HomeMy WebLinkAboutTC Min 2007-02-07
TOWN COUNCIL
MINUTES
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CALL TO ORDER
Mayor Gram called the regular meeting of the Tiburon Town Council to order at 7:04 p.m.
on Wednesday, February 7, 2007, at the Reed School Multi-purpose Room at 1199 Tiburon
Boulevard, Tiburon, California.
ROLL CALL
PRESENT: COUNCILMEMBERS:
Berger, Fredericks, Gram., Slavitz, Smith
PRESENT: EX OFFICIO:
Town Manager Curran, Town Attorney Danforth,
Director of Community Development Anderson,
Planning Manager Watrous, Planning Consultant
Lisa Newman, Town Clerk Crane Iacopi
ORAL COMMUNICATIONS
None.
CONSENT CALENDAR
1. Town Council Minutes - January 17, 2007
2. Town Attorney Employment Agreement - Adopt Second Amendment to Agreement and
Authorize Budget Amendment (Town Manager Peggy Curran)
MOTION:
Moved:
Vote:
To adopt Consent Calendar Item Nos. 1 and 2, as written.
Slavitz, Berger
AYES: Unanimous
PUBLIC HEARING
3. Appeals of Planning Commission Decisions to Certify the Environmental Impact
Report and to Deny the Conditional Use Permit Application for Expansion of an
Existing Religious Facility and Day School - Report by Director of Community
Development Scott Anderson and Planning Consultant Lisa Newman
Address: 215 Blackfield Drive
Assessor Parcel No.: 038-351-34
Applicant/Appellant: Congregation Kol Shofar ("CKS")
Appellant: Tiburon Neighborhood Coalition ("TNC")
Town Council Minutes #03 -2007
February 7,2007
Page J
Actions for Council Consideration:
a) Adopt Resolution Denying CKS appeal of Environmental Impact Report (EIR)
Certification '
b) Adopt Resolution Denying TNC appeal of Environmental Impact Report (EIR)
Certification
c) Adopt Resolution Certifying the Environmental Impact Report (EIR) for the
project
d) Adopt Resolution Making California Environmental Quality Act (CEQA)
Findings of Fact
e) Adopt Resolution Partially Granting the CKS appeal of the Conditional Use
Permit (CUP) denial, approving a Conditional Use Permit, and adopting a
Mitigation Monitoring Program
The hearing was transcribed by Diane M Gallagher, RP R, of American Reporting Services,
LLC.
ADJOURNMENT
The Council moved to close the public hearing and hear the final speakers at its February 21,
2007 regular meeting. Mayor Gram adjourne e mee . at 11 :05 p.m.
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DIANE CRANE IACOPI, TOWN CLERK
On March 7, 2007, the Town Council adopted the transcript of the hearing as reported by Diane
M Gallagher, CSR., American Reporting Services, LLC. Copies of the transcript are available
at Town Hall.
Also adopted were the corrections of Dan Watrous, Planning Manager (attached).
Town Council Minutes #03 -2007
February 7, 2007
Page 2
~ ~A~: ~ ~oo~ ~
February 7,2007 Town Council Minutes-
Corrections submitted by Planning Manager Dan Watrous:
TOWN CLERK
TOWN OF T~BURON
p. 7 , line 14
p. 7, line 15
p. 7, line 16
p. 20, line 8
p. 25, line 1
p. 26, line 13
p. 35, line 7
p. 36, lines 10 & 16
p. 42, line 21
p. 62, line 1
p. 62, line 4
p. 65, line 11
p. 67, line 22
p. 110, line 3
p. 114, line 9
p. 118, line 3
p. 124, line 22
p. 125, line 19 & 24
p. 131, line 14 & 16
p. 135, line 23
p. 136, line 17
p. 140, line 12
p. 140, line 15
pole = pull
take = talk
add apostrophe to attorney's
one-page = one page
add period after 6:00.
maybe = may be
week night = weeknight
tiddish = Kiddush
map = match up
director = Director
UP = CUP
TMC = TNC
100 and first = 101 st
Rayful = Raful
show = shul or schul
Channel = Old Landing
Belaire = Bel Aire
Belaire = Bel Aire
quorum/porum = Purim
Mitten = Midden
add "know" between "don't" and "where"
Reverand = Reverend
Marisol = Mirasol
l~OWN COUNCIL
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PROCEEDINGS - 2/7/07
STATE OF CALIFORNIA
TOWN OF TIBURON
TIBURON TOWN COUNCIL MEETING )
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In re: )
CONGREGATION KOL SHOFAR, . )
Applicant! Appellant)
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TIBURON NEIGHBORHOOD COALITION, )
Appellant. )
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MEETINGIPUBLIC HEARING
Tiburon, California
Wednesday, February 7, 2007
Reported by:
DIANE M. GALLAGHER, RPR
CSR No. Michigan 2191
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STATE OF CALIFORNIA
TOWN OF TIBURON
TIBURON TOWN COUNCIL MEETING )
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In re: )
6 CONGREGATIONKOLSHOF~ )
Applicant/Appellant)
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TIBURON NEIGHBORHOOD COALITION, )
Appellant. )
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Pr~gs taken in the above matter at
the Reed Elementary School, Multi-Purpose Room,
1199 Tiburon Boulevard, Tiburon, California, 13
beginning at 7:04 p..m., and ending at 11:05 p.m. 14
on Wednesday, February 7, 2007, before DIANE M. 15
GALLAGHER, Certified Shorthand Reporter, Michigan 16
No. 2191. 17
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PRESENT:
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3 TIBURON TOWN COUNCIL
4 THOMAS GRAM, Mayor
5 JEFF SLAVITZ, Vice Chair
6 ALICE FREDERICKS, Councilmember
7 MILES BERGER, Councilmember
8 PAUL SMITH, Councilmember
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10 PEGGY CURAN, Town Manager
11 ANN DANFORTH, Town Attorney
12 SCOTI ANDERSON, Director of Community Development
13 LISA NEWMAN, Planning Commissioner
14 DANIELM. WATROUS, Planning Manager
15 DIANE CRANE IACOPI, CMC, Town Clerk
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2 (pages 2 to 5)
APPEARANCES:
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3 For Applicant/Appellant Congregation Kol Shofar:
4 RAGGHIANTI FREITASLLP
BY: GARY T. RAGGHIANTI
Attorney at Law
874 Fourth Street, Suite D
San Rafael, CA 94901-3246
415-453-9433
gtraggs@rflawllp.com
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9 For Appellant Tiburon Neighborhood Coalition:
1 0 LAW OFFICES OF STEPHAN C. VOLKER
BY: STEPHAN C. VOLKER
Attorney at Law
436 14th Street, Suite 1300
Oakland, CA 94612
510-496-0600
s volker@volkerlaw.com
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INDEX
PRESENTATION
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4 Applicant! Appellant Congregation Kol Shofar
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Appellant Tiburon Neighborhood Coalition
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7 Public Comment
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PROCEEDINGS - 2/7/07
1 Tiburon, California - Wednesday, February 7, 2007
2 7:04 p.m. - 11 :05 p.m.
3 RECORD
4 MA YOR GRAM: Let me remind you we will be using
5 speaker cards tonight. They are over to my right, your
6 left, and' as people come in, and I expect they will be
7 late tonight, they can go over and get a speaker card.
8 Excuse me, speaker cards are in the back. You will
9 deliver them to Diane or to Dan. He's at the end of the
10 table.
11 If you will take your seats, we will start the
12 meeting.
13 Okay. The Council has been in closed session
14 previous to this, and no action was taken. The regular
15 meeting will now commence.
16 Would you call the roll, please?
17 MS. IACOPI: Yes, Mr. Mayor. Councilmember
18 Fredericks?
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COUNCILMEMBER FREDERICKS: Here.
MS. IACOPI: Councilmember Smith?
COUNCILMEMBER SMITH: Here.
MS. IACOPI: Councilmember Berger?
COUNCILMEMBER BERGER: Here.
MS. IACOPI: Vice Mayor Slavitz?
VICE MAYOR SLA VITZ: Here.
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MS. IACOPI: Mayor Gram?
MAYOR GRAM: Here.
MS.IACOPI: Let the record reflect all are
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4 pres~nt.
5 MA YOR GRAM: This is the point in the meeting
6 where we ask if anyone in the audience wants to speak to
7 an item that's not on the agenda. We would discourage
8 you not to do that tonight and save it to the next
9 meeting; but if there's anyone who made the trip here,
10 please raise your hand. Seeing no one, we will
11 continue.
12 Let's go quickly to the consent calendar. We
13 have two items on there. Is there anyone on the Council
14 want to pole either one of them? Anyone in the audience
15 want to take about the minutes of our last meeting or
16 the attorneys employment contract? Seeing none, is
17 there a motion?
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VICE MA YOR SLA VITZ: So moved.
COUNCILMEMBER BERGER: Second.
MA YOR GRAM: All in favor.
(Ayes unanimous.)
MA YOR GRAM: Okay. The main item on the
agenda, then, is Appeals of Planning Commission
decisions to certify the Environmental Impact Report and
to deny the conditional use permit application for
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I expansion of an existing religious facility and day
2 school - Report by Director of Community Development
3 Scott Anderson and Planning Consultant Lisa Newman.
4 In other words, this is the Kol Shofar hearing.
5 Again, any of you late comers, there are
6 speaker cards in the. back. Put your name on them and
7 give them to Dan, who is at the end of the table there.
8 Let me proceed with presentation of the
9 resolutions prepared for consideration this evening by
10 talking about where we have been.
11 As I think most of you know, the Planning
12 Commission held three meetings on Kol Shofar's
13 application, and at the end of May of '06 voted four to
14 one to deny the application after Kol Shofar indicated
15 its refusal to discuss further indication regarding
16 compromises in the project and requested an up-or-down
17 vote on the project and that as we all know brought it
18 to the Town Council.
19 This is the third hearing before the Council.
20 The first was held on October 24th, at which time we
21 took public comment.
22 The second was held on November 15th, at which
23 time the Council heard the presentation and
24 recommendations of the Council's subcommittee.
25 The Council then considered the public
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1 comments, staff recommendations, and the recommendations
2 of the subcommittee, and voted to accept the
3 recommendations with some modifications and requested
4 that staff bring back the resolutions incorporating the
5 Council's decisions.
6 It's been a long time between meetings, from
7 November 15th to February 7th, but we encountered
8 Thanksgiving, we encountered the Christmas holidays and
9 we encountered vacations by the attorneys for the two
10 sides, and we agreed to accommodate them so they could
11 both be fully represented here tonight.
12 In addition, the resolutions are complex, took
13 a lot of time to prepare.
14 What have we been doing since the November
15 meeting, staff and our subcommittee have spent many
16 hours working and reworking the resolutions to
17 accommodate arguments of each side, and the position
18 papers that we have received from each side.
19 We have tried to meet with both sides the end
20 of last week to discuss ongoing changes we have made,
21 but the neighbors refused to meet with us on the advice
22 of their counsel.
23 We did meet with the Kol Shofar
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representatives.
So we are here tonight to consider the
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1 resolutions. There are five. 1 The fourth will be making and adopting the CEQA
2 We will receive public comment on the proposed 2 findings of fact; and the fifth will be partially
3 resolutions and then to hear Council's comments and then 3 granting the Kol Shofar appeal of the CUP denial,
4 to vote. 4 conditionally approving the CUP, and adopting the
5 If there are.changes in the wording of the 5 Mitigation Monitoring Plan.
6 resolutions, the final versions may have to come back at 6 The key resolution is the fifth resolution, is
7 the next Council meeting on February 21 st, but we are 7 the one we will be looking for comments on tonight.
8 going to get through almost all of the work tonight. 8 The procedure we will follow is as follows:
9 I will say that for those of you who are 9 The Kol Shofar item will be introduced by the
10 keeping score, since the November 5th hearing we have 10 subcommittee. The staff report is being waived tonight,
11 been threatened with litigation, I was going to sayan 11 and Paul Smith will present the final resolution as
12 equal number of times by both sides; but based upon the 12 prepared by staff and the subcommittee.
13 e-mails we got the last day or so from Kol Shofar, they 13 The subcommittee and staff will respond to
14 are well ahead. 14 questions from the Council.
15 As I tried to make clear at our last meeting, 15 Kol Shofar will present first and will be
16 the subcommittee and Council tried to take into account 16 allowed up to 30 minutes. Less would be appreciated.
17 the interests and concerns of both sides. 17 The Tiburon Neighborhood Coalition will present
18 Taking into account the dictates of Tiburon's 18 next and will be allotted up to 30 minutes.
19 ordinances and those of RLUIP A, the Religious Land Use 19 Members of the public will then be allowed to
20 and Institutionalized Persons Act, and I'll repeat that, 20 address the Council for up to three minutes each.
21 those ofRLUIPA, which is federal law and supersedes 21 Speaker cards will be used, as I have said. Again, I
22 California and Tiburon law. 22 see a bunch of people coming in late. Speaker cards are
23 The degree to which it supersedes our laws has 23 in the back. Give them to Dan, who is at the end of the
24 yet to be resolved by our Ninth District Federal Court 24 table there with his hand up.
25 of Appeals or the Supreme Court. 25 Please limit your public C0mments to the CUP
Page 10 Page 12
1 Our decision takes into account what we believe 1 resolution and its attachments.
2 is the effect of RLUIP A, to the extent it's been 2 There is no new information with respect to the
3 interpreted and as our attorneys believe it will be 3 denial of the EIR certification appeals, and the record
4 interpreted. 4 contains all of the appellants' arguments, including the
5 Both sides have been represented throughout 5 TNC's recent letters, I think we got two letters,
6 these proceedings by excellent teams oflegal counsel. 6 totalling about 80 pages, by Mr. Volker's office, all of
7 My only regret is the constraint imposed on both sides 7 which were well reasoned and well written, and we hope
8 by their attorneys. 8 we don't have to go through speaker comments on those
9 I have been doing this for over 30 years and I 9 tonight. They are all in the record.
10 have yet to see this kind of tight control on both 10 A rebuttal time of up to 10 minutes will be
11 sides, which I feel has limited the flexibility of both 11 allocated to each appellant. The Town Council will then
12 sides in trying to resolve these issues. 12 close the public comment portion of the meeting and
13 Let me explain the procedure that we will be 13 begin its deliberations and take any actions after that
14 using tonight. 14 it deems appropriate.
15 There are five resolutions before the Council. 15 Let me ask you a question: how many of you saw
16 We will be considering each one separately and voting on 16 the flyer which apparently was circulated around the
17 it, only there's only really one, which is the 17 neighborhood, consisting of three or four pages and
18 resolution talking about the controls, which is the 18 purporting to outline what the resolution was tonight?
19 relevant one. 19 UNIDENTIFIED SPEAKER: Which neighborhood?
20 The first resolution is denying the Kol Shofar 20 MA YOR GRAM: I think your neighborhood. The
21 appeal of the EIR certification. 21 neighborhood around Kol Shofar. I saw such a flyer,
22 The second is denying the Tiburon Neighborhood 22 and I want to point out, having read the flyer, and
23 Group appeal of the EIR certification. 23 emphasize this, that the project before us tonight is
24 The third will be a resolution certifying the 24 not the project described in this flyer, nor is it the
25 EIR. 25 project which was originally applied for by Kol Shofar,
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1 nor is it the project which the Planning Commission
2 turned down by a four-to-one vote.
3 I would not have voted for any of those
4 projects.
5 This is a project that has been significantly
6 modified by the Council's subcommittee and the Council,
7 the full Council at our last meeting, based upon hours
8 of meetings with both sides, review of the Environmental
9 Impact Report, and other documents in the file, meetings
10 with staff and extensive discussions with attorneys; and
11 by project I mean not only the physical improvements
12 proposed by Ko1 Shofar, but also the extensive
13 restrictions on intensity of use and times of use being
14 proposed. All of these items constitute the project,
15 the project which is before us tonight.
16 I told you at the last meeting we had spent up
17 to 60, 70 hours on this matter. That total is now up to
18 about 80 or 90 hours.
19 So tonight, please, when you comment during the
20 public hearing, comment specifically on the project we
21 are considering tonight, not the one originally applied
22 for or the one which the Planning Commission turned
23 down.
24 I am going to turn it over to Paul now, who
25 will give the additional subcommittee report and go into
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some detail about the resolution which is before us.
1
2 COUNCILMEMBER SMITH: I am going to try to go
3 through what we have done since November 15th in summary
4 form because it's blatantly obvious that there's a
5 tremendous amount of confusion in the community about
6 what we intended to regulate at Kol Shofar by the
7 subcommittee's recommendations on November 15, and
8 whether that's changed at all; and from everything I
9 have seen or heard, there's a lot of confusion about
10 that, and to the extent that the subcommittee
11 participated in that confusion, I apologize for that.
12 We tried, quite frankly, to take a very
13 complicated situation and simplify it as best we could.
14 So we handed out this chart, which you guys should
15 recall from the November 15 meeting, that tried to
16 summarize all of the different variations of this
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project.
It actually came from this chart, which rolls
over onto another two, three more pages, and I went
through before tonight's meeting and tried to pull up a
lot of materials that we used to get where we are today,
the things we used to get to the subcommittee
recommendations and the things that we used to come up
with the resolutions that we have here tonight, and I
did notice some changes in language that went through
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1 the variations of these versions that probably added to
2 some of the confusion that we have here tonight.
3 I also found some rather interesting documents
4 that were provided by Kol Shofar, that provided the
5 baseline for the numbers that we have included, and I
6 will mention to mention those to you as well because
7 they also were part of, I think, the confusion that we
8 have over the scope of regulation that is intended by
9 this Council.
10 After having gone through all of that, and
11 having met with both sides since November 15, and
12 obviously before, as odd as this may sound to you, the
13 resolution language that we are proposing tonight is
14 very much consistent with what we said November 15th.
15 If I read all of the e-mails, it sounds like we
16 pulled a 180 and were doing something totally different
17 tonight than we proposed before; and, in fact, that's
18 not what we are intending at all, and I will go through
19 and explain why that is. 1
20 I understand the confusion over the language,
21 and I'm going to try to clear that up for you.
22 The first thing I want to point out, since the
23 November 15 meeting, this is what happened.
24 You know we voted to ask staff to go back and
25 prepare resolutions consistent with the subcommittee's
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1 recommendations.
2 Staff did that. They provided those
3 resolutions, and I am just going to talk about No.5,
4 the resolution that's really at issue here that we are
5 really concerned about.
6 They prepared that resolution. They put it on
7 the Web. They made it available to both sides and to
8 the public. They made it available to members of the
9 Council.
10 We received specific language comments on the
11 resolution from Kol Shofar. We received more general
12 comments in letter form from the TNC.
13 The subcommittee then met with staff and we
14 revised an initial draft CUP, the one that was
15 originally, the first one that was put on the Web.
16 We revised the language to address some of the
17 comments that we received from both sides and we
18 recirculated it.
19 The subcommittee sought to meet with both
20 sides. We met with Kol Shofar. TNC did not want to
21 meet with us on the advice of their counsel, and so we
22 did not meet with TNC.
23 We made additional changes to the CUP since the
24 initial draft, and right now there are several versions
25 floating around, and so I would like to find out what
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1 you have. So can you tell me, raise your hand if you
2 have a resolution dated at the bottom of -- the footer
3 at the bottom of the page dated February 2?
4 Okay. How about February 5?
5 All right. I will take a version of the
6 resolution that is February 2 and I will explain the
7 changes that were made to get to February 5.
8 But first I want to say a couple of things in
9 trying to get a general understanding of what we are
10 doing.
11 There are a bunch of what I consider to be sort
12 of minor language changes, little tweaks to the
13 resolution, and I will point out some of them to you.
14 The real heart of this whole thing is Section
15 3, the Conditions of Approval, paragraph two.
16 My version, I believe it starts on page five.
17 UNIDENTIFIED SPEAKER: Four.
18 COUNCILMEMBER SMITH: That is the section, I
19 think, that has created the most controversy and is the
20 most confusing to everyone because it provides for the
21 scope of regulation that the Town intends by this.
22 For those of you who saw the original version
23 of the resolution that was put up on the Web site, you
24 will see language in that Section 3, paragraph two, that
25 refers to something called Table 1.
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1 Table 1 was a document that was originally 1
2 provided by Kol Shofar. They were asked to provide the 2
3 Town with some information about what existing 3
4 activities go on at Kol Shofar, and it was actually a 4
5 part of the Draft Environmental Impact Report, and it 5
6 goes through each day of the week and it has times of 6
7 days, numbers of people, the type of event, where it 7
8 occurs, how often it occurs; everything from board 8
9 meetings to preschools to lectures and religious 9
10 schools. It's all on here, and it has specific times 10
11 and dates for all of those activities. 11
12 That document was attached to the original 12
13 resolution and the way the language of Section 3, 13
14 paragraph two, was written suggested that there was some 14
15 intention on the Town's part to regulate Kol Shofar like 15
16 that, every single activity. 16
17 In other words, the way I read this was if Kol 17
18 Shofar wanted to have its library board meeting on 18
19 Wednesday between four and five, and that's what it said 19
20 right here on the chart, well, somehow that was what the 20
21 Town was saying they were going to be required under the 21
22 CUP. If they wanted to change it to Tuesday, that that 22
23 wasn't allowed under the CUP. 23
24 Well, that was never intended by the Town. 24
25 And, as a matter of fact, let me say this 25
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1 really loud and clear so everybody hears this: The Town
2 either on the 15th or tonight has never intended to
3 regulate Kol Shofar's existing activities, with the
4 exception of what are called member-sponsored weekend
5 evening events, and there was some confusion about when
6 the way this final table came out.
7 It took me a long time to figure it out. We
8 tried to squeeze it on one-page to hand it out to
9 everybody. It's actually a three-page version, that was
10 the November 15 table, so we shortened up things on it.
11 Well, what was always intended was that what
12 Kol Shofar was coming to the Town saying is we have an
13 existing facility. We have a historical baseline use of
14 this facility. It's what we have always done, and we
15 are asking for a certain number of new, what are called
16 member-sponsored events. Those are events that are put
17 on by essentially agreement between Kol Shofar and one
18 of its members.
19 Kol Shofar has agreed not to rent its facility
20 out to nonmembers, but to allow a member to put on
21 weddings, bar mitzvahs or bat mitzvahs or such things,
22 those are called member-sponsored events.
23 When we first looked at this plan, there were a
24 lot more of those. I am sure the TNC will remember that
25 over the time that we looked at various iterations of
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this, one focus was reducing those number of
member-sponsored events on Friday, Saturday and Sunday
nights.
Now, I will say in some discussions with Kol
Shofar what I heard from Kol Shofar is that it was their
belief that what the Town was doing, should do and can
do was to regulate Ring Mountain School, which, by the
way, is the same thing as renting the thing out to
essentially a third party and to regulate
member-sponsored events, renting the facility out to one
of your members for a wedding or a bar mitzvah or the
like, that those were okay to regulate but not anything
that the synagogue did, a synagogue-sponsored event.
That was a very broad interpretation, but I
believe that's an interpretation that they have taken.
We have a slightly different variation on that,
and that is that to the extent there were existing
member-sponsored events, weddings, bar mitzvahs, bat
mitzvahs, things where Kol Shofar rented the facility
out to its members to allow them to engage in those
~inds of activities, we saw no reason to distinguish
between a new member-sponsored event that would happen
on a Saturday night, for example, and an existing one.
As a matter of fact, we saw no way we could
possibly even distinguish between those two things.
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1 There would be no way to really regulate the issue at
2 all. If someone wanted to have a wedding, how do we
3 know if it's one of the five new member-sponsored events
4 or one of the old member sponsored events. So our
5 perception all along was to regulate those events.
6 When the subcommittee met with the TNC early
7 on, we heard a very constant message, and that was that
8 they wanted to see the facility remodeled but not
9 expanded. That one of the options in the alternatives
10 reviewed in the EIR was called remodel only.
11 What they were saying was "enough is enough."
12 You can improve your facility but don't make it any
13 bigger.
14 We took that to mean historical baseline use is
15 fine. That's okay. What you do is not in debate. We
16 are not arguing about that.
17 I think some of the confusion arose when Table
18 1 was attached to that first version of the resolution
19 because it made it look like that we had done something
20 completely different, made it look like we were about to
21 tell you what you can do every day of the week, all day,
22 no matter what.
23 It's not what .was ever intended. It was a
24 mistake if that's the way that that was interpreted,
25 and, you know, I apologize if somehow that's how that
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1 came across because it was never intended to come across
2 that way.
3 However, what we have always intended to do was
4 to regulate the cumulative, overall intensity of use of
5 the facility, and we also intended to do that, we
6 intended to do that basically two ways: the total
7 number of people who could be on the facility at any
8 point in time and the closing time.
9 I finally realize what it really is, it's just
10 shut-down time.
11 I said this the other day, it's not Denny's,
12 it's not 24/7. It's a residential neighborhood. There
13 should be a time when you can say the facility is done
14 for the day.
15 So we always viewed our, the scope of our
16 regulation to be not what went on specifically at any
17 point in the day, whatever kind of activity it was. We
18 don't care. You can have your board meeting any old
19 time you want, but there are some reasonable
20 restrictions that we thought needed to be put in place.
21 Because this is going to be a larger facility, there's a
22 greater potential that there could be significant
23 impacts on the neighborhood if the facility is used
24 substantially in excess of its historical baseline use.
25 So what we did was we looked at several
Page 23
1 documents that were provided by Kol Shofar.
2 One was Table 1. Table 1 told us, at least
3 from what we understood, to be everything that went on
4 Monday through Sunday at Kol Shofar.
5 So we looked at that, we looked at the times
6 and days, and we tried to draft a resolution that would
7 accommodate all of the existing uses. It wouldn't
8 interfere with any of the existing uses, but that also
9 would put reasonable cumulative use constraints such
10 that we could say there won't be any more than X number
11 of people on site at some particular time, and the way
12 we came up with numbers like a hundred, that you will
13 see in here, is we used their own figures.
14 Tonight, after getting a lot of e-mails, I went
15 back and I pulled up a letter from Scott Hochstrasser
16 dated back in April of '06. It says, Attached is
17 basically a modified version of the annual use document.
18 I forgot about the annual use document. This is
19 another document that was providt1d to the Town, and it
20 goes through day by day by day telling us what happens
21 there.
22 I will just give you an example. Weekday
23 usage, the synagogue's use for religious schools on
24 Tuesday and Thursday, 40 to 50 children. Wednesday
25 afternoons, 135 children. The afternoon program goes
Page 24
1 from 3 :30 to 6:00 This use will be unchanged.
2 On Monday night education classes 20 to 30
3 people, 25 to 30 weeks per year, 7:00 to 9:00.
4 This gave us a lot of information, along with
5 Table 1, that allowed us to create a resolution that we
6 thought would regulate the new uses, the new potential
7 uses of the facility without interfering with the
8 existing uses because we thought we had the information
9 about the existing uses, and then we put the right
10 numbers in the resolution, so that all of those uses
11 were fine, and we take away Table 1 so nobody would be
12 confused saying somehow we are trying to tell you when
13 you should do any particular activity. Switch them
14 around. Do them whenever you want.
15 Our own parameters were to say there's got to
16 be some overall restrictions on intensity of use,
17 numbers of people and closing times, and we even picked
18 closing times based on what we got from Kol Shofar.
19 When we met with Kol Shofar the last time, and
20 every time we met with Kol Shofar, quite frankly, we
21 have learned something new. That, really, instead of
22 shutting the lights off at 9:30, you know, that actually
23 people don't get out some nights until 9:30, maybe the
24 parking lot lights should be on until 10:00.
25 Instead of being a hundred people at one
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particular event, actually it's typically more than
that. And so we have tried to make adjustments for
that.
I
2
3
4 But I think part of the confusion has been that
5 because we wrote up the language here with numbers of
6 people in it and times when the facility should close,
7 that somehow we were trying to regulate those historical
8 baseline activities and we weren't. We just put
9 numbers in that we felt accommodated those existing
lOuses, and we put those numbers in based on information
11 that we got from Kol Shofar.
12 We have since found out that, you know, there
13 may be other numbers. There maybe other things we don't
14 know about, and to the extent that that's correct and
15 you want to read this language and tell us, well, this
16 really harms us. It takes away something we
17 historically have always done, well, you tell us, and we
18 can address that because it was never our intention to
19 do anything but allow all of those uses.
20 And just as an example of the fact that I think
21 there's enough confusion, enough of us to share in the
22 reason for confusion, this is the handout that was given
23 by Kol Shofar, this is Kol Shofar's presentation at the
24 October 24 meeting. This is the slides that they
25 produced.
Page 26
1 And when you got to the present Town staff
2 issues, this crucial question that we have been
3 grappling with over the last weeks and months, were we
4 intending to regulate member-sponsored events on weekend
5 evenings, or were we intending to regulate more?
6 Unfortunately, when you look at the chart that
7 the subcommittee produced, it has a combination of it.
8 It's apples and oranges. It took me until fairly
9 recently to realize that that's what was going on.
10 The 25 existing events that are referred to on
11 here as Friday night existing events are actually
12 congregational dinners. They are synagogue-sponsored
13 events, they are not member-sponsored events. Apples
14 and oranges.
15 But in other areas on Saturday night, I assume
16 that some of those five existing events were
17 member-sponsored events, unless Kol Shofar is going to
18 tell me they have never had a member-sponsored event,
19 which I don't think is the case, then that creates some
20 confusion right here because I think there are existing
21 member-sponsored events, and I think the Town has always
22 intended to regulate member-sponsored events the same
23 way, whether they are existing or new.
24 When you look at Kol Shofar's presentation from
25 October 24, look what they say: they say weekend
Page 27
8 (Pages 26 to 29)
I nighttime events, half proposed by Kol Shofar address
2 these events. They don't say member-sponsored weekend
3 events. They say, weekend nighttime events and that,
4 quite frankly, is part of how we ended up where we are,
5 which is there is this definitional confusion about all
6 of these different types of evehts.
7 And I, finally, after having gone through all
8 of this, have recognized that you can kind of cut
9 through all of that.
10 You don't really need to concern yourself about
11 whether it's a congregation event, a synagogue event, an
12 education event, a religious event, a member-sponsored
13 event. Forget it. That's creating way too much
14 confusion, and it's unnecessary.
15 What we have attempted to make clear in the
16 current version of our resolution is that, first, we do
17 not intend to regulate Kol Shofar's existing activities
18 with the sole exception of what I just told you, weekend
19 member-sponsored events, whether they are existing or
20 not existing; and the way that we tried to express that
21 intent was to take numbers of people and times of day
22 that took into account all of the existing activities
23 that we understood Kol Shofar to be doing.
24 So when we say, you are done at 9:00, it's
25 because they told us their activities were done at 9:00.
Page 28
1 When we say a hundred people, it's because on
2 this document that they provided to us, it says we use
3 it for adult education from 7:00 to 9:00, 30 to 45 weeks
4 per year, 30 to 50 people at each program.
5 Great. I now know how you use it on Wednesday,
6 and we put those numbers in here.
7 I understand how Kol Shofar can come back and
8 say, wait a minute, you are trying to regulate what we
9 already do. But the reason the numbers are what they
10 are is they are intended not to regulate what you
11 already do, based on what you already told us you do.
12 So having heard that, to the extent that you
13 want to look at these numbers and say, you know what,
14 Hebrew high school requires us to have X number of
15 people to X time, if you change this language, then that
16 wouldn't be a problem with our existing events.
17 But we want you to recognize that by building a
18 bigger facility, it doesn't mean you get to take the
19 historical baseline use of the facility which we give
20 you and just start adding whatever you want to it.
2 I There have to be reasonable constraints.
22 And so we have tried to address that issue in
23 terms of numbers of people at the events and closing
24 times, recognizing that there are religious holidays,
25 religious activities and religious events that might not
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I fall within those categories, we also don't want to
2 regulate that.
3 So we have created an exception to that, and we
4 have laid out in here in various different ways
5 exceptions for religious holidays, religious events.
6 I am not sure if all of you have this language;
7 but in addition to the various exception language that
8 we provided in paragraph two of Section 3, for example,
9 on Monday, Tuesday, Wednesday and Thursday, we said,
10 notwithstanding the foregoing, one day per week Kol
II Shofar may conduct Hebrew school for up to 100 attendees
12 in addition to the above until 9:00 o'clock. We got
13 that number right from the materials we had.
14 We find out from Kol Shofar, you know, that
15 might not be enough. Couple options. Break it up into
16 two nights. They don't like that idea. Increase the
17 number to 150. We have a version on the table right now
18 that adds the word "approximately."
19 Because in addition to the exclusions that we
20 have created for religious holidays, religious events,
21 we also recognize Kol Shofar's argument, you know, if we
22 have some, for example, Hebrew high school and 151
23 people show up, what are we going to do, send the IS-1st
24 person away? No.
25 So we will be tailoring this language to
Page 30
1 propose that the word "approximately" be added in to
2 address the issue of, no, when you get a few people
3 more, few people less, it's okay. It's not a violation
4 of the CUP.
5 That's an example, I raise that one
6 particularly, because to the extent that the current
7 language that says a hundred people is inadequate to
8 allow Kol Shofar's existing baseline use, tell us.
9 We have the ability to modify this language
10 right here tonight, and, in fact, we intend to try to
11 get as far as we can here tonight. If we can't actually
12 adopt the resolutions, we want to get as close as
13 possible to the final language.
14 On top of the exclusions that you will see in
15 paragraph two of Section 3, we added a paragraph 13, and
16 paragraph 13 is a clause, and I am just going to read it
17 all to you, so you have heard this from us:
18 The Town intends the conditions of approval of
19 this permit to ameliorate the project's impacts on the
20 neighborhood without imposing a substantial burden on
21 Kol Shofar's religious exercise. In the event that the
22 implementation of these conditions imposes a substantial
23 burden on Kol Shofar's religious exercise, the Town
24 will, upon application ofKol Shofar, amend the
25 conditions to reduce the burden to a less than
Page 3 1
1 substantial level.
2 Notwithstanding the foregoing, the Town will
3 not grant an amendment that is contrary to a compelling
4 Town interest.
5 There's a lot of legal jargon in there, but
6 what it means is that if somehow or another through this
7 whole complicated process we have come up with a
8 conditional use permit that misses the boat on
9 something, there's some religious activity out there
10 that we didn't quite accommodate, there's some event
11 that has historically occu~ed that would be impacted by
12 this, come to us, tell us about it. We will adjust the
13 conditional use permit accordingly.
14 There are a couple, just so I can take you
15 through the changes so that we are all working off the
16 same version here, let's take the February 2 version,
17 and I will not take you through -- it's little, simple
18 no brainer language that doesn't mean anything -- but
19 let me take you through what is thr most substantial
20 issue.
21 First is Section 3, paragraph two, and on this
22 one, and probably this one only, I will give you, make
23 it a little more complicated than I would like to.
24 From the February 2 version we added a sentence
25 to the end of the section that refers to Monday,
Page 32
1 Tuesday, Wednesday, Thursday, and it simply says, I'll
2 actually read:
3 Notwithstanding the foregoing one day per week
4 Kol Shofar may conduct Hebrew school for up to 100
5 attendees in addition to the above until 9:00 p.m.
6 We have now added the word "approximately" and
7 I am also going to read to you a preamble that we have
8 added to Section 3, paragraph two, and this comes right
9 before the Monday, Tuesday, Wednesday, Thursday section
10 that right now is at the beginning. And the preamble
11 reads as follows:
12 The project will accommodate greater intensity
13 of use than the site would support at present and,
14 accordingly, could cause increased disruption to the
15 neighborhood.
16 In imposing the conditions herein, the Town
17 intends to ameliorate the potential for such increased
18 disruption.
19 The Town does not intend these conditions to
20 limit or restrict the religious activities that have
21 been conducted at CKS since the inception of its
22 operation in 1984.
23 The Draft Environmental Impact Report contains
24 a list of the types of religious activities that occur
25 presently at CKS. This listing is not exhaustive and
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1 cannot be as religious functions change and evolve over 1 Provided, however, if the cumulative total of attendees
2 time to be responsive to the needs and desires of the' 2 at Kol Shofar events is more than 100 persons, then no
3 congregates of Kol Shofar. 3 member-sponsored events shall be held on those nights or
4 However, the types and times of these events 4 at the same time.
5 and activities and the number attending these 5 And then we go on with the existing language
6 activities, as set forth in Table 1 of the Draft EIR, 6 and we get down to the next section, Section 4. And in
7 establishes a baseline for this permit, and that's the 7 4, Roman Numeral, little Roman Numeral v, we heard from
8 historical baseline that I have been referring to. 8 Kol Shofar, this is about use of the courtyard, we heard
9 The Town's interpretation and enforcement of 9 from Kol Shofar that they actually historically have
10 these conditions shall reflect the Town's intention to 10 used the courtyard for what they call their tiddish
11 both, one, minimize increased disruption to the 11 lunches, in addition to the high holy day events and the
12 neighborhood and, two, avoid imposing a substantial 12 Sukkot dinner, which we had already recognized.
13 burden on the religious exercise at Kol Shofar. 13 So once we heard that and what I've been trying
14 Any substantial increase in use from that 14 to tell you all night, once we heard that was something
15 already established that creates identifiable adverse 15 that was part of the historical baseline, we said, fine,
16 neighborhood impacts shall require an amendment to the 16 let's put it in. So we have put in the tiddish lunches
17 CUP as determined by the Planning Commission. 17 that they have done for so long.
18 And then the next sentence starts with "Subject 18 No amplified music shall be allowed outdoors is
19 to the foregoing, this permit regulates" and that's the 19 also added to that paragraph.
20 language you currently have. 20 And one thing I think I skipped, if this wasn't
21 Monday, Tuesday, Wednesday, Thursday, on that 21 clear to you, was back in the big, you know, paragraph
22 section, we have added before the first reference to 100 22 two, every time it refers to a number of persons, the
23 persons, which is on the third line, the word 23 word "approximately" comes before that.
24 "approximately" and we have added the word 24 So even in those tables where it says five
25 "approximately" at the end where it also refers to 100 25 events, 150, or four events, 100, all ofthose are
Page 34 Page 36
1 attendees at Hebrew school. 1 approximately.
2 For those of you -- this is a little tricky -- 2 So that gets us to my page nine, which might be
3 for those of you looking at the February 2 version, 3 a little different than some of yours. It's 5-B
4 there's now a paragraph that comes after what I have 4 Management.
5 just read that reads: Notwithstanding the preceding 5 Kol Shofar made what we thought was a very good
6 paragraph, if a religious event not listed below falls 6 point in telling us that they couldn't always know
7 on a week night, Kol Shofar may give the Director of 7 exactly how many people were going to show up at various
8 Community Development 10 days prior notice bye-mail or 8 events, so we said all CKS sponsored and CKS
9 letter naming them the disadvantage describing Kol 9 member-sponsored events where 200 plus persons are
10 Shofar's plans to celebrate it. In no event shall the 10 anticipated is the added language, and then these
11 celebration include amplified music, shall not be held 11 restrictions fall into place.
12 outside, and shall end by 10:30 p.m., with lights out no 12 In paragraph 6A, Parking Lot Lighting, we
13 later than 11 :00. 13 changed the time from 9:30 to 10:00 o'clock. Lights
14 This exception shall be available only 14 out at 10:00 o'clock. And that's in capital A of
15 occasionally, approximately four times per year. 15 paragraph six.
16 And then we have the Friday section. The 16 We changed in the Neighborhood Advisory
17 Friday section, again, wherever it refers to 100 17 Committee section 9-F, I believe it is, instead of being
18 persons, it's approximately 100 persons. 18 required to send notice throughout the community of
19 On Saturday, the number, again, is 19 everybody who is within 300 feet or so, we just said,
20 approximately, and instead of 100 persons, it is 150 20 notice should be given to those people who request
21 persons, and so it's in the second line, meetings, 21 notice. It would not automatically be mailed to anybody
22 education, lectures and similar activities of up to 30 22 who lives within 300 feet.
23 persons each, but not to exceed 150 persons cumulative 23 But CKS would continue to provide space for the
24 on the site at one time are permitted until ten o'clock, 24 meetings, and we added paragraph 13, as I told you, as I
25 and now there's a section added to that that says, 25 read to youbefore, which is a global exception, a
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I global exclusion to allow Kol Shofar to come back to us I jurisdiction.
2 and show us and tell us that somehow what's happening 2 It has been a grave concern to us on the
3 under this conditional use permit is substantially or 3 Council and to anybody in local government that we wake
4 significantly affecting its practice of its religion, 4 up one day and suddenly realize that various things can
5 and we will amend the conditional use permit 5 occur and we have absolutely no control over them.
6 accordingly. 6 I mean, always, historically, this school, for
7 But there is another change that I, for some 7 example, is without -- it's outside of our control. We
8 reason am not seeing where this is, but there is a 8 don't have jurisdiction over this school.
9 provision in here that we have added to provide that the 9 But the things that have been occurring more
10 Design Review Board will not have the authority to 10 recently that put us in the position that we are in and
II reduce the size of the multi-purpose building. 11 that I think most of the neighbors do not realize that
12 The reduction from the original size of the 12 we are in, let me give you just an example or two.
13 multi-purpose building of 15 percent was as the result 13 If I wanted to, I could buy the house next door
14 of a lot of discussions, and we don't feel that the 14 to you and I could buy the house on the other side of
15 Design Review Board should be able to change the square 15 you, and I could buy the house across from you, and I
16 footage of that building as we have -- well, thanks, 16 could operate businesses in all of those three houses.
17 there it is, actually. 17 Have you surrounded by, for example, drug and alcohol
18 It looks like it is Section 3, paragraph IF, 18 rehab programs for the rich and famous. As long as I
19 and it is at the end of that paragraph where we say that 19 don't provide more than six beds, YQur Town Council
20 the Design Review Board shall not have the authority to 20 can't do anything about it.
21 unilaterally further reduce the square footage of the 21 If I wanted to provide a home for mentally
22 multi-purpose building or classroom additions. 22 disabled kids, a halfway house, as long as I didn't
23 With that, we are all up to tonight's version. 23 provide for more than six people, you know, I could do
24 That's where we are right now. 24 that and you would be screaming at your Town Council,
25 What I think I'm hoping is a little bit 25 and we would have to tell you that there's nothing we
Page 38 Page 40
1 different than where we were when we walked in the door 1 can do about it. It's driven by the Federal Fair
2 is that our intentions are different than what a lot of 2 Housing Act, and we are sorry.
3 you seem to think our intentions are. 3 That is happening today in a very wealthy
4 And so I would love to hear public comment 4 neighborhood in San Rafael.
5 directed specifically at that issue, primarily if 5 If you were a restaurant owner and you spent
6 there's something about the way that paragraph three or 6 hundreds of thousands of dollars to modify your
7 Section 3, paragraph two, is written that affects 7 building, and you did it in compliance with everything
8 historical baseline use, affects religious use, that 8 the city told you. You checked the box and you said
9 could be modified to address that, those are the kinds 9 it's in full compliance with the Americans with
10 of things that we are most interested in hearing about, 10 Disabilities Act. If the state or federal government
11 because,. as I said, we would like to get as close as we 11 decided that they interpreted it differently and your
12 possibly can get to the final version, if not adopted 12 restaurant wasn't in full compliance, you have to spend
13 tonight. 13 another couple hundred thousand dollars, tear your
14 One other thing that I wanted to say about 14 bathroom apart, shut your business down, and do it
15 confusion, because that's kind of the theme of my part 15 again, and you can't sue the city, and the city can't do
16 here, is that we have heard a whole lot about, you know, 16 anything about it because there are both federal and
17 how as a Town Council we haven't been doing enough to 17 state laws that preclude local control over those kinds
18 protect the neighborhood; and when I went to law school, 18 of things.
19 one of the cardinal rules you learned about real estate 19 RLUIP A is a similar situation. RLUIP A places
20 land use law was that the control of land, real estate 20 limitations and restrictions on what your local
21 was by the local government. Judges defer to the local 21 government, us, can control in our own neighborhoods,
22 government. It was a matter of local control. 22 and it's a little bit of a concern to people who are in
23 And in recent years there have been a lot of 23 local government, but it is a trend, it is happening.
24 changes that have begun to limit the control that your 24 It's not just RLUIPA. It's happening in a lot of ways.
25 local government has over property within its 25 Affordable housing is the next big one coming up where
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1 you will find that you can come to meetings like this
2 and tell us anything you want to tell us and our answer
3 is "But we can't do anything."
4 And, you know, I quite frankly am concerned
5 about that. You ought to be concerned about that, but
6 you ought to also understand that RLUIPA is federal law,
7 and we are bound by it, and it does create limitations
8 that are very much applicable to this project.
9 I think I have said enough.
10 MAYOR GRAM: At this point do any of the
11 councilmembers have questions of subcommittee, staff
12 have any questions, questions of staff?
13 VICE CHAIR SLA VITZ: My question is, and I
14 appreciate the distinction made between
15 member-sponsored, nonmember-sponsored and synagogue-
16 sponsored events, and that seems to be 100 percent of
17 the possible events, those three sections, those three
18 types of events, and my question is during the week you
19 say that you are limiting based on meetings, education
20 and lectures and similar activities.
21 I am wondering how those map to those three
22 kinds of events?
23 COUNCILMEMBER SMITH: Do you want to?
24 MAYOR GRAM: Those fold into the events we are
25 regulating because if it's Kol Shofar sponsored events,
Page 42
1 they have lectures, book signings, they are bringing the
2 people in primarily, these are the kinds of activities
3 we heard from Kol Shofar that they put on primarily
4 during the week and that actually we encourage that they
5 do.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
VICE CHAIR SLA VITZ: My question is why not
say all? What does this list not include.
COUNCILMEMBER SMITH: What we were trying to
point out lectures reference and all, we are not talking
about parties. It's one of the themes we tried to get
through in this last version, we were wholly
unsuccessful in doing, is that, you know, we don't care
about all of these little activities, board meetings and
lectures and educational things. That's not really the
issue.
It has never been a complaint of the neighbors.
They told us from the outset remodel only. Do whatever
you do, just don't make it bigger. To me, that says,
historical baseline is fine, and the term, you know,
lectures, education meetings, that kind of thing is
intended to say nice, quiet activities, no big parties.
When we get to parties, social events, I don't
want to use these terms anymore because there are
debates over what those events really are, but that's
different.
Page 43
12 (Pages 42 to 45)
1 You know, at nighttime lots and lots of people,
2 lots of noise, that's different than just business
3 meetings and all. We tried to carve those out.
4 MAYOR GRAM: Any other questions? Okay. No
5 further questions. Then let's proceed to the
6 presentations.
7 Kol Shofar will present first and will be
8 allowed up to 30 minutes.
9 MR. RAGGHIANTI: We did not have all of the
10 copies of what Mr. Smith went through, and may I ask for
11 five minutes just to talk with our group so that if
12 there are changes in what we were going to say, we can
13 make those changes?
14 MAYOR GRAM: Sure. We can take a bit ofa
15 break. Would the reporter like to take her break now?
16 THE REPORTER: Sure.
17 (Whereupon, a short break taken.)
18 MAYOR GRAM: Please take your seats. Gary,
19 would you start out?
20 MR. RAGGHIANTI: Actually, Rabbi Derby will
21 start off.
22 RABBI DERBY: Mr. Mayor and Members of the
23 Council, I expected to come here this evening to express
24 some sorrow and disappointment in having to speak with
25 you about lines that I believe you were crossing. Now
Page 44
1 you have created an interesting sense of confusion.
2 Good for you. Good job.
3 I want to say that the disappointment that I
4 felt in this process, and which is why I felt it
5 important that I speak first on behalf ofKol Shofar and
6 not our lawyer is to tell you something about the way
7 this political process works in this Town that is
8 divisive and angry and ugly, and it happens all of the
9 time.
10 Mr. Gram, I appreciate your pointing fingers at
11 the lawyers and waving your finger at them. Sometimes
12 lawyers get out of control.
13 I would ask that you also look into your own
14 hearts and ask yourselves as the politicians of our
IS town, the political leadership of our town, whether the
16 political leadership of this community actually works to
17 bring people together or to creat division.
18 I would argue that much of this political
19 process simply creates division, and I would tell you I
20 think a lot of it was needless. But here we are.
21 Weare arguing here tonight about my right to
22 practice my religion in my religious community.
23 And, frankly, I am delighted that you have
24 explained the intention behind the documents that I have
25 and helped me understand that there is, as in all good
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1 Jewish text, a commentary to the written word.
2 You have told us what you did not intend.
3 Do you intend that no more than 100 people, or
4 approximately 100 people, can be in Kol Shofar at any
5 given day?
6 Do you intend to limit the number of children,
7 or approximately the number of children, who can come to
8 religious school?
9 Do you intend to ask us to get approval from
10 the town when we want to gather in prayer?
11 You have told us that you don't intend to
12 regulate our religious practice. If you don't intend to
13 regulate our religious practice, why not clear up the
14 confusion, take the language out of your CUP document,
15 take out the numbers.
16 How many midnight sessions will we have in this
17 room or any other, arguing about whether 105 is
18 approximately 100 or 120? Who is to decide?
19 All it does is increase anger and increases
20 argument because it's ambiguous.
21 Your figures and your concern to play with
22 numbers and to insist that it's 30, but not more than
23 100 is based on what I consider to be a tremendous fear
24 or paranoia, if you will, and you, in fact, as have some
25 of our neighbors, been playing on the fears of people
Page 46
1 that if we have the opportunity to upgrade and beautify
2 our facility, thousands of Jews will suddenly, magically
3 descend upon Blackfield Drive clogging the traffic.
4 Where are the Jews coming from? Do you know any? Will
5 you come?
6 We gave you baseline figures, it's true, and
7 precisely why we never wanted to engage in this kind of
8 numbering scheme is because you are literalists.
9 When it says 100, that's going to be the
10 maximum, not 101, not 105, not 110.
11 So today, today in my office was a man who
12 walked into my office, and for 57 minutes, for 57
13 minutes he wept because he's being crushed by life; and
14 if he had come to me tonight, when there are programs
15 taking place in our building, I would have had to say --
16 he was the 10lst person -- I would have to say, it's
17 okay, because you are only "approximately" 101st person.
18 In what way do you want us to make these decisions?
19 You claim not to have understood our position,
20 that by putting these numbers on our usage you are, in
21 fact, not allowing us to practice our religion, that you
22 are structuring who mayor may not come.
23 You claim not to have understood this, that
24 this has been our position until just last week. We
25 have been talking about this for three years.
Page 47
1 And what will happen when, God forbid, there's
2 another crisis, it should never happen again, like the
3 9/11 crisis when Jews want to gather in their sanctuary
4 and pray, are we to give you five or ten days notice
5 because Jews may not be allowed to gather to pray
6 because the town hasn't been given notice?
7 Is that the headline you want in tomorrow's
8 paper? In any of the papers across the country where
9 Jews are interested in this question?
10 You are substantially burdening our ability to
11 worship God as we choose, and I simply want to ask you:
12 Is there another church in Tiburon that you
13 have living with these restrictions? Does St. Hilary's
14 live with these restrictions? You know as well as I do
15 what happens at St. Hilary's, how late they go, how many
16 people they have.
17 Do they have to keep a log of how many people
18 come, what activities they have, do they have to send to
19 the town a regular basis?
20 If we were to keep a log, it might very well
21 violate our Sabbath restrictions.
22 Do they have to have parking passes? We have
23 to have parking passes so if Mrs. Goldberg wants to come
24 to synagogue on Saturday morning, she doesn't have a
25 parking pass, she has to walk, take a shuttle or think
Page 48
1 she's not welcome? Are you asking that of a religious
2 institution? You don't think this is regulating
3 religious practice? I am shocked.
4 The fact of the matter is, the truth of the
5 'matter is, ladies and gentlemen, I know you are
6 sensitive to this. I know you are sensitive to this
7 issue because Mr. Smith spoke at great length about the
8 need to understand the correct intention, the correct
9 interpretation, and I applaud that. I appreciate that.
10 That's why I would ask you to rewrite your
11 document, to take out the numbers, to cease and desist
12 from parking passes, and anything else that might be
13 construed as a regulation of the Jewish community's
14 right to gather at any time to practice their religion,
15 to study, to learn, to educate their children, to
16 experience their culture, or to pray, or to pray.
17 I know that over a period of time things that I
18 have said, in particular one thing has been a point of
19 teasing and even some ridicule, both in public to my
20 face, as well as behind my back, I am sure.
21 I happen to believe very strongly as a
22 religious person that the way to come to God is through
23 respect for the dignity and the infinite value of every
24 human being.
25 That principle of my faith is codified in all
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1 major faiths. We know it is the Golden Rule, (In
2 Hebrew) Love your neighbor as yourself. But the fact of
3 the matter is, I am sorrowful that we have come to this
4 point.
5 I am sad that it has never been the case that
6 our neighbors and Kol Shofar have been able to sit down
7 and to talk to each other. I understand that they have
8 concerns. I always have.
9 I understand that they are scared and I have
10 always understood that. I also understood how often
11 they have slammed a door in their face and we are not
12 guiltless in that regard.
13 This has been a bloody battle, and I want to
14 tell you, I don't believe the Town has helped.
15 But as sorrowful as I am about that, I would be
16 even more sorrowful, more disappointed, more distressed
17 if you kept language in the proposed CUP that would in
18 any shape, manner or form be possibly construed as
19 regulating our religious activity when there is no other
20 religious institution in this Town, or I dare say in the
21 county, and probably in the nation, that has its
22 activity regulated in the way you want to regulate us.
23 If you really believe what you did not intend
24 to do, then I am asking you to do what you do intend to
25 do.
Page 50
I Let us build the building as we have described
2 it, give us guidelines that do not regulate religious
3 activity, as other people from Kol Shofar will speak to,
4 and allow us to get on with the business of trying to
5 repair relationships with you, with the Town, and with
6 our neighbors.
7 Thank you for your attention.
8 COUNCILMEMBER SMITH: Let me ask you a
9 question. So you have got an event, you have a series
10 of events going on, and you reach that ISO number and
II you say, well, that's ridiculous because that person
12 that came to see you couldn't come because you are over
13 ISO.
14 So what if you made it 250 or 300 or 400, is
IS there any number you think should be in there, a
16 thousand, 2000, any number at all?
17 RABBI DERBY: Frankly, I don't think that is
18 the way to regulate what we do.
19 COUNCILMEMBER SMITH: Thank you.
20 COUNCILMEMBER SLA VITZ: Rabbi Derby, could you,
21 just to follow up on that last comment, could you give
22 me your opinion, then, of how you would change this? As
23 you say, this isn't the right way.
24 RABBI DERBY: I actually believe that Mr.
25 Ragghianti has provided you with language that is
Page 51
14 (Pages 50 to 53)
1 suitable, and although it does not offer us everything
2 that I would like or my community would like, it at
3 least is language that helps you do what I understand
4 from you tonight, you want to do.
5 You want to regulate the usage without
6 regulating our religious lives:
7 I would suggest that you listen to his
8 presentation very carefully because I think that he can
9 address that.
10 VICE CHAIR SLA VITZ: Thanks.
11 COUNCILMEMBER SMITH: His language has
12 specific caps in it. Specific numbers, 100, 150,
13 depending on the event.
14 RABBI DERBY: On the new events that have been
15 discussed here. Not on the old events. And, in fact,
16 we were criticized for not wanting to give baseline
17 numbers because, frankly, when you give baseline
18 numbers, the Town Councilor the Planning Commission
19 assumes that that is the maximum, rather thah an
20 experience to date. Why should that be the maximum?
21 By limiting the number, and it's clear that we
22 can't hold a thousand people in our facility, simply we
23 wouldn't do that.
24 When we have to hold a thousand people, if that
25 should ever happen, we have to go elsewhere; but if we
Page 52
1 have parking spaces for X number of people and you are
2 regulating parking on the street, why is that not
3 enough?
4 You are telling me that I can do this activity,
5 but I can't do that activity because there may be more
6 people than you are willing to allow. Why should you be
7 willing to allow how many people should come to Kol
8 Shofar?
9 Maybe 300 people want to come to a lecture.
10 Why should you be able to tell them they may not? That
11 doesn't seem reasonable to me.
12 It actually doesn't allow you to do what it is
13 that you have stated that you wish to do. There are
14 other ways of doing so.
15 COUNCILMEMBER SMITH: It actually does based
16 on the information you guys have provided to us because
17 you told us how many people on average come to those
18 lectures, and what we are trying to address, and I think
19 this is reasonable concern and maybe you have a
20 different opinion about it is what you have repeatedly
21 heard from your neighbors, well, today it's 100, but if
22 they build a bigger facility, then it will be 300,500,
23 600, there's no cap, there's no number.
24 RABBI DERBY: And should that happen, you will
25 have the opportunity to call us back and say, "We have a
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I problem. Now let's work it out. This is unacceptable.
2 Now we have to work it out."
3 You can regulate it if it needs to be regulated
4 when it happens. Why base it on a fear of something
5 that mayor may not ever happen because somebody is
6 afraid.
7 I understand people are afraid. There are a
8 thousand, 1200, 1500 adults in my community. There
9 aren't 1500 people there every weekday night or even on
10 Saturday mornings, for 24 years.
II Why would you think that it's going to be
12 different? Why regulate? Regulate that eventuality
13 when it comes.
14 You want to regulate evening hours, you want to
IS regulate how many people can come to those specific
16 life-cycle member sponsored things, brand new because we
17 may have a facility that may allow them. I understand
18 that. Regulating what has already gone on.
19 How many complaints have you received over the
20 last 23 years? How many legitimate complaints over the
21 last 23 years? How many times has a member of the
22 community called you in the last 23 years to tell you
23 there are 3,000 Jews descending on Blackfield Drive and
24 it's causing a traffic jam?
25 Since it doesn't happen, why regulate something
Page 54
I that doesn't happen? Should it happen, you know where
2 we live.
3 Thank you for your attention.
4 MR. RAGGHIANTI: I was told I would speak
5 second.
6 I wanted to start with Paul's question, which I
7 thought was a good question, and with Jeffs comments as
8 well, why regulations and constrain any building's
9 capacity? But in this case what makes our application
10 different and what requires a different attitude is the
11 fact that the applicant happens to be a religious
12 institution. Paul hit on that.
13 In the language that I proposed to revise
14 condition two, I said and I quote, The types and times
15 of these events and activities, which are the same
16 events and activities that were set forth in Table 1
17 attached to the DEIR and the number attending these,
18 activities as set forth in that table, establish a
19 baseline for this permit, and here comes the language
20 that is good for everybody else, but apparently not
21 here, which causes the problem.
22 I quote further: Any substantial increase in
23 use from that already established which creates
24 identifiable adverse neighborhood impacts shall require
25 an amendment to the CUP as determined by the Planning
Page 55
1 Commission.
2 And if we are required to come before the
3 Planning Commission, and perhaps after that the Town
4 Council, CEQA applies to an amendment of a use permit.
5 And if, in fact, there are new and different
6 adverse identifiable impacts, then they will be
7 analyzed.
8 The problem with what you have done, I
9 respectfully suggest, is that you have given and taken.
10 You have done nothing to let the lawyers leave
11 the room without asking the constitutional questions
12 that RLUIP A implicates in the First Amendment and
13 freedom of religious exercise also implicates.
14 You have done that because you have said, I
15 think, we don't want and we never intended to regulate
16 the meetings and the activities and the events and the
17 lectures and the education and the feeding of the hungry
18 that this congregation has done and sponsored for 24
19 years. Thank you.
20 That was a tremendous concern, when we read the
21 language, because you wrote all CKS sponsored and new
22 member-sponsored weekend events are going to be
23 regulated, and we took tremendous exception, and so did
24 Jews all over this country who took the time when they
25 read it to write you from New York and elsewhere.
Page 56
1 But that's not my point tonight. I didn't come
2 here to stand and threaten you with a lawsuit. I came
3 to try to prevent one. And each of you, as a fiduciary,
4 running a multi-million dollar corporation, I
5 respectfully suggest, again, should assess risk, and you
6 are staring it right in the face. You can avoid it.
7 You can obliterate it.
8 All you need to do is get rid of the numbers
9 that somehow you are married to and which are completely
10 inconsistent with the statement that you don't intend to
11 regulate the events that you then intend to regulate by
12 telling us that on Monday, Tuesday, Wednesday, Thursday
13 no more than 30 people can be in a meeting.
14 What right do you have to say that,
15 respectfully? What right do you have to tell this
16 congregation or any other religious institution how many
17 people can come into their church or synagogue and meet?
18 That's one of the things that the constitution
19 is very clear about and one of the things about which
20 there's very little debate even among lawyers.
21 The reason that Rabbi Derby was loud and
22 forceful is that he, like the rest of the Jews I
23 represent, will do what you tell them to do. So when
24 they read it, they read it carefully; and when they read
25 it, they know what it means, and they don't like what it
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1 means. And the reason they don't like what it means is 1 institution or a place of business to count the numbers
2 very, very simple. 2 of people that come in and report them to local
3 Never in the history of the Town ofTiburon 3 government and neighbors.
4 has -- well, let me just say this -- never in the 4 None has placed numerical limits on attendees
5 history of this Town's existence has it sought to so 5 allowed to participate in meetings or lectures or
6 intrusively interfere with the practice of a religion as 6 education or reading or worship at a religious
7 you seek to do here tonight; and, again, I respectfully 7 institution.
8 suggest to you that you embark tonight, if you adopt 8 None has ever placed a limit on the total
9 this resolution with these numbers, on a slippery slope 9 number of congregates or customers of a non-religious
10 that you can avoid that. 10 business that holds a use permit who may be physically
11 All you need to do is adopt the language that 11 present on site.
12 we proposed, that gives you everything you need, the 12 None require a blind to be shut tight at night
13 baseline and the right to amend the use permit if you 13 while operating, and none require all the doors to be
14 can identify adverse impacts, without us having to count 14 shut while operating, regardless of weather or other
15 Jews who come to worship God or to participate in 15 circumstances. None require three monitors on site when
16 religious activities. 16 a certain number of people are expected nor to have
17 This Council, I think, should announce to those 17 parking passes distributed or lighted directional signs
18 who oppose this project just what Paul said, very 18 or painted curbs, removing available public parking, or
19 strongly and each of you, there are a lot of things we 19 threatening the cancellation of a religious set\rice as a
20 cannot do in connection with the restrictions you asked 20 penalty for failing to conform to these proposed
21 us to impose here. 21 conditions.
22 I have never seen a use permit issued anywhere 22 None has ever been subjected in the history of
23 in Tiburon or elsewhere in connection with a religious 23 this Town to such frequent and intrusive announced and
24 institution that does any of the things that this use 24 unannounced inspections and review over a four-year
25 permit does. 25 period, and none has ever had a condition imposed
Page 58 Page 60
1 I am not talking now just about religious 1 stating that for a period of four years all ofthe
2 institutions because I will introduce when I'm finished 2 limitations, all ofthe restrictions that micro manage
3 with the Clerk my remarks, which I wrote, the Belvedere 3 this Jewish synagogue may not be relaxed regardless of
4 Tennis Club's use permit, the Tiburon Lodge's use 4 whether they are actually necessary in years two, three,
5 permit, St. Hilary's use permit. No other town or city 5 and four based on what is then occurring.
6 does what you propose to do, and what is remarkable to 6 Rather, your proposed draft says, they may only
7 me is that apparently you don't think there's anything 7 be made more restrictive.
8 wrong with it. 8 None is allowed outdoor space to be built, a
9 Now, I don't claim to be the smartest person in 9 courtyard, only to be told when the religious
10 the world, but when someone writes and faxes to you and 10 institution or the nonreligious business can actually
11 says he teaches 28 years at the Georgetown law school 11 use it for their congregates or customers.
12 and drafted RLUIP A and that nothing that you are doing 12 In contrast, I ask you to remember St. Hilary's
13 is reconciled with it, I suggest that there's risk 13 outdoor courtyard, and the testimony received in this
14 there. And why should there be? 14 record that it's used constantly for religious and
15 You can remove it by simply adopting language 15 social purposes.
16 that accomplishes what you want while at the same time 16 None seek to list the specific religious
17 recognizing the circumstances that are involved with 17 holidays that an institution may worship without the
18 this applicant. 18 burden of these limits on numbers and hours.
19 Here is what makes them mad. Here is where I 19 I say this to you again, not because I wish to
20 think the palpable discrimination is clear beyond any 20 be insulting, but by what right do you tell this Jewish
21 scintilla of doubt. 21 synagogue when they can have a worship service, on which
22 No use permit has ever required a religious 22 holiday?
23 institution that I know of in Tiburon or elsewhere to 23 It's unbelievable to me that no one is saying
24 keep a log of how many people come to attend their 24 "this may not be right. We may be about to step in a
25 services. None has ever required a religious 25 bad place."
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1 None allow the Community Development director 1
2 to determine, apparently on his own standard less 2
3 subjective opinion, whether facts exist sufficient to 3
4 require an amendment to the UP. Only us. 4
5 None prevent the congregates from using the 5
6 public streets of this Town to park when they arrive for 6
7 services or other religious activities and force the 7
8 curbs in a single neighborhood of your Town, where we 8
9 have been for over 20 years, to be painted red, even 9
10 though everyone realizes it doesn't constitute a 10
11 violation of the California Vehicle Code to park there. 11
12 Only of the Kol Shofar use permit. 12
13 I told you I would submit the St. Hilary's, 13
14 it's already in the record, the Belvedere Tennis Club 14
15 and Tiburon Lodge use permits. 15
16 We respectfully, again, reject these proposed 16
17 limits on numbers and we consider them to be unlawful. 17
18 Surely, I ask, you can see the fundamental 18
19 unfairness in trying to saddle this congregation with 19
20 such limitations when everybody in this Town operates 20
21 free of them. 21
22 Particularly compelling and probative are the 22
23 remarks of Rabbi David Saperstein from the Religious 23
24 Action Center of Reform Judaism, whose letter apparently 24
25 you received today, who is the Georgetown law professor 25
Page 62
1 of 28 years, who did draft RLUIP A, and said he has
2 significant problems with what you are attempting to do
3 and they all relate to numbers. Numbers. Limitations
4 on people coming to worship.
5 I indicated already that I have proposed
6 language for a revision of Condition 2, and I offer it
7 to you now again.
8 I have copies of it. I think you have copies
9 of it. But in my closing remarks, I want to say this,
10 and I want to make sure that I say it calmly, and also
11 that there's no mistake about the earnestness of my
12 remarks and the support of the congregation that I
13 represent.
14 It didn't take a long time after reading the
15 Condition 2 for us to think and for us to speak to other
16 lawyers around the country and conclude the following,
17 which I offer to you:
18 The numerical limitations that you propose to
19 be placed on this use permit are completely
20 inappropriate. They are patently disparate and
21 discriminatory . You can't find another religious
22 institution in this Town or a business that has it in
23 there, and that should disturb you and make you ask
24 questions. If it doesn't, something is wrong, not
25 because I say it's wrong, but because it is wrong.
Page 63
It's violative of our client's constitutional
rights to the free exercise of its religion. It's
violative of RLUIP A. They constitute these numerical
limitations, easily identifiable, substantial burdens on
every Jew who is a member of Kol Shofar, every Jew who
wants to come there, to attend and visit, their right to
practice their faith, and it is hardly the least
restrictive means available to the Town as the law
requires to address its asserted compelling interest
here.
It's inconsistent with and unnecessary in our
opinion in view of staff and consultant studies,
analysis and reports on the impacts of the proposed
project.
And we will do whatever you make us do to make
sure that we aren't made subject to what we consider to
be these illegal and discriminatory limitations. We
don't want to.
Condition 2, as I proposed, indicates a way for
you to accomplish what you wish and to make the
congregation responsible for the people that come to it
and the activities that take place there.
Lastly, I want to say one thing about people
who oppose projects.
I have opposed projects. Perhaps you have in
Page 64
1 the past. I have represented people who have opposed
2 projects. But I want to state this: there's no
3 recognizable standard in the law that makes neighbors
4 elevated to some level that gets more attention than the
5 applicant, and just because they are upset about
6 something doesn't necessarily mean that legally we have
7 to agree with what they want.
8 And I think that that's important for them to
9 hear because sometimes there is an exaggerated sense of
10 entitlement and disingenuous legal puffing, or both; and
11 in this case I have not taken time to look at the TMC,
12 but I think what I would close with is to simply say
13 this:
14
15
16
17
18
19
20
21
22
23
24
25
Condition 2 we would like to see rewritten.
Condition 8E is the one that gives the
Community Development Director the unfettered right to
determine whether an amendment to our use permit is
necessary. In my opinion deprives us of due process.
It's unenforceable, illegal, and ought to be stricken.
Finally, in Section 13, which we appreciate, we
ask the last sentence be taken out because we think it
takes away that which you sought to give us by simply
saying that we'll let Kol Shofar come in, if they want
to come in, but nothing that Kol Shofar says is going to
override the compelling interest that the Town has which
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1 is inconsistent with RLUIP A.
2 I want to thank you very much for the time you
3 have allowed me to speak and that concludes our
4 presentation.
5 COUNCILMEMBER SMITH: I would like to ask you
6 one thing and I will ask Steve the same thing. You
7 have described Section 2 as being illegal,
8 discriminatory.
9 MR. RAGGHIANTI: Yes.
10 COUNCILMEMBER SMITH: If any portion of this
11 CUP is illegal or discriminatory, what's the effect of
12 paragraph 13 in your opinion?
13 MR. RAGGHIANTI: I will tell you how I look at
14 paragraph 13. If something is illegal, and you know it
15 now, if you believe that you cannot constitutionally
16 limit the number of people who come to a religious
17 institution to pray and worship, why do we have to come
18 in and ask you to change it? That's my point.
19 RLUIPA doesn't say if there's something wrong
20 we have to exhaust our administrative remedies.
21 When y<;>u are dealing with a religious
22 institution, the rules are different, and that's what I
23 am saying here. You know the rules better than I do,
24 Paul, in terms of what RLUIP A requires.
25 I think the limitations impose a very
1 substantial burden on our congregation. It will make
2 us, if those numbers stay in, worry about numbers, and
3 it will cut down on the things we do.
4 Weare not suggesting that we are going to do
5 more. We are simply suggesting that if things increase,
6 why are we being treated differently than any other
7 operator, and why should we now have to be burdened by
8 things that you have no proof will ever occur?
9 COUNCILMEMBER SMITH: Does it make any
10 difference to you that the numbers that we have in this
11 CUP and the specifically identified religious holidays
12 that we have identified in this CUP were placed here
13 because Kol Shofar gave us that information?
14 MR. RAGGHIANTI: Yes and no. It does make a
15 difference to me because they are in the record. I
16 think it's important to point out that they were given
17 to you in connection with the environmental review that
18 was done. They were never intended to give you a
19 baseline against which you could say "you can't have any
20 more" and that's what you are saying.
21 You can't read those numbers without saying, I
22 can't have the 100 and first person there. Why should I
23 have to come back and ask you to have 101? That's the
24 problem.
25 I am not arguing with you that there's not a
18 (Pages 66 to 69)
Page 66
Page 67
1 ' historical baseline, nor am I suggesting that it will
2 never be exceeded. I am telling you, in my humble
3 opinion as a lawyer, I don't think you can limit the
4 number of people who come to a meeting in a church or a
5 synagogue here or anywhere else. I think that's exactly
6 why RLUIP A was legislated into existence and why our
7 constitution exists, at least the First Amendment.
8 MAYOR GRAM: Gary, I have had this discussion
9 with several members of the Kol Shofar board, and I want
10 to confirm it, that it is your position that there
11 should be no limitations, except for member-sponsored
12 events, there should be no limitations at all on what
13 you can do in there on any day of the week in terms of
14 limitation of numbers or limitations on time.
15 MR. RAGGHIANTI: Well, I don't agree. I don't
16 know who told you that. I think I have a very strong
17 feeling that government should stay out of my business
18 if I am in church. Avery, very strong feeling about
19 that, here or anywhere else. 1
20 I think you should tread very lightly. I think
21 your arms are tied a little bit. I think it's
22 incredible that Ted Kennedy and Warren Hatch did
23 anything together, but they created RLUIP A.
24 Having done that, I think that if there were
25 4,000 people at Kol Shofar, you would have every right
Page 68
/'
1 to send the police up there and to get rid of them. It
2 can't accommodate that type of crowd; or if the fire
3 chief came up and said there are too people here that
4 they should leave.
5 But when it comes to abstract regulation in a
6 land use context, we sort of blended over, have we not,
7 into the constitution and RLUIP A.
8 If you don't think that there's something wrong
9 with the fact that for the first time in the history of
10 this Town you are going to try to do this to a religious
11 institution, then I don't have anything else to say.
12 I am not threatening you. I am trying to help.
13 I see an attempt being made by the congregation to tell
14 you, we want to pray together in worship and do good.
15 We don't want to sue.
16 MAYOR GRAM: Gary, I have been told by several
17 members of your board in what I will call very cordial
18 and friendly conversations that that is the position of
19 Kol Shofar; that there should be no regulation on any
20 night of the week as to the number of people, what the
21 use is and how late it goes.
22 MR. RAGGHIANTI: Well--
23 MAYOR GRAM: I guess my question to you is, is
24 that Kol Shofar's position or not?
25 MR. RAGGHIANTI: I don't think it is.
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1 MAYOR GRAM: What is it?
2 MR. RAGGHIANTI: They will speak. New member
3 events, we've stipulated to a time. We've stipulated to
4 a number. We've stipulated to a number. Non
5 new-member weekend events, I think that the historical
6 baseline 'is the number of people we will have there.
7 What I worry about is what ifthere are a little bit
8 more?
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COUNCILMEMBER SMITH: What if there's a lot
more.
MR. RAGGHIANTI: Ifthere's a lot more, then
you have the right under Condition 2, as I have written,
to bring them in and say, "You are creating a problem."
But no one seems to take a look at history here for the
purpose of projecting into the future.
If Kol Shofar had operated as an entity that
caused problems in the neighborhood for the last decade,
I'd say, okay, I see your point, but I don't see your
point.
MAYOR GRAM: Let me ask you this, because I
think Paul asked you at one point and tried to recite it
to me, and I am not sure if I understood it, and that
was what if on a Wednesday night Kol Shofar wants
to have a fundraiser and have maybe six or 700 people
there until 11 :30 at night? Is that acceptable?
Page 70
MR. RAGGHIANTI: I don't know whether a
fundraiser, because I am not Jewish, is a CKS sponsored
event?
1
2
3
4 MA YOR GRAM: An event to raise money for CKS.
5 MR. RAGGHIANTI: I tell you I would rather
6 have them answer that question. I don't know the
7 answer to that.
8 I can tell you that I believe that the
9 historical use of this facility should be the driver in
10 your assessing the future, not what if there's 600
11 people.
12 These people, I can't say this too often, are
13 so different than the ones I am used to representing who
14 are developers or who are business people. They are not
15 interested in things that have to do with the making of
16 money, and I don't think that they have demonstrated in
17 the past that they haven't been good neighbors.
18 Paul mentioned a meeting or so ago, maybe this
19 is not one of them, this is a school. It's 40,000
20 square feet. Every other school or most schools have
21 been expanded. The ones we had two meetings in had been
22 expanded greatly.
23 I am not talking any longer about the size of
24 the MPR. I am simply suggesting to you that I see a '
25 very real and avoidable risk to the Town that I'm trying
Page 71
1 to prevent happening, and that is, if you limit the
2 number of people who can come and pray in this
3 institution, I think you are going to lose, and I think
4 it's completely unnecessary to draw that line in the
5 sand, and I hope you don't do it. That's all I will
6 say. Because saying on the one hand, we don't intend
7 to, and on the other hand, I will put the numbers in is
8 entirely inconsistent.
9 Take the numbers out and see what happens.
10 COUNCILMEMBER BERGER: Thank you, Gary. I
11 appreciated your remarks and the text we received for
12 the rewrite of the Condition 2, and that's what I wanted
13 to talk to you about some of the language, the nuts and
14 bolts, how-do-you-do-it way.
15 What I am trying to get my hands on here, it
16 says in the last sentence of that first major paragraph,
17 Any substantial increase in use from that already
18 established, or baseline, as you called it, which
19 creates identifiable adverse neighborhood impacts shall
20 require an amendment to the CUP as determined by the
21 Planning Commission.
22 How? If you have no numbers? We say the
23 people will come in barefoot, or I mean, how do you do
24 it if you don't have some kind of numbers? You do have
25 numbers on other pages.
Page 72
1 What I am trying to figure out, well, there
2 seems to be a problem here in some way. The CUP, it
3 seems to me to have to contain some kind of number in
4 order to be, to regulate anything.
5 MR. RAGGHIANTI: There are numbers for new
6 member-sponsored events. That's easy. There are no
7 numbers, except the baseline numbers, which you would
8 never have had except we presented them to you, and they
9 are included in my revised Condition 2.
10 You know what they are. It's no different than
11 saying St. Hilary's is violating their use permit or the
12 Congregational Church, if they have one, or one of the
13 restaurants downtown.
14 How? People complain about noise that's
15 happening, traffic that's occurring, an event with
16 thousands of people or hundreds of people that went on
17 until midnight or 12:30. Those reports, as they are
18 made in every city, are made to your staff.
19 COUNCILMEMBER BERGER: If that's the case,
20 then, how do we regulate? By less people is the only
21 thing I can think of as a way to do it that makes sense.
22 MR. RAGGHIANTI: I think what you do is the
23 same thing that you do with all of the other holders of
24. use permits. Why are we the only ones you are
25 concerned about?
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1 If one of the restaurants created too much
2 noise or there were too many fights, or the police went
3 there 20, 30 times a month, that would certainly find
4 its way to the Council and something would be done about
5 it. You would tell the staff to notice an amendment or
6 revocation of use permit. Staff would prepare a
7 report, bring in a police report and say, We have had a
8 lot of problems with this and neighbors come in and make
9 a determination as to whether you had substantial
10 evidence in the record to revoke. What's the
11 difference?
12 COUNCILMEMBER BERGER: We are dealing with that
13 kind of thing, a restaurant in Town that has less
14 parking provided for than is typical in our Town and we
15 talk about the exact numbers, how many seats, how many
16 people at the tables, hours of operation, everything.
17 Exactly that way.
18 And if there was a problem, the way we would
19 solve it, we would say, close earlier, have fewer
20 people. It would have something to do with a number.
21 And, I think, I am sensitive to what you are
22 asking here, but I am not so sure if there are no
23 numbers going into the program here, how one amends a
24 CUP. Well, do you put very, very, very, very
25 important, or do you put a number on it?
Page 74
.
1 MR. RAGGHIANTI: I think that I should 1
2 approach it from perhaps a different perspective and try 2
3 to explain it this way. 3
4 The difference between Sam's, or some of the 4
5 other restaurants on Main Street, or any other holder of 5
6 a use permit and a religious institution is huge. 6
7 Putting numbers on numbers of people who can 7
8 come to a religious institution implicates problems, 8
9 which is why the people who are here tonight and will 9
10 speak to you. 10
11 How do we do it? Tell me the last time you can 11
12 recall anywhere when a church had a use permit revoked? 12
13 I don't know of any. 13
14 I know when there have been uproars when cities 14
15 have welcomed homeless on cold nights, but that's a 15
16 different situation. 16
17 I say this, again, respectfully, that putting 17
18 numbers is a very foolish and unnecessary thing to do. 18
19 If your staff can't figure out a way to revoke 19
20 a use permit and to modify it, I will be very surprised. 20
21 They are a good staff, and the way they would do it is 21
22 they would listen to neighbors. 22
23 And what I am worried about, and you should 23
24 too, knowing these opponents and the way things have 24
25 happened to date, can you imagine trying to enforce a 25
Page 75
20 (Pages 74 to 77)
1 use permit, with somebody coming down, there were 103
2 people there, we stood outside and we counted. And it
3 was actually 11 :04. There were 32 people in a class.
4 It's burdensome. It's unnecessary. It burdens our
5 practice of faith and I think it subjects this Town to
6 palpable risk.
7 Could I be wrong? Yeah. I am one of the few
8 lawyers who will stand up here and tell you, yeah, I can
9 be wrong, but I don't think I am.
10 MA YOR GRAM: So effectively what I hear you
11 saying is we should regulate subsequently versus
12 prospectively?
13 MR. RAGGHIANTI: Absolutely. I think you
14 should do exactly what you are doing with every other
15 religious institution in this Town and every other
16 holder of a use permit.
17 You tell me, or a court, why you treat Kol
18 Shofar differently? What's the reason? What's the
19 reason this congregation is being treated differently
20 than any other holder of a use permit? What's the
21 reason for it?
22 UNIDENTIFIED SPEAKER: Can you answer that?
23 MR. RAGGHIANTI: I am just talking. This is
24 not a question and answer. It's a rhetorical question.
25 I mean that, as a lawyer, we get inside of a
Page 76
courtroom some day somebody will have to answer that
question. What's the reason? Because the neighborhood
is upset? This neighborhood is somehow different than
any other neighborhood?
Respectfully, I don't think this is a very
difficult decision to make. I just think you are
giving with the right hand and taking with the left.
If you don't intend to regulate us, don't put
numbers on us. Please. Thank you very much for the
time.
MAYOR GRAM: Thank you, Gary. Next, I
~ssume, Mr. Volker, are you going to be speaking?
Would you address the issues that Gary has
brought up? Save your time for these very important
issues. CEQA is, you have written so many good
treatises on it, I don't know that you have to address
it tonight.
But the issues that he has raised I think are
very important.
MR. VOLKER: I agree. I would be pleased to
address those issues.
If it please the Council, my name is Stephan
Volker. I am a lawyer representing the Tiburon
Neighborhood Coalition. It's my honor to appear before
you here tonight and thank you for taking the time you
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1 have to listen to the arguments and read the documents 1 unable to construct the particular design of building
2 in this case. 2 and parking lot that it has proposed on the particular
3 I wanted to stress to you our perspective, 3 parcel it has identified.
4 which is to plan for success rather than for failure. 4 We conclude that the church has not met its
5 It's the duty of every local government to take into 5 burden of persuasion under RLUIPA. We have no reason to
6 account' the potential adverse impacts of a proposed 6 believe that the city would not approve an application
7 project, to carefully review them, to fully and fairly 7 for a smaller or differently configured building and
8 disclose them, and to do its level best for the 8 parking lot that sufficiently addressed the applicable
9 community at large to mitigate or avoid those impacts. 9 requirements relating to buffers and other forms of
10 In that sense, a religious institution that has 10 impact mitigation.
11 proposed a project is no different from a business or a 11 This is a sensibly reasoned decision. It cites
12 residential use or an industrial use. 12 to dozens of RLUIP A decisions throughout the land. I
13 In every case, the local government has a duty 13 commend it to your attention.
14 under the constitution of this state and under the 14 The passage that I read appears at page 11560f
15 zoning and planning laws of this state and under your 15 the Pacific Third Reporter.
16 own General Plan and Zoning Ordinance to make sure you 16 We are not here tonight to suggest that the
17 do your level best to identify the impacts fully and 17 Jewish community should be regulated any differently
18 fairly and attempt to avoid or mitigate them to the 18 than any other religious institution or any other
19 extent that you can under the law. 19 landowner. Absolutely not.
20 The law in this case allows you to do that even 20 We would be the first to defends its right to
21 with a religious institution. 21 practice its religion and will do so as necessary in
22 There are two decisions I want to refer you to. 22 this case.
23 The first is the leading case in the Ninth Circuit, 23 We do not share the Town's view that the best
24 which is the City of Morgan Hill case. In that case the 24 way to go about that, however, is to micro manage its
25 court defined substantial burden under RLUIP A. The 25 operations.
Page 78 Page 80
1 court held it means "oppressive to a significantly great 1 We believe that a streamlined approach that
2 extent. " That means that it impairs the free exercise 2 identifies the maximum permissible size of the facility,
3 of religion to a significantly great extent. 3 given the parking constraints on site, which as we have
4 We have an institution here that has operated 4 seen are somewhere between 139 spaces and perhaps 156
5 fully and freely for 23 years. 5 spaces, we don't know for sure, but that appears to be
6 It has received this community's support. It 6 the range of values that the experts have suggested
7 has been permitted to grow, to triple in size over that 7 controls this site.
8 period of time. 8 Absent more parking under the Town's zoning
9 Now it proposes another significant increment 9 code, the city must assure that traffic safety in the
10 in growth, and it's time to come to terms with the 10 area is protected, and to do that one follows Section
11 potential adverse impacts of that growth. 11 16-5.8.4(d) of the Zoning Code, which tells you that
12 The leading state appellate court decision 12 once the capacity of a facility, a public assembly has
13 regarding the prerogatives of local governments to 13 been determined, one divides by four to determine the
14 regulate under RLUIP A is the Corporation of Presiding 14 number of parking spaces required.
15 Bishop versus City of West Linn. It's a Court of 15 We understand that even with the reduction in
16 Appeals decision of Oregon in 2004. 16 size of the multi-purpose room that the capacity remains
17 I would like to read to you the pivotal 17 642 persons.
18 language in that case. That case was similar to this 18 Under the zoning ordinance section I have
19 one in that a religious institution, in that case the 19 referred to, if you divide that by four, it yields 161
20 Mormon Church, had proposed to expand facilities, to 20 parking spaces.
21 build a larger facility in a residential area. 21 Similarly, the zoning ordinance provides that
22 The Court explained the manner in which the law 22 where there are potentially multiple uses that might
23 should be applied. 23 occur simultaneously, and in this case we know that the
24 The burden resulting from the city's decision 24 sanctuary has a capacity of 550 persons, dividing by
25 to disapprove the project is that the church remains 25 four yields 137, added to 161 yields 298.
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1 It is incumbent on the city to avoid a train
2 wreck scenario where we have twice as many persons using
3 this facility as the parking would permit.
4 Why is this important? You have before you a
5 letter from a resident of the Town. In that letter,
6 dated February 2, and it's from Mr. Timothy Metz, he
7 recounts a personal observation recently in the vicinity
8 of the Kol Shofar building.
9 He explains: I was driving down Reed1and Woods
10 Way on an Sunday afternoon when parents were parked on
11 both sides of Reed land Woods Way waiting to pick up
12 their children from religious school. I noticed a girl
13 about to cross the street mid block to get into her
14 parents' waiting car. Meanwhile, another parent in a
15 black BMW was parked in the red zone actively picking up
16 her child.
17 I stopped my vehicle behind the black BMW and
18 waited for the girl to cross, when to my horror the
19 black BMW sped off and narrowly missed hitting the girl
20 who was about to step off the curb.
21 Now this is a scenario that could happen if you
22 don't provide for enough parking on site for the
23 anticipated number of users of the facility.
24 It would be irresponsible for the counsel to
25 permit a facility to be built that did not provide for
Page 82
1 public safety.
2 Nothing in RLUIPA requires the Town to approve
3 a facility which traffic engineers and parking engineers
4 tell you could be unsafe.
5 Our concern here is that the city retain your
6 constitutionally protected authority to regulate the
7 size of this facility in relation to its impact on
8 traffic safety, parking, noise, light and glare in order
9 to preserve the character of the neighborhood as
10 required under the General Plan and the Zoning
11 Ordinance.
12 We join with Kol Shofar in requesting that you
13 revise the approach taken in this case.
14 We do not want to expose the city to needless
15 litigation under RLUIPA because the path selected,
16 however well meaning and however thoroughly vetted with
17 professionals, nonetheless has the appearance of a
18 prejudicial impact because it micro manages a particular
19 religious institution.
20 I urge you to take a step back from that
21 approach and to reconsider an approach that is
22 streamlined, direct, simple and easy to enforce, one
23 that simply acknowledges as required under the zoning
24 ordinance that the size of the facility is the primary
25 indicator of its impacts on a neighborhood and is the
Page 83
22 (Pages 82 to 85)
1 best means of regulating those impacts, and whereas here
2 it does not provide adequate parking, then one has to
3 reconsider the proposal.
4 And let me explain why. Throughout the
5 analysis the Town has appeared to engage in wishful
6 thinking or averaging.
7 The selection of the 2.3 persons per vehicle,
8 which underlies your judgment as to how much parking is
9 necessary, for example, is probably an appropriate
10 average but is not protective of public health and
11 safety. It is, to the contrary, a prescription for
12 failure.
13 It's analogous to building a freeway overpass
14 that's sized to accommodate the average size of a truck
15 passing underneath. If a truck is two feet taller, you
16 have a failure of your design.
17 So, too, here if you accept an average number
18 of persons per vehicle rather than providing for the
19 least number that you might expect on any occasion,
20 which your experts have already told you is in the range
21 of two, then you are planning for failure.
22 Similarly, if you assume that only the
23 multi-purpose room will be used and not the sanctuary
24 together at the same time, you are planning for failure
25 because you are not providing enough parking on site to
Page 84
assure that someone won't be hit by a car passing
outside the facility, as I have recounted in the
example, the personal observation that has been
communicated to you.
Now, I have a number of specific suggestions
for areas where, notwithstanding the Council's best
efforts, you, nonetheless, have not solved the problem.
I don't want to belabor those points if the Council
wishes that I address more specifically the RLUIP A
1
2
3
4
5
6
7
8
9
10 issues.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
COUNCILMEMBER SMITH: I'd like to ask a
question while you are on the topic you are on now.
What is the Town's compelling interest in reducing the
size of the multi-purpose building, assuming, as I think
you must, that they intend to use it for religious
purposes? So what compelling interest could we show for
further reducing the size of that building?
MR. VOLKER: I think there's a two-step
analysis here. If I might refer you to the two court
decisions I just mentioned, neither went to that second
question, which is, what do you need to show to
establish a compelling public interest or state interest
in the regulation?
The reason they didn't is in both cases the
court held there was no substantial burden on the
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1 exercise of religion.
2 Why did they come to that conclusion? They did
3 so because in both cases the city had articulated a
4 rational basis for its determination that regulating the
5 size of the facility, its number of visitors, for
6 example~ had a specific relation to public health and
7 safety, had a specific relation to local standards that
8 protected the community from unsafe conditions.
9 COUNCILMEMBER SMITH: How does that differ
10 from the caps? I mean, how does the size of the
11 building make any difference in terms of those very
12 impacts.
13 MR. VOLKER: I think the simple way to avoid,
14 if! might put it this way, bluntly, the quagmire that
15 perhaps we have embarked on with this proposal is to use
16 the size of the building to dictate the number of
17 parking spaces and to step back from the number of
18
19
20
21
22
23
24
25
persons.
What we see here, unfortunately, and I am sure
it was well intentioned, is a very specific micro
managing of virtually each and every event or activity
that might ensue during the course of a week, and, over
time, I would share the view that becomes unpalatable
both from the perspective of effective public
enforcement and from the perspective ofthe regulated
Page 86
1 institution, in this case, the Kol Shofar congregation.
2 I don't think it's a useful way to proceed.
3 It's too complex, it's too confusing, it's too subject
4 to whimsical determinations, that 101 is acceptable, but .
5 102 people is not.
6 If you have, as most communities have, building
7 regulations that require a specific number of parking
8 spaces, based on the capacity of the building proposed
9 to be constructed, that gets you out of micro managing
10 and gives you an objective standard, everyone can
11 understand it, and you simply require that the spaces be
12 required.
13 In this case, we haven't reached that point.
14 COUNCILMEMBER SMITH: What if, for example, we
15 took Monday, Tuesday, Wednesday, Thursday, we have this
16 thing about 30 people can go to the lectures,
17 educational, etc., what if we took that out and it says,
18 you won't have more than "X" number of people and you
19 will be gone by a certain time, how is that micro
20 managing their activities?
21 MR. VOLKER: Well, it requires for its
22 enforcement, perhaps, that someone monitor the number of
23 people attending the events, and I think that that is
24 unnecessary and, frankly, I think it's inappropriate.
25 I would prefer, and the community would prefer,
Page 87
1 that we have definite enforceable transparent standards
2 that everyone can live by, that are clearly related to
3 adverse impact prevention.
4 The hallmark of constitutional local land use
5 management is prevention of specific harm to the public
6 through noise late at night, through parking and traffic
7 safety impacts. For example, we have those impacts
8 here.
9 I am sure Kol Shofar agrees that those are
10 legitimate areas of regulation. No one would suggest
11 we could have a thousand people in a building with no
12 parking.
13 It follows from that that at some point along
14 that continuum you reach a point, yes, the building
15 would be permitted because enough parking has been
16 provided and the Town has adequate standards to govern
17 that.
18
19
20
21
22
23
24
25
The problem we have here is we haven't
adequately addressed how best to use existing regulatory
regimes within this Town to properly prevent adverse
impacts from this facility.
MAYOR GRAM: So have you come up with a size
of multi-purpose building, or should I say room, because
the rest of the building is really not people oriented,
that you think would be permissible or should be
Page 88
1 allowed?
2 MR. VOLKER: We are prepared to stipulate that
3 the size of the building should not exceed what is
4 permitted under the Zoning Code, based on the number of
5 parking spaces that can be accommodated on this site;
6 and when we run the figures, it appears that that's
7 going to require a substantial reduction in the size of
8 the facility, and we urge the Town to take a step back,
9 to look at this issue from that perspective, and we
10 welcome the participation of everyone in the community,
11 obviously Kol Shofar would have to be involved in that
12 tertiary inquiry to find an appropriate means of solving
13 this problem.
14 MAYOR GRAM: Let me interrupt you for one
15 second and ask our staff and our Town Council and Scott,
16 our Planning Community Development Director, do you
17 believe that the parking requirements that have been
18 drafted into this proposed permit are in violation of
19 our Zoning Code?
20 MS. DANFORTH: I believe that the Community
21 Development Director has placed before you findings
22 which explain why the project as proposed tonight is
23 not. The mitigation measures will offset parking
24 impacts sufficiently if the Council decides to approve
25 the project as proposed, and Scott can expand a little
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1 more on those parking mitigation measures.
2 MAYOR GRAM: I think we know what they are.
3 We've all studied them.
4 So, Mr. Volker, Steve, why do you think it's
5 violative of our Zoning Code to use the proposal that we
6 have, whereby we require as a condition of holding an
7 event that they have provided enough parking spaces, be
8 some of them off space, and these are going to be very
9 few events per year. Why is that violative of our
10 parking zoning requirements and we not have the
11 discretion to do that? Tell me where the law is or the
12 ordinances, statutes are, that say we don't have the
13 right to make that deviation.
14 MR. VOLKER: Well, initially the problem arises
15 from the fact that you haven't grappled with the fact
16 that whereas here you have facilities which could host
17 more people than you have on-site parking, you haven't
18 identified a specific location where the off-site
19 parking would be provided. You haven't required that
20 Kol Shofar file with the city an application for the
21 event, which demonstrates that ample off-site parking is
22 available and that a shuttle system is available and
23 would operate.
24 We have seen from the past that when off-site
25 parking was attempted for this facility it failed over
Page 90
1 and over again, and we presented photographs that on the 1
2 one hand show unlawful parking in the vicinity of the 2
3 facility, and on the other hand, vast open space within 3
4 the designated off-site parking area. 4
5 We think that unless and until there's evidence 5
6 that that works, something more has to be done, and it 6
7 hasn't been done in the conditions proposed for this. 7
8 MAYOR GRAM: These conditions do add 8
9 additional requirements, one of which is that they 9
10 assign parking lots, not parking spaces, but they assign 10
11 to enough cars that it takes them to the limit or close 11
12 to the limit at Kol Shofar, that they will be allowed 12
13 they should come to that parking lot and they should put 13
14 that flyer in their window. 14
15 Other cars will be assigned to other parking 15
16 spaces that have parking lots that have given written 16
17 acknowledgment that they are available for that event. 17
18 Why is not that an additional control that 18
19 would work? 19
20 MR. VOLKER: Similar efforts have been proposed 20
21 in the past and they haven't worked. We don't have any 21
22 faith that continuing similar kinds of restrictions is 22
23 going to work here. 23
24 There is in the code an acknowledgment that 24
25 when you have the potential for multiple uses occurring 25
Page 91
24 (Pages 90 to 93)
1 simultaneously, for example, within the sanctuary, with
2 a capacity of 550, and within the multi-purpose room
3 with a capacity of 642, that parking should be provided
4 in the number of298 spaces. That hasn't been provided.
5 MAYOR GRAM: So if there are going to be, let's
6 say, no more than ten events a year out of 365 days
7 where they would be bringing in more people than their
8 parking lot can accommodate, you say they would have to
9 provide parking for absolutely the maximum potential,
10 instead of using this alternative method?
1 I MR. VOLKER: The problem with the alternative
12 methods is that it has not worked in the past.
I 3 MAYOR GRAM: It's never been tried that I know
14 of.
15
16
17
18
19
20
21
22
23
24
25
MR. VOLKER: There's no requirement that an
application be submitted to the Town identifying a
specific location, in a process provided for the public
to comment for the city to make a determination.
And if there is to be off-site parking, ndw is
the time to do that. Now is the time to designate the
site. Now is the time to set in place the leases or
covenants or contracts to assure that that off-site
parking system will be in place, will be functional,
will be a success, and we haven't seen that.
Instead, we have this after the fact bandaiding
Page 92
approach where once a problem becomes insufferable, then
efforts will be made through a local ad hoc committee to
find answers.
We don't believe you have done enough to
identify the parking impact of the facility, first of
all.
The number of parking spaces proposed, 156
falls short, even if only the multi-purpose room is
going to be used, and we know that the facility has
space for many other uses that might take place
simultaneously.
MA YOR GRAM: So you don't feel that placing a
limit of, let's say, 360 people in the entire facility
and going above that requires extra parking is enough,
and, if so, why?
MR. VOLKER: I think that requiring a count of
individuals attending events is fraught with peril for
everyone. It's very hard to enforce. It appears to
place an inappropriate burden on the operator of the
religious institution.
It's unnecessary where you have zoning codes,
as here, which tell you the number of parking spaces
required for the capacity of the buildings to be
constructed.
If the neighbors had their way, Kol Shofar
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1 would be permitted to expand its facility and to 1
2 remodel, but the parking would be required on site, and 2
3 there would be a reasoned demonstration of the capacity 3
4 of on-site parking, and then the buildings would be 4
5 sized to conform to that. 5
6 That would eliminate the potential for off-site 6
7 parking and traffic safety impacts. 7
8 Those are the primary areas of concern. And 8
9 the other has to do with closing times. 9
1 0 MAYOR GRAM: That is what I want to get to 10
11 next, that concept, and the specifics, what you see in 11
12 this proposal. 12
13 MR. VOLKER: Yes. The Neighborhood Coalition 13
14 has, I believe, consistently urged, we have a simple 14
15 rule, and that is lights out and shutdown by 9:00 p.m. 15
16 six days of the week. The one exception being Sunday, 16
17 which should be 8:00 p.m. 17
18 It's a simple rule. It's commonly followed in 18
19 other communities, and that would -- 19
20 MAYOR GRAM: In religious institutions? 20
21 MR. VOLKER: It shouldn't make a difference 21
22 because the religious institution, like all uses, must 22
23 be a good neighbor, must assure that it doesn't keep 23
24 small children awake at night, hence the 8:00 p.m. 24
25 closing on Sunday. 25
Page 94
1 It doesn't constitute a substantial burden on
2 the exercise of religion. Instead, it demonstrates good
3 neighborly relations.
4 COUNCILMEMBER SLA VITZ: Steve, I wonder if you
5 could help me with something that Gary said. So
6 currently there are no regulations about the number of
7 people that can be at the synagogue or how late they can
8 be there, and one of his statements is that there aren't
9 any problems the way it is now, so if they have 300
10 people staying until midnight, if they have done that,
11 it hasn't been a problem; so, why, ifit hasn't been a
12 problem in the past, do we try to regulate it in the
13 future? Could you speak to that?
14 MR. VOLKER: Yes, I can. There are both
15 subjective and objective approaches to regulating
16 late-night noise.
17 A subjective approach would involve conducting
18 a survey of the neighborhood to ascertain whether there
19 are any neighbors who have experienced loss of sleep or
20 other deleterious effects from late-night closings at
21 the Kol Shofar facility.
22 That has not been done.
23 Anecdotally, I have heard from my clients, yes,
24 there have been disturbances and, yes, there have been
25 concerns expressed.
Page 95
I don't suggest that that is the best approach.
I think an objective approach commands itself
here.
To that end, consultants reviewed the noise
spikes associated with late-night events, particularly
when people are opening and closing car doors, there are
car alarms going off when people enter their cars late
at night. There is discussion among the late-night
activity folks as to how much fun they had, and we
should do it again, Fred, and so on, and those kinds of
discussions late at night in a bowl-shaped environment,
as we have here, can keep children awake, and that's
inappropriate.
And the objective standard that was suggested
in this case is that if a noise spike reaches 25
decibels higher than the background noise, and here we
have a background noise level of 40 or 41 DBA and we had
spikes up at 65, that that's far out of the standard.
It's extremely inappropriate for this peighborhood, and
it would be --
MAYOR GRAM: What did you say the spike limit
was above background?
MR. VOLKER: The spikes reached 65 decibels in
an environment where the background noise at that time
of the evening was 40 or 41 decibels.
Page 96
1 MA YOR GRAM: And what did you say the limit
2 should be on the spikes?
3 MR. VOLKER: The limit should be far less than
4 that. And whether it should be 45 or 50, I don't know.
5 I leave it to you.
6 However, what we pointed out through expert
7 testimony before the Planning Commission was that the
8 assessment conducted by the city did not acknowledge the
9 adverse impact of noise spikes late at night.
10 Instead an LDN approach was utilized, which
11 averaged noise over a 24-hour period and thus
12 trivialized the significance of the late-night noise
13 spikes.
14 That's an objective criterion that you can
15 employ in a residential neighborhood that has a
16 bowl-shaped context where noises generated at the base
17 of the bowl are amplified as they move up slope and are
18 heard by hundreds of people in the neighborhood. It
19 cries out for attention to a regulation sensitive to the
20 spikes. That hasn't been done here.
21 COUNCILMEMBER SLA VITZ: I guess the question I
22 have is that's the existing condition. There are these
23 noise spikes when they have these events, and there have
24 not been complaints to the Town.
25 So if they weren't regulated in the past, that
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1 hasn't been a problem, why do. they need to be regulated
2 in the future?
3 MR. VOLKER: Well, it's my understanding that
4 there have been complaints, number ane. I have heard
5 some. But, mareover, if! lived in a neighborhood where
6 a dog barked ance a month, I certainly wauldn't
7 complain. If the dog barked ance a week, I might
8 cansider it.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
If you increase the frequency af the
disturbance, yau will begin to. exceed the paint af
tolerance, if yau will, for that kind af activity and I
think that's the cancern here. It's a legitimate one.
COUNCILMEMBER SLA VITZ: And, then, finally, to
find a similarity between yaur position and Kol
Shofar's, yau too. think that identifying a maximum
number af peaple at different days af the week is micra
managing and it's nat something that yau with yaur
knowledge ofRLUIPA wauld recammend in this situatian?
MR. VOLKER: I don't recammend it, no.
I think there are simpler ways to go. about
this; and, as I said, there are a lat af unpalatable
features of a regu1atian that requires for its
enforcement a monitar caunting the number af persans who
attend events. I just dan't think that's appropriate.
COUNCILMEMBER SMITH: If I hear you carrectly,
Page 98
1 what yau are saying is, from day ane, just shrink the
2 building. The building shauld dictate the number af
3 peaple. And yau have heard from aur awn staff that with
4 the mitigatian manitaring we have in place the, 156
5 spaces that we are laying aut daes camply with aur
6 zaning ardinance, and we have the discretian to. approve
7 the project, and it is legal based an the size that it
8 is right naw.
9 Sa what if we said 15 percent reductian, like
10 we are saying right now, since it camplies with the law,
11 doesn't that fit within your argument? Isn't that
12 exactly what yau are saying?
13 Build the building to. the size that the parking
14 dictates, and given what I think I heard aur staff tell
15 us is we are in compliance with our parking
16 requirements. We have the discretion to. approve this at
17 that size. Why would we shrink it mare?
18 MR. VOLKER: Well, far several reasons. First
19 afall, the reductian in size afthe multi-purpase
20 building from 9733 square feet to about 8300 square feet
21 daes nat result in a reductian af the size in the
22 multi-purpose room, which as I understand it will still
23 remain at roughly 4500 square feet.
24 As such, under your ardinance, it has a
25 capacity af 642 individuals, which divided by four
Page 99
26 (Pages 98 to. 101)
yields a minimum parking space number af 161.
COUNCILMEMBER SMITH: But staff said that's
1
2
3 nat haw we do. it.
4 MR. VOLKER: All right. We differ with staff
5 with respect to that slight difference.
6 I had understaad, Councilmember Smith, that yau
7 were suggesting that 15 percent would translate into
8 reductian of the capacity of the room, and I believe
9 that that's, if that was --
10 COUNCILMEMBER SMITH: That is not what I am
11 suggesting. Let me give yau a different type of
12 example.
13 When yau are building a shopping center, you
14 don't design the parking lot far all ofthase people who.
15 come on Christmas, do. yau? You design the parking lat
16 far averall expected use, and sametimes yau have a
17 mitigation measure, hey, all afthe people who. wark in
18 the shapping center, they have to. park aver there at
19 Redwood High Schaal to meet the requirements.
20 There are mitigation efforts.
21 The staff said the mitigatian measures we have
22 put in place are cansistent with the size afthe
23 multi-purpose room we have right naw.
24 So I am not sure what wauld mativate us to. want
25 to. do. what I think I am hearing fram yau is a
Page 1 00
1 substantial reductian. As a matter af fact, based on
2 yaur numbers, it probably wauld be at least a 50 percent
3 reductian in the multi-purpose room to camply with yaur
4 approach to. haw we are suppa sed to. do. parking, is that
5 right? Is that what yau are propasing?
6 MR. VOLKER: That would be the effect af
7 recagnizing that nothing in yaur permit process right
8 now farbids the use of the sanctuary with a capacity of
9 550 individuals at the same time that the multi-purpose
10 roam wauld be aperated at its capacity af 642.
11 If yau have nearly 1200 peaple present in the
12 facility, that would, in fact, require an-site parking
13 af 298 spaces.
14 But to carry yaur analagy farther, if this were
15 lacated in a commercial zane, I wauld agree with yau,
16 there's a lat mare room for errar and a lat mare roam to
17 maneuver to. accammadate the Christmas, the
18 past-Christmas shapping spree events ar the day after
19 Thanksgiving.
20 Here, it's a residential area, and yau have
21 seen the pictures af the unlawful parking, af the
22 T -turns that are very hazardous far young children.
23 Yau knaw that there are yaung children earning
24 to the Belaire Schaal. It's nat appropriate to. place
25 thase children at risk because the city is unwilling to
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I enforce its zoning ordinance.
2 MA YOR GRAM: Does anyone else have questions on
3 what Mr. Volker has discussed so far? We've cut into
4 your time to some degree. Do you have any other issues
5 you want to address?
6 MR. VOLKER: Just a few and I will be brief.
7 We believe that despite staffs best efforts
8 and the Council's continuing striving to solve this
9 problem that there yet remain a number of impact gaps
10 that haven't been adequately addressed.
1 I Mitigation for late night noise, for example,
12 is one of them. It's been proposed that you have a
13 catering facility or garage of 800 square feet in size
14 that would encapsulate the late-night catering
15 activities associated with some of these events and thus
16 reduce the noise impact, but it's also true that nothing
17 has been done with respect to the late-night impacts;
18 and, as I understand it, under the current formulation,
19 events would be allowed as late as ten o'clock, and then
20 cleanup would continue for another hour.
2 I Nothing has been done to prevent those
22 activities after ten o'clock in the parking lots, people
23 closing doors, car alarms beeping and so forth; the loud
24 discussions at night. So you haven't reduced in
25 significance the impact of late-night noise at this
Page 102
1 facility, particularly given the bowl-shaped 1
2 environment in which it would operate and many parties, 2
3 for example, wouldn't use a catering service and there 3
4 wouldn't be the use of this facility that's been 4
5 proposed. 5
6 There are issues with regard to the location of 6
7 the garage entrance. Your staff indicated that even ' 7
8 with mitigations, the entrance along southwest Via Los 8
9 Altos remains unsafe. 9
10 We have concerns about the fact that hours of 10
11 use would remain until 10:00 p.m. on Saturdays. 11
12 I have discussed the parking impact issues. 12
13 We are concerned about the apparent intent of 13
14 the Town to shift the burden of monitoring and 14
15 regulation from Town staff to a neighborhood committee. 15
16 MAYOR GRAM: There's no intent to do that. 16
17 The neighborhood committee is there for communication 17
18 purposes. They are not there for enforcement. They 18
19 are there so that if there is a problem, there is a 19
20 means for the two sides to communicate because that has 20
21 been the main problem until this time, that the two 21
22 sides haven't been able to meaningfully communicate and 22
23 that's all it's for. 23
24 It's a very important purpose, but it's not 24
25 there to regulate. It's there to talk about problems 25
Page 103
I before they become too big and overwhelming and tl)' to
2 come up with a solution. If there's not a voluntary
3 solution, then, of course, the Town steps in.
4 I think that's a misconception of what that
5 committee is designed to do.
6 MR. VOLKER; Well, perhaps it's not intended,
7 but the reality appears to be that there's no other
8 mechanism established which would conduct the monitoring
9 essential to enforce the limitations on use that the
10 Town has in mind.
11 That's why we join Kol Shofar in suggesting
12 that limiting the number of persons poses substantial
13 issues. It's much easier to enforce and to
14 communicate, to monitor if one employs a building size
15 approach here and a firm, across-the-:board restriction
16 on hours of usage which avoids these late-night spikes
17
18
19
20
21
22
23
24
25
in noise.
The final point I wanted to mention is, however
well intentioned the restriction on pal:"king in the
vicinity, the signage and the painting of curbs red,
will have the unfortunate impact of moving the traffic
safety and parking congestion issues up the streets, up
Blackfield, up Via Los Altos, up Reedland Woods Way, and
that's not acceptable either and it's a function of not
providing adequate on-site parking for the anticipated
Page 104
use of the facility.
In closing, I would urge you to reject the
proposed use permit for Kol Shofar. I would urge you to
take a close look at the objections we have raised with
regard to CEQA compliance. I think they go hand in
hand.
CEQA provides an appropriate regulatory avenue,
recognized by the Ninth Circuit in the Morgan Hill
decision to allow you to gather information, to inform
you, to inform the public, to allow everyone to reach a
better-reasoned decision as to how best to regulate this
facility.
So I would urge you to sustain the Planning
Commission's rejection of this use permit, to reject the
modified use permit that you have proposed, and to
decertify the EIR for the purpose of allowing an
appropriate impact assessment to take place now in the
hopes that we can reach closure on Kol Shofar's
application for remodeling and expansion. Thank you.
MAYOR GRAM: I want to ask you one more
question, Steve, and you may say "I am not going to
answer that." You don't want to get into it.
It's my understanding that you have had
discussions over the proposed resolution with Miss
Hamilton. Did she have concerns about its
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PROCEEDINGS - 2/7/07
1 construction?
2 MR. VOLKER: That would invade attorney/client
3 work product and attorney/client privilege. I have not
4 personally talked with Miss Hamilton in that regard. I
5 know clients have..
6 MAYOR GRAM: I thought you did.
7 MR. VOLKER: And those communications are
8 privileged. We are not prepared to waive them.
9 However, we are prepared to renew the offer
10 made in the past that the three parties in this case,
11 Kol Shofar, the Town and the Neighbors meet in a formal
12 mediation context, and we have made specific proposals
13 in this regard with the hope that by conducting an
14 exhaustive effort we could find a way of regulating this
15 facility which would permit its remodeling and modest
16 expansion and address the concerns of the neighbors and
17 provide the Town with protection against needless
18 litigation.
19 Just as Kol Shofar has indicated it do_esn't
20 want to have to go to court, so, too, the neighbors
21 don't want to go to court.
22 The court would be the worst possible venue in
23 which to resolve these issues.
24 MAYOR GRAM: Just one comment on the mediation.
25 As you know, it's voluntary all of the way around.
Page 106
1 Unless you can get Kol Shofar to agree, which they 1
2 haven't, apparently, on two occasions, then it won't go 2
3 forward. 3
4 The Town would be available, and certainly 4
5 would do anything to get you in the same room with some 5
6 ability to settle this, but it's a voluntary thing, and 6
7 it's really between you and them as to whether it will 7
8 occur. If you can get them to agree, we will be there 8
9 whenever you want to do it, if you agree to do it. 9
10 MR. VOLKER: In deference to the Council's 10
11 persuasive powers, I think denial of the permit probably 11
12 would be a motivating factor. Thank you. 12
13 MAYOR GRAM: Okay. We have public comment 13
14 coming up. How are your fingers? 14
15 THE REPORTER: I need a break. 15
16 MAYOR GRAM: Okay. We are going to take a 16
1 7 break. 1 7
18 (Whereupon, a short break taken.) 18
19 MAYOR GRAM: Please take your seats. I have 19
20 lost count because there have been some more put in 30, 20
21 35,40 cards, but we do have another constraint, and I 21
22 ask the lawyers, Steve and Gary, we have been told by 22
23 the reporter that she can only go to 11 :00 because of 23
24 working full-time today and having to get up early and 24
25 doit tomorrow. 25
Page 107
28 (Pages 106 to 109)
I Are you willing to live with that cutoff? We
2 can do one of two things: we stop where we are, we will
3 not be nearly through the speaker cards, or we continue
4 on without her.
5 MR. RAGGHIANTI: I will live with the
6 restriction. Eleven o'clock is fine. I would love to
7 be out of here by eleven o'clock. I hope you would,
8 too.
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
MAYOR GRAM: I would love to be out of here in
15 minutes. We have the constraint of about 40 speaker
cards. Ifboth sides could get together and figure out
who are the key speakers you want to have heard, to call
some others and say, we will agree, but if everyone
wants to speak, then we will listen to them.
MR. VOLKER: For my part, I would commend to
your attention the right of each individual to have the
full three minutes. I don't purport to represent every
individual in the neighborhood, and I can't prevail on
them to reduce their right to speak. ~,
MAYOR GRAM: This would be voluntary. We are
prepared to listen to everyone because that's our custom
and that's the requirement that everyone have the right
to speak, and we are willing certainly to honor that,
but the court reporter is going to leave at 11 :00, which
means, I think, the lights go out, unless you are
Page 108
willing to keep going without the court reporter.
MR. VOLKER: No, I think the court reporter
should be permitted to leave when she needs to leave. I
respect that limitation, of course.
MA YOR GRAM: You don't want to make that
cutoff for this evening?
MR. VOLKER: That's fine with me. People came
here tonight to present their views. They should be
able to do so. However, if someone is not able to do
so tonight, they should be allowed to come back at
another time. We have a lot of confusion about what's
being proposed.
MAYOR GRAM: I hear both of you saying, let's
stop at 11 :00, and we will then come back, probably the
21 st, and finish public comment.
When do you want to come back?
MR. RAGGHIANTI: I don't want to come back,
with all due respect. If it means that our people who
have gathered here don't speak, so be it. This is the
fourth hearing. How much more is there to say?
MA YOR GRAM: I've got people who want to speak.
I can't cut them off.
MR. RAGGHIANTI: I am just giving you my
opinion. As far as my people are concerned --
MA YOR GRAM: I will send them all to your
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1 office next Monday, so be prepared.
2 Okay. Starting with the speakers, Doug Kahn.
3 Next in line will be Bruce Rayful. Next in line will be
4 Mark Jacobs. Please come up, form a cue, and be ready
5 to go.
6 RABBI KAHN: Rabbi Doug Kahn, Executive
7 Director, Jewish Community Relations Council,
8 representing Jewish synagogues and Jewish religious
9 organizations.
10 The restrictions imposed on Kol Shofar in the
11 resolution are, in letter and spirit, precisely the type
12 of restrictions our founding fathers sought to avoid.
13 Should the leaders of Kol Shofar decide that '
14 religious holidays, other than those named in the
15 resolution, have significance for the Jewish people or
16 that holidays must, by Jewish law, be observed on a
17 different calendar than that proffered by this proposal,
18 they would need to consult not only with the sacred
19 texts of our faith, but also the texts of this council.
20 Our founding fathers wanted to avoid that. They knew
21 that religion is different. So did the U.S. Congress.
22 So should this Town Council.
23 The delicate pluralistic fabric of our society
24 is not left in tatters when a municipality places
25 restrictions on how a bakery or a shoe store operates.
Page 110
1 But when government steps into the business of defining
2 when, where, and indeed how a people gather in worship,
3 it treads on an important line.
4 When a government entity comes up with its list
5 of which holidays may be observed or imposes
6 restrictions not imposed on other religious
7 institutions, it entangles the government in religion.
8 It gives the sense, intended or not, of favoring or
9 disfavoring one particular religion.
10 Is there any other religious institution in
11 Tiburon that must notify the police department five days
12 in advance of a funeral because 200+ persons might
13 attend a service for a pillar of the community, a delay
14 that would necessitate violating Jewish laws requiring a
15 speedy burial? Or when that 101 st person walks into the
16 synagogue one evening when a lecture or a meeting are
17 taking place and that individual is seeking comfort in a
18 house of worship, does the Council really want to impose
19 sanctions for violating restrictions?
20 The restrictions are a set-up for failure and
21 for bad community relations -- with neighbors seeking to
22 jump at any violation, however insignificant.
23 I must add that personally I found the photos
24 shown at the previous meeting of cars making various
25 turns out of the parking lot especially intrusive.
Page III
1 The Jewish community takes its security
2 seriously and the notion that every event will be
3 watched in that kind of way is profoundly offensive,
4 deeply troubling and, frankly, smacks of a double
5 standard.
6 Up until the 19th century, well before the
7 First Amendment was understood to apply to the states,
8 the only houses of worship that could be built in
9 Connecticut without an act of that state's legislature
10 were Congregational Churches.
11 The matter before this Council has an odd
12 resemblance to those long and well forgotten days.
13 Through this proposal, the Town is saying that
14 the only house of worship that can be built is one that
15 conforms to this Council's definition of religious
16 practice.
17 That violates the Religious Land Use and
18 Institutionalized Person Act, it violates the First
19 Amendment, and, most importantly, it tears at the
20 pluralistic fabric of our society.
21 For these reasons, the Jewish Community
22 Relations Council and the full spectrum of Jewish
23 religious organizations rise in strong opposition to the
24 restrictions imposed.
25 We urge you not to let this moment slip away
Page 112
1 when you have an opportunity to support a project that
2 will enhance the quality of life for the entire Tiburon
3 community.
4 Thank you.
5 MAYOR GRAM: Bruce Raful.
6 BRUCE RAFUL: Good evening. Bruce Raful. I
7 have a list of three items I would like to read into the
8 record, but I won't. We will get out of here quicker. I
9 have a 4-page letter I will give to them. I have a
10 list; a sheet of real estate information, which should
11 be of interest to all of you and, lastly, I have made a
12 matrix comparing the CUP that you approved for St.
13 Hilary's and the CUP you proposed and approved for us.
14 If you read it carefully, you will see how
15 incredibly different the two are. Thank you.
16 MAYOR GRAM: Mark Jacobs, Elaine Levy, Jeff
17 Saperstein will be next, and then Christy Seidel.
18 MARK JACOBS: Good evening. My name is Mark
19 Jacobs, and I co-chair Kol Shofar's ritual committee.
20 I've been asked to talk about two items that have
21 important religious impact on us.
22 Number one is the counting of Jews, and
23 hopefully we can, since it seems like we in the
24 community agree it's not a good idea, I'll just mention
25 that briefly.
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1 The other is the lights out at 9:00 p.m.
2 I will make a comment that in Judaism we don't
3 operate by the clock. We operate by the sun and the
4 moon. At various times of the year, the sun goes down
5 at different times. It can go down late many months of
6 the year. Here, religious services cannot begin in many
7 cases until after the sun goes down. So it's
8 completely -- and we have been doing this for years --
9 we may not leave the show until 11 :30 at night on a
10 certain night, a long service, when the sun goes down at
11 9:00 o'clock or later.
12 There are some nights of the year we are there
13 all night long praying, and that's been going on for
14 years.
15 So any lights out based on a clock time would
16 be a significant violation or a regulation of our
17 ability to practice our religion as we have done for
18 thousands of years and as we have done at Kol Shofar for
19 as long as we have been here.
20 I am not talking about member-sponsored social
21 events. I am talking about religious activities which
22 our Rabbi defined for you.
23 The other is this business of counting Jews,
24 and I think this and the piece that I just mentioned
25 about the cycles of time and how we measure them
Page 114
1 illustrates the slippery slope we get into when we try
2 to "regulate" religion.
3 Normally I wouldn't discuss this at a meeting
4 like this because the parochial aspects of Jewish law
5 are not something that usually that Town Council should
6 get involved in, but here you go, and you might be
7 interested to know that ancient compendium of Jewish
8 wisdom says "Pray for the welfare of the government.
9 Without it, a man would eat his neighbor alive." So
10 hats off to you.
11 MAYOR GRAM: You're time is up!
12 MR. JACOBS: So ifmy time is up, all I'm
13 saying is that we are specifically prohibited in the
14 Torah to count Jews. King David was punished by God for
15 counting Jews.
16 And just one final comment: It wasn't too long
17 ago that they inscribed numbers on our flesh before they
18 killed us. And, for Jews, this counting has a
19 repugnant resonance.
20 MAYOR GRAM: Elaine Levy.
21 ELAINE LEVY: Hello. I am Vice President of
22 Operations for Kol Shofar. This process for Kol Shofar
23 to obtain a building permit after nearly three years
24 from initial application is so obviously broken.
25 For our neighbors in Kol Shofar to each be in
Page 115
30 (Pages 114 to 117)
1 such adversarial positions that we are each
2 contemplating lawsuits on this issue is sad for all
3 concerned. Lawsuits create enemies, not good
4 neighbors.
5 Some day this building issue will be finalized
6 and we will still be neighbors.
7 I propose that we heed the voice of Julie King
8 and others who are urging both sides to start talking
9 now to better understand each other.
10 I confess that I presently don't understand the
11 TNC members. Although I do understand why the TNC wants
12 to limit noise, traffic and light disturbances, I don't
13 understand why the TNC was not willing to accept the
14 November Town Council resolution.
15 Kol Shofar thought that resolution placed
16 burdensome limitations on the activities that we would
17 prefer to conduct in our building, and the parking
18 management programs were seriously flawed. Yet Kol
19 Shofar was willing, yet again, to accept a compromise,
20 particularly in reducing member-sponsored events in
21 order to address the TNC's concerns about noise, traffic
22 and light.
23 The November resolution stretched the minimal
24 boundary of what I personally, as an officer ofKol
25 shofar, am willing to explore.
Page 116
1 Although I very truly want to talk to and
2 understand our neighbors in hopes of improving
3 relationships, I want to clearly state that there are
4 certain issues which I will not support or compromise.
5 I will not compromise my right to be the 101 st
6 person or even the 201 st person on the Monday through
7 Thursday nights to attend a Kol Shofar program.
8 I will not compromise my right to do Saturday
9 worship service, even if I didn't make a reservation for
10 parking in advance.
11 I will not further compromise on the size of
12 the multi-purpose room, which is needed for our
13 religious activities.
14 I will not compromise the right ofKol Shofar
15 to develop new programs.
16 We have always strived to be innovative and
17 we will continue to try to develop new programs to
18 enrich our lives.
19 I will not compromise on our right to be able
20 to not -- I will not compromise on our right not to be
21 micro managed for religious activities.
22 Indeed, even though it would fill me with
23 tremendous sadness, I will support whatever means
24 necessary to protect our rights to practice our
25 religious activity.
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1 MA YOR GRAM: Jeff Saperstein. Christy Seidel 1 want to say that the Town Council has attempted to
2 up next. 2 accommodate Kol Shofar's large facility and has
3 JEFF SAPERSTEIN: Thank you. I live Channel 3 attempted to do the regulation through the CUP.
4 Landing in Tiburon. I was a member of Kol Shofar when 4 The neighbors have always felt that regulation
5 we bought that building. I have been involved as an 5 of the CUP was not the solution.
6 officer'and as a member. 6 Neither the neighbors or Kol Shofar are happy
7 In practically all of the negotiations, either 7 with regulating for different reasons.
8 directly or indirectly with the neighbors on this, I 8 From our perspective, this resolution is too
9 will not repeat what my fellow congregates have said in 9 difficult to monitor, monitoring the number of people
10 terms of the incredible intrusion of counting people, 10 there at anyone time, monitoring the events, the
11 which is not done in any of the churches in our 11 parking enforcement, it's all too hard, too challenging
12 community and is not done in any religious institution 12 for all involved.
13 that I am aware of in the Bay area. This is deeply 13 So we still think the solution is the size of
14 offensive. 14 the facility as it relates to the amount of parking that
15 Aside from that, in 1995 we tried -- I want to 15 they can accommodate on site.
16 focus on the track record -- in 1995 we tried to pave 16 Let the building be the regulator. Follow
17 the parking lot that was in our congregation. This set 17 your own land use code.
18 of neighbors forced us into a situation where we could 18 With all due respect, the parking issue is not
19 not pave the parking lot, so we could not alleviate 19 resolved.
20 traffic. Therefore, it's quite clear that the neighbors 20 It canlt be monitored or e~forced. The large
21 have never been interested in the traffic issue, in 21 addition must have adequate parking per code.
22 alleviating the traffic issue except to get us out of 22 In the code it actually says one of the first
23 that property. They refused to let us pave our 23 things is that no addition shall be built if it adds
24 pavement. 24 more parking into the neighborhood.
25 I also want to point out that the report does 25 There needs to be parking on site to solve this
Page 118 Page 120
1 not take into consideration anything with car pooling, 1 problem.
2 that they are looking at one person per car. This is 2 For instance, currently on Saturday mornings
3 ridiculous. And I believe that it is quite 3 there are cars parked up and down Via Los Altos. The
4 extraordinary that we have not been able, with continued 4 parking lot is full. Now, with the red curbing that is
5 offers of compromise, to satisfy the neighbors who 5 going to be proposed, even with 156 spots, there's going
6 continually harass us. 6 to be a shortage of parking now, and you are adding this
7 As a 29-year member ofKol Shofar, who has been 7 facility that can accommodate another 652 people and
8 involved in leadership and congregational life, I would 8 they do want to use it concurrently. Where are these
9 think it would be remiss of Congregation Kol Shofar to 9 people going to go?
10 allow this to occur; and, as a member of long standing, 10 They are going to be going up these dead-end
11 I would insist that we fight with every legal and 11 streets like Via Los' Altos up toward the end of.
12 constitutional means, because it's not just us, it's 12 Blackfield, up Reedland Woods Way. These are all
13 going to be other congregations that will end up 13 dead-end streets and they are going to be making V-turns
14 suffering as a result of this, and it would be quite 14 Saturday mornings when the families and children are at
15 offensive for us to accept this. 15 home.
16 And I think it's outrageous that the Council is 16 This is a significant negative impact. The
17 not going to accept the original proposal, and neighbors 17 staffhas tried to deal with it as best they could.
18 have not agreed to any of the compromises that we have 18 It's a difficult situation.
19 put forward. 19 The reality of the situation is they really
20 And with that, I just thank you for hopefully a 20 need to get the parking on site to deal with the
21 just decision. 21 problem, and to do that you have got to balance the
22 MA YOR GRAM: Quickly, there was a silver 22 building with its infrastructure.
23 bracelet found outside the door. Christy Seidel. 23 It makes -- it's just an obvious solution, and
24 CHRISTY SEIDEL: Christy Seidel, 30 Reedland 24 I think we all need to sit back and re-tool. We, as
25 Woods Way, just across from the Kol Shofar temple, and I 25 neighbors, want to get together with Kol Shofar, sit
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I down and get some creative solutions going here, and the
2 only way I think we are going to get Kol Shofar to be
3 able to come to the table is if you deny this project
4 and they are forced into a way to start looking at their
5 needs in a new light where we can all come together.
6 Thank you.
7 MA YOR GRAM: Next Ron Brown and A viva Boedecker
8 and after that Virginia Brunini.
9 RON BROWN: Members of the Council, my name is
10 Ron Brown, and I am immediate past president ofKol
II Shofar, and I am a resident ofTiburon.
12 I rise to tell you that I am astonished by
13 parts of the resolution you propose to adopt tonight and
14 particularly astonished with the numbers which remain in
15 Section 2.
16 As one intimately involved in the discussions
17 with the town from its inception, I do not understand
18 the current proposal to regulate life at Kol Shofar to
19 the degree suggested here.
20 I do not understand how you can propose this
21 synagogue of 600 families, almost 2000 individual
22 members, could operate with limits on attendance of
23 congregational activities of 100 people most nights of
24 the week.
25 I do not understand why you propose to limit
Page 122
1 nighttime hours beyond the limitations that have existed
2 for 23 years.
3 I do not understand why Kol Shofar is being
4 singled out for limits more extreme than those at St.
5 Hilary's following their recent remodel, and more
6 extreme than any other religious institution in Town,
7 and I do not understand how you can believe that the
8 numbers you have put forward constitute as required by
9 law the least restrictive alternative available to you
10 to regulate Kol Shofar.
11 Most of all, I do not understand what has
12 changed from the understanding that we clearly had in
13 November.
14 It was clear then to all of us that we agreed
15 the new CUP would regulate member-sponsored events but
16 would not further regulate Kol Shofar sponsored events.
17 There was no confusion about this.
18 There was a clear understanding. That
19 understanding was reflected in the recommendations of
20 the subcommittee in the paper that Paul held up before
21 us and was adopted unanimously by Council.
22 This understanding was so clear that when asked
23 last week whether Kol Shofar could live with the
24 proposal on the table, I said, yes, and I was accurately
25 quoted as saying that in the IJ this week. However, I
Page 123
32 (Pages 122 to 125)
1 was talking about living with the November proposal, not
2 what's on the table today.
3 .What has changed since November? I certainly
4 don't know. Is the Town record suddenly filled with
5 moot complaints about traffic and noise generated by the
6 synagogue? I don't believe so~
7 Have the conclusions of an exhaustive EIR
8 process changed? I don't believe that to be the case.
9 The fact is that nothing has changed.
10 I ask you please to reconsider your approach.
11 I 'ask you to look at the record, the record of our
12 residency in Tiburon and the record of the environmental
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review process.
I ask you not to unduly burden our religious
practice with an attempt on limits. I ask you to
adopt the alternative language for these resolutions
suggested by Mr. Ragghianti. Thank you very much.
AVIV A BOEDECKER: Hi, I'm Aviva Boedecker, 113
Jefferson Drive in Tiburon. ~
There's something that I have been kind of
struggling to understand and, that is, why is it that
when I go to see a friend in the Belaire area or
Blackfield Drive, I can park on the street? Why is it
if I want to go for a walk, I can park on Via Los Altos?
But somehow those legal parking places somehow become
Page 124
1 illegal parking places I am not allowed to park in when
2 I go to synagogue. I don't understand that.
3 The effect that it has is to, I am afraid it's
4 going to make people not want to come to synagogue.
5 It's going to be a real deterrent, such a hassle.
6 You have to get a coupon to show you parked not
7 in an illegal place on Blackfield Drive but inside the
8 parking lot, a preassigned parking lot.
9 And it's just -- I don't get it -- and I am
10 hoping that along the way you can explain that to me.
11 I also think that if there are problems with
12 people parking in red zones or making unsafe turns, they
13 should get tickets.
14 MA YOR GRAM: Thank you. Just a second. Next
15 will be Russ Pratt, Steven Schiff. Steven Schiff, you
16 are not going to speak. Okay. Then Tim Metz. Russ
17 Pratt is out. Good! I like Russ. Gail Dorph.
18 VIRGINIA BRUNINI: Virginia Brunini, 267 Karen
19 Way. I have been a Belaire resident for 40 years. I
20 have also been a Planning Commissioner in Tiburon, and I
21 have great admiration for your sticktuitiveness, but I
22 think you're off on the wrong track.
23 I will abandon my little talk that I was
24 prepared to plead for Belaire. I find that the proposal
25 you have before you is very, very hard, ifnot maybe
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impossible, really, to enforce properly.
I have found the remarks made by Gary
Ragghianti to be very understandable.
I think that there's been much too much
emphasis on the people. It's all cars.
You might remember that I spoke to you before
that it wasn't the religion. It was cars.
Why don't you go back to what a Planning
Commission has to do and Miles was on track.
You have a restaurant and it is confined by the
parking that is provided. You have a church, you have a
book store, you have a dance studio, you have anything
else and it is defined by the parking requirements.
I went today to find out from Dan.Watrous what
the code requires for parking, and I wasn't able to
really get a precise answer because his answer was,
"Well, we don't know what part of the building will be
used for personal use and what might be not counted for
use."
I only remember when I was on the Planning
Commission, and if a building was so large, it was to
accommodate so many people, and on the ratio that we
applied, if the parking fit, fine. If it didn't, not so
fine.
I think you have in this room a very much more
Page 126
1 unanimous feeling. I have listened carefully to both
2 Steve and Gary, and I think they are saying very much
3 the same thing.
4 There needs to be dialog. This has become
5 very, very unnecessarily divisive.
6 I said on another occasion that really if you
7 look practically at what happens here, there's a lot of
8 money being spent for attorneys. There's legal
9 jousting. And what you really need to do, you, Kol
10 Shofar, is have the kind of facility you need to do what
11 you need to do. You have got seven acres. Take that
12 stupid building down and build what you need, put the
13 parking on there, and you won't hear a peep from any of
14 us. We bravo to you because we have had 24 good years
15 with you, and there's no reason for this kind of
16 divisive action.
17 If you do keep this resolution, then I have a
18 couple of comments about where --
19 MAYOR GRAM: Virginia, your time is up.
20 VIRGINIA BRUNINI: Thank you.
21 MAYOR GRAM: Tim Metz. Next, Gail Dorph,
22 Bruce Frankel and Kurt Kaull.
23 Tim Metz, 50 Reedland Woods Way. I will try to
24 talk slow for the court reporter here.
25 Couple points just to clarify what Steve was
Page 127
1 talking about so you all know where we are coming from.
2 Part of the problem with the numbers, there's a
3 lot of approximates in there, there's a lot of maybes,
4 there's a lot of kind ofloose ends there, and it's very
5 difficult to monitor. Like everybody said, how do you
6 know how many people are on there?
7 When you put the numbers into the proposal, we
8 respect the concerns Kol Shofar has, but also it just
9 leads to too much room for error and interpretation on
10 the other side. It's just too loose.
11 The other thing that we are concerned about is
12 enforceability. I know that we have heard from you,
13 Tom, and others that the CUP can be amended, the CUP can
14 be revoked, the CUP can be whatever.
15 I don't want you to revoke Kol Shofar's CUP,
16 even though I don't think you can do it anyway. I don't
17 want you to do that. That's not the teeth of what we
18 want out of this thing.
19 What is the ramification ofnot~following and
20 not complying with the CUP? That's why we need a CUP
21 that really clearly we dialog together, and we figure
22 out a way to make it work so we really agree to it and
23 it makes sense, so there's no challenge to those
24 enforceability issues.
25 I have submitted a letter on the record from a
Page 128
1 member of Beth El in Berkeley, I know you have a copy of
2 it. What we are trying to avoid here is the situation
3 that the neighbors and Congregation Beth EI got into.
4 It's a very similar project. It has nothing to do with
5 the fact that it's a synagogue. It's a similar issue of
6 land use, neighbors and religious institution.
7 They have ongoing problems over the same things
8 we have problems with in the future, potential parking,
9 traffic, noise, and safety.
10 Berkeley is a different city. It definitely
11 has some interesting characters over there, but it's the
12 same issue, and we don't want this repeated here where
13 we have something that allows loopholes for the
14 synagogue.
15 It's too tight, too risky. It needs to be
16 something where we can all agree with to work together
17 and come up with a solution that works for all ofus.
18 MAYOR GRAM: Gail Dorph.
19 GAIL DORPH: Hi, I'm Gail Dorph. I live in
20 Tiburon and I am a member of Kol Shofar.
21 Many of the things I wanted to say about the
22 numbers, regulating numbers have already been said.
23 As an educator, I've taught and consulted in at
24 least 40 different communities in North America, I had
25 never heard of these kinds of regulations.
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1 I kind of poled the people I knew today, had
2 anybody else heard of such a thing, and nobody had heard
3 about regulating numbers. People had heard about fire
4 and safety and people had heard about time at night at
5 the very end of midnight, but nobody had heard about
6 numbers, but you know that already.
7 The second thing people seem to have forgotten
8 is that schools, synagogues and churches are always
9 located in neighborhoods where people live. They are
10 never in downtown. They are never in the financial
11 district, the government district. They are always
12 near the people that they serve, and the issue of
13 synagogues, and churches and schools being in
14 residential areas, that's where they are. That's where
15 the people are.
16 I find it very disconcerting that twice now we
17 have been at meetings where the information that people
18 needed to read in advance was not available for them.
19 It was presented to them in a way that they couldn't
20 grasp it.
21 In November, I think we all walked out thinking
22 that we knew where we were, love it, hate it, but we
23 knew.
24 And then tonight when the meeting started the
25 same way with all of this information that we didn't
Page 130
1 know, couldn't assimilate.
2 I have to ask myself, what's going on here? I
3 mean, why does this keep happening?
4 I have to think that it's in the best interest
5 of everybody to make it work out right, and that's what
6 you want, but this keeping everybody offbalance all of
7 the time so the people don't have all of the information
8 they need is extremely disconcerting, and I think makes
9 everybody feel even more vulnerable than they feel
10 already because they can't think.
11 Last, but not least, when I was thinking about
12 this I was struck by the position you're in as the
13 leaders of this community, and I was thinking about the
14 holiday quorum that's in your little thing here, that's
15 one of the holidays we are about to celebrate, and in
16 the story of Po rum, Queen Esther is in a very poor
17 predicament. She can step forward and risk her own
18 life in order to perhaps save her own people or she can
19 remain safe and silent in the palace of the king. Her
20 uncle turns the screws on her, suggesting that she's
21 reached a leadership position at this time in this place
22 for the very pUlpose of protecting her people.
23 I want to say to you that we at Kol Shofar are
24 your people, and at this point in this time we really
25 want you to take a risk on our behalf. If you don't act
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34 (Pages 130 to 133)
1 to protect the rights of church and religion, who will?
2 MA YOR GRAM: Bruce Frankel, Kurt Kaull,
3 Marshall lainchill next and Nancy Appel.
4 BRUCE FRANKEL: Thank you. My name is Bruce
5 Frankel. I had to change everything I planned to talk
6 to you about. I spoke to my father on the way here,
7 coincidentally, who is a Holocaust survivor, and when I
8 told him what was going on here, he started to cry. It
9 all brought back way too many memories of, as people
10 here have said before, of counting Jews.
11 It seems like we are going to get past that
12 here tonight. It seems both attorneys agree that that's
13 just not going to work, but my father went on to say
14 that "Be careful of red herring issues that start to
15 come up in situations like this." You folks are the
16 responsible parties here to watch out for those red
17 herring issues.
18 Is there really a parking problem? With
19 respect to the attorney for the neighborhood h~re, I am
20 hearing arguments to the extremes, to the extent of
21 someone in a black BMW that almost ran down a child.
22 That driver should be cited.
23 I don't think that that's representative of the
24 vast majority of people who attend the temple.
25 The other thing is that this is an area that is
Page 132
1 famous, or should I say infamous, for being rather to
2 the left side of the political spectrum, I should say,
3 and I thought it takes a village, folks, it takes a
4 village. We should be able to work this out; otherwise,
5 the message that is being sent and that is being
6 received is that we don't want you here. We want you to
7 move, because we don't want you to thrive. We don't
8 want you to grow. We don't want you to innovate and we
9 don't want you to renovate.
10 So careful of those red herring issues, please.
11 Thank you.
12 KURT KAULL: Hi, Kurt Kaull, 38 Via Los Altos.
13 I remember back about a year ago when I got in
14 front of the Planning Commission the first time and made
15 comments about not believing where we were at that point
16 and wanting us to think pragmatically and with common
17 sense and words like fairness and sensitivity to issues
18 on both sides and trying to have balance and compromise,
19 and, just, it's amazing we are sitting here like we are
20 tonight, frankly.
21 The neighbors feel it's okay for us to say, you
22 know, please don't have lots oflate-night events on a
23 significant number of weekend evenings. We have been
24 very consistent in that throughout in that message.
25 Please be sensitive to the hours of the events,
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1 to the number of the events at night. Please keep the
2 size of the room to the size that fits the neighborhood,
3 matches the capacity of the property for parking, all of
4 those you've heard.
5 I frankly agree with the Rabbi, this process
6 encourages division, the lawyers get up and fire in what
7 they have to say. This whole thing didn't start that
8 well. Big overreach. Trusts were shaken very early on
9 in the process and I don't think have ever been regained
10 atall.
11 Somebody said earlier from the synagogue's
12 side, "Let's sit down, let's talk," and we are all for
13 that.
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But the parties have to be ready to deal, sit
down and talk and reach across and communicate, and
that's not happening.
It's all from this direction to you and this
direction to you, and nothing happening this way, and
this has to change if anything is going to get figured
out here.
I was very sensitive to Paul's comments in
terms of all the comments he made about the position you
are in.
RLUIP A is very real to you. You are in a tough
spot.
Page 134
1 In the last two weeks the squeaky wheel has
2 been getting the oil. The lawyers are getting very
3 passionate about what they are saying to you, mostly
4 from the synagogue's side from my seat, and that's
5 what's caused this confusion tonight.
6 Without RLUIP A, I think there would be a
7 different outcome here. You guys would be freer to
8 consider fairness and balance and compromise and be free
9 to govern in accordance with the General Plan.
10 We've got this federal statute sitting out
11 there with its own problems. It's only five years old.
12 You are terrified of being the test case. I
13 don't frankly blame you. But somebody has got to be the
14 gatekeeper for the citizens here and you have been
15 forced to take your eyes off that because of RLUIP A
16 hammer.
17 It's obvious to me what's been going on. And
18 so I would challenge the synagogue to try to resolve
19 with us without using RLUIP A against the Town Council.
20 We don't want to keep fighting. We need to try to stand
21 up and get a process that works. So, thanks.
22 MARSHALL JAINCHILL: Hi, I'm Marshall
23 Jainchill. I live at 1 Mitten Lane in Tiburon. I have
24 been a resident of Tiburon for about 20 years. I had a
25 speech written tonight, and I don't think some of it's
Page 135
1 applicable, so I'm just going to speak from my heart.
2 I am a proud member of Kdl Shofar and I used to
3 walk to temple on Saturdays.
4 Due to my health in the last few years, I have
5 to drive two blocks, and I highly recommend that you do
6 not paint the curbs going up to Via Los Altos red
7 because I think that parking is needed. I think anybody
8 should have the right, if you live in Tiburon, you
9 should have the right, or anyone else, to park on a
10 public street.
11 I also feel that that's a blatant violation of
12 the right to religious freedom. How many people in
13 America have to obtain a pass before they attend a
14 religious function?
15 Besides that, I think the numbers should not be
16 used. You use numbers like 2.3 persons per vehicle. I
17 don't where these come from, and then they get involved
18 in more elaborate equations where you have over 359
19 people for an event, that number becomes a standard.
20 And I don't think these are going to work. They will
21 entrap you into a lot of things.
22 My company used to manage The Cove Shopping
23 Center, and we were bringing in Blockbuster. The
24 Planning Commission required us to do a number of time
25 studies. One when school was operating and one when it
Page 136
1 wasn't operating, and they came up with a difference of
2 about a tenth of a second it was going to take to get
3 out of a parking lot. And they thought that a million
4 people were going to come down to The Cove for
5 Blockbuster, but it didn't happen.
6 And when you talk about having the space, its
7 size and dealing with the parking, how do you deal with
8 the intensifying use of the space when you have a
9 Starbucks that occupies 1500 square feet and a clothing
10 store occupies 1500 square feet and you have three or
11 four employees in the same spaces, but yet one attracts
12 more people.
13 I mean, they are isolated cases and you have to
14 deal with it. I feel sorry for the problems you have
15 to deal with, but I think the Council has to be the main
16 mitigating group in dealing with this.
17 As a taxpayer and resident, as I said, I demand
18 the right to park on any public street in Town.
19 If I go to shop in Tiburon or if I go to the
20 Tiburon Playhouse or to St. Hilary's to see my
21 neighbor's kid play ball, or anywhere in the Town, I can
22 park on a public street, so why is Kol Shofar being
23 singled out?
24 NANCY APPEL: Good evening, my name is Nancy
25 Appel. I am Associate Director with the Anti Defamation
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1 League in San Francisco.
2 Some of what I was prepared to comment on I
3 think has -- it isn't quite as necessary, seeing as
4 there seems to be consensus regarding the whole head-
5 counting issue. Nonetheless, we remain shocked that
6 such a proposal was even included in the first place,
7 and there are additional provisions in Provision Two
8 which also shocked us and which prompted us within 24
9 hours to contact all of you by writing and which also
10 prompted me to want to come up here for this hearing.
11 Beyond just this head-counting issue, we feel
12 that the provisions that were inserted since November
13 violate the U.S. Constitution as well as RLUIP A in terms
14 of the time and hour restrictions, the 10-days notice
15 for certain holidays, and only the ones that are on
16 certain lists, and only allowing a maximum, or maybe
17 that would become an approximate maximum of four such
18 additional holidays in the future.
19 We think that the Town thereby would be
20 unconstitutionally and unlawfully injecting itself into
21 the management of religious worship at the congregation.
22 We think that even a quick look at the RLUIPA
23 case law will indicate that it would be a losing
24 proposition unfortunately if the city were, or Town were
25 to end up engaged in litigation with the synagogue over
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1 this.
2 Weare also concerned that, given the fact that
3 the congregation has been using the property for years,
4 we can't see how these provisions will be able to fall
5 within RLUlPA's requirements that the Town only impose
6 the least restrictive of provisions to narrowly -- that
7 must be narrowly tailored to satisfy a compelling
8 interest in any restrictions that it wants to put on the
9 town -- on the synagogue, excuse me.
10 And we are concerned also by the fact of the
11 St. Hilary's situation. They recently had an expansion,
12 the permit was approved in approximately 400 days, I
13 understand, whereas in this situation it has been
14 dragging on for three years.
15 We also understand, as everybody has indicated,
16 they have not been subjected to the same restrictions
17 that the Town is seeking to impose on the synagogue
18 here.
19 We feel that this indicates that this also will
20 be found potentially to violate the antidiscrimination
21 provisions ofRLUlPA, and those are about it.
22 MAYOR GRAM: Thank you.
23 RICHARD HOLWAY: My name is Richard Holway. I
24 live at 42 Paseo Marisol, and we have had a lot of
25 discussion about numbers. One number is extremely
Page 139
36 (Pages 138 to 141)
I important to me, that is 9:00 p.m., because that's when
2 I go to bed.
3 Now, I live about a hundred yards from Kol
4 Shofar. Do I hear cars start? Do I hear doors slam?
5 Do I hear social conversations? Yes. Not every night,
6 not once a week, but enough to be bothersome.
7 So I feel very, very -- that it's a very
8 critical point that we should limit the social events,
9 not the truly religious events, because the summer, the
10 sun goes do.wn later, but that we should limit social
11 events to 9:00 o'clock, period. Thank you.
12 MAYOR GRAM: Julie Jacobs and Reverand Carol
13 Hovis and Wayne Gilbert.
14 RICHARD GOLDWASSER: My name is Richard
15 Goldwasser. I live at 38 Paseo Marisol, and I applaud
16 your intention, your earlier explanation about not
17 having any restriction on the current religious and
18 educational activities at Kol Shofar. My family went
19 there for the last five years. \
20 I understand that your focus is on trying to
21 restrict the new member-sponsored events and the new
22 activities, but, as Gary Ragghianti explained, you are
23 looking for a lawsuit if you burden Kol Shofar with
24 limits on the numbers of attendees and limits on
25 religious activity.
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I Now, what's religious activity? Rabbi Derby
2 explained to us back in October that the Talmud says
3 even parties are religious activities. So we have a
4 problem, Rabbi, that we need to talk so that we can live
5 together.
6 I have called you, I have called Diane Zack
7 during high holidays. She said she would get back to
8 me. She has not gotten back to me since the high
9 holidays. You have said before you were offended. I
10 apologized to you. You said you would call me back.
11 You did not call me back. You were in a meeting.
12 I would love -- I sent you the e-mail back and
13 said I would love to meet with you and be helpful. I
14 haven't heard from any of you.
15 Julie, thank you, Julie King, for over a year,
16 how long has it been you have been trying to get the
17 neighbors and Kol Shofar to meet together.
18 There's a problem here. There is a problem
19 here that we can't seem to be able to sit down together
20 and talk.
21 You can help us.
22 The Town Planning Commission had it right. The
23 current proposal is too ambitious. It's too intrusive.
24 It needs to be reworked. And it needs to be reworked in
25 a fashion that everybody can live with.
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I Kol Shofar refuses to meet with us, the I
2 neighborhood, at the Planning Commission's request. 2
3 You can do us a favor. Force us to meet so 3
4 that we can work out something that we can all live 4
5 with. 5
6 You can have parties. You can continue to have 6
7 religious activities as you want. 7
8 Please, reject the current proposal. With 8
9 that, Kol Shofar, perhaps, perhaps will be willing to 9
10 practice what they preach of loving thy neighbor, of 10
II treating each other according to the Golden Rule, of II
12 sitting punim to punim, face to face, so we can actually 12
13 get somewhere rather than, other than using the 13
14 attorneys here. 14
15 Please, send us to get people together. Reject 15
16 the proposal. Thank you. 16
17 REVEREND CAROL HOVIS: Good evening. I am 17
18 Reverend Carol Hovis, Presbyterian Minister and 18
19 Executive Director of the Marin Interfaith Council. 19
20 This is the fourth of these meetings. I was at 20
21 the May, October, November, and now tonight. 21
22 And so at the November meeting, my sense was 22
23 that some real compromise had been reached, and so I 23
24 don't know and understand all that's happened since 24
25 November, and the speaker just before me is talking 25
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about people coming together and talking, and I think
that has been said over and over again tonight. That
seems to be an important piece in all of this. How can
people live together?
I guess what continues to be important to me is
the theme, that I have heard at all of these meetings,
has been the topic and theme of children, both the
concern that the neighbors have for their children,
their children's safety. There's been talk about
children being able to sleep at night because of
lighting and children being able to go to sleep without
noise.
And I guess the bigger issue for me is what is
it that Kol Shofar has to offer to the community and to
the county about children, and that is an institution
that is bringing together people around values and
mission and purpose, and that it's about children and
families and community coming together in a religious
institution.
And so my hope would be that, not only for the
neighbors of Kol Shofar, but for all of us, to realize
the importance of our religious institutions, about what
we are saying for our children and for the future of our
communities.
You know, a couple weeks ago at the Marin
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Interfaith Council, we hosted a Martin Luther King event
at Congregation Rodef Sholom. We had 400 to 500 people
from all over the county to come to Rodef Sholom for
this event, and what that said to me, we have people in
Marin and beyond who are seeking meaning, seeking
purpose, seeking value in their lives, and that's,
again, what religious institutions, what our schools, I
have said this before, offer.
And that's what I want, not just those concerns
in terms of children, in terms of the streets, but what
do our congregations have to offer?
Finally, I guess, my question for you, as the
Council for the Town ofTiburon, is how does Tiburon
want to be remembered? The comments have been about
preserving the nature of our community.
Does the Town ofTiburon want to be known as a
Town that cares about these values and purpose for our
children and for its future or does it want to be known
as being anti religious and anti those values?
Again, I have to say of all of the meetings
I've come to, the amount of hours that people in this
room with so many resources are spending, it pains me
that with the world problems, Darfur, Iraq and Katrina,
to name a few, we are spending this kind of time talking
about something that I think should have been resolved a
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I long time ago. Thank you.
2 MAYOR GRAM: Okay. We have 15 minutes, and we
3 have 40 minutes of speaker cards here. So if you could
4 make it as brief as possible or yield the floor, that
5 would be appreciated.
6 Wayne Gilbert went home. Alan Zimmerman.
7 ALAN ZIMMERMAN: Good evening.
8 MAYOR GRAM: Then Ed Cushman is next. Go
9 ahead.
10 ALAN ZIMMERMAN: My name is Alan Zimmerman. I
11 live on Martinique Street in Tiburon. I also am a
12 member of your community, I'm also a member of the Kol
13 Shofar community, and a member ofthe board of
14 directors.
15 I spoke before this board, this Council, at a
16 prior meeting and talked about an oath I took in May of
17 1968 and reminded you that when you became members of
18 this Council, you took virtually the same oath I did to
19 protect and preserve the Constitution of the United
20 States and required by the state of California for you
21 to serve on the board. I ask you not to take that sworn
22 oath lightly. It is very serious business.
23 It affects my rights as a member of your
24 community to exercise my right to practice my religion,
25 and I won't go into the detail because you have heard it
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1 already about the impact that you're having with an
2 arbitrary number of 30 people in a program or a hundred
3 people in our synagogue will mean that the 31 st person,
4 or the 35th person will not be able to practice their
5 religion. And I assume that may apply to me.
6 And I urge you not to do that because that's a
7 violation of your sworn oath and my rights as a member
8 of your community and a member of that community.
9 I won't say more about that. You have heard a
10 lot about the number issues. There seems to be a
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consensus, however.
But another point I would like to make is this
issue about cars and safety.
My neighbor on Saturday had a young child that
was hit by a car in front of my house by a member of
this community driving his car, her car, excuse me.
I am very much concerned about the safety of
the children of this community as much as anybody else,
and I'm sure every other member of our synagogue is too.
We are not the only cars that drive on
Blackfield Road.
Since we had the last meeting, I was one of the
cars that backed out, you saw a picture of my car the
last time backing out ofthe parking lot.
Since then I have counted, there are virtually
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1 many, many, over 60 houses in our neighborhood that have
2 driveways where our neighbors back out of their
3 driveways every day and do T -turns into the street just
4 to get out of their house.
5 Okay, so we are not the only ones doing this.
6 And I'm sure we have a parking lot that you actually
7 have to drive in and drive through without having to
8 back out. Our neighbors don't.
9 I am asking you to not set some arbitrary
10 standard on our right to practice our religion and
11 attend the house we practice our religion in that's
12 different than our neighbors.
13 I'm concerned about safety. I would like to
14 address safety with our neighbors, but there's no reason
15 to have some special provision for me to drive to my
16 synagogue as to them to back out of their driveways.
17 Thank you.
18 MAYOR GRAM: Ed Cushman yields. Diane Zack,
19 do you want to yield?
20 DIANE ZACK: Diane Zack. I am currently
21 serving as president of Congregation Kol Shofar, and I
22 will scuttle my prepared remarks in light of the time,
23 but I do have a few comments, so bear with me.
24 A little extemporaneous, and I may go all over
25 the map, I'm going to go fast, so I hope you can keep up
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38 (Pages 146 to 149)
1 with me. Sorry.
2 Okay. Number one, we really want to be good
3 neighbors. I think we have been good neighbors. We
4 have every intention of continuing to be good neighbors.
5 We don't want to cause unnecessary noise or
6 traffic in the neighborhood, and I want to thank Mr.
7 Volker and many of the neighbors for agreeing with us
8 that they don't want limits. Neither do we.
9 They also stated they don't think we should be
10 treated differently than other institutions in Town or
11 anywhere else, and actually the Town Council tonight
12 said, and I take copious notes, said that we don't
13 intend to regulate the religious activities with the
14 exception of new member weekend sponsored events.
15 So I think that the offensive language in the
16 conditions of approval should be removed. I also want
17 to speak to Mr. Volker and the neighbors about the
18 off-site parking. I am being very practical now.
19 The local churches have been terrific. '
20 Westminster Church has never said no to us except for
21 one Saturday morning when they had a conflict with the
22 program, so while we haven't submitted written
23 contracts, we have a wonderful, informal agreement with
24 them and they are generous, and the Tiburon Baptist
25 Church also rescued us on a day when we needed parking
Page 148
1 when Westminster couldn't help us. So I would like to
2 assure you we have a good history there.
3 Regarding all of the exhaustive EIR studies and
4 all the mitigation measures, which we feel are actually
5 incredibly burdensome to comply with, so we recognize
6 this will reduce the traffic impacts in the
7 neighborhood.
8 I'd like to get back to where the EIR put us
9 and the Town staff and the Town consultant, and I'd
10 actually like to quote Lisa Newman a year ago at the
11 Planning Commission hearing, that the way we believe in
12 approaching the intensity of use issue is by these
13 mitigation measures and parking requirement that reduces
14 lighting and increases soundproofing and the landscaping
15 berms, etc., etc.
16 This is how you control the impact on the
17 neighborhood, not with reducing the size of the MPR. So
18 I would like to repeat that.
19 And regarding the concern of the Council and
20 perhaps the neighbors also about -- okay, then I will
21 switch gears for a second.
22 The MPR, why we need it, remember, I want to
23 repeat this on the record, we are using it literally
24 every week on the Sabbath, on Sundays. That's what
25 dictates the size of the MPR and for holidays.
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1 And if it would be helpful to the Council to
2 reassure the neighbors and insert an extra sentence with
3 the language submitted about there will not be late
4 night weekend member-sponsored parties and events, that
5 would be fine with us.
6 Maybe that would allay their concerns. It's
7 getting too late. Thank you.
8 MA YOR GRAM: Michael Rubenstein? Bruce
9 Bramlett? Lisa Gurwitch.
10 BRUCE BRAMLETT: I would love to pass, it's
11 time to go home, but I need to say on behalf of the rest
12 of the religious community in this county that I fear
13 that you folks are engaged in a problem direction.
14 Tonight is both sad to me and really somewhat
15 frightening that a responsible and, in fact, esteemed
16 member of this community, that is Congregation Kol
17 Shofar, should be turned from a neighbor into an
18 adversary, and into a caged adversary, restricted the
19 way no other community has been restricted in this
20 community smacks of bad things for this town.
21 The proposed restrictions on this religious
22 community are an insult and assault on the fundamental
23 values of our society.
24 They may be made under the pretense of
25 restrictiveness that is appropriate to local government;
Page 150
1 but, in fact, the message is loud and clear: Tiburon is
2 a place that you don't want to live, unless you're
3 powerful and wealthy and can afford a lawyer.
4 I don't know i(Kol Shofar will go ahead and
5 sue if you guys go your course, but I'll tell you, as
6 far as I'm concerned, I'll be the first one to put my
7 money into the bank to support them.
8 MAYOR GRAM: Lisa Gurwitch. Michael Kemler.
9 You are the last one.
10 LISA GURWITCH: Good evening. I am Lisa
11 Gurwitch. I live on West Shore Road in Belvedere. Like
12 many of the people who have come before me, I am also a
13 lawyer, but I am not going to talk about the law. I'm
14 going to talk about children.
15 My children were raised in Tiburon schools and
16 at Kol Shofar, and they also were fortunate to grow up
17 in the churches in this community where they attended
18 preschool, boy scouts, concerts and they even
19 accompanied us to vote there.
20 We live across from the bike path. Every day
21 all day long people park in front of our house to enjoy
22 the treasures of the bike path along the bay.
23 Kol Shofar is also a community treasure, where
24 we pray, we become educated about all kinds of issues
25 that affect the larger community, and we think about our
Page 15 1
1 responsibility in the greater world.
2 Last Saturday a 13-year-old Tiburon girl, upon
3 becoming bat mitzvahed taught us we need to spend much
4 more time engaged in activities that are going to
5 improve this world.
6 So I encourage you, and I urge you, as you
7 decide the scope of the restrictions that you place on
8 Kol Shofar not to infringe on our rights to engage in
9 our critical and fundamental mission.
1 0 MAYOR GRAM: We have lost our reporter. Her
11 fingers have been worked to the bone. So since no one
12 is willing to proceed without her, we have to adjourn
13 the meeting. We do have several cards left for
14 speakers, so those will have to wait.
15 So at this point, sir -- Gary?
16 MR. RAGGHIANTI: I have nothing to say. I
17 just want to be sure if you close the public hearing,
18 that's it. No more letters, no more speeches from
19 lawyers, just the Council's vote next rpeeting.
20 MAYOR GRAM: I can't tell you it will just be a
21 Council vote. It may well be that we go back and decide
22 we've got people on both sides saying this approach
23 won't work. So to jam both sides and tell us it doesn't
24 work, we may have to come back and say we have rethought
25 it, which I believe we have that option to do.
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Okay. The meeting is adjourned. Ifsomeone
wants to make a motion.
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3 MS. DANFORTH: Excuse me, Mr. Mayor. I
4 believe you would want to continue the items to the next
5 meeting.
6 COUNCILMEMBER SLA VITZ: I won't be at the next
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meeting. Can we continue to March?
MAYOR GRAM: February 21st. You want a
motion to continue?
COUNCILMEMBER BERGER: So moved.
VICE CHAIR: Second.
MAYOR GRAM: We can't put this thing off.
(Whereupon, proceedings adjourned at 11:05 p.m.)
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1 STATE OF CALIFORNIA )
: ss
2 COUNTY OF MARIN )
3 I, the undersigned, a Certified Shorthand
4 Reporter of the State of Michigan, and Notary Public of
5 the State of California, do hereby certify:
6 That the foregoing proceedings were taken
7 before me at the time and place herein set forth; that
8 any witnesses in the foregoing proceedings, prior to
9 testifying, were placed under oath; that a verbatim
10 record of the proceedings was made by me using machine
11 shorthand which was thereafter transcribed under my
12 direction; further, that the foregoing is an accurate
13 transcription thereof.
14 I further certify that I am neither financially
15 interested in the action nor a relative or employee of
16 any attorney of any of the parties.
17 IN WITNESS WHEREOF, I have this date subscribed
18 my name.
19
20 Dated:
21
22
23
DIANE M. GALLAGHER, RPR
24 CSR (Mich) No. 2191
Notary Public No. 1419258 County of Marin
25 State of California
My commission expires: 5-20-2007
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