2. 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

3. 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

4. v
CBJ Code
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
Other Authorities
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

5. 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

6. 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).

7. 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)

8. 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

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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).

17. 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.

18. 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”).

19. 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.

20. 12
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).

21. 13
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).

22. 14
 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).

23. 15
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).

24. 16
 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”).

25. 17
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).

26. 18
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).

27. 19
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.

28. 20
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).

29. 21
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.”).

30. 22
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

31. 23
(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.

32. 24
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.

33. 25
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.”)

34. 26
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).

35. 27
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.

36. 28
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.

37. 29
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).

38. 30
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.

39. 31
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.”).

40. 32
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.