similar to a boardinghouse and rooming house type of use (category 1.610).43 A boardinghouse

and rooming house is allowed in a D-5 zone pursuant to a conditional use permit. The Director

recommended that Haven House file applications for a use not listed determination and a

conditional use permit because, based on the project description, the most similar uses require a

conditional use permit according to the Table of Permissible Uses.44

On May 2, 2014, Haven House submitted applications for the unlisted use determination

and conditional use permit.45 The conditional use application was assigned case number

USE2014-0008.46

On May 27, 2014, a second neighborhood meeting was attended by at least 37 people.47

39 R. 24; R. 35; R. 1325-1356. 40 R. 69-70; R. 24. 41 R. 69. 42 R. 70. 43 R. 70. 44 R. 70. 45 R. 31 (UNL application); R. 381-82 (CUP application). 46 R. 381.

8

2. Appeals of Director Decision #2

On April 1, 2014, the Tall Timbers Neighborhood Association and a number of neighbors

(“Tall Timbers”) filed an appeal of Director Decision #2.48

On April 4, 2014, Haven House withdrew its appeal of Director Decision #1 and also

filed an appeal of Director Decision #2.49 The Presiding Officer granted Haven House’s request

that its second appeal be continued.50 That second appeal has not been withdrawn or dismissed.51

On July 22, 2014, the Commission considered whether Tall Timbers had standing to

appeal Director Decision #2.52 The Commission concluded that Tall Timbers was not an

aggrieved party and did not have standing.53 The Commission dismissed the Tall Timbers

appeal.54 The Commission further directed the Community Development Department (“CDD”)

staff to schedule the use not listed public hearing as soon as possible, before August 25, 2014, as

a courtesy to the Appellants.55

3. Board’s Unlisted Use Determination

On August 21, 2014, the Planning Commission, sitting as the Board of Adjustment, held

a public hearing and considered Haven House’s request for a similar use determination.56 The

Board decided that transitional housing for women released from prison is of the same general

47 R. 225-228. 48 R. 1369-1377; R. 24. 49 R. 1378-1384; R. 24. 50 R. 1599. 51 R. 201; See R. 33 at n. 1. 52 R. 199-206 (PC decision on aggrieved party) 53 R. 200. 54 R. 205. 55 R. 205 56 R. 353-54 (UNL decision).

9

character as uses listed in category 1.610, Miscellaneous Rooms for Rent and that Haven House

could apply for a conditional use permit to operate at Malissa Drive.57

Appellants filed an appeal of the Board decision with the Assembly.58

On September 29, 2014, the Assembly rejected Appellants’ appeal because the Assembly

concluded the matter was not ripe for review as a final permit decision had not been reached.59

4. Commission’s Conditional Use Decision

The Commission held a public hearing on October 14, 2014, for the conditional use

application.60 The hearing was noticed and the public was encouraged to participate. As evident

by the record, substantial public comments were received prior to and during the hearing.61 Three

formal presentations were made to the Commission: an overview by staff,62 Haven House’s

attorney presented its proposal,63 and the Appellants’ attorney was given the opportunity to

respond.64 Twenty-two other members of the public also commented, eleven for and eleven

against Haven House.65 Haven House was given a final opportunity to address public

comments.66 The Commission asked follow-up questions and deliberated.67 Ultimately, the

Commission voted 9-0 to approve the conditional use permit for safe, sober, and stable

57 R. 353. 58 R. 1715. 59 R. 1755; R. 1761. 60 R. 1298 61 R. 1-1762. 62 R. 1301 63 R. 1303 64 R. 1305 65 R. 1307. 66 R. 1309. 67 R. 1300-1315.

10

transitional housing for up to nine women released from prison.68 The Commission manifested

its decision with a written notice of decision and a complete record of the hearing was

preserved.69

The Appellants filed a timely appeal of the Commission’s decision, which was based on

the Board’s unlisted use decision.70

VIII. Standard of Review

Commission and Board decisions are given great deference: “review of zoning board

decisions is narrow, and board decisions are accorded a presumption of validity.”71 CBJ

01.50.070 provides the standard of review and burden of proof as follows:

(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.

68 R. 1312-1314. 69 R. 1296-97 (CUP Decision); R. 1-1762. 70 10/30/14 Notice of Appeal 71 Griswold v. City of Homer, 55 P.3d 64, 67 (Alaska 2002); Luper v. City of Wasilla, 215

P.3d 342 (Alaska 2009); Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals, 904 P.2d 373, 385 (Alaska 1995); S. Anchorage Concerned Coal., Inc. v. Coffey, 862 P.2d 168, 173 (Alaska 1993) (reversing a superior court and affirming the local government decisions regarding the issuance of a conditional use permit”).

11

Appellants have not alleged a procedural due process violation. Appellants only alleged

violations regarding substantial evidence and adequate written findings.72

As described by the Appellants, “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”73 The Assembly “does not

independently reweigh the evidence. Rather, the [Assembly] determines whether there is

substantial evidence, in light of the whole record, such that a reasonable mind might accept the

[agency’s] decision.”74 As described below, the Board’s and the Commission’s conclusions are

supported by adequate written findings and substantial evidence.

IX. Argument

“The country was built on the belief that each human being has limitless potential and worth. Everybody matters. We believe that even those who have struggled with a dark past can find

brighter days ahead. One way we act on that belief is by helping former prisoners who've paid for their crimes -- we help them build new lives as productive members of our society. . . The bill I'm signing today, the Second Chance Act of 2007, will build on work to help prisoners reclaim

their lives. In other words, it basically says: We're standing with you, not against you.”

President George W. Bush’s remarks on signing the Second Chance Act, April 9, 200875

72 Appellants Opening Brief at i-ii. 73 Luper v. City of Wasilla, 215 P.3d 342, 345 (Alaska 2009); Appellants Opening Brief at

14. 74 Appellants Opening Brief at 7 n. 1-2; CBJ 01.50.070(a)(1); State Public Employee’s

Retirement Board v. Cacioppo, 813 P.2d 679, 683 n.6 (Alaska 1991); Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222, 231 (Alaska 1997) (defining substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”); Griswold v. City of Homer, 55 P.3d 64, 67-68 (Alaska 2002) (affirming the planning commission’s approval of nonconforming uses because the commission’s decision was supported by substantial evidence and the claims of procedural error were meritless).

75 R. 104.

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A. The Board’s unlisted use decision complies with CBJ 49.20.320 as evaluated by CBJ 01.50.070.

The Director’s Decisions demonstrate the professional difficulties in finding the

appropriate Title 49 classification for Haven House’s proposed transitional housing use. The

unlisted use provision is a necessary tool in land use codes76 to address hybrid uses and to avoid

equal protection claims.77 The use not listed process provides the proper public forum and the

appropriate mechanism for the Board to review whether a hybrid use is similar to an enumerated

use without usurping the Assembly’s legislative power. When the Board concludes the use is an

unlisted use that is allowed, then the use is only allowed for the specific application before the

Board and the Commission, if a conditional use permit is required. In order for the use to be

permanently listed in the Table of Permissible Uses, the Assembly would be required to enact an

ordinance.78

76 AMC 21.05.010(C) (Anchorage unlisted use provision); CPMC 19.04.580 (City of Petersburg similar use provision); SMC 17.10.320 (Soldotna unlisted use provision); SMC 15.10.130 (Seward unlisted use provision); HMC 21.04.020 (Homer unlisted use provision).

77 E.g., City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 447-50 (1985) (concluding the proposed use—a home for the mentally retarded—was similarly situated to allowed uses and there was no rational reason for the differential treatment of the similarly situated uses under an equal protection analysis); J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir. 1983) (invalidating an ordinance that required a special use permit for housing of former mental patients when similarly situated housing would not require a special use permit but mentioning that parolees may be treated differently). See Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 471 (8th Cir. 1991) (stating that when similarly situated land uses are treated differently, the municipality must provide the rational basis for the apparent unequal treatment for the distinction to survive an equal protection challenge); Swift v. Zoning Hearing Bd. of Abington Twp., 16 Pa. Cmwlth. 356, 328 A.2d 901 (1974) (affirming a similar use determination that a halfway house was similar to a community center and, thus, allowed).

78 E.g., compare In re: Robertson, Board of Adjustment UNL2010-01 (Mar. 10, 2010) (concluding pet grooming was an unlisted use) with Ord. 2010-22 (July 19, 2010) (amending Title 49 to include pet grooming at 12.250); In re: salvage yards, Board of Adjustment UNL2013-01 (Sept. 26, 2013) (salvage yards are an unlisted use and similar to 11.130).

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As described by the Appellants, the use not listed provision of CBJ 49.20.320 employs

the “same general character” standard and gives the Board discretion whether to apply the use

not listed process. 79 CBJ 49.20.320 specifically states

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 with underlining)

CBJ 49.20.320 explicitly gives the Board authority to make similar use determinations, which

the Commission—siting as the Board—is uniquely suited to do because it makes all the

conditional use decision in the CBJ.80 “When a planning agency does, in fact, provide its

interpretation of an ordinance within its area of expertise, we will give that interpretation

considerable deference.”81

1. The Board determined transitional housing is of the same general character as category 1.610 uses, and it supported that decision with adequate written findings and substantial evidence.

The record demonstrates the Board was presented with the following evidence at the

unlisted use hearing:

79 Appellants Opening Brief at 40; R. 256 (Appellants describing “same general character” standard) & R. 261-62 (Appellants describing that the Board has discretion whether to invoke the authority described in CBJ 49.20.320).

80 CBJ 49.15.330 (describing that the Commission decides conditional use permits); CBJ 49.10.170 (e)(2) (describing that the Commission decides all major development permits); CBJ 49.15.220 (stating that a conditional use permit is a major development permit and the Director does not have authority to decide a major development permit).

81 Lazy Mountain Land Club v. Matanuska-Susitna Borough Bd. of Adjustment & Appeals, 904 P.2d 373, 385 (Alaska 1995).

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The Appellants, Haven House, and staff all asserted that transitional housing could not be a halfway house as defined in and applied through categories 1.450 and 7.400.82

Appellants asserted the Board should outright deny Haven House’s request for the unlisted use process.83

Haven House disagreed with Appellants’ and staff’s assertion that transitional housing is not a single family residence use, category 1.100.84

Appellants disagreed with staff’s assertion that transitional housing is of the same general character as category 1.610, miscellaneous rooms for rent, which includes: “rooming, boarding houses, bed and breakfasts, single room occupancies with shared facilities, and temporary residences. Owner or manager must live on site.”85

Appellants and staff asserted that transitional housing could not be a group home, category 1.400.86

Considering the record as a whole, the Assembly can also consider the evidence more

clearly offered at the conditional use permit hearing where Haven House described why

transitional housing was not a halfway house:

1. People that live in a halfway house are in the custody of the Department of Corrections. 2. They are ordered to live in a halfway house. 3. They would be in prison if they were not in a halfway house. 4. You are guilty of the crime of escape if you are absent without authority from a halfway house. 5. You receive credit for time served when living in a halfway house.87

Similar evidence was also submitted to the Board.88

82 CBJ 49.25.300.1.450 and CBJ 49.25.300.7.400; R. 258; R. 69-70; R. 356-357; R. 365. R. 207-221.

83 R. 256; R. 359. 84 CBJ 49.25.300.1.100; R. 25-26; R. 261-262; R. 69-70; R 358 85 CBJ 49.25.300.1.610; R 26-28; R. 258–261; R. 359-360; see R. 69-70. 86 CBJ 49.25.300.1.400; R. 258; R. 69-70; R. 356-357; R. 207-221. 87 R. 1304 (CUP minutes).

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The Board considered the staff report, the written comments, and the 34 oral comments

during its deliberations. The Board adopted the findings and analysis in the staff report when it

concluded transitional housing was of the same general character as category 1.610 uses, which

is summarized by the following:

The proposed use of re-entry, or transitional, housing for women coming out of prison does not exactly fit within any of our existing definitions or land use categories. Nonetheless, there are many similarities. The use is residential, in that the residents would be eating, sleeping and recreating there, and living together in a family setting. However, there will be on-site supervision, rules of conduct, ancillary services etc. Still, there may be impacts beyond those normally associated with uses permitted outright in the D-5 zoning district. Furthermore, the [sic] Latest Illustrated Book of Development Definitions recommends that similar transitional housing situations offering other services be treated as boarding houses, which in Juneau require a Conditional Use permit in the D-5 zoning district.89

In addition, the Board specifically commented during its deliberations as follows:

A number of people have bedrooms and share common space;90

There is a sense of transient occupancy that is a little different from a typical living situation;91

Residents of Haven House are not serving a sentence and would not fall under the halfway house definition;92

Transitional housing is not a listed use but it is of the same general character as those uses listed in category 1.610;93

88 E.g., R. 358 (UNL minutes); R. 142-143; R. 196 89 R. 353-354 incorporating R. 27 (staff report that included the definition of boarding and

rooming house at R. 26 “CBJ 49.80.120 defines…Boarding and rooming house - means a dwelling in which more than two bedrooms are used for commercial lodging provided by the owner or operator who lives on site. The term ‘boardinghouse and rooming house’ includes houses offering bed and breakfast”.).

90 R. 367 (Commissioner Voelkers). 91 R. 367 (Commissioner Voelkers). 92 R. 367 (Commissioner Miller). 93 R. 367-368 (Commissioners Jackson, Grewe, Watson, and Chair Satre).

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The characteristics of Haven House met all the elements of the rooming and boarding house definition except the transitional care element, which would categorize transitional housing as a separate category in 1.610;94

In summary, the record shows the Board’s conclusion that transitional housing was of the

same general character as those uses listed in category 1.610 was supported by adequate written

findings and substantial evidence.95 The record also shows the Board decided transitional

housing was not a halfway house by the very fact the Board concluded transitional housing is

most similar to category 1.610 uses. A detailed analysis of why the definition of halfway house

could not be applied to Haven House is located at R. 207-218, which was adopted by the Board

and is incorporated herein.96 The Board’s decision is entitled to considerable deference because it

was made specifically within its sphere of expertise, supported by adequate written findings, and

supported by substantial evidence.

94 R. 367 (Commissioner Haight). 95 E.g., Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 136-137 (3d Cir. 2002)

(describing that if a use is similarly situated to allowed uses and there is no rational distinction of external impacts between the proposed use and the allowed uses, then prohibiting the proposed would violate equal protection).

96 R. 353 (UNL Decision); R. 25 (staff report adopting and attaching the CBJ Law Dept. memorandum on enforceability of group home and halfway house provisions); R. 207-221 (CBJ Law Dept. memorandum).

If the executive branch of government believes a law is unconstitutional, the executive may disregard it. United States v. Windsor, 133 S. Ct. 2675, 2689 (2013) (discussing the effect when the President believes a statute to be unconstitutional) and at 2702 (C.J. Roberts dissenting) (describing that the executive could also chose not to enforce a statute that the executive believed was unconstitutional); In re Aiken Cnty., 725 F.3d 255, 259 (D.C. Cir. 2013) (“If the President has a constitutional objection to a statutory mandate or prohibition, the President may decline to follow the law unless and until a final Court order dictates otherwise.”); Presidential Auth. to Decline to Execute Unconstitutional Statutes, 18 U.S. Op. Off. Legal Counsel 199 (1994) (“there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional”).

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2. Appellants provided the very evidence Appellants now claim is missing.

Appellants’ arguments mislead the Assembly because in Appellants’ written briefing and

oral comments before the Board, the Appellants conceded that the halfway house definition was

unenforceable.97 Appellants own comments provide the very evidence—the substantial evidence

and written findings—the Appellants claim are now missing from the record.98

Before the Board, the Appellants acquiesced and conceded that the definitions of halfway

houses and group homes were unenforceable as applied to Haven House:

Previously, either the CDD or Haven House claimed that the proposed Haven House use is, or is like, either a halfway house, group home, rooming or boarding house, or single family dwelling. As set forth following, none of those uses is of the same general character as a permitted use listed in the Table Of Permissible Uses for the D-5 zone.

Halfway House, Group Home. The Director has determined that halfway house and group home are no longer valid uses, and hence are stricken from the table of permissible uses. Accordingly, those uses are no longer available as a listed, permitted use to which the Haven House use could be determined to be of the same general character.99 (emphasis added with underlining)

Appellants are referring to Director Decision #2 and possibly the August 14, 2014, CBJ Law

Department memorandum.100

Appellants cannot now claim the record lacks the very evidence proffered by the

Appellants. 101

97 R. 258; R. 359-360 (UNL minutes); R. 367 (Commissioner Miller comments); R. 368 (Chair Satre comments).

98 Appellants Opening Brief at 16-40. 99 R. 258. 100 R. 69-70; R. 207-221 (CBJ Law memorandum); R. 256-262 (Appellants memorandum).

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Appellants’ prior statements were knowingly and voluntary made in Appellants briefing

as submitted by their first attorney.102 Importantly, Appellants did not assert their prior

concession in the alternative: Appellants completely committed to the position that the halfway

houses category was unenforceable.103 Further, Appellants’ concession is further evidenced by

the Appellants’ focusing their arguments on the discretionary aspect of CBJ 49.20.320 and the

analysis of category 1.610 uses.104 Moreover, Haven House and the Board relied on the

Appellants’ concession when the Board also focused its analysis on category 1.610 uses.105 Thus,

Appellants’ present argument was knowingly waived and is completely inconsistent with

Appellants’ prior position.106 To allow Appellants to assert otherwise would be an

unconscionable evisceration of the Board’s proceedings and the Commission’s proceedings that

lead to granting Haven House the conditional use permit.

If the Appellants prosecuted this inconsistent position with the judiciary, Appellants

would likely be estopped. “Virtually all courts agree that equitable estoppel may be applied to

101 Jamison v. Consol. Utilities, Inc., 576 P.2d 97, 102 (Alaska 1978) (describing the doctrine of quasi-estoppel is a factual determination and “precludes a party from taking a position inconsistent with one he has previously taken where circumstances render assertion of the second position unconscionable.”); Wright v. State, 824 P.2d 718, 722 (Alaska 1992) (applying the quasi-estoppel doctrine to a claim that could have been pursued in an earlier proceeding); cf. Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991)(describing that even when a point is a cursory statement in the opening brief, the point is waived and not correctable in a reply brief.).

102 R. 262 (Appellants first attorney, Robert S. Spitzfaden signed and submitted the Appellants seven page brief to the Board).

103 R. 256-262. 104 R. 258-262; R. 359-360 (UNL minutes) 105 E.g., R. 367 (Commissioner Miller comments); R. 368 (Chair Satre comments); R. 1301

(CUP minutes); R. 1296 (CUP decision). 106 Milne v. Anderson, 576 P.2d 109, 112 (Alaska 1978) (describing the doctrine of waiver

and affirming a trial court’s conclusion that an appellant waived the right to assert a claim that was not raised earlier).

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preclude a party from contradicting testimony or pleadings successfully maintained in a prior

judicial proceeding.”107

Thus, Appellants cannot now claim the Board’s decision lacks substantial evidence or

inadequate findings why transitional housing is not a halfway house when the written record

clearly describes the Appellants presented briefing and oral comments that agreed with staff’s

conclusion: the halfway house definition is unenforceable as applied to Haven House.

3. Appellants’ severability analysis affirms their prior statements that the halfway house definition is unenforceable as applied to Haven House.

Appellants spend considerable space in their opening brief analyzing the severability

doctrine and proposing how to make the definition of halfway house enforceable.108 The very

fact Appellants made that argument demonstrates the unenforceability problems they conceded

to earlier.109

Consistent with all the parties’ positions before the Board—including the Appellants—

the Board and the Commission did not violate CBJ 01.15.070 when the Board concluded

transitional housing was an unlisted use and when the Commission properly imposed conditions

on the use permit. As described above, the Board concluded transitional housing is an unlisted

use that required a conditional use permit.110 The conditional use permit requirement is a

107 Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C. Cir. 1980), cited by Smith by Smith v. Marchant Enterprises, Inc., 791 P.2d 354, 356 (Alaska 1990) (describing that quasi estoppel protects the sanctity of the oath and it protects the integrity of the judicial process); Civil Rule 11 (describing that by presenting a signed brief to a court, especially by an attorney, the signature certifies the claims and legal contentions are warranted).

108 Appellants Opening Brief at 29-33. 109 R. 258; R. 359-360 (UNL minutes). 110 R. 353-354.

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common requirement for uses in a D-5 zone that may have external adverse impacts that justify

further process and conditions.111 Similarly, the Commission properly conditioned the issuance

of the permit to mitigate external adverse impacts.112

Had the Board concluded transitional housing was most similar to a group home or single

family uses, transitional housing would have been allowed as a matter of right, and the

Appellants would not have had the opportunity to request the Commission impose conditions.113

The Board did not do that.

In contrast, the Board and the Commission followed the regulatory structure and intent of

CBJ 49.20.320 (unlisted use determination), CBJ 49.25.300 (table of permissible uses), and CBJ

49.15.330 (conditional use review) by subjecting Haven House to the most intense and detailed

democratic review process imaginable. When the Commission conducted the fact specific

inquiry through its conditional use review, it determined Haven House’s proposed transitional

housing was an appropriate use that complied with the letter and spirit of the Comprehensive

Plan and Title 49.114 Thus, even if all the parties had not conceded the halfway house provisions

were unenforceable against Haven House, neither the Board nor the Commission violated CBJ

01.15.070.

111 CBJ 49.15.330 (a); R. 26; E.g., CBJ 49.25.300.7.200 (nursing care, assisted living, sheltered care); 1.540 (adult day care up to 12 people); 1.520 (child day care up to 12 people); 5.100 (schools); 5.200 (churches); 5.400 (social clubs).

112 R. 1296-97. 113 CBJ 49.25.300.1.110 & 1.400; R. 1248-1255. 114 R. 353-354 (incorporating the staff report at R. 22-30); R. 1296-1297 (incorporating the

staff report at R. 369-379).

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B. The Commission’s conditional use decision is supported by substantial evidence when it specifically considered public health and safety, property values, neighborhood harmony, and consistency with adopted plans.

The Appellants argue the Commission lacked substantial evidence despite the record

evidencing the Commission considered the concerns raised by the Appellants.115 Appellants do

not assert the Commission’s conditional use permit decision lacks adequate written findings or

resulted from a deprivation of procedural due process.116 Thus, the sole issue is whether the

Commission’s decision is supported by substantial evidence.

Appellants’ substantial evidence arguments are flawed and misconstrue the standard of

review. Appellants ask the Assembly to ignore the substantial evidence in the record because the

Appellants are frustrated that the Commission did not deny the conditional use permit based on

concerns raised by the Appellants.117 However, the Assembly’s review is limited to determining

whether the Commission had an evidentiary basis for approving the conditional use permit.

The substantial evidence standard enumerated at CBJ 01.50.070(a)(1) and articulated by

the Alaska Supreme Court, means that on appeal the Commission’s decision is given deference.

Alaska appellate courts have stated that “on review we will not reweigh conflicting evidence,

determine witness credibility, or evaluate competing inferences from testimony because those

functions are reserved to the board.”118 In applying the substantial evidence standard “even when

conflicting evidence exists, we uphold the Board’s decision if substantial evidence supports

115 Appellants Opening Brief at 40-48; E.g., R. 1300-1315. 116 Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991)(describing that even

when a point is a cursory statement in the opening brief, the point is waived and not correctable in a reply brief.).

117 E.g., Appellants Opening Brief at 40-48. 118 Lindhag v. State, Dept. of Natural Resources, 123 P.3d 948, 952 (Alaska 2005); Griswold

v. City of Homer, 55 P.3d 64, 67-68 (Alaska 2002) (defining substantial evidence as “what a reasonable mind might accept as adequate to support a conclusion.”).

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it.”119 Thus, the Assembly must defer to the Commission’s decision approving the conditional

use permit because the record contains substantial evidence.

Like the prior hearings in this case, the Commission held a public hearing that

demonstrated how nine volunteer citizens with diverse backgrounds and expertise in local land

use can mediate a divisive issue buttressed by people with strong emotions. The Commission

was scrupulously informed by the Appellants and Haven House with written comments and

extensive oral comments.120 The Appellants and Haven House were represented by counsel and

twenty-two people commented: eleven in support of Haven House and eleven in opposition.121

The Commission also received an extensive staff report.122 The Commission considered the staff

report, the comments and material submitted for and against Haven House, and reviewed the

conditional use application pursuant to CBJ 49.15.330.

CBJ 49.15.330 (f) specifically provides three criteria to evaluate whether a proposed use

would be an appropriate use with or without conditions:

(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;

119 Lindhag, 123 P.3d at 952; Commercial Fisheries Entry Comm'n, State of Alaska v. Baxter, 806 P.2d 1373, 1375 (Alaska 1991) (“It is well settled that substantial evidence to support an administrative agency's finding of fact may take the form of circumstantial evidence or indirect proof.”).

120 R. 598-633 (Appellant’s briefing). Page 36 is missing and should be at R 633a; R. 399-427 (Haven House briefing); R. 1300-1315 (oral comments and staff comments); R. 369-380 & 1231-1234 (staff report).

121 R. 1303-1307. 122 R. 369-596

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(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.

Consistent with CBJ 49.15.330 (f), the Commission approved the conditional use permit

with the following six conditions to protect public health and safety, address concerns regarding

property values and neighborhood harmony, and conformity with community plans:

1. Parking: Prohibit back out or stacked parking unless a variance is granted or adequate parking is provided.

2. Occupancy: The number of occupied bedrooms is limited to the number of on-site parking spaces provided unless a parking variance is granted or adequate parking is provided consistent with CBJ 49.40. Additionally, the maximum number of occupants is limited to nine residents and one manager.

3. Vegetative cover: A minimum of 1,800 square feet of live vegetative cover shall be maintained.

4. Lighting: If new lighting is proposed, it shall be designed, located, and installed to minimize offsite glare.

5. Accountability: A resident house manager will live on site. 6. Accountability: “In order to preserve public health, safety and ensure

neighborhood harmony, establish house rules following the guidelines and expectations established in the application [R. 461-465].”

Therefore, the Commission’s notice of decision as supplemented by the minutes provides the

substantial evidence—consistent with CBJ 49.15.330 (f)—to support the Commission’s decision

to grant the conditional use permit.

1. Substantial evidence supports the Commission’s decision that transitional housing would not materially endanger the public health or safety.

Appellants ask the Assembly to ignore the substantial evidence standard and ignore the

substantial evidence in the record.123 The Appellants’ entire public health and safety argument is

123 Appellants Opening Brief at 41-43.

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still premised on the irrational and unsupported premise that an astronomical number of Haven

House residents will be dangerous.124 As succinctly described during deliberations,

Chairman Satre said that he does not necessarily think this project is in the wrong place. There has not been substantial evidence presented to show that this would substantially endanger public health or safety, said Chairman Satre.125

The record demonstrates Chair Satre’s comment and the Commission’s decision are

supported by substantial evidence despite Appellants’ assertions. “The structures meet all zoning

requirements for height and setbacks and will meet all applicable building code requirements for

fire safety. Fire vehicle access to the property is via Malissa Drive. On-site parking is required

and back out parking” was conditioned by the Commission’s decision.126 In addition to the basic

safety concerns, the Commission also supported its decision after evaluating the proposed use.

Like the other category 1.610 uses that require an owner or manager to live on-site, the

Commission required Haven House to have a manager live on-site to provide accountability.127

The purpose of requiring a manager to live on site is to provide oversight of the operation and a

sense of safekeeping to the neighborhood.128 The record describes the on-site manager and

Haven Houses’ plan of operation will actually decrease the recidivism rate as compared to the

women released from prison already living in Juneau neighborhoods without supportive

124 Compare R. 600-607 (Appellants briefing before the Commission asserting that 70% of 1,000 residents of Haven House would be recidivists) with Appellants Opening Brief at 41-49 (arguing that 700 of the proposed residents of Haven House would become recidivists and would be dangerous).

125 R. 1314. 126 R. 372-375 (staff report); R. 1302 (CUP minutes). 127 R. 1296; cf. R. 359-360 (Appellants’ first attorney explaining the essential element of

category 1.610 uses is the requirement to have an owner or manager live on site.) 128 R. 375; R. 417-418; R. 1310.

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housing.129 The record also describes that Haven House is required to establish house rules

consistent with the material submitted in its application that impose resident responsibilities,

impose a curfew for visitors and residents, impose a visitor policy, and impose prohibitions on

possession of tobacco and alcohol.130 Haven House also self-prohibited sexual offenders from

being eligible as residents.131 In addition to the safe-guards imposed by Haven House132 and the

Commission, residents of Haven House will be individually evaluated by a parole board if being

released early, and any resident on probation or parole will be monitored by a parole or probation

officer.133 Thus, the substantial evidence in the record demonstrates the Commission took great

strides in ensuring Haven House’s transition housing would not materially endanger the public

health or safety.

To the extent the Appellants still ask the CBJ to regulate Haven House because of

Appellants’ irrational and unsupported fear of people in recovery from mental illness and drug

abuse,134 the CBJ is explicitly prohibited from doing so. For example, the Americans with

Disability Act prohibits discrimination based on recognized disabilities, and local governments

must provide reasonable accommodations, which has been interpreted to prohibit zoning

restrictions that treat people with a recognized disability differently than people without a

129 R. 1309 (Ms. McKeen commenting on public safety). 130 R. 461-465; R. 1302; R. 1312-1314 (Commission deliberation). 131 R. 1304; R. 375. 132 R. 1304-1305. 133 R. 375; R. 1303. 134 E.g., R. 1306 (“Judging from the recent paperwork that he has seen, Mr. Spitzfaden said

that it appears that residents of Haven House will have substance abuse issues and mental health problems. That is the use that needs to be addressed, he said. It is important that those problems of those individuals do not become the problems of the neighborhood, said Mr. Spitzfaden.”)

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recognized disability.135 Similarly, the Fair Housing Act prohibits discrimination based upon a

handicap or familial status.136 Specific to the context of zoning, the following qualifies as a

handicap or disability:

o Recovering alcoholics and recovering drug addicts137 o Past resident of mental institution138 o Physical or mental impairment, but current illegal use of a controlled substance is

not an impairment139

Thus, the Fair Housing Act and the Americans with Disability Act preempt local government

zoning restrictions that treat people recovering from mental illness or drug abuse differently than

people without.

Although those federal statutes preempt some zoning restrictions, local governments can

still impose zoning restrictions that are rationally based and do not discriminate against protected

135 42 U.S.C. 12102 et seq.; e.g., Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999) (remanding a denial of an injunction to prohibit a municipality from prohibiting methadone clinics to be located in residential areas by concluding the Americans with Disability Act and Recovery Act preempt some local land use controls) on remand Bay Area Addiction Research And Treatment, Inc. v. City of Antioch, No. C 98-2651 SI, 2000 WL 33716782 (N.D. Cal. Mar. 16, 2000) (enjoining the enforcement of a 500 foot buffer around residential zones for methadone clinics because people recovering from drug addiction are a protected class under 42 U.S.C. 12131-132).

136 42 U.S.C. 3601-3631; e.g., Oxford House-C v. City of St. Louis, 77 F.3d 249 (8th Cir. 1996) (concluding that an eight person limit per group home does not violate the Fair Housing Act).

137 City of Edmonds v. Washington State Bldg. Code Council, 18 F.3d 802, 803 (9th Cir. 1994) aff'd sub nom. City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995); United States v. S. Mgmt. Corp., 955 F.2d 914, 923 (4th Cir. 1992) (former drug addicts and recovering drug addicts are protected under the Fair Housing Act); THW Grp., LLC v. Zoning Bd. of Adjustment, 86 A.3d 330, 342 (Pa. Commw. Ct. 2014) appeal denied, 101 A.3d 788 (Pa. 2014) (concluding that where no evidence demonstrated that recovering heroin addicts were dangerous, a zoning ordinance could not treat methadone clinics differently than other medical clinics).

138 J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir. 1983). 139 42 U.S.C. 3602(h)(3).

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persons.140 As described below, formerly incarcerated persons—without more—are not a

protected class of persons, but regulation of formerly incarcerated persons cannot be supported

by irrational or unsupported supposition.141 In J.W. v. City of Tacoma, the Ninth Circuit Court of

Appeals invalidated an arbitrary zoning ordinance that denied a conditional use permit for a nine-

person group home for the formerly institutionalized.142 In a footnote, the J.W. court described:

Other groups of persons burdened by the Tacoma ordinance, such as parolees, may be situated significantly differently. Although the record before us in this case does not address the issue, it is conceivable that community fears concerning such groups may rest on a sound factual basis. But see Nicholson v. Connecticut Half-Way House, Inc., 153 Conn. 507, 218 A.2d 383, 385-86 (1976) (halfway house for parolees would not be enjoined as nuisance where fears of community residents, although genuinely felt, rested completely on supposition). Each group must, of course, be considered in light of its own peculiar circumstances.143

The Commission’s decision complies with J.W. because even though some of the Haven

House residents may fall within a protected class, the Commission conducted a detailed inquiry

140 Bd. of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 367 (2001) (“the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational.”); Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008) (non-discriminatory zoning regulations can prohibit people protected by the Fair Housing Act on the basis that the tenancy is too short for a single family residential district); 2 Rathkopf’s The Law of Zoning and Planning § 23:26 (4th Ed.) (describing that the placement of group homes in residential districts present complex issues and court typically balance the interests of the neighbors, the benefits from locating group homes in residential areas, and any government interests).

141 S. Anchorage Concerned Coal., Inc. v. Coffey, 862 P.2d 168, 172 n.11 (Alaska 1993) (“Zoning should not be allowed or disallowed on the basis of a plebiscite of the neighborhood, although evidence submitted by persons living in the neighborhood who would be most familiar with it and the conditions therein may be considered.”); J.W. v. City of Tacoma, 720 F.2d 1126, 1129 n. 2 (9th Cir. 1983); Application of Volunteers of America, Inc., 749 P.2d 549, 552 (OK 1988) (perceptions of a pre-release prison halfway house cannot be used to deny a use permit).

142 J.W. v. City of Tacoma, 720 F.2d 1126 (9th Cir. 1983). 143 J.W., 720 F.2d at 1120 n. 2.

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and based its decision on the peculiar circumstances: Haven House’s proposed operation, the

proposed residents, the location on Malissa Dr., and the neighbors’ comments.

In summary, the Commission did exactly what it was required to do by CBJ 49.15.330

and imposed conditions consistent with federal and state law. The record describes that the

Commission specifically confronted the public health and safety issue. Importantly, the

Commission heard evidence that “These women will be under more scrutiny in Haven House

than they would be living in a regular household.”144 Therefore, substantial evidence supports the

Commission’s decision that the Haven House’s transitional home—as conditioned—will not

materially endanger the public health or safety.

2. Substantial evidence supports the Commission’s decision that transitional housing would not substantially decrease the value of or be out of harmony with property in the neighboring area.

Appellants ask the Assembly to reweigh the evidence considered by the Commission

regarding property values and neighborhood harmony.145

Probation and Parole Officer Dumont succinctly addressed the Appellants fear based

opposition to Haven House:

Probation and parole officer Dusty Dumont said that she supports Haven House. She said she understands the fear of the surrounding residents in the area and that it stems from ignorance and unawareness of the project. She said that she doesn’t know of a neighborhood in Juneau that doesn’t have crime. She said that none of us can pick our neighbors. Jailing is not the way to treat addiction, she said. Re-entry from prison into the community is a critical time, she said. Haven House is offering a structure that these women definitely need, said Ms. Dumont.146

144 R. 1310. 145 Appellants Opening Brief at 43-47. 146 R. 364.

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In addition to Officer Dumont’s comments, the record demonstrates the Commission’s

decision was supported by substantial evidence because (1) the physical appearance of the

property has been improved since Haven House obtained the property;147 (2) the property will

continue to look like the other single family residences in the neighborhood;148 (3) the

Commission heard evidence from various people that property values would not substantially

decrease and may actually increase in the neighboring area;149 and (4) the Commission imposed

conditions—especially condition #6—that mitigate off-site impacts as requested by the

Appellants.150

During the public hearings, Commissioners expressed gratitude for neighbors opposed to

Haven House for speaking out, but Commissioners also expressed concern that some neighbors

may make residents of Haven House uncomfortable. For example, Commissioner Jackson

described that “he felt the key to success of these homes was being a good neighbor in the part of

both sides.”151 Similarly, Commissioner Watson “expressed some concern about protection of

the future residents of Haven House from potential hostility of the neighbors. It takes

neighborhood harmony on both sides.”

147 R. 376; R. 1302 148 R. 376; R. 1302 149 R. 366; R. 596; R. 376; R. 1302; R. 1304; R. 417-420; 150 R. 1296-1297; R. 376; R. 1306 (Appellants’ first attorney stating that it is the job of the

Commission to impose conditions that maintain the harmony of the neighborhood); R. 1312-1314 (Commission deliberations).

151 R. 367; R. 367 (Commissioner Peters encouraged the neighbors to share their knowledge of the neighborhood and open their hearts and homes to any new residents).

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Thus, the record demonstrates Commission’s decision is supported by substantial

evidence because it specifically addressed public health and safety.152

3. Substantial evidence supports the Commission’s decision that transitional housing would be in general conformity with adopted CBJ plans.

Appellants Opening Brief failed to provide citations to any adopted CBJ plans that

demonstrate how the Commission erred.153 The record describes the contrary.

The record demonstrates the Commission’s decision was supported by substantial

evidence because it considered the following Comprehensive Plan polices:

Policy 4.1: To facilitate the provision and maintenance of safe, sanitary and affordable housing for CBJ residents.

Policy 4.2: To facilitate the provision of an adequate supply of various housing types and sizes to accommodate present and future housing needs for all economic groups.

Policy 4.4: To facilitate the preservation and rehabilitation of existing housing, particularly housing affordable to low-moderate income residents.

Policy 4.6: To facilitate and assist in the development of affordable housing.

Policy 13.3 To promote quality medical and social services in the CBJ to ensure the safety, health, well-being and self-sufficiency of its residents. 154

As acknowledged by the Appellants, the Commission also considered concerns regarding

walking routes of kids.155 As described in the record, Appellants have not identified how the

152 Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (stating that under the substantial evidence standard, courts “do not evaluate the strength of the evidence, but merely note its presence.”).

153 Appellants Opening Brief at 47-48. 154 R. 376-77; R. 422-424.

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residents of Haven House are dangerous or how the residents of Haven House are more

dangerous than other people released from prison that already live in the community.156 As

described in the previous section, the Commission’s decision that Haven House would not

substantially endanger the public health or safety is supported by substantial evidence.

Again, the record demonstrates Commission’s decision to grant the conditional use

permit is supported by substantial evidence because it is in general conformity with adopted

plans.157

X. CONCLUSION

This case demonstrates how nine volunteer citizens can mediate a transitional housing

proposal that divided a neighborhood.

Although the Appellants appealed both the Board’s unlisted use decision and the

Commission’s conditional use decision, the Board’s decision is the focal point in this appeal.

The Appellants ask the Assembly to ignore the Appellant’s prior concession—that the

halfway house definition could not be applied to Haven House—because the Board

concluded transitional housing was an unlisted use and could operate with a conditional use

permit. Appellants’ prior litigation strategy failed. The Appellants now want a second bite of

the apple that they threw away when they were before the Board.

155 Appellants Opening Brief at 47; E.g., R. 1310 (Ms. McKeen responding to Commissioner Miller’s walking concerns); R. 1313 (Commissioners Miller and Grewe discussing walking concerns).

156 E.g., R. 364; R. 1310; R. 1313; 157 Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska 1992) (stating that under

the substantial evidence standard, courts “do not evaluate the strength of the evidence, but merely note its presence.”).

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The Assembly has options. First, the Assembly can affirm because record contains

adequate written findings and substantial evidence to support the Board’s unlisted use

determination that transitional housing is of the same general character as those uses listed in

category 1.610. Second, the Assembly can also affirm because all the parties asserted the

halfway house definition was unenforceable and the record at 207-218 contains the analysis

supporting that conclusion. Third, the Appellants Opening Brief concedes the halfway house

definition—as currently written and applied through the Table of Permissible Uses—is

flawed and needs to be amended. The Board reached a similar conclusion and recommended

the Assembly amend Title 49 to include transitional housing. Therefore, the Assembly

should deny this appeal and then consider amending Title 49 to add transitional housing. A

legislative fix would likely moot any subsequent judicial and administrative appeals.