Brawner Building, Inc. v. Shehyn

• Decision Date: 23 February 1971
• Docket Number: No. 24268.,24268.
• Citation: 442 F.2d 847,143 US App. DC 125
• Parties: BRAWNER BUILDING, INC., et al. v. R. Roderick SHEHYN, Walter E. Washington, Commissioner, District of Columbia, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

143 US App. DC 125, 442 F.2d 847 (1971)

BRAWNER BUILDING, INC., et al. v. R. Roderick SHEHYN, Walter E. Washington, Commissioner, District of Columbia, et al., Appellants.

No. 24268.

United States Court of Appeals, District of Columbia Circuit.

Argued December 14, 1970.

Decided February 23, 1971.

Mr. David P. Sutton, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton, Assistant Corporation Counsel, were on the brief, for appellants.

Mr. George H. Clark, Washington, D. C., with whom Messrs. Whayne S. Quin and Bruce S. Mencher, Washington, D. C., were on the brief, for appellees.

Messr. Stephen J. Pollak and John A. Bleveans, Washington, D. C., filed a brief on behalf of Washington Lawyers' Committee for Civil Rights Under Law, as amicus curiae, urging reversal.

Before LEVENTHAL and WILKEY, Circuit Judges, and SMITH,^* Chief Judge, U. S. District Court for the District of Montana.

LEVENTHAL, Circuit Judge:

This case involves the application of the Zoning Regulations of the District of Columbia to a new and important program established by the District for the rehabilitation of prisoners. The District of Columbia Department of Corrections obtained a Certificate of Occupancy from the Bureau of Licenses and Inspections on December 16, 1969, authorizing the use of a residential building leased by the District Government at 2101 N Street, N.W., as a "Rooming House (Community Correctional Center for the Department of Corrections)." A community correctional center, also known as a halfway house, helps prisoners through the difficult and crucial period of reintegration into the community. This house will also be used for misdemeanants approved for work release programs, and for persons awaiting trial who have been approved for conditional release.

The plaintiffs, owners and operators of substantial rental property in close proximity to the proposed center, brought an action for a preliminary and permanent injunction barring the defendants from using the premises as a community correctional center. The District Court issued a temporary restraining order on December 16, 1969, a preliminary injunction on December 24, 1969, and a permanent injunction on March 25, 1970. On defendants' appeal we remand for further proceedings.

I. The Substantive Considerations and the District Court's Ruling

A. Position of District Officials

The District officials say that there is a rational basis for the administrative decision that a community correctional center possesses sufficient residential attributes to warrant its classification as a "rooming house" under the District of Columbia Zoning Regulations.

Residential Features of Center

The undisputed facts establish a number of residential features for the proposed occupancy. The Department planned no modifications in the structure or appearance of the building at 2101 N Street, N.W., which was residential before the Department leased it. Specifically there are to be no bars or additional locks. The building consists of three stories and a basement and is designed to accommodate forty individuals other than staff personnel. Each story contains ten rooms equipped with wash basins, beds, chairs, wardrobes and chests of drawers. The basement contains a television set and recreational equipment.

The center is to be staffed by an administrator, assistant administrator, administrative aide, secretary, six correctional counsellors, and three charge-of-quarters officers. Their office equipment is to be located on the ground floor. The staff and all residents will wear regular civilian attire.

Prospective residents of the center are to be carefully selected by the Department of Corrections on the basis of their rehabilitation potential. They will consist of individuals who have reached or who are nearing their parole eligibility dates, misdemeanants sentenced by the Court of General Sessions and considered good risks for a work-release program, and individuals released under the Bail Reform Act and awaiting trial. The average stay of a person at the center will be from three to four months in duration.

Upon arrival, a person is to be exposed to a three-day orientation program during which he is not permitted to leave the center except for meals. The new resident will be familiarized with what is expected of him, attempts will be made to place him in a job, and a savings account will be opened in his behalf. Once successful job placement is accomplished and the resident has been at the center for a period of two weeks, he will be permitted a day's furlough. After the third week, he will be allowed two days' furlough and ultimately will be permitted to remain overnight with his family. No meals are to be served at the center. Instead, residents will eat in the vicinity of their places of employment and will be expected to defray the expenses of their meals from their earnings. They will be taken to their places of employment by public transportation facilities and will be required personally to meet transportation expenses. Residents of the center additionally will be required to pay to the District of Columbia Government the sum of $2 daily for their lodging. Any remaining monies earned by the residents will be placed in their respective savings accounts for the support of their dependents.

Staff members will wear no uniforms and possess no weapons, and their authority to enforce discipline will be civilian rather than prison guard in character. A resident may leave the premises through the front door without use of keys. If he needs off-premises counselling or medical attention he will not be placed under security or restraint while proceeding to his destination. While the applicable center regulations state that a resident's "failure to return to the Center within one hour after scheduled time of return will be considered an escape," the matter would not customarily be placed in the hands of the police or FBI until informal, amicable attempts to effect an overdue resident's return have been exhausted by the staff.

While appellants' arguments in this case have emphasized the residential aspects of the center to support their argument for a rooming house certificate of occupancy, we are not unmindful that these residential attributes are a central aspect of the rehabilitative potential of the program. Studies have shown that "the period immediately following release from prison is most critical. It is during this period that all too many offenders get back into trouble as a result of an almost total lack of resources, guidance, employment and even food and shelter." S.Rep.No.613, 89th Cong., 1st Sess. 2 (1965).

The halfway house bridges the gap between institutionalized custody and private life in the community. The benefits for its residents and society are manifold: individuals can support their families by the earnings from their jobs while living at the center and thereby retain and gain self-respect; they can become contributing members of society while finishing their sentences; they can gain training and a means of demonstrating their employment ability, thus earning community acceptance; and they can reestablish and maintain contacts with their families and the realities of life in a residential setting. H. Perlman and T. Allington, The Tasks of Penology 187 (1969). The 1965 Prisoner Rehabilitation Act, 79 Stat. 675, specifically authorized such residential community treatment centers. 18 U.S.C. § 4082(f) (Supp. V 1965-69).

Pertinent zoning regulations

The District Court found that the proposed center was located in an R-5-B zone, described as "General Residence . . . Medium density" in the D.C. Zoning Regulations, § 2101.11 (1966).

While the litigation has not been structured in these terms we interject the observation that the Community Correctional Center in this case might well be permitted in an R-5 district whether or not it is characterized as a "rooming house." "The R-5 Districts are designed to permit a flexibility of design by permitting in a single district * * * all types of urban residential development. * * * These districts would also permit the construction of those institutional and semi-public buildings which would be compatible with adjoining residential uses and which are excluded from the more restrictive Residence Districts." Zoning Regulations, § 3105.1. Hence R-5 use is justified by a mere finding that the center is "compatible" with adjoining residential uses.

But the Department of Corrections applied for a "rooming house" certificate of occupancy because rooming houses are permitted as a matter of right not only in R-5 districts, but also in the more restrictive R-4 districts, where other centers are located.¹

"Rooming house" is defined in Section 1202 of the Zoning Regulations as "a building or part thereof other than a motel, hotel, or private club, which provides sleeping accommodations for three or more persons who are not members of the immediate family of the operator or manager, and such accommodations are not under the exclusive control of the occupants thereof."

Precedents supporting District's position

The District officials have brought cases to our attention that tend to support their position that the Center fits the Rooming House definition, at least to the extent that such a conclusion might not be unreasonable.

Although Beckman v. City of Grand Island² is not precisely in point, it certainly indicates that in zoning regulations, the term "boarding or rooming house" is not to be confined to its historic or conventional use when the regulations provide their own definition. The Supreme Court of Nebraska held that "boarding house" included a rehabilitation center or recovery house for alcoholics where room and board would be furnished. The regulations defined a boarding house as "a building, other...