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Home My WebLink AboutTC Agd Pkt 2006-10-24 TOWN OF TIBURON Bel Aire School Multi-purpose Room 277 Karen Way Tiburon, CA 94920 October 24, 2006 Special Meeting - 7:00 P.M. *Note Location & Time ASSISTANCE FOR PEOPLE WITH DISABILITIES In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (415) 435-7377. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting. AVAilABILITY OF INFORMATION Copies of all agenda reports and supporting data are available for viewing and inspection at Town Hall and at the Belvedere- Tiburon Library located adjacent to Town Hall. Agendas and minutes are posted on the Town's website, www.cLtiburon.ca.us. Upon request, the Town will provide written agenda materials in appropriate alternative formats, or disability-related modification or accommodation, including auxiliary aids or services, to enable individuals with disabilities to participate in public meetings. Please send a written request, including your name, mailing address, phone number and brief description of the requested materials and preferred alternative format or auxiliary aid or service at least 5 days before the meeting. Requests should be sent to the Office of the Town Clerk at the above address. PUBLIC HEARINGS Public Hearings provide the general public and interested parties an opportunity to provide testimony on these items. If you challenge any proposed action(s) in court, you may be limited to raising only those issues you or someone else raised at the Public Hearing(s) described later in this agenda, or in written correspondence delivered to the Town Council at, or prior to, the Public Hearing(s). TIMING OF ITEMS ON AGENDA While the Town Council attempts to hear all items in order as stated on the agenda, it reserves the right to take items out of order. No set times are assigned to items appearing on the Town Council agenda. Agenda - Town Council Meeting October 24,2006 Page 2 of 2 AGENDA CALL TO ORDER AND ROLL CALL Council member Fredericks, Council member Berger, Council member Slavitz, Vice Mayor Gram, Mayor Smith ORAL COMMUNICATIONS Persons wishing to address the Town Council on any subject not on the agenda may do so now. Please note however, that the Town Council is not able to undertake extended discussion or action tonight on items not on the agenda. Matters requiring action will be referred to the appropriate Commission, Board, Committee or staff for consideration and/or placed on a future Town Council meeting agenda. Please limit your comments to no more than three (3) minutes. PUBLIC HEARING 1. Report by Director of Community Development/Planning Consultant - 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 Address: Assessor Parcel No.: ApplicanU Appellant: Appellant: Appellant: 215 Blackfield Drive 038-351-34 Congregation Kol Shofar Tiburon Neighborhood Coalition Greenwood Beach Homeowners Association ADJOURNMENT CONGREGATION KOL SHOFAR APPEAL OCTOBER 24, 2006 BINDER #1 CONTENTS STAFF REPORT EXHIBITS A. Congregation Kol Shofar appeal B. Tiburon Neighborhood Coalition appeal C. Greenwood Beach Homeowner's Association appeal D. Staff Response to Appeals E. Final EIR Alternative 7 Project Description and Analysis, dated April 18, 2006 F. TNC Research on High Holy Day Services G. Meeting Procedure memo dated September 29,2006 H. Letter dated August 22,2006 from CKS regarding off-site alternatives I. Table of existing and proposed square footages dated July 2006 and Building occupancy Summary table from CKS application drawings (Attachment 3, p. AO.2). J. Planning Commission Resolution 2006-15 K. Planning Commission Resolution 2006-16 L. Current CKS Resolutions (97-17 as modified by 2001-07 and 2004-10) M. Minutes of the April 24, 2006 Planning Commission meeting N. Minutes of the May 10, 2006 Planning Commission meeting O. Minutes of the May 31,2006 Planning Commission meeting P. Letter from Gary Ragghianti dated September 6,2006 Q. Letter from Stephan Volker dated October 3, 2006 R. Memo from Town Attorney regarding Religious Land Use and Institutionalized Persons Act (RLUIPA). S. Letter from the Becket Fund for Religious Liberty dated October 10, 2006 T. Letter from Crane Transportation Group dated October 11,2006 U. Correspondence received after Planning Commission denial: (1) Letter from Vista Tiburon HOA dated June 23, 2006 (2) Letter from Jerry Thayer dated July 5, 2006 (3) E-mail from Karen Nygren dated August 18, 2006 (4) E-mail from Tim Metz dated August 25,2006 (5) Letter from John & Karen Nygren dated August 25,2006 (6) Letter from Orrie B. LeClerc dated September 4, 2006 (7) Letter from Ida Gelbart dated September 14, 2006 (8) Letter from Ron Berman dated September 21, 2006 (9) Letter from Tim Metz dated October 9,2006 (10) Letter from Tiffany Wright dated October 13, 2006 with attached revised traffic counts for Tiburon Boulevard/Blackfield Drive intersection LATE MAIL RECEIVED AFTER COMPLETION OF STAFF REPORT Town of Tiburon STAFF REPORT It/ AGENDA ITEM .................................................. . TO: MAYOR AND MEMBERS OF TOWN COUNCIL LISA NEWMAN, PLANNING CONSULTANT <-~ SCOTT ANDERSON, DIRECTOR OF COMMUNITY DEVELOPMENT.JC-l. . SUBJECT: 215 BLACKFIELD DRIVE; CONGREGATION KOL SHOFAR EXPANSION PROJECT CONDITIONAL USE PERMIT; 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 MEETING DATE: OCTOBER 24, 2006 REVIEWED BY~~) REPORT DATE: OCTOBER 13,2006 FROM: .................................................. . PROJECT DATA ADDRESS: OWNER/APPLICANT: APPELLANTS: ASSESSOR'S PARCEL: FILE NUMBER: LOT SIZE: ZONING: GENERAL PLAN: FLOOD ZONE: BACKGROUND 215 BLACKFIELD DRIVE CONGREGATION KOL SHOFAR 1) CONGREGATION KOL SHOFAR; 2) TIBURON NEIGHBORHOOD COALITION; 3) GREENWOOD BEACH HOMEOWNERS ASSOCIATION 038-351-34 10404 6.94 ACRES RO-1 (RESIDENTIAL OPEN ZONE) ML (MEDIUM LOW DENSITY RESIDENTIAL) C On May 31, 2006, the Tiburon Planning Commission adopted Resolution No. 2006-15 recommending Certification of the Congregation Kol Shofar (CKS) Expansion Project Final EIR. The Commission also adopted Resolution No. 2006-16 denying the Congregation Kol Shofar (CKS) Conditional Use Permit application to expand existing synagogue and day school uses and structures. Three entities have appealed these decisions to the Town Council, including: 1) Congregation Kol Shofar, who appeal denial of the CUP application and also Certification of the Final EIR with regard to two issues: (1) a finding of significant traffic impact on the Tiburon Boulevard/Blackfield Drive intersection, and (2) Mitigation Measure 3.3-B.4 which requires 7 additional parking spaces (see Exhibit A); 2) Tiburon Neighborhood Coalition, who appeal the Certification of the Final EIR (see Exhibit B); and 3) Greenwood Beach Homeowners Association, who appeal the Certification of the Final EIR (see Exhibit C). Town of Tiburon STAFF REPORT PROJECT DESCRIPTION & CHRONOLOGY While a detailed project description of the project as originally proposed can be found at pp. 5- 14 of the Draft El R, the project can be summarized as follows: The project proposes a new 9,733-square foot multi-purpose room consisting of a meeting space, lobby, kitchen, restrooms and storage space to be added to the south side of the existing circular building; a 3,662 square foot addition comprised of four new classrooms and a service room; renovation of the existing Kol Shofar building without adding additional space; a new 40-car upper parking lot and turnaround/drop off area to the front entry (for a total net gain of about 22 parking spaces); new lighting, landscaping and other improvements. The application also proposes allowing new special and congregational evening events and other progr~ms, and an increase in the maximum enrollment of day school use on the site from a current limit of 100 children to a new total of 150 children. A brief chronology of the processing of this application is as follows: 9/2004 10/2004 12/2004 6/2005 8/2005 8/2005 2/2006 3/2006 4/24/2006 5/10/2006 5/31/2006 6/2006 CUP Application is filed. Application is deemed complete. Planning Commission Scoping Session for an El R is held. Draft El R is released and circulated for public comment. Planning Commission hearing on Draft El R. Planning Commission recommends preparation of Final El R. Final El R is released. Applicant submits revised (scaled back) project for analysis (Alternative 7). Planning Commission hearing on FEI R and project merits. Second Planning Commission hearing on FEI R and project merits. Planning Commission votes to certify FEIR and deny CUP application. Appeals are filed. REVIEW BY THE PLANNING COMMISSION The Planning Commission first considered the application merits and the Final EIR at the April 24, 2006 Planning Commission meeting. The Staff Report, attached as Exhibit V, included a discussion of the information provided in the El R, and also evaluated a modified project put forth by the applicant in response to issues raised in the El R. This revised project, dubbed "Alternative 7, Reduced Events" reduced the frequency and lateness of proposed new weekend nighttime events to 12 new Saturday night events lasting until 11 p.m. and 15 new Sunday night events lasting until 9 p.m., and limited attendance at such events to a maximum of 250 people. The original application had proposed events of up to 300 people on 40 Saturdays per year until 11 :30 p.m. and on 35 Sundays per year until 11 p.m. When analyzing the original project as proposed, the Draft EIR identified two significant unavoidable ("SU") impacts that could not be eliminated or reduced to a less-than-significant level through mitigation measures identified in Town Council Staff Report October 24, 2006 Page 2 of 12 Town of Tiburon STAFF REPORT the Draft El R: 1) that the project would increase noise levels in the area surrounding the project site by 2-7 decibels; and 2) that the project would frequently create a demand for more parking spaces than can be met by on-site parking lots during certain events, which would result in drivers who park on local streets making unsafe turnarounds in residential neighborhoods when arriving or leaving these events. In analyzing Alternative 7, the EIR-preparer concluded (Exhibit E) that these impacts on noise and traffic safety (unsafe turnarounds in driveways) would be less than significant after mitigation. Staff recommended that Alternative 7 be considered as a "starting point" for discussion of a project approval that not only mitigated environmental impacts but also would be consistent with General Plan policies and other Town regulations. Revised application drawings (large-scale and reduced) depicting the Alternative 7 circulation plan (on Sheet A 1 .1) are attached as Attachments 2 and 3. The Staff Report also discussed the disparity between the parking proposed on-site (139 spaces) compared with the Zoning Ordinance standard of 363 spaces. Staff noted that limiting attendance at new events to 250 people would help reduce parking demand but that existing events frequently exceed this amount (e.g., up to 400 people at existing weekend services and 750-800 people at High Holy Day services). Proposed single services on High Holy Days could result in up to 1,500 persons in attendance at one time. Finally, the Staff Report discussed the scale of the Multi-purpose Room as a design issue for Commission discussion to determine if 9,733 square feet could be considered to be in character and/or harmony with the scale of development in the neighborhood. The lengthy public hearing on April 24 included comments by 39 persons in addition to presentations by the applicant team and the Tiburon Neighborhood Coalition. The hearing was closed and the item continued to May 10. The Chairman agreed to allow limited additional public testimony on Alternative 7 at that meeting. The applicant subsequently submitted information further explaining the Multi-purpose Room usage. The May 10, 2006 Staff Report provided some additional analysis of how existing and proposed activities would occupy the Multi-purpose Room and how proposed traffic control mitigation measures and conditions of approval could work to minimize off-site parking impacts of new and existing events. Staff noted that the approach used in the draft CUP Resolution was to place limitations on proposed usage, and did not address the scale of the Multi-purpose Room. Staff provided the Commission with a list of General Plan goals and policies and Zoning Ordinance standards to consider in its deliberations on the project merits. During the May 10 meeting, neighboring property owners and the applicant commented on a recent 700-person event held at CKS, when off-site parking lots and a shuttle service were used to manage traffic and parking. The Greenwood Beach HOA also submitted comments stating that its neighborhood had borne the brunt of the off-site parking impacts from the event. Some neighbors raised concerns about providing more parking on-site so that the temporary placement of signs on adjacent streets is not necessary. Other concerns expressed were that . the size of the expansion was too large and that new nighttime events would end too late. The Planning Commission considered the testimony of the neighbors and CKS representatives and Town Council Staff Report October 24, 2006 Page 3 of 12 Town of Tiburon STAFF REPORT members, and after lengthy discussion, determined that a majority could support certification of the Final EIR but could not support the proposed CUP application without further project modifications. Therefore, with the consent of the applicant, the Commission voted to form an ad hoc subcommittee to meet with the applicant and neighbors with the goal of formulating a compromise Resolution for discussion at a May 31 hearing. Subsequently, the applicant's attorney, Gary Ragghianti contacted Town Staff and advised that CKS had decided not to participate in further efforts toward a conditional approval by the Planning Commission and requested that the Planning Commission hold an "up or down" vote on the project as soon as possible. This decision left the Planning Commission with no viable option except to deny the CUP application. At the May 31,2006 Planning Commission hearing, Town Staff presented an overview of the draft Resolutions to certify the Final EIR and to deny the CUP. During the public hearing, testimony included statements from the applicants in support of certifying the Final EIR and in opposition to denial of the CUP as well as from members of the Tiburon Neighborhood Coalition, who were opposed to certification of the Final EIR but supported the denial of the CUP. After discussion, the Planning Commission voted unanimously to adopt the resolution certifying the Final EIR and voted 4-1 (O'Donnell opposed) to adopt the resolution denying the CUP, after making minor amendments. Among the Commssion's primary bases for the denial were significant remaining unavoidable project impacts (noise, traffic safety and headlight intrusion), and inconsistency with numerous General Plan policies and Zoning Ordinance standards as more specifically set forth in Resolution 2006-16 (Exhibit K). Planning Commission Staff Reports from the April 24, May 10, and May 31,2006 meetings (including voluminous correspondence and late mail), are attached as Exhibits V, W, and X. Adopted minutes of the three Planning Commission meetings are attached as Exhibits M, N, and O. Adopted Planning Commission resolutions are attached as Exhibits J and K. Other materials, including large photo boards that were received or displayed at the Planning Commission meetings, are available for review in the Planning Division. All three appellants filed timely appeals of the Planning Commission's decisions. BASIS FOR THE APPEALS Staff has prepared a point by point response to each of the three appeals. Due to the length of the response document, it is attached separately as Exhibit D. A brief summary of the appeals and staff's response is provided below, as well as a discussion of potential project modifications that might resolve outstanding issues and address the remaining concerns expressed by the Planning Commission. Conareaation Kol Shofar Appeal This appeal consists of two parts: 1) an appeal of the CUP denial because the decision lacked evidence to support the findings for denial and because the action represented disparate treatment of CKS as compared to St. Hilary's CUP application; and 2) while the appellants state their support for certification of the Final EIR, they disagree with two EIR findings: a) the finding Town Council Staff Report October 24, 2006 Page 4 of 12 Town of Tiburon STAFF REPORT ........ ............ ............ ....... .... ..... of a significant impact on the Tiburon Boulevard/Blackfield Drive intersection despite the reduced number of new weekend nighttime events provided in Alternative 7, and b) the requirement to provide seven (7) additional parking spaces in Mitigation Measure 3.3-B.4 despite the Alternative 7 limitation on the number of people attending new events to 250. With regard to the appeal of the CUP denial, Staff believes that the Planning Commission was correct in seeking modifications to the project that would further reduce its impacts upon surrounding neighbors, particularly in terms of reducing the frequency and lateness of weekend nighttime events (which would reduce noise, traffic safety and lighting impacts to an acceptable level); increasing the amount of on-site parking (to reduce unsafe turnarounds on surrounding streets); and reducing the scale of the Multi-purpose Room addition to achieve a better harmony and compatibility with the quiet, residential character of the neighborhood and reduce the on- site parking deficiency. Such modifications would result in a project that balances the applicants' objectives for a modern facility designed to suit religious purposes and the neighborhood's desire to maintain safety and compatibility of uses. With regard to the Tiburon Boulevard/Blackfield Drive mitigations being challenged by the appellant, staff believes that very-recently-received additional traffic counts and the relative infrequency of proposed new Saturday evening events raise serious doubts as to whether a significant impact would result on the intersection and whether the limited duration of such potential impacts would be considered significant under CEQA. Follow-up traffic counts by the applicant's traffic engineer (see Exhibit U-10) indicate much less left-turn activity at the intersection than was analyzed in the EIR. With respect to the parking mitigation, Staff has indicated there is a clear need for additional on-site parking to meet Zoning Ordinance standards and therefore disagrees with the appellant's position that there is no need for Mitigation Measure 3.3-B-4. The site already suffers from on-site parking deficiencies and the additional square footage proposed would only increase the parking deficit. Tiburon Neiohborhood Coalition Appeal This appeal challenges the decision to certify the Final El R based upon numerous arguments that the analysis of both the Draft EIR and Final EIR were deficient and failed to adequately address or mitigate adverse impacts on noise, parking, consistency with the General Plan and Zoning Ordinance, traffic and circulation, light and glare, and alternative locations for the project, among other complaints. While staff recognizes that El Rs are complex documents that can never be perfected, the Final El R provides a thorough analysis of project impacts, a reasonable range of alternatives for consideration (7), and a list of mitigation measures proposed to reduce impacts to insignificance. Although Town Staff and the Planning Commission have identified certain mitigation measures in the EIR as being ineffective or otherwise infeasible, and do not agree with every conclusion reached in the El R; both Staff and Jhe Planning Commission believe that the El R should be certified as adequate and as having been prepared in conformance with CEQA. . Town Council Staff Report October 24,2006 Page 5 of 12 Town of Tiburon STAFF REPORT Greenwoo~ Beach HOA Appeal This is an appeal of the EIR certification on one ground: that the analysis of off-site parking impacts for events that exceed on-site parking capacity is not sufficient and does not meet the requirements of the Zoning Ordinance (Section 16-5.8). The specific concern pertains to CKS' recent use of the Baptist Church parking lot at 445 Greenwood Beach Road for a large summertime event, which resulted in many cars traversing the Greenwood Beach neighborhood. As stated above, Staff believes that the Final EIR is complete and adequate and should be certified by the Town. Staff supports project modifications, including further reductions to newly proposed weekend events, an increase in on-site parking, reduction in the size of the Multi- purpose Room, and retention of split High Holy Day services. Staff believes that these modifications, in combination with existing conditional use permit requirements, would reduce remaining impacts and result in off-site parking demand for large events being accommodated at the Westminster Presbyterian Church where CKS has conducted its off-site parking/shuttle program for several years. RLUIPA ISSUES On September 7,2006 the Town received a letter (Exhibit P) from the applicant's attorney, Gary Ragghianti, raising issues associated with the federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). This letter has been responded to by the TNC attorney in a letter (Exhibit Q) dated October 3,2006. The Town Attorney has submitted a memo (Exhibit R) addressing RLUIPA and both attorneys' letters. ISSUES TO BE RESOLVED Until the applicant demanded an up-or-down vote from the Planning Commission, the Commission was working toward developing appropriate conditions and mitigations to substantially address impacts, general plan and zoning inconsistencies, and disruption to the neighborhood that would result from the project as proposed. The Commission was unable to complete this work due to unwillingness of the applicant to work with the Commission's appointed ad-hoc subcommittee; however, the unresolved impacts and issues set forth by the Commission in Resolution 2006-16 and the direction provided toward reasonable solutions enable staff to provide the following outline of project modifications for Town Council consideration. ISSUE 1: Weekend Niahttime Events: Although Alternative 7 reduced newly proposed weekend nighttime events to 27 (12 new Saturday events lasting until 11 :00 pm, and 15 new Sunday night events lasting until 9:00 pm), this increase in weekend nighttime noise, traffic and light/glare impacts upon the neighborhood would be inconsistent with the quiet neighborhood character. It is important to note that the existing Saturday morning services and Sunday morning religious school services are large (up to 400 people) and when new nighttime events occur, the site would be heavily used all morning and then again long and into the night. It also seems clear from public testimony that a nighttime event lasting to 11 :00 pm (followed by any required clean-up) is simply Town Council Staff Report October 24, 2006 Page 6 of 12 Town of Tiburon STAFF REPORT ............................................... . too late for acceptable compatibility with the surrounding residential uses. Therefore, reductions in the number of new weekend events, and also in the lateness of proposed events, should be made as was concluded by the Planning Commission. As indicated in Table 1 below, staff recommends that the number of newly proposed Sunday night events be reduced from 15 to 9. Sunday evenings are times when surrounding residents are typically home and preparing for the coming work and school week, so minimizing evening even~s on Sundays would be appropriate. ISSUE 2: On-site Parkina: The proposed increase in on-site parking to 139 spaces to accommodate a 57,140 square foot facility serving a variety of religious, educational and social needs, overlapping at times, is insufficient. Events, or combinations of events, or any time at which more than 250-275 people are on the site are likely to result in street parking overflow onto surrounding residential streets. Existing Saturday services already attract up to 400 persons and cause overflow of the available on-site parking. The project would add a net total of approximately 22 parking spaces, far less than required by the Tiburon Zoning Ordinance for additions of the magnitude proposed. The Zoning Ordinance requirement for the proposed Multi-purpose Room alone is 161 parking spaces and a minimum of 363 spaces for all the various uses at the site (e.g., Sanctuary, Chapel, Multi-purpose Room, Lobby, Library, Classrooms, etc.). The Ordinance allows for some reduction to the cumulative total of the individual uses when there are multiple uses at a site if the uses or times don't overlap and the reduction does not result in a deficiency of parking spaces. Therefore, more on-site parking is needed although the number of on-site parking spaces provided need not reach a total of 363 spaces. As indicated in the table below, staff recommends that the project provide a minimum of 161 unrestricted parking spaces on site (Le., required handicapped spaces would be additional to this number as well as the restricted spaces accessed by the uppermost Via Los Altos driveway). Staff believes the site and project can accommodate this number of parking spaces. Staff requested that Crane Transportation Group (CTG) provide an expert opinion on the effectiveness of the mitigation measures proposed to date related to traffic safety impacts caused by inadequate on-site parking. These mitigations included the "parking receipt program" proposed by the El R preparer and set forth in the Draft El R, as well as the replacement mitigation measures involving signage that were recommended by Town Staff after it concluded that the parking receipt program mitigation was infeasible. CTG concludes in a letter dated October 11, 2006 (Exhibit T) that none of these mitigation measures would effectively mitigate the traffic safety impact to a less than significant level, thus confirming the Planning Commission's conclusion in that regard and supporting staff's recommendation. ISSUE 3: Size (Capacitv) of the Multi-purpose Room: Surrounding residents have expressed great concern over the large capacity of the proposed facility after expansion. The Multi-purpose Room (and its contiguous lobby) alone would have a capacity of 880 persons; the remodeled sanctuary and Multi-purpose Room and Lobby together could accommodate at least 1 ,430 persons. The facility would compare with other Marin County facilities as follows: the Civic Center Auditorium reportedly holds 2,000 persons; Town Council Staff Report October 24, 2006 Page 7 of 12 Town of Tiburon STAFF REPORT the Strawberry Recreation Center holds 265 persons; the Mill Valley Community Center (largest room) holds 500 persons (unseated) and 285 banquet-style. CKS indicates that the new net usable square footage is relatively small. Tables containing floor areas and occupancies for existing and proposed facilities are attached as Exhibit I. The story poles for the Multi-purpose Room have been installed and a story pole plan and elevations submitted (see Attachment 1). Staff observed the story poles and noted the footprint of the Multi-purpose Room extends downslope, beyond the existing flat pad of the lawn area, which would result in grading, retaining walls, and a more visually- imposing structure than previously envisioned by Staff. Staff recommends that the footprint of the structure should be scaled back to a somewhat smaller area that can be accommodated without extending beyond the flat lawn area, thereby eliminating unnecessary retaining walls and substantial grading. The scaling back would also reduce the projected deficiency of on-site parking (which contributes to the unmitigated traffic safety impact) and produce a structure more in character with the surrounding neighborhood. Included in the table below is staff's recommendation that the Multi- purpose Room's net area be reduced by 150/0. This reduction, while not large, would reduce maximum seating area, thereby reducing parking demand. In a worst case scenario, assuming that this reduction in area was entirely taken from seating area, the total number of seats would be about 460. ISSUE 4: Combined Hioh Holv Davs Service: The CUP involves a proposed change from the existing split services held at the High Holy Days (HHD) that accommodate up to 800 people at the earlier service and up to 750 at the later service, to a unified service that would accommodate up to 1,500 people at once. Although the existing CKS practice of split services spreads out the time that large numbers of people are using the site during the 3 days of HHD activity, the unified service would significantly intensify impacts upon the neighborhood, although for a shorter duration. The TNC researched how other conservative congregations in the Bay Area structure services on the High Holy Days and their summary is attached as Exhibit F. The research shows that of six congregations contacted, two held split services and four held a single service. Of these, one congregation rented a space off-site and used two different rooms, which might be considered a split service. The three congregations that hold single services can accommodate from 250 (Temple Beth Shalom) to 740 people (Congregation B'nai Shalom). Taking into consideration that CKS has a much larger congregation to accommodate than any of the congregations surveyed that provide a single service, and the concern over traffic safety and off-site parking impacts in the neighborhood, retaining the split service schedule that CKS has used for the past many years may be the best approach to reducing substantial neighborhood disruption that would occur from a unified service. To summarize the issues discussed above, the following Table 1 provides a comparison of key characteristics of the originally-proposed project analyzed in the DEI R, the CKS proposed Alternative 7 that was analyzed in the FEI R, and staff's recommended modifications to the project. Town Council Staff Report October 24, 2006 Page 8 of 12 Town of Tiburon STAFF REPORT .... . 1 Of TllJV .",~~~ ';.i>:/ ...~lli .i* ~ ~~ @ f"\~~~ :v '.;:: -<== <~~ .~ Olt/iij A IN , . .......... .... ... .... ............ ............... ... Number of New Weekend Events Annually Hours of New Weekend Events Maximum People at New Weekend Events Onsite Parking Size and Capacity of Multipurpose Room Number of Classrooms And Size of Day School Enrollment High Holy Days Table 1: Comparison of Project Characteristics Friday: 5 (25 Existing) Saturday: 35-40 (5 Existing) Sunday: 25-35 o Existin Friday: 10:00 PM Saturday: 11 :30 PM Sunday: 11 :00 PM Friday: 50 - 100 Saturday: 300 Sunday: 300 139 spaces (122 existing spaces) 9,733 Sq. Ft. 642 Seating Capacity 4 new classrooms (3,662 Sq. Ft.) 50 additional students (100 Existing) Combined Service for 1,500 people Town Council Staff Report October 24,2006 Page 9 of 12 5 12 15 9:00 PM Saturday: 11 :00 PM Sunday: 9:00 PM Friday: 50 - 100 Saturday: 4 @ 150 4 @ 200 4 @ 250 Sunday: 3 @ 100 4 @ 150 5 @ 200 3 @ 250 139 spaces 9,733 Sq. Ft. 642 Seating Capacity 4 new classrooms (3,662 Sq. Ft.) 50 additional students (100 Existing) Combined Service for 1,500 people 5 12 9 9:00 PM Saturday: 10:00 PM Sunday: 8:00 PM Friday: 50 - 100 Saturday: 4 @ 150 4 @ 200 4 @ 250 Sunday: 3 @ 100 3 @ 150 3 @ 200 161 unrestricted spaces (plus spaces required by Title 24 for handicapped) 8,273 Sq. Ft. (15% reduction) Approx. 460 Seating Capacity (assumes worst case, i.e. that all space reduction occurs in actual net seating area resulting in reatest loss of seats 4 new classrooms (3,662 Sq. Ft.) 50 additional students (100 Existing) Split Services (approx. 750-800 per service); continuation of current practice Town of Tiburon STAFF REPORT ...... .... ......................................... CONCLUSION The Planning Commission, while not agreeing with all of the conclusions reached by the EIR, nevertheless found it adequate and prepared in conformance with CEQA, and unanimously voted to certify it. The Planning Commission's decision to deny the proposed CUP application was predicated on its belief that a CUP could be approved if remaining environmental impacts, zoning conformance, and neighborhood incompatibilities associated with the Alternative 7 revised project were further reduced, specifically in the areas of weekend nighttime: noise, light and glare, traffic safety impacts, provision of additional on-site parking, and reduction in scale of the Multi-purpose Room. Staff shares the Planning Commission's views and has provided proposed modifications for consideration, as summarized in the table above. Staff is of the opinion that if the Planning Commission had been able to complete its review and deliberations on the application, the result would be similar to that set forth in the table. Any approval will need to ensure that concurrent events and activities do not exceed specified maximums on the site, and that no facility rentals and no non-member-sponsored events are allowed. CORESPONDENCE A number of letters have been received since the Planning Commission's action but prior to the completion of this report. These letters are attached as Exhibit U. One new issue raised is that of Synaplex (see Exhibits U-3 and U-5). Staff views Synaplex as a "programming" activity and considers its potential impact speculative. PROCEDURE In preparation for this hearing, a Meeting Procedure memo (Exhibit G) was prepared setting forth the order and timing that the Mayor intended to follow during the meeting. The Procedure memo also sets forth a cut-off date of October 20 at Noon, after which late mail received by the Town will not be considered by the Town Council for the meeting on October 24,2006. A cut-off date for late mail of November 9th at Noon has been established for the meeting of November 15, 2006. RECOMMENDATION At this stage of the proceedings, Staff's recommendation would be that the Town Council, following closure of the public hearing on October 24 and after deliberation on November 15, does the following: 1) Indicate its intention to deny all three appeals challenging the certification of the Final EIR; and 2) Indicate its intention to partially uphold the CKS appeal of the CUP, with direction to further modify the project through conditions of approval as generally set forth in this report; and 3) Direct Staff to return with appropriate Resolutions for such actions. Town Council Staff Report October 24, 2006 Page 10 of 12 Town of Tiburon STAFF REPORT . ......... ....... ... ........... ......... ..... ...... EXHIBITS A. Congregation Kol Shofar appeal B. Tiburon Neighborhood Coalition appeal C. Greenwood Beach Homeowner's Association appeal D. Staff Response to Appeals E. Final EIR Alternative 7 Project Description and Analysis, dated April 18, 2006 F. TNC Research on High Holy Day Services G. Meeting Procedure memo dated September 29,: 2006 H. Letter dated August 22, 2006 from CKS regarding off-site alternatives I. Table of existing and proposed square footages dated July 2006 and Building occupancy Summary table from CKS application drawings (Attachment 3, p. AO.2). J. Planning Commission Resolution 2006-15 K. Planning Commission Resolution 2006-16 L. Current CKS Resolutions (97-17 as modified by 2001-07 and 2004-10) M. Minutes of the April 24, 2006 Planning Commission meeting N. Minutes of the May 10, 2006 Planning Commission meeting O. Minutes of the May 31, 2006 Planning Commission meeting P. Letter from Gary Ragghianti dated September 6,2006 a. Letter from Stephan Volker dated October 3, 2006 R. Memo from Town Attorney regarding Religious Land Use and Institutionalized Persons Act (RLUIPA). S. Letter from the Becket Fund for Religious Liberty dated October 10, 2006 T. Letter from Crane Transportation Group dated October 11,2006 U. Correspondence received after Planning Commission denial, including: (1) Letter from Vista Tiburon HOA dated June 23, 2006 (2) Letter from Jerry Thayer dated July 5, 2006 (3) E-mail from Karen Nygren dated August 18, 2006 (4) E-mail from Tim Metz dated August 25,2006 (5) Letter from John & Karen Nygren dated August 25, 2006 (6) Letter from Orrie B. LeClerc dated September 4, 2006 (7) Letter from Ida Gelbart dated September 14, 2006 (8) Letter from Ron Berman dated September 21,2006 (9) Letter from Tim Metz dated October 9,2006 (10) Letter from Tiffany Wright dated October 13, 2006 and attached memo from Robert Harrison dated 9/12/2006 regarding additional Tiburon Boulevard/Blackfield Drive left-turn volumes V. Planning Commission Staff report dated April 24, 2006 (w/attachments, late mail) W. Planning Commission Staff report dated May 10, 2006 (w/attachments, late mail) X. Planning Commission Staff report dated May 31, 2006 (w/attachments, late mail) Town Council Staff Report October 24, 2006 Page 11 of 12 Town of Tiburon STAFF REPORT ... ................................................ ATTACHMENTS 1. Story Pole Plan and Elevations received 9/5/2006 (2 sheets) 2. Drawings (11" X 17" reduced) 3. Drawings (full-size) PREVIOUSLY DISTRIBUTED Draft EIR Final EIR and Response to Comments Final EIR Alternative 7 Analysis (see Exhibit E) Town Council Staff Report October 24, 2006 Page 12 of 12 - _..~~, ~ii III ~I -:1 ~i I iI II I :l"! ;.. i I~ I ~ il ~ ~ II I II m l:; ...~ ~ ~ Ii I (f2) :c I m a: I m ~ m C l -=:0 ......-.- I ATTACHMENT J rn ~ t rn :u ~ rn ., :u '1 ~ 1-- ! I i i ~ lilt ~ i i , ~-- co I .. ~ ~ ; ; ; 6 ~ ....-- ; ; c= ~ i III I I " I; 1:1 III I I , ~ ;~ I - 1 II I; I I I ...~ i ~ Ii I I I . 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EMuBIT J ./ .A ppe~ ~ ( TOWN OF TIBURON RECEIVED JUN - 6 2006 NOTICE OF APPEAL TOWN MANAGERS OFFICE TOVVN OF Tl8URON APPELLANT Nmne: Congregation Kol Shofar Address: 215 Black-field Dri ve, . Tiburon. CA 94920 Telephone: 388-1515 " (Work) . (Home) . ACTION BEING APPEALED Body: Pl rlnni ne r.nmm; ~~i nn Date of Action: . May 31,' 2006 Name of Applicant: Congregation Ko1 Shofar' Nature of Application: Gondi tional Use Permi t GROUNDS FOR APPEAn (Attach additional pages, ifnecessary) The Planninp; Commission's d.ecision is an abuse of di scrp.tion and is not supported by substantial .evidenceinthe record, as described 'in the attached letter from. Gary T.Raggbianti. 6. ~-( 2. ~o Cp Date Received: 6-'-{)(:, /z) k-o ck/e-r~ d ^ . EXHIBIT NO.-d Last Day to File: Fee Paid: j?J7J~ C(.l(ff (O~T Date of Hearing: January 2004 . /), lJ// ' 1/ I' ~t~~tv? ~ 2. ~a/l( /' 1/ b> /' ~'7 . i A ;' (~.,{ l5.j7 ,'I" ft.t;:".. ,,~ .=~ Ragghian ti I F rei tas UP AriORNEYS AT LAW 874 FOURTH STREET, SUITE D SAN RAFAEl, CA 94901.3246 TELEPHONE 415.453.9433 FACSIMILE 415.453.8269 WWW.RFLAWLLP~COM June 6, 2006 Mayor Smith and Members of the Town Council Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 RE: Appeal from decision of Planning Commission to: 1. Deny the Conditional Use Permit Application for expansion of an existing synagogue and day school at 215 Blackfield Drive (Congregation Kol Shofar APN 38- .351-34) and' adopting findings supporting the' denial (Resolution 2006~16); and 2~ Certify EnviroImlental Impact Report (Resolution 2006-15) with unsuppo,rted conclusions. Dear Mayor Smith and Members of the Town Council: This letter sets forth the substantive issues. on appeal from the Planning .Commission's denial of Congregation Kol Shofar's (" CKS") application for a conditional use permit.toremodeI and'make'building additions to and expand use of its existing synagogue. and. day school at 215 Blackfield Drive, as well as from the Commission' s. deterinination to certify . the Fmal Environmental Impact RepoJ;tC'Pinal EIR") prepared inconnettion with project application. As explained in detail below,: the' P1aniririg Co~sior{ s decision denymg the conditional use permit is legally urisupp~rtable in ~at the conclusions reached by the Commission are not supported by thefindings~d the fui.d~gs are not supported by substantial evidence in the record. '. As stich~ the Commission's decision is arbitrary clridcapricious.andis'therefore an abuse of-discretion, which the law does not countenance. The Town Council shoUld grantC1<S' s appeal by , TODD W. SMITH . SARAHN.LECER RICHARD T. FRANCESCHINI DAVID F.FEINCOLD 'ROBERT F., EpSTEIN ~PATRICK M.. tv1!-CiAS J! RAND.OLPHWA~LACE GARY T. RACCHIANTI.INC. OFCOUNSEt: JOHN RALPH THOMAS, JR. . ..J, MARK MONTOBBIQ DAVID P. FREITAS ~~ . RagghiantilFreitas LLP Mayor Smith and Members of the Town Council June 6, 2006 Page 2 . reversing the Planning Commission' sdecision and approving the CKS conditional use permit application~ Backgroitnd and Relevant Facts Sometimes, in the heat of a contentious neighborhood land use dispute, it is useful to step back' and ;remember how we got to where we are. Such perspective allows fo~ all mvolved to remember that administrative decisions have real world consequences, .and to reconsider whether such decisions are being fairly made, based on legitimate concerns, as well as on competent and substantial evidence' as the law dictates. . Th~ applicant h;ere, Congregation Kol Shofar, is a Conservative Jewish Synagogue seeking to remodel the existing buildings and make building additions to and parking improvements on the site; which was originally constructed as a public school. The purpose of the changes are to accommodate religious events and activitie~ that are an integral part of the expression of the congi-egant members'. faith. The appliCaI1t is attempting to remedy long standing problems deWing with inadequ~te and. aging fonner school buildings in order to allow its members to worship God ill an appropriate manner conSistent with the dictates of their religion~ In short, there is no commercial purpose or hidden agenda behind .CKS':g application. Rather, the application involves nothing more . . complicated than a COmmunity of faith seeking to improve its house of worship. The fact oICKS's Iongtinle operation in the heart of a residential neighborhood - including use of the facility to accommodate High Holy Day celebratioriS.and'otherreligiou~. activities..;.. can come as no sUrprise t6either the Town or the neighbors. q<S has operat~d pursuant to a Town-issued conditional use .pennit ("'CUP") since 1985. The existing CUP allows the current uses at the synagogue and concludes that such religious uses are compatible with the neighborhood in which the synagogue is located. That use permit h~s been reviewed annually by the Towirandapproved with only occasional modifications siricethe date of. its original issuance.' The religious events .IE 'I..~. R~gghian ti IF reitas LLP Mayor Smith and Members of the Town Council June 6, 2006 Page 3 conducted' at the synagogue have neverbeen resbicted o~}imited in number or time throughout CKS's entire 22 year history at the present location. This application, filed with the Town on April 24, 2004, proposes to . remodel the aging buildings to include a sanctuary, add 4 new classrooIl1$ and a multi-purpose building to complement religious and educational activities. The plan ,also includes associated landscaping Improvements. to the site and 'paving unimproved area to accommodate overflow parking on-site.' Anti~ipating that the multi-purpose room could accoInmodate additional weekend events, CKS has voluntarily proposed limits on weekend events c lirnitsthat do not exist under the current CUP - and significantly pared doWn the number of proposed events from during the application proc.~ss and hearings below. The application also requests an mq-easem the ,current m~um enrollment of the. on-site day school from 100'to 150 students. TheT own has been processmg this application for over 2 years. During that peri~d, the application has been stu<:Ii~d, analyzed, del?ated and excunined exhaustively. As part of and in connection with the processing of this application/the applicant has submitted a geo-technical report, a traffic and parking study, a noise study, a lighting study focUsing on asserted possible headlight intiUsion 41 only 20r 3 homes oliReedland W oadS Way, several use studies regarding long~stablished and ongoing ~vents and functions conducted at the synagogue, a visual impact study, as well as addenda to the aforementi~ned traffic and n~ise studies'. Iri" ad clition to th~ foregoing litany of studies, the project was required to undergo a ~ Environmental Impact Report. In an effort to accommodate both the neighbors' and the Town's concerns,CKS revised its application dUring.the public review process, and the most recent, iteration, deemed II Alternative 7" by Town Staff, was the subJectofthe Planning. Commission's consideration below. . Public hearings ,on this project application were conducted6nApril 24,- May 10 and May 31 andctilminated in the Planning Cominis~ion's deni~ of the CKS;s CUP application on the claimed gr'ounds of General Plan,' Zoning IE. IL.~ RagghiantilFreitas LLP Mayor Smith and Members 6fthe Town Council June 6, 2006 Page 4 Ordinance, and CUP inconsistencies. Further, after conducting three hearings on the EIR, the Planning Commission certified.the Final EIR on May 31; 2006. Issues on Appeal The Planning Commission's decision to deny the CKS CUP application is a grievous abuse of discreti9n, and should fail for at least two reasons: 1. The lack of evidentiary support in the record for Planning Commission's decision; . 2. The disparate treatment of CKS's application and the resultant burdensome infringement on CKS's religious exercise. In addition,CKS asserts that,.while the Planning Commission properly certified the Final EIR, certain ~onclusions in the EIR regarding required mitigation were in error and not supported by the evidence. - We address each issue in turn below. 1. The conclusions of the Planning Commission denying CKS's CUP application, as articulated in Resolution 2006-16, are not supported by the findings and the findings are not supported by substantial evidence in the record, making such decision' arbitrary and capricious and an unlawful abuse of discretion.' . Resolution 2006-16 .concludesthat CKS's project is inconsistent with certain goals. and.policies of the Town General.Plan, specifically relating to Noise, Traffic and Traffic Safety, Light and Glare, and'Neighborhood Compatibility~ The Resolution also concludes that the projectis iriconsistent with certain proYlsions ,of the Town's Zoning ordinance. AS outlined in detail in Exhibit A, incorporated herein by this reference, the conclusions reached by the Planning Commission are not supported by the Findings, and the Findings ....~~ RagghiantilFreitas LLP Mayor Smith and Members of the Town Council June 6, 2006 Page 5 recited are not supported by substantial evidence in the record of proceedings contained in the record. . The Planning Commission's conclusions make faulty assumptions about and/ or mischaracterize or misunderstand the evidence in the record, and in certain instances appear to apply standards of General Plan consistency that would handcuff virtually all future development in the Town. The decision is particularly glaring given the fact'that the Commission ignored - wi~out justification or stipport- Tovvn ?taff's recommendations as to the CUP application. Throughout the hearing process, Staff has recommended conditional approval of the application and, tellingly, Staff agreed with the ToWn's EIR consultant that CKS's proposed Alt~rnative.7 mitigated to alevel of insignificance . all substantial environmental impacts flowing from the' project. Thus, despite the comprehensive stUdies which were submitted to the Commission; des.pite the app~6val recOmmendation froIn Town Staff; despite the finding in the April 24> 2006 Staff Report that the application, as modified, was . consistent yvith the General Plan and Zoning Ordinance, and tl1at Staff could make the necessary findings required to issue $e CUP based upon the use restrictions agreed to by CKS;.despite the further exhau~tlve ~alysis by the Town's EIRconsultant con(2lu~g that the m~difie4 project:(Alternative 7) posed no unmitigated adverse impa~ts; ancf.despite the clear. an~convincing quality of the tr,affic aJ:"ld noise c()nsultantsrepoIts and testimony submitted to the CommiSsion, the Planning Commission nevertheless deni7d the requested CUP. Simply stated the Planning CommiSsion abused "its discretion in denying this application and the TownCourtcil shouIdgrantCKS"s a..ppe~ and approve the applied-for CUP.' . . . IE .~~ Ragghian ri '.F rei tas LLP Mayor Smith and Members of the Town Council June 6, 2006 Page 6 2. The Planning Commission' saction evidences disparate treatment oICKS's application and Infringes on the Congregation's right to the free exercise of religion. In addition to not being supported by the evidence in the record, the Planning Commission's decision is startling for its deviation from the precedent set by past decisions of the Town. For example, the Town recently approvedSt. Hilary's expansion, which included the addition of a new 8.,300 square foot gym, a new .9,000 square foot classroom, a new 2,325 square foot convent with 575 square foot garage, and a new 4,700 square foot parish center. The disparate manner in which these applicatio~ were treated is worthy of note and frankly disturbing: . · St. Hilary's was allowed to be processed to approval on a Negative Declaration even though it proposed to' add all of the previously ref~renced space to an existing 33,722 square foot facility; CKS, on the other hand, was required to perform a full EIR for a similarly scaled project. · The Town concluded that the St. Hilary's expansion was entirely consistent and' compatible With the. surroUnding residential . neighborhood, as well as necessary for the educational and theological work of the catholic parish located there. Here, thePla.nnii1g Commission concluded that CKS's operation of a synagogue in a residential neighborhood was incompatible vyitha residential neighborhood - this despite CKS's20-plus yearoperation.at the current loca~onunder'a Town . issued use permit. · TheTown imposed absolutely no use restrictions on the newly approved St Hilary's facilities except the tiinesatwhich basketball'Illaybe played in the gym. St Hilary's is free to use thegyni and all otherf~cilities on its site whenever it wishes without regard to restrictions on numbers oicms or I~.,. t..~ ' RagghiantilFreitas LLP Mayor Smith and Members of the Town Council June, 6, 2006 Page 7 persons on the site, or in the surrounding neighborhood., or any restrictions on the time at which such activities'may startor terminate. In contrast, CKSwould be operating under severe restrictions as to the number and timing of religious events that may occur, and the Planning Commisison seriously considered attempting to restrict the right of CKS's congregants to park on public streets. When viewed -in context of the entire proceeding below, the, denial of thls application, particularly when considered side-by-side with what the Town has approved for St. Hilary's, is unfair and a substantial restriction upon the reasonable religious goals sought to be ac~eved here - moderate additional, but sufficient, space to honor and worship the applicant' s.Godaccording to the precepts o~ Jewish la~. . The CUP application and the record before the Commission demonstrate incontrovertibly the critical need ofCKS for the improvements requested in order to fulfill its religious mission. The independent judgment of the ErR establishes that the ;project Will have no uiunitigated negative impacts on the surrdunding area. The'Commission's denial of the CUP'application>thus imposes a substantial burden on the religious exercise of the congregation and its individual members, and fails to employ the least restrictive means necessary to further any applicable compellihg governmental'interest. . . Religious assemblies cannot function without a physical space adequate to their needs. arid 'corisistent with their theological requirements. The right to build . such space is an indispensable adjunct of the core first aInendmertt right to assemble for religi()tlS purposes. To deny sticha request because headlights may shine into 2~3 homes; orbetause neighbors object to the size of the proposed sanctuary or multi-purpose room where religioUs activities will take place; or because persons driving to the place of worship may park or turnaround on a public street; ~d to assert' that suchmehial objections cOl1stitute a supervenfug public safety issue, is to prevent the reasonable' use of this place . of worslUP for religious p~oses. Such pretextualgrounds for dehial of CKS's application :~ Ragghian til F reitasLLP Mayor Smith and Members of the Town Council June 6, 2006 Page 8 violate the Congregation's legitimate expression of, and right to practice, its faith and result in illegal action. 3. Certification of the Final ErR.' At the May 31, 2006 meeting, the Planning Commission also adopte'd a . resolution certifying the EIR for the CKS CUP.' (Resol~tion'2006-15.) Although we agree.that the ErR is adequate for purposes of CEQA, we do disagree with some of its conclusions and proposed mitigation measures. Specifically, the substantial evidence in the record supports the conclusion that th~ Project will not have a significant impact on the Tiburon BouIevardjBlackfield ,Drive intersection, .. contrary to the conclusion reached in the EIR. Also, substantial evidence in the record supports.the conclusion that the Project, as proposed in Alternative 7, ~ provide adequate parking. Thus, there is no need for Mitigation Measure 3.3-B.4, . which requires provision of additional parking. Although we believe it is appropriate to certify the Final EIR, we hereby appeal the resolution certifying the EIR in order to preserve and elevate the discussion of these two impacts to the T ()wn COurlcit Conclusion As demonstrated above, the evidence in the record overwhelming. supports approval of CKS's application. There are no :UI1ilritigable environmental impacts; nor are there any inconsistencies with the ToWn's General Plan or > ZonmgOrdinance. Town Staff so concluded, as. did the. Town's own EIR consultant. Yet the Planning Commission ignored the evidence' and the recommendation. of its .own'st~ and deniedCKS's application based on legally insufficient conchisory findfugs and without support of substantial evidence in the record. .Ori this' ground alone, the 'Planning'CommiSsion' s decision is arbitrary and capricious and therefore an abuseDf diScretion. Moreover.the denial of thi.s application, as modified and as proposed to be conditioned, imposes a substantial burden on the religious exercise of the corigregation and its ~~ Ragghian ti IF reitas LLP Mayor Smith and Members of the Town Council June 6, 2006 Page 9 individual members, and fails to employ the least restrictive means necessary to further any applicable compelling governmental interest. . The Town Council should grant CKS's appeal and approve its application. The applicant reserves the right to supplement this appeal withfuri:her relevant and/ or necessary information prior to the time of thehearmg on this appeal. It is respectfully requested that the Town Council set the hearing on this appeal in late July since I have pre-paid vaca~on plans that will take me out of the country ITom June 17, 2006 until July 3, 2006. GTR/ ejm Enclosure cc: Scott Anderson Lisa Newman Ann Danforth Exhibit A Specific' Planning Commission Errors The Planning Commission erred with respect to the making of findings on the following issues in its Resolution of Denial: · Noise; · Traffic and Traffic Safety; . · Light and Glare; · Neighborhood Compatibility; and · Zoning Ordinance Non-conformance. 1. Noise The Commission found that the Project will generate substantial noise from events, particularly on Saturday and Sunday evenings. The Commission found that all owing.. an increase in nighttime noise and activity for requested weekend evenings conflicts with Goals N-A, N-B, and N-C of the Town's General Plan Noise Element. . These specific goals; however, are effectuated by General Plan policies, in particular Policy N-l, which'provides: liThe Town s'hall use the Noise and Land Use'Compatibility Guidelines... to detennine where noise levels in the community are acceptable or unacceptable." (Emphasis added..) The Town's Guidelines apply the CNEL and Ldnnoisemehic as the methodology for detennining noise compatibility. . CNEL and Ldn are designed to account for increased sensitivity to noise at night. Thus, the Town' sown General Plan sets forth the excluSive means for detennining compatibilitY for noise impacts . and the FEIR demonstrates that this project satisfies the specified criteria. In the Draft EIR~ the Town's EIR 'consultant stated that :riight time events would restilt "in an increase in the day-night averagenqise levels of about 1 dBA Ldn at nearby residences (increasing average noise levels to 52 to 53 dBA.Ldn)." . (DiaftEIR~p. 87.) These noise levels from' all various noise sources associated with the Project would be within Town standards for a residential. neighborhood . (60 dBALdn) if such noise levels are perceptible atall. (DEIR, p. 87~) Nevertheless, the .Town's EIR consultant concluded that' occasional noise from weekend events, such as car doors~lainming and conversations, coUld be perceived'as out of context with .the character of the existing nighttime noise environment, and would likely distUrb some nearby residences.' . . . 1 Thereafter, in connection with the proposal of Alternative 7 by CKS, the Town's noise consultants analyzed Alte!llative 7 an~ concluded that the noise impacts associateq with Alternative 7 would indeed satisfy the Town's standards for Ldn. (lllingworth & Rodkin, Inc., April 6, 2006.) Moreover, the Town's noise consultants also determined that neighborhood disturbance from individual noise events would not result in a significant lmpact because such noise events will occur relatively infrequently. Thus, given the infreq'U~~cy of events, and also considering the Project will be within Town noise standards, the Town staff concluded noise impacts will be less than significant and consistent with the General Plan standards. - and the FEIR agreed. In the face of this evidence and the conclusions of the FEIR, the Town's noise consultants, and the Town Staff, the Planning Commis~ion nevertheless found the proposed project inconsistent with Goals N-A, N-B, and N-C. .Given the overwhelming evidence to the contrary, the Commission's copclusionS in this area are arbitrary and capricious and constitute an abuse of discretion. 2. Traffic and Traffic Safety The Commission determined that the Project will result in substantial additional traffic generation, particularly for latge-scale events. The - COmmission fOimd that stich traffic generation will pose significant traffic hazards to vehicular and pedestrian safety in conflict with Goals C-C and C-F and Policy C-l of the General Plan Circulation Element, and Goal SE-A oithe General Plan Safety Element. The Draft EIR concluded' that "[i]ncreased numbers of turnarounds in driveways or in front of homes and increased frequency of.event-rel~ted turnarounds on these residential streets. is considered by the EIR traffic engineer to be a potentially significant safety concern." (Draft EIR,p.. 67.) Alternative 7 included two modifications to the Project which will mitigate this potentially significant impact further than what was originally provided in the Draft EIR.. Alternative 7 reduces the potential that people will "ttuTI around" in the street by revising the circulation and parking plan. . According to th~ reviSed. circulation and parking plan, the Reedland . Woods Way driveway would become an exit only; and allgnes:ts would enter thE. site from Via Los ~tos. .W~ note that this change was originally suggested by the opposition neighbors, who now apparently reject it. Additionally, signS would be -posted. at ~e intersection of Reedland Woods Way and . along Via Los Altos, ciiIecting vIsitors to follow this circulation plan. Alternative 7' s proposed modifications serve to reduce the potential impact of mid-street turnarounds to a less-than-significant level, and the FEIR reached this precise conclusion. . 2 Thus, despite the Commission's finding to the contrary, Alternative 7 is clearly consistent with the 'Circulation Element of the Generci1 Plan. The faJlacy of the Corrunission's reasoning is accentuated when one considers that at least one of the policies relied upon by the Commission to reach its conclusions is completely inapplicable to this project, and the other policies were specifically addressed inthe FEIR as having been mitigated to a point of consistency. Specifically, Policy C-C is not relevant to this Project since street design changes are not planned for the Project. Furthermore, policies C- P, C-l, and SE- A are .... each addressed in the Final EIR and any related impacts have been determined 1, by the FEIR to be sufficiently mitigated to protect the health, safety, and general welfare of the community and there exists no credible substantial' evidence in the record to suggest otherwise. There are also broader policy implications and issues which, in its rush to deny CKS's application, the Planning Commission apparently igrt0red. For example, by concluding that a project which may cause a few additional turnarounds a few weekends a year is inconsistent with these General Plan ' policies, the Town may set precedent which would, prevent the Town from approving any project that generates a few trips. Reedland Woods Way is, after all,. a cul-de-sac, like many other streets in the Town. By necessity, any car accessing a residence must turn around to exit. Applying ~e standard that has been' applied to CKS to future projects would allow a project opponent to argue against any new <?r substanti~y remodeled single.-famiIy residences that might add turnarounds. Notably, the Commission appears to support its flawed traffic finding based upon the rationale that the residents in the "immediate neighborhood" constitute the "community" referred to in the Town's General Plan. This causes concern because,. by applying this standard, the Corrunission necessarily applies a community standard to a narrow and specific neighboihood~ Consequently, such a narrow interpretation of a health and safety commUnity standard potentially renders any future project in a similarly situa~ed neIghborhood that may involve traffic and concern about turnarounds inconsistent with the General Plan~ . "';}. . As a matter of engaging in fair and consistently applied long-term planning, the Corrunission should have been mindful of the conSequences and effects associCited with interpreting borderline impacts as being squarely mconsistent with ~e General Plan. The ConUnission faile<;i to be so ri1indful, however/just asitJaiIed to properly apply the evidence ~ the record to s~pport its conclusions. Such action is arbitrary and capricious; and constitutes an abuse of discretion. 3 3. Light and Glare TheCommissiori determined'that the Project's nighttime weekend headlight impacts on nearby residences will be significant and will materially intrude into the enjoyment by residents of neighboring homes. Specifically, the Commission found that the Project would cause unnecessary nighttime headlight impacts on existing residences, which would conflict with Goals LV-B, LU-D, and LU-H, and Policy LU-2 of the General Plan Land Use Element. The Policies that the Commission relied upon to support its conclusions focus primarily on "protection of health, safety, and welfare of the community" (LV-B), as well as "protection of small town residential character of the Town" (LU-D, LU-H, and LU-2). The flaw in this rationale, however, is that there is no specific standard, metric, or threshold identified in the General Plan to employ a . headlight intrusion analysis to determine whether light and glare associated with the Project result in a significant impacton the community. Instead, without evidence to support its reasoning, the Commission ignored the fact that mitigation was proposed to specifically shield the headlight impact on the second stories of tvvo or tlrree homes on Reedland Woods Way, an~ simply concluded that the Project's nighttime weekend headlight impacts will be significant. . The Draft and Final EIR, however, reveal a more detailed story with evidence to support theFin~ EIR's conclusion that the proposed mitigation measures will reduce the visual impact to a-less-than-significant level. . Mitigation Measure3.5-C.l requires construction of a berm and/or fence to block headlight intrusion of a home on Reedland Woods Way. Additionally, . 'Mitigation Measure 3.5-C.2allows the Town to monitor the project after completion to ensure there is no additional headlight intrusion, and to require additional improvements to address that intrusion, if it occUrs. Once again, the . Planning Commission ignored such clear evidence. Moreover, the Commission has repeated its error from the Traffic section ~bove by narrowly defining the community "health ID1.d safety" and "character" standard to mean impactS on only two or three specific houses. 'The . ~onsequences and effects associated with interpreting.a borderline headlight _impact as being squarely inconsistent with the General Plan simply because such impact affects two or three houses would appear to resUlt in a Town standard that would never allowconstiuction of .even single-family residence if that projectwotild result in car tnps and headlightintrusionint6 neighboring houses. . Unless,()f course, it is the PlaJ:U1i.llg ColTII!rission's intentiori to only apply this newly.created narrow co~urritystandard to CKS,which in itselfwouId be . . , problematic and blatantly discriminatory. . . , .".- ", . 4 Given the detailed headlight intrusion .study that shows this asserted impact will be mitigated to less than significant levels, and a complete lack of evidence showing that the mitigation will not be effective, the COmmission's conclusions are arbitrary and capricious. . 4. Neighborhood 'Compatibility The Commission found that the Project poses significant impacts on the surrounding neighborhood from increased'noiselevels, additional.light and glare, additional traffic, increased parking demand, and reduced vehicular and pedestrian 'safety. Specifically, the Corrunlssion found the Project inconsistent with the following goals and policies of the Town's General Plan: LU-A,'LU-C, tU-D, LU-H, LV-I, LU-2, LV-6, LV-13, C-C, C-D, C-F, C-I, C-1, N-A, N~B, N-C, and SE- A. In particular, the COmmission found that the Project would not" protect the health, safety and welfare of the community," and would not "protect and preserve existing neighborhood character and identity." The Commission found that approval of the Project 'would not be consistent with its obligation to II ensUre that all land uses, ,by type, amount, design. and arrangement, serve to preserve, protect and enhance the small-town residential image of the community. .' ." 5 5. ' Zoning Ordinance Non-conformance . The pianning Commission concluded it could not make the findings necessary to approve the CUP application, as set forth in the following sections . of the Town's Zoning Ordinance: 4.04.02, 4.04.03(a)(2), 4.04.03 (a) (3), 4.04. 03 (b) (1), 4.04.03(b )(3), S.08.04( d), 5.08.04(k), 5.08.10 and 5.08.11. ZonillgO:rdirLance $ections 4.04.02 and 4.04.03 focus primarily on the location, and pot~ntial impact on the surrounding neighborhood of, and need for, the proposed use~CKS has been at its current location for almost 22 years and its current and proposed use are consistent with the RO-l zoning for the site, and h1deed have been recognized as consistent and pernl.itted by the T o~ since 1985. Any findingthat CKS is not an appropriate location for a proposed multi- purpose room addition to a long existing synagogTI;e is arbitrary and caprIcious and flies in the face of 20-pIus years 'of Town sanctioning since, as the record herein states, the activities that will be conducted in this space ar~ the same as have been in place at the synagogue far years. Regarding the need for the facility, the record is replete with evidence setting forth CJ:CS's dire nee9- far these facilities to appropriately accammodate the practice of the congregation's religion. CKS has 'also repeatedly explained its search for other facilities or locations that might appropriately serve its needs, all . to no ava:i.l. The other Zon.in:g Ordinahce sections cited deal with traffic and parking and neighborho~d.campatibility. Regarding these issues, the Final EIRhas clearly concluded that the Project will have adequate parking and will not result in any significant traffic impacts. Also, by placing limits on the number of events and attendees that do not currently exist~ the ptoposedCUP'will help to reduce . ". the potential for irrip~cts in the future. We note specifically: that on-street . p~king is expressly allowed, but CKS has .offered mitigation mea~uresthat will reduce the amount of on-street parking that currently occurs. Any finding that . purports to can~lude that any member of the public may' park on the public street except CKS cangregan:tS .and attendees would not only be arbitrary and caprici()us, but would 'be an impeimissible Constitutional violation. 6' EXmBIT /!; - ?l fP-e J2 k J.- TOWN OF TffiURON NOTICE OF APPEAL APPELLANT Name: Tiburon Neighborhcod. Coalition . Address: 2 Pase:::> l-fuaso1, Tiburon, CA 94920 Telephone: (415) 217-7416 (VVork) (415) 2S4-140R Cell ~) ACTION BEING APPEALED Body: Planning Ccmnission Date of Action: May 31, 2006 Name of Applicant: Congregation Kol Shofar Conditional Use Pennit and Certification Nature of Application: . of Environmental' Inpact Report GROUNDS FOR APPEAL (Attach additional pages, if necessary) Certification of Environrnental :D:rpact Report. (ErR) is contrary to law and not SllpfOrtedby the record, as. discussed on the attached pages. Last Day to File: June 12, 2006 Date Received: June 12, 2006 Fee Paid: $300.00 Date of Hearing: T.B.A. January 2004 fD) ~ ~ ~ ~W ~ ~ A ~ JUN 1 2 2006 t!JJ . TOWN CLERK EXHIBIT NO.. TOWNOFTIBURON STEPHAN C. VOLKER JOSHUAA.H. HARRIs MARNIE E. RlDDLE . Law Offices of STEPHANC. VOLKER 436 14th STREET; SUITE 1300 OAKLAND, CALIFORNIA 94612 Phone 510/496-0600 .:. Fax 510/496-1366 e-mail: svolker@volkerlaw.com 10.356.01/11.131.02 June 12, 2006 Mayor Paul Smith Honorable Town Council Members T own of Tiburon 1505 Tiburon Boulevard Tiburon, California 94920 Re: Cross-Appeal by Tiburon Neighborhood Coalition Challenging Planning Commission certification of the Final Environmental Impact Report for the Kol Shofar Synagogue Expansion Project (Planning Comhlission File No. 10404 ) Dear Mayor Smith and Honorable Town Council Members: In accordance with Tiburon Town Council Policy 95-01, the Tiburon Neighborhood Coalition (the "Coalition") respectfully appeals the Tiburon Planning Commission's adoption on May 31, 2006. of Resolution No. 2006-15, certifying the Final Environmental Impact Report (FEIR) for the Kol Shofar Synagogue Expansion Project (File No. 10404) on Assessor Parcel No. 38'-351-34. The grounds for this appeal are that the Planning Commission's Resolution No. 2006:-15 is contrary to applicable law, inconsistent with the Commission's Resolution No. 2006-16, and not supported by the record evidence in this proceeding. The subj ectEIR cannot be lawfully certified because it is inadequate in the respects set forth below. The Coalition represents over 175 supporters from six major neighborhoods in the vicinity of the proposed Kol Shofar Project, as well as other concerned residents from throughout the Town of Tiburon. These six neighborhoods include residences from Reedland Woods Way and Vista Tiburon Drive, Paseo Mirasol and Via San Fernando, Upper Blackfield Drive, Via Capistrano, Via Los Altos, Karen Way and other Bel Aire streets including Lower Blackfield Drive. The Coalition supports the cross-appeal by the Greenwood Beach Homeowners Association. The Coalition respectfully petitions this Council to decertify the FEIR for the Kol Shofar Project, and to remand this matter to the Planning Commission to rectify the following deficiencies in the FEIR. ;;of";;. ~,. :'" ~l;l l >, ......,/, f J! '.;' .'.,.. .f;" ~'"'' Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 2 I. SUMMARY OF FEIR DEFICIENCIES . 1. The FEIR fails to remedy the Draft EIR's(DEIR's) deficient assessment of the noise impacts of the Kol Shofar Project. The Planning Commission properly found the DEIR's noise assessment deficient. In its Resolution No. 2006-16 .denyingKol Shofar's Conditional Use Application, the Commission stated: "the Planning Commission disagrees with certain conclusions of the EIR based on evidence in the Entire Record. Specifically, the Planning Commissi,on received written testimony from two acoustical experts stating that the Draft EIR's use of a 24-hour average metric, "Ldn" to assess the impact of intermittent noise spikes during the evening was not appropriate, as it trivializes short-term spikes in noise by averaging them against the ambient noise levels during the rest of the 24-hour perjod. , The Final EIR acknowledges that arrival and departure noise levels will reach 65 decibels, and that background nighttime noise levels in the neighborhood are only 40-41 dBA. FEIR, p. 43. Thus, the short-term noise impact of these evening events might reach 25 decibels against background levels at 11:00 p.m., a very substantial increase. Neither the Draft ErR nor the Final EIR proposes any mitigation measure that would assure that the significant spikes in late night week-end noise would be mitigated to achieve a level of insignificance. The Planning Commission therefore fmds mitigation measures for Impact 3.4- B (Noise Impacts in Areas Surrounding the Project Site) inadequate to mitigate the increased noise." Resolution No. 2006-16, ~ J, pp. 3-4, emphasis added. 2. The FEIR an.d DEIR fail "to adequately address and mitigate this Project's adverse impacts on parking. The DEIR and FEIR fail to acknowledge the Project's clear and substantial violation of the Tiburon General Plan's and Zoning Ordinance's parking requirements for new Projects. .The Planning Commission properly found in Resolution No. 2006-16 that the FEIR'sparking mitigations are illusory because they are "infeasible": "Mitigation Measure 3.3-C.3 (the Parking Receipt Program) proposed for Impact 3.3-C (insufficient on-site parking resulting in unsafe turnarounds) is unwieldy, unduly difficult to monitor and enforce, and unlikely to be successfully implemented, and therefore infeasible. The Planning Commission finds that the alternative mitigations put forth in Alternative 7to address the Project's deficient on-site parking are insufficient to off-set the basic problem of inadequate on-site parking, and simply spread or relocate impacts into surrounding neighborhood streets." Resolution No. 2006~ 16; ~ J, p. 4, emphasis added. Rather than address and fully mitigate this Project's obvious parking deficiencies, the DEIR erroneously assumes that this Project may shift the Applicant's burden onto neighboring streets to absorb the excess vehicles its undersized parking capacity cannot accommodate. It asserts, incorrectly, that the Project proponent can divert "about 33 cars to park on-street along the Project site frontages of Via Los Altos and Blackfield Drive." Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 3 DEIR at p. 67. This assumption directly violates the Tiburon Zoning Ordinance, a conflict that neither the DEIR nor the FEIR addresses. The governing standards are set forth in Zoning Ordinance sections 16-5.8.2-.11. They direct that "[t]he required parking shall be provided on the parcel or contiguous lot or parcel where the use is located," or "on another parcel providing that the parcel is within the town in a commercial zone and is reasonably convenient to the subject parcel, as approved by the town." This Project fails this test. Neither the DEIR nor the FEIR discloses the Zoning Ordinance's requirement that where parking is to be provided at an off-site location, then the Project proponent must provide "a covenant by the owner or owners of such [off-site] parcels for th~ benefit of the town, in a form approved by the town, that the owner or owners will continue to maintain the required number of parking spaces so long as the building, structure, use or improvement is maintained within the town," and that the "title to and right to use the parcel or parcels upon which the parking spaces are to be provided shall be subservient to the title to the premises upon which the [project] building has been or is to be erected," or alternatively, that the off-site parking spaces are secured by a "lease agreement. . . . reviewed and approved by the town." Tiburon Zoning Ordinance section 16-5.8 .2( a) and (b). It is unlikely, if not impossible, for Applicant to satisfy this requirement. Yet this conflict is swept under the rug. This omission defeats the purpose of an EIR, which is to identify and attempt to resolve environmental conflicts such as traffic and parking. The DEIR and FEIR likewise fail to determine this Project's maximum, simultaneous parking demand. Zoning Ordinance section 16-5.8.10 directs that where a project involves multiple uses such as the Applicant proposes here, "[p larking required . for multiple uses shallbe the sum of the requirements for each individual use." But contrary to this clear requirement, the DEIR and FEIR oDly consider the impact of the greatest individual use - not the sum of all contemporaneous uses. Despite repeated requests from the Coalition for a comprehensive assessment of the timing and intensity of the different uses proposed for the Project, neither the DEIR nor the FEIR, nor any subsequent staff analysis, has determined the maximum simultaneous parking demand of the facility if it is expanded as proposed. Because the FEIR fails to rectify this omission, it cannot be certified. 3. Neither the DEIR nor the FEIR addresses and mitigates to insignificance this Project's profound conflict with the character of the existing neighborhood, in violation of Goals and Policies of the Tiburon 2020 General Plan. Neither the DEIR nor the FEIR addresses all of the Project's numerous and substantial violations of the Tiburon General Plan and Zoning Ordinance. Instead, the DEIR and FEIR stop short of acknowledging many of the planning and zoning violations this Project poses. These violations are pervasive and underscore this Project's many Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 4 significant environmental impacts. As the Planning Commission found in Resolution No. 2006-16, "based on the evidence in the Entire Record, . . . the Project is inconsistent with numerous Tiburon General Plan Goals and Policies, and is not in compliance with provisions of the Tiburon Zoning Ordinance because of parking deficiencies and the cumulative activity levels, noise, disruption, and the sensitivity of the days and hours that these activity levels would occur. The Planning Commission further finds tb.at the Project is incompatible with surrounding residential development; and would be materially detrimental to the quiet enjoyment of people's homes and neighborhoods. Specifically, the Planning Commission finds that the Project would be inconsistent with Tiburon General Plan Land Use Element Goals LU-A, LU-B, LU-C, LU-D, LU-H, and LU-I; with Land Use Element Policies LU-2, LU-6, and LU-13; Circulation Element Goals C-C, C-D, C-F, and C-I and Circulation Element Policy C-I; with Safety Element Goal SE-A; and with Noise Element Goals N-A, N-B, and N-C. The Planning Commission further fmds that the Project is not in conformance with, or fails to comply with, Tiburon Zoning Ordinance Sections 4.04.02(a), (b), (c), (d), and (e); Sections 4.04.03(a)(1), (a)(2), and (a)(3); Sections 4.04.03(b)(1) and (b)(3); Section 5.08.04; Section 5.08.10; and Section 5.08.11." Id. at 3,p:. , I, p. 3. The FEIR's failure to acknowledge and address these plan conflicts is a clear violation ofCEQA. CEQA Guidelines section 15125(d) directs that "[t]he EIR shall discuss any inconsistencies between the proposed project and applicable general plans . . . ." Id., emphasis added. Because the FEIR fails to do so, it cannot be certified. 4. Neither the DEIR nor the FErn addresses and mitigates the Project's significant adverse impacts on traffic and circulation. The Project would generate substantial late night traffic on Saturday and Sunday evenings in a quiet residential neighborhood, dramatically increasing hazards to drivers and pedestrians alike~ A~ the Planning Commission found ill Resolution No. 2006-16, none of the mitigations proposed in DEIR and FEIR, even as supplemented by the Alternative 7 analysis, would prevent significant unsafe turn-around impactS from cars that cannot be accommodated by on-site parking and would be forced to seek parking on adjacent residential streets. Id. at 1 J, pp. 4-5. . Turn-arounds on residential streets, particularly at'night, pose significant impacts on public health arid safety, and conflict with the General Plan's Land Use Goals LU-B, LU-D, and LU-H, which require new projects to "protect the health, safety, and welfare of the community," "preserve, protect, and enhance the small-town residential image of the community," and "protect and preserve existing neighborhood character and identity." The Project's' unsafe patterns of traffic and parking activity likewise contravene the Goals and Policies of the Circulation Element, including Circulation Goals C-C, C;'P, C-I, and C-l, which require projects to "maintain all existing. . . residential streets with consideration of. . . residents' safety. . . andprotection of residential quality of life," "minimize traffic congestion," "provide adequate parking," and "take into consideration potential traffic and circulation impacts." Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 5 The DEIR's and FEIR's failure to address these General Plan conflicts violates CEQA's commarid that "[t]he EIR shall discuss any inconsistencies between the proposed project and applicable general plan. . . ." CEQA Guidelines ~ 15125(d). Therefore the FEIR cannot be certified. 5. Neither the DEIR nor the FEIR adequately addresses and mitigates the adverse impacts of this Project's nighttime light and glare on nearby residences. Although the DEIR concedes that "[h]eadlight intrusion is a visual invasion ofpriva~y and is considered a potentially significant impact;" (DEIR, p. 106, emphasis in original), the FEIR assumes that this impact will be mitigated to insignificanc~ through landscaping and erection of a fence or berm. FEIR, p. 49 and Mitigation Measures 3.5-C.l and 3.5- D.10. But neither the DEIR nor the FEIR acknowledges that the mitigation measures they propose are not adequate to reduce the impact of vehicular headlight intrusion into the effected homes to insignificance. The proposed mitigation of the headlight intrusion into 35 Reedland Woods Way - an existing fence - would not shield the second story (i.e., the sleeping quarters) of this 'residence from direct headlight intrusion. The FEIR's assumption that headlight intrusion into 20 Reedland Woods Way would be reduced to insignificance because of the 1 DO-foot distance is in error, as modem headlights are designed to reach several hundred feet. The FEIR's assumption that headlight intrusion into 220 Blackfield Drive would b~ insignificant because that residence has been impacted by other headlight intrusions in the past "without complaint" does not in fact identify a mitigation measure as CEQA requires. Public Resources Code ~ 21002.1(a) ("The purpose of an [EIR] is to . . . indicate the manner in which . . . significant effects can be mitigated."). The fact that this home is already affected by existing headlight intrusion does not mitigate the impact of the additional headlight intrusion that this Project would cause. Instead, it makes it worse. Moreover, the FEIR overlooks the fact that the addition of late night weekend events, as well as more frequent nighttime use of the facilities on week days, will substantially increase the frequency and duration of headlight ititrusion, and extend it into much later hours. Suggestions that future landscaping might reduce these headlight impacts to insignificance are not borne out by any specific landscaping plan, would require many years to implem.ent, and are not specifically enforceable in any event. For these reasons, the Planning Commission correctly found in Resolution No. 2006-16 that "the mitigation measures specified for Impact 3.5-C (headlights on vehicles using the driveway) are inadequate to reduce to insignificance late-night . week-en~ headlight intrusion into homes in the immediate vicinity of the driveway and parking lot. . . ." Id. at p. 4, emphasis added. Because the FEIR fails to acknowledge and address this failure to mitigate a significant impact, it cannot be certified. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 6 6. Neither the DEIR nor the FEIR addresses alternative locations for the Project outside the Town of Tiburon. The DEIR and FEIR fail to. examine off-site locations for the Project outside of Tiburon, even though roughly 85 percent of Kol Shofar's congregation resides outside the Town. DEIR, p. 155 (''this EIR does not examine an alternative of relocating the entire facility and programs to another location. In view of the Project's substantial conflicts with the Tiburon 2020 General Plan and Zoning Ordinance as found by the Planning Commission, it behooves the Town and the applicant to examine alternative sites outside the Town for part or all of the proposed Project. Since the primary impetus for the Project is a combination of large-scale celebratory events on the weekends, consideration should be given to renting existing facilities at alternative locations for these short-term, occasional events. Although the public has repeatedly requested consideration of alternate sites, potential alt~rnate locations outside the Town were ignored, and even those within the Town were summarily dismissed without careful consideration. Under these circumstances, CEQA requires consideration of off-site alternatives. Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Ca1.3d 553, 575 fn. 7, citing San Bernardino Valley Audubon Society v. County of San Bernardino (1904) 155 Ca1.App.3d 738, 751 and Methow Valley Citizens Council v. Regional Forester (9th Cir. 1967) 833 F.2d 810. Because the FEIR fails to consider alternative locations outside Tiburon, it cannot be certified. 7. The DEIR arid FEIR do not address the Project as currently proposed. Subsequent to preparation of the DEIR and FEIR, the Applicant has modified the Project description substantially, changing previous configurations of the parking lot circulation plan, descriptions and numbers of events, on- and off-street parking proposals, and discussion of the corresponding changes in this Project's environmental impacts and compliance with the Tiburon General Plan and Zoning Ordinance. The result is a . confusing, indeed dizzying array of project features and impacts. the cumulative effect of which is to defy reasoned public assessment of this Project's impacts. "An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." County of In yo v. City of Los Angeles (1977) 71'Cal.App.3d 185, 193. Kol Shofar's last minute revisions to Alternative 7's Table No.1 respecting current and proposed usage of the facility only adds to the public's confusion. Since these changes were never addressed in either the DEIR nor the FEIR, the FEIR cannot be certified. 8. Neither the DEIR nor the FEIR addresses or mitigates the impacts of foreseeable growth in the membership of Congregation Kol Shofar and attendance at its events that will be enabled by ~he proposed facility expansion. The DEIR concedes that Congregation Kol Shofar's membership's "[e]xpansion would result in additional traffic congestion and parking, noise, and visual impacts and potentially increasing land use compatibility inconsistencies." DEIR, p. 140. Yet neither the DEIR Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 7 nor the FEIR, nor the Alternative 7 analysis, discloses the foreseeable growth in membership of Congregation Kol Shofar. Nor do they reveal the foreseeably increased attendance at the events to be held at the proposed facility. Nor do the DEIR and FEIR attempt to forecast, much less to mitigate, the foreseeable increased impacts in traffic congestion and parking, noise, visual aesthetics, and neighborhoo,d character that will result from this foreseeable growth. This omission violates CEQA. CEQA Guidelines section 15144 requires the Town to "use its best effort~ to find out and disclose all that it reasonably can." Courts require agencies to conduct a "thorough investigation" before concluding that an impact cannot be evaluated. Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421,430. Where, as here, continued growth for a congrega~ion .whose size has tripled during the past 20 years is a "reasonably foreseeable consequence~" its impacts must be examined. Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Ca1.3d 376, 396. Because the FEIR fails to do so, it cannot be certified. ll. DETAILED DISCUSSION OF DEIR AND FEIR DEFICIENCIES '. A. The Final EIR Fails to Adequately Address Inconsistencies with the General Plan or to Properly Categorize Those Inconsistencies as Significant Environmental Impacts. The Final EIR's treatment of the Project's consistency with the General Plan violates multiple tents of CEQA. First, it makes the mistaken assertion that "such a consistency analysis...is not required by CEQA." FEIR at 6. No authority is cited for this proposition, and it is flatly contradicted by CEQA Guidelines section 15125(d), which requires that an EIR "discuss any inconsistencies between the proposed' project and applicable general plans...." 1 '. Second, the Final EIRwrongly asserts that a project's inconsistency with a general plan is not an environmental impact. See, FEIR, Responses F69, G21. The Final EIR cites no authority for this assertion, and it is again flatly contradicted by cases decided under CEQA. In Citizens Assn. for Sensible Development of Bishop Area v. County of In yo (1985) 172 Cal.App.3d 151, 175, the coUrt held that "a project would 1 Assessment of a project's impacts on local or regional plans is clearly required as well in the "Environmental Checklist" inAppendix G of the CEQA Guidelines, used for determining whether impacts are significant for EIRs. The Checklist requires assessment of any "[ c ]onflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose. of avoiding or mitigating an environmental effect." Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 8 nonnally be considered to have a significant effect on the environment if it conflicts with the adopted environmental plans and goals of the community where it is located." More recently, in Pocket Protectors v. City of Sacram en to (2004) 124 Cal.App.4th 903, 930, the court held that an inconsistency with the General Plan was ipso facto a significant environmental impact, which had to be considered as such in an EIR. Thus, although the DEIR and to a lesser extent, the FEIR conclude that the Project is inconsistent with the existing General Plan in a number of respects, they err in refusing to treat any of these inconsistencies as a significant impact, in direct violation of well- established CEQ A precedent. . ""A project is inconsistent if it conflicts with a general plan policy that is fundamental, mandatory, and clear.'; Endangered Habitats League, supra 131 Cal.AppAth at 782, citing Families Unafraid, supra 62 Cal.App.4th at 1341-42. If a project is inconsistent with the Planning and Zoning Laws, then it cannot be approved. Neighborhood Action Group, supra 156 Cal.App.3d at 1184-86. The Project will violate requirements of both the General Plan and the Zoning Code and therefore poses significant impacts. First, as discussed above, the DEIR clearly identifies many inconsistencies of the Project with the General Plan, including but not limited to inconsistencies with: · OSC-2 in the old General Plan and LU-5 in the new Plan (Hnew development shall be in harmony with adjacent neighborhoods and open spaces") (Draft EIR at 13{)); · Policies C-C in the old and new General Plans (Hto maintain all existing, as well as to design all future, residential streets with consideration of residents' safety, cost of maintenance, and protection of residential [quality of life]") (Draft EIR at 133); and · Old OSC-l1 and new OSC-35 (H... grading shall be kept to a minimum and every effort ... made. to retain the natural features of the land including. . . trees. . . ") (Draft EIR at 131). Additionally, the DEIR identified inconsistencies with the Town Zoning Code, including, but not limited to, fmdings of inconsistency with: · Section 4.02.00 (d) (Site Plan and Architectural Review) because "[t]he proposed non-residential buildings and parking facilities are out of character with surrounding residences" (DEIRat 136); Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 9 . Section 4.04.00 because the Project is not "properly related to the development of the neighborhood as a whole" or "reasonably compatible with the types of uses normally permitted in the surrounding area" (DEIR at 137); and . Zoning Code g 5.08.04 (Parking) because "the project would not include sufficient spaces to meet [the parkingJ criteria" (DEIR at 138). In addition to these violations identified in the Draft EIR, the Project would also violate the following key parking provisions in the Zoning Code: . Section 5.08.00 (parking and Loading) states that "[n]o structure shall be constructed unless spaces for parking and truck loading and unloading are permanently provided and maintained for the benefit of residents, employees, customers, and visitors, within or outside of buildings or in combination of both," yet the Proj ect will not provide adequate parking; . Section 5.08.01 (Applicability) states that "[a] new use, structural addition, or alteration on such parcel shall be allowed only if it does not increase or create a parking deficiency as determined in this section," yet the multi-purpose room will create a new parking deficiency under the terms of the code; . Section 5.08.02 (Location of Required Parking) states that "required parking shall be provided on the parcel or contiguous lot or parcel where the use is located [and] [f]or non-residential uses, the required parking may be provided on another parcel providing that the parcel is within the Town in a commercial zone and is reasonably convenient to the subject parcel, as approved by the Town," yet the developer here has not provided the required parking and has not suggested a plan of how it would do so; . Section 5.08.03 (A) states that "[tJhe required parking sta1ls, loading berths and parking aisles may not be located on any street right-of-way," yet Kol Shofar's multi-purpose room users will use the streets for parking every Saturday and Sunday and during the High Holidays when there is no other place to park; . Section 5.08.03 (D) states, in part, that "[a]ccess driveways shall not be arranged so as to unduly increase hazards to traffic or pedestrians," yet the entrance and exitpoints to the on-site parking present significant hazards to neighborhood traffic, including bicyclists and pedestrians; . Section 5.08.03 (F) states, in part, that "[l]arge paved areas shall be given visual relief by the interspersion of landscaping within the paved area, as well as around Mayor Paul Smith Honorable Town 'Council Members Town of Tiburon June 12, 2006 Page 10 the perimeter," yet the current plans for the new parking lot do not include landscaping within the paved area; · Section 5.08.04 (d) (Parking Requirements) states that for places of assembly, one spot shall be provided "for each 4 seats of maximum seating capacity; or one for each 10 square feet of assembly area, whichever is more," yet the Project's 139 parking spaces pale in comparison to: (1) the 299-space demand from the sanctuary and multi-purpose room (calculated through the maximum seating capacity ratio) and (2) the 363-space demand fro.m the entire facility. DEIR 'Pp. 65-66. · Section 4.04.11 (Off-Street Parking and Loading Requirements), und~r the Conditional Use Permits Section of the Zoning Code, directs that "[t]he requirements for provision of off-street parking and loading applicable to the particular use shall prevail, unless in the [mdings and conditions recited in the Resolution, specific additional requirements are made with respect thereto," yet the off-street parking requirements seem to have been cavalierly dismissed because the violations will on~y occur occasionally. Because construction of the multi-purpose room will contribute additional, significant' parking deficiencies in and around Kol Shofar, the addition is incompatible with both the words and the spirit of the Zoning Ordinance's parking requirements. The Project is simply too large for this residential neighborhood. It violates parking standards. The General Plan and Zoning Code protect residential neighborhoods from inappropriately large development projects. The EIRmust acknowledge this conflict as a significant impact. Because the FEIR fails to do so, it cannot be certified. . B. The Final EIR Inexplicably Changes the Conclusions of the Draft EIR Regarding Key Inconsistencies with the General Plan and Zoning Code. \ The Draft EIR included a review of the Project in relationship to the General Plan then in effect, and the Final EIR now includes a review of the Project in relationship to the new Tiburon 2020 General Plan. However, despite the fact that some of the language in Tiburon 2020 is identical to the old General Plan (or conceptually the same), the Final EIR concludes in some instances that the Proj ect is consistent while the Draft EIR concluded it was not. There isno explanation presented for this arbitrary about-face. The analysis in the FEIR is, thus, directly undermined by the analysis in the DEIR. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 11 The following are examples of these unexplained contradictions between the Draft EIR and Final EIR. In all instances, the conclusion of Project inconsistency in the Draft EIR was changed without explanation to Project consistency' in the Final EIR: . . Both OSC-2 in the old General Plan and LU-5 in the new Plan contain the same language: "New development shall be in harmony with adjacent neighborhoods and open spaces." Compare Draft EIR at 130 with Final EIR at 9. The DEIR concludes that the "new non-residential buildings and parking areas could be considered to not be 'in harmony' with surrounding single family uses." The FEIR, however, flatly determines the opposite, that the new uses are in harmony and therefore are consistent with the General Plan. Id. . Policies C-C in the old and new General Plans have virtually identical language: "To maintain all existing, as well as to design all future, residential streets with consideration of residents' safety, cost of maintenance, and protection of residential [quality of life]." Compare Draft EIR at 133 with Final EIR at 16. The FEIR determined that the Project was consistent, while the DEIR said that the proj ect would be inconsistent. Id. . Old OSC-11 and new OSC-35 contain identical language: "...grading shall be kept to a minimum and every effort ... made to retain the natural features of the land including...trees...." Compare Draft EIR at 131 with Final EIR at 13. Again, the conclusions of the FEIR and DEIR conflict. ld. The Draft EIR also made fmdings of inconsistency with the Town Zoning Code which conflict with the Final EIR's fmdings of consistency with certain policies in the new General Plan. For example, the Draft EIR found that the Projectwas inconsistent with subsection (d) of Section 4.02.00 (Site Plan and Architectural Review) because "[t]he proposed non-residential buildings and parking facilities are out of character with surrounding residences." DEIR at 136. Yet, the Final EIR concl:udes that the Project is consistent with new LV-H requiring the Town "[t]o protect ~d preserve existing neighborhood character and identity" (FEIR at 8) and consistent with neW LV-13 calling for the preservation of "neighborhood character." FEIR at 10. Yet, again, there is no explanation for these contradictory findings. The Draft EIR also determined that the Project was inconsistent with provisions in Section 4.04.00 relating to CUPs, including separate requirements that the location of the Project be "properly related to the development of the neighborhood as a whole" and "reasonably compatible with the types of uses normally permitted in the surrounding area." DEIR at 137. Yet, the Final EIR found that the Project was consistent with new LU-I requiring that developments be "compatible with surrounding neighborhoods." FEIR at 8. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 12 Most confounding is the conflict in the fmdings regarding the Project's consistency with Town parking requirements. The Draft EIR found the Proj ect inconsistent with the parking requirements in Zoning Code S 5.08.04 because "the project would not include sufficient spaces to meet these criteria." DEIR at 138. On the other hand, the Final EIR fmds that the Project is consistent with new Goal C-I "to provide adequate parking." The unexplained and unsubstantiated reversals contained in the FEIR reveal the fundamental lack of analysis in the environmental report. Changing conclusions about the Project's consistency with the General Plan and Zoning Ordinance does not alter the _DEIR's prior analysis and determination that the project is inconsistent. Witl;1out more, such as a significant alteration in the Project, the contradictions in the two documents render the analysis arbitrary and highlight the CEQA deficiencies in the Project's review. Because the FEIR fails to acknowledge and rectify these substantial inconsistencies, it cannot be certified. c. The FErn. Does Not Adequately Address the Parking Requirements in Tiburon's Zoning Law. . The Draft EIR showed that there is a significant disparity between the parking provided for every one of the facilities in the Project and the parking requirements in Section 5.08.04 of the Town Code. DEIR at 64, Table 5. Section 5.08.04 requires one parking spot "for each 4 seats of maximum seating capacity." Section 5.08.04. The DEIR therefore concluded that the Project was "inconsistent" with this provision, and, indeed, that it could not meet the criteria in that provision allowing for a reduction in the number of required spaces. DEIR at 138. The Draft EIR noted that ''use of the multi- purpose room alone at full capacity could result in parking demand in excess of on-site supply." DEIR at 65. Unfortunately, the Draft EIR impermissibly failed to identify this inconsistency as itself a significant impact under CEQA, as discussed above. Also, the Final EIR appears now to backtrack from 'some oftheconclusion~ regarding this inconsistency in the Draft EIR, despite the fact that there has been no change in the size of the Project. The Final EIR does not rectify any of these problems and is largely dismissive of the significant parking deficiency in the Project expansion. First, the Final EIR claims that the parking deficiency' is not a significant impact under CEQA "because Section 5.08.10 of the Town Code allows for a reduction in the total number of Code required parking spaces." FEIR at 140. The FEIR's puzzling reference to the inapplicable "dual use" parking provision must be ignored because the Draft EIR found that the Code's criteria for reduction under that provision are not satisfied by the Project, and the Final EIR confirms this. DEIRat 138; FEIR at 140. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 13 The Final EIR also now claims that the failure to, meet these Code requirements has been mitigated by a new parking receipt mitigation measure. But, nothing in the Town Code's parking provisions allows such deficiencies in onsite parking to be excused by this kind of mitigation measure. In fact, the Zoning Ordinance specifically directs that the requirements of off-street parking for conditional uses "shall prevail, unless. . . specific additional requirements are made with respect thereto." Section 4.04.11. Thus, the Project must provid~ enough on-site parking for the maximum number of occupants, per Section 5.08.04. Even so, there are serious questions'about the Final EIR's evaluation of the effectiveness of such a parking receipt program, including many, basic quest~ons about the mechanics of the program proposed for the frrst time in the Final EIR. Will Kol Shofar "ticket monitors" - for lack of a better term - block entrance to religious ceremonies if the entrant does not present a valid ticket? How will Kol Shofar prevent reuse of tickets from previous events? Will Kol Shofar limit access to the property for the entirety of the service or scheduled event, or just at the beginning? How will Kol Shofar distinguish between people who honestly arrived on foot and therefore would not need a ticket and those attendees who parked out of sight and then walked to Kol Shofar? But even if the ticket plan worked as represented, it would still be expected that people would in the frrst instance drive to Kol Shofar thinking there will be sufficient parking and those in excess of the spaces there will have to turn around and drive elsewhere to get a receipt, with the result that there is more traffic on these streets, not less. Seemingly, the ticket program promises to produce manyfrustrated drivers who, because they were among the last to arrive, were denied on-site parking and thus entrance to the property. These drivers, consequently, will be hurried and aggravated.as they leave the parking lot in search ofparking"somewhere else. Thus, even with the ticket system, traffic numbers will still increase, and the dangers associated with increased number of cars will increase as well. The Final EIR creates even further questions about exactly where parking for Kol Shofar events will be provided. As noted above, there is no parking plan provided, either for onsite valyt parking or for locating where offsite parking will be allowed. Project changes made for the frrst time in the Final EIR now necessitate the loss of seven spaces on the Via Los Altos parking lot (FEIR at 40-41) and the creation of replacement spaces in the lower lot, requiring its further reconfiguration. There is likely to be a further loss of spaces in this parking lot because of the need for emergency access around the perimeter of the school building. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 14 Parking, therefore, remains an unresolved, unmitigated significant impact that will, if this Project is allowed to proceed, create continual conflicts between the neighbors and members ofKol Shofar. Such conflicts - as identified in the Tiburon planning and zoning laws and normally avoided by adherence thereto - is a significant and unavoidable impact of the Project under CEQA. Because the FEIR fails to acknowledge and address this point, it cannot be certified. D. The Description of the Project Remains Inadequate A complete description of the project is the es~ential starting point for an EIR. Unfortunately, the description of the Project remains incomplete in the Final EIR, and that document creates added uncertainty as to certain features of the Project. Thus, there is still no determination of the feasibility of the flood detention pond proposed to be required or what its impacts will be. See Response F61. The site of offsite parking lots has yet to be determined or their impacts evaluated. See Response F64. No parking plan has been provided. See Response E21. And the project proponent still has not determined where some of the onsite parking spaces will be provided and whether any changes in the configuration of site development may be necessitated by them. See Final EIR at 40-41. The Final EIR also continues to give insufficient attention to the CUP and other authorizations which must be obtained from the Town in order for these facilities and activities to be approved. Although the Draft EIR stated that "[t]he proposed project would require approval of a Conditional Use Permit Site Plan and Architectural Review approval" (p. 14), neither it nor the Final EIR includes any descriptions of the proposed terms of these approvals. Indeed, the CUP approval ~s one of the key actions which requires the EIR analysis. In this respect, the Final EIR departs from CEQA's long-established definition of the project as "the whole of an action which has the potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment." Pub. Res. Code ~ 21065. "Project" refers both to the "underlying activity being approved by an 'agency," and "the governmental permits necessary to develop such an undertaking." 14 Cal. Code Regs. ~ 153 78( c ) (emphasis added). Obviously, a description of the proposed CUP is important. Indeed, in a number of contexts, the Final EIR makes "assumptions" about what will be in the CUP. See, e.g., FEIR, Response F8. In other places, the EIR defends its failure to conduct certain' analyses by claiming that the "Conditional Use Permit, if approved, would establish" certain conditions. FEIR at 21. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 15 Yet, in response to the Coalition's comment on the Draft EIR that all of the terms of the CUP need to be set forth as the "governmental permit necessary to develop" the Project, the Final EIR simply responds that "[t]he actual conditions that the Town would , add if it approves the CUP amendment are currently unknown." Response F3. To add to the confusion, subsequently released Kol Shofar Alternative 7, proposing a new set of CUP conditions. The Project, including the CUP conditions, has morphed significantly, but without a corresponding amendment and recirculation of the EIR. As discussed below in the section addressing recirculation, the FEIR's incomplete attempts to analyze such a rapidly changing project do not satisfy CEQA. This omission violates Tiburon's "Environmental Review Guidelines." They require that mitigation be clearly identified so that the analysis of the impact, and the mitigation measure can be clear. In Section F.8., Tiburon's Guidelines instruct: The discussion of mitigation measures shall distinguish between the measures that are proposed to be included in the project and other measures that are not included but could also reduce adverse impacts. This discussion shall identify levels to which impacts will be reduced by mitigation and the basis upon which such levels were predicted. Where several measures are available to mitigate an impact, each should be discussed and the basis for selecting a particular measure should be identified. Section F.9. siniilarly states: . All mitigation measures which are proposed to be included in the project shall include a detailed description of the steps to be taken to ensure implementation. The discussion shall include an item by item identification of the specific mitigation, the monitoring action, criteria and standards used, process for signing off completion of task and noncompliance issues. These Guidelines thus clearly mandate that the entire package of mitigation measures be identified from the outset. The Town's Guidelines require that the environmental analysis of the proposed mitigation measures be specifically detailed so as to fulfill CEQA's purpose of fostering informed decisionmaking. . Because some of the key mitigation measures for this Project (including CUP conditions) have been changed with each new version of the environmental analysis, the FEIR does not comply with theuTown's "Environmental Review Guidelines" and therefore cannot be certified. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 . Page 16 The FEIR's failure to address the terms of the CUP that will be proposed for adoption, as part of the Project description, violates CEQA. Here, the Final EIR simply asserts that the information is not available, but presents no reason for not obtaining the information. The lack of an adequate project description undermines the CEQA process from the outset and blocks the development of meaningful ,information on the Project's impacts. Because the EIR, here, failed to adequately describe the Project, it fails to provide the infonnation essential to an informed decision, and cannot be certified. E. Key Impact Topics Are Inadequately Evaluated. The lead agency may deem a particular impact to be insignificant only if it produces rigorous analysis and concrete substantial evidence justifying the ~nding. Kings County Farm Bureau v. City of Hanford (1990) 221 CaI. App. 3d 692.' The analysis in the Final EIR falls short of this standard. Traffic and Circulation The Final EIR fails to address the Project's impact on the intersection of Tiburon Boulevard 'and Blackfieid Drive adequately. Among other things, it rejects the request of Commissioner Collins that the "summer conditions" at this intersection be evaluated, given the EIR's recognition that those conditions may be worse than the ones used to determine the magnitude of the Project's impact on this intersection. In addition, while the Draft EIR unequivocally required that Kol Shofar fund the lengthening of the Tiburon Boulevard left turn lane onto Blackfield, the Final EIR adds uncertainty to this mitigation by suggesting that later analysis by Caltrans might allow for a change in signalization in lieu of lengthening the lane. FEIR at 29-30. However, this is an analysis that should be.perfornied now by the Town rather than deferring this option to later study by Caltrans. Among other things, the Final EIR recognizes that a change in the signalization could lead to an adverse change in the LOS ratings of particular intersections. If so, this would be an impact of the Project not studied in the EIR. Clearly, this issue cannot be left to later study by another agency. . The Draft EIRalso identified the addition of traffic to the "inadequate driveway" on the southwest end of the site as a potentially significant safety impact. DEIR at 63. As mitigation for this impact, the Draft EIR stated that "[t]he applicant shall cut roadside vegetation on the project site west of the driveway or provide an engineering/survey analysis of what the sight lines would be if the vegetation were removed." DEIR at 64. However, a subsequent study included in the Final EIR demonstrates that the required sight line could not be achieved by cutting vegetation, and as substitute mitigation the Final EIR proposes restricting the use of this lot to Kol Shofar, school or event staff or . employees. FEIR at 40. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 17 However, there are a variety of unanswered questions raised by this change in mitigation. What is the basis foi concluding that the 12 people will come in only 6 cars? Since there will now be more evening and daily events accommodated by the Proj ect expansion, there may be increased use of this lot at other times which has not been studied in the EIR. The sightlines will remain inadequate, but this lot will continue to be used at times varying from its current use. The Final EIR also now states that closure of this lot for public use means that most school drop off and pickup would occur at the new drop-off area on the east side of the site. FEIR at 41. Despite the claim that this was studied in the Draft EIR, that document did not take account of the increased usage of the exit onto Reedl~d Woods Way resulting from the closure of the new lot to the public. The Draft EIR at page 69 stated that traffic from cars queue for 50' along Reedland Woods Way (between Blackfield Drive and the Applicant's driveway) as they ,exit the parking lot. However, as the Coalition noted in its comments, the Draft EIR did not adequately consider the safety impacts to the residents and children of Reedland Woods Way as they attempt to U$e their neighborhood street when 139 cars are simultaneously exiting the parking lot. The Draft EIR dismissed the extraordinary traffic and parking impacts occurring on the High Holy Days by asserting that "such events are not typically subject to CEQA evaluation" (DEIR at 70) and their impact is insignificant (DEIR at 72). No authority or analysis was cited for these assertions. The Final EIR does acknowledge that the Project includes a change in the- dual services on these days to single services which will clearly increase the traffic impacts in ways that are not considered in the EIR. Indeed, it admits that the traffic analysis "does not assess impacts of the single service events on study intersections." (FEIR at 142). Moreover, the Coalition's comments also noted that the Draft EIR made no attempt to consider any mitigation for the impacts of this' extraordinary attendance, despite acknowledging that the Applicant's car pool and shuttle program is unlikely to work, the "possibility" that the lack of on-site parking is not in conformance with Town parking requirements, and the "inconvenience and nuisance to local residents." (p.71). This was contrary to the report of the Town's traffic consultant who did endeavor to develop mitigation (albeit inadequate). See Crane Report at 17. The Final EIR does not remedy any of these defects, and states that arrangements to "formalize" the use of off-site parking lots and the control of on-street parking "are implicit in the High Holy Days Traffic Control Measures." FEIR at 142, emphasis added. But, "implicit" is not good enough. CEQA requires that mitigation measures be specific Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 18 and enforceable. State Water Resources Control Bd Cases (2006) 136 Cal.AppAth 674, 789, citing Sacramento Old City Assn. v. City Council (1991) 229 CaLApp.3d 1011, 1027 ("Public Resources Code section 21002 requires agencies to adopt feasible mitigation measures to substantially lessen or avoid otherwise significant adverse environmental impacts. .... For each significant effect, the EIR must identify specific mitigation measures; where several potential mitigation measures are available, each should be discussed separately, and the reasons for choosing one over the others should be stated"). Because the FEIR fails to do so, it cannot be certified. Aesthetics The Coalition's comments on the Draft EIR demonstrated the importance of adequate photo simulations in evaluating the Project's aesthetic impacts. As we noted, the only photo simulations are those prepared for the Applicant. They "do not show the proposed parking areas, access driveway, lighting, or landscaping" (DEIR at 99); they represent only a small number of viewpoints, and not necessarily those suffering the greatest impact (e.g., from Reedland Woods Way and Ring Mountain Preserve); and they do not address potential mitigation by planting trees or shrubs. The Final EIR's response to this comment is conc1usory, and fails to remedy the problem. See FEIR, Response F44.2 Because the FEIR fails to remedy this omission, it cannot be certified. Noise The Draft EIR fails to provide information sufficient to determine the magnitude of the Project's noise impacts and the efficacy of its proposed mitigation. The Final ErR leaves these major questions unanswered, as shown below. First, the Draft EIR erroneously relies on "Ldn" noise readings which are completely inappropriate to evaluate the impact oftms Project. As the Coalition's noise consultant Richard Carman pointed out, Ldn is utilized in assessing the impact of steady noises, such as freeway traffic. Ldn measures the average noise oyer a 24-hour period. Where, as here, the noise of late-night events would represent a one-time.spike in noise levels when compared with noise levels during the rest of the 24-hour period, utilizing the Ldn metric trivializes the obviously significant impact of late-night noises that awaken residents. The Planning Commission accordingly found that "the Draft EIR' s use of the 24.:.hour average metric, 'Ldn' to assess the impact ofintennittent noise spikes during the evening was not appropriate." Resolution No. 2006-16, ~ J, pp. 3-4. Because the DEIR's analysis of this Project's noise impacts is thus flawed, it cannot be certified. 2 The Draft EIR also wrongly claimed that the Project would have no impact on "[s]cenic resources" simply because there was no State scenic highway nearby. DEIR at 98; see a/so IS at 13. The Final EIR's response, that all "scenic resources" have been defmed and evaluated, ignores this error. FEIR at 144. Mayor Paul Smith Honorable Town Council'Members Town of Tiburon June 12, 2006 Page 19 Second, the Draft ErR relies heavily on the biased data provided by the Applicant. The Applicant' s data included "background" noise measurements curiously taken on the one day that three garbage trucks collect from the neighborhood. Accordingly, the Applicant's suggested Ldn level is atypical. In seeming recognition of this flaw, the Final EIR suggests that different data would be collected for a further Ldn measure, but fails to explain how.this data was collected and to disclose the resulting measurement. FEIR, p. 269, Response 2. Third, although the Final EIR now includes noise measurements taken at a nighttime event, it concedes that the event in question was not comparable to peak weekend events. FEIR at 29. No apparent adjustments were made to account for the noise impacts that would likely result from the peak weekend events. Fourth, although commenters requested evaluation of whether the Project's projected noise impacts would be magnified by the "bowl effect" created by the terrain in the vicinity of the site, the Final EIR simply provides abstract descriptions of what a "bowl effect" is, without making any effort to use that infonnation to determine the extent to which noise impacts will be greater at this site as a result. See FEIR, Responses E33, PI? Finally, the proposed late night use is a new activity where no activity presently occurs. In this case, noise from both lots must be considered in order to measure the change in the level of noise frpm existing conditions.. Despite comments requesting that the noise impacts of the upper and lower parking lots be combined because they will be used simultaneously, the Final EIR refuses to do so. The response is confusing, appearing to justify its refusal to study this because one of the parking lots currently exists. See, FEIR, Response F48. 1bis reasoning ignores the fact that th~ upp~r lot's noise will be added to the lower lot's noise when the two are simultaneously used, and this will be a direct impact of the Project expansion. The FEIR's failure to consider this cumulative impact violates CEQA. CEQA Guidelines~ 15130(a)(1). A ir Quality The Draft EIR did not include any review of the impact on the surrounding neighbors of diesel exhaust emissions from equipment used in the construction of the Project. This impact was reviewed in the Initial Study and dismissed-as insignificant, but solely based on the treatment of diesel exhaust emissions as an "objectionable odor." IS at 18. The Coalition pointed out that this discussion ignored the fact that diesel exhaust is a toxic air contaminant of serious public health concern, and it has been linked to a range of significant health problems. Many young children reside in the area and would be exposed to this serious health risk. The Final EIR acknowledges that diesel exhaust can increase the risks of cancer, and reports on the EIR consultants' risk assessment Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 20 performed in another context and the current state of federal and state regulations of diesel engines and fuels. FEIR at 135. However, no risk assessment is provided in the Final EIR for this Project, and there is no substantiation for the conclusion that the federal and state' requirements will mitigate these impacts to a less than significant level. The fact that full implementation of federal and state plans will reduce cancer risks by 75 percent in 2010 and 85 percent in 2020 (FEIR at 135) does not tell us anything about what the risks will be in the nearer time frame when the construction of the Project will actually take place. Nor is there any substantiation for the conclusion that "[a]t most, people living near the project site would be exposed to intermittent diesel emissions for a few weeks." Id. F. The Em. Improperly Defers Mitigation. The Draft EIR failed to specify many of its mitigation measures, improperly deferring that task until after the public review process and the agency's approval of the Project. This violates'CEQA. See Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal. App. 4th 1597, 1606, n. 4 (lithe City cannot rely upon post- approval mitigation measures adopted during the subsequent design review process"). The Final EIR contends that,these measures all satisfy CEQA because they have "performance standards" that defme what the later design of the measure must achieve. FEIR at 22-23. This misses the point. The mitigation measures yet to be designed may themselves have impacts or may require other changes in the Project which will have adverse impacts not studied in this EIR. The fact that these measures may have "performance standards" for the degree of impact reduction they are required to meet does not excuse this EIR's faihrre to evaluate the impacts of the measures themselves. For example, the Draft EIR proposed as mitigation "[a]bove ground detention or . . . the construction of an underground stormwater detention vault," and states that "[ f]urther analysis will be done at the design stage to size the detention pond to ensure that the pond attenuates peak flows to the appropriate level," and "'[t]o assess any secondary impacts of the detention pond on slope stability." DElR at 48. This is an impermissible deferral of the assessment of the impacts of the mitigation measure. In this respect, it does not matter that the measure must be designed to meet the "performance standard" of maintaining post-development 100-year peak flows at the pre-development level. FEIR at 148. Without knowing whether the detention facility will be above- ground or below ground or how large it will be, there is no way of judging whether it will have impacts of its own or will cause a reconfiguration of other parts of the Project. The Draft EIR required shuttle service for events of more than 360 people, but deferred analysis of the "secondary impacts at remote lots" to a later "Town-approved Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 21 Parking Plan." DEIR at 31. The Coalition commented that there is no showing that the shuttle service would work or that its secondary impacts would in fact be avoided. The Final EIR asserts in this instance that the "performance standard" is that the Town will not allow any remote lots whose use causes "undue congestion." But this vague term is not otherwise defined, and it is entirely unclear what the impacts of these remote lots will be or whether they will be effective. Because the FEIR fails to provide this essential information, it cannot be certified. G. The EIR Does Not Consider a Reasonable Range of Alternatives. The Draft EIR failed to consider alternative locations for the meetings or events for which the multi-purpose room is proposed, contrary to CEQA's require~ent that a "reasonable range" of alternatives be considered in an EIR See Goleta II, supra, 52 Ca1.3d at 566 (alternatives under CEQA typically involve either "different uses of the land under considerationl1 or "similar uses at different locations"); Laurel Heights Improvement Assoc., v. Regents of the University of California {"Laurel Heights II''), 6 Ca1.4th 1112, 1142 (1994) (required consideration of a reasonable range of feasible alternatives was achieved in Draft EIR "by considering a wide variety of alternatives ranging from several different uses for the Laurel Heights site to different locations for the research laboratories"). Both the Draft and Final EIRs declined to consider alternative locations, stating that there were no feasible sites in Tiburon for construction of 13,395 square feet of building space. However, smce the great majority ofKol Shofar's congregation resides outside of Tiburon, there was no reason to limit the review of alternative locations to Tiburon. Moreover, given that the Final EIR now proposes caps on the attendance and number of events in the expanded facilities, the EIR. should have considered whether Kol Shofar's needs in light of these caps could have been met with either another organization's eXisting facilities or smaller new construction by Kol Shofar in Tiburon or elsewhere. Because the FEIR fails to provide this essential information, it cannot be certified. H. The Final EIR Fails to Evaluate the Impacts of (1) Increased Kol Shofar Membership Enabled by the Project and (2) Use of the Project at Full Capacity. The Final EIR has renegep. entirely on the promise made in the Initial Study on the Project that "[t]he EIR will assess impacts of future growth of the congregation as part of the cumulative effects of the project." Initial Study (IS) at 6. Elsewhere, the Initial Study stated that "[t]he EIR should include a history of the size of the facilities, size of the congregation, number of events and parties, etc. from 1984 to the present and into the future to understand the growth projections and the impacts of growth." Id. at 8 Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 22 (emphasis added). However, the. Draft EIR did not address these issues, omitting the assessment of the impacts of continued growth in the membership of the Applicant. It also refused to conduct an evaluation of the impacts of the use of the facilities at full capacity. The Coalition's comments explained that CEQA requires evaluation of both the "growth inducing" impact of the proposed expansion of the existing facilities as well as the impact of the existing facilities at full capacity. This request was reiterated by two members of this Planning Commission ~ the body that is charged by law with the Town's initial review of the proposal and the adequacy of the EIR - again to no avail. The Final EIR inexplicably rejects these requests for this essential information "per the direction of the Town Planning Division staff." Response E7. This omission is a fatal flaw under CEQ A. The Draft EIR conceded that any membership "[ e]xpansion would result in additional traffic congestion and parking, noise, and visual impacts and potentially increasing land use compatibility inconsistencies." DEIR at 140. Yet these potentially severe impacts were not evaluated in-the Draft EIR on the premise that "[a]ny increase beyond the caps listed in Table 1 would require an amendment to the CUP and additional environmental review," and that "[i]t would be speculative to assume that the congregation would continue to grow or how much it might grow." DEIR at 16. The Draft EIR thus assumes that the Town can regulate future growth in the size of Congregation Kol Shofar. This assumption is questionable at best. Once the Town approves the facility's size, it is unlikely that the Town will be able to effectively regulate its future use. Certainly, the Town has no authority to regulate increases in the congregation's size. Therefore the Town must consider foreseeable increases in the congregation's population - and thus, the facility's level of use - before approving the facility. Because the FEIR fails to do this, it cannot be certified. To rectify this omission in the Draft EIR, Commissioner Collins requested, among other things, that the Final EIR list the number of members of the Congregation for each of the years from 1985 to 2004, ror purposes of evaluating the likelihood that the expanded facilities would lead to a further growth in membership. The Final EIR summarily dismisses the request on the ground that "[t]he EIR preparers do not have any information on Congregation size prior to 1995." FEIR at 8, Response El. Elsewhere, the document states that "this information was not provided by the applicant" (FEIR at 20-21), but it does not state that the EIR consultants even bothered to ask the Applicant for these figures. The Final EIR does not reflect any effort whatsoever to acquire this critical information regarding congregation size. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12,2006 Page 23 Instead of being helpful, the Final EIR is' argumentative. It asserts that "[b Jased on the past seven years, one could project a declining Congregation membership." FEIR at 22. But this assertion ignores the fact that membership has steadily increased over the last twenty years and is now almost triple its original number. As explained in the DEIR, "[a]t the time the 1985 CUP was approved, Kol Shofar served 220 member units. . . and projected a 350 family maximum." DEIR, p. 125. The original CUP, thus, was premised on an ultimate maximum of 350 member units. By 1997, however, the congregation had grown to 137% of its estimated cap to "480 member units (totaling 1,523 people)." [d. In 1998, the membership number grew to 522 (or 1,609). By 1999, membership had grown to 542 member units. Id. In 2001, Kol Shofar had 609 member units, nearly threetimes the, estimated maximum number of potential member units on which Kol Shofar obtained its original CUP.3 The EIR's claim that such gro\;Vih cannot be predicted to continue in the future is premised on a decline of only 11 member units over the past five years. This modest decrease is statistically insignificant when compared to the history of intense growth in congregation size. A continued increase in congregation size cannot be dismissed as "speculative" because the congregation has a demonstrated capability and propensity of far surpassing estimates of ultimate congregation size. The expansion and enhancement of facilities and services makes it extremely. likely - rather than extremely unlikely, as the EIR preparers would have it - that the growth trend will continue. The slight decline in membership between 2001 and 2002 does not reduce that likelihood. Ultimately, the,Final EIR dismisses any evaluation of the potential impact of inducing membership growth by asserting that it is "speculative." Yet, it never responds to the fact that CEQA does not allow an agency to dismiss an impact evaluation as speculative without a showing that the agency has fITst thoroughly investigated the issue. CEQA Guideline section 15144 states that "[ d]rafting an EIR.. ~necessarily involves some . degree of forecasting," and that "an agency must use its best efforts to find outand disclose all that it reasonably can." In turn, while section 15145 a.llows an agency to terminate discussion of an impact if it is ''too speculative for evaluation," the agency cannot reach this conclusion without conducting a "thorough investigation.,,4 3In relation to the actual number of member units in 1985 (220), Kol Shofar grew 276% over the 16-year interval between the initial issuance of the CUP and the 2001 amendment. 4 In Citizens to Preserve the Ojai v. County a/Ventura, 176 Ca1.App.3d 421, 430 (1985), the court stated: "Although the County was not required to engage in sheer speculation as to future environmental consequences. . ., the EIR was required to set forth and explain the basis for any conclusion that analysis of the cumulative impacts. . . was wholly infeasible and speculative." The court struck down an agency's attempt to escape analysis of an impact as speculative. The California courts have determined that an EIR for a proposed project must include analysis of the environmental effects of future action if: "(1) it is a reasonably foreseeable consequence of the initia~ project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 1.2, 2006 Page 24 The Final EIR does not reflect any such "thorough investigation" of this issue. In fact, the Final EIR contains no showing that the Town has used any effort - much less its best efforts - "to find out and disclose all that it reasonably can" about the Project's inducement of growth in membership. The Final EIR asserts that "[t]he number of new events and people accessing the site for such events are what will result in environmental impacts, not the size of the overall Congregation." FEIR at 21. But, of course, it is the membership for whom tp.e events are planned and it is the membership that attends the events. A growth in membership necessarily means that there will be more people who will want to attend the events. There will be increased pressure on the Town to allow Kol Shofar to use its expanded facilities to adequately serve this increased membership. CEQA does not permit approval' of a project without evaluation of its foreseeable growth in usage, regardless whether future growth would require future approvals. Stanislaus National Heritage Project v. County o/Stanislaus (1996) 48 Cal.App.4th 182, 195-206 (impacts of foreseeable future phases of a project must be examined when the project's fust phase is approved, even though future phases would require additional approvals). Contrary to this principle, the FEIR as amended by its new Alternative 7 assumes that a cap of250 per event will suffice to curb use offacilities accommodating up to 1,624 people.s In view of the fact-that Kol Shofar's Congregation already includes 1,860 people - prompting its request for these larger facilities - it is foreseeable that more than 250 members will be seeking 'to use them at these evening events. Because the FEIR fails to address this foreseeable impact, despite CEQA's clear requirement that it do so, the FEIR cannot be certified. The impact of foreseeable growth in use is probably greatest at the weekend. services. The EIR assumes that both the sanchlary and the multi~purpose room will be used during these weekly events. 6 DEIR at 65. Even in the latest iteration of the Project proposed in Alternative 7, the limit on attendees would not apply to existing Saturday and effects." Laurel Heights Improvement Assnv. Regents of University of California (1988) 47 CaL3d 376, 396. In Laurel Heights, the court emphasized that the issue is not to be decided simply on the basis of "whether the public agency or the project proponent had any definite plans" for action after the initial project. 47 CaL3d 376,396 (emphasis added). The court therefore held that other evidence was sufficient to establish the likelihood of expansion, despite evidence from the Regents that only they could approve a plan for future expansion of the facility and had not approved any such plan. 47 CaL3d at 397-398. The question is whether membership growth is a "reasonably foreseeable consequence' of the Project. 5 According to the FEIR atp~es 208-210, the capacity of the existing sanctuary plus the multi-pUrpose room is 1,275 people. The lobby can accommodate 238 additional seats. An available canopy can shelter 225 people for the High Holidays. The sum of these three numbers, 1,275 + 238 + 225, is 1,624 people. 6 Because the remodeled sanctuary is slated to hold 550 persons, the multi-purpose room will be used for overflow seating. Mayor Paul Smith Honorable ToWn Council Members T own of Tiburon June 12,2006 Page 25 Sunday morning services, all of which can exceed 250 people. Increased membership will cause increased weekly traffic and parking impacts. Although a maximum attendance of 400 people is predicted for Saturday services (DEIR at 66), this estimate may turn out to be similar to the 1985 estimate of a maximum 350 member units. Where the congregation surpassed its estimate before, it is likely to do so again. Without a reasonable forecast of the increases to the size of the congregation, the EIR fails to identify the growth inducing and cumulative impacts of the Project, contrary to CEQA. The Final EIR's reliance on "caps" as a means of avoiding environmental an,alysis does more than "hide the ball." It also seeks to predetermine how this Project must be regulated. Because no information has been ~rovided about the impacts that could result from the sizing .of these facilities, the FinalEIR in effect seeks to compel the.T own to use "caps'~ as the mitigation of Project impacts. With the full review required by'CEQA, the Town would have the option of determining whether the Project's ultimate impacts required limiting the size of the expansion for which a CUP would be granted. The EIR must provide those ultimate potential impacts prior to mitigation to allow decisionmakers and the public a comprehensive understanding of the Project's impacts. In sum, there is nothing "speculative" about estimating the capacity of the expanded facilities to accommodate new members and activities. The analysis of the impacts enabled by approval of the. proposed expansion cannot be deferred to a later amendment of the CUP. DEIR at 16. CEQA requires agencies to disclose all potentially significant impacts of a project so that decisionmakers and the public can consider the project and its entirety of impacts prior to taking a position on the worthiness of project. Sierra Club v. State Bd. of Forestry (1994) 7 CalAth 1215, 1229, quoting Laurel Heights L supra, 47 Cal.3d at 392 ("the environmental impact report is "'the heart ofCEQA'" and the "environmental'. alarm bell' whose purpose it is to alert the public and its responsible officialsto environmental changes before they have reached ecological points of no return"). TheFEIR here fails 41 its most basic mission of providing information about the ultimate impacts of the Project by preemptively trurtcating its analysis of any future membership growth based on illusory "caps" on attendance in the new, larger facility. Because the FEIRfails to.provide this essential disclosure, it cannot be certified. I. The FEIR's Responses to Comments Are Inadequate. The FEIR fails to address the profound deficiencies in environmental review that the Coalition has identified, depriving the Town and the public of a complete evaluation of the Project's impacts. Under CEQA, an EIR is not only an informational document, which must contain all pertinent information on environmental impacts of a project, but it is also a "document of accountability." Laurel Heights Improvement Ass'n v. Regents of the University of California, 47 Cal.3d 376, 392 (1988). Thus CEQA requires that all information, and the decision making process of the agency, be fully public to protect Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 26 "not only the environment but also informed self-government." fd. This FEIR lacks this essential accountability. For example, the FEIR's responses to comments dismiss requests for relevant information as "unknown" or "unavailable" when such information could readily have been obtained from the Staff or the Applicant and is essential to understanding the Project's impacts. Response F3 states that the CUP conditions are "currently unknown" and will be determined "when the Town considers the merits of the project and whether a CUP amendment will be approved." FEIR at 131. However, the ErR counts on the, conditions in the CUP to mitigate impacts. Without full disclosure and complete analysis of the specific mitigation measures in the EIR the public cannot consider and comment on the effectiveness of the conditions as mitigation measures. The response that the mitigation measure will be unknown until the Project is already approved impermissibly evades the public's valid request for critical information. Because the EIR does not provide information essential to an informed decision on the Project, and because the FEIR's responses to comments summarily reject requests for this information, the environmental review process has failed CEQA's requirements. Therefore, the FEIR cannot be certified. J. The Additional Inf~rmation Submitted After the Release of the Draft Em Requires that the Em Be Recirculated CEQA requires that "[w]hen significant new information is added to an environmental impact report after notice has been given. . . and consultation has occurred. . . , hl~t prior to certification, the public agency shall give notice again. . . , and consult again. . . before certifying the environmental impact report." Public Resources Code section 21092.1. The last-niinute revisions to critical components of the Project contained in the Appendix submitted by Kol Shofar (and most recently adopted by the Staff as Alternative 7 in the Staff Report prepared for the April 24, 2006 meeting) purportedly transform previously-significant impacts to insignificant impacts by simplistically reducing hours of operation and the number of events. FEIR Appendix at 1-2. The Appendix's conclusory dismissal of significant impacts is, however, arbitrary and not based on substantial analysis. ld. Additionally, the public never had sufficient time to respond to the Appendix's new conclusions because of the timing of the lIth-hour submission. An EIR cannot analyze a constantly moving target, and the public cannot be expected to keep up with last minute modifications by the developer. Quick alterations in CUP conditions do not rectify the fundamental deficiencies in the environmental report and public review process. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 27 Under long-standing CEQA law, the addition of "significant new information" to the EIR analysis requires the agency to recirculate the revised EIR for additional commentary and consultation. CEQA Guidelines S S 15162-15163. Because this CEQA requirement was not met, the FEIR cannot be certified. 1. Traffic Neither the DEIR nor the FEIR evaluates the adverse impacts of Alternative 7, since it appeared subsequent to these documents. Although, as the Planning Comm~ssion Staff Report on Alternative 7 related, "by reducing the number of new events and the maximum number of people that would attend the new events [compared to Alternative 6], Alternative 7 would reduce noise, parking and traffic impacts," these impacts would not be reduced to a less than significant level. April 24 Staff Report at page' 4. As documented further in the comments from the Coalition's traffic engineer, AmI K. Edwin, the impact on traffic of allowing twelve Saturday night events to last until 11 p.m. rather than 9 p.m. may be significant for several reasons. First, introducing a massive pulse of traffic at 11 p.m. on a Saturday night will have a substantially greater impact on existing traffic conditions at that hour, than would a similar pulse of traffic occurring two hours earlier, at 9 p.m. Neither the Alternative 7 Analysis nor the draft and final EIRs, provides baseline information respecting the traffic levels present at 11 p.m. versus 9 p.m. on Saturday evenings. The l~elihood of accidents resulting from this late-night surge of traffic is also greater than it would be for 9 p.m., because motorists are generally less alert in the late evening after the time when most would usually retire for the night. The Alternative 7, Analysis speculates about Caltrans' future assessment oftlis Project's impacts on the Tiburon BoulevardIBlacldield Drive intersection. Rather than conduct the required assessment of the Project's impact on the TiburonBoulevard/ Blackfield Drive intersection now, this report. hypothesizes that "the impact might be less than significant with no mitigation required" "[b]ased on theCaltrans review." Id., emphasis added. But Caltrans' review has not yet taken place. Without Cal,trans' assessment, or the Town's independent further review, it is impossible to predict the significance of the impacts, much less the efficacy of potential mitigation measures. The Alternative 7 Analysis is internally inconsistent. Its discussion of "On-Site Circulation Change" concedes that Alternative 7 "would not reduce the traffic safety impact resulting from turnarounds on residential streets to a less than significant level." ld. at p. 6, emphasis added. But the Analysis then proceeds to the opposite conclusion, that three proposed mitigation measures "would be sufficient to reduce the traffic safety impact of people turning around in,residential neighborhoods to a less than significant level." ld. at p. 7, emphasis added. Yet as the Planning Commission found in Resolution No. 2006-16, "the alternative mitigations put forth in Alternative 7 to address the Project's deficient on-site parking are insufficient to off-set the basic problem of Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 28 inadequate on-site parking, and simply spread or relocate impacts into surrounding neighborhood streets." Id. at~ J, p. 4, emphasis added. The Alternative 7 Analysis sidesteps assessment of potentially significant traffic, and parking impacts by speculating further that the elimination of parking lot ingress via Reedland Woods Way "would reduce traffic congestion on Reedland Woods Way and at the Reedland Woods Way/Blackfield Drive intersection." Id at 6. The record does not support this claim. Alternative 7 would add twelve late-night traffic events on Saturdays, and fifteen evening events on Sundays. The addition of the very substantial traffic . associated with these large events would increase, rather than "reduce," congestion on Reedland Woods Way. Compared to existing conditions, drivers unfamiliar with the proposed parking lot circulation pattern at the Kol Shofar parking lot might turn onto Reedland Woods Way from Blackfield Drive seeking to enter the parkllig lot 'from Reedland Woods Way. Those drivers would then need to make a'U-turn or T-turn on Reedland Woods Way to return to Blackfield Drive. Turn-arounds on this quiet residential cul-de-sac would potentially have a significant impact on vehicular and pedestrian safety on that street, particularly in light of the substantial number of young children who reside there. The addition of these twenty-seven significant evening events would also create congestion on Via Los Altos, the street that Kol Shofar proposes as the sole access point for on-site parking. The additional traffic congestion on this street would tend to create similar turn- around scenario$ on other local streets, as drivers who are turned away from a full parking lot at KoI Shofar, or seek to avoid the line of cars turning left from Blackfield Drive onto Via Los Altos, seek out other streets in the neighborhood for parking. Where parking is unavailable within a reasonable distance, these drivers can be expected to make U-turns and T -turns on these other streets, creating unsafe conditions for vehicles and pedestrians aIike. ,'"~.~. The three mitigations proposed in the Alternative 7 Analysis for the additional traffic/parking conflicts on surrounding streets are likewise specu1~tive. The first of these mitigations, that "Kol Shofar shall place signs along its frontage on Via Los Altos, Blackfield Drive and Reedland Woods Way stating that people attending events at Kol Shofar need to park on-site and not on residential streets," may cause tum-arounds by the attendees who had intended to park along these streets until they observed these signs. Visitors arriving at night or in the rain may not see these unexpected signs at all. Others may choose to disregard the signs, since there is no proposed enforcement mechanism 'to dissuade them from doing so. The Plann.ing Commis~ion properly found that this supposed mitigation was illusory. Resolution No. 2006-16 at 1 J, p. 4. Mayor Paul Smith Honorable Town Council Members T own of Tiburon . June 12, 2006 Page 29 The second proposed mitigation likewise poses more questions than it answers. This mitigation proposes that "Kol Shofar shall require that all invitations and notifications of these new weekend events include a note informing people to park on the site and not to park on residential streets." Alternative 7 Analysis at 7. But this mitigation rests on assumptions that remain unproven: (1) that all drivers will remember and comply with this request; (2) that there will be adequate room to accommodate them within the on-site parking lots; and (3) that they will not attempt to park elsewhere if traffic backs up at the Via Los Altos ingress point. Because the demand for parking depends on the vehicle occupancy rate, which necessarily varies from event to event, the proposed on-site parking may prove insufficient. Third, the Alternative 7 Analysis proposed a monitoring program coyering "up to four events the first year after proj ect completion" to assess the efficacy of the foregoing mitigation measures. But studying the effectiveness of these measures after the fact is akin to locking the barn door after the horse has been stolen. To be effective, mitigation measures must be certain and enforceable before the impacts occur, to prevent them. Sundstrom v. County of Mendocino (1988) 202 Ca1.App.3d296, 306-308. "[T]he CEQA process demands that mitigation measures timely be set forth, that environmental information be complete and relevant, and that environmental decisions be made in an accountable arena" 01"'0 Fino Gold Mining Corporation v. County of EI Dorado (1990) 225 Cal.App.3d 872, 884-885. Deferringevaluation of speculative mitigation measures to vague future monitoring efforts plainly violates CEQA' s requirement for certainty and enforceability before project ;;tpproval. Accordingly, the Planning Commission properly found that this supposed mitigation measure "would not itself prevent significant unsafe turn-around impacts." Resolution No. 2006-16, ~ J, p. 5. In summary, it is clear that Alternative 7 is a substantial change in the Project that poses potential significant impacts on traffic. Yet no additional professional analysis of the impact of these changes on traffic has been conducted. Instead, staff proposes speculative mitigation measures of dubious enforceability whose efficacy may never be known. The public is entitled, and CEQA demands, a proper analysis of and mitigation for these impacts. Because this has not been done, the FEIR cannot be certified. 2. Noise Alternative 7 would increase nighttime noise in a quiet residential neighborhood. The precise extent and impacts of this increased noise have not been adequately assessed. As Richard Carman, the Coalition's noise expert, pointed out in his separate comment letter, the analyses conducted in the DEIR utilized erroneous methodology. They relied on an inappropriate matrix, "Ldn," which is designed to assess the impact of steady traffic noise, rather than intermittent disturbances such as the nighttime events that would be allowed under Alternative 7. By averaging the loud noises associated with'crowds Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 30 departing Kol Shofar at 11 p.m. over the noise level during the remaining 23 (quiet) hours of the day, the .DEIR and Kol Shofar trivialized the actual impact of these events. The Planning Commission agreed, fmding that "the Draft EIR's use of a 24-hour metric "Ldn," to assess the impact of intermittent noise spikes during the evening was not appropriate." Resolution No. 2006-16, , J, p. 4. Sweeping the problem under the rug does not suffice under CEQA. The Alternative 7 Analysis and the Staff Report conclude that the revised Alternative 7 Project would have a less than significant noise impact on its neighbors due to decreased frequency of activities and number of participants. The Alternative 7 Analysis compares Alternative 5 in the Draft and Final EIR to the new alternative, stating, Alternative 5 required that all new weekend events end by 9:00 p.m., while Alternative 7 would allow the 12 new Saturday events to last until 11 :00 p.m. The reductions in the number of events and the number of people coming to and going from these events would offset the fact that 12 events would last 2 hours longer than allowed in the original alternative. Alternative 7 Analysis at 2. The so-called "offset" referenced above, however, makes no sense. The difference between a pm;ty that ends at 9 p.m. and a party that ends at 11 p.m. is enormous when one is referring to a quiet, family--oriented, residential neighborhood _ not to mention the difference that 12 such parties per year make in significant noise impacts to surrounding neighbors. )he analysis' conclusion that "this most recent modification [is] so small that it is difficult to conclude whether [the two projects' noise impacts] are precisely 'equivalent" arbitrarily ignores the significant nuisance of noisy celebrations continuing into the night when people are trying to sleep. Because the FEIR has failed to conduct an adequate noise assessment of the impacts of Alternative 7, it cannot be certified. 3. Parking Lot Access The significant changes to the proposed parking lot access and circulation plans contained in Alternative 7 represent a major modification to the Project that will cause new substantial impacts and requires recirculation. The traffic and safety impacts on Via Los Altos are summarily dismissed as inconsequential. Alternative 7 Analysis at 6. In addition, the Analysis itself identifies substantial increases to already significant impacts and potential new substantial impacts by stating: While reducing congestion on Reedland Woods Way, this change would not reduce the traffic safety impact resulting from turnarounds on residential streets to Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12, 2006 Page 31 a less than significant level. In fact, because drivers will be unable to access the parking lot from Reedland Woods Way, drivers who are unfamiliar with the parking lot circulation' pattern may turn onto Reedland Woods Way, discover they cannot enter the parking lot from this street, and then make a u-turn to return to Blackfield Drive. Alternative 7 Analysis at 6. In addition, the Analysis identifies another new substantial impact to safety resulting from the new circulation plan: Other drivers whose intent was to drop someone off at the site may decide to turn onto Reedland Woods Way and drop their passengers off at the sidewalk rather than have to negotiate driving through the parking lot; these drivers ~ould also make a u-turn on Reedland Woods Way. ld. The analysis provides that "[0 ]ther mitigations" would address these new "traffic safety impact of people turning around on residential streets," but the mitigation measures referred to are inapplicable to the problems identified by the Analysis. Alternative 7 Analysis at 6-7. 4. Tiburon Boulevard/Blackfield Drive The new information only adds more confusion to the analysis of the impacts of the Project on the intersection of Tiburon Boulevard and BlackfieldDrive. In violation of CEQA, the EIR does not state whether or not traffic impacts will be significant; rather the Report simply defers the question to Caltrans for further study. The Alternative 7 Analysis goes so far as to suggest that the Town and Caltrans could, after the Project is already built, jointly "monitor the impact of new project weekend peak traffic at this intersection in order to determine the actual traffic impact." Report at 4. If all impacts could be resolved so easily, then there would be no need to conduct any CEQA analysis prior to approval of the Project~ CEQA, however, requires that all impacts of the Project be clearly identified in the CEQA analysis prior to certification ahd approval. Therefore, the EIR's failure to provide vital information and conclusions regarding the traffic impacts of the Project violates CEQA. In addition, the Staff Report suggests a mitigation measure that could itself produce new, significant impacts. The Report refers to the proposed Mitigation Measure 3.3-AA, "which is to adjust the signal length and/or signal phasing to allow sufficient time for left turns to clear the intersection during the one-hour weekend peak period from 6:30 pm to 7:40 pm." Report at 4. 1bis proposal does not address the impacts such an alteration would have on through traffic traveling on Tiburon Boulevard' during these peak: weekend hours. The proposed mitigation measure thus raises a new, potentially significant impact on traffic conditions in Tiburon, requiring recirculation of the analysis. Mayor Paul Smith Honorable Town Council Members Town of Tiburon June 12,2006 Page 32 5. Parking Signs The new mitigation measure, potentially restricting parking on nearby streets through the use of signs, raises many new substantial impacts to surrounding areas of the neighborhood that will not be marked "resident parking only." Report at 5. Such new impacts from these new mitigation measures require analysis and recirculation of the environmental review. 6. Additional Capacity in the Parking Lot The Staff Report suggests that ."additional parking spaces could be provided based upon a more careful study of parking layout" Report at 6. Further, Staff suggests that "Mitigation Measure 3.3-B4 could be reworded to require that on-site parking be increased as much as possible. . ..'.' ld. These new mitigation suggestions are vague, defer critical analysis until some point in the future, and raise new unstudied, potential impacts related to aesthetics, circulation, on-site safety, lighting, and noise. Again, the late disclosure of significant new features of, or substantial new information about, the Project requires recirculation and highlights the still vague and ever-changing description of the Project. 7. Saturday, Sunday and High Holiday Services' Impacts The Alternative 7 Analysis states that the new alternative "would be sufficient to reduce the traffic safety impact of people turning around in residential neighborhoods to a less than significant impact." Alternative 7 Analysis at 7. This conclusion ignores, as has the entire environmental review process, the safety, traffic, and parking impacts- both cumulative and growth inducing - on the surrounding neighborhood of the increased participation in Saturday and Sunday services. These impacts are likely to occur based on the vastly 'expandedcapacity of the Project. An estimate, given by the Applicant, that maximum attendance will probably only reach 400 attendees' at these services does not satisfy CEQA' s call for thorough forecasting and study of all, foreseeable impacts. Even assuming that the congregation size does not grow in the future - a rather unlikely outcome given past rapid growth - attendance at regular services from the current congregation of 598 families is likely to increase because of the expanded seating capacity afforded by the multi-purpose room addition. Similarly, Alternative 7 does not address, or remedy, the lack of analysis of the impacts of conducting single services on High Holidays. The additional materi~s also do not suggest mitigation measures that would minimize the extreme impacts of single services. Thus, the DEIR, the FEIR, and now this Alternative 7 Analysis, all fail to adequately identify the impacts of High Holiday single services or attempt to address how the impacts of these truly massive events will be controlled. Although the major Mayor Paul Smith - Honorable Town Council Members Town of Tiburon June 12, 20Q6 Page 33 events will only happen three times a year, CEQA still demands that the impacts of those events be fully disclosed, discussed, and analyzed to ensure informed decisionmaking. CEQA contains no religious exemption for discussion of impacts. Without analysis of these impacts, the ErR fails in its most critical role of providing information to the public and the decisionmakers. Although the Saturday, Sunday, and High Holiday events are religious in nature, the impacts of those events must still be identified, and if significant, reduced to insignificance through mitigation measures through the CEQA process. The EIR here, including the Alternative 7 Analysis, fails to provide adequate information on these central impacts of the Project. 8. Lack of Alternatives Again, Alternative 7 simply pares down uses of the new Project facility, but does not present a true alternative to the Project. None of the so-called alternatives presents a feasible alternative to construction of the multi-purpose room. As with many similar faulty analyses, the root of the alternative defiCit lies with the overly narrow Project goals and purposes. By artificially constraining the purposes of the Project, the Applicant predetermined the outcome of the alternative' selection. Thus, the FEIR, including the new Alternative 7 Analysis, does not satisfy CEQA's call for a searching investigation into alternatives that would have fewer impacts on the surrounding residential neighborhood. 9. Malleable Conditional Use Permit Limits Are illusory Mitigation Measures The FEIR, including the Alternative 7.Analysis, impermissibly relies on illusory CUP constraints to minimize impacts of the Project expansion. For example, the analysis contends that there will be no parking deficits if the ToWn limits event maximums by the proper amount. The analysis discounts the malleability of the CUP conditions and thereby truncates all discussion of the actual impacts of the Project at full build-out and capacity. Nothing in this mitigation packet constrains use of the Proje,ct facilities in the future if and when the Applicant seeks a change in the CUP conditions at a later date. The promise of future environmental studies for these foreseeable increases represents a clear case of improper segmentation of the Project's overall impacts. CEQA requires that all impacts of the entire Project be identified and analyzed prior to construction of the physical building, not in piecemeal future reviews as CUP conditions are relaxed. Mayor Paul Smith Honorable Town Council Members Towp of Tiburon June 12, 2006 Page 34 ll. CONCLUSION The proposed Project is simply too large for its intended site. The FEIR's many errors and omissions as documented above hinder, rather than advance, public dialogue about how to solve this mismatch. An EIR that squarely and thoroughly addresses these errors and omissions may provide the answers needed to permit resolution of the traffic, parking, noise, light, aesthetic and neighborhood compatibility impacts identified above. Without a proper FEIR, this task is much more difficult, if not impossible. Accordingly, this Council should decertify the FEIR and remand this matter to the Planning Commission with directions to prepare a proper environmental analysis consistent with CEQA's requirements. SCV:taf cc: Tiburon Planning Commission EXHIBIT (! - ~_. .::; . App-G~ -it] TOWN OF TffiURON ~ ~c_i~ ~2~ ~S~ ~ PLANNING DIVISION TOWN OF TIBURON - . NOTICE OF APPEAL APPELLANT Name: ~e=N~CH d~ au.oS(, 1,/ ~.;;s'1Jf1:;fP~CbJ . / Address: ~/m 6~f). ~Q).j--Rt Telephone: (Wo~k) $83 ~ 13g~ ?ees.. (Home) - . . ACTION BEING APPEALED Body: .;; i3Jf3DIJ fl AN'IJ, AJ [. c::;,.r11 M l$s/.o,tV - Date of Action:. //14 Y 3/) 200 b Name of Applicant: 'kG L ..S".4€> I=A R Nature of Application: Ilpf>('{ C4 f7'c" AJ tCO~ a.uo'T/?:>IJ-A L- USE- ~ /lIT ..E/V'Y/f2-CN/11~7A-L" / r)1.[:>A~7 /~0r- GROUNDS FOR APPEAL.. ref (Attach additional pages, if necessary) /1PPflL- CJF UEClS/'0/J eF Ua-'JMtAJ;C,GJA{JI)l:JJYtf:,-4)- ,ea2t7~Y/ ~ 1'0 /icLB.>? 7f-/C G)vll/tk!c>>J/n~7'A..L/~ f vHP4 <2T PcPo,2l" Last Day to Fileif.~ ~:J.. Fee Paid: 300 , Cl i;-t;..,...(f t 0 ;r loo~ DateReceived:~' 1J., .LOce, ~. Date of Hearing: -(<;1 ~ /.0~JO~^~' January 2004 EXHIBIT No.k GROUNDS FOR APPEAL The Application of Kol Shofar and its supporting EIR acknowledge that a parking deficit would be created at Kol Shofar by and upon implementation of the Conditional Use Pennit that was denied by the Planning Commission on May 31,2006 and that is now under appeal to the Council. The EIR that was accepted by the Planning Commission on May 31, is silent on how that parking deficit is to be discharged other than a casual reference to use of off site parking. There is no definition of where and for what duration such parkiIl;g is to be provided. The Tiburon Code, sections 16-5.8 through section 16- 5.8.3 outline specific, deliberate requirements on how a deficit of parking is to be provided. Those code sections, in essence, require that alternative parking must be provided on a permanent basis so long as the Conditional Use is active. The failure to comply with these requirements renders the EIR incomplete and defective, and consequently, the application ofKol Shofar for a Conditional Use Permit is unsupported by the required documentary foundation, and is itself incomplete and defective. The EIR leaves undefined certain items that must be defined before the Con~tional Use Permit is issued. It leaves to speculation the identification of where parking is to be located. A belated revelation of that requirement reverses the process. It constitutes a . denial of the rights of the due process requirement of local government. Those who dwell or engage in business in the geographic proximity of the intended use (parking) have a'right to be placed on notice of this pending use and thereby be afforded opportUnity to ~xpress ~~mselves in the protection of ~eir interests. They are entitled to identify potentIal conflIcttng uses, hazards, burdens on Infrastructure, land values, and on the potential for generating disharmony in the neighborhood, etc. Otherwise they are shut out of the process. Furthermore, specification of the area whereupon such parking is to be placed could illustrate the need for an additional EIR to determine the effect of such parking on that locale, the environs associated therewith, and ~e routes of ingress and egress thereto and there from. . Appellant respectfully requests that the decision of the Planrung Commission to accept the EIR be' reversed, and that consideration of the Kol Shofar appeal be suspended pending resolution of this appeal. Greenwood Beach Home Owners As ~ ~J~~2~:~ ~ PLANNING DIVISION TOWN OF TIBURON :4t EXHIBIT fJ- EXHIBIT D Response to Appeals of Planning Commission Decisions, Congregation Kol Shofar Expansion Proiect.. 215 Blackfield Drive The following is a point-by-point response to the appeals filed. APPEAL #1: CONGREGATION KOL SHOFAR Issue #1 (p.4) The conclusions of the Planning Commission denying Congregation Kol Shofar's CUP application, as articulated in Resolution 2006-16, are not supported by the findings and the fmdings are not supported by substantial evidence in the record, making such deci~ion arbitrary and capricious, and an unlawful abuse of discretion. . , Staff Response: The appellant states the fmdings in Resolution 2006-16 specifically relating to Noise, Traffic and Traffic Safety, Light and Glare, and Neighborhood Compatibility, that project-related impacts would be inconsistentwith'General Plan Goals and Policies and certain provisions of the Town's Zoning Ordinance, are contrary to the Findings and Evidence which are discussed in detail within Appendix A [to the CKS appeal] and addressed below. The appellant furthers this statement by noting that Staff recommended conditional approval of the FEIR Alternative 7 proj ect, which reduced all significant environmental impacts to a less than significant level, and the Planning Commission nevertheless denied the CUP, which was an abuse of its discretion. The staff recommendation that FJ;:IR Alternative 7 could be approved as a modified project was simply that, a recommendation. The Planning Commission has the discretion to come to its own judgment after considering the full range of information including the staff report/recommendation as well as oral testimony at the public hearing and written correspondence, some of which was not available to staff when formulating this recommendation. Recognizing the controversy surrounding the scale of the project and its potential impacts to the neighborhood, both environmental as well as social (i.e., impacts upon the general welfare of neighbors and the neighborhood), staff qualified its recommendation both during oral comments at the public hearing as well as in its staff report, that this recommendation represented a "starting point" for consideration by the decision makers. Staff recognized that even the proposed reduction in new weekend nighttime activities represented by FEIR Alternative 7, might be considered too intense by the neighborhood and the Planning Commission. Therefore, Staff provided the Planning Commission with a comprehensive list of General Plan Goals and Policies and Zoning Ordinance standards to consider beyond the more narrow focus of the CEQA process and its identification of significant or less than significant environmental impacts. The appellant's statement that the Planning Commission abused its discretion mischaracterizes their approach. During the Planning Commission's, deliberations, several members stated that FEIR Alternative 7 was a step in the right direction in Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 1 if. .~-~F 0' EXHIBIT reducing noise and traffic safety impacts but that'it did not go far enough. In other words, further adjustments to FEIRAltemative 7 would likely resolve the remaining environmental and policy inconsistency issues identified in the Resolution 2006-16 as the basis for denying the CUP. The Planning Commission offered to work with neighbors and CKS representatives to try to craft a compromise that would achieve an appropriate balance of new activities, frequency and lateness of new events and provision of sufficient on-site parking consistent with the General Plan goals and policies to protect the neighborhood character, but were asked by CKS representative not to make that effort but rather to take an "up or down" vote on the project. Under those circumstances, the Planning Commission chose to deny the project. (See Resolution No. 2006-16, Section 1.F.) It is inaccurate to state that the Commission ignored - without justification or support - Town staff's recommendation. Rather, the Commission considered the recommendation and based upon its independent analysis of the entire record, including voluminous information received after the staff recommendation was crafted, and . reached a different conclusion which is entirely within its broad discretion to interpret General Plan policy., Issue #2: (p. 6) The Planning Commission's action evidences disparate treatment of CKS's, application and infringes on. the Congregation's right to the free exercise of religion. Staff Response: The appellant states that the Town recently approved St. Hilary's expansion, which "included the addition of a new 8,300 square foot gym, a new 9,000 'square foot classroom, a new 2,325 square foot convent with 575 square foot garage, and a new 4,700 square foot parish center" and that this represents disparate treatment from CKS. The appeal misrepresents the St. Hilary project's scope,in that with the exception of the gym, the other uses and facilities already took place on the site in existing buildings, some of which were tom down and replaced by the new structures. The St. Hilary permit allowed for no increase in capacity for students at the day school, and . capped enrollment at 25 students below existing capacity. No additional sisters were proposed to inhabit the convent. The St. Hilary application's projected noise and new traffic generation figures were substantially below that of the CKS application. New nighttime activities and events drawing significant numbers of people were not part of the application. The Town Council approved St. Hilary's Use Permit and Design Review application in December 2000 after the Planning Commission denied these applications in September 2000 because the scale and impact of the project upon the neighborhood was not considered consistent with the General Plan and Zoning Ordinance (see Resolution No. 2000-13). The Planning Commission's Resolution of Denial highlighted increased noise, light and traffic impacts upon surrounding homes and streets during the weekday evening and weekend times when newly proposed Church activities (i.e., CYO Basketball) wquld occur. This is very similar. to the range of issues identified by the Planning Commission in its denial ofthe-CKS CUP.' Contrary to the appellant's claim that the projects are similar and the Town's treatment of them is disparate and unfair, the differences in the two proposals are noteworthy and Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 2 instructive about why the Planning Commission denied the CKS CUP. A primary example is that St. Hilary's proposal did not propose new weekend nighttime events contrary to what CKS has proposed. The St. Hilary's CY 0 Basketball schedule, as approved by the Town Council, ended by 3:00 pm on Saturdays (with no activities on Sundays) and by 7 :30 pm or earlier on weeknights. CKS has proposed new weekend nighttime activities that would extend until!! :00 pm and 9:00 pm on Saturday and Sunday nights, respectively. The noise, light and traffic safety impacts of these weekend nighttime activities were a primary reason for the Planning Commission's denial of the CKS CUP. Furthermore, in its approval of the CUP, the Town Council found that the on-site parking proposed for St. Hilary's expansion project could accommodate the increased CYO activities based upon the requirements of the Zoning Ordinance. A Condition of Approval of the St. Hilary's CUP stipulates that no concurrent activities may occur that would cause the on-site parking to be exceeded. In contrast to this, the CKS proposal to hold combined High Holy Days services and occasional other major events during the year would exceed the supply of on-site parking. Thus, the amended CUP that was ultimately approved for St. Hilary's included only use restrictions for the newly proposed use: CYO Basketball practices and games. This is the same approach that the Town has applied to the CUP for CKS. The draft CUP for CKS prepared by Staff did not seek to limit the size of the newly proposed multipurpose room nor classroom facilities but rather to place appropriate limitations on the newly proposed weekend nighttime events. Again, this approach is .entirely consistent with the approach the Town used with St. Hilary's CUP and the applicant has not been treated unfairly or differently.than St. Hilary's. The appellant is correct thatSt. Hilary's project was processed with a Negative D,eclaration and the CKS project was required to prepare an EIR. However, the two projects were clearly distinguishable in their likelihood of resulting in significant impacts on the environment, as documented in the Initial Studies that were prepared for each project. In fact, the DEIR for the CKS project identified two "significant and unavoidable" impacts on the environment that would result from the project as proposed. The Initial Study/Negative Declaration prepared for the St. Hilary project identified no . impacts that could not be reduced to less than significant levels through revisions to the project and mitigation measures. Appellant's infringement argument is somewhat more amorphous. The argument appears to be that, because the EIR concludes that the project's significant environmental impacts can be mitigated and because a religious institution requires adequate space for worship, the Planning Commission's denial of the application impermissibly infringes on First Amendment rights. Neither of these points is persuasive. The Planning Commission disagreed with the EIR's conclusions regarding impacts, fmding that the project's noise, traffic and traffic Response to Appeals of Planning Commission Decisions on Kol Shofar, '9/6/2006 3 safety, and light and glare impacts would be unmitigated significant impacts. The Planning Commission is not required to agree with the EIR, provided that its conclusions are based on evidence in the record. Moreover, the appellant has operated its temple and related facilities for a number of years. The appellant has offered no evidence that denying its request for a much larger facility would impose a substantial burden on its religious practice. In fact, many similar religious institutions are based in synagogues that do not comfortably accommodate the few days a year of maximum attendance and those institutions either offer multiple services during those days and/or provide services in alternative locations. Accordingly, while the Appellant might prefer a larger facility, the Planning Commission's decision does not prevent or impede the continued use of the site for Appellant's religious practices. Issue #3: (p. 8) Certification of the Final EIR Staff Response: The appellant asserts that there is substantial evidence in the record to support the conclusion that the Project will not have a significant adverse impact on the Tiburon/Boulevard/Blackfield Drive intersection, contrary to the conclusion. reached in the EIR. This argument addresses the wrong question. The record contains conflicting evidence as to the significance of the impact. The Planning Commission clearly found the evidence indicating that the project would have a significant adverse impact more persuasive than the contrary evidence. There is substantial evidence in the record to support the Planning Commission's conclusions, as set forth in Resolution 2006-16; accordingly the fact the that the evidence might have supported a different conclusion is immaterial. That said, the Town Council may reach a conclusion different than the Planning Commission, based on evidence already in the record or presented at or before the hearing on appeal. The appellant also asserts that there is substantial evidence to conclude that the proj ect, as proposed in Alternative 7, will provide adequate parking and therefore there is no need . for Mitigation Measure 3.3-B.4 which requires provision of additional parking. The Final EIR imposed Mitigation Measure 3.3-B-4 to ensure sufficient on-site parking given that existing parking spaces on the upper driveway off Via Los Altos will be restricted to use by Kol Shofar, school or event staff/employees due to safety limitations, resulting in a loss of 7 spaces (FEIR, page 40). The parking assessment is based upon a maximum attendance of275 people. Alternative 7 would limit maximum 8;ttendance to 250 people for which the loss of 7 spaces would not require a mitigation measure requiring additional spaces be created. This conclusion is based upon the EIR analysis of potential significant impacts. However, it is the Town's decision~makers who are the ultimate arbiter regarding consistency with the parking standards in the Zoning Ordinance. The Planning Commission concluded that regardless of whether a significant and unavoidable impact would res1.ilt under CEQA, the project did not meet the Zoning Ordinance standards for on-site parking based on the magnitude of additions proposed. The Planning Commission also concluded in Resolution No. 2006-16 that other Mitigation Measures to reduce insufficient on-site parking were infeasible to implement and would simply spread the problem onto surrounding streets, leading to related traffic safety impacts. The Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 4 Commission found persuasive arguments put forth in letters, including but not limited to the letter dated March 20,2006 from John and Karen Nygren; and in the Staff Report for the May 10, 2006 meeting, that the "ticket plan" mitigation was highly problematic and probably not workable. The Commission concluded that the logical approach is to provide increased parking on-site even beyond what Mitigation Measure 3.3-B.4 requires to address the CEQA impact. Issue: Exhibit A (p. 1): 1) Noise Staff Response: The Appellant is correct that the Final EIR found the project inconsistent with the three General Plan Noise goals, since the Final EIR concluded that the revised project would continue to have significant noise impacts due to the number and hours of the proposed nighttime'events. The proposed project assessed in the Final EIR would generate unacceptable noise levels when people were arriving at and leaving the proposed new weekend nighttime events. The appellant is correct that there would be a less than significant noise impact if the significance criterion was solely based on project consistency with the Noise and Land Use Compatibility Guidelines. ~owefver, the EIR preparers believe that the appellant is incorrect in stating that only the General Plan Noise and Land Use Compatibility Guidelines determines whether a noise impact is significant or not. The Town agreed that periodic noise impacts could be considered potentially significant, mirroring the CEQA Guidelines Appendix G Environmental Checklist Item XI (d), which asks whether a project would cause temporary or periodic increases in . ambient noise levels. Note that the Environmental Checklist includes six (6) items of potentially significant noise impact, only one of which references whether the project would exceed standards included in the agency's general plan. Issue: Exhibit A (p. 2): 2) Traffic and Safety Staff Response: The appellant states that the EIR found that the Alternative 7 circulation and signing program would reduce the traffic safety impact of turnarounds on residential streets to a less than significant level. This is not accurate. As described in Item 4 on page 7 of the Final EIRfor the Congregation Kol Shofar Conditional Use Permit Application: Alternative 7 Analysis, Alternative 7, including the new on-site circulation pattern, would not reduce the traffic safety impact to a less than significant level. However, the revised Mitigation Measure 3.3-C.3 that is included in the Final EIRfor the Congregation Kol Shofar Conditional Use Permit Application: A!ternative 7 Analysis would reduce this traffic safety impact to a less than significant level, in the opinion of the EIR preparer. The Planning Commission found this mitigation measure infeasible. The appellallt states that General Plan Goal C-C is not relevant to the project. The EIR preparers, Staff and the Planning Commission disagree with this opinion since the goal calls for maintaining the safety of existing streets. The appellant is correct that the Final EIR concluded that the revised project (Alternative 7) would be consistent with traffic- related goals and policies. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 5 The appellant offers opinions about the long-term planning ramifications of determining that any project that causes turnarounds in a residential neighborhood may have significant impacts and defming the immediate neighborhood as a Itcommunity. These opinions are noted for the record but do not specifically question the EIR conclusions. The Town Council will.need to determine whether the number of turnarounds in the neighborhood is actually inconsistent with General Plan goals and policies. As noted above, the EIR preparers conclude that Alternative 7 would not have significant traffic safety impacts and would be consistent with General Plan Circulation Element goals and policies. However, final interpretation of the intent of the General Plan goals and poliCies and project consistency with said goals'and policies is the responsibility of the Town decision-makers. Issue: Appendix A (p. 3): 3) Light and Glare Staff Response: The appellant states that the headlight intrusion impacts have been mitigated to a less than significant level and, thus, headlight impacts would not be inconsistent with General P~an goals and policies. The appellant is correct 'that the Final EIR included mitigation measures that would reduce potential headlight intrusion impacts to a less than significant level. The Final EIR did not find that this potential impact would result in any inconsistency with General Plan goals and policies. However, final interpretation of the intent of the General Plan goals and policies and project consistency with said goals and policies is the responsibility of the Town decision-makers. The Planning Commission found otherwise, as set forth on pp. 8-10 of Resolution 2006-16. Issue: Appendix A (p. 4): 4) Neighborhood Compatibility Staff Response: The appellant states that the Commission's fmdingthat the Project poses significant impacts on the sUrrounding neighborhood from increased noise levels, additional light and ,glare, additional traffic, increased parking demand, and reduced' vehicular and pedestrian safety and is therefore inconsistent with goals and policies of the Town's General Plan and would not protect the health, safety and welfare of the community and would npt protect and preserve existing neighborhood character and identity is inconsistent with the fact that CKS has been operating in the neighborhood for over 20 years. The fact that CKS has operated in the neighborhood for over 20 years does not equate with operating conditions under the project "as proposed". Further, the appellant states that this was the same case with S1. Hilary's Church and the Town approved their application for expansion, finding that it was compatible with the surrounding residential neighborhood. As discussed above, the Planning Commission denied the S1. Hilary's expansion applications in September 2000 because the scale and impact of the project upon the neighborhood was not considered consistent with the General Plan and Zoning Ordinance (see Resolution No. 2000-13). The Planning Commission's Resolution of Denial highlighted increased noise, light and traffic impacts upon surrounding homes and streets during the weekday evening and weekend times when newly proposed Church activities (i.e., CYO Basketball) would occur. This is very similar to the range of issues identified by the Planning Commission in its denial of the Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 6 CKS CUP. Subsequent modifications to the St. Hilary's application that reduced these impacts upon the neighborhood resulted in the Town Council's approval of their CUP in December 2000. Issue: Appendix A (p. 5): 5) Zoning Ordinance Non-conformance Staff Response: The appellant states that the Planning Commission concluded it could not make necessary fmdings to approve the CUP application as set forth in Zoning Ordinance sections 4.04.02 and 4.04.03, 5.08.04,5.08.10 and 5.08.11. Each of these sections is responded to below: 1) The appellant notes that Sections 4.04.02 and 4.04.03 pertain to the location and potential impact on the surrounding neighborhood. The appeal asserts that CKS has been at its current location more than 20 years; that it~ current and proposed uses are consistent with the RO-l zoning; and that the finding that the addition of the proposed multipurpose room is incompatible with the surrounding neighborhood is arbitrary and capricious. Staff disagrees in part. Kol Shofar has been at the location for over 20 years, but the private school and religious institution uses are "conditionally-permitted" uses and not "by right" uses. These uses are subject to appropriate regulation and conditioning under the Town's land use regulations. The Planning Commission's findings in Resolution 2006-16 are provided in detail but the essential issue relates to the proposed increased weekend nighttime events and the related noise, light and traffic safety issues as well as the limited amount of on-site parking that is proposed to accommodate new activities. The Commission found that a building with the potential (and declared proposed use) or-accommodating 1,500 persons all at once, in a quiet residential neighborhood was incompatible with surrounding residential uses. The Planning Commission also concluded that increased noise, lights and traffic would impact the otherwise nighttime quiet of the neighborhood during weekend evenings and night times during which the proposed new events and activities would occur. 2) With regard to Zoning Ordinance sections that deal with traffic and parking and neighborhood compatibility (Sections 5.08.04, 5.08.10 and 5.08.11), the findings discuss the fact that. the project proposal to increase parking by approximately 22 spaces for a total of 139 spaces falls far short of the Zoning Ordinance requirements. The Zoning Ordinance does not count on-street parking toward meeting parking requirements, and as noted in Resolution 2006-16, the Zoning Ordinance would require 161 on-site parking spaces for the Multi-purpose room's 642 seat capacity, and the EIR-recommended Mitigation Measures to limit traffic safety issues related to insufficient on-site parking were found to be infeasible. Therefore, the Planning Commission found that the proposed plan did not go far enough in providing on-site parking to meet the requirements of the Zoning Ordinance, and suggested that additional on-site parking be provided. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 7 APPEAL #2: TffiURON NEIGHBORHOOD COALITION I. Summary of EIR Deficiencies (pp. 2-7) Issue #1: Noise Impacts (p. 2) Staff Response: The Tiburon Neighborhood Coalition (TN C) appeal states that the Final EIR does not adequately address the noise impacts from short-term events, and, instead relies on the Ldn averaging standard for ,assessing impacts. The appellant is incorrect. This issue was specifically addressed in Master Response 7 at pp. 43-46 of the FElR. As clearly stated in that master response, the short-term noise impact from people arriving at and leaving new nighttime events was identified as a significant and unavoidable impact of the project as originally proposed and for Alternative 6 that was addressed in th~ FEIR. Contrary to the appellant's assertion, the FEIR explicitly did not rely solely on the Ldn metric to assess noise impacts. The appellant is also incorrect that the FEIR did not examine measures to reduce this significant noise impact. The Final EIR identified a project alternative (Alternative 7, which is a variation on Alternative 5' assessed in the DEIR) that would reduce this noise impact to a less than significant level. In this case, as well as other items cited in this letter, the Planning Commission disagreed with certain conclusions of the FEIR and explained the rationale for those conclusions in the Findings of jts Resolution 2006-16. This process is entirely consistent with CEQA. Issue #2: Parking (pp. 2-3) Staff Response: The appellant states that the FEIR did not adequately address and mitigate project parking: impacts. The FEIR did not fmd the project would generate significant parking impacts. The DEIR did fmd that people accessing the project would turn around in residential neighborhoods and that this would be a significant and unavoidable traffic safety impact. ,The Planning Commission in Resolution No. 2006-16 concluded that the EIR -recommended mitigations for parking to address the turnaround impact were infeasible and that the additional measures provided in Alternative 7 were also insufficient to mitigate the impact. The Planning Commission reached these conclusions after taking testimony on the project and reviewing all material including the Final EIR. CEQA does not require that a Final EIR reach the same conclusions that the decision-making body reaches when making a decision on a project. CEQA clearly provides for the decision-makers to reach a different conclusion regarding impacts than that stated in the Final EIR~ This is the purpose of developing the Findings for the project. The Findings explain how the Planning Commission reached its conclusion based on the' Entire Record before it. CEQA explicit~y does not require that the Final EIR then be revised to reflect the Findings. In this case, as well as other items cited in this letter, the Town Planning Commission disagreed with certain conclusions of the FEIR and explained the rationale for its conclusions in the Findings. This process is entirely consistent with CEQA. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 8 The appellant further states that the EIR states that project-generated vehicles can park on the street rather than on-site, which is a direct violation of the Town Zoning ,Ordinance. The cited page 67 of the DEIR clearly states that inadequat~ on-site parking would result in people parking on streets in the area arid that would result in a sigriificant and unavoidable traffic safety impact. The DEIR found that the impact on parking per se would be a periodic nuisance but not a significant environmental impact. No evidence has been provided that would cause the EIR preparers to cl1ange.these conclusions. The question of consistency with parking requirements set forth in the Zoning Ordinance is a matter that Town decision makers must address. The appellant ignores the fact that the EIR mitigation requires that new events be limited to the number of people whose cars can be accommodated with on-site parking, or, if more people would attend that adequate off-site parking in a parking lot be provided. The EIR does not mitigate project parking by stating that people can park on public streets. However, the EIR recognizes that such parking may occur ' regardless of whether there is adequate on-site parking,. or off-site parking provided at a remote parking lot. The appellant states that the EIR does not address the Zoning Ordinance requirement that a Town-approved covenant be obtained for off-site parking. For Alternative 7, no off-site parking is needed except for the High Holy Day (HHD) services. The applicant currently uses off-site parking lots for these services as required under the existing CUP. The project, if approved, would only change the times of use of these lots during the HHDs (i.e., reducing the amount of time the lots would be used by consolidating the services). It is assumed that the existing CUP is c<;>nsistent with the Zoning Ordinance. The Town would need to 'ensure compliance with Zoning Ordinance requirements. The language cited by the appellant is directed towards projects where off-site parking would occur on a continual basis (e.g., where one business contracts with another business to allow its customers to park at that second business). The cited parking provisions are therefore not applicable to this project. The appellant states that the EIR does not assess simultaneous parking demand. The Tiburon Neighborhood Coalition's former attorney raised this same issue, which was fully responded to in Response F35 (p. 140 of the FEIR). The appellant makes no reference to this response nor provides any reasons why that response was not adequate. The appellant continues to dis'agree with the Town's direction to the EIR preparers on how to assess parking vis-a-vis the Zoning Ordinance and the EIR analysis. This disagreement is noted for the record. Again, it is Town decision-:makers who are the ultimate arbiter regarding a project's consistency with the Town General Plan and Zoning Ordinance. However, the appellant's disagreement with the information provided in the EIR does not make the EIR inadequate. The appellant's opinion regarding consistency with the Zoning Ordinance will be one factor the Town considers when making a decision on the project. The appellant states that contrary to the repeated requests ofTNC, ~he EIR does not assess the timing and intensity of different proposed uses. This is incorrect. The EIR assesses the impacts of all combined uses when assessing noise, traffic, visual, and other Response to Appeals of , Planning Commission Decisions on KoI Shofar, 9/6/2006 9 impacts. Specific to parking, Table 5 (p. 66 of the DEIR) specifically addresses the parking demand for a combination of events. The maximum simultaneous parking demand for all events except the High Holy Day Services is presented in Table 5 in the DEIR. Issue #3: CEQA requires the EIR to mitigate to insignificance the project's conflicts with the General Plan (pp. 3-4) Staff Response: The appellant states that the EIR does not address or mitigate the project's conflict with General Plail goals and policies aimed at preserving the character of the existing neighborhood. The appellant is incorrect in stating that the EIR did not discuss inconsistencies of the projectwith the General Plan. See pages 129-138 of the DEIR and pages 6-20 of the FEIR. It is again noted that it is the Town's responsibility to ultimately determine the consistency of a project with the Town's General Plan. The Planning Commission, based on its review of the Entire Record, found the project inconsistent with several goals and policies. As described above under Issue # 2 above, the EIR need not be consistent with the Findings of the Planning Commission and/or Town Council may disagree with conclusions reached in theEIR. Issue #4: Traffic and' Circulation (pp. 4-5) Staff Response: The appellant states that the EIR does not address or mitigate significant impacts on traffic and circulation, namely that late night weekend traffic would increase . hazards to drivers and pedestrians. TheEIR did not fmd that project-generated traffic . would cause a significant traffic s~fety hazard for other drivers. The appellant has provided no information that this traffic would significantly affect congestion on local streets and cause a traffic saf~ty hazard as regards other drivers. The EIRdid fmd a significant safety impact to pedestrians resulting from increased turnarounds in residential neighborhoods. However, the FEIR concluded that additional traffic mitigations would reduce this impact to a less than significant level. The Planning Commission, based on its review of the Entire Record, disagreed with this conclusion. However, as already stat.ed, the EIR need not be revised to be consistent with the Findings of the Planning Commission. The EIR was independently prepared to provide information to be used by Town decision-makers. Simply because the Town decision-makers disagree with an EIR conclusion does not render the information presented in the EIR incorrect; rather, it indicates that the Town decision-makers, based on their review of the Entire Record and their experience as residents of the Town, determined that certain mitigations were not feasible and/or that certain impacts would, in their opinion, be or remain significant. The Planning Commission adopted Findings that explain how it reached conclusions that differed from conclusions reached in the EIR. This is the role of the Planning Commission in reviewing the EIR and other data submitted, but the Commission's different conclusion does not indicate inadequacy of the EIR. When the Planning Commission (or the Town Council) reaches a different conclusion or requires different Response to Appeals of Planning Commission Decisions on KoI Shofar, 9/6/2006 10 mitigation measures than included in the EIR, CEQA does not require that the EIR be revised to be consistent with the ultimate Findings on the project. The appellant also states that the impact of increased turnarounds would have a significant traffic safety impact that would be inconsistent with a number of General Plan goals and policies. The appellant again notes that the EIR is inadequate because it does not assess inconsistencies with the General Plan. As previously stated, the EIR does assess project inconsistencies ' with the General Plan. The Town decision-makers have ultimate authority for assessing consistency. If they determine that the project is inconsistent with additional goals and policies not identified in the EIR, this does not make the EIR inadequate. These Findings on General Plan consistency are a part of the Entire Record the Town considers in making a decision on the project. Issue #5: Light and Glare (p. 5) Staff Response: The appellant states that EIR-recommended mitigations for headlight intrusion are inadequate and the lmpact remains significant. The EIR .concluded that headlight intrusion would be mitigated to a less-than-significant level; the Planning Commission disagreed as set forth in Resolution 2006-16. The appellant again 'concludes that the EIR is inadequate because the Planning Commission reached a different conclusion than the EIR and found that the EIR- recommended mitigations were inadequate. As previously stated, the Planning Commission has the authority to reach such a conclusion based on its review of the Entire Record. However, there is no requirement that the EIR reach the same conclusions, nor that the EIR must be revised to be' consistent with those conclusions. Issue #6: Alternative Locations (p. 6) Staff Response: The mc appeal criticizes the EIR for failing to analyze additional off- site alternatives. Congregation Kol Shofar has responded to this issue in greater detail in a letter dated August 22, 2006 that is attached as Exhibit 7 to the Staff Report. The EIR pointed out that the appropriate analysis is "not an assessment of existing uses of the'site, only proposed additional improvements and uses." (Draft EIR, p. 155.) The EIR thus analyzed potential off-site locations that could accommodate just the proposed additions analyzed in the EIR (listed as 13,395 square feet of building space). The EIR correctly points out that there are no suitable sites in the Town to accommodate the addition of four classrooms and the multi-purpose room. The EIR also states that "constructing the multi-purpose room elsewhere in Tiburon is not feasible because there is not a suitable non-residential site and because adequately sized residential sites are either not for sale, have existing development plans, or have neighboring residential uses (where impacts could be expected to be similar to those identified for the proposed project)." (Draft EIR, p. 155.) Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 11 Issue #7: Project Description (p. 6) Staff Response: The mc appeal states that revisions to the project (resulting in what is called Alternative 7) are confusing and do not provide a legally adequate project description. First,' it is noted that Alternative 7 is a variation on a project alternative (Alternative 5) assessed in the EIR. The only additional change is a change to the parking lot circulation pattern, which was made at Town staffs request in an attempt to address concerns from residents of Reedland Woods Way. It should be noted that this changes leaves the parking lot circulation very similar to what exists currently. Otherwise, Alternative 7 is simply a reduction in the number of-new weekend events and the number of people allowed at events. It is not clear how these elements, which were assessed in the Alternatives Analysis section (pp. 143-159 of the DEIR) and in Master Response 1 (pp. 3-6 in the FEIR), are a ".. . confusing, indeed dizzying array of project features and impacts. . ." The appellant has provided no specific examples of any confusion, and, instead, has provided very specific comments and critiques of Alternative 7. Finally, the public had ample time to review and provide comments on Alternative 7. Numerous verbal and written comments were received and considered' by the Planning Commission prior to reaching its decision. Issue #8: Growth in the CKSMembership (pp. 6-7) Staff Response: The appellant states that the EIR does not address how the project will induce growth in the Kol Shofar congregation. This issue was previously raised by TNC and thoroughly responded to in Master Response 3 (pp. 20-21 in the Final EIR) along with Responses F13 (p. 133), and,Fl8 through F21 (p. 134) The appellant has provided no additional information that would require the EIR preparers to modify those previous responses. To reiterate the conclusion of Master Response 3: It would be speculative to project the Congregation's growth based on the proposed project. One might argue that the new buildings would enhance the facility thereby increasing the Congregation'$ membership, or one could argue that the number of people participating in services and functions is based on the strength of the rabbis, the Congregation's leadership, and/or the Congregation itself It would be speculative for the EIR pre parers to determine to what degree either of these points of view is correct. In addition, the ,membership has been declining since 1998. Based on the past seven years, one could project a declining Congregation membership. More importantly, the EIR assesses the impacts of the proposed project which is to add new facilities and allow expanded uses of the site in those new facilities. The number of overall Congregation members does not affect the analysis. Rather, it is the number of new events held on the site and how many people attend those events. The number of new events and people accessing the site for such events are what will result in environmental impacts, not the size of the overall Congregation membership. The Conditional Use Permit (CUP), if Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 12 approved, would establish caps (or limits) on how many events can occur on any given day and how many people can be on the site during these events. These caps are not part of the existing CUP. Several appellants have stated that an increased membership could result in future requests to amend the CUP to allow more events or more people to attend events. However, aS'noted above, it is speculative that the Congregation membership. would increase. More importantly, any increase in the number of events or the number of people allowed to attend events would be permitted only after future environmental review and Town approval of the CUP revision. It is speculative to conclude that the membership would increase and/or that KS would seek further revisions of the CUP. II. Detailed Discussion of the DEIR and FEIR Deficiencies (pp. 7-33) Issue A: FEIR fails to address inconsistencies with the General Plan or to properly categorize those inconsistencies as significant environmental impacts (pp. 7-10) Staff Response: The mc appeal asserts (at p. 7) that the "Final EIR's treatment of the Project's consistency with the General Plan violates multiple tenets ofCEQA." This argument is based on a flawed notion: that a potential inconsistency with the Town's General Plan undermines the previously certified EIR for the project. In refuting the mc assertions, Staff offers the following points: 1) CEQA does not require an EIR to draw conclusions regarding the underlying project's consistency with a general plan. First, CEQA Guidelines section 15125, subdivision Cd), provides that an EIR "shall discuss any inconsistencies between the proposed project and applicable general plans. . .." In addition, Appendix G of the CEQA Guidelines requires a lead agency to analyze whether the project wouid "[ c ]onflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan. . .." Thus, CEQA requires an EIR to discuss, rather than draw final conclusions regarding, the project's consistency with applicable general plans. Both the Draft EIR (DEIR) and Final EIR (FEIR) for the Project contained an adequate analysis of the proposed project's consistency with the Town's General Plan, pursuant to Guidelines section 15125, subdivision (d). The DEIR discusses the proposed project's consistency with the Town's old General Plan on pages 129-138. The DEIR also states that "[dJeterminations of inconsistencies with [the Town] General Plan or other plan policies are a legal decision. . ." to be made by elected Town decision-makers, not by the EIR consultant or planning staff. (DEIR, p. 128.) Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 13 On pages 6-20, the Final EIR provides a discussion of the proposed project's consistency with the Town's new General Plan. While, the Town did request that the consultant complete this analysis, the EIR need not make fmal determinations of General Plan consistency. Such determinations are "quasi-legislative" in nature and require the Town to evaluate whether the project as a whole will further the objectives and policies of the' general plan and not obstruct their attainment. Perfect conformity with the General Plan is not required. Rather, a general plan must try to ,accommodate a wide range of competing interests - including those of developers, neighboring homeowners, environmentalists, and providers and recipients of all types of city-provided services. Once a general plan is in place, it is the province of elected city officials to examine the specifics of a proposed project to determine whether it would be "in harmony" with the, policies stated in the plan. The Final EIR properly acknowledges that the Planning Commission and Town Council bear the ultimate responsibility to determine consistency with General'Plari goals and policies (FEIR, p. 6.). "Recognizing the difficulty of determining the intention of the General Plan, many jurisdictions do not require or even allow the EIR to include such a consistency analysis, as it is not required by CEQA and determining consistency is fmally the responsibility of the jurisdiction's decision-making body." The mc appeal also argues that "[t]heFinal EIR inexplicably changes the conclusions of the Draft EIR regarding key inconsistencies with the General Plan and Zoning Code." (mC letter, p. 10). Because the Town adopted a new general plan during the time period between the DEIR and FEIR, the FEIR appropriately analyzed consistency of the project with the new general plan. Thus, the analysis in the FEIR is not "directly undermined by the analysis in the DEIR," as mc suggests, because CEQA permits the analysis and conclusions to change in order to reflect the Town's updated general plan policies. Furthermore, nothing in CEQA would prohibit a change in the analysis from the DEIR and the FEIR. The change is supported by evidence in the record, including written comments submitted in response to the DEIR. 2) A project's potential inconsistency with a general plan is not per se an environmental impact. The.appeal, at p. 8, asserts that "[t]he [p]roject will violate requirements of both the General Plan and the Zoning Code and therefore poses significant impacts." This argument is not persuasive. A project's inconsistency with a general plan is not a significant impact per se, since violation of a plan is a policy decision, rather than a physical impact on the environment. Relying on Citizens Assn. for Sensible Development of Bishop Area v. County of lnyo (1985) 172 Cal.App.3d 151, 175, mc contends that determinations of inconsistency require analysis in the EIR. In fact, that case held that an alleged inconsistency with a Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 14 specific provision of the General Plan did not require the preparation of an EIR (i.e., was nota significant impact), because the project appeared consistent with the broad objectives of the plan. In effect, the court deferred to the legislative body's determinations of General Plan consistency and the proper balance between the various policies in the plan. The TNC appeal also cites, at p. 8, The Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 930 to claim that an inconsistency with the General Plan is "ipso facto a significant environmental impact, which had to be considered as such in an EIR." That is a somewhat misleading description of the case. The Pocket Protectors court was reviewing a lead agency's decision to adopt a negative declaration instead of prepare an EIR; a very different context. The court held that an inconsistency with the General Plan is substantial evidence to support afair argument that the .project may result in a significant environmental impact (which is the test for whether to prepare an EIR).' Here, the Town has certified an EIR for the project, which means that the fair argument standard and the Pocket Protectors holding do not apply. In its responses to comments submitted on the DEIR, the Town emphasized that the Planning Commission (or Town Council) is responsible for determining consistency with the Town General Plan, and that a determination of inconsistency is not per se a significant environmental impact. Response F69 states that "[t]he Town of Tiburon has historically not considered inconsistencies with [general plan] policies as environmental impacts." (FEIR, p. 149.) In Response G21, the Town states that "[general plan consistency] analysis is not required for an EIR and that potential inconsistencies are not environmental impacts." (FEIR, p. 168.) In Response H20 of the FEIR, the ToWn recognizes that the evaluation of the ,proposed project's consistency with the General Plan is strictly within the purview of the Town. While the EIR consultant's conclusions regarding the proposed project's consistency with the General Plan may be worthwhile as a preliminary review, these conclusions are at best advisory, and even then do not, in certain circumstances, properly balance the competing policies at stake in determining a project's consistency with the Town's General Plan. (FEIR, pp. 180, 185.) The DEIR clearly states'that "[ d]etermination of inconsistencies with General Plan or other plan policies are a legal decision andnot an environmental impact (since a plan is not a part of the physical environment." (DEIR, p. 128.) "However, inconsistencies or potential inconsistencies with plan policies can point to potentiaJly significant impacts on the environment." ' Each of the potential inconsistencies with the Town General Plan cited in the TNC appeal is addressed below: · OSC-2 in the old General Plan and LU-5 in the new Plan ("new development shall be in harmony with adjacent neighborhoods and open space '') Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 15 The DEIR stated that the project may be inconsistent with policy OSC-20fthe old General'Plan, stating that ~'the project will alter views in the area and new non-residential buildings and parking areas could be considered to not be 'in harmony' with surrounding single family residential uses." (DEIR, p. 130.) The FEIR, however, concluded that the project would be consistent with policy LV-5 of the new General Plan. "As in the case with the Findings the Town adopted when approving the Conditional Use Permit for expanding the St. Hilary Church and school, the new multi-purpose room and classrooms are extensions of an established use of the property for school and church purposes. The project would not be expected to change the identity of the surr~unding neighborhood." (FEIR, p. 8.) There is additional evidence to support a fmding that the project is consistent with policies OSC-2 and LV-5. The Planning Commission, in Resolution No. 2006-16 did not find the project inconsistent with policy LU-5. In addition, it is unclear what environmental impact is implicated by Policies OSC-2 and LV-5. Since there is no clear physical impact associated with these policies, a fmding of inconsistency would not necessarily have a significant environmental impact. Further, a determination of whether the project is "in harmony" with the.surrounding neighborhood is ultimately a policy decision reserved for the Town decision-makers. . Policies C-C in the old and new General Plans ('Ito maintain all existing, as well as to design all future, residential streets with consideration of residents' safety, cost of maintenance, and protection of residential [quality of life] ") The DEIR concluded that the project may be inconsistent with Goal C-C of the old General Plan because "[t]he project will increase safety hazards on at least Via Los Altos and Reedland Woods Way. Increased vehicle use on streets and in parking areas will increase traffic-:-generated noise that will affect nearby residents. People attending large events will park in residential neighborhoods." (DEIR, p. 133.) The Planning Commission found the project inconsistent with Goal C-C in the new General Plan because it found the proposed mitigation measure for the turnaround impact to be infeasible (p. 4 of Resolution No. 2006-16). The Planning Commission's suggested solution was to increase the supply of on-site parking to both mitigate impacts and achieve consistency with this General Plan goal. . OSC-ll in the old General Plan and OSC-35 in the new Plan (II . . . grading shall be kept to a minimum and every effort. . . made to retain the natural features of the land including. . . trees. . .. '') Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 16 The DEIR found that the project is potentially inconsistent with policy OSC-11 of the old General Plan, however, it states that "[g]rading and tree removal are minimal for a site in Tiburon." "Nevertheless, the project does include grading which will alter the natural topography of the site, though the natural topography of the site has already been substantially altered by past bench grading done to allow construction of the former school on the site. The project would remove 11 trees, of which only one is a native tree." (DEIR, p. 131.) In the revised consistency analysis, however, the FEIR concludes that the project would be consistent with policy OSC-35 of the new General Plan. (FEIR, p. 13.) "Grading would be minimal for Tiburon development, involving cutting and filling of 650 cubic yards of material. Otherwise, the project does not affect other significant natural features of the site." . The Planning Commission did not find the project inconsistent with Policy OSC-35. 3) The DEIR and FEIR adequately addressed potential inconsi~tencies with the Town Zoning Code. Similarly, the ultimate decision regarding a project's consistency with the Town Zoning Ordinance is a policy decision reserved for the elected decision-makers. Thus, an EIR may identify and analyze potential inconsistencies, but these determinations are advisory only. Moreover, a potential inconsistency with the Town Zoning Ordinance is not an environmental impactper se. As the following discussion demonstrates, there is substantial evidence to support a Town Council finding that no significant environmental impact would result from the project's potential inconsistency with the Town Zoning Ordinance. Each of the potential inconsistencies with the Town Zoning Ordinance cited by TNC is addressed below: · Section 4. 02. 06(d) (Site Plan and Architectural Review) ('[tJhe height, size a'nd/or bulk of the proposed project bears reasonable relationship to the character of existing buildings in the vicinity. A good relationship of a building to its surroundings is important. For example, in neighborhoods consisting primarily of one-story homes, second-story additions shall be discouraged, or permitted with increased setbacks or other design features to minimize intrusion on the neighborhoods. ") The DEIR concludes that the project is potentially inconsistent with Section 4.02.06(d) because "[t]he proposed non-residential buildings and parking facilities are out of character with surrounding residences." (DEIR, p. 136.) The DEIR acknowledges, however, that "they are consistent with existing uses on the sit[e] and the historic usage of the property." Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 17 The Planning Commission found that the project is consistent with Zoning Ordinance Section 4.02.06(d). As noted in the DEIR and in the August 5, 2005 letter submitted on behalf of the Congregation, the proposed project is consistent with the historical use of the property, and the visual impacts of the project are relatively minor. (DEIR, pp. 136, 93-97.) Therefore, there are no significant environmental impacts associated with the project's potential inconsistency with Section 4.02.06(d). . Section 4.04. 00 (a) and (b) (Conditional Use Permits (Hwhether the location proposedfor the Conditional Use Permit appliedfor is properly related to the development of the neighborhood as a whole" and Hwhether the location proposed for the Conditional Use Permit applied for would be reasonably compatible with the types of uses normally permitted in the surrounding '') area. Staff believes the appeal and the DEIR both intended to refer to Sections 4~04.02 (a) and (b) of the Zoning Ordinance. The DEIR states that the project is potentially inconsistent With subdivisions (a) and (b) of Section 4.04.00 [sic] of the Town Zoning Ordinance. The DEIR states that "[t]he project is a sYnagogue and school in the middle of a residential neighborhood. However, the existing main building has been located on the site since the 1970s, so this non-residential use of the site has along history." (DEIR, p. 137.) The DEIR further provides: . The project will increase traffic congestion more than would be expected from residential development of the site. The project will increase the number of people and the frequency of parking vehicles on local streets. The project will generate periodic noise not typical of a residential neighborhood. Project improvements are visually different than buildings and improvements typical of a residential neighborhood. Parking lot and other lights could be inconsistent with night lighting in the area. Large nighttime events occurring many weekends as well as less frequently on weekdays would appear to be out of character for a residential neighborhood. The Town staff report prepared for the April 24, 2006 Planning Commission hearing states that: The General Plan policy analysis in the EIR notes that churches and schools are traditionally integrated into residential neighborhoods in Tiburon and all Marin comrhunities. The key to finding that such uses are "harmonious" with the predominant residential use lies in the intensity of the proposed use. The Town has reviewed the CUP for Kol Shofar annually and made adjustments to conditions of approval as necessary over the years, in 1997,2001 and 2004. The proposed conditions of approval for the new CUP bring forward many of the prior conditions and include several new ones to address the impacts of the proposed expansion. (Staff Report, p. 12.) Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 18 The Planning Commission found the project inconsistent with these provisions based primarily on the frequency and lateness of proposed events (p. 13 of Resolution 2006- 16). · Section 5.08.04 (parking Requirements) ("Places of Assembly: one for each 4 seats of maximum seating capacity; or one for each 40 square feet of assembly area~ whichever is more. '') As described in Impact 3.3-C and Table 5, the DEIR concludes that the project would not include sufficient parking spaces to meet these criteria. (DEIR, pp. 64-68, 138.) Table 5 and pages 64-68 of the DEIR analyze the consistency of the proposed project, including the new parking lot, and find that it would not meet the requirement of one space ~or each 4 seats of maximum seating capacity or one space for each 40 square feet of assembly area, whichever is more. 139 total parking spaces are proposed for the project and the existing and proposed uses on the site (sanctuary, chapel, multipurpose room and classrooms) would have a combined total parking requirement of 363 spaces, if each use is considered separately. Section 5.08.10 allows for a reduction in the number of spaces if there are overlapping uses on the property. The Town Staff Report prepared for the April 24, 2006 meeting states that "[ w ]hile some overlapping parking would result from the Kol Shofar expansion plan, allowing for a reduction in the required number of parking spaces below 363, the DEIR includes Mitigation Mea~ure 3.3-C which proposes a limit of275 attendees (based on 2 persons per, car, this yields a parking demand of 139 spaces)." (Staff Report, p. 9.) As stated in Resolution No. 2006-16, "[t]he Planning Commission would have reasonable discretion to reduce the combined parking requirement as described in subsections (a) and (b) [of Section 5.08.10]. However, subsection (a) indicates that the reduction must be based on overlapping uses not having overlapping times." As summarized in the Resolution, for the overlapping uses identified on page 65 of the DEIR, Tiburon Zoning Ordinance requirements range from 161-299 parking spaces where only 139 spaces have been proposed. (Resolution No. 2006-16.) Ultimately, the Planning Commission found this discrepancy too large to approve the CUP application, and suggested that additional on-site parking be created to achieve better conformance with parking standards. The TNC appeal also cites the following parking provisions in the Town Zoning Code, which the DEIR did not identify or analyze: · Section 5.08.00 (Parking and Loading) ("No structure shall be constructed unless spaces for parking and truck loading and unloading are permanently provided and maintained for the benefit of resident, employees, customers, and visitors, within or outside ofbuildings or in combination of both . . . ") Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 19 This sentence is the lead-in to the Town's parking regulations and references the specific regulations that follow. In and of itself, it does not establish standards by which the project can be measured, and further discussion is unnecessary . Section 5.08.01 (Applicability) ("A new use, structural addition, or alteration on such parcel shall be allowed only if it does not increase or create a parking deficiency as determined in this section. ") The Planning Commission found that insufficient on-site parking exists that frequently results in overflow onto neighborhood streets. The Planning Commission concluded that "sufficiently increasing the on-site parking capacity would bring the Project into Zoning Ordinance parking regulation compliance and is the most logical mitigation.. .." . Section 5.08.02 (Location of Required Parking) ("The required parking shall be provided on the parcel or contiguous lot or parcel where the use is located. For non-residential uses, the required. parking may be provided on another parcel providing that the parcel is within the Town in a commercial zone and is reasonably convenient to the subject parcel, as approved by the Town. ") As discussed earlier in this Response document, this section does not apply to the project. . Section 5.08.03 (A) (Layout) ('The required parking stalls, loading berths and parking ais?es may not be located on any street right-:of- way[J") The Planning Commission found that the project is consistent with Section 5.08.03(A). None of the proposed parking stalls are located on any street right-of-way; the project is consistent with Section 5.08.03(A). There is no evidence that a potential inconsistency with this ordinance would result in a significant environmental impact. . Section 5. 08. 03 (D) (Layout) ("Access driveways shall not be arranged so as to unduly increase hazards to traffic or pedestrians. '') The Planning Commission found that the project is consistent with Section 5.08.03(D). All access driveways proposed for the project would not unduly increase hazards to traffic or pedestrians, as modified by mitigation measures. There is no evidence to suggest that a potential inconsistency with this ordinance would result in a significant environmental impact. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 20 · Section 5.08.03 (F) (Layout) ("Large paved areas shall be given visual relief by the interspersion of landscaping within the paved area, as well as around the perimeter. ") The Planning Commission determined that the project is consistent with .section 5.08.03(F). Detailed design of the parking areas will be subject to Site Plan and Architectural Review. There is no evidence that a potential inconsistency with this ordinance would result in a significant environmental impact. · Section 4.04.11 (Off-Street Parking and Loading Requirements) tiThe requirements for provision of off-street parking and loading applicable to the particular use shall prevail, unless in the findings and conditions recited in the Resolution, specific additional requirements are made with respect thereto. ") The Planning Commission determined that the project is consistent with Section 4.04.11. There is no evidence that a potential inconsistency with this ordinance would result in a significant environmental impact. Issue B: FEIR inexplicably changes the conclusions of the Draft EIR regarding key inconsistencies with the General Plan and Zoning Code (pp.l0-12) Staff Response: The appellant states that the Draft EIRincluded a review of the Project in relationship to the old General Plan and the Final EIR also evaluates General Plan policies of the new 2020 General Plan yet some conclusions have changed from a finding of inconsistency in the Draft EIR'to a fmding of consistency in the Final EIR and the reasons for this change were not made clear. These items are addressed below: 1) OSC-2 in the old General Plan and LU-5 in the 2020 General.Plan. OSC-2 pertains to protection of views, ridgelines, significant vegetation, habitats and environmentally sensitive areas and maintaining harmony with adjacent neighborhoods and open space. The finding that the project would be inconsistent with OSC-2 related to the fact that the project would change views and introduce new non-residential buildings and parking areas that might not be in hannony with surrounding residential areas. The FEIR finding regarding LU-5 is directed at preserving existing neighborhood character and identity. In this finding, the FEIR notes that similar to S1. Hilary's Church expansion, the CKS facility and proposed expansion could be found to be an extension of the established use of the property which has been for church and school purposes for over 22 years and that this would not change the identify of the surrounding neighborhood. In the case of OSC- 2, the potential environmental impact of the physical change was the focus; while in LU- 5, the fmding deals with the consistency of the proposed multipurpose room and classroom expansion with the established church and school use in the neighborhood. Fundamentally, these two policies address different issues and therefore it is not surprising that different conclusions were reached from the Draft EIR to the Final EIR. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 21 As discussed elsewhere, CEQA does not require that EIRs include an analysis of General Plan policy consistency. In this case, the Town requested that the EIR preparer include a policy consistency discussion. Ultimately, however, the Town decision-makers must balance factual evidence from the entire record before determining whether the project's impacts, both physical and social would be consistent withthe Town policy. 2) Goal C-C of the old and new General Plans. This goal is to maintain all existing, as well as to design all future, residential streets with consideration of a combination of residents' safety, cost of maintenance, and protection of residential quality of life. The proposed project was found to be inconsistent with this goal in the Draft EIR and consistent in the Final EIR. The reason for this change has to do with the development of a new mitigation measure in the Final EIR (MM3.3-C.3) that was not included in the Draft EIR. Mitigation Measure 3.3-C.3 required attendees at new events to park on~site parking or in remote parking lots,through a parking permit system that would reduce the 'traffic safety impact of on-street parking in the neighborhood and related unsafe turnarounds to a less than significant level according to the FEIR. The Planning Commission found this mitigation measure infeasible and the project inconsistent with Goal C-C, and suggested additional on-site parking as a solution. 3) OSC-ll in the old General Plan and OSC-35 in the new General Plan. These policies pertain to minimizing grading and retaining natural landforms. The Draft EIR found that the project would be inconsistent event though grading and tree removal are minimal for a site in Tiburon and the site has already been substantially altered by past bench grading done to allow construction of the former school site. The Final EIR concluded that the project would be consistent due to the minimal grading proposed for a site in Tiburon. Despite the difference in the finding between the Draft and Final EIR, the rationale presented did not change the fact that there is relatively minor grading proposed for the ' project and there is no difference in the conclusions of the Draft EIR and Final EIR about the environmental impact of proposed grading. This is a minor discrepancy of very little consequence. The Planning Commission found the project consistent with Policy OSC- 35. 4) The Draft EIR reached a different conclusion about consistency with the neighborhood character than the Final EIR. The appellant chooses to compare the Draft EIR (at p. 134) fmding with regard to Zoning Section 4.02.07(c) [mislabeled as 4.02.06(d) in the DEIR] that the project's non-residential buildings and parking facilities would be inconsistent with the surrounding residential neighborhood however, they would be consistent with the existing structures on the site, with the Final EIR findings for LU-H and LU-13. The Final EIR concluded that the buildings were consistent with these General Plan policies that discuss neighborhood character in that they are not massive, they are extensions of an existing use that are consistent with the existing buildings at the site, and that ultimately the question of neighborhood compatibility would be resolved through the Site Plan and Architectural Review process. This latter statement is more important than the change in finding of consistency between the Draft and Final EIRs. Again, this is a very minor discrepancy of very little consequence. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 22 5) Sections 4.04. 02 (a) and (b) of the Zoning Ordinance. The appellant compares the Draft EIR conclusion (at p. 137) that the project was inconsistent with portions of Section 4.04.02 that deal with whether a project's location is properly related to the development of the neighborhood and the Final EIR conclusion of consistency with General Plan policy LU-I which encourages compatibility of new development with the density, intensity and style of development in the surrounding neighborhood. The conclusions here pertain to slightly different concerns. The Draft EIR finding of inconsistency related to the proposed intensity of new nighttime events and how those would impact the neighborhood; while the Final EIR fmding of consistency focused on the existing uses of the property and that the physical expansion would not significantly change the character or identity of the neighborhood. . 6) Section 5.08.04 of the Zoning ordinance and General Plan Goal C-I The appellant cites the fmding in the Draft EIR (at p. 138) that the project would be'inconsistent with Zoning Section 5.08.04 parking requirements for one parking space per four seats of maximum seating capacity or 40 square feet of assembly area. In the Final'EIR, the project was found to be consistent with Goal C-I, to provide adequate parking throughout the Planning Area. In addition to the fact that provisions are not the same, the discussion in the Draft EIR makes clear that the Zoning Code,provides the Town decision-makers with flexibility regarding parking requirements (Section 5.08.10). In the Final EIR, the conclusion of consistency with Goal C- I is explained by the fact that mitigation measure 3.3-C.3 was intended to require on-site.parking or remote parking lot parking through a parking permit system, thereby significantly reducing on-street parking in the neighborhood and related impacts. Thus, the differences in these fmdings are clear in the two documents and internally consistent. In conclusion, the appellant's concern that unexplained and unsubstantiated reversals contained in the Final EIR reveal a fundamental lack of analysis in the environmental report is not supported, by a careful comparison of the two documents and furthermore, does not have bearing on the fundamental fact that the Town's decision-makers, not the EIR, are the fmal arbiters of whether the proposed project can be found to be consistent with General Plan policy and Zoning Ordinance standards. Issue C: FEIR does not adequately address the parking requirements in the Zoning Law (pp. 12-14) Staff Response: The TNC appeal provides a detailed critique of the Final EIR mitigation measure 3.3-C.3 that would require a parking receipt program to encourage on-site or remote parking lot parking for newly proposed events and reduce on-street parking impacts in the surrounding neighborhood. Specifically, the appeal raises concerns that the parking receipt program might not be workable. The Planning Commission came to this same conclusion, at the recommendation of Town Staff, and found in Resolution 2006-16 that the parking receipt program "is unwieldy, unduly difficult to monitor and enforce, unlikely to be successfully implemented, and therefore infeasible". , Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 23 The appellant notes that the FEIR does not provide a parking plan either for on-site valet parking or for locating off-site parking and concludes that parking remains an unresolved, unmitigated significant impact and therefore, the FEIR should not be certified. The FEIR did not need to provide a parking plan because the parking receipt mitigation measure was intended to manage the demand for more parking than was provided on-site for newly proposed events. Valet parking was included as a mitigation option in Mitigation Measure 3.3-C.I, 2 with the other option being to limit the maximum size of newly proposed events to a level (275) where on-site parking would be sufficient. Final EIR.' Alternative 7 limits maximum attendance at newly proposed events to 250, which would further limit demand for on-site parking. Also, valet parking is included in the existing CUP for management of parking demand during the High Holy Days. Nevertheless, the Planning Commission, in its denial of the CUP, concluded that the project should l?e revised to i~clude additional parking rather than rely on a parking receipt program. This conclusion is based upon staff's analysis of the project's consistency with the Zoning Ordinance parking standards. There is no need, however, for the Final EIR to be modified or recirculated, because its analysis was adequate and complete within'the scope of CEQA. Issue D: Project Description Remains Inadequate (pp. 14..16) Staff Response: This comment includes a number of discrete comments as outlined below: I. The appellant states that t4e, EIR does not determine the feasibility of the flood detention basin. The TNC previously made this comment on the DEIR. See Response F61 (p. 148 of the FEIR) and Master Response 5 (pp. 22-23 of the FEIR). The appellant has offered no additional information as to why the recommended flood ,control measures are not feasible. 2. The appellant states no off-site parking lots have been identified. Please refer to the Greenwood Beach HOA appeal discussion below for a detailed response to this item 3. No parking plan has been provided. As stated in Response E21 of the FEIR, a parking plan must be approved by the Town. Such a plan is already part of the existing Conditional Use Permit and would be revised to meet current Town requirements. Please refer to the Greenwood Beach HOA appeal discussion below for a detailed response to this item 4. The appeal asserts that the project has not determined where all parking places would be.. As noted on page 41 of the FEIR, the applicant is required to develop 7 additional spaces or to reduce the maximum number of people allowed on site. For all of these fIrst four comments under heading liD", the appellant chooses to ignore the main thrust of Master Response 5, which states that the EIR identifies specific performance standards that must be met. The details of how those standards will be met are not Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 24 required at this stage as it is not expected that the final design would have additional impacts or increase the significance of any impacts discussed in the EIR. 5. The appellant reiterates the TNC's previous comment about the need for a discussion of the Conditional Use Permit (CUP) in the EIR. This issue was thoroughly discussed in several responses in the FEIR, including Responses F3 (p. 131 of the FEIR), F7 (p. 132), F8 (pp. 132-133), F16 (p. 134), and F59 (p. 147). The appellant goes on to state that all of the terms of the CUP need to be set forth in the EIR. As far as the EIR is concerned, the terms of the CUP would be the project as proposed as modified by the mitigation measures recommended in the EIR. However, as stated in the Final EIR, the actual fmal terms will be the conditions set forth in the Town's Findings, if it approves a project or project alternative. The appellant states that the EIR does not adequately, distinguish between mitigation measures that are part of the project and those recommended elsewhere. The EIR. clearly describes the project on pages 5.;.14 of the DEIR. As described in the analy~is of Alternative 7, the changes to the project reduce the number of events, the hours, and the maximum number of participants, and a change in the circulation pattern of the parking lot. The EIR-recommended mitigation measures are listed in the Mitigation Monitoring and Reporting Program at the back of the Final EIR. This table lists the timing of implementation and the responsible parties for implementing the measures and monitoring compliance. Town staff determined that this discussion is entirely consistent with the Town's Environmental Review Guidelines. The appellant is incorrect in stating that'all mitigation measures must be identified at the outset. Many EIR mitigation measures are developed while assessing a proposed project. The appellant is correct that some mitigation measures have been revised as the project has undergone an extensive public review process. This is one of the chief objectives of the CEQA process - to allow agency and public review of the EIR and to revise it to reflect additional information submitted during the review process. The appellant is incorrect i~,stating that the EIR does not describe the project. The applicant's proposed CUP is the project description provided in the DEIR, as revised by Alternative 7. The EIR recommends mitigation measures to be added to the fmal CUP. Issue E: Key impact topics are inadequately evaluated (pp. 16-20) Staff Response: The appellant states that the EIR does not provide rigorous analysis and substantial evidence to justify its conclusions. The appellant is incorrect. Specific comments are responded to below. I. The EIR does not assess "summer conditions" at the Blackfield Drive/Tiburon Boulevard intersection. This issue was responded to in Response E8 (p. 87 of the FEIR). Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 25 The appellant has not added any new information that would cause the EIR preparers to revise Response E8. 2. The EIR should conduct the analysis to determine whether signal timing at this intersection should be allowed. The EIR does not need to conduct this analysis. The EIR identifies the mitigation measure for this intersec~ion. The FEIR (page 30) states that Caltrans may adjust the signal timing only if it would not adversely affect the level of service at the intersection. The appellant is incorrect in stating that such adjustment would lead to an impact not assessed in the EIR. 3. The appellant asks the basis for determining that 12 people wo1.ild come in 6 cars. Two people per car is the basis used for all traffic analyses in the EIR andis based on ' observations of events. The existing upper lot will not be used by the general public and will be restricted to staff and employees. Thus, there will be less use of this existing parking lot than currently occurs. Even though there will be more events, the number of people using the lot will be substantially reduced (as it is now used by parents dropping off and picking up their children). This will reduce an existing traffic safetY' concern. The project will have less impact at this location than occurs under baseline conditions. 4. The appellant states that the EIR did not address increased use of the Reedland W oods Way exit from people dropping off and picking up children. The change in parking lot circulation was reviewed by the'EIR traffic consultants. As reported in the Final EIRfor the Congregation Kol Shofar Conditional Use Permit Application: Alternative 7 Analysis, this change would not result in any new or more severe environmental impacts. The appellant has not provided any data contrary to this conclusion. 5. The appellant states that the EIR does not assess traffic safety of 139 vehicles simultaneously exiting on Reedland Woods Way. TNC previously submitted this same comment, which was responded to in Response F34 (p. 139 of the FEIR). The appellant has provided no information that would require revision of that response. 6. The appellant states that the EIR does not assess the traffic impacts resulting from High Holy Day (HHD) events. mc submitted the same comment on the DEIR, and it was responded to in Response F40 (p. 142 of the FEIR) and Master Response 4 (pp. 21- 22 of the FEIR). The appellant has provided no information that would require revision of that response. 7. The appellant states that the EIR does not identify specific mitigations for HHD events. me submitted the same comment on the DEIR, and it was responded to in Response F38 and F39 (pp. 141-142 of the FEIR) and Master Response 4 (pp. 21-22). The appellant has provided no information that would require revision of those responses. Mitigation Measure 3.3-C.2 applies to HHD events, and this measure requires off-site parking and a parking plan for events with more than 360 people. This is a "specific" Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 26 mitigation as requested by the appellant. Contrary to the claim of the appellant, the EIR identifies specific traffic impacts and identifies mitigation measures for those impacts. 8. Regarding aesthetic impacts, the appellant states that the EIR does not adequately assess visual impacts. The FEIR responded to this criticism in Responses F44 and F46 (pp. 143-144 of the FEIR). The appellant states that Response F44is "conclusory, and fails to remedy the problem." However, the comment does not provide any specific examples of the conclusory nature of this response. While the appellant again states that mc would like additional photo simulations and analysis, they do not offer any information that would require revision of Responses F44 and F46. The project improvements would be visible from few public vantage points and homes in the immediate area. The EIR fully assessed the impacts to these public and private viewpoints and to all scenic resources., The appellant has provided no information indicating why the mitigations recommended in the EIR would not successfully reduce potentially significant visual effects to a less than significant level. 9. The appellant reiterates any earlier comment -on the use of the Ldn noise metric in assessing noise impacts. The appellant is incorrect. See Response E-1 above. 10. The appellant states that the EIR relies on biased noise measurements provided by the applicant to establish baseline conditions. The TNC previously submitted this same comment on the DEIR. See Response F47(p. 144 of the FEIR). The EIR included noise measurements done by the EIR noise consultants, including additional measurements done as part of the FEIR (see Master Response 7 at pp. 43-46 of the FEIR). The appellant has not provided any information that would require revision of these responses. 11. The appellant states 'that the FEIR does not adjust measured noise at a nighttime event to reflect a larger peak event. Approximately 250 people attended the measured event. It would not be feasible (Le., speculative) to project what increase in noise might result from another 25+ people. The difference would not be expected to be substantial. 12. The appellant states that the EIR does not assess noise impacts from the "bowl effect." As discussed in the DEIR on pages 81 and 82 and in Response E33 (p. 92 of the FEIR), there is no "bowl effect" in the sense that noise generated in a valley somehow is magnified in a way that does not occur on flat ground. What happens in a valley is that there are more potential sensitive receptors in direct line of sight (and thus line of noise) to a noise source at or near the bottom of the valley. The EIR assesses noise impacts on the residences closest to the site that might possibly be significantly affected by project noise. The described noise impacts would not be exacerbated by being in a "bowl." 13. The appellant reiterates Comment F48 previously submitted by TNC. As explained in Response F48 (p. 145 of the FEIR), if the noise from existing uses was added, it would result in a "noisier" baseline than was used in the EIR. The impacts could be less if the additive approach suggested by the appellant were used. 'The EIR Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 27 addressed a worst case scenario that did not include this existing noise. The appellant is correct that the noise would be added, but it would be added to a noisier baseline, and the impacts would not be more, and could be less, than those described in the EIR. The appellant is incorrect that the EIR did not assess all noise impacts, including cumulative impacts. 14. The appellant states that a risk assessment for diesel particulate (DPM) emissions from construction equipment is required. The appellant is incorrect. The standard of significance for DPM exposure is if exposure to project-generated emissions over a 70- year time would increase the number of cancer cases by 10 cases per 1,000,000 people (or a 0.00001 increased chance of cancer for a single individual). The exposure of people living near the site to emissions from grading equipment and other heavy equipment used for project construction for portions of a day for several weeks would not even app~oach this significance standard. The exposure is the same short-term exposure experienced by people living near any major construction site. The EIR referenced in Response F24 (pp. 135-136 of the FEIR, which responded to the DPM issue) assessed DPM impacts on people living along State Route 116 in Forestville. The project assessed in'that EIR was a quarry that would result in hundreds of new trips per day by heavy trucks hauling aggregate. The EIR assessed the impacts of exposure to this heavy truck traffic over a period of70 years and found that the number of new cancer cases would be less than the significance criteria The emissions from equipment constructing the project would be extremely small when compared to the hundreds of truck trips per day over 70 years that would be experienced by people living along the quarry haul route. The risks of additional cancer from exposure to project construction-generated emissions are very small. There is no need to conduct a quantitative risk analysis to confrrm this conclusion. Issue F: The EIR improperly defers mitigation (pp. 20-21) Staff Response: The appellant states that the EIR improperly defers mitigation for project impacts 'and that the EIR does not assess the impacts of the final mitigation measures. The EIR preparers disagree with this opinion. The appellant goes on to give an example that the EIR does not assess the impacts of the stormwater detention facility since it is not known whether it would be aboveground or underground, how large it would be, or whether it would cause a reconfiguration of other parts of the project. See Response F61 (p. 148 of the FEIR) regarding the same comment about deferral of mitigation for the detention facility. If an aboveground facility is constructed, it would be located in the location proposed by the applicant (see Figure 13 in the DEIR). It is possible that it may need to be enlarged, depending on the fmal"design calculations; however, the increase would not be substantial and could be' accommodated in the undeveloped area east or west of the proposed pond. It would not be expected to extend into the area proposed for parking. Constructing the pond requires excavation and preparing berms. There would not be any new significant impacts associated with making the pond larger or deeper. If the detention facility is placed underground, a hole would be dug, and the tank buried. Other than these excavation-related impacts, there would be no new impacts from constructing an underground detention tank. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 28 , As a second example of the EIR' s deferring of mitigation measures, the appellant offers the proposed shuttle service to off-site lots. The appellant does not dispute that the EIR adequately describes the shuttle service itself as mitigation, but complains that the EIR does not show that the service would work or that operating the service in a manner that avoids "undue congestion" would avoid secondary impacts. As a preliminary matter, we not that "undue congestion" is not impermissibly vague as suggested by appellant; it is the type of flexible standard commonly and appropriately used in evaluating CUP performance in the traffic context. Moreover, Alternative 7 will not need the service and off-site lot for proposed new events. Alternative 7 limits the number of attendees to a maximum of275 people, and this number can be handled by on-site parking. The off-site parking under Alternative 7 would be required only for HHD services. The existing CUP contains traffic control measures for HHD services. The project includes a proposal to combine the two split services into a single service on Rosh Hashanah and Yom Kippur. It is expected that there may be more congestion getting in and out of the off-site lots with a combined event, but this impact would be offset by the reduction in congestion generated by people coming and going to two events. If the Town conclude~ differently, then the Town has the option to not approve the combined events and require the applicant to maintain the existing split services. . Issue G: The EIR does not consider a reasonable range of alternatives (p. 21) Staff Response: The mc appeal argues that the EIR did not analyze a reasonable range of alternatives, and should have considered off-site locations outside the Town. mc also claims the EIR should have consideted whether CKS' s needs could be met by using another organization's existing facilities or by smaller new construction. At the'May 10, 2006 Planning Commission hearing, Ron Brown of C,KS explained the efforts made by CKS to find alternative facilities, either permanent or for individual events. Mr. Brown subsequently submitted a letter to the Town describing CKS's efforts. F or a number of years, CKS has searched for other locations in Marin to relocate. In addition, CKS has tried to rent other facilities for smgle, large events such as High Holy Days services. There are no feasible off-site alternatives outside the Town; the EIR was therefore not required to analyze such an alternative. The appeal also suggests that the EIR should analyze smaller new construction as an alternative~ The CEQA Guidelines provide that an "EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly a~ most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project." The Draft EIR identified two significant and unavoidable impacts - noise and turnarounds. Both of these impacts are related to the arrival of guests and have nothing to do with the size of the facility. The same is true for most of the potentially significant, but mitigable impacts discussed in the EIR. To the extent that certain impacts relate to the facility itself (for example, hydrological and biological impacts), reducing the size of the facility would result in Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 29 minimal reductions in the impacts, if at all. The EIR, therefore, was not required to analyze an alternative with a smaller facility. Issue H: The FEIR does not evaluate. the impacts of 1) increased membership and 2) use of the project at full capacity (pp. 21-25) Staff Response: . Staff responds as follows: 1. The appellant states that the EIR does not address how the project would increase the congregation size and address the impacts of that increased size. The TNC and others made this same comment on the Draft EIR, and this comment was fully responded to in Master Response 3 (pp. 20-21 of the FEIR). As stated in that master response: It would be speculative to project the Congregation's growth based on the . proposed project. One might argue that the new buildings would enhance the facility thereby increasing the Congregation's membership, or one could argue that the number of people participating in services and functions is based on the strength of the rabbis, the Congregation's leadership, and/or the Congregation itself. It would be speculativefor the EIRpreparers to determine to what degree either of these points of view is correct. In addition, the membership has been declining since 1998. Based on the past seven years, one could project a declining Congregation membership. More importantly, the EIR assesses the impacts of the proposed project which is to add new facilities and allow expanded uses of the site in those new facilities. The number of overall Congregation members does not affect the analysis. Rather, it is the number of new events held on the site and how many people attend those events. The number of new events and people accessing the site for such events are what will result in environmental impacts, not the size of the overall Congregation membership. The Conditional Use Permit (CUP), if approved, would establish caps (or limits) on how many events can occur on any given day and how many people can be on the site during these events. These caps are not part of the existing CUP. The appellant has not provided any new or additional information that would require revision of this master response. 2. The appellant notes that the EIR did not adequately address growth-inducing impacts. This is incorrect. As the appellant cites, the DEIR did assess growth-inducing impacts on pages 139-140 of the DEIR. The appellant confuses a discussion ofa possible future increase in congregation size with the proposed project. As stated on page 140 of the DEIR, such growth is speculative and would not alter the allowable number of events or maximum attendance at those events. If future growth were to occur and if the applicant sought to amend the CUP, then those additional impacts cit~d by the appellant would need to be addressed in the CEQA review of that application. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 30 3. The appellant states that the EIR assumes the Town can regulate the growth of the Kol Shofar membership, and that the Town is unlikely to effectively regulate future use of the facility. The appellant is incorrect. The EIR makes no assumption that the Town has the ability to regulate the membership of a religious organization. In fact, the Town does not have this l~gal ability. The appellant is equally incorrect in stating that the Town does not have the ability to regulate uses of the facility. This is the entire point of the proposed CUP, complete with EIR-recommended mitigations: to set limits on the numbers of events, the hours of those events, and the maximum number of attendees attending those events. This is, in fact, the very regulation the appellant states is unlikely. Any future proposal to r~vise the CUP conditions would need to undergo additional CEQA and public review. Given the review process for the proposed project, it is expected that any request to revise the conditions would be thoroughly assessed and discussed prior to any action on the proposed revision. 4. The appellant states that the EIR preparers ignored requests for information on the growth of the congregation membership. This is incorrect. Information available to the EIR preparers was presented on pages 126-127 of the DEIR and in Master'Response 3 (pp. 20-21 of the FEIR). The EIR preparers requested any additional information the applicants might have about the years 1986-1995. The applicants responded that they did not have that information. 5. The appellant states that the EIR is argumentative in noting that the congregation size has declined over the past seven years while ignoring its increase over the previous 13 years. However, the EIR does .not dispute the historic growth in Congregation membership; noting the decline in more recent years is not argumentative where required to present an accurate project background. The EIR preparers do not understand why presenting this fact is argumentative. The appellant requests that the EIR project some unknown increase in congregation size based on growth that occurred between 1985 and 1998 and ignore a stable (even slightly declining) congregation size over the past 8 years. Typically, population projections rely more heavily on more recent trends as opposed to historic trends. As was stated in Master Response 3, there is no basis for projecting additional congregation .growth, and to do so would be speculative. More important is the fact, as stated in Master Response 3 and several other responses in the FEIR, that the size of the congregation is not the issue, rather it is the amount of use allowed at the existing and proposed facilities. TIris use would not change whether the congregation. grows or shrinks, unless the applicant SQught a further revision of the CUP. As explained above, this would require additional CEQA review and public discussion. 6. The appellant states that approval of the project makes it extremely likely that the congregation will grow. This opinion is noted for the record, but the appellant provides no evidence to support this opinion. Again, it ignores the fact that the size of the congregation is not the issue at hand. 7. The appellant cites CEQA regarding the requirements for not assessing speculative impacts. Contrary to what the appellant states, this EIR contains numerous Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 31 ' discussions about the issue of congregation growth. See pages 16 and 139...:140 in the DEIR, Master Response land Responses E7 (p. 86 of the FEIR), F19-F20 (p. 134 of the FEIR), and WI (p. 300 of the FEIR), in addition to responses .above. The EIR preparers continue to believe that it would be speculative and unsupported to state that the congregation would grow. by some unknown percentage (the appellant has not provided an estimate of what he believes the growth rate should be).' Finally, once again, it would not matter if a population increase was projected. Given the caps assessed in the EIR, an increased population would Dot add new people to events, it would not cause increased traffic to events, it would not cause ,additional noise, and it would not cause any new or more significant impacts than assessed in the EIR. 8. The TNC appeal assumes growth in the congregation membership and that this growth would then result in pressure to increase usage of the facilities, and that CEQA requires analysis of foreseeable growth in usage. As stated above, there are no grounds for assuming a growth in congregation size and, thus, it is equally speculative whether such growth would result in a future request to revise the CUP. The EIR d~es address these speculative impacts on page 140 of the DEIR. Further analysis would'not be possible without some idea of what form this increased usage would take, and it is currently speculative if there would be a request to revise the CUP, and if there were, what that request would be (e.g., more events, longer hours, more people allowed to attend, etc.). The appellant goes on to discuss the ramifications of what he defmes as foreseeable growth. The EIR preparers. disagree that this growth is foreseeable as that word is defined by CEQA. 9. The appellant notes that the' limits on event attendance do not apply to existing Saturday and Sunday morning services. This is correct because these are existing services and not new servic~s proposed by the applicant. Currently, the CUP does not place any restrictions on how many people can attend these services. The proposed project does establish caps of 400 attendees at these services, which is the current maximum attendance. This would remain the maximum attendance at these services even if the congregation were to increase. If the project is not approved, then there would be no cap on the services under the existing CUP. 10. The appellant reiterates the need to discuss the impacts of a future expanded congregation and not "hide" the analysis under the reliance on attendance caps. First, this use of proposed restrictions (or "caps") as the project description was the direction provided to the EIR prepares by the Town upon initiation of the EIR process. Second, it is not clear why assessing impacts based on the proposed caps hides the impacts. The impacts are clearly described and would not change if the congregation population increased. The impacts would only change if the caps were changed, and, as noted several times previously, it is currently speculative that such a revision would be requested and what that revision would be. If and when such a revision is proposed, then a CEQA analysis of that exact revision could be performed. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 32 .11. The appellant concludes that the EIR does not provide information about the ultimate project impacts. The EIRpreparers disagree with the appellant as described in the previous responses. Issue I: The FEIR Responses to Comments are inadequate (pp. 25-26) Staff Response: The' appellant states that the EIR lacks accountability, and gives one example to corroborate this claim. The example is that in Response F3 (p. 131 of the FEIR) that the EIR preparers do not provide the final conditions that would be included in the CUP that the Town would approve if it approved the project. This issue has already been responded to above. The CUP would include the project as proposed (Alternative 7) complete with the EIR-recommended mitigations. The Town may substitute mitigation measures or delete measures it feels are not needed or not feasible. That is why it was stated that the EIR preparers are unable to specify what the fmal conditions the Town will approve are. The EIR clearly identifies a proposed project and assesses the impacts of that project. ,The mitigations required to mitigate impacts would become conditions of approval, except as modified by the Town as describe9 above. Contrary to the appellant's opinion, the EIR fully meets CEQA requirements regarding responses to comments. Issue J: Additional information submitted after the release of the DEIR requires that the EIR be recirculated (pp. 26-33) Staff Response: The ruc argues in its appeal that the additional information added to the Final EIR - the Appendix discussing Alternative 7 - requires recirculation. Only if a lead agency adds "significant new information" to an EIR subsequent to the commencement of public review and interagency consultation but prior to fmal EIR certification, must the agency "recirculate" a revised EIR, or portions thereof, for additional commentary and consultation. New information added to an EIR is not 'significant' unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project's proponents have declined to implement The courts have clarified the "significant new information" standard, holding that recirculation is only required when new information was added to an EIR that changed it in such way that the public was deprived of meaningful comment on a new adverse environmentfll effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that project proponents have declined to implement. The court reasoned that by codifying the "significant new information" language, the Legislature did not intend to promote endless rounds of revision and recirculation of EIRs. Instead, recirculation was intended to be an exception, rather than the general rule. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 33 CEQA Guidelines section 15088.5 governs the practical application of the recirculation standard. For example, recirculation is required when "a new significant environmental impact would result from the project." (CEQA Guidelines, S 15088.5, subd. (a)(l).) This . . section is particularly relevant here, because Alternative 7 is a new alternative that proposes to reduce the potential impacts associated with the project as compared to the project initially proposed. Specifically, Alternative 7 is the same as the proposed Project but with limits on the number of new events and a revised circulation plan. (FEIR, p. 3.) Proposed changes to the project are not a basis for recirculating an EIR if they will only reduce impacts, (See Remy et. al., Guide to the California Environmental Quality Act (10th ed. 1999) pp. 304-305.) In other words, where a new alternative is similar to one already outlined in an EIR, the time and expense associated with recirculation would not be justified. Here, Alternative 7 is not a significant change to the Project. Indeed, Alternative 7 is the same as the proposed Project with two simple modifications: (1) the number of Saturday and Sunday evening events is substantially reduced from what was originaiIy proposed, and attendance at those events would be limited; and (2) the circulation plan is revised to more closely reflect the existing circulation pattern. Furthermore, the public has had ample time to review Alternative 7 and provide comments. In fact, an entire Planning Commission hearing (May 10, 2006) was devoted specifically to comments on Alternative 7. CEQA is clear that an EIR should, be recirculated only when substantial changes in a project would result in a new sigiUficant adverse impact or a substantial increase in the severity of a previously identified significant impact. (pub. Resources Code, S 21092.1; CEQA Guidelines, S 15088~5.) The CEQA process is meant to prompt project changes that benefit the environment. APPEAL #3: Greenwood Beach Homeowners Association (1 page) Issue #1: the CUP The EIR does not analyze how a parking deficit is to be managed in Staff Response: The Greenwood Beach Home Owners Association appeal asserts that although the' EIR acknowledged a parking deficit would be created by CKS upon implementation of the Conditional Use Permit (CUP) amended to allow construction of the Multi-purpose room four new classrooms and facility remodel, the EIR was silent on how the parking deficit will be discharged except for casual reference to use of off site parking. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 34 The HOA also asserts that the EIR fails to define where or what duration such deficit parking is to be provided, and the Tiburon Code outlines specific, deliberate requirements on how a deficit parking is to be provided. Accordingly, the HOA asserts that "The failure to comply with these requirements renders the EIR incomplete and defective, and consequently, the application of CKS for a Conditional Use Permit is unsupported by the required documentary foundation, and is itself incomplete and defective." First, the need for off-site parking is an existing condition, occurring mostly as worshippers attend services on the High Holy Days. Construction of the Multi-purpose room will not increase the need fo~ off-site parking. In fact, proposed mitigation measures and conditions for the CUP amendment would limit attendance at new events to a degree that all parking could be accommodated on site. The Kol Shofar application seeks amendment of the existing CUP to allow new classrooms and a Multi-purpose room addition to house activities with populations that already occur on the properly. The existing use permit, starting with the Town CUP approval in 1997 and contained in Appendix F of the DEIR, disclose that on-site parking deficits exist for the existing, activities at Kol Shofar. Condition 9 of Resolution 97-17 requires that.a shuttle program be in place and imple~ented for the High Holy Days. The CUP as amended would not change this requirement. The Westminster Presbyterian Church parking lot at the comer of Tiburon Boulevard and Blackfield Drive has been a designated off site parking location known to the Town and used by Kol Shofar for many years. Condition 12 of Resolution 97-17 requires Kol Shofar to coordinate with Town Police when an event results in "heavy use" of the property and on-stree~ parking results. It is specifically noted on-street parking on Via Los Altos and Vista Tiburon Drive is expected and accepted as meeting overflow parking needs on occasion. Additionally, in 2004 the Town Planning Commission amended the CUP conditions (See DEIR Appendix F - Resolution 2004-10 - Condition #24) requiring that "major event" (defined as non-high holy day events exceeding 400 persons and including barlbat mitzvahs and Sabbath services) traffic control include regulation of parking on Reedland Woods Way. Clearly the DEIR provides, by inclusion of existing CUP"s, deliberate disclosure of previous and current requirements for Kol Shofar to meet sporadic event deficit parking. Secondly, on pages 64-68, the DEIR discloses that a parking deficit would continue to result upon implementation of the CUP as amended. On page 65 and in Table 5, the DEIR very clearly defines what duration such deficit parking would occur and where deficit off site parking will occur. DEIR page 67, second paragraph states "For events where there is inadequate on-site parking or where on-site parking appears full, people accessing the site will park on adjacent public streets." Then the DEIR goes on to name the public streets, Via Los Altos and Blackfield Drive. Thirdly, the DEIR outlines very specifically on page 67 "Mitigation Measures" to ensure that people attending project events can park on-site and avoid deficit parking. Mitigation measure one states the following: Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 35 1. Do not allow more than 275 people on the site for any function or combination of functions. OR 2. Require valet parking for all times when there are more than 275 people on the site up to a maximum of 360 people. Events more than 360 people would require a shuttle service to and from Town -approved remote lots. The DEIR further notes (See page 68), very specifically where on-street parking could be used to accommodate deficit parking. Accordingly, the DEIR did not fail to comply with the CEQA requirements to disclose that deficit parking may be a result of the project approval. Additionally, the EIR makes very clear, when and where and how much, additional off-site parking would be needed. Finally, the EIR offers very specific mitigations for how to manage deficit parking and what specific public streets, , immediately adjacent to the project site, could provide deficit parking and how much parking exists. Finally, although the EIR does not specifically identify 'remote parking lots that could be used in conjunction with a shuttle program, it does note that Town- approved remote lots could meet Kol Shofar deficit parking demand. One clear alternative remote lot, Westminster Presbyterian Church, is currently used by Kol Shofar and this practice is known to the Town. The EIR does not leave to speculation the identification of where deficit parking will be located. The EIR identifies use of valet p.arking on-site (using the proposed on-site parking lots more intensively than. strictly specified in Town code). The EIR notes that surrounding public streets in the immediate neighborhood can accommodate occasional deficit parking. Finally, the EIR makes it clear that a shuttle service can be used in conjunction with remote parking lot use when large events are planned. Kol Shofar currently makes use of the Westminster Presbyterian Church site for an off-site parking/shuttle. Response to Appeals of Planning Commission Decisions on Kol Shofar, 9/6/2006 36 EXHIBIT z: Final EIR for the Congregation Kol Shofar Conditional Use Permit Application: Alternative 7 Analysis April 18, 2006 Prepared for: . Town of Tiburon 1505 Tiburon Boulevard Tiburon, California 94920 Prepared by: Leonard Charles and Associates 7 Roble Court S~n Anselmo, California 94960 415.454.4575 EXHIBIT NO._ . E The Town has prepared a Final EI R for the proposed Congregation Kol Shofar Conditional Use Permit application (tithe project").> Subsequent .to release of the Final EIR, but prior to any certification hearing, the applicant submitted a letter/report and two additional technical reports that requested that the EIR preparers revisit two impact analyses and' consider a modification of Alternative 6 that was assessed in the Final EIR. In addition, the Town has requested a review of a mitigation change that Town staff has recommended. This. Final EIR: Alternative 7 Analysis responds to those technical reports and Town-recommended changes. 1. Proposed Alternative 7 In commenting on the Draft EIR, the applicant suggested modifications of Alternative 5 (the Restricted Use Alternative in the Draft EIR). The Final EIR assessed these suggested changes as the new Alternative 6 in Master Response 1 (see pages 3 to 5 of the Final EIR)., The original project proposal included a maximum of 40 Saturday evening events and 35 Sunday events. Alternative 6 addressed in the Final EIR .reduced the proposed events to a maximum of 27 Saturday and 20 Sunday events. In . all cases, a 'maximum of 275 people would be allowed to attend these events. The applicant has now' suggested additional changes. to Alternative 6. 'The additional modifications, called Alternative 7, would include the following new weekend evening events: Alternative 7 Proposed New Weekend Events 4 4 4 .m. Ius cleanu Maximum Allowed Attendance 250 200 150 3 5 4 3 .m. Ius cleanu Maximum Allowed Attendance 250 .200 150 100 Total 12 150-250 15 100-250 The principal objective of Alternative 7 is to reduce the level and amount of new nighttime noise caused by people arriving at and leaving the site to attend these new events. The Draft EIR determined that this new nighttime noise would be a significant and unavoidable impact on residents of. up to 20 nearby residences. The applicant's proposed Alternative 6, addressed in the Final EI R (see Master Response 1). would reduce this nighttime noise impact. However, the Final EIR concluded that the reduction in noise from that alternative was not sufficient to reduce the impact to a less than significant level. The EIR noise consultant (Illingworth & Rodkin, Inc.) reviewed Alternative 7 to determine whether the reduction in events, hours, and attendees would be sufficient to reduce the noise impact to a less than significant level. The noise consultant's report is attached at the end of this report. The following summarizes the conclusions of that analysis. .~;~f f\j.~ Ii .(,~ 1 The original Restricted Use Alternative (Alternative 5) analyzed in the Draft EIR included restricting new events, to every other Saturday and Sunday evening and required events to end by 9:00 p.m. (up to approximately 50 new events per year). The new Alternative 7. would allow up to 27 Saturday and Sunday event nights per year. The new proposed . events schedule; with up to 27 additional event nights per year, would generate significantly less noise than Alternative 5. Accordingly, the applicant would hold an increased number of evening events, but fewer weekend events (12 Saturday events and 15 Sunday events) than contemplated in Alternative 5.. The. new nighttime noise would also be less than for Alternative 5 because the maximum' number of attendees 'would be significantly reduced. Alternative 5 would have allowed up to 275 people for a' maximum of 75 events. At a rate of an average of 2 people per vehicle, this would total about 10,300 vehicles, or 20,600 trips (a vehicle arriving then leaving the site). In comparison, the new modification would result in a total of 2,375 vehicles or 4,750 trips. Alternative 5 restricted new Saturday and Sunday night events to every other weekend (i.e., every other weekend would have no Saturday or Sunday night events). The new modification would allow a maximum of 27 new events, which would be approximately one every other weekend .(assuming that there were no weekends where there was both a Saturday and a Sunday night event; in .that case, there would be additipnal weekends .where there would be no new.event). Alternative 7 achieves the goal of'keeping one- half of the weekends event-free. Alternative 5 required that all new weekend events end by 9:00 p.m., while Alternative 7 would allow the 12 new Saturday events to last until 11 :00 p.m. The reductions in the number of events and the number of people coming to and going from. these events would offset the fact that 12 events would last 2 hours longer than allowed in the original alt~mative~ 1 This new modification would generate less new nighttime noise affecting nearby residents than Alternative 5. As such, Alternative 7 would also result in a less than significant noise impact. Other Impacts By reducing the number of events and the maximum number of people that would attend . the new events, the. alternative reduces parking and traffic impacts. The alternative also reduces the hours of lighting, thereby reducing lighting impacts. Conclusion Alternative 7 would include approximately the same or more restrictions as Alternative 5 analyzed in the Draft EI R. Alternative 7 would reduce the nighttime noise impact to a less than significant level,. which is the same conclusion reached for Alternative 5 in the Draft EI R. 1 The differences between the alternative assessed in the Draft EIR and this most recent modification are so small that it is difficult to conclude whether they are precisely equivalent. The EIR noise consultants have concluded that the reduction in the number of events, the hours on Sunday evening, and the number of attendees outweighs the fact that for 12 events, the hours. would be 2 hours longer than assumed in the original alternative. 2 2. Traffic The applicant's traffic. engineer (Robert L. Harrison Transportation Planning and Project Management) has submitted ~ Memorandum titled Requirement for the project to fund a 150-foot extension of the eastbound left turn lane at the intersection of Tiburon Boulevard withBlackfield Drive (dated March 17, 2006); this Memo is attached in the back of this report.' The analysis used a different software program (Le., TRAFFIX software) for assessing impacts than was used' in the applicant's original traffic analysis (that used the Highway Capacity Software, or HCS). Based on the TRAFFIX software, the applicant's traffic engineer concludes that the eastbound left-turn lane on Tiburon Boulevard at the Blackfield Drive intersection has adequate, queuing capacity to serve future conditions, including conditions with project-generated traffic added. The EIR traffic engineer (the Crane Transportation Group) reviewed this analysis. Their rev!ew'is also 'attached at the end of this report. To summarize the findings of this review: ' · Both software programs. are used by the traffic engineering profession. Assessing the, intersection's operations using the different software programs provides divergent results. One software program is not preferred over the other. The Town used the TRAFFIX software for predicting future conditions when preparing its new General Plan. The TRAFFIX software does not require as detailed input as the HCS software, and,. is, thus, easier to use. , · Using the HCS software, there would be inadequate queuing capacity in the left-turn lane during weekend p.m. hours of peak project trip generation both for the n~xisting plus 'project" condition 'and the .cumulative base case plus project" condition. · USing the' TRAFFIX software, there would be adequate queuing capacity for the "existing plus project" condition. For the "cumulative base case plus project" condition, there would b,e inadequate capacity (by two vehicle lengths) if the overall level of service at the intersection is to be maintained at LOS C. · The applicanfs traffic engineer has stated t,hat the additional two vehicle capacity that would be needed under the cumulative condition with the level of service remaining at LOS C is met by the "bay taper" (Le., an unstriped area that allows drivers to decelerate' and enter the striped left-turn lane). However, the EIR traffic engineers reply that Caltrans typically does not allow this unstriped bay taper to be counted as part of the queuing capacity for left-turn lanes. · The EI R traffic engineers conclude that the applicant will need to provide all these data to Caltrans. Caltrans will need to determine which software program queuing and level of service results they wish to utilize.Caltranswould then determine the feasibility and need for left-turn lane lengthening and/or changing signal phasing and when such changes would be required. Based on the Caltrans review (which would occur at the final design phase of the project), the impact might be less than significant with no mitigation required or potentially significant with lane lengthening and/or changing the signal phase required to reduce the impact to a less than significant leveL Caltrans might find that the TRAFFIX software conclusions are acceptable and determine that, at most, lane lengthening 3 would only be needed for the cumulative condition. In that case, the applicant would be responsible for a fair share of that future. lane lengthening. Providing these data to Caltrans to' allow. them to make the final decision on. needed improvements to the State highway is the same conclusion and recommendation reached ih the discussion of this left-turn lane in the Final EIR (see Master Response 6F on pages 28-30 of the Final EIR). Implementation of any improvements required by Caltrans would be the responsibility ofCaltrans and the applicant. Effects of Alternative' 7 Monitoring Recognizing that using different software provides different. results with divergent mitigation needs, the Town may elect to monitor the intersection during these future weekend events to determine actual queuing in the left-turn lane. To determine the need for improvements given the It existing plus project" condition, the Town could monitor up to ten events over the first year of operation, monitoring events during different seasons. This assumes that Caltrans, after reviewing all the environmental data, approves monitoring rather than immediate lengthening of the lane or changing the signal phasing. A letter sent by Caltrans subsequent to circulation of the Final EIR states that lengthening the left-turn lane must be completed prior to use of the new multi-purpose room (this letter is attached to the back of this report), so Caltrans would need to approve this alternate mitigation of conducting monitoring (or it. can accept the TRAFFIX sQftware conclusions and not require lengthening or monitoring). Monitoring results would be shared with Caltrans. FoUowing a review of the monitoring results, the Town and Caltrans would determine the need for lane lengthening and/or changing the signal phasing. The applicant would be responsible for the costs of the monitoring. The applicant would post a bond or some other form of financial assurance acceptable to' the Town and Caltrans to fund lane lengthening and/or changing the signal phasing. 4 If the first yea( monitoring showed that there was adequate queuing capacity in the left- turn lane, the Town would not require any immediate improvements. . How.ever, the Town would have to continue monitoring until such time as th~ Town determined that buildout of the planning ~rea was essentially complete in order to determine whether lane lengthening would be needed as 'part of the cumulative impact condition. The Town should perform this long-term monitoring periodically'on a.schedule determined by the Town staff (with Caltraris input), with the applicant. funding the cost of the traffic monitoring (which is the cost of an observer watching the left turn lane during the peak hour before and after the monitored event, noting the times when there was'inadequate capacity and how many vehicles Were stacked outside the striped left-turn lane, and reporting the results to the Town).. Again, \ the applicant would need to provide the appropriate financial assurance to the Town that improvements would be constructed when warranted, as determined by. Caltrans. 3. . Noise The Final EI R concluded that proposed hew weekend evening events would have significant and unavoidable noise impacts on residents of up to 20 residences located near the site.' The applicant has submitted a letter from the applicant's noise consultants (Charles M. Salter Associates, Inc., dated April 6, 2006). The letter questions the methodOlogy used to establish the significance of the noise impact. As discussed previously, the.EIR noise consultants have concluded that. the new proposed Alternative 7 would reduce the noise impact from new nighttime events to a less. than . significant level. The following responds to the specific issues raised in the Salter letter. 1. The comment states that the Town of Tiburon has used an annualized Ldn (24- hour average) noise metric on previous projects~ The Ldn metric ,does not capture the relatively short.;term noise impacts described in the EIR.. While these short-term noise impacts generated by people coming from and leaving nighttime events may not endure long enough or be loud enough to cause significant. changes in an average day-night noise metric, this does not mean they are not a substantial impact to people living in the area. . The CEQA Guidelines state that a noise impact may be considered significant when there is A substantial temporary or periodic increase, in ambient noise levels in the project vicinity above levels existing without the project. As described in the EtR, the project would cause noise levels to periodically (Le., when people were coming to and leaving the site during new nighttime events) by 6-10 decibels (dBA). This periodic noise increase would be substantial given the quiet residential neighborhood, the large number of events originally proposed by the applicant, and the time of night when the events would end. The impact was considered significant. 2. This comment accurately describes the EIR conclusions. 3. The comment states that the EIR does not specify the time that the noise increase occurs, and further states that the noise impact is n,ot significant because the annualized Ldn would increase by less than 1 dBA. As stated in Response 1 above, the periodic noise increase is considered significant. The new proposed events would cause periodic noise impacts for approximately one hour up to 75 days a year, including 35 days where the noise would occur at 11 :00 p.m. or later (du'e to clean-up) when the ambient noise environment in the 5 residential neighborhood is. very quiet. On these bases, the EIR preparers continue to conclude that the project would have a significant periodic noise impact on certain residents living near the, site. 4. The comment is that the EIR .does not consider a reduction in the number of nighttime events as adequate mitigation for the noise impact. As described on page 45 of the Final E.I R, the reduction in the number of events; the hours when such ev~nts could occur, and the people attending the ,events was considered a substantial change in the project' These changes were assessed as a, project alternative. See the discussion above regarding Alternative 7 where the EI R acoustic consultants conclude that these reductions in events and other reductions would red~ce the noise impact to a less than significant level. 5.' . The comment states that. requiring proposed new events to end by 9:00 p.m~ is arbitrary. The EIR preparers selected the hour of 9:00 p.m. due to the quiet. residential character of the area. The applicant has likewise proposed restricting . events to this hour except for the 12 new Saturday night events. The. applicant . proposes to allow these events to occur until 11 :00 p.m. The EIR noise consultants have concluded that the 11 :00 PM ending time for these 12 events would still achieve a less than significant impact given the other reductions encompassed in Alternative 7. 4. . On-site Circulation Change . The applicant has modified the on-site vehicle circulation to maintain existing conditions, which include parking lot ingress orlly from Via Los Altos and egress via Reedland Woods Way. This change would reduce traffic congestion on Reedland Woods Way and at the Reedland Woods Way/Blackfield Drive intersection. While this change is not needed to reduce any impact to a less than significant level, it would reduce the amount of activity and congestion on Reedland Woods Way. The additional traffic that would use Via Los Altos to access the parking lot driveway would not substantially affect the Via Los Altos/Blackfield Driye intersection. This intersection currently operates at level of Service A, and would continue to operate at that level of service with the added traffic generated by new events. While reducing congestion on Reedland Woods Way, this change would not reduce the traffic safety impact resulting from turnarounds on residential streets to a less than significant level. In fact, because drivers will be unable to access the parking lot from Reedland Woods Way, drivers who are unfamiliar with the parking lot circulation pattern may turn onto Reedland Woods Way, discover they cannot enter the parking lot from this street, and then make a u-turn to return to Blackfield Drive. Other drivers whose intent was to drop someone off at the site may decide to turn onto Reedland Woods Way and drop their passengers off at the sidewalk rather than have to negotiate driving through the parking lot; these drivers would also make a u-turn on Reedland Woods Way. Other mitigations (see below) would be required to address the traffic safety impact of people turning around on residential streets. { I., 5. Parking Receipt Mitigation Change T own staff has recommended revision of Mitigation Measure 3.3-C.3 that was recommended in the Final EIR to reduce the traffic safety impact of people turning 6 around on residential streets to a less than significant level. Upon further review, Town staff considers such a program unwieldy (Le., difficult to manage and monitor). The site will contain sufficient. on-site parking for proposed new events. As described previously in this report, under Alternative 7, new events will be limited to 250 people, and even this number will be allowed only 7 times a year. Town staff has recommended the following alternate mitigation: ' , . . 1. For all 27 new Saturday and Sunday' evening events, Kol. Shofar. shall, place signs along its frontage on Via Los Altos, Blackfield Drive, and Reedland Woods Way stating that people attending events at Kol Shofar need to park on-site and not on residential streets. . 2. Kol Shofar shall require that all invitations and notifications of these new weekend events include a note informing 'people they are to park on the site and not to park on residential streets. 3; The Town shall monitor, at the applicant's expense, up to 4 events the first year after project completion to determine whether people are parking on the street during these new events. If Town staff determines that people are continuing to park on the street during these. events, then the parking rec,eipt program described in the Final EIR will be required. If the Town determines that all or all but one 'or two cars are parking on-site, then monitoring will continue up to two events per year thereafter. If that subsequent monitoring indicates non- compliance, then the applicant will be so informed and additional monitoring (to a level the Town deems necessary) shall be conducted. If the Town determines there is noncompliance, then the parking receipt program or an equivalent program identified by the Town' will be instituted. The applicant shall bear the. costs of all monitoring. . ' This modified mitigation would' be sufficient to reduce the traffic safety impact of people turning around in residential neighborhoods to a less than significant level. Alternative 7 further limits the number of people attending new events, thereby ensuring that there is adequate on-site parking. The signage and information programs should be sufficient to essentially eliminate on-street parking at new events. And, if it proves that these featu,res are not adequate, then the originally recommended parking receipt program Will be required. 6. Conclusions · Alternative 7 would reduce the significant nighttime noise impact to a less than significant level. This alternative would be environmentally superior to the proposed project. · Consistent with the recommendations of the EIR, Caltrans will be provided all data relative to the left-turn lane on Tiburon Boulevard at the Blackfield Drive intersection. Caltrans will determine whether improvements are needed at this intersection or whether monitoring of the intersection is warranted. The Town will need to ensure that the applicant is fiscally responsible for all monitoring and its fair share of intersection improvements. 7 · The proposed change to the on-site circulation system will not result in any new or more severe environmental impacts, and wilf reduce off-site impacts. · The Town-requested change to the parking receipt mitigation . measure (Measure 3~3-C.3) would provide equivalent mitigation to the original mitigation. Again, if it is shown that the modified mitigation does not work, then the originally recommended parking receipt program or an equivalent program will be required. 7. EIRRecirculation The CEQA Guidelines require an EI R to be recirculated for additional public review and comment if any' one of four conditions is met, as listed below: . 1. When new information shows a new, substantial impact resulting either from the project or from a mitigation measure.. The new information discussed in this analysis would not result in a new impact. Rather, the information indicates how impacts already described in the EIR could be further addressed ~nd reduced. 2. When the new information shows a substantial increase in the severity of an environmental impact. The information contained in this analysis would not result in a substantial increase in severity of any environmental impact. 3. When the new' info'rmation shows a feasible alternative or mitigation measure which is considerably different from those considered in the EIR and that the new alternative or mitigation would clearly reduce the environmental impacts of the project and that the project proponent declines to adopt it. This is not the case for the new information provided. in this analysis. . In fact, applicant has proposed the modification to Alternative 5, which would reduce noise and other impacts. 4. When the EIR is so fundamentally and basically inadequate and conclusory in nature that public' comment on the EtR was essentially meaningless. The EIR preparers believe that the EI R provided a comprehensive accounting of potential impacts, mitigation measures, and project alternatives. The public was afforded ample opportunities 'to provide comment on the EIR. The EIR preparers do not believe that the EIR needs to be recirculated given the new information contained in this analysis. 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EXHIBIT F ~ Scott Anderson ---0- - --- From: KNygrel 1 Sent: Monday, June 26, 2006 1 :04 PM To: Paul Smith (External); Vice Mayor, Tom Gram Cc: Scott Anderson Subject: Kosher Kitchen research Tom and Paul, As per our discussion at our last meeting I did some research about the need for two separate kosher kitchens. Please see the attached regarding our "Kosher Kitchen" Research. As you had mentioned Kol Shofar is insisting that they need two separate kitchens. This is what I have found out by calling the various Conservative Congregations in the Bay Area. and also doing some on line research. I have also attached, for your information, the previous research shared with you regarding High Holy Day services and how they are handled in the Bay Area. Karen EXHIBIT NO. 7/10/2006 F Conservative Con2re2ations of San Francisco Bav Area Hi2h Holidav Service Information It appears from the following information that there is a random pattern of one or two High Holy Day services. It is NOT a given. Also, the size of the congregations varies. Some are able to accommodate their full membership on the High Holy Days by expanding into their adjacent social hall. Most have significantly smaller congregations then that ofKol Shofar, Also, several do hold services at off site facilities for the High Holy Days to accommodate the larger number of attendees for these 2 days. One shares the parking lot of the adjacent church to accommodate cars. Beth David~ 19700 Prospect Rd., Saratoga, CA 95070, (408) 257-3338 This past year they held 2 separate High Holy Day services, On the first night there was a 6 PM and later an 8 PM service. They are able to accommodate ,1,000 people between the sanctuary which holds about 250 - 300 people and adjacent social hall. They said that these split services were not full, During the following day service they held a less formal ceremony in the adjacent Ascension Church gymnasium, which holds 400, plus they hold separate youth serVices as well as more formal service in the sanctuary. They share the parkirig lot with the adjacent church for their services. Congregation B'nai Shalom~ 74 Eckley Lane, Walnut Creek, 94959, (925) 934-9446 They hold two separate High Holy Day services, One is traditional and the other is contemporary. These are held in two different locations. They have around 380 to 400 family members. Temple Beth Abraham. 327 MacArthur Blvd, Oakland, (510) 832-0936 They hold one all High Holy Day service with a total seating between sanctuary and adjacent social hall of 740, They have 370 family members Temple Beth Shalom, 642 Dolores Ave, San Leandro, 94577, (510) 357-8505 They hold one High Holy Day service, They extend their sanctuary into their social hall. The sanctuary holds about 150 people and when extended into social hall they hold about 250 people, Beth Jacobs, 1550 Alameda de las Pulgas, Redwood City, CA 94061, (650) 366-8481 They hold one High Holy Day service, The sanctuary opens into the social hall, The woman I talked to was not sure of the exact numbers and suggested I call back to confirm, but she thought the sanctuary held about 200 people and that when expanded into the social hall it was about 400, Kosher Kitchen facilities in Bay Area Conservative Synagogues - There are no Conservative Synagogues we are aware of in the Bay Area that have two kitchens. All have only one kitchen, which is kosher, Our research has shown there are a few congregations around the United States that do have two kitchens, but these are usually associated with facilities that hold large parties, Two kitchens are not the norm for Conservative Synagogues, The following is what is available in the Bay Area regarding kitchens related to Congregations with adjacent social halls, Beth David. Saratoga. Has only one kosher kitchen and a social hall that seats at tables about 250 if you include tbe stage, They allow dairy and fish at one meal, or meat at a different meal. One can not serve both at the same meal. They have two separate sets of dishes in the one kitchen. . Temple Beth Abraham. Oakland. Has only one kosher kitchen for their social hall which can seat banquet style about 200. They have separate sets of plates in the one kitchen and one must follow the koshered rules in using their kitchen. One can have a meal of either meat and fish or a meal of dairy and fish. Congregation B 'nai Shalom. Walnut Creek. Has only one kosher kitchen for a social hall that can seat 270 without a buffet. They serve only dairy and fish. If one wants meat, they do have.on occasion a barbeque outside on Fridays. Beth Jacobs. Redwood City. Has only one kosher kitchen and the social hall seats banquet style about 140. They have training for their congregants to use the kitchen, but highly recommend one' uses specific catering companies that know the koshered rules and can do the cooking in their kitchen. They are happy to give one the name of the approved caterers. They allow dairy and fish, They also allow kosher chicken, but following their koshered rules and using separate plates, They have several sets of dishes in the one kitchen. They don't cook on the Sabbath (Friday). If one wants food on the Sabbath, they suggest it be caterer and brought in and it's usually cold. Temple Beth Shalom. San Leandro has a social hall that seats at ~ables 150. They have one kosher kitchen where they serve dairy or fish. Anyone using the kitchen needs to follow the "koshered root laws". They do occasionally serve meat, but it needs to be kosher and on different plates, COngregation Netivot Shalom. Berkelev. Has only one kosher kitchen for their social hall which can seat about 110, They serve only dairy and fish, No meat is allowed. EXHIBIT G Meeting Announcement and Procedure Kol Shofar Conditional Use Permit Appeal Hearing October 24, 2006 7:00 PM Bel Aire Elementary School Multi-Purpose Room 277 Karen Way, Tiburon, California To: From: Date: Interested Parties Scott Anderson, Director of Community Development September 29, 2006 The Mayor of Tiburon has requested that I send you a memo outlining the procedure that he intends to follow at the hearing on October 24, 2006. The item involves three appeals of the certification of the EIR for the project, as well as the Kol Shofar appeal of the project's denial by the Planning Commission. >- The Kol Shofar item will be introduced by the Mayor and Town Staff will make its report. Staff will respond to questions from the Council. ~ Kol Shofar will present first and will be allowed up to 45 minutes (less would be appreciated). ~ The Tiburon Neighborhood Coalition will present next and will be allotted no less than the same amount of time used by Kol Shofar. ~ The Greenwood Beach Homeowners Association will present next and will be allotted an appropriate amount of time to present its appeal to the Council. ~ Members of the public will be allowed to address the Council for up to 3 minutes each. Speaker cards will be used. ~ A rebuttal time of up to 15 minutes will be allocated to each appellant. ~ The Town Council will close the public hearing. ~ Due to the likely lateness of the hour, the Council will continue the item to November 15, 2006, at which meeting it will receive the report of its ad-hoc sub-committee and begin deliberations. EXHIBIT NO.~ Scott Anderson Community Development Director Town of TiburoD 1505 Tiburon Boulevard Tiburon, California 94920 15) ~ (G ~ ~ ~ ~ ~)I ~ ,AUG 242006 ~I PLANNING DIVISION TOWN OF TIBURON August 22, 2006 Dear Mr. Anderson: In their appeal, the Tiburon Neighborhood Coalition (TNC) criticizes the Env~onmenta1 ImpactRepqrt (EIR) for the Kol ~hofar,proj~ct for fail.itig to analyze ,aqditional ofi'site' altemativ~s. For years, Congregation Kol Shofar has been worshipping in an inadequate facility .Conseque~tly, CKS. has long searcbt?4, fo~ another site in M~ tllat lllight accommodate all the various activities conducted at the current 'site.' Atl'account of our search is set forth below. CKS would also like to address the practicability of the offsite alternatives that were analyzed in the EIR.. The EIR correctly pointed out that 'it was "not an assessment of existing uses of the site, only proposed ~dd{tional improvements and uses." (Draft EIR, p. .155.) The EIR thus analyzed poten~ otf~ite locations that could acco~()date just . llieprOpo~MilifdltioJ1saha~fro-rmithH~1ft~lisiliiHu'B;3~5 ~ feet)df~ililding .... space)." The EDt coitectly;pom.ts~{ju(th~fthete!are'rl(fsu~b'e si~s"iti~~ r6~J~ ", '~., acSofum()Wite:tlle;~dHiiiol{of:fouf cnissrd()iliSiari~ the: lii.u~tlipilipose rbom~ t'The: Em al'so correctly states that "constrnctiiig die, ~idti..purpoSe 'room elsewhere :itt Tlburon. 'ts h.6t feasible because there is 'nofasuitable'nori~residentiaI site arid"beca~'e;adeqWltely sized residential sites ate either not for sale, have existing development p1atlS' or have neighboring residential uses (where impacts could be expected to be similar to those identified for the proposed project)." (Draft E}R p. 155.) CKS would also like to emphaSize that relocating just the multi-purpose rOOlil to some other location outside of Tiburon is simply not practicable. me has incorrectly characterized the purpose ofllie' proposed remodel 'and addition of the multi-purpose as simply to throw parties. This assertion has been repeatedly demonstrated to be inaccurate by CKS. Rather, the multi-purpose roolllwill accoIllinodate numerous religious activities, including religious school, religious services, congregational ditmers,adult education lectures, and :the'CoalitionLuhch for the homeless. The mu1ti~putpose room will also help to accomm:odate the large nU11;lber ofwotshippers that atten4 ~()I Shofar ~n High Holy Days: . A full list of all activitlesw3sprevio\Jslypies~dto the Planning Connilissionandis'a P'ai1 o:fthe record. 'These'activides'freQti~ntIj"-occlll~'in C(}li.j~itction" wnh~abtivities ~liai ;taKe:pla~eilirthersfin:ctdilfY;:~iFW6illd ts~ply :tig:iiripittetibablg it-) locate the niuiti~~~~se :~~din;~fl.m~~',~::~~~~i~!r,'~~:si& ~ftl1e t~~()f,1::!BIT; ~o.K Below, CKS details its search for alternative locations. The hiring of Rabbi Lavey Derby in the 1990's was the beginning of a growth spurt for Kol Shofar, as the congregation had been without a rabbi for over two years following David White's departure. While the simple appointn:ient of a rabbi was an incentive for people to re-join, it was more true that our growth was a result of the dynamic leadership and vision of Rabbi Derby. As we grew, it became apparent that the facility was no longer meeting our needs. Pm;king was the first and easiest solution, and so we applied to the Town for a pennit to pave over the upper parking lot. In 1997, the Town amended the existing CUP to allow the paving. A few neighbors sued in August of 1997. The court ruled. in their favor in 1998, overturning the CUP, and the case was settle~ in September of 1998. Although CKS did exp~ence a growth spurt in the 1990's, membership levels have since remained' steady . We have been operating in inadequate facilities 'for many years. Towards the end of 1998, under the leadership of then-President Mark Goldman" we began to see if there w~re other places we could move that could accommodate our congregation. The search led to the Golden G8t:e,BaptistTheological Seminary, occupying about 100 acres of land on the Strawberry Peninsula. For several years, we engaged the Seminary in a discussion about buying the entire property, as the newly formed llebrew High School had backers interested in buying the site and turning it mto a multi-use facility ~ and so the high 'cOst 'of the purchase was not a deterring factor. During the course of the negotiations, we began to be discouraged about the lack of progress and so turned our eyes to Larkspur. Through some contacts, we met with the owner of the old Niven Nursery site on Doherty Drlve,and expressed an interest in buying the undeveloped 17 acre parcel. However, we were too late, as the owner had already optioned the right to buy to a developer who proposed to build housing. We had discussions both with the developer and the city manager about becoming a part of the project, but the developer ,was not interested and eventually we dropped out of the talks. During this time, the city manager asked us to take a look at the old Escalle site on , ' Magnolia Avenue in Larkspur arid for a brief time, we did some homework to ascertain whether this site might be suitable for us (eventually, we decided that the physical characteristics of this site were unsuitable for a synagogue.) We eventually "came back to the Seminary site, and at the end of the day, the Seminary . offered to sell us the site on the condition that we buy it with no option, that is, absent favorable zoning and master plan approvals. Obviously, we were unwilling to do that, and a few years ago, we stopped meeting with the Seminary altogether. At that point, we agreed that our only option was to renovate our existing facility, and to engage in a capital campaign to do so. A building comniittee was formed to interview and pick an architect, and Siro Vande Ryn was retained (a campaign committee was ,also formed and began to work to raise money). Shortly thereafter, 8im decided to retire from the day to day business of being an architect, and we retained Herman & Coliver. The Tiburon Neighborhood Coalition also suggests that the EIR should consider the alternative of renting other sites for the observance and celebration oflifecycle events. First, we note that the purpose of erecting a multi-purpose room is chiefly relig~ousand educational, NOT to stage raucous parties, as stated by TNC's attorney. In the Jewish tradition, lifecycle events are considered religious occasions and acquire the decorum that befits such an occasion. The multi-purpose room is designed to accommodate many existing activities that have occurred for many years in our inadequate facilities. Renting another facility is not a feasible solution for accommodating daily activities. Furthermore, CKS has routinely searched for alternative facilities to hold specific large events, soohas High Holy Days services, to no, avail. The only facility in the county that is large enough to house us is the Civic Center, but Congregation Rodef Shalom uses the theatre and the auditorium is unavailable to us due to previous comniitments by the county to established users. We have talked to the owner of the largest theatre in Marin (in Corte Madera) but he is unwilling to close down the theatre for any reason. We have also looked into other houses of worship (non..J~wish) but the ones we saw were either too small, in use, or had too few parking spaces. The Mill Valley Community Center is also unavailable to us as the city's policy is to not let religjous services take place there (plus,the building is too small). This frUitless search is quite frustrating and leaves us in the position of having our religious practices compromised. Although CKS has previously detailed its search for alternative locations at public hearings, mc nevertheless has repeatedly claimed the EIR must describe additional alternatives. As described above, there are no other feasible locations, in Tiburon or beyond, that will accommodate CKS' s needs. Sincerely" f<~f).~ Ronald D. Brown Immediate Past-President Congregation Kol Shofar EXHIBIT I ~ ' I HERMAN & COllVER: ARC HIT E C T U R E PLANNING AND DESIGN STUDIO MEMO Date: July 5, 2006 Re: Kol Shofar - Net and Gross Areas, Existing and Proposed The table below denotes existing and proposed net useable areas of major program spaces (e.g. the Sanctuary), the number of classrooms provided, and finally, the overall building area totals (net and gross), Description Area Existing Proposed Sanctuary 6,432 NSF 5,126 NSF Social Hall 2,432 NSF aka Multi-Purpose Room 4,500 NSF Chapel 1 ,408 NSF 1,864 NSF Library 738 NSF 717 NSF Lobby 1 ;095 NSF 2,651 NSF Kitchen 319 NSF 1,008 NSF Administration 2,497 NSF 3,992 NSF Number of Classrooms 18 total ' 18total' Total Net Useable Area 29,310 NSF 35,608 NSF Total of Additional Proposed 6,298 NSF 2 Net Building Area Total Gross Building Area 43,751 GSF 51,644 GSF 3 Total of Additional Proposed 7,893 GSF 2 Gross Building Area 1 Classroom count excludes Annex Building, Library, Balcony and Chapel 2 Proposed building areas include Multi-Purpose and School Buildings 3 Exposing dome in renovated Sanctuary removes 5,502 GSF Mechanical Attic Sincerely, Jon Riddle, Project Architect Herman & Coliver : Architecture 363 CLEMENTINA STREET / SAN FRANCISCO / CALIFORNIA 94103 T: 415.552.9210 / F: 552.9811 / E: info@hcarchitecture.com Page 1 of1 ~ EXHIBIT NO.~ BUILDING OCCUPANCY SUMMARY: BUILDING NAME / SPACE NAME AREA AREA OCCUPANCY PROJECTED AUDWED REMARKS GSF NSF TYPE OCCUPANCY OCCUPANCY (OCCUPANCY LOAD FACTOR PER CSC * j BASED ON CBe TABLE 1DA. U.O.N.) EXISTING 2 STORY CIRCULAR BUILDING SANCTUARY 5,506 5,336 A-2.1 550 FIXED SEATS 762 W/OUT FOR FIXED SEAT REO'T. FIXED SEATS SEE CBC 1003.2.2.2.3 CHAPEL 1,971 1,842 A-3 150 263 FACTOR,. 7 LIBRARY - READING RM., 746 735 A-3 14 14 FACTOR - 50 LOBBY-HAlLWAY 1,668 1,588 A-2.1 226 226 CLASSROOMS (LOWER LEVEL = 6) 3,335 3,032 E-2, A-3 25 PER CLASS 25 PER CLASS AVE. CLASSROOM= 505 SF OFFICES 866 788 B 7 7 MISC. 752 716 B TOilET ROOMS 1,094 995 SIZE BASED ON # OF TOILET FIXTURES REO'D. STORAGE 1,053 957 S-2 MECHANICAl/ELECTRICAL 4,605 4,186 HALLWAYS 1,860 1,771 MECHANICAL AlllC 5,502 5000 TOTAL GSF 28,958 EXISTING 1 STORY ADMINISTRATION WING OFACES 3,585 3,259 B 20-25 32 VARIES WITH LAYOUT CONFERENCE RM. 565 538 B 25-30 35 V ARIES ON USE CLASSROOMS (3) ,. REL. SCHOOL 2,111 1,919 E-2, A-3 25-30 31 AVE. CLASSROOM= 639 SF TOTAL GSF 6,261 EXISTING 1 STORY SCHOOL WING OFACES 1,536 1 ,462 B 8 -14 14 CLASSROOMS (5)-PRESCHOOl 3,793 3,612 E-1, A-3 25 - 30 (VARIES) 36 PER CLASS AVE. CLASSROOM = 722 SF ~ SCHOOL LIBRARY 932 887 E-l, A-3 10-15 17 TOTAL GSF 6,261 EXISTING 1 STORY ANNEX BUILDING MEETING ROOMS (2) 1,600 1.454 A-3 30-40 48 AVE. MEET ROOM=727 SF STORAGE 671 639 8-2 TOTAL GSF 2,271 PROPOSED 1 STORY MULTI-PURPOSE BUILDING MULTI-PURPOSE ROOM: 5,022 4,500 A-2.1 (lYP.) DINING - .BANQUET 300 300 DINING/LIFE CYCLE EVENTS lOOSE SEATS 642 642 HIGH HOLIDAYS SERVICE M-P LOBBY 1,838 1,793 A-3 256 238 KITCHEN 1,070 972 5 ' 5 CATERING KITCHEN TOILET ROOMS 705 640 HALLWAY 702 6611 STORAGE 396 360 S-2 TOTAL GSF 9,733 PROPOSED 1 STORY CLASSROOM BUILDING CLASSROOMS (4) - PRESCHOOL 2734 E-l, A-3 25 - 30 34 AVE. CLASSROOM=683 SF TOILET ROOMS 612 I ! SIZE BASED ON # OF TOILET FIXTURES REQ'O. STORAGE/MECHANICAL 316 S-2 TOTAL GSF 3,662 Source: Rol Shoxar Application Drawings .EXHIBIT r -- l RESOLUTION NO. 2006-15 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT (FEIR) FOR THE KOL SHOFAR SYNAGOGUE EXPANSION PROJECT (FILE #10404) ASSESSOR PARCEL NO. 38-351-34 WHEREAS, the Planning Commission of the Town of Tiburon does resolve as follows: Section.1. General FindinQs. Whereas, a Draft Environmental Impact Report (DEIR) evaluating the proposed Congregation Kol Shofar expansion project (Conditional Use Permit) has been prepared and was transmitted by the Town of Tiburon to concerned parties for review and comment; and WHEREAS, a notice of the availability of the DEIR was given as required by law; and WHEREAS, written comments on the DEIR were accepted from the public from July 1, 2005 to August 15,2005; and WHEREAS, the Planning Commission held a public hearing and accepted testimony on the DEIR on August 10,2005; and WHEREAS, on August 24, 2005, after the close of the public comment period, the Planning Commission held another meeting, determined that no evidence requiring immediate recirculation had been submitted to date, and directed that responses to comments and a Final Environmental Impact Report (FEIR) be prepared; and WHEREAS, the FEIR was prepared in accordance with the provisions of the California Environmental Quality Act and local CEQA Guidelines; and WHEREAS, the Planning Commission held duly noticed hearings on April 24, 2006 and May 10, 2006 at which it heard and considered the FEIR, including the FEI R Alternative 7 Analysis, and received public testimony; and WHEREAS, the Planning Commission determined that no significant new information had been received that required recirculation of the EIR. EXHIBIT NO. ~ TIBURON PLANNING COMMISSION RESOLUTION NO. 2006-15 May 31,2006 Page 1 Section 2. FindinQs of No Recirculation Requirement The Planning Commission makes the following findings based on evidence in support of its conclusion that recirculation is not required. A. Reauirements under CEQA Only if a lead agency adds "significant new information" to an EIR subsequent to the commencement of public review and interagency consultation but prior to final EIR certification, must the agency "recirculate" a revised EIR, or portions thereof, for additional commentary and consultation. (Pub. Resources Code, 9 21092.1; CEQA Guidelines, 9 15088.5; Laurel Heights Improvement Association of San Francisco, Inc. v. Regents of the University of California. (1993) 6 Cal.4th 1112 (Laurel Heights 11).) The "significant new information" standard was clarified in Laurel Heights II. There the court held that recirculation was only required when new information was added to an EIR that changed it in such a way that the public was deprived of meaningful comment on a new adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that project proponents have declined to implement. (Laurel Heights II, supra, 6 Cal.4th at p. 1129; CEQA Guidelines 15162, subd. (a)(1 ).) The court reasoned that by codifying the "significant new information" language, the Legislature did not intend to promote endless rounds of revision and recirculation of EIRs. (Laurel Heights II, supra, 6 Cal.4th at p. 1132.) Instead, recirculation was intended to be an exception, rather than the general rule, (Ibid.) Examples of how the "recirculation" standard should be applied are included in CEQA Guidelines section 15088.5. For example, recirculation is required when "a new significant environmental impact would result from the project." (CEQA Guid~lines, 915088.5, subd. (a)(1).) This section is particularly relevant here, because Alternative 7 is a new alternative that proposes to reduce the potential impacts associated with the project as compared to the project initially proposed, Specifically, Alternative 7 is the same as the proposed Project but with limits on the number of new events and a revised circulation plan. (FEIR, p. 3.) There is no basis for recirculating an EIR when changes in the proposed project will only reduce impacts. (See Remy et. aI., Guide to the California Environmental Quality Act (10th ed. 1999) pp. 304-305.) In other words, where a new alternative is similar to one already outlined in an EIR, the time and expense associated with recirculation would not be justified. (Ibid.) .'J1H. Here, Alternative 7 does not result in a significant change to the Project. (, Indeed, Alternative 7 is the same as the proposed Project with two simple TIBURON PLANNING COMMISSION RESOLUTION NO. 2006-15 May 31,2006 Page 2 modifications: (1) the number of Saturday and Sunday evening events is substantially reduced from what was originally proposed, and attendance at those events would be limited; and (2) the circulation plan is revised to reflect existing entry and exit patterns, reduce the number of "turnarounds" in the street, and reduce project-generated left-turn movements onto Reedland Woods Way from Blackfield Drive. The net result of Alternative 7, therefore, will be a reduction in potentially significant impacts associated with the Project. B. Substantial evidence supports the Town's decision to not recirculate the EIR Traffic Commenters contend that recirculation of the final EIR is required because Alternative 7 added new events with extended hours and increased attendance to the EIR, which constituted "significant new information" within the meaning of Public Resources Code section 21092.1. (Volker comment letter, dated May 8,2006.) Contrary to what commenters suggest, Alternative 7 did not add new events, or propose extended hours and increased attendance beyond what was already proposed and analyzed in the Final EIR'sdiscussion of the proposed Project. (FEIR, p. 3.) Commenters confuse the fact that the number of events associated with Alternative 7 is more events than what occurs under currently existing conditions or the baseli,ne; however, Alternative 7 actually proposes far fewer events than what was proposed and analyzed under the proposed Project. Proposing a new alternative that reduces the number of impacts identified for the proposed Project does not constitute significant new information that triggers recirculation. Accordingly, despite what the commenters suggest, this is not a case where the physical description or scope of the project has changed. Rather, Alternative 7 merely minimizes the existing described environmental impacts from the estimated increase in traffic circulation by proposing further reductions in the number of allowed weekend events, the hours of those events, and the attendance at those events. For example, the potential traffic impacts associated with weekend events that were initially identified in the DEIR were based on a conservative estimated maximum attendance of 300 people. (DEIR, p. 13, FEIR, p. 3) Under Alternative 7, however, the applicant will limit attendance to'a maximum of 250 people, and this number of guests will only be allowed 4 times per year. Thus, the minor modifications proposed in Alternative 7 do not reveal a new or more severe adverse environmental impact warranting recirculation of the EIR. Similarly, the Draft EIR stated that "Increased numbers of turnarounds in driveways or in front of homes and increased frequency of event-related TIBURON PLANNING COMMISSION RESOLUTION NO. 2006-15 May 31,2006 Page 3 turnarounds on these residential streets is considered by the EIR traffic engineer to be a potentially significant safety concern." (Draft EIR, p. 67.) Alternative 7 includes two modifications to the project that will mitigate this potentially significant impact further than what was originally provided in the Draft EIA. Alternative 7 reduces the potential that people will "turn around" in the street by revising the circulation and parking plan. According to the revised circulation and parking plan, the Ree(jland Woods Way driveway would be an exit only, and all guests would enter the site from Via Los Altos. Additionally, signs would be posted at the intersection of Reedland Woods Way and along Via Los Altos, directing visitors to follow this circulation plan. Rather than create new significant impacts, as commenters suggest, Alternative 7's proposed modifications serve to return the circulation plan to its existing entry and exit pattern, reduce the potential impact of mid-street turnarounds, and reduce project-generated left turns onto Reedland Woods Way. Noise Commenters contend that Alternative 7 would increase nighttime noise- in a quiet residential neighborhood and that the extent of such impact has not been , adequately' assessed. (Volker comment letter, dated May 8,2006.) Again, commenters are inappropriately comparing Alternative 7 to the existing environment, which is not the proper analysis when determining whether to recirculate an EIR. As explained above, the proper consideration is whether the changes in the project would create new significant impacts. Instead of , increasing events or their durat!on, Alternative 7 reduces the number of events in a manner that reduces the impacts related to noise. As such, Alternative 7 does not reflect significant new information that creates potentially significant new impacts on the environment, and is not a basis for recirculation of the EIR. Environmentally benign project changes are a desirable and foreseeable byproduct of the CEQA process. (See Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 736-737, citing County of Inyo v, City of Los Angeles (1977) 71 Cal.App.3d 185, 199 (CEQA process is not designed to freeze the ultimate proposal in the precise mold of the initial project; new and unforeseen insights may emerge during investigation).) In short, a project must be open for public discussion and subject to agency modification during the CEQA process. (Concerned Citizens of Costa Mesa, Inc, v. 32nd District Agricultural Association (1986) 42 Cal.3d 929,936.) This is because the CEQA process is meant to result in changes to projects that benefit the environment. (See Id.) Consistent with this goal, Alternative 7 implements CEQA's purposes because it promotes an alternative that reduces impacts to the environment in comparison with the project analyzed in the Draft EIR. The substantial evidence discussed above adequately supports the finding that no "significant new information" was added following the, Town's consideration of Alternative 7 that changed the EIR in manner that deprived the TIBURON PLANNING COMMISSION RESOLUTION NO. 2006-15 May 31, 2006 Page 4 public of meaningful comment on a new adverse environmental effect or a new alternative that was not implemented. Comments requiring the EIR to be recirculated are, therefore, unfounded and inconsistent with CEQA. Section 3, Certification of EIR. NOW, THEREFORE, BE IT FURTHER RESOLVED that the Congregation Kol Shofar Final Environmental Impact Report: 1 . Consists of: a. Congregation Kol Shofar Draft Environmental Impact Report, dated June 2005; and b. Congregation Kol Shofar Final Environmental Impact Report, , dated February 2006. c. Final EIR for the Congregation Kol Shofar Conditional Use Permit Application: Alternative 7 Analysis, dated April 18, 2006. d. Kol Shofar Final EIR Errata Sheet 2. Is hereby certified by the Planning Commission to have been completed in compliance with the Califomia Environmental Quality Act and local CEQA guidelines. 3. Has been presented to the Planning Commission of the Town of Tiburon, which has reviewed and considered the information contained in the Final EIR. 4. Reflects the independent judgment and analysis of the Planning Commission. 5. Is hereby adopted as the Environmentallmpc;lct Report for the Congregation Kol Shofar expansion project (File #10404). PASSED AND ADOPTED at a special meeting of the Planning Commission of the Town of Tiburon on May 31,2006, by the following vote: AYES: Aguirre, Collins, Fraser, Kunzweiler & O'Donnell NOES: None ABSENT: None TIBURON PLANNING COMMISSION RESOLUTION NO. 2006-15 May 31,2006 Page 5 JOHN KUNZWEILER, CHAIRMAN Tiburon Planning Commission ATTEST: SCOTT ANDERSON, SECRETARY TIBURON PLANNING COMMISSION RESOLUTION NO. 2006-15 May 31,2006 Page 6 EXHIBIT - K RESOLUTION NO. 2006-16 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON DENYING A CONDITIONAL USE PERMIT APPLICATION FOR EXPANSION OFAN EXISTING SYNAGOGUE AND DAY SCHOOL AT 215 BLACKFIELD DRIVE AND ADOPTING FINDINGS SUPPORTING THE DENIAL lAP 38-351-34) WHEREAS, the Planning Commission of the Town of Tiburon does resolve as follows: Se'ction.1:. Summarv of ProceedinQs. A, In 1985, the Town of Tiburon approved a conditional use permit authorizing synagogue and day school uses on property located at 215 Blackfield Drive. The use permit conditions were subsequently amended by adoption of Planning Commission Resolution Nos. 97-17,2001-07, and 2004-10. B, On April 21 ,2004, the Town of Tiburon received a Land Development Application (File #10404) (the "Application") from Congregation Kol Shofar ("Kol Shofar" or "Applicant") with regard to its property at 215 Blackfield Drive (the "Property"). The Application requested a conditional use permit ("CUP") for remodeling of existing structures ~nd construction of new facilities on the Property, specifically: a single-story, 9,733 square foot multi-purpose addition (the "Multi-purpose Room") to the existing circular building; four new single-story classrooms and a service room totaling 3,662 square feet; remodeling of the existing building; paving of an existing unpaved overflow parking lot for a net gain of approximately 22 parking spaces; and related lighting and landscaping improvements. In addition, the Application requested an increase in the maximum enrollment of the day school from 100 to 150 children, as well as allowing new special and congregational event evening and other programs. The existing facility contains 43,751 gross square feet of building area; proposed additions would increase this figure by 310/0. The Application also requested new and expanded use of the Property, as set forth in Table, 1 of the Draft EtR. The Application consists of, but is n-,ot limited to, the following: 1. Conditional Use Permit and Envi'ronmental Review Submission, dated April, 19, 2004, containing: a. Geotechnical Report prepared by Herzog Engineers, dated February, 2004 b. Traffic and Parking Study prepared by Robert Harrison Traffic Engineers, dated April, 2004 Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 EXH:BIT NO.~ c. Environmental Noise Study prepared by Charles M. Salter Associates, Inc., dated April, 2004 d. Lighting ~tudy and Recommendations prepared by Architectural Lighting Design, dated April, 2004 e. Congregation Kol Shofar Use Summary, dated March, 2004 f. Visual Impact Study prepared by Herman and Coliver Architecture, dated April, 2004 2. Project Plans (14 sheets) prepared by Herman and Coliver Architecture, received April 21, 2004, including revised Sheet A 1.1 dated 11/4/2005 3. Revised project description prepared by IPA, Inc., dated July 14, 2004 4. Addenda to Traffic and Parking Study prepared by Robert Harrison Traffic Engineers, dated June 21,2004 and August 18,2004 5. Addenda to Environmental Noise Study prepared by Charles M. Salter Associates, Inc., dated June 30,2004 and August 18,2004 C. On December 8, 2004, the Planning Commission held a' Scoping Session for preparation of a Draft Environmentallmpact Report ("Draft EIR") on the Application. In June 2005, the Town of Tiburon circulated the Draft EIR for public comment, and on August 24, 2005, the Planning Commission held a hearing on the Draft EIR. D. On August 24, 2005, the Planning Commission authorized preparation of the Final EIR and in February" 2006, the Town of Tiburon released a Fif'1al EIR, which included responses to comments and edits to the Draft EIR. E. After publication of the Final EIR, the Applicant submitted revisions to the Application, set forth in the document entitled "Modified Use-Impact Analysis" prepared by IPA, lric., dated A'pril11, 2006, with the stated intent of reducing impacts identified in the EIR. This revised proposal, hereinafter the "Project", was labeled "Alternative 7" for EIR purposes and analy~ed by the EIR preparer in the document entitled "Final EIR for the Congregation Kol ShofarConditional Use Permit Application: Alternative 7 Analysis, dated April 18, 2006. On April 24, 2006 and May 10, 2006, the Planning Commission held hearings on the Project and on the Draft and Final EIRs. F. At the May 10, 2006 meeting, four of five Planning Commissioners indicated that they could not support the Project based on, among other things, inconsistency with General Plan goals and policies and failure of the Project to conform to Tiburon Zoning Ordinance standards and provisions. The Planning Commission majority found the Project over-reaching in its scope, scale, and level of f!, Tiburon Planning Commission ,;S( ''', , .,~ .'. " .' ~ Resolution No. 2006-16 5/31/2006 2 intrusion, given its quiet resid_ential surroundings. The Planning Commission offered the Applicant a choice of either an "up or down" vote on the Project or a continuance of the hearing to a later date to enable a Planning Commission subcommittee to attempt to craft a resolution of conditional approval based on modifications necessary to satisfactorily address the inadequacies identified by the Planning ,Commission at the May 10,2006 meeting. The Applicant initially indicated a willingness to consider such an approach for conditional approval by the Planning Commission, but on May 16, 2006, informed Town Staff that Kol Shofar did not wish to support such an approach and requested an "up or down" vote on the Project. G. The Planning Commission has reviewed and considered the information in the Draft and Final E I Rs, the written and oral testimony presented to the PI~nning Commission, and the Entire Record, as described in Section 2 below. H. The Planning Commissions is charged with the responsibility of determining, after a review of the Entire Record before it, whether or not the P'roject is consistent with the Tiburon General Plan and is in compliance with the Tiburon Zoning Ordinance and other applicable regulations. The Planning Commission finds that based upon evidence in the record, the Project would be inconsistent with numerous goals and policies of the Tiburon G~neral Plan, would not be in conformance with standards and requirements of the Tiburon Zoning Ordinance, and would be incompatible and not in harmony with surrounding residential uses. I. The Planning Commission f~nds, based upon the evidence in the Entire Record, that the project is inconsistent with numerous Tiburon General Plan goals and policies, and is not in compliance with provisions of the Tiburon Zoning Ordinance because of parking deficiencies and the cumulative activity levels, noise, disruption, and the sensitivity of the days and hours that these activity levels would occur. The Planning Commission further finds that the Project is incompatible with surrounding residential development; and would be materially detrimental to the quiet enjoyment of people's homes and neighborhoods. Specifically, the Planning Commission finds that the Project would be inconsistent with Tiburon General Pt'an Land Use Element Goals LU-A, LU-B, LU-C, LU-D, LU-H, and LU-I; with Land Use Element P<;>licies LU-2, LU-6, arid, LU-13; Circulation' Element Goals C-C, C-D, C-F, and C-I and Circulation Element Policy C-1 ; with Safety Element Goal SE-A; and with Noise Element Goals N-A, N-B, and N-C. The Planning Commission further finds that the Project is not in conformance with, or fails to comply with, Tiburon Zoning Ordinance Sections 4.04.02 (a), (b), (c), (d) and (e); Sections 4.04.03 (a)(1), (a)(2), and (a)(3); Sections 4.04.03 (b)(1) and (b)(3); Section 5.08.04; Section 5~08.1 0; and Section 5.08.11. J, The Planning Commission finds that although the EIR concludes that the Project would not result in significant unavoidable adverse impacts on the environment as characterized under the California Environmental Quality Act, the Planning Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 3 Commission disagrees with certain conclusions of the EIR based on evidence in the Entire Record. Specifically, the Planning Commission received written testimony from two acoustical experts stating that the Draft EI R's use of a 24- hour average metric, "Ldn," to assess the impact of intermittent noise spikes during the evening was not appropriate, as it trivializes short-term spikes in noise by averaging them against the ambient noise levels during the rest of the 24- hour period. The Final EIR acknowledges that arrival and departure noise Jevels will reach 65 decibels, and that background nighttime noise levels in the{ neighborhood are only 40-41 dBA. FEI R, p. 43. Thus, the short-term noise impact at these evening events might reach 25 decibels above background levels at 11 :00 p.m., a very substantial increase. Neither the Draft EIR nor the Final EIR proposes any mitigation measure that would assure that the significant spikes in late night week-end noise would be mitigated to achieve a lev~1 of ' insignificance. The Planning Commission therefore finds mitigation measures for Impact 3.4-B (Noise Impacts in Areas Surrounding the Project Site) inadequate to mitigate the increased noise. In addition, the Planning Commission finds that the mitigation measures specified for 'Impact 3.5-C (Headlights on Vehicles Using the Driveway) are inadequate to reduce to insignificant late-night week-end headlight intrusion into homes in the immediate vicinity of the driveway and parking lot, as more fully set forth in Section 4 below. The Planning Commission also finds that Mitigation Measure 3.3-C.3 (the parking receipt program) proposed .for Impact 3.3-C (Insufficient On-Site Parking Resulting in Unsafe Turnarounds) is unwieldy, unduly difficult to monitor and enforce, unlikely to be successfuUy implemented; and therefore infeasible. The Planning Commission finds that the alternative mitigations put forth in Alternative 7 to address the Project's deficient on-site parking are insufficient to off-set the basic problem of inadequate on-site parking, and simply spread or relocate impacts into surrounding neighborhood streets. The first of these alternate mitigations, that "Kol Shofar shall place signs along its frontage on Via Los Altos, Blackfield Drive and Reedland Woods Way stating that people attending events at Kol Shofar need to park on-site and not on residential streets," mayor will cause unsafe tum-arounds by the attendee"s who had intended to park along these streets until they observed these unexpected signs. Furthermore, visitors arriving at night or in the rain may not see these unexpected signs at all. Others may choose to disregard the signs, since there is no proposed effective enforcement mechanism to dissuade attendees from doing so. The second alternate mitigation, that "Kot Shofar shall require that all invitations and notifications of these new weekend events inClude. a note informing people there to park on the site and not to park on residential streets," rests on three unproven assumptions: (1) that all drivers will receive, remember and comply with this request; (2) that there will be adequate room to accommodate them within the on-site parking lots (a premise that would not be true where individual vehicular occupancy by guests is at lower rates than the Applicant's projections, and certainly during the High Holy Days and other events where attendees greatly exceed on-site parking capacity); and (3) that attendees will not attempt to park elsewhere if traffic backs up at the Via Los Altos ingress point to the Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 4 parking lot. The third alternate mitigation, the institution of a monitoring program covering "up to four events the first year after project completion" to assess the efficacy of the foregoing mitigation measures, would not itself prevent significant unsafe turn-around impacts. Rather, it would document such impacts for the purpose of developing additional mitigation measures. As such, this measure would not itself prevent adverse traffic and parking impacts. The Planning Commission finds that sufficiently increasing the on-site parking capacity would bring the Project into Zoning Ordinance parking regulation compliance and is the most logical mitigation, yet this approach was strenuously argued against by the Applicant at the May 10, 2006 hearing. K. The Planning Commission concludes that substantial modifications to the Project above and beyond those put forth by the Applicant in Alternative 7 woulq be necessary to secure Planning Commission approval, as discussed herein. L. The Planning Commission hereby denies the Project and makes the following findings in support of its decision, based on the Draft and Final EIRs, the written and oral testimony to the Planning Commission, and the evidence in the Entire Record before the Planning Commission. Section 2. Entire Record: Document Description and Location. The Record of Proceeding ("Entire Record") upon which the Planning Commission bases, its disapproval of the Project and its findings, actions and determinations regarding the Project includes, but is not limited to: 1. The Final EIR which consists of the Congregation Kol Shofar Conditional Use Permit Application Draft Environmental Impact Report (June 2005) and the Congregation Kol Shofar Conditional Use Permit Application Final Environmental Impact Report Response to Comments Document (February 2006) plus the appendices and technical reports cited in and/or relied on in preparing the Final EIR. 2. All Staff reports, Town files and records and other documents, prepared for and/or submitted to the Planning Commission ar)d/or Town staff relating to the Final EIR, addendums, and/or the proposed Project. 3. All written and oral testimony presented to the Planning Commission on the Project. The location and custodian of the Entire Record is the Town of Tiburon Community Development Director, 1505 Tiburon Boulevard, Tiburon, California 94920. Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 5 Section 3. Material Elements of the Proiect. The Planning Commission finds that the material elements of the Project that it finds not approvable as proposed include, but are not limited to, the following: (1) The number (in excess of 27 total) and timing of new nighttime activities and events on Frid,ay, Saturday and Sunday nights, including cleanup activities until 10:00 PM, 12:00 PM and 11 :00 PM, respectively (as documented in Table 1 as revised through Alternative 7), with resultant noise in the vicinity, and a lighted parking lot until at least the foregoing times; (2) Potential or actual overlapping of activities utilizing the proposed 9,733 square foot Multi-purpose Room addition and the remodeled sanctuary, with a resulting very large capacity far exceeding the capacity of the parking on the site in violation of Tiburon Zoning Ordinance parking regulations; (3) Increase in actual daytime and nighttime vehicular traffic, including increases in unsafe U-turns, turnarounds by unauthorized use of private driveways creating pedestrian safety hazards and unnecessary, and unwanted headlight intrusion at night into private homes in the neighborhood; (4) Actual increases in noise levels from: existing uses utilizing the Multi-purpose Room, new uses, traffic entering, parking in and exiting the Project's expanded on-site parking lot in close proximity to homes, drivers and passengers exiting and entering vehicles to go to and from existing and new daytime and nighttime activities and events; (5) Increased parking of vehicles on the neighborhood streets for various reasons, including insufficient on-site, parking capacity, the awkward and inefficient design and circulation pattern of the proposed main parking lot, which, in addition to the nuisance and inconvenience effects upon neighboring uses, will violate Tiburon Zoning Ordinance parking requirements. Section 4. General Plan Inconsistency The Planning Commission finds the scope and elements of the Project, taken as a whole, incompatible with surrounding residential development, based on noise, traffic, traffic safety, light and glare, neighborhood character, and parking impacts and the neighborhood disruption attendant thereto. Evidence in support of this conclusion is provided in the Entire Record, both from experts and residents, which the Commission finds both credible and convincing. The Planning Commission further adopts the findings set forth herein. Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 6 1. Noise The Project will generate substantial noise from events, particularly on Saturday and Sunday evenings. The Project proposes twelve Saturday evening events with significant attendance (four with 250 attendees, four at 200 and four at 150) and fifteen new Sunday evening events (three with 250 attendees, five at 200, four at 150 and three at 100). The , proposed Saturday evening events would continue "until 11 :00 p.m. plus cleanup," and the Sunday events would continue "until 9:00 p.m. plus cleanup." Clean up times are proposed to last until midnight on Saturdays, and clean up on Sundays would last until 1 0:00 p.m. This means that noise and lights from departing guests, vendors, and others; people taking out supplies and/or removing tables and chairs; caterers carrying out equipment and food; people talking outside; car and truck engines starting up; car doors slamming; and related headlight glare and parking lot illumination would thus continue until midnighton Saturdays and until 1 0:00 p.m. on Sundays. The Final EIRacknowledges that arrival and departure noise spikes will reach 65 decibels, and that background nighttime noise levels in the neighborhood are only 40-41 dBA. FEIR, p. 43. Thus, the short-term noise spikes during these evening events might reach 25 decibels above background levels' as late as 11 :00 p.m., a very substantial increase. These represent serious noise incompatibilities with surrounding residences. For example, many neighbors have school-age children. These children, who need to be in bed Sunday evening for school the next morning, would be subject to sleep-disturbing noise and lights after they have retired for the night. Also, residents in the Bel Aire neighborhood will be disturbed as cars exiting the facility travel down Blackfield Drive at the end of an event between 11 :00 and 12:00 p.m. on Saturday and between 9:00 and 10:00 p,m. on Sunday. The residents of Blackfield Drive have written letters and spoken publicly ~bout the fact that many bedrooms face Blackfield Drive. These neighbors will be disturbed at night by the increased noise, light and traffic of cars traveling on Blackfield Drive to these new nighttime events. This significant noise generation during normally very quiet times conflicts with Goals N-A, N-B and N-C of the Tiburon General Plan Noise Element, which are set forth below: N-A: To ensure that residential areas are quiet and that noise levels in public and commercial areas remain within acceptable limits. N-B: To eliminate or reduce unnecessary, excessive and offensive noises from all sources. N-C: To minimize the exposure of community residents to noise through the careful placement of land uses that may cause noise impacts. The Project would allow weekend evenjng events to occur on twenty-seven (twelve on Saturdays and fifteen on Sundays) of the 104 weekend evenings each year, representing 2601<> of annual weekend evening, clearly a substantial proportion. Allowing such an increase in nighttime noise and activity on more than one-fourth of annual weekend evenings conflicts with the Tiburon General Plan Noise Element's Goals as noted above. Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 7 2. Traffic and Traffic Safety The Draft EIR identified unsafe turnarounds in neighborhoods and using private driveways for that purpose as an existing safety hazard that would increase as a result of the Project. "Increased numbers of turnarounds in driveways or in front of homes and increased frequency of event-related turnarounds on those residential streets is considered by the EIR traffic engineer to be a potentially significant safety concern." DEIR, p. 67. The Planning Commission has received substantial evidence from the public confirming that existing events and activities at the existing Kol Shofar facility have resulted in unsafe turn-arounds by guests driving vehicles to such events who seek additional parking sites off-site or to avoid traffic congestion in the vicinity of the Property. The Planning Commission also finds that the Project will bring substantial additional traffic into the quiet surrounding neighborhoods at precisely the wee~-end times when quietude is most desired and valued by residents. The proposed substantial increase in the square footage on the Property, and proposed increase in use of the Property, will result in substantial additional traffic generation, particularly for large-scale events drawing hundreds of attendees. As the number of facility users increases, so will the number of cars delivering them, and the number of consequential unsafe turn-arounds in local driveways and streets. These turn-arounds pose significant traffic hazards to vehicular and pedestrian safety, in conflict with the Tiburon General Plan's Circulation Element, Circulation Goals C-C and C-F, Circulation Policy C-1, and Safety Element Goal SE-A, which are set forth below: cooc: To maintain all existing, as well as to design all future, residential streets with consideration of a combination of residents' safety, cost of maintenance, and protection of residential quality of life. C-F: To minimize traffic congestion. Coo 1 : Land use decisions shall take into consideration potential traffic and circulation impacts. SEooA: To maintain a safe and healthy community. 3. Light and Glare The extent of evening and nighttime activity proposed by the Project will ,result in unwanted and unnecessary light and glare impacts on surrounding homes. The Draft EIR states that "[h]eadlights on vehicles traveling west (uphill) on the new driveway, around the drop off/turnaround, and into the new upper parking area could intrude off the site and possibly shine into three residences on Reedland Woods Way and one residence on Paseo Mirasol . . . . Vehicles using the turnaround would have headlights pointed at 20 and possibly 30 and 35 Reedland Woods Way. . .. Headlights on vehicles using the new parking area Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 8 could intrude into windows of homes at 20 and 30 Reedland Woods Way and one home to the east on Paseo MirasoL Headlight intrusion is a visual invasion of privacy and is considered a potentially significant impact." DEIR, p. 106, emphasis in original. The subsequent headlight intrusion study concluded that lights from vehicles on the site would intrude into the sleeping quarters of the home at 220 Blackfield Drive and the home at 20 Reedland Woods Way. The Final EIR included a "Headlight Beam Intrusion" report from the Project's architect which concluded that, although headlight intrusion would occur at 220 Blackfield Drive, that residence had been impacted by similar headlight intrusions in the past without complaint. FEIR, p. 49. This report also concluded that "[h]eadlight intrusion at 20 Reedland Woods Way may result at a distance of 100 feet from the light source to the home, concluding that the diminished light intensity at that distance "will not result in a nuisance ,and/or a significant adverse impact on the environment." Id. This report concluded further that although '1he potential for light intrusion exists at the ground level of #35 Reedland Woods Way, . . . an existing wood slat fence at the residence's rear yard will provide screening." Id, Landscaping has been proposed as Mitigation Measure 10 for Impacf 3.5-0 to reduce the headlight impact on 220 Blackfield Drive. Finally, Mitigation Measure 3.5-C.1 requires the Applicant to construct a berm and/or fence between the parking lot and 20 Reedland Woods Way to block headlight intrusion. l The Planning Commission finds the foregoing mitigation measures insufficient to reduce. the impact of late-night vehicular headlight intrusion into the affected homes to a level of insignificance. The fact that the home at 220 Blackfield Drive is already affected by existing headlight intrusion does not mitigate the impact of the additional headlight intrusion that this Project would cause due to'the number and lateness of nighttime events. Instead, it makes it worse. The proposal to plant landscaping between the parking lot and this residence may reduce headlight spill into this residence, but the efficacy of landscaping to reduce this impact to insignificance is uncertain both temporally and with regard to the extent of the anticipated blockage. The Applicant's proposal to construct a berm and/or fence between the parking lot and the residence at 20 Reedland Woods Way would not prevent headlight intrusion into the second story (Le., the sleeping quarters) of this residence. The proposed mitigation of the headlight intrusion into 35 Reedland Woods Way - an existing fence - would not shield the second story (Le., the sleeping quarters) of ' this residence from direct headlight intrusion. Since modern headlights are designed to reach several hundred feet, the fact that the headlights intruding into 20 Reedland Woods Way would be 100 feetdistant does not reduce their impact to insignificance. These unnecessary nighttime headlight impacts on existing residences conflict with the TiburonGeneral Plan's Land Use Element, Land Use Goals LU-B, LU-D, and LU-H, and Land Use Policy LU-2, which are set forth below. LU-B: To protect the health, safety, and welfare of the community. LU-D: To ensure that all land uses, by type, amount, design, and arrangement, serve to preserve, protect and enhance the small-town residential image of Tiburon Planning Commission Resolution No, 2006-16 5/31/2006 9 the community and the village-like character of its Downtown commercial area. lU-H: To protect and preserve existing neighborhood character and identity. lU-2: The Town shall limit the type and amount of uses within the Town to those that are compatible with the nature, character and image of the Town as a quiet, small-town residential community with a village-like commercial area. Based on the Draft and Final EIR's, the subsequent light impact assessment, the written and oral testimony and the Entire Record, the Planning Commission hereby finds that the Project's nighttime weekend headlight impacts on nearby residences will be significant and will materially intrude into the enjoyment of residents of neighboring homes. The Project would permit substantial nighttime traffic in a quiet, secluded and darkened residential neighborhood. The Project would allow scores of cars to enter and exit on site twenty-seven weekend evenings as late as 11 :00 to 12:00 p.m. (including clean-up crews) on Saturdays and 9:00 to 10:00 p.m. (includi'ng clean-up) on Sundays. Additionally, lot lights, which are to be on timers, would not be turned off until the clean-up crews leave. These lights would be visible from neighboring homes. Several nearby residences would be affected by late-night headlight glare into their sleeping quarters. The mitigation measures proposed to reduce these impacts to insignificance would not provide immediate nor complete blockage of anticipated headlight glare .into these homes. Subjecting these residents to potentially sleep- disturbing headlight glare, particularly when coupled with the parking lot noise discussed above, cannot be dismissed as immaterial or insignificant to the surrounding neighborhood. These headlight- impacts would conflict with several General Plan Land Use Goals and Policies as cited above. 4. Neighborhood Compatibility The Project proposes. construction of two large buildings comprising a total of 13,395 gross sqi.are feet. As described in the Draft EIR at Figure 5 and on page 132, most of this additional space would be occupied by the Multi-purpose Room comprising 9,733 gross square feet. This building, when coupled with the existing and other proposed facilities, would total 57,140 gross square feet, or over 1.31 acres of floor space. A total of 139 on- site parking spaces are proposed to accommodate this square footage. The Planning Commission, based on the Entire Record, finds that the Project poses significant impacts on the surrounding neighborhood from increased noise levels, additional light and glare, additional traffic, increased parking demand, and reduced vehicular and pedestrian safety. Taken as a whole, these deleterious impacts are inconsistent with the Tiburon General Plan goals and policies as set forth below, which are intended to protect the character and quality of life of neighborhoods: LU-A: To provide an orderly balance of public and private land uses within Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 10 LU -C: LU -0: LU-H: LU -I: LU-2: LU-6: LU-13 c-c: C-O: C-F: C-I: C-1 : convenient and compatible locations throug~out ~he community. To preserve the character of the Tiburon peninsula through control of the type and location of development. To ensure that all land uses, by type, amount, design, and arrangement, serve to preserve, protect and enhance the small-town residential image of the community and the village-like character of its Downtown commercial area. To protect and preserve existing neighborhood character and identity. To encourage intensity of development, density, and house sizes/architectural styles that are consistent and compatible with surrounding neighborhoods. The Town shall limit the type and amount of uses within the Town to those that are compatible with the nature, character and image of the Town as a quiet, small-town residential community with a village-like commercial area. The Town shall closely consider the environmental constraints of land and Prime Open Space preservation and other General Plan policies through the development review process in determining the location, type, and density and/or intensity of development. Neighborhood character, which is defined by the predominant architectural styles, type of buildings, building heights, mass, setbacks, landscaping, and natural characteristics, shall be of material consideration and preserved in all construction projects, including remodels and additions, to the maximum extent feasible. To maintain all existing, as well as to design all future, residential streets with consideration of a combination of residents' safety, cost of maintenance, and protection of residential quality of life. To provide an adequate means of circulation for emergency vehicles. To minimize traffic congestion. To provide adequate parking throughout the Planning Area. Land use decisions shall take into consideration potential traffic and circulation impacts. Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 11 N-A: To ensure that residential areas are quiet and that noise levels in public and commercial areas remain within acceptable limits. N-B: To eliminate or reduce unnecessary, excessive and offensive noises from all sources. N-C: To minimize the exposure of community residents to noise through the careful placement of land uses that may cause noise impacts. SE-A: To maintain a safe and healthy community. Based on the Draft and Final EIRs, the written and oral testimony and the Entire Record, the Planning Commission hereby finds that the Project's deleterious effects on neighborhood character are significant. ' The Tiburon General Plan directs the Planning Commission to "protect the health, safety and welfare of the community," and to "[t]o protect and preserve existing neighborhood character and identity." Land Use Element, Land Use Goals LU-B and LU-H. To this end, the Planning Commission is obligated to "ensure that all land uses, by type, amount, design and arrangement, serve to preserve, protect and enhance the small-town residential image of the community. . . ." Id. at LU-D and LU-2. The Project conflicts with these Land Use Goals and Policies, and those of the General Plan's Noise, Circulation and Safety Elen:'ents, in numerous, fundamental respects. Siting a facility with the capacity to accommodate over 1,500 people, and with plans for large evening events, in a quiet residential neighborhood, while providing only 139 on-site parking spaces, clearly conflicts with the neighborhood character. Adjacent homes would be subjected to nighttime increases in noise by as much as 25 decibels. Nearby residences would be subject to headlight glare from scores of cars arriving and leaving the facility on weekend nights. Neighbors would be subjected to worsening traffic, parking congestion, and significant traffic hazards. Taken in the aggregate, these adverse impacts on the surrounding neighborhood pose unacceptable deleterious effects on the "existing neighborhood character and identity," creating conflict, rather than the required compatibility with sl;lrrounding neighborhoods, and are inconsistent with the Tiburon General Plan. Id, at LU-I and LU-2. Section 5: Zonina Ordinance Non-conformance The Planning Commission, based on evidence in the Entire Record, finds that the ,Project is inconsistent and does not conform to the findings necessary to approve the Application, as set forth within Section 4.04.02 of the Tiburon Zoning Ordinance, as follows: 8. Determine whether the location proposed for the Conditional Use applied Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 12 for is properly related to the development of the neighborhood as a whole. The proximity of homes surrounding the site, the bowl-like topography in which the site rests, the relatively narrow residential streets nearby, and the relative quietude orthe area surrounding the site create heightened potential for impacts on the surrounding homes and streets during otherwise quiet times for this neighborhood, espedally on week-end evenings and nights. The noise, lights, and traffic generated by the Project would be incompatible with the quiet of the neighborhood during the weekend evenings and night times during which the proposed new events and activities would occur. b. Determine whether the location proposed for the particular Conditional Use applied for would be reasonably compatible with the types and uses normally permitted in the surrounding area. The Project is not compatible with the surrounding low-density residential neighborhoods. The proposed nighttime events would have clearly audible noise impacts on surrounding residences on Saturday and Sunday nights when neighborhood quietude is most desired by residents for their reasonable enjoyment and have a right to rely on peace and quiet. While neighborhoods often bear a burden of noise and traffic when a religious institution and/or school is in the vicinity, the frequency, time of night, and scale and number of attendees of new activities and events proposed for the site would unnecessarily intrude on the usual hours of respite from that noise and traffic currently enjoyed by the surrounding residential neighborhoods, and make the proposed project incompatible with the types of activity and uses normally permitted in the surrounding residential area. c. Evaluate whether or not adequate facilities and services required for such use exist or can be provided. The area surrounding the Property currently experiences street parking overflow on a regular basis as the total on-site parking capacity is currently approximately 100 unrestricted spaces~ according to the EIR Appendix D, with approximately 120 spaces total, including restricted spaces. Events, or combinations of events, or any time at which more than 250-275 people are on the site are likely to result in street parking overflow onto surrounding residential streets. The Project would create an additional net total of 22 parking spaces, far less than required by the Tiburon Zoning Ordinance. The proposed Multi-purpose Room, at 642 seats capacity, would require 161 additional parking spaces in accordance with Sections 5.08.11 and 5.08.04(d) of the Tiburon Zoning Ordinance. d. Stipulate such conditions and requirements as would reasonably assure Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 13 that the basic purposes of this Ordinance and the objectives of the General Plan would be served, Based on its review of the draft resolution of conditional approval (Exhibit 6 in the April 24, 2006 staff report), the Planning Commission concludes that the Project as proposed is not approvable as explained above and the Applicant has requested an '~up or down" vote on the Project. The Planning Commission is therefore proceeding with a denial and stipulation of conditions of approval is inappropriate. e, Determine whether the Town is adequately served by similar uses presently existing or recently approved by the Town. The Planning Commission questions whether the existing physical plant, comprised of approximately 43,000 square feet of floor area on the Property, needs to be expanded by 13,395 square feet of new floor area additions in order to achieve the stated goals of adequately serving the current needs of the membership. The Planning Commission finds that other construction options exist that keep the scale of the proposed improvements in better harmony with surrounding development. The Planning Commission further finds that the Project is inconsistent with Section 4.04.03(a) (2) and (3) and Section 4.04.03(b) (1) and (3) of the Tiburon Zoning Ordinance, which state that the following factors shall be considered in determining whether or not any conditional use should be permitted in a specific location: 8. The relationship of the location proposed to: 2, Transportation, utilities, and other facilities required to serve it, The proposed weekend nighttime events would increase traffic levels on Blackfield Drive, Via Los Altos, and Reedland Woods Way during traditionally off-peak hours in this low density residential neighborhood. The 22-car increase in parking capacity of the lot is not nearly sufficient to serve the increased parking demand of the Project. Spillover parking on adjacent residential streets would cause unsafe turnarounds, congestion and inconvenience for local residents. 3, Other uses of land in the vicinity. The Property is surrounded by low-density single family residential neighborhoods, which would be negatively affected by the increased noise, traffic, and activity levels caused by the proposed additions and expanded use. Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 14 b. Probable effects on persons, land uses, adjoining proper!ies, and the general vicinity, including: 1. Probable inconvenience, damage, or nuisance from noise, smoke, odor, dust, vibration, radiation, or similar causes. ' The surrounding residential neighborhoods would be exposed to increased noise levels from new activities within and outside the proposed Multi-Purpose Room, including sounds from cars arriving and departing from the new parking lot, parking lot conversation and commotion, including loading and unloading of equipment and items that celebratory events of substantial scale typically generate. The 24-hour weighted noise averages calculated by the nqise studies for the Project do not address the peaks of noise to which immediately surrounding homes will be exposed from the activities and eventsproposed, but the EIR did acknowledge that noise spike increases of up to 25 decibels could occur. The Planning Commission finds that such noise spikes would result in audible, noticeable, and inconvenient noise for the residents of several surrounding homes, particularly during the weekend evening and nighttime hours during which the new events would occur. 3. Probable inconveniences, economic loss, or hazard occasioned by unusual volume or character of traffic or the congregating of a large number of people. The Planning Commission finds evidence in the Entire Record supports a conclusion that as proposed, additional noise, traffic, traffic safety, light and glare, and neighborhood incompatibility and disruption caused by the Project would result in inconveniences during previously quiet hours for the surrounding low density resid~ntial neighborhoods. The Planning Commission further finds that the Project is not in conformance with Sections 5.08.04 (d) & (k), 5.08.10 and 5.08.11 of the Tiburon Zoning Ordinance, which contain the following provisions: ' a. Section 5.08.04(d). Place of assembly: one parking space for each 4 seats of maximum seating capacity; or one for each 40 square feet of assembly area, whichever is more; and Section 5.08.04(k)(1). Child Care: 3 minimum, plus one for each 10 children over the first 15. As indicated in DEIR AppendixD: Table 9, the Tiburon Zoning Ordinance parking requirement is comprised of the following elements: 1) for the 4,500 square foot portion of the Multi-purpose Room that would provide Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 15 up to 642 seats: 161 parking spaces; for the 5,336 square foot remodeled Sanctuary that would provide up to 550 fixed seats: 138 parking spaces; for the remodeled 1,842 square foot Chapel: 46 spaces; and for the 150- student Pre-School: 18 spaces. The combination of uses yields a total parking requirement of 363 spaces, far more than the 139 spaces proposed for the existing lower and proposed new upper parking lots. b. Section 5.08.10. Multiple Uses. Parking required for multiple uses shall be the sum of the requirements for each individual use; provided that parking spaces required for one use or time may utilize the same spaces required for another use or time upon Commission approval, by means of appropriate conditions, of said dual parking, The Commission shall not grant such approval unless it is able to, and does, make the following findings: (a) That the uses or times for which overlapping parking is being requested do not have overlapping hours of operations sufficient to result in a deficiency of parking spaces. (b) That the parking lot in question is within a reasonable distance from the uses for which parking requirements are to be overlapped. Failure to abide by the conditions of the approval shall be cause for revocation of such approval for all uses involved, regardless of previous approvals. The Planning Commission would have reasonable discretion to reduce the combined parking requirement as described in subsections (a) and (b), above. However, subsection (a) indicates that the reduction must be based on overlapping uses not having overlapping times. The DEIR provides an analysis of the overlapping uses on page 65 and concludes that existing and proposed uses would utilize the Chap~l, Multi-purpose Room, and Classrooms at various times, as follows: 1) Saturday morning services, an existing all year event, would involve the Sanctuary and Multi- purpose Room for which the Tiburon Zoning Ordinance requirement is 299 spaces; 2) Saturday and Sunday evening new events would use the Multi-purpose Room for which the Tiburon Zoning Ordinance requirement is 161 spaces; and 3) Sunday morning Religious school, an existing all year event, would use Classrooms, Sanctuary, Multi-purpose Room and the Annex for which the Tiburon Zoning Ordinance parking requirement would be 299 or more parking spaces. In summary, for these overlapping uses, Tiburon Zoning Ordinance requirements range from 161-299 parking spaces where only 139 spaces have been proposed. The Planning Commission finds this discrepancy too large to approve the Project. Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 16 c. 5.08.11. Change In Use: Additions and Enlargement. Whenever on any property there is a change in use, or increase in floor area or in the number of.employees, or other unit of measurement specified above to calculate the number of required off-street parking spaces, then additional off-street parking spaces shall be provided on the basis of the increase in floor area or number of employees, or in such other applicable unit of measurement: 'The effects of additions, enlargements and changes in use shall be cumulative in . regard to off-street parking requirements, The Project would be inconsistent with this requirement to provide additional off-street parking spaces on the basis of the increase in floor area. As calculated above, the combined parking requirement for the remodeled and expanded facilities is 363 parking spaces and ba$ed upon the overlapping uses proposed, it could be reduced to 299 spaces. The proposed 139 parking spaces would not fulfill this requirement. Alternatively, the proposed expansion represents an increase of 31 ok, of the existing floor area, thus existing parking could be reqU'ired to increase by a comparable percentage or to a total of 153 spaces. The proposed 39 spaces would fall short of this reduced parking requirement by 14 spaces. The Planning Commission finds that although it would be supportive of some degree of reduction from the standards due to overlapping parking, the discrepancy is too large to warrant Project approval. Section 6. Denial of Application. NOW, THEREFORE BE rt RESOLVED that the Planning Commission hereby denies the application of Congregation Kol Shofar for approval of its proposed Conditional Use Permit Project (File #10404) for the reasons set forth above. PASSED,AND ADOPTED at a special meeting of the Planning Commission of the Town of Tiburon on May 31,2006, by the following vote: AYES: Aguirre, Collins, Fraser & Kunzweiler NOES: O'Donnell ABSENT: None ATTEST: JOHN KUNZWEILER, CHAIRMAN Tiburon Planning Commission SCOTT ANDERSON, SECRETARY . Tiburon Planning Commission Resolution No. 2006-16 5/31/2006 17 EXHIBIT L )'~. RECE'VE,~ ,97-053" .13: TOWN OF ,lBUd,ON Recorded I Official Records I nLl 1 ::. \997 County of I RECORDING REQUESTED J~ MARIN I RETURN TO: CPAHTMENTOF JOAN C THAYER I Tiburo~ Planning D@.tP'\~UI...N\Tv DEVELOPMENT Rec~:~:r _ I 1155 T1buron Boule~~' 1:15pm ~~ ~ep 97 I Tiburon, CA 94920 Rec Fee Total .00 .00 XX 5 RESOLUTION NO. 97-17 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON AMENDING A CONDITIONAL USE PERMIT FOR THE KOL SHOFAR SYNAGOGUE AT 222 BLACKFIELD DRIVE (AP 38-351-34) WHEREAS,. the Planning commission of the Town of Tiburon does resolve as follows: Section ~ Findings. A. In 1985, the Town of Tiburon approved a conditional use permit (Ordinance No. 306 N.S.)authorizing the use of property at 215 Blackfield Drive as a synagogue and private day school. Condition No. 24 of Ordinance No. 306 N.S. authorized the Town to perform a review of the permit on an annual basis as needed to ensure compliance with conditions of approval. The Planning Commission has initiated a review of the Town's original 1985 Town Conditional Use Permit pursuant to that condition. The conditions of the 1985 conditional use permit were based upon the following documents: ' 1. A letter dated May 2.0, 1985 from stan Dick, Congregation Kol Shofar, to the Planning Commission. 2. vista Tiburon Annexation, Prezoning, and Master Plan application narrative, prepared by Taldan Investment Company, dated 8/15/84. B. Applicant has submitted a letter dated December 23, 1996 'from Stan Deck setting forth current use characteristics of the site. The letter indicates the same' type of uses as approved in 1985(synagogue and day school), but at increased levels of membership and activity. C. The P~anning Commission held a dUly-noticed public hearing on December 11, 1996, and held additional public meetings on January 8, 1997, February 26, 1997, April 23, 1997, May 28, 1997, and July 23, 1997 and has heard and considered testimony from interested persons. D. The Planning Commission has found that due to increased levels of membership and activity related to the synagogue, PLANNING COMMISSION RESOLUTION NO. 97-17 EXHIBIT NO. 11-. 8/13/97 and based upon evidence in the record, the placement of amended conditions of approval is appropriate and reasonable at this time. E. The Town has adopted a Negative Declaration for the project pursuant to the California Environmental Quality Act and Town of Tiburon local CEQA procedures. Section h Amendment of Conditions. NOW, THEREFORE BE IT RESOLVED that the Planning Commission of the Town of Tiburon does hereby adopt amended conditions of approval for the synagogue and private day school use at 215 Blackfield Drive, superseding those conditions set forth in Ordinance No. 306 N.S. related to the synagogue and day school, as set forth below: 1. The baseline characteristics of the synagogue and day school uses are set forth in the letter dated December 23, 1996 from Stan Deck to the Town of Tiburon, attached hereto as Exhibit A, and made a part of this resolution. . 2. No membership cap is established for the synagogue use; however, the Town will continue to monitor and document growth of the membership with regard to adequacy of parking, traffic congestion, and neighborhood compatibility. 3. The day school shall be limited to a maximum student enrollment of 100 children. 4. On High Holy Days, the synagogue shall provide split religious services. Those services shall be separated by not less than sixty (60) minutes between the end of the first service and the beginning of the second service. 5. Permittee will conduct an educational program for its members concerning traffic control and parking. The program will include written materials sent to each membership unit providing the following: A. A notice strongly encouraging that parking should be in the synagogue's on-site parking lots. B. Diagrams showing parking locations and circulation patterns, including entrances to and exits from parking lots. Cc A notice informing members of safety measures to be observed regarding neighborhood traffic and pedestrians. 1 PLANNING COMMISSION RESOLUTION NO. 97-17 8/13/97 ~ t ~ 2 D. A statement encouraging courteous conduct toward neighbors in all matters relating to the use of the site. The educational program outlined above should be implemented on an ongoing basis. 6. Permitte~ shall create a database of its members to facilitate and encourage car pooling. The information from this database shall be used to provide information to members about potential car pool partners, and will be targeted to members for whom car pooling may be a viable means of reaching the synagogue. Car pooling information shall be included in the educational program outlined above. 7. Improved directional/informational signageJrelating to parking and site circulation on the property shall be installed. within 30 days of final approval of this permit, permittee shall submit for review and approval py the Planning Director and Town Engineer such a signage plan. The approved signage plan shall be installed within 30 days of said staff approval. 8. Operational success of the current Sunday School drop-off location and circulation shall be reviewed pursuant to the review schedule set forth below. This review is.especially critical if the approved but as yet unconstructed middle parking lot is completed. 9. A shuttle program shall be in place and implemented for the High Holy Days observance in 1997. Permittee shall develop a shuttle program for review and approval by the Planning Director. For the first year of High Holy Days following completion of the approved middle parking lot, the shuttle service need not be provided but activity shall be monitored and photographed by the permittee for use at the next annual review, when the possible continuing need for a shuttle program shall be considered. 10. Parking lot lighting shall be on timers to turn off no later than 10:00 P.M. each day. The duration of the lighting may be extended via manual override device when occasions demand, but shall in no event be kept on beyond 11:00 P.M. on any occasion, except for Rosh Hashanah, Yom Kippur, Selichot, Shavuot, and the second night of Passover, at which times the parking lot lighting may remain on until no later than fifteen minutes after the last vehicle has exited the parking lots. 11. Permittee shall prepare an annual calendar of planned events, usually on or around July of each year. Said calendar shall be submitted to the Planning Director upon PLANNING COMMISSION RESOLUTION NO. 97-17 8/13/97 3 i completion and shall be posted outside the synagogue in a manner such that it is available for review by the public. Any changes to the calendar shall be forwarded to the Planning Director and shall be posted as described above. 12. Permittee shall advise the Tiburon Police Department when it anticipates that there will be heavy use of access roads to the facility. lrHeavy use" shall mean when the Executive Director of Kol Shofar expects that an event scheduled at the facility will result in the parking lots at the synagogue and Via Los Altos street parking below Vista Tiburon Drive will be full. Permittee shall coordinate such events with the Police Department, and shall be responsible for costs of any additional required traffic control as determined by the Police Department. 13. Exterior amplified sound is approved for the annual Sunday School closing ceremony only, at which time speakers shall be faced toward the facility and away from surrpunding residential uses. Any other event at which exterior amplified sound is proposed must secure a Special Event Permit from the Town. 14. No specific limitations on outdoor activities after dark are imposed at this time. However, the Town shall review this provision during its periodically-s~heduled reviews of the conditional use permit as set forth below. 15. Permittee will advise and educate its tenant (the day school) concerning this use permit, with special emphasis on minimizing traffic, noise, lighting, courtesy to neighbors, and other issues addressed in the use permit conditions of approval. 16. Permittee shall designate a responsible and accessible person in a position of authority to act as the official contact person for surrounding neighborhoods, and to respond to communications, complaints, or perceived problems. The Town shall be notified of the name and phone number for this contact person, whose name and phone number shall be posted next to the annual calendar of events referenced above. 17. Any significant expansion or modification of the uses or operations allowed herein, as determined by the Town of Tiburon, shall require an amendment to this permit. 18. This permit shall be reviewed by the Planning Commission ~ ~ following final approval, and annually thereafter. A special review shall be conducted the first November following completion and use for the High Holy Days of the approved but as yet unconstructed middle parking lot. PLANNING COMMISSION RESOLUTION NO. 97-17 8/13/97 4 Review of the permit shall be to ensure, among other things, compliance with conditions of approval and continued compatibility of the uses with surrounding residential development, including but not limited to traffic safety, parking, and traffic congestion issues. Permittee shall be responsible for all Town processing costs associated with the review. Permittee shall be responsible for submitting, at least 30 days prior to review date, a detailed narrative of the current use and operation of the synagogue and day school, and supporting documentation to demOnstrate compliance with conditions of approval of this permit. 19. The Town of Tiburon reserves the right to amend or revoke this Conditional Use Permit for cause, in accordance with Zoning Ordinance regulations of the Town. PASSED AND ADOPTED at a regular meeting of the Planning Commission of the Town of Tiburon on August 13, 1997, by the following vote: AYES: COMMISSIONERS: Berger, Greenberg,Sadrieh & Schrier NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None NOT PARTICIPATING: Commissioner Klairmont ATTEST: '\res\97-17.res .... ,~.~ r ., ~ t'"") : -y... .- ., ." ., I t-..... . *'. .,/ .'1 / ,. .. , ~ I. .... ~ -..t. fl' .. J . ~i~ . .,. , "6" PLANNING COMMISSION RESOLUTION NO. 97-17 8/13/97 5 December 23, 1996 9 7 -1 7 ( S:J{o O}.J ~~':>. ~~, ~'(' ~..,../~~ ~ :-!j .'- 0:-- (f' (") 'J'. ~erva.ti'1J~ EXHIBIT "A" Tl .>LANNING COMMISSION RESOLU'...._ON NO. Congregation Kol Shofclr 215 Blackfield Drive Tihuron. California 949~O Tel: -/./5 388-/818 Fax: -/.15 388-5-+:23 Rabbi Lavey Derby Olarles Wisch Prr,:sidall !vIr. Scott Anderson Planning Director Town of Tiburon 1155 Tiburon Blvd. Tiburon, CA 94920 RECEIVED ~ ~r" f") 6 1096 u [ :~ Co. ) Michael Liepman Etl:CUtive Director TCv\fN OF TIBURON F. :' -..'-' ::,.'!~ ,~ i='U:LDl~G D~?T. ~-"'.a ... ...1 S'wt .... ..." B~verlv Pinto Direcca' ot Educ.Juon Karen Roekard Program Direcu:r Re: 215 Blackfield Drive, Tiburon E3ine Levy VIce Pre:sidmclAdlr.inlSlTJl.ion Nancv Jacobs VIce p;.esidalflProgr Jmrning Judy Erdberg Tre=er Dear ivIr. Anderson, .....,# Nana Mever C:irrespondi~ ~curJr.v Todd Slenner Fuunci.31 Seaef."Jry Cynthia Ulman &cording 5<<rer.1rY M~ Rubinstein Iml1ledLlCe PJS( Presidtnt In response to the questions which arose at the December II, 1996 Planning Com.mission meeting and your memo of December 17, 1996, the following will serve as an expanded update to our September letter. Congregation Kol Shofar now has 480 member units or 1523 total people_ This breaks down to 730 married or coupled adults and 129 adult singles with a subtotal of 850 adult members. We have a total 0; 673 children, which brings us to 1523 people. Of course, many meml come for just the High Holidays or for very few events throughout the year. Others are more active and visit the synagogue at lease once weekly. Of the 673 children, please note that only 330 actually attend our religious school classes. When we moved to the building in 1984, we had 220 membership units and over the past 12+ years, we have had an average annual increase of approximately 21 membership units. Direccors ae Luge ~or:t Contini Alvin Greenberg Arthur Greenberg L~wis L~vit.'ln Barbara Reiner McEmyre Howard Schwartz Roben Sherman Sharon Str:lUSS Bill T abb Diane Zack Our current activities continue to range from religious services (Sanctuary and Chapel), religious studies (classrooms), library, administrative, Board meetings, social events, community outreach and affiliated activities. Our present, full time staff consists of 4 individuals with six other part time people who co,me into the office on various days, as well as volunteers who help out as needed. The following is a day to day breakdown of the use of our facility with the time of each event and approximate number of people in attendance. ~--' U~ i lED . W~ACCC.J~ ,)! (O~')tKV), TlVE '. . '. I ~~.:~(\~'\ Kol Shofar. '.(he calf ofrlIt! Shofar... seek.s [() he i.J welcoming commlilliry OfuH'ukcning LlllJ discovery where rllt! jnr nflewish !i\'in-.: is mad/! uccessihie l[!/c/ re!I:'\'ulIf r{) ((}fl(i!mplirul"\' I(il:'. Friday Friday evening Sabbath service at either 6:15 to 7:30 ill: 7:30 to 9:15 pm, attended by an average of 50 people. (most of these people are members with 'approximately 2 - 5 nonmembers attending) Saturday Sabbath service between 9:30 am -1:30 pm with 50-100 people in attendance depending on whether a Bar or Bat ~litzvah is also taking place. If a Bar or Bat :Lvlitzvah is happening, we may have between 100 and 150 nonmembers in attendance. If there is no Bar or Bat NIitzvah there are approximately 50 members with 2 -5 nonmembers attending. Once a month on Saturday evening, from 7:30 - 10:00 pm, we have a gathering of 50-100 people in our Sanctuary. A short service signifying the end of Sabbath is followed by a guest speaker or performance. . Sunday Religious school from 9 am - 1t2:30 pm with approximatelY 272 students, 20 faculty and 100 other adults. :NIany families come and leave together and others are encouraged to carpool. (All members except for 1 person) A luncheon for the homeless in cooperation with several area churches is held from 1-2 pm for 15-25 people who come in one or two vans. They come and leave from the same entrance and utilize one room in the building. (All non- members except when Kol Shofar provides and serves the food.) Monday Staff only, 9 am to 5 pm. No evening meetings are scheduled on this night. Tuesday 'On Tuesday evenings, there are meetings held from 7:15 -9:30 pm. Once a month there is a Board meeting, Executive Committee Meeting, Ritual Committee !vleeting, Education Committee lvleeting, Fund Raising Committee Meeting, etc. In addition, on Tuesday afternoons from 3:40 -5:40, religious classes are held for 20 people and 3 faculty. Occasionally, in the evening, there might be a small gathering of approximately 10 people for meetings such as grief counseling. Members only attend the meetings above. Wednesday Religious School is held from 3:40 to 5:40 pm for 142 children, and from 7-9:10 pm for 60 children and several adults and staff members. Our adult education program is held at approximately the same time and attracts varying sized groups throughout the year, which averages 50 people. On occassion, up to 20% of the people coming to the adult education classes are nonmembers. Page 2 Thursday A "minyan" is held with 15 in attendance from 7-9 am. At 11:45-1 pm, a IILunch and Learn" is held with the Rabbi with a'pproximately 15 in attendance. (An average of two nonmembers may attend) Monday- Fri day 9-11 am the Side by Side Program for infants and parents meets with 6-12 participants and teachers. Our longtime tenant, Ring J\;lountain Day School (formerly named- the Childrens' Circle Center) serves the general community with a total enrollment of 90 pre-schoolers and 10 elementary students. About 50-60 children attend each day. 40% of the students are picked up by 12:30 pm. The remainder of the pickups are daycare and depart between 3-6 pm. Elementary school ends at 3 pm. Arrival time is between 8:30 and 9 am. Carpooling is encouraged. Ring Mountain Day School continues to occupy about 17% of our building and is a non-profit organization. Annex Building _ As noted on our plan, the small structure in the rear of our main building is utilized for supply storage, library and book storage. It is also the movement room/ gym for Ring ivlountain Day School. One class of Kol Shofar meets there on Sunday mornings. High Holy Days The two day Jewish New Year (Rosh Hashanah) and Day of Atonement (Yom Kippur) are our three busiest days and two busiest evenings of the year. On the evening of Yom Kippur, Yom Kippur day and the first day of Rosh Hashanah there are approximately 800 people attending OPTION 1 and 750 for OPTION 2. These figures includes children who are in childcare and in separate children's services . held elsewhere in the building. To alleviate overcrowding, we have successfully utilized a split service format. We have approximately 195 non-members attending the "OPTION 2" services only. (see attachmenta). The first service ("OPTION 1") is attended by members only. Regarding traffic, the Tiburon Police Department and our own staff have worked to make this function well. (see Traffic/ Parking heading below). l'here is a time gap of 45 minutes to one hour between services on three events when we split services. (see attachment for the times of the services last year with the time gap listed.) Additional Significant Activities for the fiscal year 1996-97 June, July, August - (These are very quiet months for the synagogue; there is no school or adult education, and last year we did not have our Saturday night event in these months. The rabbi is off in July so there is very little activity during the days either, and no Bar or Bat ivlitzvahs.) Once a month, on Tuesday evenings from 7:30 pm - 9:30 pm we provide our social hall for the ivlarin County cub scouts parents planning meetings. Page 3 In October, we provided our sanctuary to the public for two community meetings to discuss election issues. (approximately attended by 50 people or less) On December 8th, we had a Chanukah party from 5 - 8 pm, that was for member families. Approximately 250 people attended. Once a month, we have 2 special services that we offer the community" called the "Neshama ivlinyan" - one is on Friday night from 7:45 pm - 9:15 pm and the other is on Saturday morning from 10 am - 12:30 pm. We have approximately 80 people on Friday and Saturday. (approximately one half non-members in attendance) We have made our best effort herein to list our scheduled events above and on the attached exhibits. Amont the attached is a Kol Shofar school calendar and Ring 1tlountain Day school calendar (with their special activities and events marked). However" and occassionally we have one time events such as a play which was presented on December II, 1996, our yearly barbeque (weather permitting) for the Sunday school children or our op.ce a year general membership meeting and election of officers in :tvlay. Building Capacity Our main sanctuary and balconies can currently accomodate approximately 840 people per the Uniform Building Code. Our chapel can accomodate, based on its square footage, approximately 190people. Generally the room is used by about half that amount or less and has never been used by 140 people. In addition to areas used on other levels" the ten rooms on our lower level accomodate about 130 children, the remainder of our enrolled students use meeting rooms" the library, the chapel, our annex and portions of the sanctuary. Traffic/Parking In the past, we have notified the Tiburon Police Department, and they have assisted us wi th traffic control at the intersection of Reedland Woods Way and Blackfield Drive. :tv'lernbers of our staff help direct traffic onto and within the unpaved middle parking lot in an attempt to maximize the number of automobiles parked in-that area. We refer you to the attached parking map which was sent to all of our members with their High Holy Day tickets. We will, of course, include an updated map in future years. General Information We have occupied our building for more than 12 years and enjoyed a good relationship with our neighbors. The concern from a few people this past year about our participation in the Southern Nlarin Coalition on the Homeless with local churches (such as Westminister Presbyterian, S1. Stephens and Community Congregational) has calmed down as the imagined problems did not arise. "'vVe have Page 4 -- had zero incidents since the inception of the one-hour program on Sundays, as noted above~ Our property is also made available to the Alto- Richar4son Fire Department, PG&E, Brooks Tree Service (to keep his trucks off the street) and moving companies which have used our lower lot as a transition point for our neighbors. As previously mentioned, our building is made available upon request for monthly cub scout planning meetings and public community meetings. We have attempted to put a reasonable limit on outside usage because of cone-ems about additional traffic in our neighborhood. Contractors working on local jobs have been permitted to park flat bed trucks. The building also serves as an emergency shelter location in case of disaster. Weare proud to be a part of the Tiburon community,. and look forward to continuing to beautify our building and grounds. -- ('\: L-v"-V~-L- . Stan Deck ~lding Committee Chairman cc: Ken Kurtzman Dan Fred Page 5 Kol Shofar Membership Breakdown I I Adult(couple9j) 7301 '- 120 Adult singles trTL # of adult membersl 850 I I age 16--22 67 I I age 13-18 154/ I age 5-13 367 5 and'younger! '85 TTL # of ch ifdren I 673 I I I Total # of Members: 15231 I I ., .- I I Students: I Sundays 2721(members) 1 (nonmembers) Wednesday afternoon 142 (all are included in Sunday figure above) Wednesday night (HS) 60 (members) I 3 (nonmembers) I ",~;;:i~ ~:I,::; ~,~~ _;.~: "; '.-i '}:::>..:;\:::~'." ':>:-:, :..'..~,>',i:{: . >~~~<;!:: Federal and state brownfieldgrants are be- ing used to clean up riverfront industrial ar- eas. In 2003, the city alsa received a $7.3 millian grant fram Visian Iawa, a state pro- gram that provides incentives ta develap rec- reatianal, cultural,. educatianal, and .enter- tainment facilities. The maney will help Waterlaa develap a riverfrant traillaap, large ped~strian plaza, and amphitheater, and in- stall an inflatable rubber bladder an a dawn- (Own dam ta raise the river level far recre- atianal activities. The city is marketing the cleared industrial areas ta develapers far twa new riverfront hausing prajects. "Waterlaa daesn't have the urban housing stack that is gaing ta be de- sired by people caming through the digital age," Vandewalle says. A multi-story apart- ment building, with retail space an the main floar, will anchar a new pedestrian plaza, and a candaminium project will .occupy the other side .of the river. City planners are naw preparing roning .over- lay districts for the central business district, attempting ta duster entertainment venues, re- tail .outlets, and ather businesses in appropriate areas. Hapes run high that an influx of new dawntawn residents will spark investment in entrepreneurial ventures, such as restaurants, caffee shaps, and a grocery stare. Waterlaa has "the quality aflife that never will replace a big urban city," Vandewalle says. "But I think the this is gaing ta be .one .of the caalest areas in eastern Iawa. " Tim Jamison Jamison is a reporter for the Waterloo-Cedar Falls Courier. tutians under the Religiaus Land Use and Insti- tutianalized PersansAcr. A recent RLUIP A case in New Yark, and ather rulingsin the federal appellate caUttS, may signal a trend taward nar- rower readings ofRLUIPA than in the past. The Secand D .S. Circuit Caurt .af Ap- peals September ruling in Westchester Day School v. Village ofMamaroneck uphalds the village's denial .of a special permit to expand an Orthadax Jewish schaal. (See the April 2003 issue .of Planning and the February 2004 issue .of Planning 6- Environmental Ldw for mare an RLUIPA, its implicatians, and recent develapments.) RLUIPA, a federal law enacted in 2000, farbids lacal gavernments from applying land- use regulatians "in a manner that impases a substantial burden an the religiaus exercise of a person. . . .or institution, unless the gavern- ment demanstrates that impasitian .of the burden. . . is in furtherance .of a compelling gavernmental interest." The law alsa pravides that the use, building, or canversian .of real property far religious use is considered reli- . . glOus exerCIse. The federal trial caurt that granted sum- mary judgment in the schaol's favor in De- cember 2002 read RLDIPA toa broadly, the appeals caurt said. Secular and religious use Westchester Day Schaal, which has an en- rollment of abaut'. 470, has .operated in Mamaraneck far mare than 50 years. In 2001, the scha.ol applied ta the village's baard of appeals ta modify the special per- mit under which it .operates, in order ta build an additianal schaal building and renovate its existing facilities. The plan called for a new multipurpase roam and 25 classrooms, and renavated .of- fices, library space, and camputer rooms. It alsa included a library dedicated to Jewish schalarship and a new chapel. In ather words, same .of the new constructian was intended specifically far religiaus purposes, but mast of it involved secular facilities. The schaal filed suit after the baard .of ' appeals denied its application. The board based its rejection an the patential far in- creased intensity of use fram higher enroll- ment at the schaol, additional traffic, and insufficient parking. In its ruling .overturning the baard's deci- sion, the trial caurt faund that "religious exer- cise," protected under RLDIP A, permeated the entire plan. It said denying permissian ta expand wauld impair the quality .of the school's religious educatian. But the appeals caurt said it daubted that theprotectians afRLUIPA extend that far. Such a broad reading wauld suggest that RLUIP A gaes far beyand the praper func- tion .of pratecting the free exercise .of reli- American Planning Association 37 gian, and int.o the impermissible area of entangling gavernment with religian in a way that prefers religion aver irreligion, and canfers special benefits upan it, t' caurt declared. James Lawlor Lawlor is a lawyer in Silver Spring, Maryland, and a regular contributor to Planning. redevelapment plan that wauld dramatically change the l.o~-rise, suburban skyline afwest- ern Long Island. The plan is the grand vision .of CharI Wang, .owner .of the New Yark Islanders hod team. Wang envisions redevelaping the aging athletic. c.omplex where the team currently plays to include a revamped coliseum and a 60-stary hatel and cando tawer, dubbed the "Great Jjghthause," that Wang has said would be not only the tallest structure on Lang Island but als.o the tallest lighthouse in the warld. Madeled after one .of the seven wanders of the warld-a 2,200-year-ald lighthouse in Alexandria, Egypt-the Nassau structure wauld be visible far hundreds .of miles, Wang has said. He has the supp.ort .of many in the Nassau Caunty legislature as well as caunty executive Thomas Suazzi. But s.ome doubt the feasibility of his plan, and .others questian whether it wauld benefit the densely papu- lated caunty, whqse nearly 1.4 millian pea pIe live in 287 square miles. Still others wander haw it fits Lang Island's heritage; the island currently has 20 light- h.ouses. The most fam.ous are at M.ontauk Paint and Fire Island. At 168 feet, the Fire Island lighthouse is amang the tallest in c}lp U.S., says Bob Muller, preservation caardi tor f.or the Lang Island chapter .of the D..::>. Lighth.ouse Society. Lang Island's low, flat geography made it especially dangerous to ships, which is why it RESQLUTION NO. 2001-07 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON AMENDING RESOLUTION NO. 97-17 REGARDING A CONDITIONAL USE PERMIT FOR THE KOL SHOFAR SYNAGOGUE AT 215 BLACKFIELDDRNE CAP 38-351-34) WHEREAS, the Planning Commission of the Town of Tiburon does resolve as follows: Section 1. Findings. A. In 1997, the Tiburon Planning Commission adopted Resolution No. 97-17 amending an earlier 1985 conditional use permit regarding synagogue and day school use at 215 Blackfield Drive. B. Annual reviews of the conditional use permit were held in 1.998, 1999, and 2000 and the uses were found to be in conformance with the permit conditions. C. During the 2001 annual review, the Planning Commission has held a duly noticed public hearing on May 23,2001 and has heard and considered testimony and correspondence from interested persons. D. The Planning Commission finds that the use is currently operating in conformance with the conditions of the conditional use permit. The Commission further finds that due to the proposed gradual transition of the day school tenant from a preschool/K.-4 tenant to a high school tenant, the placement of amended and additional conditions of approval is appropriate and reasonable at this time to ensure that the uses remain in conformance with the conditional use permit. Section 2. Amendment of Conditions of Approval. NOW, THEREFORE BE IT RESOLVED that the Planning Commission of the Town of Tiburon does hereby modify existing conditions set forth in Resolution 97-17 and does adopt additional conditions' of approval for the synagogue and private day school use at 215 Blackfield Drive, as set forth below: PLANNING COMMISSION RESOLUTION NO. 2001-07 5/23/2001 1 (A) Condition No.1 of Resolution No. 97-17 is modified to read as follows: 1. The baseline characteristics of the synagogue and day school uses are set forth in the letter dated May 7,2001 from Mark Goldman to the Town of Tiburon, attached hereto as Exhibit A, and made a part of this resolution. (B) Condition No. 13 of Resolution No. 97-17 is amended to read as follows: 13. Exterior amplified sound is approved for the annual Sunday School closing ceremony only, at which time speakers shall be faced toward the facility and away from surrounding residential uses. Any other event at which exterior amplified sound is proposed must secure a Special Event Permit from the Town. No loud bells or buzzers associated with school use shall be allowed. Any system employed to alert students as to class times should not be clearly audible beyond the property boundary. (C) Condition No. 18 of Resolution No. 97-17 is modified to read as follows: 18. This conditional use permit, as amended, shall be initially reviewed by the Planning Commission withinnine (9) months of adoption of this resolution. The reviewing body and frequency of reviews shall be determined by the Planning Commission following the initial review, with the provision that at a minimum, an annual review by Planning Division Staff will be required. Review of the perInit shall be to ensure, among other things, compliance with conditions of approval and continued compatibility of the uses with surrounding residential development, including but not limited to traffic safety, parking, and traffic congestion issues. Permittee shall be responsible for all Town processing costs associated with the review. Permittee shall be responsible for submitting, at least 30 days prior to review date, a detailed narrative of the current use and operation of the synagogue and day school, and supporting documentation to demonstrate compliance with conditions of approval of this permit. (D) The following additional conditions are added with respect to the contemplated high school use: 20. The high school tenant will utilize off-site recreational facilities for any programs that it undertakes. A small basketball court or similar on-site recreational area may be utilized provided that it is well shielded from surrounding residential uses and does not result in disturbance to those areas. PLANNING COMMISSION RESOLUTION NO. 2001-07 5/23/2001 2 21. The high school shall not allow students to drive off campus during school hours, including lunch time and breaks. Parking for the high school shall be limited to the lower paved (largest) parking lot, except for the disabled. Reedland Woods Way shall not be utilized for high school purposes except for disabled access, occasional deliveries of heavy goods or supplies, and as the exit for the lower paved parking lot adjacent to the Reedland Woods Way/Blackfield Drive intersection. 22. The eucalyptus groves shall be off-limits to all high school related uses. PASSED AND ADOPTED at a regular meeting of the Planning Commission of the Town of Tiburon on May 23,2001, by the following vote: AYES: COMMISSIONERS: Fredericks, Smith, Snow & Stein NOES: COMMISSIONERS: None ABSENT: COMMISSIONERS: None STEVE STEIN, CHAIRMAN Tiburon Planning Commission ATTEST: SCOTT ANDERSON, SECRETARY PLANNING COMMISSION RESOLUTION NO. 2001-07 5/23/2001 3 (, r') r, -- ~~ S.1{O~ /iaCkfie~~~:~~~I:~~4~ ~~8!18~F~~L~~ f~1j~ .} , www.kolshofar.org info@kolshofar.org "'0 -.Jlkt,-S)' E.X 1+ ( B IT "A" ~eroativt , May 7, 2001 RIP-' C ".- · V -:- .-;. t:. c! ~w Mr. Scott Anderson Planning Director Town of Tiburon 1155 Tiburon Blvd. Tiburon"CA 94920 MAY' - 9 2001 PLANN1N~ DEP Aft, im=i--lT TOvVN GF TISi.;PON Re: 215 Blackfield Drive, Tiburon Dear Mr. Anderson, In response to Resolution no. 97-17 amending a conditional use permit for Congregation Kol Shofar, the following will serve as a detailed narrative of the current use and operation of the synagogue and day school. Congregation Kol Shofar now has 609 member units or 1,914 total people. This breaks down to 412 married or coupled adults and 197 adult singles with a subtotal of 1,063 adult members.' We have a total of 851 children, which brings us to 1,914 people. Of course, many members come for just the High Holy Days ,or for very few events throughout the year. Others are more active and visit-the synagogue at lease once weekly. Of the 851 children, please note that only 450 actually attend our religious school classes. When we moved to the building in 1984, we had 220 membership units and over the past 14+ years, we have had an average annual increase of approximately 20 membership units. 'Our current activities continue to range from religious services (Sanctuary and Chapel), religious studies (classrooms), library, administrative, Boa,rd meetings, social events, community outreach and affiliated activities. Our present, full time staff consists of eleven individuals with three other part time people who come into the office on various days, as well as volunteers who help out as needed. The following is a day to day breakdown of the use of our facility with the time of each event and approximate number of people in attendance. Friday Friday evening Sabbath services are held from 6:15 to 7:30 p.m. attended by an average of 50 people. Most of these people are members with approximately 10-15 nonmembers attending. ~~ Tl-tf UN/TID SYNACOCUE '2t CONSERVATIVE JUDAISM """r-. "''' Ko/ Shofar, "the call of the Shofar:' seeks to be a welcoming commll~PTrl"f1lil~ ~J ~ discovery where [he joy of Jewish living is made accessible and relel'amrOConlemporary life. · ~ II! From 7:15 to 9:15 p.m. once a month we have an additionalltNeshama Minyan" service that is attended by an average of 25 people. Most of these people are nonmembers with approximately 5-10 members attending). Also, once a month during the school year we have a Family Service that is from 7:30 to 9:00 p.m. that is attended by an average of 30 people. Satmday Sabbath services are between 9:15 a.m. -1:30 pm with 50-400 people in attendance depending on whether a Bar or Bat Mitzvah is also taking place. H a Bar or Bat Mitzvah is happenin~ we may have between 250 Cl?d 400 people in attendance. If there is no Bar or Bat Mitzvah there are approximately 75-100 members with 15-25 nonmembers attending~ We had three Sabbath afternoon retreats with approximately 40-50 people attending. We had three events on Saturday evenings, from 7:30 -10:00 pm. We have a gathering of so- lDO people in our Sanctuary. A short service signifying the end of Sabbath is followed by a guest speaker or performance. Sunday Religious school from 9 am - 12:30 pm with approximately 300 students, 20 faculty and 100 other adults. Many families come and leave together and others are encouraged to carpool. (All members) A luncheon for the homeless in cooperation with several area churches is held from 1-2 pm for 15-25 people who come in one van. They come and leave from the same entrance and utilize one room in the building. (All non-members except when Kol Shofar provides and serves the food.) Monday We have a small worship service with 12-20 people attending from 6:45 - 7:15 p.m. Tuesday A small service is held with 12-20 people in attendance from 7 - 9a.m. Religious School is held from 3:40 to 5:40 pm for 60 children and 5 facility. On Tuesday evenings, we have a small worship service with 12-20 people from 6:45 - 7:15 p.m. Following the service, there are meetings held from 7:15 -9:30 pin. Once a month there is a Board meeting, Executive Committee Meetin~ Ritual Committee Meeting, Education Committee Meeting, Fund Raising Committee Meeting" etc. Occasionally, in the evening, there might be a small gathering of approximately 10 people for other meetings. :Nlembers only attend the ,./ 5/8/01 -2- r /1 meetings and school above. Also, once a month approximately 10 people attend a Healing Service from 7 - 8 p.m. Wednesday Religious School is held from 3:40 to 5:40 pm for 170 children 'with approximately 10 faculty. We have a small worship serVice with 12-20 people from 6:45 - 7:15 p.m. Religious School continues from 7 - 9:10 p.m. for 70 children and several adults and staff members. Our adult education program is held at approximately the same time and attracts varying sized. groups throughout the year, on average 30 - 40 people. Up to 2~% of the people" coming to the adult education classes are non-members. Thursday A small worship service is held with 15 - 20 people in attendance from 7 - 9 am. From 11:45 a.m. - 1 p.m., a "Lunch and Learn" is held with the Rabbi with approximately 20 people in attendance. (Most of the attendees are members.) Religious School is held from 3:40 to 5:40 pm for 10 children with 1 faculty. Monday-Friday . On Mondays, Tuesdays, We~nesdays and Fridays there are two Side by Side Programs for toddlers and parents. The two daily classes are between the hours of 9:30 -11 a.m. and 11:30 - 1 p.m. The program meets with 10 children and 10 parents and one teacher for each class. Our longtime tenant, Ring Mountain Day School serves the general community with a total enrollment of 70 pre-schoolers and 30 elementary students. 45 % of the students are picked up by 12:30 pm. The remainder of the pick-ups are daycare and depart between 3- 6 pm. Elementary school ends at 3 pm. Arrival time is between 7:30 and 9 am. Carpooling is encouraged. Ring Mountain Day School continues to occupy about 17% of OUI building and is a non-profit orgaIrization. The Jewish Community High School will begin operating in late August, 2001. The school day hours will be between 8:00 am to 3:50 pm. The anticipated enrollment for this year will be between 20 and 30. The staff consists of 12 full time employee equivalents - 9 or 10 full time employees, and 5 or 6 part time teachers. There will be limited after school use. Some staff, teachers, and students will work until 6:00 or 6:30, except on Fridays. The numbers are anticipated to be between 5/8/01 - 3 - /,'J"} 15-20 people. Activities will include office work, tutoring, meetings, clubs, d:rama and music. There will be minimal weekend use. On Saturdays there may be 3 to 4 retreats during the year. This would involve the students and some staff. Anticipated usage on Sundays is for 2 - 3' open houses and 3 - 4 meetings per year. The Open Houses will involve 200..250 people. The other meetiIigs will be between 20-40 people. Students will arrive to school by bus, carpool and parent transportation. During the first year the students will not be old enough to drive themselves. Annex Building The small s1ructure in the rear of our main building is utilized for a library/lounge for RMDS. It is also their movement room.. It will be shared by the high school for movement use. One class of Kol Shofar meets there on Sunday mornings during the school year. '. High Holy Days The Jewish New Year (Rosh Hashanah) and Day of Atonement (Yom Kippur) are our three busiest days and two bUSIest evenings of the year. On the evening before Yom Kippur, Yom Kippur day and the first day of Rosh Hashanah there are approximately 800 people attending the early services and 750 for the later services. On the second day of Rosh Hashanah there are approximately 300-400 people for a single service. These figures include children who are irt childcare and in separate children's services held elsewhere in the building. To alleviate overcrowding, we have successfully utilized a split service formal We'have approximately 195 non-members attending the later services only. (see attachment 2). The first service or the early service is attended by members only. Regarding traffic, a private security guard and our own staff have worked to make this function well. We utilize a shuttle from Westminster Church on the busiest d':lYs to help . alleviate the traffic. (see Traffic/Parking heading below). Additional Significant Activities for the fiscal year 2000/2001 June, July, August - (These are very quiet months for the synagogue; there is no school or adult education, and there is minimal nighttime activity beyond the services. The rabbis . take time off in the summer as well, so there is less activity in the synagogue. 5/8/01 -4 - J" J ~ r' 1'1; On August 9th, we had a small service for a holiday called JlTisha B' A v" at 8:00 p.m. Approximately 50 people attended. On October 22nd, we had a service for a holiday called "Simchat Torah" at 7:00 pm. Approximately 90 people attended. From February 2nd to the 4th we had a Scholar in Residence program. On Friday night we had a program for approximately 100 people. There were slightly more than the usual who attended for the Saturday services (125 people) .and Sunday moming program (50 people). On March 9th, we had a service for a holiday called Jlpurim" at 7:00 pm. Approximately 100 people attended. . On May 27th, we will have a service for a holiday called "Tikkun LeiI Shavuot from 7:30 p.m. - midnight Approximately 75 people are expected to attend. We have made our best effort herein.to list our scheduled events above and on the attached exhibits. Among the atta~he,d is a Kol Shofar school calendar and Ring Mountain Day school calendar (with their special activities and events marked). Occasionally we have one-time events that are not planned. Building Capacity Our main sanctuary and balconies can currently accommodate approximately 840 people per theUniform Building Code. Ourchapel can accommodate, based on its square footage, approximately 190 people. Generally the room is used by about half that amount or less and has never been used by 140 people. fu addition to areas used on other levels, the ten rooms on our lower level accommodate about 130 children, the remainder of our enrolled students use meeting rooms, the library, the chapel, our annex, portions of the sanctuary and some of the RMDS space. TraffidParking We encourage carpooling wherever possible. In the past, we have notified the Tiburon Police Department, and they have assisted us with traffic control at the intersection of Reedland Woods Way and Blackfield Drive. Members of our staff help direct traffic onto. and within the unpaved middle parking lot in an attempt to maximize the number of automobiles parked in that area. We refer you to the attached parking map that was sent to all of our members with their High Holy Day tickets. 5/8/01 - 5 - f', fP'.' ,"',: " General Information We have occupied our building for more than 12 years and enjoyed a good relationship with our neighbors. Our participation in the Southern Marin Coalition on the Homeless with local churches (such as Westminister Presbyterian, St Stephens and Community Congregational) has been very. successful. We have had no incidents since the inception of the one-hour program on Sundays, as noted above. Our property is also made available to the Alto-Richardson FireDe:partm~nt, PG&E and moving companies that have used our lower lot as a transition point for our neighbors. Contractors working on local jobs have been permitted to park flat be~ trucks in our lower parking lot The building also serves as an emergency shelter location in case of disaster. Our building is made available upon request for public community meetings. However, we continue to put a reasonable limit On outside usage because of concerns about additional traffic in our neighborhood. We have recently made building ~provements both inside and outside the facility. We have a new elevator. We painted the exterior of the building, converted' a ramp to stairs for safety reasons and we have planted a new garden near our front entrance. Weare planning to continue to groom both the insideand outside of the facility. We are proud to be a part of the Tiburon community, and our future plans look forward to continuing to beautify our building and grounds. Sincerely, ~~ Mark Goldman President 5/8101 - 6 - RECORDING REQUESTED RETURN TO: PLANNING DIVISION TIBURON TOWN HALL 1505 TIBURON BOULEVARD TIBURON, CA 94920 RESOLUTION NO. 2004-10 A RESOLUTION OF THE PLANNING COMMISSION OF THE TOWN OF TIBURON AMENDING A CONDITIONAL USE PERMIT FOR THE KOL SHOFAR SYNAGOGUE AT 215 BLACKFIELD DRIVE (AP 38-351-34) WHEREAS, the Planning Commission of the Town of Tiburon does resolve as follows: Section L Findinqs. A. In 1997, the Tiburon Planning Commission adopted Resolution No. 97-17 amending an earlier 1985 conditional use permit regarding synagogue and day school use at 215 Blackfield Drive. The use permit conditions were subsequently amended by adoption of Planning Commission Resolution No. 2001-07. . B. During the annual review of the permit in March, 2004, claims of non-compliance were presented in the form of letters from project neighbors. The item was therefore forwarded to .the Planning Commission to evaluate and consider the permit compliance. C. On September 8, 2004, the Planning Commission held a duly noticed public hearing on the use permit. compliance and heard and considered testimony and correspondence from interested persons. D. The Planning Commission finds that the use is currently operating for the most part in substantial compliance with the conditions of the' conditional use permit, with limited exceptions which the Planning Commission found could be addressed through the placement of amended and additional conditions of approval on the permit. The Planning Commission finds that the imposition of these additional conditions is appropriate and reasonable at this time to ensure that the synagogue and day school uses remain in substantial compliance with the spirit and intent of the conditional use permit. PLANNING COMMISSION RESOLUTION NO. 2004-10 9/8/2004 1 . . Section 2. Amendment of Conditions of Approval. NOW, THEREFORE BE IT RESOLVED that the Planning Commission of the Town of Tiburon does hereby modify existing conditions set forth in Planning Commission Resolutions 97-17 and 2001-07does adopt additional conditions of approval for the synagogue and private day school use at 215 Blackfield Drive, as set forth below: (A) Condition No.6 of Resolution No. 97-17 is modified to read as follows: 6. Permittee shall create a database of its members to facilitate and encourage car-pooling. The carpool database shall be updated annually and confirmation of the update submitted with the request for annual review. The information from this database shall be used to provide information to members about potential car-pool partners, and will be targeted to members for whom car-pooling may be a viable means of reaching the synagogue. Car-pooling information shall be jncluded in the educational' program outlined above. (8) Condition No. 15 of Resolution No. 97-17 is amended to read as follows: 13. Permittee will advise and educate its tenant (the day school) concerning this use permit, with special emphasis on minimizing traffic, noise, lighting, courtesy to neighbors, and other issues addressed in the use permit conditions of approval. Permittee shall coordinate closely with the tenant day school regarding securing all required Town permits prior to making physical improvements at the site, and shall coordinate timely responses to neighbor issues or complaints that involve the day school. (C) Condition No. 23 is added as follows: 23. Eucalyptus trees located on. the Kol Shofar property in the immediate vicinity of the rear playground area below 32 Via Los Altos shall be inspected annually by a tree expert, who shall file a report as to the tree health and safety. Said report shall be submitted to the Town along with the request for annual review of the conditional use permit. (D) Condition No. 24 is added as follows: 24. Traffic control personnel shall be provided for all major events and peak period usage, including but not limited to High Holy Day services, bar- and bat- mitzvahs, and Saturday (Sabbath) services. A written protocol specifying the traffic control measures shall be established, subject to approval by Town Staff, and shall be implemented within 60 days of this approval. PLANNING COMMISSION RESOLUTION NO. 2004-10 9/8/2004 2 PASSED AND ADOPTED at a regular meeting of the Planning Commission of the Town of Tiburon on September 8,2004, by the following vote: AYES: Fraser, Hermann & Snow NOES: None ABSENT: Collins & Kunzweiler JIM FRASER, ACTING'CHAIRMAN Tiburon Planning Commission ATTEST: SCOTTANDERSON,SECRETARY \scott\kol shofar 2004 res.doc PLANNING COMMISSION RESOLUTION NO. 2004-10 9/8/2004 3 RECEIVED Town ofliburon · 1505liburon Boulevard · Tiburon, CA 94920 · P. 415.435.~N F.Z ti.'2tJd~38 · www.ci.tiburon.ca.us C I D PLANNING DIVI$JON 10 2005 ommunity Deve opment epartment TOWN OFTIB~ary , The following are traffic control measures developed in fulfillment of condition #24 of Planning Commission Resolution 2004-10 authorizing the use and operation of a _ synagogue and ancillary day school at 215 Blackfield Drive in Tiburon. . High Holy Days Traffic Control Measures (3 days of the yeart5 services) The five (5) services associated with the High Holy Days (Rosh Hashanah and Yom Kippur) comprise the busiest time of the year at Congregation Kol Shofar. Two daytime services are held on the first day of Rosh Hashanah, and one smaller daytime c service is held on the second day of Rosh Hashanah. . Services held the evening before' . . Yom Kippur and on Yom Kippur day are very heavily attended. The following traffic control measures are to be taken for all five (5)services associated with the High'Holy Days, except as noted: 1) Carpool/shuttle/parking information & map distributed to members at least 21 days in advance of High Holy Days. 2) Courtesy mailer to Reedland Woods Way and other Vista Tiburon Subdivision addresses at least 10 days in advance of High Holy Days. 3) "Resident Traffic Only" or similar courtesy sign placed on Reedland 'Woods Way immediately north of handicapped access driveway to Kol Shofar. 4) Shuttle service shall be used during the firstday of Rosh Hashanah for both services. Shuttle runs shall begin at least 30 minutes prior to the start of services and end no earlier than one hour after the end of services. 5) Trained and kn<?wledgeable traffic control person stationed at Blackfield Drive intersection with Karen<vVay to keep traffic flowing on Blackfield Drive when the services let out. Duration of approximately 30 minutes or until volumes subside. 'Not required for the second day of Rosh Hashanah. 6) Trained and knowledgeable traffic control person stationed at Blackfield Drive intersection with Reedland Woods Way to monitor/meter traffic flowing out of the parking lot onto Reedland Woods Way when the services let out. Duration of approximately 30 minutes or until volumes subside. Not required for the second day of Rosh Hashanah. 7) No parking signs placed on east side of Reedland Woods Way north of tire hydrant zone near the driveway entrance to 20 Reedland Woods W ay,up to the handicapped driveway entrance to Kol Shofar. iI:~)i'~~iJ..~~~j:l.~3:~:r"';!i::;. ? .. Major Event Traffic Control Measures (Non-High Holy Day Events Exceeding 400 persons) Major Events are defined as those events, or combinations of events, which are anticipated to draw more than 400 people to the site. This number of attendees would likely exceed the on-site parking capacity of the facility and have the potential for parking and traffic impacts on surrounding neighborhoods. Major Events may include very large bar/bat mitzvahs, very' well-attended Sabbath services, combination Sabbath serviceslbar or bat mitzvahs, and other particularly highly-attended events. A. Major Events that are anticipated to approximate High Holy Days attendance shall follow Measures #3 and #5-#7 of the High Holy Days traffic control program. B. At a minimum, the following traffic control measures shall be taken for all Maj or Events: 1. "Resident Traffic Only" or similar courtesy sign placed on Reedland Woods Way immediately north of handicapped access driveway to Kol Shofar. 2. No parking signs placed on east side of Reed land Woods Way north of fire hydrant zone near the driveway entrance to 20 Reedland W oodsW ay, up to the handicapped driveway entrance to Kol Shofar. Congregation Kol Shofar hereby agrees to abide by the above-listed (2 pages) traffic control measures in fulfillment of its conditional use permit conditions of approval as set forth in Planning Commission Resolution No. 2004-10. /-~-OJ Date :2 ~.if~>>.$bi: 215 Blackfield Drive Tiburon, California 94920 Tel: 415388-1818 Fax:415388-5423 www.k{}lshofar.org info@kolshofar.org ,t 0 S,; SJlO.7: .~, .,~ ~~'~.~.' ~ t ,~ IV" ~ O;,J )~ ~ervativt Congregation Kol Shofar January 21, 200!\-- Mr. Scott Anderson Plamring Director Town of Tiburon 1155 Tiburon Blvd. Tiburon, CA 94920 RE"""-g , ...." - r. iI." \\ :)~~-..,., .". , '~i: t:t\ V t:,g,J ..IAN 2:.3" 2'004 Re: 215 Blackfield Drive, Tiburon PL,l.,NN1NG DIVISION TOWN OF T!8lJF.:Oi'.J Dear ~. Anderson, In response to Resolution no. 97-17 amending a conditional uSe perinitfor Congregation Kol Shofar, the following will serve as a detailed narrative of the current use and operation of the synagogue and day school. Congregation Kol Shofar now has 598 member units or 1824 total people. This breaks doWn to , 429 married or coupled adults and~61 adult singles with a subtotal of 1,019 adult members. We have a total bf 805 children, which 'brings' us to 1824 people. Many members come for just the . Hig~HolyDays or for veryf~w events throughout the year. Others are more active and visit the synagogue at lease once weekly. Of the 805 children, about 362 actually attend our religious school classes. When we moved to thebuild.ing in 1984, we had 220 membership unitS and over the past 14+ years, we have had an average annual increase of approximately 20 membership units until the last three years when membership units have remained stable at about 600 units. Our current activities contiilue to range from religious services (Sanctuary and Chapel), religious studies (classrooms), libraryi administrative, Board ~eetings,social eventS, community outreach and affiliated activities. Our present, full time s~consists of fourteen individuals with two oth~r part time people who come into the office on various days, as well as volunteers who help out as needed. The following is a day to day breakdown of the use of our facility with the time of each event and approximate number of people in attendance. ' .~' Tl-if UNITED , ' .. SYIWAGOGUE Q1 CONSERVATIVE . ~ . .. II ": t ~. ~ Kol Shofar, "the caUDf the Shofar," seeks to be a welcoming community of awakening and dir;:covCJry Whf'I'P thpJfY'.' nf Trwrr;:h l;l';nf? ir;: mnde (lcc(!sr;:ih'e nnr! rp'I!"(1nt tn rn.rrt""'mrwm-', 1if" 'n"..... ....... ....~ -'II ~d~ . . Friday evening Sabbath services are held from 6:15 to 7:30 p.m. attended by an average of 50 people. Most of these people are members with approximately 10-15 nonmembers attending. From 7:15 to 9:15 p.m. once a month we have an additional II Nesham a Minyan" service that is attended by an average of 25 people. Most of these people are nonmembers with approximately 5-10 members attending. once a month we also havean alternative Sabbath Service (Shir Chadash) attracting about 75 worshippers~ Also, once a month during the school year we have a Family Service that is from 7:30 to 9:00.p.m. that is attended by an average of 30. people. Saturday Sabbath services are between 9:15 a.m. -1:30 pm with 50-400 people in att~ndance depending on whether a Bar or Bat Mitzvah is also taking place. If a Bar or Bat Mitzvah is happening, we may have between 250 and 400 people in attendance. If there is no Bar or Bat Mitzvah there are approximately 75-100 members in attendance with15~25 no~embers attending. We occasionally have had Sabbath afternoon retreats with approx~ately 40-50 people . attending. . We also have occasional events. on Saturday evenings, from 7:30 -10:00 pm. We generally have a gathering of 50-100 people in our Sanctuary. A short service signifying the end of Sabbath is followed by a guest speaker or performance. Sunday . .', . . Religious school runs from 9 am - 12:30 pm with approximately 200 students, 20Jaculty and . 100 other adults. Many families come and leave together and others are encouraged to carpool. (All members) A luncheon for the homeless in cooperation with several area churches is held from 1-2 pm . for 15-25 people 'who mostly come in one van. Th~y come and leave from the same entrance and utilize one room in the building. (All non~members except when Kol Shofar provides and serves the food.) Tuesday A small service is held with 12-45 people in attendance from 7:00 - 9:00 a.m. Religious School is held from 3:45 to 5:45 pm for 45 children and 5 teachers. On Tuesday evenings, there are meetings froin7:15 -9:30 pm. Once a month there is a Board meeting, Executive Committee Meeting, Ritual Committee Meeting, Education Committee Meeting, Fund Raising Committee Meeting, etc. Occasionally, in the evening, there might be a small 1/21/04 -2- gathering of approximately 10 people for other meetings. Members only attend the meetings and the religious school mentioned above. Wednesday Religious School is held from 3:45 to 5:45 pm for 135 children with approximately 10 teachers. Religious School continues from 7 - 9:00 p.m. for 100 children and several adults and staff members. Our adult education program is held'a:t approximately the same time and attracts varying sized groups throughout the year, on average ~O - 40 people. Up to 20% of the people coining to the adult education classes are non-members. . Thursday A small worship service is held with 15 ~ 20 people ill attendance from 7 - 9 am. Froml1:45 a.m.- 1 p.m., a "Lunch and Learn" is held with the Rabbi with approximately 20 people in atte~dance. (Most of the attendees are members.) Religious School is held from 3:45 to 5:45 pm for 10 children with 1 teacher. Monday-Friday On Mondays, Tuesdays, Wednesdays and Fridays there are two Side by Side Programs for . toddlers and parents. The two daily classes are between the hours of 9:30 -11 a.m. and 11:30 - 1 p.m. The program meets with 10 children and 10 parents and one teacher for each class. Our longtime tenant, Ring Mountain Day School serves the generai community with a total enrollment ~f 100 pr~school children. 50% of-the students are picked up by 1:00 pm. The remainder of the pick-ups are daycare 'and depart between 1-6 pm. Arrival time is between 7:30 and 9:00 am. Carpooling is encouraged. Ring MOllntainDay School continues to occupy about 17% of our building and is a non-profit organization. We no longer have a Jewish Community High School on the premises. Annex Building , The small structure in the rear of our main buildingis utilized for a library /lounge for RMDS; It is also their movement room. The space is shared by one class of Kol Shofar that meets there on Sunday mornings during the school year. Our Youth Group also uses that facility as their youth lounge. . On Wednesday evening from 7:00 pm to 9:00 pm we also have a community AA group meeting in this facility. We restrict their parking to the lower parking lot 1/21/04 - 3 - High Holy Days The Jewish New Year (Rosh Hashanah) and Day of Atonement (Yom Iqppur) are o:ur three busiest days and two busiest evenings of the year. . On the evening before Yom Kippur, Y o ill Kippur day and the first day of Rosh .Hashanah there are approximately 800 people . attending the' early ,services and 750 for the later services. On the second day of Rosh Hashanah there are approximately 300-400 people for a single service. These figures include children who are in chj1dcare and in separate children's services held elsewhere in the building. To alleviate. overcrowding, we have successfully utilized a split service format .. We have approximately 195 non-members attending the later services only. The first service or the early servi~e is attended.by members only. Regarding traffic, a private security guard and our own staff have worked. to make this function well and havebeerr assisted by the . Tiburon Police. We utilize a shuttle from Wesbninster Church on the busiest days to help alleviate the traffic. (see Traffic/Parking heading below). .. . '. Additional Significant Activities for the fiscal year 2004/2005 June, Ju].y,AJlgust are quiet months for the synagogue; . there is no supplemental religious . school or .a4ulteducatlon, and . there is nUnimalnighttiIile activity beyond the services. The rabbis take time off in the s~er as well, so there is less' activity in the synagogue. RMDS runs a small swmner program with approximately' 30 children and Kol Shofar sponsors a Camp Ramah summer program. for 30 'to- 50 children. . On October 19th, 2003, we had a service for a holiday called "Sim<;:hat Torah" at 7:00 pm. Approximately 90 people attended. . From January 31 to February2 of 2003, we had a Scholar in Residence program. On Friday night we had a program for approximately 100 people. There were slightly more than the usual number attending the Saturday services (125 'p~ople) and Sun.day morning program (50 people). " This year (2004) we will have a Scholar In Residence Program from January 23 - 25. We anticipate about the same turnout as last year. Building Capacity Our main sanctu~ry and balconies can currently accommodate approximately 840 people per the Uniform Building Code. Our chapel can accommodate, based on its square footage, approximately 190 people. Generally the room is used by about half that amount or less. In addition to areas used on other levels, the ten rooms on.our lower level accommodate about 130 children, the remainder of our enrolled students use meeting rooms, the library, the chapel, our annex, portions of the sanctuary and some of the RMDS space. 1/21/04 - 4 - TraffidParkirig We encourage carpooling wherever possible. In the past;. we have notifie~ the Tiburon Police' Department, and they have assisted tis with traffic control at .th~ intersection of Reedland W oodsW ay and Blackfield Drive. Members of .our staff help direct traffic ontD arid within the unpaved middle parking lot in an attempt to maximize the number of automDbiles parked in thafarea. - 0" , General InformatiDn' . . . . .' . 'We ha~e occupied our building since 1984 and fDr the ~ostparthave enjoyed a good relatiDnship with .our neighbars. Our participatiDn in the Southern Marin Coalitian on the Homeless with IDeal churches (such asWestm.inist~ Presbyterian, St Stephens and , Community Congregatian~l) has been very' successful. We have had no incidents since the inceptian of the ane-hour.program on Sundays, as noted abave. Our praperty is also made available tatheAlto-Richardsan Fire Department,PG&E and moving companies that have uSed our lower lot as a trallSitianpoint fDr .our neighbars. Cantractors warking. an IDeal jobs, such as the rem .oval .of the hazardDus e~calyptus trees, have, been permitted to park flat bed trucks and heavy equipment in Dtirlower parking lDt ,'and driveway. We have provided access thraugh .our prDperty to facilitate the rem .oval .of the trees. ' The building alsa serves as an emergency shelter IDeation in case .of disaster. Our building is madeavailable.upon requ~st ~Dr public tammunio/ meetings. However, we. continue ta put a reasonable limiton .outside usage because of concerns abaut additianal traffic in aUI neighborhood. We cDntlnlle to. make building imprDvements bath inside and outside the ' facility~ We recently Installed exterior safety lights, and are planning to.cDntinue to groam both the inside and outside .of the facility. . We are proud tD be a part .of the TiburoncDmmunity, and our future plans look forward to continuing to beautify our building and grounds. . .~' ..~. ".' .' { ~,.' , . I ~ , Ronald 1). Brown President 1121/04 ~ 5 - EXHIBIT A MINUTES NO. 933 PLANNING COMMISSION April 24, 2006 Special Meeting Reed School Multi-Purpose Room 1199 Tiburon Boulevard, Tiburon, California CALL TO ORDER AND ROLL CALL Present: Chair Kunzweiler, Commissioners Aguirre, Collins, Fraser and O'Donnell Absent: None Staff Present: Interim Town Manager Bigall, Community Development Director Anderson, Planning Manager Watrous, Planning Consultant,~ewman, Planning Consultant Charles and Meeting Recorder Williams ORAL COMMUNICATIONS COMMISSION AND STAFF BRIEFING There were none. PUBLIC HEARING > 1. 215 BLACKFIELD DRIVE KOL SHOFAR, CONDITIONAL USE PERMIT Lisa Newman, Planning Consultant discussed the project, conditional use permit application and the Envir~nmental Impact Report. Ms. Newman noted that the Final EIR concludes that that the potential environmental impacts of the project can all be mitigated to a less than significant level with the exception of parking and noise impacts which remain as significant unavoidable impacts. Two Alternatives (#5 and #7) would also meet most project objectives and reduce all environmental impacts to a less than significant level. Ms. Newman stated that Staff's approach in the draft Conditional Use Permit Resolution is to regulate the intensity of the proposed use of the facility rather than limit its physical scale. Chair Kunzweiler asked for a better explanation of the calculations of parking requirements for the facility. Commissioner Collins stated that Kol Shofar could educate the congregation about parking on the street, carpooling and posting "no parking" signage on the street. ill EXHIBIT NO.-f-L TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page I Ron Brown, immediate past president of congregation Kol Shofar discussed the project. He said that it has been an exhausting two years working on this application. He stated that this project is not a commercial venture. He stated that the prospects for growth in the congregation are negligible at best, citing a statement from a sociologist who specializes in the demographics of Jewish congregations. Rabbi Lavey Derby,.senior Rabbi ofKol Shofar, stated that the mission ofKol Shofar is to go out into the world and make it a better place. He stated that Jews are a people, a family and a faith. He said that the project is a direct outgrowth of the religious mission ofKol Shofar. He described the need for an orthodox congregation to have a "meat and milk" kitchen for preparation of kosher foods. He said that Kol Shofar should not be forced to hold its High Holy Days services "at incorrect times." He stated that this is the way the congregation practices its JQ.daism, and that they are entitled to practice their. religion as they see fit. Rabbi Derby urged the Commission to approve the project as modified in Alternative 7. Scott Hochstrasser, environmental planner for Kol Shofar, presented a Power Point summary of the project and noted that Alternative 7 substantially scales back the project and reduces noise impacts. He stated that this alternative WOll;ld reduce all potential impacts to less than significant levels. He. said that there was no reason why the Planning Commission could not take action on the project at this meeting. Commissioner Kunzweiler asked Mr. Hochstrasser for a printed copy of the power point presentation for the record. Commissioner Kunzweiler also asked for a detailed breakdown of how the multi-purpose room would be used, with information on number of people and times of year. Commissioner Fraser stated that the numbers presented by Mr. Hochstrasser appeared to be different than those presented in the EIR and staff report and asked for an explanation of the calculations. Commissioner Fraser also referred to Exhibit 2 prepared by Leonard Charles and asked for a side-by-side comparison as well as for clarification of the uses for the multipurpose room. '. Rabbi Derby stated that the room will have dividers and can be \lsed for various activities. Tiffany Wright, attorney for Kol Shofar, discussed the project from a land use perspective, stating that this was really quite a simple project with a lot of environmental review. She said that the process for this project represented CEQA in action, as changes made to the project reduced impacts to less than significant levels. She disagreed with the Staff report's findings regarding the need for improvements at the intersection of Tiburon Boulevard and Blackfield Drive. Joshua Harris, attorney representing Tiburon Neighborhood Coalition which represents 30 families, discussed the project's impact. He stated that the neighbors do not oppose modification and upgrades to the current facility, but opposed the massive expansion ..'.......;\'~..;':.. '-' j , TlBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 2 proposed, as it would reduce the quality of life for the neighborhood and create nuisances for the neighbors. He stated that the EIR fails to review impacts of ongoing services at Kol Shofar (existing Saturday and Sunday services). He felt that the EIR inexcusably does not address potential growth impacts that would be caused by the project. He compared the project to building a major league baseball stadium but insisting that it would only be used by little league teams. He stated that the multi-purpose room impacts must be analyzed at full capacity because Conditional Use Permit limits can change. He stated that limits on the use of the facility would not guarantee limited usage inthe future. Mr. Harris stated that CEQA requires a clear, stable project description, with all alternatives to be included from the beginning. He felt that the changes proposed require the EIR to be recirculated. He said that the Town has not been adequately informed by the EIR, and that the project would create an inappropriate, excessive use in a residential neighborhood. Jerry Thayer, member of Tiburon Neighborhood Coalition, noted that the numerous letters that have been received from neighborhood residents speak to the opposition for the expansion. H.e stated that the multi-purpose room would inevitably attract more people to the site. He submitted a set of pictures taken Oct. 16, 2005 during the peak period of High Holy Days showing parking on residential streets as well as a 19-page pe~ition with 175 signatures from neighbors opposing the expansion. He stated that the surrounding neighborhood is saturated, and that this project would irrevocably reduce the quality of life for nearby residents. Mr. Thayer finally noted that the Tiburon Neighborhood Coalition is not against renovation at Kol Shofar, but recommended remodeling within the existing footprint of the buildings on the site. Commissioner O'Donnell asked Mr. Harris to estimate how many residences would be directly adversely impacted by the project. Mr. Harris replied that approximately 100 homes would be affected, adding that moving parking away from Kol Shofar with "no parking" signs would push parking into the surrounding neighborhood and affect other homes. The public hearing was opened. The following people appeared before the Planning Commission, and spoke regarding the project: 1. Brad Tardy, architect, stated that he lives in his house 24/7, and that the project would restrict his right to quiet enjoyment of his property. The project would cause a 350% increase in noise and neighbors don't want noise lasting until 11 PM. He felt that the project would result in safety impacts due to an increased risk of accidents, as children use the streets at night to play. 2. Mike Bentivoglio stated that he is generally supportive of the project, but was concerned about late night events on the weekends. He proposed that Alternative 7 be approved with lights out at 9:00 p.m. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 3 3. Richard Goldwasser~ member of Kol Shofar, stated that noise is still an issue. He felt that the multi-purpose room would be convenient, but is not necessary. He noted that other Jewish congregations still hold split High Holy Days services. He felt that Kol Shofar has not adequately explored alternatives to a big building, and encouraged them to use temporary structures to meet the demand for High Holy Days service. 4. Russell Pratt stated that he frequently travels down Blackfield Drive and felt that there is not going to be a fearful increase in traffic caused by this project. He stated that he serves on the board of directors at Rodef Shalom in San Rafael and noted that attrition of the Jewish population is a challenge. He said that congregations need to improve services, including facilities. He felt that there will not be an explosion of growth associated with this project. 5. Rick Romagosa stated that he was skeptical about putting more cars, on Blackfield Drive, resulting in traffic, noise and increased parking in the neighborhood, particularly at late night events. 6. Joe Blum stated that concerns about growth are speculative. He noted that the conditional use permit will be reviewed on annual basis, and encouraged the Commission to give Kol Shofar a chance to be responsible. 7. Ken Gerstman, member of Kol Shofar, stated that Kol Shofar is an integral part of the community, and that the community has changed for the better. He said that Kol Shofar needs to build a facility to meet the existing needs of its community. 8. Aviva Boedecker, member ofKol Shofar, said that not all events in the multi- purpose room would have the maximum number of attendees. She said that people do not need to be stressed out about the maximum numbers and late night events. 9. Lizabeth Light stated that she has found Kol Shofar to be a good neighbor. She added that traffic can be a problem during High Holy Da);'s, but the visitors are quiet and respectful, and the Police are there to regulate traffic. She supports the expanSIon. 10. Virginia Brunini stated that 70 homes in Bel Aire would be directly impacted by the project. She said that Kol Shofar has not offended the sensibilities of the neighborhood, but this project wouJd change the quality of life for residents of Bel Aire, Cypress Hollow, Via Los Altos and Paseo Mirasol. She stated that the parking shortage is a concern and it is not satisfactory to wait a year to evaluate impacts. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 4 11. Gail Dorph stated that she does no drive on the Sabbath, and moved to a location so she could walk to Kol Shofar. She noted that there are a lot of churches in Tiburon, which provide religious grounding for the residents. 12. Michael Rubenstein, member of Kol Shofar, stated that the opposition to this project has engaged in a lot of hyperbole. He said that the facilities will not be used to their maximum capacity. He felt that the neighbors do nottmst the democratic process in the review of this project. 13. Evelyn Woo said that she strongly objects to the massive size of the expansion which would impact the entire neighborhood. She characterized Blackfield Drive as "a nightmare." She was concerned that people would park next to her house so she would be unable to enjoy the bucolic nature of the area. 14. Margaret Kirby stated that parking is a very intense issue. She sa~d that the Kol Shofar parking lot was not functional, with bad interior circulat~on, ~d pushes cars out onto the surrounding streets. She said that members of Kol Shofar regularly park in front of her residence at 230 Blackfield Drive. She asked where the "no parking" signs would begin and end. She added that Kol Shofar members often park close by, then wave down the parking shuttle from the street. 15. John Leszczynski stated that the Bel Aire neighborhood has not been considered by the EIR. He said that about 290 of the 490 on-street parking spaces available in Bel Aire are free each night. He assumed with a capacity of 900 for the multi- purpose room that up to 360 cars would be snaking their way through Bel Aire looking for parking. He suggested issuing parking decals for Bel Aire residents because that ensures real enforcement. He asked what would happen if Kol Shofar leaves the site. 16. John Nygren presented photographs to the Commission showing parking on the streets during High Holy Days and the shuttle system does not work. He said that with a single service on High Holy Days on-street parking would double. He said that traffic grows exponentially, and that the Town needs parking enforcement. 17. Kurt Kaull stated that the inconsistencies of the project with the Tiburon General Plan are important. He said that the expansion would be out of character with the surrounding neighborhood. He said that having events until 11 :00 p.m. is a non- starter. 18. Karen Boedecker stated that summer bat mitzvahs are difficult for Orthodox Jews who cannot drive on the Sabbath. She said that Kol Shofar youth groups are active and would like to have interfaith activities. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 5 19. Mindy Canter stated that High Holy Days traffic is acceptable but other events have become so loud that they can be heard inside her home. She felt that the project will change the quality of life in the neighborhood. 20. Thomas Szymoniak stated that other residential projects have stirred up Bel Aire quite a bit. He is concerned about traffic, noting that young children play in the streets. He said that he is not impacted by Kol Shofar now, but felt that the project would have no benefit to him and would put the renaissance of Bel Aire at risk. 21. Diane Zack, President ofKol Shofar, gave a breakdown of the square footage of the multi-purpose room, noting that only 4,500 square feet would be usable space. She said that this room would be used for many existing activities, and did not represent a change or a massive expansion. She said that Kol Shofar desperately needs this space for activities they have now. 22. Andrew Rusting explained the decibel system and stated that he is concerned about the noise impacts of the project. 23. Ida Gelbart, member of Kol Shofar, stated that she is a Holocaust survivor and, by coincidence or providence, the next day is Holocaust Remembrance Day. She pleaded with the Commission to save the synagogue, and felt that she was a spokesman for her brethren who did not have the right to speak. She.asked the community to put aside its differences and support the project. 24. Karen Nygren stated that the conditional use permit only regulates new uses, and she felt that the use permit can regulate existing uses as well. She said that the Town should be looking at a new cumulative use permit for Kol Shofar. She described the EIR as inadequate, and urged the Commission to look at the history of the site. 25. Tim Metz stated that the only place in Marin County with a larger capacity than the proposed project is the Veterans Memorial Auditorium. He said that the entire membership ofKol Shofar would be unable to fit iI1.to th~ proposed facility. He suggested renting tents to accommodate High Holy Days services or holding services in two different locations. 26. Doris Symonds was pleased that this site was not developed as a high school, as was once considered. She described traffic on Blackfield Drive as "horrendous," and said that the neighborhood is now saturated with traffic. 27. Christy Seidel stated that traffic studies have not been prepared for Alternative 7. She said that mariy of the proposed events would occur during peak residential use times, which are weekend evenings. She characterized most of the proposed events as member-sponsored events and parties, not religious services. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 6 28. Wayne Gilbert stated that Kol Shofar is not looking to bring in thousands of new members, but only wants a comfortable home for its existing members. 29. David Holden stated that it was unclear whether Staff feels that noise would a significant unavoidable impact or not. He felt that it is impossible to certify the FEIR With the confusion over the impacts. He stated that temporary noise constitUtes a significant impact. He found it hard to believe that 250 people partying in a multi-purpose room will be inaudible. He raised concerns over the duration of peak noise events, and said that it was "quaint" to suggest that n~ghbors could have the enjoyment of their homes every other weekend. 30. Don Dana stated that he has monitored nighttime events at other locations, and noted that it generally takes about one and one half hours to clear a facility after an event. He said that limits should be established in the CUP to end events at 9:30 p.m. and have lights out at 11 :00 p.m. 31. Susan Schneider spoke about activities at Kol Shofar. She said that Kol Shofar is a second home to her, and a lot of what Kol Shofar does is to bring the Jewish community closer together. She expressed a need to be with a religious community to celebrate and pray. She stated that traffic and noise increases are part of living in Marin. She said that she goes to Kol Shofar three times a week, . and never sees undue traffic in the neighborhood. 32. Julie Jacobs, member ofKol Shofar, noted that Bel Aire is an intense shaking area in the event of an earthquake, and that Kol Shofar is a designated facility in the event of a serious ,earthquake. She added that the multi-purpose room may serve that purpose for the community in case of an earthquake. 33. Paul Yenofsky acknowledged that the current building needs to be remodeled, but said that the community questions the size of the multi-purpose room, which suggests an increase in the size of the congregation. He said that if the net effect of the multi-purpose room is the same as a bar or restaurant, it should not be considered. He suggested limiting the time of events to 9;00 p.m. 34. David Wong said Kol Shofar is a great neighbor but raised concerns about increased traffic, parked cars and near accidents. He felt that the site is not conducive to growth, the parking lot doesn't work, and that the proposed mitigation measures are complicated and unenforceable. 35. Laurie Snow stated that Kol Shofar provides essential support for the community. She said that the old facility is too small for the congregation. She said that Kol Shofar is beneficial for the surrounding community, and that she hopes to be married there one day. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 7 36. Marshall Jainchill said that it is a shame that people feel that churches are inconsistent with the quiet enjoym-ent of residential property. He said that he would not know 600 people to invite to a single event at Kol Shofar. As a real estate broker, he stated that the project would not affect real estate values in the vicinity . 37. Alan Zimmerman stated that we all live in this community and that houses of worship add a tremendous amount. He said that the project is not about growth, but for providing for existing events. He said that everyone drives in everyone else's neighborhoods, and it is the job of residents to live together and share the neighborhood. 38. Edward Baker stated that the conditional use permit will permit non-residential activities in a residential neighborhood. He said that parties are not religious or educational events. He characterized the architecture of the proposed multi- purpose room as an enormous wart added to an existing carbuncle. ,He said that better photo simulations are needed showing the new building from his house. He noted that much of Kol Shofar is screened by broom that is to be cut down. He said that the current views of the neighbors may be unattractive, but they like them. 39. Lisa Kasselik invited the Commission to visit the neighborhood on Wednesday afternoons when religious instruction is ending. She said that at those times, people parked in red zones create a logjam. She did not believe that Kol Shofar will police itself to make the proposal work. Gary Ragghianti, attorney for Kol Shofar, stated that a possible continued hearing date on May 1 was not acceptable. He asked if it is possible that all of the people who object to the project are correct and that staff and consultants are uniformly incorrect. He said that the facts of the matter should drive the decision, and encouraged the Planning Commission to approve the project. Bob Herman, architect for Kol Shofar, stated that CEQA only requires recirculation of an EIR if new impacts are identified or severely increased impacts occur. He said that it is counter to the intent of CEQA to punish the applicant by requiring recirculation for reducing the impacts of a project. Scott Hochstrasser stated that independent consultants have found that Alternative 7 will not result in any significant unavoidable impacts. He noted that this application is for an amended conditional use permit, as the existing use permit is the baseline for current uses of Kol Shofar which do not have to be studied any further. He added that the last time the Planning Commission reviewed the existing use permit Kol Shofar was found to be consistent with the Tiburon General Plan. He characterized the proposed expansion as a project the Town really cannot deny. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 8 Commissioner Aguirre asked if it would be legitimate for the EIR to address existing uses if the project can result in changes to the existing uses. Mr. Hochstrasser replied that that would be inappropriate. He said that when a change is proposed for.a residential project, the homeowner is not expected to tear down the existing house. Joshua Harris responded that CEQA has many requirements that must be strictly followed. He said that the alternatives identified for this project do no think outside the box. He said that facts are in conflict between the DEIR and the FEIR. Mr. Harris also noted that the new parking mitigation introduces a host of substantial impacts on the neighborhood as well as impacting other neighborhoods by pushing parking away from the site. He added that there are no congregational growth studies in the EIR. He said that mitigation measures effectively truncate the Town's ability to make an effective decision on the project. He stated that the proposed multi-purpose room is not only for. High Holy Days. Commissioner Aguirre asked if CEQA requires looking for even more alteIpatives when an identified alternative results in no significant unavoidable impacts. Mr. Barris responded that it is important for the DEIR to identify appropriate alternatives. Commissioner O'Donnell referred to Mr. Harris' previous baseball stadimn analogy, noting that a new baseball stadium will not attract fans for a bad team. He asked how the Planning Commission can assess growth in hypothetical situations. Mr. Harris replied that there is not enough space for the existing congregation, and with the new facility, more people will come. He said that the congregation nmnbers will grow in ways that have not been studied in the EIR. He said that the Town cannot think that building a handsome new facility will not attract more people. The public hearing was closed. The Planning Commission discussed the possibility of continuing the hearing to May 1. Mr. Ragghianti confirmed that his firm would not be available for that evening. Mr. Harris indicated that their lead attorney had been unable to attend this evening's meeting. It was the consensus of the Planning Commission that attempts s,hould be made to find a date at which the primary parties could all attend. Chair Kunzweiler warned that this could result in a continuance of several weeks or more. MIS, Collins/Aguirre (passed 5-0), to continue the public hearing to a date uncertain, to be renoticed. ADJOURNMENT The meeting was adjourned at 11 :45 p.m. TIBURON PLANNING COMMISSION MINUTES OF APRIL 24, 2006 MINUTES # 933 Page 9 EXHIBIT Al - Scott Noble, applicant noted that the plans were modified to place the dock within Tiburon Town limits and asked if anyone had questions. MIS Commissioner Collins/Commissioner Aguirre (5-5-0) UNFINISHED BUSINESS ). 2. 215 BLACKFIELD DRIVE: REVIEW OF FINAL ENVIRONMENTAL IMPACT REPORT (FEIR) AND CONSIDERATION OF CONDITiONAL USE PERMIT PROJECT MERITS FOR A PROPOSED EXPANSION OF AN EXISTING RELIGIOUS FACILITY AND DAY SCHOOL (CONGREGATION KOL SHOFAR); Congregation Kol Shofar, Owner and Applicant; Assessor's Parcel No. 038-351-34) (Continued from April 24, 2006) Chair Kunzweiler noted that due to the number of speakers and time limitatjons only twelve names would randomly be picked by the officer on duty to address the Planning Commission. Lisa Newman touched on two key aspects covered in the Staff Report; Alternative 7 and the Multi-purpose Room. Ms. Newman reported that the draft Conditional Use Permit incorporates the Alternative 7 version of Table 1 which identifies both new and proposed events as the baseline for the new Use permit. Ms. Newman noted that the baseline establishes the maximum numbers of attendees, days and times of "activities" and "events" during the week. Ms. Newman also noted that in order to mitigate traffic and noise impacts identified in the EIR, .condition #5 of the draft CUP limits the total numbers of attendees for any.new events to 250 people, and limits the times for new weekend night events to 9:00PM for new Sunday events and 11 :OOPM for new Saturday night events. When larger, existing events occur, Conditions #4a and #7 in the draft CUP require specific traffic control measures be utilized. Ms. Newman also noted that the proposed 9,733 square foot Multi-purpose Room is a large space that is intended for lifecycle celebrations and to accommodate the entire congregation during High Holy Days services. Although the space is sized to hold very large gatherings, the staff recommendation to limit the maximum number of attendees at all newly proposed events to 250 means that the facility would be "fully" utilized only on the High Holy Days, three days per year when the proposed combined services would allow up to 1,500 people in attendance at a combined service or 750 people per split service. Ms. Newman also noted that the next largest gatherings, after the High Holy Days, are the existing services on weekend mornings that are currently attended by up to 400 people. Ms. Newman further noted that according to the FEIR Alternative 7 Table 1, the Multi-purpose Room would . be used for a number of smaller existing and proposed events each week, eventhough the room would not be fully utilized. Ms. Newman noted that the list of activities/events proposed for the Multi-purpose room as shown in Table 1 of Alternative 7 overlap. Ms. Newman noted that staffhas not made a recommendation about the appropriateness of the proposed size of the Multi-purpose Room, but has focused on use restrictions such as TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 MINUfFS.935 EXHIBIT N~:~ setting caps on the number of attendees and the frequency and duration of such events, . which are linked to providing adequate parking onsite and minimizing noise impacts on adjacent neighbors. Ms. Newman finally noted that if the Planning Commission concludes that the sheer size of the Multi-purpose Room is not in character or harmony with surrounding development, or is otherwise inappropriate for the residential setting, it could choose to reduce the size on General Plan and Zoning policy grounds. '\\ Commissioner Collins asked about two letters received on May 8 from the Tiburon Neighborhood Coalition's traffic engineer and sound consultant that disagree with the traffic and sound conclusions based upon Alternative 7 and whether the Coalition's consultants' conclusions had changed the Town's EIR consultant's conclusions as to the impact of the traffic and noise found in the FEIR. Leonard Charles responded that the conclusions of the FEIR analyses for traffic and noise had not changed. Ron Brown, immediate past President of Congregation Kol Shofar, spoke about traffic measures that were put into place last Saturday during an event that had 700 attendees and triggered CUP traffic control conditions. Mr. Brown noted that shuttle service was provided, letters were sent to neighbors informing them of events, and parking was provided at Tiburon Baptist Church. Mr. Brown presented photographs showing no parking on residential streets. Tiffany Wright, attorney for Kol Shofar, explained that the Conditional Use Permit being considered was for a Multi-purpose Room, four additional classrooms, and twenty-two additional parking spaces. Ms. Wright also noted that the current Conditional Use Permit has no limits on events. She also noted that the only difference between Alternative 7 and the proposed project is that Alternative 7 will have the same impacts to a lesser degree; therefore any suggestion that more review is necessary really misses the mark as far as CEQA is concerned. Ms. Wright finally noted that Kol Shofar requests the Commission to reconsider mitigation measures regarding the Tiburon Drive and Blackfield Drive intersection as it pertains to occasional back ups due to the project and that the applicant add seven additional parking spaces. Ms. Wright noted that limiting new events to 250 people provides adequate parking. Steven Volker, attorney for the Tiburon Neighborhood Coalitiol}, spoke of the very substantial negative aesthetic impact of the seven hundred guest event and submitted photographs of the tent that was the size of the proposed building. Mr. Volker noted that the proposed building is very substantial and also submitted photographs taken at 10:53 AM on Vio Los Altos of cars making unsafe turnarounds on adjacent streets which would be a significant safety hazard at night. Mr. Volker also noted that there seems to have been fundamental gaps in analysis of this project and urged the Planning Commission to take a close look at the process. Mr. Volker.also noted that one key point missing in the EIR analysis was the availability of alternate sites outside the town of Tiburon. Mr. V olker asked the Commission to ask Kol Shofar to examine off site options. Mr. Volker expressed there was a gap in the analysis with regard to establishing the maximum permitted usage of the existing facility, maximum additional usage that might take place . , , TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 Page 3 MINUTES # 935 )' in the existing facility, the EIR's failure to project reasonable growth in the congregation size and facility usage in the future, failure of traffic analysis that was presented with Alternative 7 to speak in certain terms about mitigations and the informality of some of the mitigations, the sharp criticism from a noise expert with 20 years of experience who stated that the Town's use of the LDN metric was inappropriate in this case. The public comment period was opened. Margaret Kirby, lives directly across from Kol Shofar, stated that she has been impacted most by parking and noise and feels that the parking issue needs to be resolved in a permanent way; signs are nice but will push the problem down the street. More parking is needed onsite. Ms. Kirby also expressed that during the 700 guest event she could hear specific voices in her backyard, people were walking the streets, and at night events people would qe walking. through the neighborhood making noise. Satoshi Tanaka, lives near comer of Blackfield Drive and Karen Way, expryssed that a lot was done to mitigate parking but there was no parking near his house for guests on Saturday due to the 700 guest event at Kol Shofar. Peak noise is his main concern as well as traffic safety at Karen/Blackfield Drive intersection where people are not observing stop signs. He is not comfortable with the increase in traffic. John Nygren expressed concern about monitoring and enforcement of the CUP. He finds Alternative 7 confusing. If you are only looking at new events, how do you monitor the existing ones? His big concern is creeping growth year-by-year. Events lasting until 11 :00 p.m. on Saturday nights are later than other facilities in Town and should be limited to 9:00 p.m. Michael Rubenstein, member of Kol Shofar and resident of Tiburon for 28 years, stated that experts agree Alternative 7 mitigates impacts and gave examples of parking exemptions that San Francisco offers on weekends to support its citizen's religious life. Betsy Rosenberg expressed that she has an environmental radio show and is also a member of the Kol Shofar building committee expressed that the proposed facility will have limited environmental impact. Joel Rich, Kent Woodlands, member ofKol Shofar for.14 years noted that comments made by the opposition are not accurate, as there are no homes near Tiburon Baptist Church, the funeral of the husband of the former mayor was occurring at the same time as the 700 guest event which added to the parking demand. Mr. Rich also noted that synagogue has had no congregational growth in the last seven or eight years. Mr. Rich reminded the Commission that Bar Mitzvahs are for 13 year olds and not adult parties. Finally, Mr. Rich noted that the proposed building will be noise-secure and that during evening and later events the windows will be closed as those events are held in the winter. . TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 MINUTES # 935 Page 4 Enid Rubin, lives two blocks from Kol Shofar and a member ofKol Shofar, noted that there is not unanimous opposition to the temple in the neighborhood. Ms. Rubin noted that she lives above Bel Air School, which has just expanded and there were no community hearings or opportunity to give input. Finally, Ms. Rubin noted that Bel Aire School has loud speakers that produce noise outside of the building and that there is lots of traffic and night time events at Bel Aire School and no one complains about it. Virginia Brunini, lives between Bel Aire School and Kol Shofar, noted that she doesn't object to Kol Shofar, it's the size of the expansion and number of cars proposed, not the purpose of the expansion that is her concern. Ms. Bernini stated that she is.also the past President of the Neighborhood Homeowners Association. She noted that project would overwhelm Bel Aire and asked the Commission to entertain a project that will contain the parking within the project or provide.shuttle to available parking. Larry Duke, former Planning Commissioner, former Town Council member and former mayor, submitted written comments and made points that in 1984 when he ;was Mayor he clearly told Kol Shofar that the site wasnot appropriate for expansion. . Mr. Duke also noted that the Town worked hard with Kol Shofar fifteen years ago and that neighbors were promised that they would be protected from any expansion. Lee Kranefuss, lives immediately next to Kol Shofar, stated that his family bought the home due to the walking distance of Kot Shofar but left Kol Shofar because of the friction in the neighborhood. Mr. Kranefuss noted that chanting and singing is a positive addition to the neighborhood, but the traffic and sounds of traffic are significant issues He stated that the discipline shown in parking for last weekend's event is rare. Mr. Kranefuss noted that he has offered to work with Kol ShofCir on those issues. Finally, Mr. Kranefuss questioned Alternative 7' s effectiveness and encouraged the Commission to think of the area as a residential neighborhood. Samantha Winter, liv~s across the streetfrom Kol Shofar, stated that she is concerned about the size of the Multi-purpose Room, suggested High Holy Days remain split or held at an alternate location. Ms. Winter also suggested remodeling the existing square footage and said that the tent was an eyesore. Ms. Winter also feels like parking is an issue as there are Kol Shofar members who park in front of her 4ouse. Ms. Winter also stated that there is already a preschool with 100 children rented by Ring Mountain and sliggested that Ring Mountain find a new facility. Finally, Ms. Winter noted that events after 9:00 PM are way too late in a residential area. Susan Goldwasser, member of Kol Shofar, has three children lives in the neighborhood and feels Alternative 7 represents an unnecessary expansion. Ms. Goldwasser noted that events can be held off site or a portable tent could be set up. Ms. Goldwasser also noted that parties are not religious events and can happen at alternative locations. She stated that the neighborhood has been accommodating and doesn't need new traffic and noise impacts. Finally Ms. Goldwasser noted that eighty percent of Kol Shofar congregants live outside of Tiburon. TIBURON PLANNING COMMISSION MINUTES OF MAY 10, 2006 MINUTES # 935 Page 5 The public hearing was closed at 9:00 pm. Commissioner Collins noted that existing facility has 10,000 feet of mechanical rooms, and questioned if 10,000 feet was necessary to house the mechanical equipment. Mr. Brown noted that 6,000 feet of space is in the attic above the ceiling and is only accessible by crawling. Commissioner Collins also asked about Samantha Winter's comment regarding the new preschool and Mr. Brown noted that the addition was in the original application and the additional fifty students would be a Kol Shofar sponsored school in collaboration with Ring Mountain who has the expertise to run the preschool. Commissioner O'Donnell asked about amplified music that might result from evening activities and Mr. Brown noted that they have been assured by architects that it is possible to keep noise inside the building. Commissioner O'Donnell asked ifKol Shofar has made the best effort to optimize parking on site and Mr. Brown noted that they are willing to do more to help mitigate parking problems. Diane Zack noted that other measures that can be undertaken to improve the shuttle service and educating the congregation. Commissioner O'Donnell asked ifKol Shofar was on its best behavior at the Saturday 700 guest event, or if the effort was in good faith and Mr. Brown noted that the large event was the first time the traffic mitigation had been put into effect. Commissioner O'Donnell asked about goals and true plans for Kol Shofar growth five and ten years down the road to which Mr. Brown replied the presented plans were not building for growth. Diane Zack noted that there is no five year plan and that the congregation is not planning for growth. Commissioner O'Donnell asked if the Conditional Use Permit being requested tonight will be satisfactory in five years or will Kol Shofar come back and ask for an amendment, to which Ms. Zack answered yes and that there is the possibility that the Conditional Use Permit will evolve due to needs .of neighborhood. Commissioner Fraser asked if High Holy Days have ever been held at other locations and Mr. Brown noted no as Kol Shofar is unable to find a location in Marin. Mr. Brown noted that the only available place is the Veterans Auditorium which is used by R. Shalom. He also noted that Kol Shofar has looked very carefully at other alternatives. Commissioner Fraser asked about the original Conditional Use Pemit mentioned by former Mayor Duke and Mr. Brown replied that there are no restrictions in the original TIBURON PLANNING COMMISSION MINUTES OF MAY 10, 2006 MINUTES # 935 Page 6 Conditional Use Permit and that available documentation does not mention any restrictions mentioned by Mr. Duke. Commissioner Aguirre asked about the impact of traffic with the addition of a new . preschool and fifty new children, requested capacity of the Multi purpose room being that there is no option to open up the room to one large space and for clarification about events being held only seven months of the year. Rabbi Derby explained the Jewish Law regarding the Sabbath. In response to Commissioner Aguirre's inquiry as to why Kol Shofar hasn't found ways to hold events according to Jewish Law prior, Rabbi Derby rioted that for the last twelve to fourteen years a task force has been assigned to locate space to no avail. Chair Kunzweiler asked from CEQA standpoint what other alternatives were considered and Tiffany Wright responded the availability of offsite alternatives was researched. Mr. Brown also noted that a three year period was spent looking at alternatives. Chair Kunzweiler asked about proposed site and size of the multi-purpose room and lobby and Mr. Brown noted that the assembly space is 4500 square feet due to the High Holiday and sit down dinner events and that the large lobby is a gathering point and will be the lobby for the sanctuary as well. Rabbi Derby noted that the driving need is to be able to seat 750 people theater style and that the room enables the space to be divided into three parts. Chair Kunzweiler asked about the four additional classrooms which is a net increase of about 3600 square feet and Ms. Zack noted that the four classrooms will replace four to be eliminated in the remodel that are currently under a balcony and have no windows or natural light. Chair Kunzweiler asked about plans for the annex building and Mr. Brown noted that the existing building used as teen lonnge, Ring Mountain, and a store room, and will continue to be used for the same things. Chair Kunzweiler asked about the construction plan for the project and where services will be held during construction of the synagogue and Ms. Zack noted that sites have .been identified for rental during construction. Chair Kunzweiler asked the size of tent erected last week, to which Ms. Zack noted 50' x 130'. Commissioner Fraser asked if a facility could be built with some degree of flexibility within the existing 43,000 square footage. Diane Zack replied no. TIBURON PLANNING COMMISSION MINUTES OF MAY 10, 2006 MINUTES # 935 Page 7 \, Bob Herman, architect, noted that even if reconfigured into the existing shell, the number of people and parking issues would be the same. Chair Kunzweiler asked Tiffany Wright is she agreed that Table 1 is complete and Ms. Wright replied that Table 1 is the best representation. Chair Kunzweiler noted that the Table needs to be correct. Gary Ragghianti, attorney noted that Table 1 is a comprehensive list of what is being proposed and that he does not believe that what the congregation chooses to do in the practice of its religion is the subject of the Conditional Use Permit. Chair Kunzweiler replied that Table 1 appeared to be a mix of both religious and non-religious uses. Commissioner Collins asked Rabbi Derby about finding a place in Marin County that would accommodate the needs of Kol Shofar and replied that they have looked but would prefer to pray in their own synagogue. Commissioner O'Donnell asked Mr. Volker about the six different neighborhood organizations he represents and that comprise the Coalition and Mr. Volker responded that the coalition is a group of thirty neighbors and that under the First Amendment membership lists can't be questioned. Commissioner O'Donnell asked Mr. Volker who is paying his bill and Mr. Volker noted that the Tiburon Neighborhood Coalition is paying his bill. Tim Metz noted that all neighbors ,in the Coalition have sent in letters of opposition. Kurt Kaull noted that'the Coalition is comprised of a group of interested citizens pulling together. Commissioner O'Donnell asked who created the website and Edward Baker noted that he created the website. Commissioper O'Donnell asked Mr. Baker ifhe put the American Flag on the website and Mr. Baker responded he did. Commissioner O'Donnell asked ifhe put references about not being able to hear the birds, children not being 'able to sell lemonade and the quote that also mentions that "Town of Tiburon realtors have said that property values may go down" and Mr. Baker responded yes. David Holden noted that the group came together after the project was delivered to the T own, decided to form a group, picked a name, opened bank account and that is how group was developed. Mr. Holden noted that the group is comprised of thirty homeowners and collected 175 signatures on the petition submitted on April 24, 2006. TIBURON PLANNING COMMISSION MINUTES OF MAY 10, 2006 MINUTES # 935 Page 8 Commissioner O'Donnell asked Mr. Volker about the acceptability of a tent. Mr. V olke~ noted that photographs were taken of the tent to show a dramatic impact and to strongly encourage the Town to consider the alternative of the tent as there wouldn't be large events every day of the year. Commissioner O'Donnell asked if Mr. Carmen the sound engineer visited the affected homes in preparing his analysis and Mr. Volker noted that it is the Town's function to perform the analysis of the affected homes; Mr. Carmen prepared a peer review of this . analysis. Mr. Holden noted that both the Draft and Final EIR used peer review, as well as Kol Shofar . - Leonard Charles noted that EIR noise measurements were done on the site. Commissioner Fraser noted that local residents welcome the synagogue; w~lcome the environment created and asked the Coalition for their ideal recommendation~ Brad Tardy, architect responded that project doesn't make sense and noted that he could design a facility that could meet their needs within the existing footprint. Kurt Kaull noted project has whittled down over time, but expressed concern about the hours of usage and the multi-purpose room. Mr. Volker stated that the utmost concern of the Coalition is that the Town stopped short of examining locations beyond it's boundaries for alternate sites. Mr. Volker also noted that if there are better locations in other communities that will not create such intense conflict they should be examined. Mr. Volker fmally noted that it is essential to look at all alternative locations and suggested the. possibility of splitting the annual events into two or three different venues. Chair Kunzweiler asked about the noise analysis methodology. Lee Kranefuss responded that there have been a number of studi~s, by different consultants regarding the range of impact and the weighting of noise. Mr. Kranefuss explained about ambient nighttime noise levels and noted that in regards to the weighing of noise the problem would only become worse. Commissioner O'Donnell asked the Coalition if they were willing to grant allowances for parking, noise and traffic on High Holy Days and the response was yes. Commissioner Aguirre asked Mr. Charles to comment on the noise measurement, Ldn. Mr. Charles responded that the Ldn is the standard way noise is measured in Tiburon and found that noise increases in the parking lot would be insignificant. TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 MINUTES # 935 Page 9 Commissioner Aguirre asked about addressing the neighborhood concerns that building the facility and subjecting it to the certain- requirements under the Conditional Use Permit will not be sufficient over time to guard against increased uses in that facility, to which Ms. Newman responded that the facilities haven't changed but the congregation has grown over time. She noted that the use permit has been examined periodically and the conditions of approval have evolved over time. Finally, Ms. Newman noted that Staffhas tried to present something !hat could work and have reviewed the conditions that have been in place, augmented those and put together a comprehensive set.of conditions that address the impacts, as well as building in a monitoring program. Ms. Newman finally noted that an annual review is required and provides the Town the opportunity to measure the success of conditions of approval. Community Development Director Anderson noted that it has been the Town's experience that other project's proposed uses and buildings that were perceived to cause terrible impacts never materialized, but the monitoring and annual reviews are critical. Mr. Anderson also noted that it has been the Town's approach to deal with ~se intensity versus the size of building. ' Commissioner Aguirre asked about enforcing the Conditional Use Permit and Mr. Anderson noted that a detailed monitoring program would require detailed information to be submitted. Commissioner Aguirre asked if the Conditional Use Permit were to be approved and there are more events and traffic impacts. are more significant than anticipated what is the help for neighbors and Mr. Anderson noted that the Conditional Use Permit could be reviewed and modified at any time. Commissioner Aguirre asked for the threshold for calling for the review and Mr. Anderson noted that the Town typically doesn't have those types of situations. Commissioner Collins stated that this project is about two homes - the religious'home for Kol Shofar and the homes for those people who live in the neighborhood. He felt that the project is too ambitious for the neighborhood. He said that the project would be inconsistent with the zoning ordinance and the general plan and ~hat he cannot make the findings needed to approve the project as submitted. Commissioner Collins noted that he has no difficulty with High Holy Days; however traffic safety, parking, nighttime events on. Saturdays and Sundays and noise are the main impact problems and the proposed new activities are not in character with the neighborhood. He said that the problems with cars turning around in the street and backing out of private driveways and the stacking at the turn lane on Tiburon Boulevard are also important safety issues. He noted that the project would increase the size of the Kol Shofar buildings by 30%. Commissioner Collins noted that he would be able to support the remodeling aspects of the project, the new classrooms, and the modifications to the parking lot, but not the addition of the multi- purpose room. TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 MINUTES # 935 Page 10 Commissioner O'Donnell thanked all involved with thepropdsed project but noted that he disagreed with Coinmissioner Collins. Commissioner 0 'Donnell characterized the lengthening of the left turn lane at Tiburon Boulevard and Blackfield Drive as foolish when technology exists to accommodate the additional traffic with changes to the timing of the signals. He stated that the notion that all Kol Shofar members would arrive at events at the same time was ridiculous. Commissioner O'Donnell noted that the building will be made noise secure and did not think that noise from people exiting or entering religious activities would be overly loud as people approach religious activities with respect. He noted that the application for a gym at S1. Hilary raised concerns about noise, but now that facility is a great example of how a religious facility can fit in with the neighborhood. Commissioner O'Donnell noted that with the exception of High Holy Days all the cars would fit in the parking lot and there would only be a small overage on Saturday and Sunday services. He acknowledged that there might be a traffic mess.on High Holy Days, but he said that even the neighbors recognize that that is an exception~ Commissioner O'Donnell stated that neighborhoods must learn to accept that these events are part of the community. He stated that parking is always a problem in Bt;l Aire because people do not park in their garages. He stated that the project would not change that situation dramatically, and that the only times parking will be an issue there will be mitigation measures to deal with it. He felt that the revised circulation plan is a great improvement. He noted that the event on the previous weekend was a good example for the multi-purpose room, as he felt that the tent was not an eyesore at all. He supported the preschool expansion and felt that recirculation of the EIR was not necessary, as the Commission has enough information to make its decision. Commissioner O'Donnell also noted that requiring a recirculation of the EIR for the purpose of explaining additional alternatives was unfair when the applicant has a site that meets their needs. He stated that the use permit would allow for a small expansion of activities, but would contain them. Finally, Commissioner O'Donnell noted that he thinks religious institutions are as important as schools and downtown in maintaining a viable, active and successful community. Commissioner Fraser noted that he agrees with Commissioner Collins and that the proposal is an ambitious project. He stated that 43~OOO square feet represents a substantial facility, and that looking at the buildings as a Clean sheet of paper might allow Kol Shofar to come up with a better solution. Commissioner Fraser noted that he recognizes the needs of the synagogue and community, but that ihe overriding goal is to strike'a proper balance between both~ As presented, he felt that theproject conflicts with the general plan policies. He felt that the issues are solvable, but need to be looked at differently. He found it telling that Kol Shofar could not fmd a facility in the entire county that can support their High Holy Days services; he felt that if there is no such facility now, then maybe such a facility should not be built at this location. Commissioner Fraser noted that he believes the EIR has sufficient information to be certified, but that he is not in favor of the traffic mitigation plan to put up signs that would push parking elsewhere. Commissioner Fraser also noted that he doesn't think detailed and complicated monitoring programs are a wise approach because impacts TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 MINUTES # 935 Page I 1 should be solved onsite. He encouraged Kol Shofar to go back to drawing board to come up with a plan that balances the needs of the synagogue and the community. Commissioner Aguirre stated that he respects the needs of Kol Shofar and tries to put himself in the shoes of the neighbors and their need to preserve the character of the n.eighborhood. He stated that not much from the St. Hillary project is relevant to the Kol Shofar proposal, as the nature of a gym and its impacts on the neighbors is riot comparable. He agreed that there is no need to recirculate the EIR, stating that it is absurd to think that providing an alternative that mitigates impacts requires additional review. Commissioner Aguirre also noted that the two main goals of the project were to host large evening celebrations and have space for High Holy Days. He said that the initial request for 30 to 40 additional events clearly indicates that these events are part of the purpose for the expansion. Commissioner Aguirre stated that these events are . fundamentally incompatible with the character of the neighborhood and contrary to the general plan policy calling for harmony with the neighborhood. Commissioner Aguirre stated that he cannot support the project. Chair Kunzweiler noted that he went back to the 1984 resolution for Kol Shofar. He added that things change over time, and although he had no question about the sincerity of Kol Shofar to live up to their conditions of approval, he was concerned that a large facility is requested that will morph into something else over time. He was concerned with a creep of increased usage, noting that use permits often change for very good reasons. Chair Kunzweiler noted that there has never been a question that Kol Shofar dOes not belong, but he felt that the project as proposed is out of character with the neighborhood. He said that noise outside of buildings on weekend nights is an issue. He said that if parking spreads into the surrounding neighborhood it will be a problem. Chair Kunzweiler also noted that he supports the school expansion, and felt that the EIR did not need to be recirculated. He felt nervous about projects with long lists of mitigation measures. Chair Kunzweiler noted that the size of the multi-purpose room is the issue, and that he would like to see the size adjusted, within reason. Chair Kunzweiler proposed scheduling a May 31 or June 14 meeting to discuss the findings of an ad hoc subcommittee of the Planning Commission who will come up with a plan that the Commission as a whole could support. Chair Ku~eiler suggested that the ad hoc subcommittee be comprised of himself and Commissioner Collins. Commissioner Aguirre stated that a plan that might be acceptable to the Planning Commission might not be acceptable to Kol Shofar. Commissioner Collins asked whether Kol Shofar preferred a continuance or a yes or no vote on Alternative 7. Gary Ragghianti stated that Kol Shofar is interested in returning on May 31, and asked that the resolutions be prepared for that date and that there be no more public hearing or TIBURON PLANNING COMMISSION MINUTES OF MAY ]0,2006 MINUTES # 935 Page 12 debate. Mr. Ragghianti also asked that Commissioner O'Donnell be part of the ad hoc subcommittee. , Mr. Volker noted that it is contrary to the law to prevent the public from commenting and that it is appropriate that Chair Kunzweiler proceed with the ad hoc subcommittee that has been appointed. Chair Kunzweiler agreed that Commissioner O'Donnell would serve on the ad hoc subcommittee in place of Commissioner Collins. MIS, Commissioner Collins/Commissioner Fraser (passed 5-0) to continue the hearing to a special meeting on May 31, 2006. MINUTES 3. Special Meeting of April 24, 2006 4. Regular meeting of April 26, 2006 Due to the lateness of the hour, the Commission carried these items over to its next meeting. ADJOURNMENT There being no further business, the meeting was adjourned at 11 :45 p.m. JOHN KUNZWEILER, CHAIRMAN ATTEST: SCOTT ANDERSON, SECRETARY TIBURON PLANNING COMMISSION MINUTES OF MAY 10,2006 MINUTES # 935 Page 13 . EXHIBIT 0 MINUTES NO. 936 PLANNING COMMISSION May 31, 2006 Special Meeting Town of Tiburon Council Chambers 1505 Tiburon Boulevard, Tiburon, California CALL TO ORDER AND ROLL CALL Present: Chair Kunzweiler, Commissioners Aguirre, Collins, Fraser and O'Donnell Absent: None Staff Present: Community Development Director Anderson, Planning Manager Watrous, Town Engineer Nguyen and Meeting Recorder Williams ORAL COMMUNICATIONS Noone spoke at this time. COMMISSION AND STAFF BRIEFING Community Development Director Anderson noted that next meeting is June 14 however there are no business items and if it is convenient, the Commission may possibly take up some of the items from the Town Council/Planning Commission workshop at that meeting. UNFINISHED BUSINESS ) 1. 215 BLACKFIELD DRIVE: REVIEW OF FINAL ENVIRONMENTAL IMPACT REPORT (FEIR) AND CONSIDERATION OF CONDITIONAL USE PERMIT PROJECT MERITS FOR A PROPOSED EXPANSION OF AN EXISTING RELIGIOUS FACILITY AND DAY SCHOQL (CONGREGATION KOL SHOFAR) Lisa Newman noted that at the last hearing on May 10,2006 there was a majority consensus that the Final EIR provided satisfactory analysis of the projects impacts, mitigations and alternatives, but the scale of the project as modified in Alternative 7 was too ambitious for the neighborhood and not consistent with many provisions of the General Plan and Zoning Ordinance. Ms. Newman also noted that niost Commissioners expressed concern that the project's net increase in parking spaces was insufficient given the scale of the expansion; that the number of proposed new weekend nighttime events would expose neighbors to excessive noise; that the hours of the events would be too late TIBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES' 936 EXHIBIT NO,~ for a residential neighborhood; and that it would be too difficult to monitor and regulate the CUP conditions and mitigations. Ms. Newman finally noted that a draft resolution certifying the Final EIR for the project and another draft resolution denying the CUP application were presented for the Commission's consideration. Chair Kunzweiler noted that at the last Planning Commission meeting an ad hoc subcommittee was established to see if a suitable alternative could be reached. However, prior to the first meeting of the subcommittee, Gary Ragghianti, Kol Shofar's attorney, contacted Staff and advised that Kol Shofar had requested that no further work be ~one on other or revised alternatives. Therefore, no further work had been done on the alternatives previously presented to the Commission. Gary Ragghianti, Attorney for Congregation Kol Shofar, noted that in April a Staff report found the ,application as modified by Alternative 7 to be consistent with the, Tiburon General Plan. He stated that the EIR concluded that Alternative 7 mitigated all potential project impacts to less than significant levels. Mr. Ragghianti stated that the resolution denying the use permit was a product of coming up with an answer before there is a question. He felt that the resolution was arbitraryand capricious and would fail to withstand scrutiny. He also stated that he believes the record of the proceedings fail to contain substantial evidence to support many of the general statements contained in the resolution, such as findings related to noise and traffic, light and glare and neighborhood compatibility. and neighborhood identity. In regards to noise, Mr. Ragghianti noted that the draft resolution simply ignores thresholds established in the General Plan and findings contained in the EIR that these noise standards have been met, as shown both by measurements using technical metrics used for other similar projects in the town and by further efforts to avoid inconvenience to neighbors. Mr. Ragghianti also stated that General Plan Noise Element Policy N-I is the exclusive criteria that the Town must use to determine noise impacts, and that the Planning ColllIllission is holding this project to a different standard. Mr. Ragghianti stated that the Planning Commission seems to b~ making findings that the neighbors are the community, and not just a part of the community. He said that he was astounded that light and glare is an issue when the EIR indicates that there are only two or three homes that may have headlight intrusion for a few seconds at night when the cars leave the upper parking lot. He said that there is no evidence to support the claim that insignificant headlight spillage will impact the public health, safety or general welfare and no evidence to support claims that the project's headlight spillage impacts the character and identity of the community. Mr. Ragghianti noted that there is already an existing 43,000 square foot facility on the site, and that it was preposterous to compare the.impacts of the building to that of a single- family dwelling. He added that Kol Shofar's presence precedes that of many of the (~,.:IBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 'tr.~,:,: ,.) MINUTES # 936 Page 2 surrounding homes. Mr. Ragghianti added that Kol Shofar is not just a part of the community, but rather is a defining part of the community. He stated that there is no evidence in the Staff report identifying aspects of the neighborhood character and identity with which the project would be incompatible. He stated that Tiburon does not really have a small town residential character and that Kol Shofar has been an integral part of the neighborhood for many years. Mr. Ragghianti further stated that Kol Shofar is a religious institution and cannot function without a physical space adequate to meet their religious needs. He said that the congregation's first amendment rights would be superceded by the supposed issues raised by the resolution. He stated that the record incontrovertibly demonstrates the need for this project for Kol Shofar to meet its religious purpose, and that the Planning Commission has failed to support less restrictive means of achieving the desired results. Finally, Mr. Ragghianti noted that he believes that denial of the application imposes a burden on th~ congregation and that Kol Shofar will appeal the resolution if adopted. Steven Volker, attorney-for Tiburon Neighborhood Coalition, noted that the Coalition is in support of the proposed resolution denying the conditional use permit and opposes the proposed resoluti'on certifying the final EIR. He disputed Mr., Ragghinati's comments about Policy N-l, stating that Policies N-2 and N-3 support the denial of the project. He stated that the record is replete with ample evidentiary support for the findings of denial for the use permit. Mr. Volker stated that children in neighboring homes should not be subjected to light and glare from headlights. He stated that insufficient parking provided creates grounds enough to deny the project. He said that the project would place a parking burden on the neighborhood when it should fall on the applicant. Mr. Volker stated that the proposed project is not located in a commercial zone, but rather in a quiet, residential neighborhood where people have invested their entire life savings in homes to provide a quiet, safe neighborhood for their children and that is what the General Plan demands be respected. Mr. Volker finally noted that in over 30 years of practice, he had never seen a Planning Commission start with a staff report recommending approval, listened to public comment, read voluJI;1inous public record and then follow the truth. He concluded by stating that the Coalition remains prepared to work with Kol Shofar to come up with a project that would be consistent with the Zoning Ordinance and the General Plan. Kurt Kaull, Tiburon Neighborhood Coalition, thanked the Commission for its time and effort and referenced Mr. Volker's previous letter to the Town recommending denial of the project. He stated that it is the Coalition's has asked for common sense and has tried to exhibit sensitivity and a spirit of fairness. Mr. Kaull stated that it is not right to marginalize the neighbors who are trying to protect the character of the neighborhood. Mr. Kaull characterized Mr. Ragghianti's comments as confrontational and asked the TIBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES # 936 Page 3 Commission to stick to their guns, but noted that the Coalition welcomes continued de bate. Bruce Abbott expressed opposition to the building plan as well as concern about offsite parking along Greenwood Beach Road. Mr. Abbott characterized the proposal as grandiose and added that the parking could not be accommodated on-site. He cited the parking requirements of the Zoning Ordinance, noting that these requirements are mandatory, not discretionary. Nancy Sherm, member ofKol Shofar, stated that she was opposed to the denial ofKol Shofars' application. Ms. Sherm referenced the expansion of St. Hilary, which occurred in a neighborhood similar to that surrounding Kol Shofar. She said that S1. Hilary's facilities assisted the Catholic community to carry out their mission. She added that on a recent night when a bat mitzvah was held at Kol Shofar, St. Hilary held an event hosting 300 people with music until midnight. Ron Brown, past president of Congregation Kol Shofar, stated that he. opposed the denial of the use permit. He stated that he was confused by statements that Kol Shofar is inconsistent with the neighborhood as Kol Shofar was there before a lot of the homes. He said that one could easily conclude that Kol Shofar, Bel Aire and the Cove shopping center were the primary elements of the community. Mr. Brown also wondered who would be impacted by the mass of the proposed building as it is screened by vegetation. He stated that the project would not be massive, as Kol Shofar already has 43,000 square feet of space on a 7 acre site. Mr. Brown further noted that St. Hilary was allowed to construct 25,000 square feet of space and felt that their project was reasonable. He said that he was quite puzzled why two religious institutions would be treated so differently. Virginia Brunini stated that Kol Shofar has been a welcome neighbor, but that the issue is not about religion, but about parking and cars. She suggested that if a 43,000 square foot building does not meet Kol Shofar's needs, they should tear it down and build one that meets their needs. Ms. Brunini also stated that the EIR states that Bel Aire as a neighborhood would not be significantly impacted by the project, which she felt was a huge omission. She encouraged Kol Shofar to stay on their property but find a better way to meet their needs. Ida Geldert stated that she has gained enormous respect for the Planning Commission for dealing with the intricacies of this project. She said that Kol Shofar will do everything in its power to be a partner with the neighborhood. She said that congregation members come and go, but they want to share the neighborhood with the residents. Ms. Geldert added that the intentions are not to build a Taj Mahal, but a functional synagogue. . Diane Zack, president ofKol Shofar, stated that she was heartened to hear that neighbors want to work with Kol Shofar. She said that Kol Shofar thought the level of noise and traffic impacts in Alternative 7 had been lowered to .less than significant levels which is very important to Kol Shofar as they really care about the neighbors. Ms. Zack stated that TlBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES # 936 Page 4 she feels the application has 'gotten hijacked after two and a half years of study. She stated that Blackfield Drive is not a quiet country lane. Ms. Zack stated that the multi- purpose room is desperately needed, and that it is not possible to stay within the current footprint and have a decent place to pray and teach. The Planning Commission began deliberations on the draft resolution regarding certification of the Final Environmental Impact Report. Commissioner Fraser stated that he believed that the Draft EIR and Final EIR have adequately addressed the right elements required by the CEQA guidelines. He said that there has been exhaustive testimony and evidence presented. He said that although he does not agree with every aspect of the EIR, he saw no benefit to or reason for recirculation of the document, and felt that there was no material change presented that would require recirculation. He said that he supports the draft resolution as is and is in favor of certifying the Final EIR. Commissioner O'Donnell agreed with Commissioner Fraser that the issue has been looked at exhaustively and in great detail. Commissioner O'Donnell stated that sometimes the EIR becomes a battle in itself, and he felt that the Commission should proceed with certifying the Final EIR. Commissioner Collins stated that he supports certification of the Final EIR and characterized it as a full disclosure docwnent.He added that he disagrees with some of the conclusions in the EIR, as noted in the draft resolution for the use permit. Commissioner Aguirre stated that he supports the resolution certifying the EIR with no modifications. Chair Kunzweiler concurred with the comments made by the other Commissioners, He stated that preparing an EIR is often a thankless task, but felt that the consultants have done a good job capturing a very complicated and multifaceted project. He said that one can disagree with some of the conclusions and mitigation measures within the EIR, but that he could support the EIR being certified as is. MIS, Fraser/Aguirre (passed 5-0) to adopt the resolution certifying that the final EIR has been completed in compliance with the California Environmental Quality Act and local CEQA guidelines. The Planning Commission began deliberations on the draft resolution regarding denial of the conditional use permit. Commissioner Collins stated that the resolution is detailed and captures the essence of the Commission's feelings about the project. He stated that not all of Kol Shofar's events that are held on the site at the present time are therefore covered by the existing use permit. He stated that celebratory events create noise, and that the project would be too TIBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES # 936 Page 5 much of an intrusion on the neighborhood. Commissioner Collins further noted that this decision has nothing to do with who the applicant is but has more to. do with its potential impact on the neighborhood. He stated that the applicant is not entitled to approval of a facility that would necessarily meet its stated needs, and he felt that this project is too ambitious. He hoped that the two parties would be able to work things out. Commissioner Aguirre stated that he is not in favor of the project as currently conceived, but that there are some sections of the resolution that he cannot support. He felt that the discussion of noise in Section 4 was satisfactory, and agrees with the discussion of evening events in the traffic and traffic safety section. He said that he does not support the section on light. and glare. He felt that the section on neighborhood compatibility should focus on evening events and should not compare the size of the building to existing residences, noting that the St. Hillary gym is larger than the homes in its neighborhood. He said that there is a significant distinction between a gym that was designed as a gym having an occasional weekend event, and a multi-purpose room that would host many more evening events. Finally, Commissioner Aguirre noted that in referenc~ to section 5 E, he has no problem with the size of the facility, but he does have a problem with the proposed uses of the facility. Commissioner Fraser stated that he was in support of the resolution as drafted. He stated that the findings in the resolution reflect the reasons for denial, but noted that he does not view the resolution as a suggestion on how to change the project. He stated that it was sad that the project has come to this point and felt that both sides have dug in their heels. He was discouraged that although the neighborhood embraces religious facilities (i.e. Kol Shofar) that the verbal fighting and bantering between Kol Shofar and the neighborhood had gotten out of control. Commissioner Fraser also noted that compromise means that both sides need to compromise. Finally, Commissioner Fraser noted he had hoped if the resolution is denied, that the Town Council is back and voting on a revised resolution that makes sense for the community and Kol Shofar. Commissioner O'Donnell stated that he would not support a resolution of denial, but would instead support elements within the resolution. He said that it was sad to come to a position with two sides diametrically opposed. Commissioner O'Donnell stated that the number of weekend evening events could be reduced and agree~ with Commissioner Aguirre about issues of size versus usage. Commissioner 0 'Donnell stated that the size of the multi-purpose room was not out of context with the lot and the multi-purpose room would be well screened by trees. He felt that light and glare are not an issue, but agreed that the parking issue is very difficult. He noted that there was a lot of information and mitigations that support staff's conclusions. He stated that a cap of 250 participants in evening events would allow all the cars to fit within the parking lot. He felt that parking would only be a problem during the High Holy Days and certain religious functions, but that there is a way of dealing with the extra cars that does not'impact the Bel Aire community. In regards to traffic, Commission O'Donnell stated that Blackfield Drive is a main artery and will always be a heavily traveled route. He felt that even with the small increase of nighttime usage associated with the project, the traffic would not be as dire or TIBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES # 936 Page 6 as problematic as the resolution outlines. He believed that the facility will fit nicely in the neighborhood and recognized that the current facility needs to be modernized. He added that he would not like to see Kol Shofar leave the community, but would instead like to see a proposal that would be to the benefit of the neighborhood. He added that he does not like the current proposal of closing hours and is complete agreement with the neighborhood that the hours are way too late and could significantly be reduced by one or one and one half hours. Chair Kunzweiler stated that he had hoped a compromise could be worked out as the project has been in the works for two and a half years, but Kol Shofar's approach is to take the matter to the Town Council. He noted that the Commission and Staffhave tried to be respectful of the religious mission of Kol Shofar from the beginning and that the debate has mostly been about size and usage of the proposed additions. He noted that the proposed usage has decreased, but not the size of the facility. He said that he was happy to see some movement on the use and hours, but he felt that there was still a ways to go. Chair Kunzweiler further noted that he is concerned about the size of the addition itself, noting that he trusts the applicant and the statements they have made about the usage, but _ also noted that the conditional use permit currently held by Kol Shofar has changed over the last twenty years. He noted that if a large facility is built, there is a potential for other or different uses. He stated that parking is a big issue and he fears that increased parking brought on by the increased usage of the facility would create problems. He felt that light and glare is a minor issue unless you are one of the two or three homes affected by the light and glare. Chair Kunzweiler agreed with Commissioner Aguirre's comments on the neighborhood compatibility section of the resolution, and thought that the logic that the facility being bigger than houses is a stretch. Chair Kunzweiler also noted that he hoped the traffic issue would be resolved at later meetings and would like to see the number of events reduced. He felt that the parking issue would result in an unacceptable impact on the neighborhood. Commissioner Aguirre objected to section 4, paragraph E of the resolution, as it appears that the Commission is substituting its judgment for Kol Shofar's on whether the facility meets their needs. Commissioner Fraser stated that given the testimony about event schedules, it appears that a lot of the facility is unused at many points in time. ' Commissioner Aguirre stated that the Town does not need to make this finding to deny the application. Commissioner Collins stated that the Planning Commission cannot agree that the additional space is necessary for this facility. Chair Kunzweiler noted that there is no disagreement that the existing facility needs work, but the issue is over the amount of extra area needed. He noted that a round building is usually inefficient. TlBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES # 936 Page 7 Commissioner O'Donnell noted that with a religious institution, space is about beauty, openness and making things look right. Commissioner Fraser noted that parking remains an issue, especially overflow parking. He suggested that direction be given to the Town Council that adequate onsite parking needs to be provided for the addition. He stated that the neighborhood should not be impacted by additional parking of cars due to a facility expansion. Chair Kunzweiler stated that the Town Council should be very mindful of not moving the parking problem to Greenwood Beach Road or Bel Aire and should come up with a reasonable set of parking requirements for the facility. The following amendments to Resolution No. 2006 - Draft were proposed: . Page 10, 1 st Paragraph, Section 4, Neighborhood Compati~ility, remove tht1 ~nd sentence. Page 14, Section E, 1 st sentence, change to "concludes" to "questions whether. . ." MIS, Fraser/Aguirre (passed 4-1, O'Donnell dissenting) to adopt the resolution to deny a conditional use permit application for expansion of an existing synagogue and day school at 215 Blackfield Drive and adopting findings supporting the denial. Community Development Director Anderson noted that both decisions can be appealed and that the following Monday is the filing deadline. PUBLIC HEARING 2. 2240 CENTRO EAST: REQUEST FOR A CONDITIONAL USE PERMIT TO OPERATE A TEMPORARY CONSTRUCTION STAGING AREA ON A CURRENTLY VACANT LOT Planning Manager Watrous noted that a proposal has been made to operate a temporary staging area on vacant property located at 2240 Centro East Street. Staff reported that there are varying degrees of screening of the property and on adj'acent lots provided by fairly dense vegetation. Staff also noted that there are varying degrees of visibility from the- surrounding property. Commissioner Collins asked how much land is available without cutting the vegetation. Planning Manager Watrous it is likely that much of the vegetation would have to be removed. Rolf Eiselin, property owner of 2240 Centro East Street, stated that he was asked by Maggiora & Ghilotti if his land could be used for this purpose. He felt that it would be in TIBURON PLANNING COMMISSION MINUTES OF MAY 31, 2006 MINUTES # 936 Page 8 EXHIBIT fJ - Ragghian til Freitas LLP :.:t~. lA \t:' ~ :~ ;::. '::. G ~~ [~ ~ ~ E ~ w ~Ih\il linll ....-)7 2006 lil);! IU U 1___ , PLA!'.!NI:"JG DIV1SIDN TOWN OF TIBUF;ON 1:~~~ {:'.:'':..(?-;--..... ~-;,rfW '_' .. r: ~~~. )o~~,.~t:... Ct~ ~~91j',..;::~f 7"!.:r.t:;I:~(:h-f ~~! ~.A.S,:~.'::'-.'~~~ ~':..(!.:~.$~:'~E ~~.:~.~,5].~;2.59 Septen1ber 6, 2006 !\1ayor Paul Smith and To,vn 'Council J\1embers T ovvn of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94Sl20 Re: Appeal of Congregation KoI ShofarjRLUIPA Dear 11ayor Smith and T O\NuCounciI I\1clnbers, The purpose of this letter - "Vvhich is supplen1.ental to matters raised in our appeal Jiled . on June 6, 2006, and to other docmnents and testimony on record - is to apprise yeu of certain legal claims arising from the action of the Tiburon Planning Commission in denying the use permit application (CUP) of Congregation Kol Shofar (CKS) to remodel and expand its synagogue at 215 Blackfield Rd., Tiburon. Specifically, we assert that decision violates the right to religious exercise accorded to nlenlbers of the. congregation and to the congregation asa vvhole, rights protected by the' United StatesandCaliforniaconstitutioTIS, and specifically protected under the Religious Land Use andlnstitutiona.lized Person.r; Act of2000 (RLUIP...4).1 Belo\v, \.\1e analyze the liability of the To"\vn that attends such violations, and provide this to you :in advance of your consideration of the appeal of thisdedsion, no"\\r-scheduled for your meeting of September 19,2006. lVe do so in the hope that you\'\Till take appropriate notice of the serious nature of this matter, seek fheadvice of the Town Attorney, and then act to rectify the legal and constitutional violations arising from the Platming Commission action by reversing that decision after you hear Our appeal. Should the Tovvn Council fail to reverse the determination of the Planning Commission - or, if in doing so, should it atten1ptto ilnpose additional burdensome conditions upon this project that interfereunreasonablyvvith the Congregation's constitutional rights to practice their faith and to do so in facilities that are necessary ! 42 U.S.C. * 20aOer el seq. ~ CD:; \~/. S!'".,.,,;; -r H :" . -t- r.:. ..,.- ~ ~ I" C';;. CC-~:'-iSE:- s~ ~t.~.h h:. Li::::. f~ ,;..;<~ ~,/ ~,,1..!.(.~.::.: }o!.,".: R)'..;.;;:'!-" 'r:...-:>~/~;.:..~'_. J~'. EXHIBIT NO. p ~<:CHAF,r.: : i';::A~.{CE"5(H!N' ~" n;,.; ~ ':'./.:< _~.;:.. C E h:~-:...~:,,: r/Cf.;'":"OEt:::-,::; D.~,'~l~P F: t":~~cc..'i...n , h~CG~-",,;'-..~':7r ...., Ci..\'.:;Cl? r;'~:''7;'_7 R.ag~hiant:i l Freitas LLP L-U tvia yor Slnith and T o\vn CouncilN1emhers Septeulber 6,.2006 Page 2 to reasonably aCCOn111'lodate their expression of faith - our clients are corrul1itted to pursuing their legal rights and ren1edies under state and iederaIlawt including dan1agesand ana\vardof attorney fees: expert fees, and other litigation expenses to Vvhich they\<vill be entitled under RLUIPAand 42 U.S,C. section 1988. I. Background CKS has approximately 600 congregant.,> and has occupied. a ,fornlcr public school site in Tiburon for hvo decades, pursuant to a CUP issucid by 'the TO\^rll. That CUP pernlits the current uses .at the site, and by definition the religious use of this site has been found compatible '\-vith, the residential neighborhood and\-vith the general \-velfare of the TO\'\<'n,2 The TOViT1.has annually renewed the CUP since 1985 \vith only minor modifications, and the use of the site by CKS has never beenliInited in terms offhenuluher of partIcipants or the hours of operation. The approved uses h1.clude an on-site.day school and the CUP sets forth a cap on the current nuulber of . students. Justovernvo years ago, CKS subtnitted a.proposaI to thc.To\vn to refurbish and expand its existing ternple fa.cilities. CK.S determined that thL"Searetnsufficient to support fulfillment of its religious nussionin tern1S of both size and configuration of the buildings, and also due to their aged condition and need for substantial repair a.nd remodeling. }-\ CUPappHcation \vas submitted requesting approval of improvements to thetelnple sanctu.arYf the addition of 4. ne\v cla'jsrooms and a multi-purpose building to enhance on-going religious and related educational activities, as vvella.<;associated landscaping andparkingimprovenlents.Overall, the project proposed an addition of 6,298 sq. feet of net usable space (from 29,310 NSF to 35;608 NSF), and an increase in gross building area of 7.893 sq. feet (frain 43,752 GSF to 51,644 GSF). FrOIn the outset of this recent effort to address the needs of its O'\\'n congregation, CKS has understoodfheirnportance of being a good neighbor - it iSI quite literally, a religious tenet of the Jevvish faith to be so. .Accordi.ngly, CKS has 2 Compare fVesFcltester Day S'dlOOl 11, Village of/lAahulToneck, 417 F.Supp.2d 477,561 (S.D.N.'x'.2006) (previous grants of special use pennits for orthodox k\vish day school is "tantamount t03 legislative finding that the permitted use is in harmDny \'lith tbe gell(~ral zemingplan and VI'1.lJ IJOladversely affect the neighborhood:') q R... .. a..O'.. ..O'h' .1-') I'" ......1.' F'- r c:"" 'l'f- ~l s. LLP b b ..U, 1 l.. ..1. .l t; . . .fvlavor Smith and Town Council J\t1elnbers ~, September 6,2006 P. .a' 0'(;";1 ~ '. 0'" demonstrated a high deg17ee of sen..sitivity.to.the needs and concerns of residents in the neighhorhood. Most notahly, eKE has proposed, of its o\vn initiative, voluntary limits onfhe use of the nlulti-purpose buildingfot\veekend activities, and has responded to more recent expressions of con.cernby further lirniting the number of pernlitted events. Specifically, the original application anticipated 35-40 events per year on Saturday, \-vith up to 300 attendees and a dosing time of 11:30 p.m. CKSvoluntarily offered to limit these events to 27 tinlesperyear, capping thenunlber of,lttendeesat 275. "lvlorere.centIy leKS has come fon,vard to suggest even fu.rther reductions, linlitingthese events as folIotvs:4events @ 250 attendees; 4 @ 200, and 4 (fjj 150, all \vith dosing times of 11 :00 p.m. These voluntary nleasures "\-viII reduce. the total number of Saturday events to 12, require an earlier .closing titneof 11:00 p..ln... and limit attendees on al1anllual basis fronl as many as 1.2,000 to no more than2,400t a reduction of 80 percent. Like\<\.rise,CKS offered to lin1it the number of atterldeesat Sundavevents. The . .. - - -. .~ original application estimated there 'Vvould he 25-.30events\vith u.p to 300 attendees, and ending b:r 10:00 p.nl~; CKS subsequently .offered to Iin1it such events to 20 tinles per year. J"Iore recen fly r CKS cam.e forv'lard with a proposal to move up the closing time to9:00p~ln. 011 Sundays, and to reduce the nun1ber of these events as follov..~s: 3 (fl) 250 attendees, 5 @J200, 4@) 150, and 3 ig) 100. These voluntarylimits\vill reduce the annualnunlber of attendees on Sunday from up to 9,000 to namore than 2,650, a reduction of 70 percent. These very-substantial reductions M~erenlade even though the existing CUP inlposes no such limits, and notwithstanding that the To\vn has not previously inlposed like restrictions onsimila.rlv situated fa.cilities such as St I-lila.rv's Catholic - .. Church,vv-hich recently applied Jor and received approval for a significant expansion to their facilities. As such!theyare unquestionably a concrete measllreof the concern and sensitivityCKS has brought to the task of re-building its facilities. After receiving the'CKSapplicatioD,. the Tovvnrequired a full environmental inlpact report (ErR) to be prepared in connection \.vith the CUP application - which CK.,;S agreed to despite, again, that an EIR has not been required of sinlilarprojects, RagghiantilFreitas LLI' lVIayor Srnith and To"vn Councill'V1embers September 6,2006 Page 4 like St.Flilary's; ivhich\vas-approvedbasedona Negative Declaration. In addition to theEIR they \~ererequired to fund, CKS subrnitteda.nlultitude of its o\vn studies b1.connection.vvifh.theC.UP application at.considerablecostfstudying every conceivable isstle related to the application. At all tilnes,CK...Shas '\-vorked co()perativelyvvith th.eTo\VIl and vvith its neighbors to address legitimaleconcerns, and has continued to voluntarily incorporate refinements. to. its proposal to respond to their concerns. The crystallization of this effort is found in the s~cal.led iiAltema tive 7/f, proposal in the EIR,and it\vas this configuration that v..rCtsreJectedby the PlanningConln1.lSsion after three hearings h1f\pril.and ivlay of thisyearf.and in response. to vocal opposition from a faction of neighboring prop.erty Cl\'Vners '\vho expressed essentiaIly unsupported fears . about increased noise.. traffic.andparkin.gissucs. The appeal in this matter filed byCKS on June 61 2006 asserts that the decision of the PlanningColnluisslon is an abuse of discretion in that the evidence in the record does not support the findings and the findings do not support: the decision. Theappcal fu rther. asserts that denial of the CUP substantially burdens the ability of CKS to carry out itsreligious Iniss ion in violation df the tights of its congregation to exercise their religion. It is tHislalJer claitn tJUltistl1efocusofthe present analysis. II. Liability UndetRLUIPA ,A. General Rule RLUIPA applies to lin.dt the Tuvvnl in the course ot undertaking an uindi{:idulljizcd assesslne1lt# of proposed usestor theCKS propertyr from imposing a a sullstantial burden" on the ureligiousexcrcisc,r of the congregation and its members, unless doing so is U in furtherance ofa compelling governmental interest!,' and is I:the least restrictive means"or furthering that interest.RLUIP A furth.er prohibits any discrinlination on the basis of religion! including-importantly for the present appeal- unequal treatuzent: anlong religiOu$r or behveen religious and non-religious, n asselnblies or institution.t;.'" Like other federal civil rights statutesl RLUIPA authorizes an a \vardof attorney fees and other costs to religious dainl.ants 1.vho achieve SOIne measure of relief in litigation against agovernn1€nt agency, and Ragghianti I F rei cas LLP Ivlavor Smith and T O\rVn Council tvlen1bers ....' September 6, 2006 Page 5 authorizes the federal govemnlent to intervene in RLUIPlA. cases.or bring a separate enforcement action. Finally, RLUIP..-\ provides express authority tb local zoning authorities to grant exceptions or to n10dify their regulations or procedures in order to alleviate a substantial burden on religious exercise. At the heart ofRLDlPA is the recognition .that true .religious liberty implies a suitable physical 1 ocation fOI its exercise. 3 Z\50ne court has stated, #Congress1s decision toenactRLUIPi\neces$arily recognizes the fact that re1igiousassembly building~are needed to JacilitatereHgious practice, and the possibility that local govermnents.may llse zoning regulations to prevent religious groups fron) using land.foI5Uch purposes."4 The objectiOi1s--,from vocal and well~finai1ced neighbors- to the effort by CKS to improve its severely inadequate facilities are emblematic of the prob~em RLUIPlA.seeks torenledy, and analI-too-familiarfact~pattern found in litigation under this statue.s 8.. Jurisdictional Prerequisite: individualized Assessrnellts The protections of religious liberty found in RLUIP..l\ apply \'Vhere Nt.he substantial burden is imposed inthe in1plenlentation of a land use regulation or system of land useregulatioils, under \v hich a governnlent makes, Of has in place formal or infotnlaJ procedures or practices that permit the govermllent to make, individualized assessments of the proposed uses for the property involved."6 vVhile there\vas initial uncertainty concerning the scope of the term, the United States Counof Appeals for the Ninth Circuit has no\,vlnade unambiguously clear that the .' 146 Congo Rec. S7774-01~ 7774 (dailyed.July 27, 2000} (Jomt Statement of Sen. Hatch and SenKennedy 011 . the Religious Land Use and InstitutionalizedPersm.1s Act of 2000) (religious institutions require "a physical ~pace adequate to their needs and consistent with their theological requirements"). ~ Guru l..kind/: Sikh Society a/Yuba City v. C.oU1U}' <?(Surter, 326 F .Supp.2d 1140, 1151 (E.D .CaL2003). ~ See. e.g., rrestJ::hester Day School, supra(appHcatio~ for special use permit to add classrooms and multipurpose room to an existing orthod()x.J~wish day school, rejected '"under intense and unrelenting pressure from politicall:' well-connected ncighbQring residents~ including a recent ex-chairman of the IZoning Boardr'). . The 96-page ruling of the court in thiscase~ setting out. the findings of fact and conclusions unaw fromascven-davbencb trial. is discussed in more detail below. t, 42 U.S.c. ~ 2000cc{u)(2)(C). . RagghiantilFreitas UP :rvlayor Smith and To\vn Councilivlenlbers September 6, 2006 Page 6 To\vn's decision on thisconditiona] use permitapplication is an indi~)idualized aSSeSSl1lel1f' that triggersRLUIP A jurisdittk)n? C. Religious Rt:ercise RLtJIPAapplies toprotectri~ligiousexerci5e. RLU1PA., by its ownterins,isto be Hconstrued. in favor of a broa.d protection of religious exercise, to the maximum extent permitted by the termsot fh[e} A,ctand the Constitution,us and the statute . extends this definition to include t!any exercise of religion, irvhetherOT not compelled by,or central ta,a systeITIof religious be.lief," including "[t]heuse, building, or conversion of real prope:rty ror the purpose of religious exercise. H9Under this broadest of definitions, there can'he little doubt that the renovations and additions proposed .byCKS faIl.well\vifhin th.estatute'spurvie\v. Every aspect of the proposed project is designed to facilitate the religious Inission ofCKS,\,vhich is to provide broadly for the spiritual and human needs of its congregation and its connnunity. SpecificaUy, the ilnprovements \-vill enhance the ability of CKS nlem.bers to practice their faith/either by housing' traditional\Nor.ship activitiesor.ancillary uses \vhich thenlselvesareinseparable from the religious life of the congregation. As to the latter; the pl'opo.seddassroornsand other facilities supporting the day school are unquestionably religious exercise. As the courts have noted,fhe inlperative of such education is scripturally based. to Like,viseJ the courts have held that multipurpose rooms-such as that proposed by CKS - are also protected forms of religious exercise under RLUIPA, eve.n \vhenthey are sometimes used for arguably secular activities. As the court in~Vestchester Day School concluded, U\'\!here a building is to be used for the purpose of 'religious exercise,' the building is not denied protection underRLUIP A Inerely because it includes certain facilities that are not at all tinles themselves devoted to;, but arein.extricably integrated \vithand , Guru N(1nakSikhSoci!;~(v()fTuba CiTYV. Coumy q(SW!ttJ\ 456 F.3d 978, 2006\VL 2129737 ,cJ6 Cat Daily Op. Servo 6959, 2006 Daily JnumalD.A.R. 10.128, 9th Cir.(CaL). Auu 01. 2006, ,,; ~ ':} t; '"" C ~ 'J(}O(l. ..... . '. - ~.:.. .J.~. " ~ _cc-,'(g). :i 42lJ.S.C. S 2000cc-5(7}. !{l See. e.g., H'esic!zeSier Da~v SchooL supra note 2, at 545 C'thereligious education of (~hildren is a key l'cligious obligation mandated by the Torah~~). R,agg)liaI1.ti I Frei tas LLP U\....J J\flavor Smith and To\-vn CouncilI\1ernbers ~ . Septenlber 6, 2006 Page 7 reasonably ne.cessarv to.facilitate.. such !religious exercise.wn The court in lvfintz v. I~oman C71holic Bish;p canleto thesaUle conclusion vvhen it ruled that the addition of a parish hall to the grounds of an existing church was religious exercise under RLUIPA.12 D. Sltbslanfial. Burden RLUIPAapplies vihere a. governlnentaI zoning decision inlposes a substantial burden on the religious exercise of a religious individ:ualorgroup,13' This COllstitutional test has 'been stated variously bv the courts, but in the RLUIP.A. context .' ..,! the Ninth Ci:tcuit, in Gun!. Nanak, has no\v adopted t11e"tnOre lenient" version; accordingly,.. a decision..()f a.locaJ zoning agency constitutes a subsif111tia/lnl1yden. ,,,,here it imposesua significantly great restriction or Onus upon" religious exercise.1.4 \Ve respectfully SUbluit that the decision of the Planning Commission in denying the applicationofCKS inthisDlatter a:mounts tojuststlchaninjury to the religious liberty interests ofCKS. In Grinl Nal1ak, the Ninth Circuit held. that thE~ countv~s denial oIa CUP .' imposed a substantial burden on a Sikh congregation seeking to build a temple on land it ha.d acquired in an agricultural. area. The in1:mediatereasons cited by the court forits.conclusion '''<\fere tl1at,.becaase the applicant had "readily agreed to every mitigation lueasure suggested" by the county's planning staff, and because the purported.rei'lson.c:;Jor. ignoring staffs su.JJportfor the project and denying the CLIP could Ueasily apply to all future applications,lT it was likely that the san1c considerations Iuight prevent the appHca.ntfror:n ever obtaining a CUP approval15 Likewise,. the obsequious response of the Tiburon Planning Cnrnmission to. the speculative fears expressed by a fe\v vocal neighborsconcen1ing \vholly insubstantial traffic and p.oise impactst Dlust lead to the same conclusion: any applicant held to such ",,':himsical standards as favored here by the Planning Commission is unlikely to n ld.. at 544. !:? ""'.il ~ . . . . ,;, "I ... ..,.. 0' .\. . ... ( ,'. ..._~ t. StIPP, 2u ,:,09, -,18- LJ tD. ;..-1ass., 2()Jo). )} 42 U.S,C.~2000cc(aL loj ,-. .," "t ,. - 9"" , Juru i 'WWK. supra note f. at .~O, u! . ' , , . .s.'. . C t' .. I? H I G. . (.) , . c'r I J /"''''", B'!' ",().,. F. "" . (.".,,~ (~('() a. t.c:rmg mnrs ..ons{a/J me {};: e en ,reef: r:noaox -fwte t, .TIC v. L..T!Y oJf\'ew cr lli, .,,r{} ._'Hl OY':', 0.1. _ 900 (7th Cir.2005) (Posner, In. Ra.e:gl1 i at1 t i IF rei t as LLP LJ <.../ I .!\1avor Sn1ith and To\vn Councill\:le:mbers ~, September 6 J 2006 Page 8 ever obtain a COP. Furthermore, several cou.rl~ have "varned that even the prospect of having to go through the process allover again may it5e~fbe a substantial burden on religious exe.rcise.l6 .Accordingly, the denial of this app.lication to renovate and expand itsfaciIities constitutes a. substantial burden on the religious exercise ofCKS. The court in Iv1il1tZ 1). R0l1ll111 Catholic Bishop like\vise.concluded that the denial of a permit to build a parish hall\vould i.rn.pose a sulJsi'antial burden, finding that Ii the parish center \vould.serveasa nleeting place for the parish cou.ncil, \vould include an office for religious edu.cationl could facilitate gatherings relatedlo church serv"ices and wouldf in the processl alleviate cro\vding in the rectory."17 Preventing the church franl addressing these needs, the. courtpointed out, irnposed a substantial burden. notwithstanding that the church had been it flourishing for ninety years."18 In doing SOr the court enlphasized the obvious fact that religious congregations U1USt be expected to grO\V and to changeover tiIne: [RLUJP i\] certainly does not contemplate that a church's religious exercise can be frozen in place. Thus, \vhat might have been adequate ninety years ago may not .necessarily he adequate today ~ As time pa.sses, the religious needs of an institution can grovv so large. that the impinging nature of zoning Ia\V5 nla.y beco.me much lilore bttrden.,;on1e. Similarly, the constru.ction of the parish center at anotl1erlocatioll, ,IS Plaintiffs suggest, \vould not av oid the byla\v's substantial burden on religious' exercise at St. }\.nn~spre5ent location. See Saints Constantine & Helen Greek Orthodox Church~ 1ne. v. City of Ne\'V BerIin, 396 F.3d 8951 901 (/thCir.2005) (holding that city hadw created a substantial burden by requiring church to tlsearch[] arou.ndfol" <?ther parcels {Jf landH rather than rezoning prope:rtychurch al.ready o"\-vned).19 l6 5iee ilL at8 {"'any future ClTP applications. for a temple on landzollcd "agricultural" would be fraught \\'11h tlTicertainty"); st?ealso~ Saints CO!1sial1til1e & Helen Greek OrtJwda:rChurch, .supra note 15. at 901 (holding thai the "delay. tmcen:aimy, and expense" involved in submitting another application or finding a nc,,\, location amounted to a sUDsumtial hurden.); rVestclwster Da~' School, supra note 2~ at 549-50 (nnting the long effort of the religious schooi to respond to the concerns of the neighbors and the viilage~ and. concluding that the .'delay. ~!ltenainty, and expense" of reappiying constituted ;'i substantia] burden onrdigioU5 exercise). j; 424 F. Supn. lei at 321. - , P; It!. . 1'; It!. at 322. RagghiantilFreitas LLP 1vlayor Sn1ith and To\vn Council.Menlbe:rs September 6j 2006 Page 9 FrOlTI_ the abovef it iscleartllat the contention. by neighbors ofCK.S-made in the course of hearings before the Planning COlnmission- that eKS s.hould sin1ply m.ove to another location or to another to\vn.entirelyt is'Vvholly inappropriate.and it is exactly the type of reaction Congress had inmindvihen it enactedRLUIP A. Finally, in this context, \venote that the courts have repeatedly found that a substanJial bl;rden is inlposed "vhere a religious land use applicant has been denied the ability to m.odify and expand existing facilities to nleet theexlstil1g or anticipatecl needs of its congregation.2GGiventhe extensive (and very expensive) good-faith e.fforts of CKSto COIllply \vith.allappHca.ble la.\vsand ordinances of the To\vn a.nd to modify the proposal in order to mitigate all potentially significant impacts of the pToject, the denial of the application in respon..'ie to neighbo.rhood pressure substantially lnrrdens its re1igiousexercitH'::~f and flies in the face of virtually uni.fnrn1 cou.rt precedent. E. C01npelling Governlnentallnterest and Least Rest-rieth/€? lv.lem15 The To'\vn still might avoid RLLI1..PA. liability and an attorney fees invard if the substmUial burden it has inlposed on CKS isjustified by a c0111pelling govern1l1cntal interest, and that interest is in1plemented in. the leas I resl:rictivc 111eans available.21 This stand.ard is knovvn in-constitutionalla\vas Ii strict scrutiny,'" and as the U.S. Supren'le Court has noted/this "is the most demanding testkno\vn to constitutionalla\v.T122 So derna:nding, in fact, that cities' undeniableinte.rest ina.ddressing traffic problen1.s has nevel' been held to be: Ii compelling, "2, This must be all the Inorc true for the parkinpOr o incidental noise, and a esthe ti.c concerns typically ass()ciated vvith neighborhood developnlent of the type proposed in this instance. In.any case-and even vvhenthe courts are \viIling to assume, for th.e sake t.1fargurnent only, the existence of a ~,} Westchester Day S'chool,.Hlpra note 2. at 547-48 (so holding, and collecting cases reaching the same ~~om::lu~ion). _I 4 Jl' S C x'}(" nr' " (1) -. . ;.... ", \:.' ~Jvi)cc' <I.J . ,:,. . I. \ -- CilyofBoernc \" Flores, 52] U.s, 507,534 (19971 z.' See Westchester Day .<;c/1ooi, supra note 2, at 551 (discussing lack ofprecedent)< RagghiantilFreiras LLP ivlayor Smith and Town Counci11Vlenlbcrs September 6, 2006 Page 10 compeIlinginterest-they inevitably find that the government.hasfailed to use the least restrictive. ntearlS to effectuate that interest.24 /A-perfect example of the potential to violate this standard is the To\vn's attempt to inlpose a disproportionate and overly burdensome mitigatioTI\vithregard to the Tiburon Bouleva.rd/Blackfield Drive intersection. Despite that some' traffic modeling sho"\vsthe left~turnJane at this intersectionV\TiILnot back up, the To\vnstill insists on labeling this a significant impact \vhen,at \vorst,.thereis n"ierelysome potential that a fe~vtimesa.year e'vents atKoI Shofar might result Ina backup. Yet, the. T o"\vn seeks to require Kal Shofar to fundlOOlJ/o of the cost of permanent improvements- an arbitrary response \veUbeyohd <any'Concept of a fab- share. Notably, the suggested alternative is to completely eliminate Saturday events. Both of these purported solutions completely ignore any concept of least restricti've nleans requited byRLUIPA~ F. Disparate Treatment The courts have been very quick to overturnthedecisions of local authorities \vhere they find thata reHgiousc1aimant has been treated differently and less ,-veil . then similar religious or secular property o\vnets. In statkcontrastto the treatm.ent ofCKS, St.HilarylsCa tholicChurch\vas granted'a CUP 'by. the T oV\rnfor even lllore significant construction in a residential neighborhood than is here proposed, and this "\-vas done on thebasis.;of a Negative D(~laration-not the full-scale and costly EIR required ofCKS. \~e \villnotbelabor the factual similarities behveen that project and the present one here; sufficeit to say that this is precisely thesort of disparate treatl11ent that has provoked federal courts across the country to denounce local zoning boards and order development permits issued outright to religious daimat""1ts, and vvmch in no small part led to passage of RLUIP A in the first instance. The Ninth Circuit' s recent decision in Guri/ .Nanakis typical, in this regard. '\>\Thile the county sb'enuously argued that the location of the proposed Sikh tenlple in an agricultural zone "vas inappropriate and violated a general plan policy 24 See it.!; see aiso IFeSTchester Doy School v. r"illage {~r A-fa.maro1H?ck1280 F. Supp. 2d 230 (S.D. N.Y. 2003)~ judgmem vacated, 386F.3d 183 (2d Crr. 20(4); ;1furphy v. ZoniltgCom'n of Town of New JVi{ford~ 289 F. Supp. 2d 87 (D. Conn. 20(3)~judgmenr lracated, 402 F.Sd 342 (2d Cir. 2005). RagghiantilFreitas UP I\ttayorSmith and Town Council Men1bel's Septer.nber6, 2006 Page 11 discouraging development outside existing development areas, the court dismissed this argument because other churches\vere. already located in agricultural zones- including another Sikh temple just a mile away.25 The court also noted, vvrylYr the suggestion of one>connty supervisor that the temple should try to locate closer to his ovvn church and to ather existing church€:.s, Similarly, the court in Holly-wood C011'l1llunity SynagogueR City ofHpll}/l.vood pointed Qut with obvious concern that the ii City of Hollywood had never previously imp.os~d a time limit on a special exception for a re1igiouf;use.and had only oncehefore i1TI;poseda time limit on a special exception for a non-religious. use, lt26 The contrast behveen the recent approval of new facilities for St. Hilary" s Catholic Church - a large mainstream congregation-and. this small Conservative Jevvish congregation; .could ~otbe greater. This and, other exanlples of the unusual and disturbing scrutiny applied by the Town to the CKS application "Vv'ill certainly be at the forefront of any resulting litigation. G. i\uthority to Grant Exceptions RL T.JIPAcontains the foIlovving grant of authority , which broadly permits the T o\vnCouncil to act on the appeal before it to avoid liability: A government may avoid thepreell1ptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliIl1inates the substantial burden.27 Thisprovision fully empowers the To\vn Council to take vV'hatever actions are necessary to remove the substantial bu.nien on religious exercise resulting from the decision of the Planning Commission, Thus..there can be no argument that the TOVVIl 25 Guru /v'anal:. sup1"aoor.e 7, at 990. 26 "16 F S d' "'''r' 4__ . lIPp.2 at b~K ::n ,t') l'S C'" .,or)o ., ) ~- '. ,. 'i "'- i cC-.'l.e. tf Ragghian ti IFrei tas LLP 1vlayor Smith and Town Council Jv1enlbers Septen1per 6, 2006 Page 12 issomeho\vprevented from upholding this appeal, on account of rtilesf policies or practices governing its regulation-of land use. This aspect of RLUIP A is well-illustrated in lvlintz v. ROl1zal1. Cat1rolic BisJwp, V\7:here fhecourt held that the town's decision to issue 'a:building permit-\vithout -requiring the applicant to obtain a variance permit...;.. V\ras lawful unqer -RLUIP A.as it was done to alleviate the substantial burden on the church's religious exercise.28 Likewise, if litigation ensues in co11i1ectiorr with the present appeal; RLUIPA authorizes a judge to "fashion' any appropriate remedy ,n and may order the unconditional issuance of .all necessary permitswithout.further environmental review.29 'H. \^lestchesterODay School Litigation For a previevv of "'That lies ahead should the Town uphold the decision of the PlariningCornmission or othefuTise substantially burden thereIigious exercise of CKS, we urge the Town Council (and. the Town .Attorney) to review the decision of Judge Connor of the Federal District Court, Southern District, New York, in Westchester Day Sclroolv.Village of.l'v1.antnronecJc After a seven-daytria.I, he issued a 96-page ruling setting forth in exhaustive detail factual findings and rulings of lavv overturning the denial of the application of this Orthodox Je:v,rish day school to renovate and enlarge its existing facilities. By themselves, the courfsrecitation of the village zoning board' s erroneous traffic conclti$ions reqUired 15pages~ The applicant in that case was \^lestchester Daj.7SchooI(\tVDS),an Orthodox J evvish day school located on the same property as a synagogue 0 and a private Je~vish high school, though each constituted legally separate entities. The property was also used in the spring for little league softball games, and hosteclcommunity picnics for the police department, the local firehouse; the neighborhood residents association, and for other community and civic organizations. 1VDS sought to renovate certain existing buildings it occupied, and to construct a ne,<\! 44,000 square foot building "vith 25 classrooms al1.d a 'lllu.lti-purpose room The village planning department issued a Negative Declaration for the project, under the New Yark-equivalent of 2S 40 "),f F SUt"lp ?d at "'2~ 76 -.. . of. -- ~ .;-- . ")Q -- See Westchester Day School~ supra Dote 2, at 554-55. Ragghial1 ti I'p reitasLLP !Vla vor Smith and T o \-v 11 Council 1\rlembers ~. September 6, 2006 Page 13 CEQA, after imposing conditions it determined ,.\7ould reduce any potentially significant impacts toa level of insignificance. In he.arings before the villages zoning boardra. small but vociferous group of nearby property o\-vners.-led by the ex-chairman of the zoning board, who had served together \'vith some offuecurrent hoard mep.1.bers - r.ose to oppose fhe ,project and formed an organization called Save Orienta's Unique Neighborhood; or "SOUND." The.neighbors filed a la'\'\!suit to overturn the Negative Declaration/and the zoning board responded byaltempting to rescind that d ocument and require instead preparation ofa full environmental impact study. Ho\vever, that decision \vas quickly overturned by the court, \vhichfound the board's action \tvas taken 1/ not because of any'nev{ information relating to any significant adverse environmental impact of the Project, but in response tothehelated public outcry led by [the former board chair and the other neighbor oppositionleaderl.-"30 These same individuals continued their attacks in later heariIlgSr one even questioning whether VVDShad been /( a good neighbor,'; complaining that the school had been slow to remove a tree that had fallen on his Jaguar.31 Nonvithstanding the limited and self~serving nature of these property o\vners' complaints,. \tVDS offered a number of project modifications inresPQnse, including voluntary limits on enrollment. \NTIS supplied numerous studies and analyses from respected.experts to.respond to the.concernsand question~ of the,residents and the village officials,andvvorked collaborativelyto clarify:and then respond to the needs of the community. Throughout, the village staff continued to support the project, concluding that the applicant had made e\reryeffort to respond to concemsabout potential impacts of the project. Despite these efforts - made over h~€ course of the one and a half years this application "vas pending - the zoning board eventually voted to deny the application, The board cited traffic, parking, and intensity of use.conceIDS, and the noverall physical size of the structure, its location on campus and the effect it vvould have on the surrounding neighbors. n32 In doing so, it passed over its ovvn 30 ld. at 31 Ill. at :,.i. fd.at 1 '"' - ..':1. Ragghianti I Freitas LLP Ivlayor Smith and Tovvn Council1\1embers September 6, 2006 Page 14 professional planning staff to formulate findings to deny theproJed, and cajoled its OV\!Jl traffic consultants to provide supporting analysis that contradicted their earlier analysis. . i\stoconc~rnabout the size of the proposed 44,000 sq.foot 5tructure~ the court tel1ingly concluded: "There is no evidence in tbepublic record'to suggest that the size ofthebuildin~ in and of itself, poses ; any threat to public health, safety orwelfare."3S The court went on to quote at length and disapproving~y testimony ofthezoningboardmember\vho dr,aftedthe findings,and'was most concerned aboutbuilding siie: [Zomng.Boardmember] Gabriele testified thatthe.size.of the building troubled him in that he did not understand why. a building that size \\Ta5 necessary: 1/ [I expressed concern] only in the spirit of und.erstanding'",Thy such a large buildingwasreqll;iredbythe school in .terms.of vihy 44,000 square feet,lvhy not'TO,()OO.squarefeet,"J\Thy not 60,000 square feet. Tryirig to understand "vhya building of this type' \lv-as designed." The court quickly dismissed this speculative and illogical concern about the size of the building/and concluded that the proposed size was entirely justified "based on a comprehensive analysis of\t\lDS's needs,"'34 Like,vis~1 in the appeal before you, CKS has justified its need for the iinprovements in question, and .there is no · evidence in the record before you that the size of theim.p.rovements themselves violate any provision oftheapplica.ble zoning regulations, will result in any unmitigated environmental impacts, or pose any threat to the health, safety, or welfare of the neighborhood. Any concern about size is thus.unsubstantiated.and disconnected from any actual impacts of the project, Le., If speculative and illogical." Judge Connor, in rejecting, each and every proffered basis for denial argued by the village in defei1.Seof the zoning board decision, made repeated references to the 1/ intense and unrelenting pressure rr(:nn politically V\rell-connectedneighboring ~.: ie!. at 538. 14 lei, RagghiantilFreitas LLP 1-1ayor Smith and Town Counci11vlembers September 6, 2006 Pao-e 15 o residents) including a recentex-chairrrian of the [zoningboard]."35 vVhile,conceding that any nevvbuilding on thep:roperty U \vou1d necessarily have some adverse impact on the surrounding community," - noting, for example, .that-headlights would shine into. the homes of one n~ighbori ,and the buildings would be visible from'rour homes-the court nonetheless concluded that ",\-AlDS's pressing needagainstfhe relatively minor adverse environmental in1:pactsin thiscasecompelt; the only reasonableconcIusion: that the [zoning board's] denialofWDS!s Application for a special permit was so contrary to the evidence and tothe .equities as to be arbitrary and capricious/'36 ' Ina final note ahout the equities of the case., TudgeConnormade,an observation that we believe applies '",~th equal force tothe religious and religious- . educationalnatureoItheCKS project on appeal before vou: Like other religious schools, vVDS performs. an. extremely valuable public service,noforuyeducating nlaIlY children who would othenvise have to be educatedatptiblic expense, but also instilling in th~m principles of morality and . ethics that will make them betterniembers of society. For these reasons religio"Us schools are ,favored property uses and zoning boards are adjured to weigh their.needs heavi1.y'against environmentalconcerns. In tIns case, it appears that the [zoning board] did Just the opposite.37 Anticipating a subsequent appeal of his decision - a reasonable assumption given the long history of litigation and appeals-thejudge inhisfina1 order delayed his ruling on fheattorneyfees requested by WDS. There can be little doubt, however, \-vhat he VJill do "\1\Then the matter come before him againona motionfor attorney and expert fees/along with trial costs and related expenses. In the meantime/ho\\rever, the judge ordered the village to issue the necessary permits without further delay or imposition of additional conditions of approval, and on the basis of the original Negative Declaration. }5 ld.at 570. 36 Jd.at 572. 37 ld. (emphasis suppiied). tf RagghianrilFreitas LLP Ivlavor Smith and T o\vn Counci11Vlenlbers ./ September 6, 2006 Page 16 In sum, we believe that the position of CKS in this appeal. is virtually indistinguishable from the plaintiff in lr\;~~stchester Day School. We urge the TO\\iJ1 to heed the plain \vamings of this and other cases citedherein1and.actnow to rectify the unla~vfut unwarranted,andhannful action of the Planning:Co11U11ission. III. Prior Restraint on Religious Expression The final First Amendmerttcontention ofCKSweset forth 'here, is that the standards for decision on this CUP application as set forth in the ro~/s Zoning Ordinance - along 1vith the additional standards fashioned ad hoc and applied by the Planning . Commission in denying the application - unlawfully permit th.eexercise of it unbridled. discreti on" by the TOli\mand thus constitute a priorre$tramtonreligious expression in violation of the First and Fourteenth Amendments of the United States Constitution. The To"\",rn's zoning.ordinance is arguably facially unconstifutional in this regard, and the denial of the CUP, or the imposition of unduly burdensome conditions of approval, likewise constitutes a violation as applied of the core First ",Amendment COncern to protectreligiousexptession. The Supreme Court has held that goverrunent permitting agencies must .employon1y unarrow,objective, and definite standards"'whereit imp.osesaprior restraint on protected. FirstA~mendment expression,38 and' have rejected the typically broad formulations of the public welfare found in most zoning codes and general plans, such as Tiburon's.39 V\r11.i.le the courts have readily given credence to cities" ~8 See Shuttlesworth v; Birmingham~394 U~s. 147. 151 (1969). -,9 See, e.g., 3570 East FODthill Blwl..Jnc. v. City of Pasadena, 9:12 F. Supp. 2d 1268, 1274-7$ (C.D.CaL 1996) (involving a zoning ordinance providing. that the use must not be Ildetrimental to tbe publicheal~ safet).', or welfare of persons residing or workingadjacenuothe neighborhood of such use, or injurious to properties or improvements in the vicinity"); Dease v. City of Anaheim, 826 F. Supp. 2d 336~ 339 (C.D.Cat 199~) (involving a.'ZonhIg ordinance.prov:idin.gthat "[tJbe.Phmning Commission rnayestablish such.conditions as "it may detemline to be 'reasonably necessary to safeguard and protect the public health and safetyand.promote1be general welfare" ()rthe use cannot "adversely affect the adjoining land uses and the gro\vthand development of the area"); FrIlllken Equities, L.L.C v. Ci~y ()fEt~ansum~ 967 F. Supp. id 1233, 1237 (D. \lfyo. 1997) (involving a zoning ordinance providing that the use must be '\:ompatible with surroundingland useslt); TJ's South, inc. v. T()lvn of Lowell, 895 F. Supp. 1124. 1130 (N.D. Ind. 1995) (mvolvingazoning ordinance specifying tbatno special exception for zoning was to be givenunlcss "necessary for the public conveniencet""public heal~ safety and welfare ,,,ill be protected, H and would "not cause potential for injury to the value of neighborhood propen:y"); Diamond v. Cfty ofTafi. 29 F. Supp. 2d 633, 650 (E.D. Cal 1998) (involving a zoning ordinance allo",ring land use pennits only if deemed "essential OT desirable to the public convenience or welfare~' raised "the Ragghial1 ti IF reitaSLLP 1vlayor Smith and T O\'\Tfl Counci11vfembers September 6, 2006 Page 17 Nsubstantial interest in preserving the quality of urban life in itsneighborhoods/' they have also insisted that cities act to protect religious liberty interests: (Local zoning officials are] charged \Vith the protection of the religious freedoms th~t,arefound in the.First Ainendmentand that form the cornerstone of American democracy. Zorring regulations that affect . those .freedoms. n1.ustthereforebe. precise and objective. in both. their terms and theitapplication. Our Constitution and ourlove of liberty demand .no less.4o Accordingly,CKSobjectsto the Planning COlnmission'sover~y broad and standarcUess application of theTovvntszoningand:land use regulations in this matter, and it urges the To\""rnCouncilto grant the present appeal and issue forthV\rith the requested CUP for. this project. IV . Conclusion For the reasons set forth above, lveask that you grant the appeal.byCKSof the TO",,\t~nPlanningCommissionfs action on the CUP applicationf and that you deny both the.app.~al of the neighbors and.that.ofthe.GreenyvoodBeachHomeow'11ers Association. ven.../ ..trill.".' y....)r,c(~') r..' ! t-/l,! .1,'_ ,/ ,,/ / I ,. .---J .. j I J,; I>. ..-!..<'}',{ --L i ~", l ~'~-\-.('-...',~~.l '7!-"'-\ (/',..,.j>7.ff(..{ .'....." \ I.. :'''',.1 .}j-.....,L-:...~,;.:'! f.t' - . -.<","'4- GTRj ejm f /:;ary T. Ragghianti , Counsel for CongregationKol Shofar ~~/ spectre [sic] of selective enforcement on the basis ofth~cQntent of speech") (quoting Gaud~va VaislmavaSoc~v v. City olSan Francisco, 952 F.2d 1059, 1066 (91..1] eir. 1990) and lvAACP v. CityafRichmond, 743 F.2d 1346, 1357 (9th eir. 1984)). 40 HolzvH'ood Community s..vnagogue v, City ofHo#vwood, 436 F. Supp. 2nd 1325~ 1341 (S.D. Florida, 2006); See also, Jennifer L. 110nk and Robert H. Tyler~ The Application of Prior Restraint;' An Altemative Doctrinefor Religious Land Use Cases, 37 U. ToL L. Rev. 747 (2006), . ~IT fI Law Offices of 10.356.01/11.131.02 STEPHAN c. VOLKER JOSHUAA.H. HAR.RIs MARNlE E. RIDDLE STEPHANC. VOLKER 436 14th STREET, SUITE 1300 OAKLAND, CALIFORNIA 94612 Phone 510/496-0600 +:+ Fax 510/496-1366 e-mail: svolker@volkerlaw.com ; October 3, 2006 II .. Ii!"! 1 I U U I OCT L. , PLA'YTJIf~TfPlvl S! ow-J TOVvIV 01- 1 idUHON Mayor Paul Smith Honorable Town Council Members Town of Tiburon 1505 Tiburon Boulevard . Tiburon, California 94920 Re: Tiburon Neighborhood Coalition response to September 6, 2006 letter from Congregation Kol Shofar attorney Gary Ragghianti . Dear Mayor Smith and Honorable Town Council Members: In accordance with requests from your staff, we write on behalf of the Tiburon Neighborhood Coalition in response to attorney Gary Ragghianti's letter attacking the Town's compliance with RLUIPA. After reviewing the Religious Land Use and Institutionalized Persons Act of 2000 (Public Law 106-274,42 U.S.C. S 2000cc et seq. (RLUIPA)), the judicial decisions thereunder, and the Town's record of proceedings for Congregation Kol Shofar's (CKS) application for a conditional use permit (CUP) to expand its synagogue at 215 Blackfield Road, Tiburon (Project), we conclude that Mr. Ragghianti's accusations are unfounded. We write to reassure the Council that the Project is not exempt from the Tiburon General Plan and Zoning Ordinance, that the Town has scrupulously adhered to RLUIP A, and that the Planning Commission's denial ofCKS' CUP for the Project is fully supported by the record and applicable law. CKS' perceived impediments to proceeding with its Project can be resolved through good faith cooperation with the Town. CKS could easily mitigate the Project into compliance with the General Plan and Zoning Ordinance by providing adequate parking for its events and curtailing its noisier activities after 9 PM on Saturdays and 8 PM on Sundays so neighbors and their children can secure the restful sleep their health requires. Nothing in RLUIP A or the cases thereunder relieves CKS of its duty to cooperate with the Town to avoid unnecessary harm to public health and safety. We also write to underscore our strong commitment to religious tolerance and diversity, and support for the important cultural contributions that religious institutions such as CKS make to the Tiburon community. In particular, the Tiburon Neighborhood Coalition - some of whose members are current or former members of CKS who have participated fully in its religious and educational programs - encourages CKS to heed the EXHIBIT NO.~ Mayor Paul Smith Honorable Town Council Members T own of Tiburon October 3,2006 Page 2 Planning Commission's invitation t6 consider reasonable mitigations that would both meet its needs and comply with the Town's applicable planning and zoning requirements. The Tiburon Neighborhood Coalition hopes that CKS will consider the legitimate concerns of its neighbors and move ahead with appropriate adjustments to its proposed Project to satisfy Tiburon;s planning and zoning laws. By doing so, CKS will maintain and enhance Tiburon's quality of life and CKS's esteemed role as a respected and appreciated member of the community. FACTUAL BACKGROUND The Town of Tiburon welcomed CKS into the community by approving a CUP for CKS's proposed use of the 6.94 acre Project site (APN 38-351-34}in 19,84, through adoption of Ordinance No. 306 N.S. At that time, CKS had 220 family memberships and a total congregant population of approximately 700 adults and children.l The Project site is surrounded by a quiet residential neighborhood of single family homes located west of Blackfield Drive about one-half mile north of Tiburon Boulevard.2 Because the site is situated at the base of a topographic bowl, it is visible3 and audible 4 to many of the ,surrounding homes. The presence of many small children bicycling on neighboring streets and walking on sidewalks to the nearby Bel Aire School poses extraordinary safety concerns weighing sharply against any project that would caus~ traffic to make unsafe turnarounds utilizing local driveways.5y et as presently configured, the Project would do exactly that. 6 Because the Project does not provide sufficient on-site parking for the large events it proposes, it will create an unacceptable traffic hazard that "would potentially injure or kill a child or other pedestrian.,,7 CKS could, but has declined to, solve this problem. Although "sufficiently increasing the on-site parking capacity would bring the Project into Zoning Ordinance. .'. compliance and is the most logical mitigation, . . . this approach was strenuously argued against by the Applicant at the May 10, 2006 [Planning 1 Letter dated December 23, 1996 from CKS to Scott Anderson, Tiburon Planning Director (CKS December 1996 letter) at p. 1. 2 Congregation Kol Shofar Conditional Use Permit Draft Environmental hnpact dated June 2005 (DEIR) at p. 6, Fig. 2. 3 Id at p. 95, Photos 3 and 4. 4 DEIR at pp. 81-82; FEIR at pp. 92,226,291,298 and 315. 5 Congregation Kol Shofar Conditional Use Permit Final Environmental Impact Report dated February 2006 (FEIR) at pp. 194, 233, 303 and 307. 6 Tiburon Planning Commission Resolution No. 2006-16, adopted May 31, 2006, at pp. 4-5. ",~~~IR at p. 42. Vi ,..,~ Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 3 Commission] hearing."s In short, CKS could easily mitigate this Project into compliance, but has refused. As will be shown below, RLUIPA does not relieve CKS of its duty to cooperate in the reasonable mitigation of its Project's adverse impacts. Over the next decade, the Town accommodated a substantial expansion of the facility's use, as CKS more than doubled its population. Since 1984, CKS had experienced "an average annual increase of approximately 21 membership units.,,9 By December 1996, CKS had 480 family member units, totaling 1,523 adults and children. 10 Because of this rapid growth, in 1997 the Town Planning Commission initiated review of the CUP, and requested that CKS provide information regarding its present and . anticipated future use of the site. I I In response, CKS provided the Town with a detailed breakdown of its use of the site for a range of religious services; studies, rel~gious celebrations, administrative offices and school activities.I2 CKS reported no large late- night activities other than a once-monthly gathering of 50-100 people in its Sanctuary between 7:30 and 10:00 p.m. on Saturday.13 Saturday Sabbath service included only 100 people, or up to 250 if a bar or bat mitzvah took place. 14 Sunday morning religious school attendance included approximately 272 students, 25 faculty and 100 other adults between 9:00 a.m. and 12:30 p.m.I5 The only larger gatherings were the 2-day Jewish New Year (Rosh Hashanah) and the Day of Atonement (Yom Kippur).I6 OKS reported that "[o]n the evening of Yom Kippur, Yom Kippur day, and the first day of Rosh Hashanah there are approximately 800 people attending OPTION 1 and 750 for OPTION 2. These figures include[] children who are in child care and in separate children's services held elsewhere in the building. To alleviate overcrowding, we have. successfully utilized a split service format. We have approximately 195 non-members attending the "OPTION 2" services only. . . . the first service ("OPTION 1") is attended by members only."I7 Based on CKS' description of its ongoing usage of the site, the Town Planning Commission adopted Resolution 97-17. This Resolution allowed CKS to continue to operate its facilities within the general framework of the usage levels described in CKS' 8 Tiburon Planning Commission Resolution No. 2006-16, adopted May 31, 2006, at p. 5. 9 CKS December 1996 letter at p. 1. ID Id. 11 CKS, Conditional Use Application and Environmental Review Submission to the Town of Tiburon, dated April 19, 2004 (CKS CUP Application), at p. 5. I2Id. 13 CKS December 1996 letter, pp. 2-4. I4Id. at p. 2. 15 Id. I6Id. I7Id. at pp. 2-3. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3,2006 Page 4 December 23, 1996 letter.I8 Although the Planning Commission's 1997 CUP did not set any cap on membership, Condition No.2 of Resolution No. 97-17 provided that the Town would "continue to monitor and document growth of the membership with regard to adequacy of parking, traffic congestion and neighborhood compatibility.19 . Significantly, Condition No. 17 to Resolutio'n No. 97-17 directed that "[a]ny significant expansion or modification of the uses or operations herein, as determined by the Town of Tiburon, shall require an amendment to this permit.,,2o During CKS' second decade of operation, the Town continued to accommodate its expansion, imposing only modest restrictions to mitigate potential noise, parking and traffic impacts. The Town Plarming Commission conducted annual reviews of CKS' CUP in 1998, 1999 and 2000, finding in each case that the use remained in oqnformance with the CUP conditions?l In 2000, the Planning Commission's annual review "found conformance but noted that a gradual transition of the day school tenant from preschool to high school use required permit amendment.,,22 Accordingly, the Planning Commission adopted Resolution No. 2001-07 amending CKS' CUP a second time, adding reasonable restrictions on amplified sound at special events, on parking, and on use of Reedland Woods Way, and requiring aDnual monitoring?3 Resolution No. 2001- 07 was based on CKS' updated description of its level of usage of the facility, which reported that CKS "now has 609 member units or 1,914 total people, and that "over the past 14+ years, we have had an average annual increase of approximately 20 membership unitS.,,24 Sunday religious school activities had also expanded to "approximately 300 students, 20 faculty and 100 other adults," for a total population of 420?5 Saturday Sabbath services had increased to 90-125 participants, and if a bar or bat mitzvah also took place, to "between 250 and 400 people.,,26 Even at the zenith of its growth, however, CKS reported no increase in attendance at the gatherings for the Jewish New Year (Rosh Hashanah) and the Day of Atonement (Yom Kippur). During these High Holy Days, attendance remained static, ]8 Tiburon Planning Commission Resolution No. 97-17. ]9Id. at p. 2. 20 I d. 2] CKS, Conditional Use Application & Environmental Review Submission to the Town ofTiburon, dated April 19, 2004, at p. 6. 221 d. 23 Tiburon Planning Commission No. 2001-07 at pp. 2-3. 24 Letter dated May 7, 2001 from CKS to Tiburon Planning Director Scott Anderson (CKS May 2001 letter) at p. 1. 25 I d. 261d. at p. 4. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 5 "approximately 800 people attending the early services and 750 for the later services.,,27 On the second day of Rosh Hashanah CKS reported approximately 300-400 people for a single service, including children. Again, CKS reported that "[t]o alleviate overcrowding, we have successfully utilized a split service format. We have . approximately 195 non-members attending the later services only.,,28 As in 1996, CKS reported that its "main sanctuary and balConies can currently accommodate approximately 840 people per the Uniform Building Code," and its "charel can accommodate, based on its square footage, approximately 190 people.,,2 Through its most recent annual report on activity levels, CKS has continued to operate well within the same general parameters, including "successfully utiliz[ing] a split service format "for the High Holy Days. ,,30 After 2001, when its population reached 609 member units,3! CKS' congregation stopped growing. Indeed, the following year, "[i]n 2002, membership declined to 595 units (1,880 people).32 CKS' population remained static for the next five years, numbering "approximately 598 member units" in June 200533 and again in February 2006.34 In its recent submissions to the To~ CKS has consistently maintained that it expects the population of its congregation to remain static or even decline, in light of an overall downward trend in the size of Conservative Jewish congregations in Marin County.35 As of February 2006, CKS' EIR consultants concluded that, '~[b]ased on the past seven years, one could project a declining Congregation membership.,,36 Based on CKS' representation that it had stopped growing, the Planning Commission certified CKS' FEIR as adequate even though it did not address the environmental impacts of the Project should CKS' population resume growing.37 In summary, for twenty-two years, the Town has accommodated CKS' initial period of rapid growth, from 220 to 609 membership units, imposing only modest conditions on noise, parking and traffic in a reasonable effort to balance CKS' desired 27Id. at p. 4. 28Id. at p. 4. 29Id. at p. 5. 30 Letter dated January 21, 2004 from CKS to Tiburon Planning Director Scott Anderson (CKS January 2004 letter) at p. 4. 31 CKS May 2001 letter at p. 1. 32 DEIR at p. 126. 33Id. atp. 127. 34 FEIR at p. 21. 35 CKS' testimony to the Planning Commission on May 10, 2006. 36 FEIR, p. 21. 37 Tiburon Planning Commission Resolution No. 2006-15, dated May 31, 2006; DEIR at pp. 126-127; FEIR at p. 86. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 6 growth and activity levels with public health and safety and environmental compatibility. CKS has functioned well within these parameters, achieving both its intended level of growth and the full range of its desired religious services, studies, religious celebrations, administrative functions and school activities.38 On the three High Holy Days (Rosh Hashanah and Yom Kippur), CKS has for over 10 years voluntarily and "successfully utilized a split service format" in which approximately 1,550 congregants and guests attending services select either early or later services.39 By doing so, CKS minimized overcrowding not only of its facility, but of local streets and parking areas as well. This entirely voluntary accommodation has served CKS well over the past two decades and has also minimized the burden on the surrounding residential neighborhoods.4o CKS' CUP APPLICATION FOR THE PROJECT, Although CKS and its consultants concluded that the Congregation reached its peak population in 1998, and that "[b lased on the past .seven years, one could project a declining Congregation membership,,,41 in April 2004 CKS filed an application for a Conditional Use Permit to dramatically expand both the size of its facility, and the scope and duration of activities therein.42 CKS proposed an increase in the size of its facility from 43,741 gross square feet ("GSF") to 57,146 GSF.43 Most of this increase in building space would be occupied by the proposed Multi-Purpose Building, which would utilize 9,733 GSF.44 Additionally, the Project proposed construction of four new . classrooms in a new classroom building encompassing 3,662 GSF.45 CKS' proposed increase in facility usage included substantial increases in the number of evening events, as well as significant expansion of the number of people participating in them. The CUP Application proposed Saturday evening events from 7 :00 p.m. untill! :30 p.m. for up to 300 people up to 40 weekends per year.46 After this activity, CKS proposed art additional hour of clean-up by up to ten people, until 12:30 a.m.47 CKS proposed late night activities on Sundays as well, numbering up to 300 3& CKS CUP Application at p. 5. 39Id. at pp. 2, 5; CKS December 1996 letter at p. 3; CKS May 2001 letter at p. 4; CKS January 2004 letter at p. 4. 40 I d. 41 FEIR at p.'21. 42 CKS CUP Application at pp. 3-6; DEIR at pp. 5-13. 43 DEIR at p. 6, Fig. 5, "Building Square Footage Sumnlary." 44 Id. 45 I d. 46 CKS CUP Application at p. 6; DEIR at p. 6, Fig. 5, "Projected Use Summary." 471d. Mayor Paul Smith Honorable Town Council Members T own of Tiburon October 3,2006 Page 7 people and extending until 1 0:00 p.m. for up to 35 weekends per year.48 Clean-up following these activities by up to ten people would last until 11 :00 p.m.49 CKS also proposed for the fITst time in its 22 years of operation that its historically split services during the High Holy Days be combined into a single service attended by up to 1,500 persons. 50 These profound changes in the size of CKS' facility and in the frequency, intensity and duration of its activities pose many significant impacts on public health, safety and environmental quality, and would impose an undue burden on the surrounding community. Even as subsequently modified, this Project would now tip the balance of what is a reasonable impact for the community to bear. In particular, the Project as originally proposed would, unless additional, effective mitigation measures ,were devised and imposed, cause significant and unavoidable impacts on traffic safety, 51 noise levels,52 and parking.53 In the aggregate, the DEIR identified "twenty-three potentially significant adverse impacts that would result from project development,,,54 including inconsistencies with Tiburon's General Plan and Zoning Ordinance policies requiring that projects be "in harmony" with the adjacent neighborhood and avoid the creation of traffic hazards and excessive nighttime noi~e and glare within residential neighborhoods.55 In particular, the DEIR noted that unless adequate mitigation measures were devised and imposed, the Project:. will create a demand for more parking spaces than can be met by on-site parking lots which will result in drivers who park on local streets making unsafe turnarounds in residential neighborhoods. 56 will add traffic to the Reedland Woods Way/Blackfield Drive intersection causing potential queuing problems. 57 [will generate] traffic [that] will add congestion at the Karen Way/Blackfield Drive intersection. 58 481d. 491d. 50 DEIR at p. 13. 51 DEIR at p. 18. 52 Td . 11 . at p. 19. 531d. at p. 21. 541d. at p. 21. 551d. at pp. 21, 28-37, Table 2. 561d. at Table 2, Impact 3.3-C. . 571d. at Table 2, Impact 3.3-D. 581d. at Table 2, Impact 3.3-E. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 8 will add traffic to the driveways to the [Project's] Lower Lot thereby causing potential safety impacts at those driveways and within the parking lot. 59 [will generate traffic] at High Holy Day services [which] would cause traffic and parking congestion.6o would increase noise levels in the area surrounding the project site.61 [will generate nighttime traffic whose headlights] using the new driveway and parking area could intrude on residences east of the site. 62 [would require nighttime] lighting [that] would change nighttime views in the area.63 In addition to the foregoing impacts, the DEIR identified fifteen other potentially significant impacts.64 The Tiburon Neighborhood Coalition and others pointed out additional impacts that were overlooked or understated by the DEIR.65 59ld at Table 2, Impact 3.3-F~ 60ld at Table 2, Impact 3.3-G. 61ld at Table 2, Impact 3.4-B. 62ld at Table 2, Impact 3.5-C. 63ld at Table 2, Impact 3.5-D. 64ld at Table 2. 65 Comments of the Tiburon Neighborhood Coalition on the Draft Environmental Impact Report for the Congregation Kol Shofar Conditional Use Permit Application, dated August 1, 2005, reprinted in FEIR at pp. 97-130; comment letters of Rufus G. Thayer dated July 14, 2005, Samantha and James Winter dated July 21, 2005, Karen Nygren dated July 28 and 29, 2005, Christiana Seidel and Peter Stock dated July 31, 2005, Christiana Seidel dated August 10, 2005, Edward Baker dated August 2, 2005, Kurt Kaull dated August 4,2005, Timothy Metz and Jennifer Jorgensen dated August 7, 2005, David and Julie Wong dated August 9, 2005, David and Joyce Holden dated August 14, 2005, William E. Stewart dated August 14,2005, Christopher J. Harney dated August 14, 2005, Joanne Stokes dated June 19, 2005, Ona Rotenberg dated June 22, 2005, Doris Simonds dated June 24, 2005, Amanda Reynolds dated July 18, 2005, Mary Ann Snyder dated July 27, 2005, Daniel and Sandy LaCoss dated August 1, 2005, Bob Fetter dated August 3, 2005, K. Robert Ingalls dated August 4, 2005, Tom and Karen Akin dated August 4, 2005, Pro and Fred Starr dated August 10, 2005, Dennis Sakai, M.D. and Sarah Sakai dated August 10,2005, collectively reprinted in FEIR at pp. 187-320. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 9 In response to the dozens of comments from neighbors pointing-out the Project's significant adverse environmental impacts, the Town's FEIR acknowledged that the Project posed "a significant and unavoidable traffic safety impact that would result from an increased number of vehicle turnarounds on neighboring residential streets.,,66 This determination was based on "a standard EIR approach, which is a criterion that an impact is significant if the project would increase hazards 'as identified by the EIR traffic engineer. ",67 The FEIR explained that "[t]he EIR traffic engineer c9nsiders an increase in actions that would potentially injure or kill a child or other pedestrian as significant. Therefore the increased number of turnarounds generated by the project was deemed to be significant.,,68 - The FEIR suggested that the traffic safety impact "can be reduced to, a less than significant level by requiring that attendees of new events show proof that they have parked in an on-site parking lot. ,,69 However, as the Planning Commission subsequently determined, this mitig3;tion would not be effective.7o The Planning Commission likewise found that-mitigations proposed in the DEIR and FEIR to reduce noise and light impacts failed to reduce those impacts to insignificance.71 The FEIR concluded that the Project was inconsistent with three Goals of the Tiburon General Plan Noise Element: N-A, "[t]o ensure that residential areas are quiet;" N-B, "[t]o eliminate or reduce unnecessary, excessive and offensive noises from all sources;" and N-C, "[t]o minimize exposure of community residents to noise through the careful placement of land uses that may cause noise impacts." 72 The FEIR's determination of General Plan inconsistency was "based upon the significant unavoidable nighttime noise impact upon nearby residences associated with the project's proposed events that would last until 10:00 or 11:30 p.m.,,?3 Because the evidence presented to the Planning Commission clearly demonstrated that the Project would cause significant adverse environmental in1pacts on the surrounding neighborhood, in violation of applicable General Plan and Zoning Ordinance standards, in April, 2006 CKS submitted proposed modification to the Project, styled "Alternative 7," which proposed a reduction in the frequency and duration of Project 66 FEIR at p. 42. 67 Id. 68 Id., emphasis added. 69 I d. 70 Tiburon Platming Commission Resolution No. 2006-16, adopted May 31, 2006, at pp. 4-5. 71 Id. 72 FEIR at p. 19. 73 Tiburon Planning COllllnission Staff Report for April 24, 2006 Planning Commission meeting at p. 8. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3,2006 Page 10 activities.74 Alternative 7 proposed "a total of twelve new Saturday night events with a range of 150-250 attendees lasting until 11 p.m. and a total of fifteen new Sunday events with a range of 100-250 attendees that would last until 9 p.m.,,75 But Alternative 7 failed to reduce the Project's adverse impacts on the community's health and safety to insignificance. The Planning Commission found to the contrary, based on its detailed review of the entire record, that the proposed mitigations would simply not work. In reaching its decision, the Planning Commission heard public testimony and considered expert commentary, including critical assessments from . Acoustical Engineer Richard A. Carman, Ph.D., P .E. and Traffic Engineer Arul Edwin, M.S., M.Eng., lTE, SCE.76 Following receipt of extensive testimony at public hearings on April 24, May 10, and May 31, 2006, the Planning Commission determined that the Project as modified by Alternative 7 still posed unacceptable adverse impacts on public health and safety and the environmental quality of the surrounding community, in violation of numerous standards of the Tiburon 'General Plan and Zoning Ordinance. Its [mdings, based on a detailed view of the entire record of proceedings before the Commission, directly refute Mr. Ragghianti' s accusations of arbitrary conduct, and are therefore excerpted at length in the following discussion of the Planning Commission's decision. THE PLANNING CO:MMISSION'S DECISION The Planning Commission demonstrated fairness, sensitivity and a thorough command of the facts and law at every turn in its deliberations. After several lengthy hearings spanning months of careful review, the Commission reluctantly disapproved the Project because CKS declined to provide adequate parking and reduce its late night hours of operation. Absent these reasonable and feasible mitigations, the Project posed significant conflicts with the Tiburon General Plan and Zoning Ordinance: I. The Planning Commission finds, based upon the evidence in the Entire Record, that the project is inconsistent with numerous Tiburon General Plan goals and policies, and is not in compliance with provisions of the Tiburon Zoning Ordinance because of parking deficiencies and the cumulative activity levels, noise, disruption, and the sensitivity of the days and hours that these activity levels would occur. The Planning 74 Tiburon Planning Commission Staff Report prepared for Planning Commission meeting on April 24, 2006 at pp. 3-4. 75Id. at p. 4. 76 Letter dated May 8, 2006 from Richard A. Carman, Ph.D., P.E., to Tiburon Planning Co~ission; letter dated May 8, 2006 from Ami K. Edwin, M.S., M.Eng., ITE, SCE, to Tiburon Planning Commission. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 11 Commission further finds that the Project is incompatible with surrounding residential development; and would be Inaterially detrimental to the quiet enjoyment of people's homes and neighborhoods. Specifically , the Planning Commission fmds that the Project would be inconsistent with Tiburon General Plan Land Use Element Goals LU-A, LU-B, LU-C, LU-D, LU-H, and LU-I; with Land Use Element Policies LU-2, LU-6, and LU-13; Circulation Element Goals C-C, C-D, C-F, and C-I and Circulation Element Policy, C-l; with Safety Element Goal SE-A; and with Noise Element Goals N-A, N-B, and N-C. The Planning Commission further finds that the Project is not in conformance with, or fails to comply with, Tiburon Zoning Ordinance Sections 4.04.02 (a), (b), (c), (d) and (e); Sections 4.04.03 (a)(1), (a)(2), and (a)(3); Sections 4.04.03 (b)(1) and (b)(3); Section 5.08.04; Section 5.08.10; and Section 5.08.11. J. The Planning Commission finds that although the EIR concludes that the Project would not result in significant unavoidable adverse impacts on the environment as characterized under the California Environmental Quality Act, ~he Planning Commission disagrees with certain conclusions of the EIR based on evidence in the Entire Record. Specifically, the Plamiing Commission received written testimony from two acoustical experts stating that the Draft EIR's use of a 24- hour average metric, "Ldn," to assess the impact of intermittent noise spikes during the evening was not appropriate, as it trivializes short- term spikes in noise by averaging them against the ambient noise levels during the rest of the 24-hour period. The Final EIR acknowledges that arrival and departure noise levels will reach 65 decibels, and that background nighttime noise levels in the neighborhood are only 40-41 dBA. FEIR, p. 43. Thus, the short-term noise impact at these evening events might reach 25 decibels above background levels at 11:00 p.m., a very substantial increase. Neither the Draft EIR nor the Final EIR proposes any mitigation measure that would assure that the significant spikes in late night week-end noise would be mitigated to achieve a level of insignificance. The Planning Commission therefore finds mitigation measures for Impact 3.4-B (Noise Impacts in Areas Surrounding the Project Site) inadequate to mitigate the increased noise. In addition, the Planning Commission finds that the mitigation measures specified for Impact 3.5-C (Headlights on Vehicles Using the Driveway) are inadequate to reduce to insignificant late-night, week-end headlight intrusion into homes in the immediate vicinity of Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 12 the driveway and parking lot, as more fully set forth in Section 4 below. The Planning Commission also finds that Mitigation Measure 3.3-C.3 (the. parking receipt progralTI) proposed for Impact 3.3-C (Insufficient On-Site Parking Resulting in Unsafe Turnarounds) is unwieldy, unduly difficult to monitor and enforce, unlikely to be successfully implemented, and therefore infeasible. The Planning Commission finds that the alternative mitigations put forth in Alternative 7 to address the Project's deficient on-site parking are insufficient to off-set the basic problem of inadequate on-site parking, and simply spread or relocate the impacts into surrounding neighborhood streets.. The frrst of these alternate mitigations, that "Kol Shofar shall place signs along its frontage on Via Los Altos, Blackfield Drive and Reedland Woods Way stating that people attending events at Kol Shofar need to park on-site and not on residential streets," mayor will cause unsafe turn- arounds by the attendees who haq intended to park along these streets until they observed these unexpected signs. Furthermore, visitors arriving at night or in the rain may not see these unexpect~d signs at all. Others may choose to disregard the signs, since there is no proposed effective enfot~ement mechanism to dissuade attendees from doing so. The second alternate mitigation, that "Kol Shofar shall require that all invitations and notifications of these new weekend events include a note informing people there to park on the site and not to park on residential streets," rests on three unproven assumptions: (1) that all drivers will receive, remember and comply with the request; (2) that there will be adequate room to accommodate them within the on-site parking lots (a premise that would not be true where individual vehicular occupancy by guests is at lower rates than the Applicant's projections, and certainly during the HiglJ. Holy Days and other events where attendees greatly exceed on-site parking capacity); and (3) that attendees will not attempt to park elsewhere if traffic backs up at the Via Los Altos ingress point to the parking lot. The third alternate mitigation, the institution of a monitoring program covering "up to four events the first year after project completion" to assess the efficacy of the foregoing mitigation measures, would not itself prevent significant unsafe turn-around impacts. Rather, it would document such impacts for the purpose of developing additional mitigation measures. As such, this measure would not itself prevent adverse traffic and parking impacts. The Planning Commission fmds that sufficiently increasing the on-site parking capacity would bring the Project into Zoning Ordinance parking regulation compliance and Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 13 is the most logical mitigation, yet this approach was strenuously argued against by the Applicant at the May 10,2006 hearing. K. The Planning Commission concludes that substantial modifications to the Project above and beyond those put forth by the Applicant in Alternative 7 would be necessary to secure Planning Commission approval, as discussed herein. 77 The Planning Commission supported its foregoing findings with a detailed - analysis of the evidence presented to the Commission together with the applicable standards of the Tiburon General Plan and Zoning Ordinance.78 Its analysis separately addressed the Proj ect' s noise, traffic and traffic safety, light and glare, -neighborhood compatibility and zoning (parking) violations, as documented in the following summary. 1. Noise The Commission found that "[t]he Project will generate substantial noise from events," including "twelve Saturday evening events with significant attendance (four with 250 attendees, four at 200 and four at 150) and fifteen new Sunday evening events (three with 250 attendees, five at 200, four at 150 and three at 100).,,79 As the Commission pointed out, "[t]he proposed Satuiday evening events would continue 'until 11 :00 p.m. plus cleanup,' and the Sunday events would continue 'until 9:00 p.m. plus cleanup.,,,80 Cleanup times, moreover, "are proposed to last until midnight on Saturdays, and. . . until 10:00 p.m. on Sundays."Sl As the Commission explained, "[t]his means that noise and lights from departing guests, vendors, and others; people taking out supplies and/or removing tables and chairs; caterers carrying out equipment and food; people talking outside; car and truck engines starting up; car doors slamming; and related headlight glare and parking lot ilhnnination would thus continue until midnight on Saturdays and until 1 0:00 p.m. on Sundays.,,82 As the Commission pointed out, the foregoing activities create noises so loud that they will prevent school-age children from sleeping at times when their health requires it: 77 Tiburon Planning Commission Resolution No. 2006-16 adopted May 31, 2006, at pp. 3 - 5, elnphasis added. 781d. at pp. 6-17. 79Id. at p.7. 80 Id. 81 Id. 82 1 d. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 14 The Final EIR acknowledges that arrival and departure noise spikes will reach 65 decibels, and that background nighttime noise levels in the neighborhood are only 40-41 dBA. FEIR, p. 43. Thus, the short-term noise spikes during these evening events might reach 25 decibels above background levels as late as 11 :00 p.m., a very substantial increase. These represent serious noise incompatibilities with surrounding residences. For example, many neighbors have school-age children. .These children, who need to be in bed Sunday evenings for school the next morning, would be subject to sleep-disturbing noise and lights after they had retired for the night. Also, residents in the Bel Aire neighborhood will be disturbe"d as cars exiting the facility travel down Blackfield Drive at the end of an event between 11 :00 and 12:00 p.m. on Saturday and between 9:00 and 10':QO p.m. on Sunday. The residents of Blackfield Drive have written letters and spoken publicly about the fact that many bedrooms face Blackfield Drive. These neighbors will be disturbed at night by the increased noise, light and traffic of cars traveling on Blackfield Drive to these nighttime events.83 Unfortunately, even as modified by Alternative 7, "[t]he Project would allow weekend evening events to occur on twenty-seven (twelve on Saturdays and fifteen on Sundays) of the 1 04 weekend evemngs each year, representing 260/0 of annual weekend evening[ s], clearly a substantial portion. Allowing such an increase in nighttime noise and activity on more than one-fourth of annual weekend evenings conflicts with the Tiburon General Plan Noise Element's Goals" N-A, N-B and N-C, which direct that the T own must "insure that residential areas are quiet" and that "unnecessary, excessive and offensive noises" are eliminated or reduced, as noted above.84 The Planning Commission's findings that the Project would unnecessarily harm school-age children by generating excessively loud noises late at night is wholly supported by the record and poses no conceivable violation of RLUIP A, as discussed below. 2. Traffic and Traffic Safety The Planning Commission found that "[t]he proposed substantial increase in the square footage on the Property, and proposed increase in use of the Property, will result in substantial additional traffic generation, particularly for large-scale events drawing hundreds of attendees. As the number of facility users increases, so will the number of cars delivering them, and the number of consequential unsafe turn-arounds in local 83Id. at p. 7. 84 I d. Mayor Paul Smith. , Honorable Town Council Members Town of Tiburon October 3, 2006 Page 15 driveways.and streets.,,85 In reaching this finding, the Planning Commission relied on the extensive public hearing record. .As the Commission explained, "[t]h~ Draft EIR identified unsafe turnarounds in neighborhoods and using private driveways for the ' purpose as an existing safety hazard that would increase as a result of the Project.,,86 Quoting from the DEIR, the Commission pointed out that "'[i]ncreased numbers of turnarounds on those residential streets is considered by the EIR traffic engineer to be a potentially significant safety concern. ,,,87 The Planning Commission noted that it had "received substantial ,evidence from the public confirming that existing events and activities at the existing Kol Shofar facility had resulted in unsafe tum-arounds by guests driving vehicles to such events to seek additional parking sites off-site or to avoid traffic congestion in the vicinity of the Property.,,88 Based on the foregoing evidence from the EIR traffic engineer and the public, the Commission concluded that: "[t]hese turn-arounds pose significant traffic hazards to vehicular and pedestrian safety, in conflict with the Tiburon General Plan's Circulation Element, Circulation Goals C-C and C-F, Circulation Policy C-l, and Safety Element Goal SE-A," which require the Town to "maintain all existing. . . residential streets with consideration of . . . residents' safety . ~ . and protection of residential quality of life," "minimize traffic congestion," and "maintain a safe and healthy community.,,89 In addition to the significant adverse impacts of the Proj ect on traffic and traffic safety noted by the Planning Commission in its denial decision, the record is replete with overwhelming evidence that the Project would substantially increase left turns from Tiburon Boulevard onto Blackfield Drive, requiring either a substantial lengthening of the left turn lane on TiburonBoulevard, or a reconfiguration of the signal sequencing on Tiburon Boulevard, potentially triggering traffic congestion on Tiburon's main thoroughfare. As Traffic Engineer Ami Edwin testified to the Commission, it is impossible to assess the Project's adverse impact on the Tiburon BoulevardIBlackfield Drive intersection until Caltrans completes its review. Had CKS consulted with and developed mitigation measures acceptable to Caltrans prior to s~bmitting its proposed Alternative 7, CKS could have solved this problem: In my experience, it is imprudent to presume to forecast Caltrans' future assessment of the additional traffic impact [on the Tiburon Boulevard/Blackfield Drive intersection] created by Alternative 7. 85Id at p. 8. 86 1 d. 87Id. at p. 8, quoting from the DEIR at p. 67. 88Id 89 Id., quoting Tiburon General Plan Circulation Element at Circulation Goals C-C and C-F, and Safety Element Goal SE-A. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 16 Caltrans might, for example, determine that additional data and analysis, or even a different methodology, might be appropriate or necessary. Additionally, Caltrans might impose or require other alternatives or mitigation measures not yet assessed by either the Town or Kol Shofar. Had Alternative 7 been included within the DEIR submitted to Caltrans as part of its normal inter-agency review of this project, then these unnecessary uncertainties with regard to Caltrans' assessment and design standards could have been avoided.9o . As Planning Commissioner Richard Collins emphasized during the Commission's deliberations on May 31, CKS' creation of a surge of incoming traffic on Tiburon Boulevard would create a dangerous situation at its intersection with Blackfield Drive, a safety hazard that was not acceptable even on an infrequent basis. Accordingly, CKS should work with Caltrans and the Town to identify and fund an appropriate mitigation measure to address this serious safety concern. In summary, in light of the significant traffic safety hazards posed by the Proj ect, particularly to school-age children who bicycle neighboring streets and walk on sidewalks to the nearby Bel Aire School,91 the Planning Commission properly exercised its discretion to withhold approval of the Project until these safety concerns are adequately addressed. ' 3. Light and Glare The Planning Commission carefully examined the mitigation measures proposed by CKS to address the substantial light and glare impacts of the Project. It noted that the DEIR acknowledged that the headlight impacts of vehicles accessing and egressing the Project at night on homes on Reedland Woods Way and Paseo Mirasol was a "potentially 'significant impact."n The FEIR acknowledged additional impacts on the residents on Blackfield Drive.93 Although both the DEIR and the FEIR propose potential mitigations of unknown efficacy, the Planning Commission found these uncertain "measures insufficient to reduce the impact of late-night vehicular headlight intrusion into the effected homes to a level of insignificance." Until CKS proposes definite mitigation measures that will adequately address these impacts, the Planning Commission properly found that the Project as currently configured "conflict[ s] with the Tiburon General 90 Letter dated May 8, 2006 from Arul K. Edwin, M.S., M.Eng., I.T.E., S.C.E, to Tiburon Planning Commission, at p. 2. 91 FEIR at pp. 194,233,303 and 307. 92 Tiburon Planning Commission Resolution No. 2006-16, adopted May 31, 2006 at p. 9, quoting from DEIR at p. 106, emphasis in original. 93Id at p. 9, citing FEIR at p. 49. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 17 Plan's Land Use Element, Land Use Goals LU-B, LU-D, and LU-H, and Land Use Policy LU-2," which require the Town to "protect and preserve existing neighborhood character. ,,94 The Planning Commission also noted that the Project would disturb sleep throughout the neighborhood, since the Project is located at the bottom of a bowl and therefore would, when illuminated until 12:00 p.m. on Saturdays and 10:00 p.m. on Sundays, "be visible from neighboring homes. ,,95 In combination with the late-night headlight glare into their sleeping quarters, and contemporaneous noise spikes up to 25 decibels above background levels, the Project's nighttime activities would have a significant adverse impact on the health of the surrounding neighbors, particularly their young children. 96 Reasonable mitigation measures are readily available to reduce'these adverse impacts to insignificance, including curtailing the duration of nighttime activities to 9:00 p.m. on Saturday and 8:00 p.m. on Sunday. Mr. Ragghianti has failed to advance any evidence to suggest that the Project's nighttime activities could not be brought to a close at an earlier time in order to protect the health of neighbors and their school-age children who require a full-night's rest. Consequently, there is no evidence in this record that reasonable mitigations to protect neighbors from late-:night light and glare would substantially burden CKS' exercise of its religion. 4. Neighborhood Compatibility After careful review of the foregoing issues, the Planning Commission found "that the Project poses significant impacts on the surrounding neighborhood from increased noise levels, additional light and glare, additional traffic, increased parking demand, and reduced vehicular and pedestrian safety. ,,97 The Commission summarized its concerns: Siting a facility with the capacity to accommodate over 1,500 people, and with plans for large evening events, in a quiet residential neighborhood, while providing only 139 on-site parking spaces, clearly conflicts with the neighborhood character. Adjacent homes would be subjected to nighttime increases in noise by as much as 25 decibels. Nearby residences would be subject to headlight glare from scores of cars arriving and leaving the facility on weekend nights. Neighbors would be subjected to worsening traffic, parking congestion, and significant traffic hazards. 94Id. at pp. 9-10. 95 I d. at p. 1 O. 96 1 d. 97 Id. at p. 10. Mayor Paul Smith Honorable Town Council Members T own of Tiburon October 3, 2006 Page 18 Taken in the aggregate, these adverse impacts on the surrounding neighborhood pose unacceptable deleterious effects on the "existing neighborhood character and identity," creating conflict, rather than the required compatibility with surrounding neighborhoods, and are inconsistent with the Tiburon General Plan . . . .98 The Planning Commission cited seventeen separate goals and policies of the Tiburon General Plan's Land Use, Circulation, Noise and Safety Elements in dete~ining that the Project as presently configured conflicts with the General Plan "in numerous, fundamental respects.,,99 In the case of each of these conflicts, however, the Project could easily be reconfigured to mitigate these impacts to insignificance. Most notably, as the Planning Commission observed, the Project could be modified to provide-adequate parking to substantially reduce its impacts on traffic, traffic safety and parking. The Project's proposed late night activities could be brought to a close at an earlier hour, thus reducing its adverse impacts on noise, light and glare to insignificant levels. There is no evidence in the record before the Planning Commission that CKS could not make these adjustments in its Project. Accordingly, there is no evidence that such reasonable mitigation measures would substantially burden CKS' exercise of its religion. 5. Zoning Ordinance (primarily Parking) Non-Conformance The Project's adverse impacts on community noise, traffic and traffic safety, parking, light and glare and neighborhood compatibility also violate the Tiburon Zoning Ordinance. Consequently, the Planning Commission found that "the Project is inconsistent and does not conform to the [mdings necessary to ap~rove the application" as required by section 4.04.02 of the Ti1;>uron Zoning Ordinance. I 0 The Commission detailed a host of reasons why the Project as currently proposed poses unnecessary conflicts with its neighbors. It observed that "[t]he proximity of homes surrounding the site, the bowl-like topography in which the site rests, the relatively narrow residential streets nearby, and the relative quietude of the area surrounding the site create heightened potential for impacts on the surrounding homes and streets during otherwise quiet times for this neighborhood, especially on week-end evenings and nights . . . . during which the proposed new events and activities would occur.,,101 The Commission fully understood its duty to fairly balance the interests before it. It explained that "[ w ]hile neighborhoods often bear a burden of noise and traffic when a religious institution and/or school is in the vicinity, the frequency, time of night, and 981d. at p. 12, citing Tiburon General Plan, Land Use Element, Policies LU-l and LU-2. 99 I d. 100Id. 10] ld. at p. 13. Mayor Paul Smith Honorable Town Council Members T own of Tiburon October 3,2006 Page 19 scale and number of attendees of new activities and events proposed for the site would unnecessarily intrude on the usual hours of respite from that noise and traffic currently enjoyed by the surrounding residential neighborhoods, and make the proposed project incompatible with the types of activity and uses normally permitted in the surrounding residential area.,,102 They key word here is "unnecessarily." CKS presented no evidence that it could not adopt the modest mitigations that would allow its Project to be approved. In reaching its conclusions, the Commission paid particular attention to the Project's numerous violations of the on-site parking-requirements of the Tiburon Zoning Ordinance: The project would create an additional net total of 22 parking ~paces" far less than required by the Tiburon Zoning Ordinance. The proposed Multi- Purpose Room, at 642 seats capacity, would require 161 additional parking spaces in accordance with Sections 5.08.11 and 5.08.04(d) of the Tiburon Zoning Ordinance. 103 For these reasons, the Planning Commission found that the Project violated sections 4.04.03(a)(2) and (3) and 4.04.03(b)(1) and (3) of the Tiburon Zoiling Ordinance, which forbid approval of projects which fail to provide adequate transportation, utilities and other facilities required to serve them and which therefore cause harm to surrounding land uses. For similar reasons, the Commission found that the Project violated sections 5.08.04(d) & (k), 5.08.10 and 5.08.11 of the Tiburon Zoning Ordinance. 104 The Commission explained how the Project as presently configured would conflict with each of these ordinances. First, the Commission pointed out that section 5.08.04 requires that places of assembly provide one parking space for each four seats of maximum seating capacity, or one for each forty square feet of assembly area, whichever is greater.105 Contrary to this ordinance, the 642-seat, 4,500 square-foot assembly area of the Project's Multi-Purpose Room would require 161 parking spaces; the Project's 550-seat, 5,336 square-foot remodeled Sanctuary would require 138 parking spaces; the Project's remodeled 1,842 square-foot Chapel would require 46 spaces; and the Project's 150- student pre-school would require 18 spaces.106 The Project's combination of these uses 102 Id., emphasis added. 103Id 104Id. at pp. 15-16. 105Id at p. 15. 106Id. at pp. 15-16. Mayor Paul Smith Honorable Town Council Members Town of Tiburon Octo ber 3, 2006 Page 20 "yields a total parking requirement of 363 spaces, far more than the 139 spaces proposed for the existing lower and proposed new upper parking lots. 1 07 The Planning Commission then properly acknowledged and applied its discretion under section 5.08.10, which permits the Commission to allow a project to "utilize the same spaces required for another use or time" if it is able to find that "the uses or times for which overlapping parking is being requested do not have overlapping hours of operation sufficient to result in a deficiency of parking spaces" and, where an off-site parking lot is proposed, "the parking lot in question is within a reasonable distance from the uses for which parking requirements are to be overlapped.,,108 Th~ Commission explained why it could not waive the requirements for each individual use, citing the DEIR's analysis of the conflicting timing of the overlapping uses.109 Since many of the uses would operate simultaneously, the Commission pointed out, the "Tiburon Zoning Ordinance requirements ranged from 161-299 parking spaces where only 139 spaces had been proposed." Faced with this substantial parking shortfall, the Commission found "this discrepancy too large to approve the Project.,,110 The Commission likewise found the Project inconsistent with section 5.08.11, which requires additional off-street parking spaces where a change in use or increase in floor area creates additional parking demand. The Commission explained that, "[a]s calculated above, the combined parking requirement for the remodeled and expanded facilities is 363 parking spaces and based upon the overlapping uses proposed, it could be reduced to 299 spaces. The proposed 139 parking spaces would not fulfill this . requirement. ,,111 The Commission explored whether any alternative interpretation of section 5.08.11 might permit its approval of the Project, but found that even if the Commission only considered the Project's 31 percent increase over the existing floor area - ignoring for the minute the facility's existing parking deficit - the Project would still be required to provide 153 spaces, 14 more than the number proposed. 1 12 Finally, the Commission considered its discretion to propose specific conditions of approval which would guide CKS as to which specific modifications to its Project would achieve conformance with the Zoning Ordinance. But CKS rejected the Commission's offer to provide this guidance, and instead demanded "an 'up or down' 107Id. at p. 16. 108Id. at p. 16, citing Tiburon Zoning Ordinance section 5.08.1 O. 1091d. at p. 16, citing DEIR at p. 65. llOId. Il1Id. atp.17. 112Id. at p. 17. Actually, the required number would be 157, 131 percent of the 120 spaces currently provided. Mayor Paul Smith Honorable Town Council Members T own of Tiburon October 3, 2006 Page 21 vote on the Project."l13 Thus rebuffed, the Commission was left with no alternative but to vote to "proceed. . . with a denial," since providing a "stipulation of conditions of approval is inappropriate" in light of CKS' refusal to entertain such a compromise. In summary, the Planning COmnllssion carefully considered the Project's significant adverse inlpacts based on the extensive record before it. The Commission applied each of the relevant provisions of the Tiburon General Plan and Zoning Ordinance, and where the Project conflicted with them, adopted [mdings explaining its conclusion that the Project would require further mitigation. The Commission thoroughly considered all of the mitigations proposed during the EIR process, but found they were either ineffective or insufficient to comply with local planning laws. Even though only modest modifications of the Project are needed to reduce its unacceptable impacts to insignificance, CKS refused the Commission's repeated requests to explore such mitigations with the Commission's 2-member Project Subcommittee, demanding instead "an 'up or down' vote on the Project.,,1l4 The Commission was therefore impelled to disapprove the Project as proposed, but in doing so provided CKS with ample opportunity to consider and accept mitigations that would bring the Project into conformance with local planning and zoning laws. Thus, CKS holds the key that will unlock the approval door. Providing adequate parking and reducing the duration of its proposed nighttime activities would solve CKS' dilemma. There is no evidence in the record before the Planning Commission that accepting these reasonable modifications would substantially burden CKS' exercise of its religion. Accordingly, as discussed in the following section of this letter, the Planning Commission's denial of the Project does not offend RLUIPA in the slightest. THE PLANNING COMMISSION'S DENIAL OF THE PROJECT CONFORMS FULL Y TO RLUIP A. Mr. Ragghianti's letter ignores the Planning Commissiol,1's careful review and detailed findings, and the extensive record on which they are based. Seeking to bypass the actual facts of this proceeding because they refute his loose accusations of bias, intolerance and arbitrary conduct, Mr. Ragghianti premises his entire argument on the false hope that RLUIP A flatly trumps the Town's General Plan and Zoning. Ordinance where they conflict with his client's proposed use. Such is not the law. 113 Id. at p. 14. 114Id. atp.14. Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 22 1. RLUlP A DOES NOT PREEMPT LOCAL PLANNING AND ZONING LAWS. RLUIPA does not expressly or impliedly preempt local land use laws. To the contrary, it merely provides that "a government may not 'impose or implement a land use regulation in a manner that imposes a substantial burden' on religious exercise unless the government demonstrates that the imposition of the burden is 'in furtherance of a compelling governmental interest' and is the 'least restrictive means of furthering' that interest." Curtin & Talbert, Curtin's California Land Use and Planning Law (25thed., 2005) (Curtin & Talbert) at p. 55, citing 42 U.S.C. ~ 2000cc. RLUIP A does not itself defme "substantial burden." However, "the Ninth Circuit Court of Appeals recently clarified what must be shown to demonstrate a 'substantial burden' on religious exercise under RLUIP A." ld., citing San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1035 (9th Cir. 2004). In City of Morgan Hill, [t]he Ninth Circuit held that for a land use regulation to impose a 'substantial burden,' it must be 'oppressive' to a 'significantly great' extent. That is, a 'substantial burden' on 'religious exercise' must impose a significantly great restriction or onus upon such exercise. See ld at 1034. The Court held that the ordinance at issue in City of Morgan Hill imposed no restriction whatsoever on the plaintiff religious college's religious exercise; it merely required the college to submit a complete application for rezoning, as it required of all applicants. ld. at 1035. Because the college was not precluded from using other sites within the city and the city would have imposed the same application requirements on any other applicant similarly seeking approval of a rezone, the court found no "substantial burden." Id. Id. at pp. 55_56.115 So too in this case, the Planning Commission's reasonable request that CKS provide adequate parking and reduce its late night hours poses no "substantial burden" on CKS. 115 "If a claimant demonstrates that a regulation constitutes a substantial burden on its religious exercise, the burden shifts to the government to prove that the burden is the least restrictive means of furthering a compelling governmental interest." Curtin & Talbert, supra, at p. 55. However, because there is no evidence in the Planning Commission's record of proceedings that the modest mitigations necessary to secure Project approval would pose a "substantial burden" on CKS' religious exercise, it is unnecessary to Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 23 RLUIP A also includes a non-discrimination provision, codified at 42 U.S.C. section 2000cc(b). This provision contains three prohibitions. First, "[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a non-religious assembly or institution." 42 U.S.C. ~ 2000cc(b)(1). Second, "[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." Id. at subd. (b)(2). Third, "[n]o government shall impose or implement a land use regulation that - (A) totally excludes . religious assemblies' from a jurisdiction; or (B) unreasonably limits religious assemblies, . institutions, or structures within a jurisdiction." Id. at subd. (b)(3). Thus, the relevant questions for this Council's inquiry are (1) whether the Planning Commission's denial of CKS' application "imposes a substantial burden on [its] religious exercise," and (2) whether the Planning Commission imposed a land use regulation in a manner that (a) treats CKS "on less than equal terms with a non-religious assembly or institution," (b) discriminates against CKS "on the basis of religion or religious denomination," (c) totally excludes religious assemblies from Tiburon, or (d) unreasonably limits religious assenlblies, institutions or structures within the Town. The answer to each of these questions is clearly "no." There is no evidence in this record that the modest mitigations to CKS' Project needed to secure its approval impose a "substantial burden" on CKS' religious exercise. Nor is there any evidence in this record that the Planning Commission imposed a land use regulation that discriminated against religious assemblies or institutions in general, or against CKS in particular. Accordingly, for the reasons discussed more fully below, the Planning Commission's decision fully comports with RLUIP A. 2. THE PLANNING COMMISSION'S DECISION DOES NOT "SUBST ANTIALL YBURDEN" CKS', RELIGIOUS EXERCISE. Mr. Ragghianti fails to identify any evidence in the record that the modest mitigations needed to secure approval of the Project pose a "substantial burden" on CKS' religious exercise. The reason for this is simple. There is no such evidence. At no time during the lengthy hearings in this matter did CKS ever make a cl~m - much less submit evidence to support it - that providing adequate parking and reducing its nighttime hours of operation would impose a "substantial burden" on its religious exercise, much less be "oppressive" to a "significantly great" extent as required to support a claim under address the extraneous issue of whether these mitigations are "the least restrictive means of furthering a compelling governmental interest." Mayor Paul Smith Honorable Town Council Members T own of Tiburon October 3, 2006 Page 24 RLUIPA. City of Morgan Hill, supra, 360 F.3d at 1034. Mr. Ragghianti's failure to cite any such evidence completely disposes of his argument. Instead of providing this Council with relevant facts from the record in this case, Mr. Ragghianti cites the facts present in other court proceedings. This irrelevant exercise wastes this Council's time. The facts present in other cases have nothing to do with this case. It is the facts of this case that will govern this Council's decision, and any subsequent court review. Nor do any of the court rulings cited by Mr. Ragghianti suggest that the law as articulated by the Ninth Circuit Court of Appeals - the highest court in the Western United States - in City of Morgan Hill is in any respects wrong. To the contrary, the sole Ninth Circuit ruling cited by Mr. Ragghianti, Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978, 2006 WL 2129737, 06 Cal. Daily Op. Servo 6959,2006 Daily Journal D.A.R. 10128 (9th Cir., Aug. 1,2006), expressly approves andfollows the RLUIP A tests established in City of Morgan Hill, agreeing that "[f]or a land use regulation to impose a 'substantial burden,' it must be 'oppressive' to a 'significantly great' extent." 2006 Daily Journal D.A.R. at 10132, quoting City of Morgan Hill, 360 F.3d at 1034. Applying this test to the extreme facts in Guru Nanak, the Ninth Circuit found that the defendant Sutter County had indeed imposed a substantial burden on the plaintiff s exercise of religion that was "oppressive" to a "significantly great" extent. Guru Nunak, 2006 D.A.R. at 10132. Guru Nanakprovides no support for Mr. Ragghianti's argument. The facts in Guru Nanak could not be more different from the facts here. In Guru Nanak, the defendant county repeatedly refused to allow a plaintiff religious group to construct a temple, first in an urban district, and then in a rural area. Here, by contrast, the Town has welcomed CKS' operation of its facility and repeatedly accommodated its growth - to nearly three times its original congregant size - over the past twenty-two years. In Guru Nanak, the proposed use measured only 2,850 square feet and was located on a 28.8-acre lot "that did not border anyone's front or back yard." Guru Nanak, supra, 2006 D.A.R. at 10129. CKS' project, by contrast, measures 57,146 gross square feet - roughly twenty times greater - on a site that is four times smaller- 6.94 acres - that is surrounded by homes. The CKS project thus has a density eighty times greater than the tiny temple proposed by Guru Nanak. Further, the Guru Nanak temple was proposed in a remote, lightly populated agricultural zone where the minor increase in traffic from the seventy-five people who would use the temple posed no impacts on surrounding land uses, in contrastto the substantial noise, traffic, parking and glare impacts that the Project here would impose on the surrounding residential neighborhood. Moreover, the modest mitigations required here to secure Project approval pose no significant burden on CKS, unlike the repeated Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 25 outright permit denial suffered by the religious group in Guru Nanak In contrast to the detailed findings specifying the specific respects in which CKS' Project violated the Tiburon General Plan and Zoning Ordinance, in Guru Nanak "the County's broad reasons given for its tandem denials could easily apply to all future applications by Guru Nanak." Id., 2006 D.A.R. at 10132.116 Finally, in Guru Nanak, the group "readily agreed to every mitigation measure suggested by the Planning Division, but the County, without explanation, found such cooperation insufficient." ld, emphasis added. Here, by contrast, the roles are reversed. The Planning COmlni~sion offered to provide CKS with a detailed "stipulation of conditions of approval;" but CKS refused, without explanation, to entertain any such compromise. Tiburon Planning Commission No. 2006-16, adopted May 3l, 2006 at p. 14. Thus, the very sharp differences that distinguish the facts of this case from those present in Guru Nanak expose the illogic of Mr. Ragghianti's argument, and compel its' rejection. The modest mitigation measures at issue here pose no substantial burden on CKS' exercise of religion. To the contrary, they would achieve precisely the reasonable accommodation of CKS' desired expansion that it claims it has been denied. The other cases cited by Mr. Ragghianti provide even less support for his position. Mr. Ragghianti places heavy reliance on four federal trial court rulings from the East Coast, Westchester Day School v. Village of Mamaroneck, 417 F.Supp.2d 477, 561 (S.D.N.Y. 2006) (Westchester); Hollywood Community Synagogue v. City of Hollywood, 436 F.Supp.2d 1325, 1328 (S.D.Fla. 2006); Mintz v. Roman Catholic Bishop, 424 F.Supp.2d 309, 318-19 (D.Mass. 2006); and Murphy v. Zoning Com'n of Town of New Milford, 289 F.Supp.2d. 87 (D.Conn. 2003). None of these cases involves facts even remotely similar to those present in this case. Each is readily distinguishable because none involved an applicant's refusal to accept modest mitigations that were available, feasible and well-justified by potentially serious impacts on puqlic health and safety as in this case. Moreover, one of these rulings has been vacated,117 two have been appealed and could be reversed,118 and the fourth ruling, in Mintz v. Roman Catholic Bishop, was 116 Where the local government documents the need for specific mitigations tailored to a project's particular impacts, there is no "substantial burden." Corporation. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of West Linn (2004) 192 Or.App. 567 117 Last year, the Second Circuit Court of Appeals overturned and vacated the District Court's ruling in Murphy v. Zoning Com'n of Town of New Milford. Id., 402 F.3d 342 (2nd Cir. 2005). 118 The District Court's ruling in Hollywood Community Synagogue v. City of Hollywood has been appealed and is pending before the Eleventh Circuit Court of Appeals, where Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3,2006 Page 26 appealed and settled on terms favorable to the defendant city.1l9 Thus, none of the District Court rulings on which Mr. Ragghianti relies has any relevance to this case. The only other authority on which Mr. Ragghianti places significant reliance, Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 899-900 (7th Cir. 2005), is readily distinguishable because there the city's flat rejection of a proposed church use was based on a palpably "bad faith" pretext that a non- church institutional use might thereupon result. 396 F.3d at 898-901. Again, the contrast to the Planning Commission's measured and reasonable efforts to find a solution to CKS' General Plan and Zoning Ordinance conflicts is striking, and dispatches Mr. Ragghianti' s contrary argument. In summary, at no point in his letter does Mr. Ragghianti provide any substantial evidence - because there is none - that provision of adequate parking and a reduction in late-night hours would "substantially burden" CKS' exercise of religion - much less be "oppressive to a significantly great extent" as required by settled law. Since that is the relevant test, Mr~ Ragghianti's failure to present evidence on this point requires rejection of his argument. 3. The Planning Commission's Decision Does Not Discriminate Against CKS. Mr. Ragghianti devotes less than one page to his argument that CKS was the victim of "disparate treatment," and makes no effort to distinguish between and to apply the four discrete tests governing discrimination claims underRLUIP A.120 The only claim Mr. Ragghianti advances is that "St. Hilary's Catholic Church was granted a CUP by the Town for even more significant construction in a residential neighborhood than is here appellant's opening brief was filed on September 28,2006, as documented in Exhibit 1 hereto. The District Court's ruling in Westchester has been appealed to the First Circuit - Court of Appeals and is awaiting oral argument. 119 The District Court's ruling ,in Mintz v. Roman Catholic Bishop, supra, was appealed to the First Circuit Court of Appeals on May 11,2006, as documented in Exhibit 2 hereto. On May 23, 2006, the parties to the Mintz litigation settled the appeal on terms favorable to the Town of Lenox. The Roman Catholic Bishop agreed to provide twenty-five additional parking spaces and augment landscaping as sought by the Town. See the Settlement Agreement annexed at Exhibit 3 hereto. 120 As noted previously, under RLUIP A tpe four relevant tests are whether the Planning Commission imposed a land use regulation in a manner that (a) treats CKS "on less than equal terms with a non-religious assembly or institution," (b) discriminates against CKS "on the basis of religion or religious denomination," ( c) totally excludes religious assemblies from Tiburon, or (d) unreasonably limits religious assemblies, institutions or structures within the Town. 42 U.S.C. ~ 2000cc(b)(1), (2), and (3). Mayor Paul Smith . Honorable Town Council Members Town of Tiburon October 3, 2006 Page 27 proposed, and this was done on the basis of a Negative Declaration - not the full-scale and costly EIR required of CKS." Ragghianti Letter at p. 10. But Mr. Ragghianti fails to show that the CUP granted to St. Hilary's Catholic Church was in fact for a "more significant construction," deigning to "belabor the factual similarities between that project and the present one." Id. Since Mr. Ragghianti has the burden of persuasion on his claim, and has failed to advance any facts to support it, it fails. Mr. Ragghianti's lapse in this regard is understandable, since the actual facts in the case of St. Hilary's .,expansion refute his claims. First, St. Hilary's is not a "large mainstream congregation" and CK8, a "small conservative congregation." St. Hilary's currently has about 900 parishioners; CKS has about 600 family units (representing approximately 1500 individuals). St. Hilary's involved a gymnasium rather than a multi-purpose room. St. Hilary's provided adequate parking for all additional square footage added to the site, whereas CKS has failed to do so for its Project. CKS proposes a 50 percent increase in student population whereas St. Hilary's remains static. CKS' Project will result in unsafe turnarounds on residential streets. St. Hilary's gymnasium, by contrast, poses no significant traffic impacts. The St. Hilary's gymnasium is used only until 3 p.m. on Saturday, and not used on Sundays. CKS, by contrast, proposes large events 'until!1 p.m. on Saturdays (with cleanup extending until midnight), and 9 p.m. on Sundays (with cleanup extending one hour later). A summary of these and other substantial differences between the significant impacts imposed by CKS' Project and the modest impacts of the St. Hilary's gymnasium is provided in Exhibit 4 hereto. Given the much greater adverse impacts posed by CKS' Project, it was entirely appropriate that the Town request review of those impacts in an EIR, and after thorough study, request reasonable mitigations as was done here. Thus, there is no evidence that 81. Hilary's was accorded more favorable treatment than CKS. For the foregoing reasons, Mr. Ragghianti's loose accusation of "disparate treatment" is completely unfounded, and should be firmly rejected by this Council. THERE IS NO "PRIOR RESTRAINT" ON RELIGIOUS EXPRESSION Mr. Ragghianti's final argument is that the Planning Commission imposed a "prior restraint on religious expression in violation of the First arid Fourteenth Amendments of the United States Constitution" by exercising "unbridled discretion" in its rejection of CKS' CUP application. With all respect, this argument is absurd. The Planning Commission exhaustively reviewed the voluminous file in this case, and carefully considered the evidence and arguments advanced by all pa11ies throughout the proceeding. Its Resolution No. 2006-16 is thoroughly documented by references to the DEIR, FEIR, relevant traffic and noise studies, staff reports, and evidence presented by Mayor Paul Smith Honorable Town Council Members Town of Tiburon October 3, 2006 Page 28 the parties. It rests on.a detailed analysis of the relevant provisions of Tiburon's General Plan and Zoning Ordinance. Far from an exercise in "unbridled discretion," the Planning Commission's decision reflects scrupulous adherence to the highest standards of adjudicatory review. Mr. Ragghianti' s contrary assertion is devoid of merit, and should, be summarily rejected. CONCLUSION The Planning Commission's decision to require additional, modest mitigations to address the Project's significant adverse impacts on noise, traffic and traffic safety, parking, light and glare and neighborhood compatibility is thoroughly supported by applicable law and the record. Mr. Ragghianti's claims that the Planning CQipmission violated RLUIPA and the First and Fourteenth Amendments of the United States Constitution, by contrast, are contrary to applicable law and refuted by the record. Accordingly, the Council should affirm the Planning Commission's Resolution No. 2006- 16 denying CKS' CUP application. Respec~l1y SUbmie~' t/L Stepha C. Volker Attorney for Cross-Appellant Tiburon Neighborhood Coalition SCV:taf cc: Gary T. Ragghianti, Esq. Tiburon Planning Commission http://pacer.cal1.uscourts.gov/CHMSDKTP.FWX?DKTNO=200614343 Alexis M Yarbrougb Tripp Scon P.A . . ~ C;E 6TH ST FL IS UDERDALE, FL 33301-5004 '-7500 Jpscott,com United States Court of Appeals for the Eleventh Circuit 56 Forsylh Strccl, N.W. AIIll11la, GA 30303-2289 (404) 335-6100 06-14343-DD Hollywood Community Synagogue v. City of Hollywood " _ _...!i~~,~~;_ ...___.' ""'" ..... _._,.,_______.__'_._ ___._,~~~.._ _. ..,.. ,,_ .___:::~___ ;Pending 08104/2006 ;Fee Status: Paid (08/04/06) for Lisa Self Usa Self :N~"".__ ~~ ~~~~~~- 0811612006 (Probable Jurisdiction Noted :No 0&125/2006 .Appearance Fonn Submitted. ,. ,,'..'. - ., --...... ,.. ,- ,-",.----,-.---,.. --.'" .. ..--.,.,'--- ,...'" --, .','."'._"._' ~ ,.i_~PhA._,:,-_llir_.~_~~_..,:~_., "-.-_-_--.,--,' ~:"::~~:~~~~,~~~iO~~~Ub~~~~_~ C~- = -.=:' -- ---- . - -- ~""._..._-=_,=~'=~-~'~~=.,=~"'~-='"o:=.::~;~=~=':=~~".~-,,=~,.""~...=~,.."~._~.. ". ___.__~~:.o~~~~~, ~o Carlos E. Mustelier, Jr. -..- .. .. .._..... Vmc:eot F. Vaccarella .-' ..._--_.. ~-_..__._.... --.-... -- .-- _.. .-------.---. ..-.-. -., .--.--.-.--..-.--..- -.-.. -. ..-,....- ...- ..-----. .--.-...-< 0813012006 iAppeannce Form Submitted. Franklin L, Zemel No ~-:-~--_.. o'IDofioo6:;A;';;;O~ed-.f;;.Jti~~d'J~~~F~;T~,~~rb..V~~'F~-. -"=-~'~-'=-=-~~_'-=::~;~_~'~~'~-"'-=-=-~7~~~~_c-~=,_~~-:,,'~~~==~:-~.~~:=-.- Riclmrd-J~h;~~ -'-iN~-'--'-- .,~~~~~.&i~~~~~~~~~~i~~~.~~:~~:':"::~:__.~.-_~__~,~~::~::::.=' ..., __-~~~~~~'.~:"----"- . .', -- . ",-.... ____,_~"'~.,~'"~"-~:;~~:~==',f"~~~:.-_'~:~.. 08128/2006 :Appearance Form Submitted. ;No 08/2812006 ,Appearance Form Submitted. No 09/O7120[}6 .Appearance Form Submitted. ~= DunsaYiNo ... .--.....------.....--..--- ._..__...__u_..__ .___. ._. _. '" Lisa 1. Stark No 09/07/2006 'Appcanmce Form Submitted. =_ - ,_....._. ... ",. ,.,,_,,____..'.. __,... ... " _.. , ___m_____..n.__ ,;~~, 09~~006 iE-BriefTendered Appellant by Vmcent F. Vaccarella L~, ~~.!~~ ~~~~~~~~~~iI~~~.!:.~~~~)_~=~~~.=_~ , _ 09~~()()6,"~~~~~~~_'2~,~:y.~~)__._...._____ 'No Lisa Self . '.. ....__.____.___ .. ..____.. __ _. .. .. _... 'n_ ....--. ----.-. . -.-.- ...... .... ... .... - - ..- ._- Lisa Self :No ,No -..-.--------.-.....- PACER Senrice Center , .. _T~~~~I)'" ~eipt .._~_.._~.______._ _'_ . . ... ._ ._. _.._______.u.___ 0912912006 14:40:51 ~~~~~~~~~~?!~::~-a.~~~~~ .~,'i03,j6'-.-= Description: ,doc:kcuhcd Case Numl,;,r: 06-1434~DDu :Bi"~;;P:':~~' ~7~==~'C~~~'--'-'" '0,56 Send Comment Cbanl!e DieDI Code Vie... BiIIiD!!' DistolT Search EXIDBIT 1 US Court of Appeals for the First Circuit Case Summary Court ofApp~als Docket #: 06-1743 Mintz, et al v. Roman Catholic Bishop, et al Appeal from: U.S. District Court ofMA Filed: 5/11/06 Lower court information: District: 0101-3 : 04-10809 lead: 04-10809 Ordering Judge: Kenneth P. Neiman, Ch. Magistrate Judge 5/11/06 CIVIL CASE docketed. Opening forms sent. Prose Notice of Appeal filed by Appellant Daniel Mintz. Appearance form due 5/25/06. [06-1743] (mlyn) 5/11/06 RECORD filed: 1- 33 consisting of docket entries. No Transcript(s) filed with record. [1121786-1] [06-1743] (mlyn) 5/12/06 Involvement of attorney Hugh C. Cowhig for Edwin May, attorney Hugh C. Cowhig for Ned Douglas, attorney Hugh C. Cowhig for Jeffrey S. Hall, attorney Hugh C. Cowhig for Harold Brown, attorney Hugh C. Cowhig for Clifford Snyder, attorney Hugh C. Cowhig,for Arlene D. Schiff terminated. [06-1743] (mlyn) 5/12/06 BRIEFING SCHEDULE. Appellant's Brief due 6/21/06. [06-1743] (mlyn) 5/31/06 MOTION filed by Appellant Daniel Mintz, Appellee Roman Catholic Bisho, Appellee Thomas L. Dupre, Appellee Arlene D. Schiff, Appellee Clifford Snyder, Appellee Harold Brown, Appellee Jeffrey S. Hall, Appellee Ned Douglas, Appellee Edwin May to dismiss case. [1129603-1] Certificate of service dated 5/26/06. [06-1743] (mlyn) 6/28/06 . JUDGJv1ENT entered. Upon consideration of stipulation, it is he~eby ordered that this appeal be voluntarily dismissed pursuant to Fed. R. App. P. 42(b) with each party to bear its own costs. Mandate to issue forthwith. [1139346-1] [06-1743] (mlyn) 6/28/06 MANDATE ISSUED. [06-1743] (mlyn) 6/30/06 RECORD consisting of documents 1-33 returned to originating court. (cand) EXHIBIT 2 10/02/2006,.15: 55 FAX 1 413 i 39 6550 EGAN. FLANAGAN & COHEN I4J 002 S:ETTLEMENT AGREEMENT AGREEMENT BY AND BETWEEN THE ROMAN CATHOLIC BISHOP OF SPRINGFIELD, A CORPORATION SOLE (hereinafter ''RCB''), ARLENE D. SCHIFF, HAROLD BROWN; CLlFFORD SNYDER:r JEFFREY HALL, }..TED DOUGLAS, AND EDWIN MAY, AS THEY CONSTITUTE THE TOWN OF LENOX ZONlNG BDARD OF MPEALS, The above Being the Defendants-Appellees in United States Court of Appeals for the First Circuit Case No. 06-1743 and 111 United States District Court Civil Action No. 04-10809- KPN1 And DANIEL MINTZ) ANDREA WlNTER, JAMES BlANCOLO. AND SANDRA BIANCOLO, ANN PHILLIPS, STEVEN BAUM, CAROL WINSTON; VERNON KOHLENBERGER) DONNA KOHLENBERGER, LAWRENCE WOLFE AND P:AMELA WOLFE, CRAIG PEHLERT AND MELISSA PEHLERT AND ROBERT HACKMANN AND JANE HACKMANN (hereinafter "the Plaintiffs"), The above Being the Plaintiffs-appellants in United Court of Appeals for the First Circuit Case No. 06-1743 and jn United States District Court Civil Action No. 04-10809~KPN WHEREAS, the parties are presently involved in litigation that has been docketed in the United States Court of Appeals for the First Circuit as Case No. 06-1743 and is on appeal from a judgment in the United States District Court, Civil Action No. 04-10809-KPN, and WHEREAS, the parties wish to resolve all of their differences on all issues arising from this case. It is hereby Agreed: I. The RCB agrees that in lieu of creating a additional twenty-five (25) parking spaces on ex.isting green space, as contemplated in the current plan for the building of the 51. Ann Parish Family Center, it will instead enter into a shared parking arrangement with the Nathan Win ~tanley/Ned Roach Project adjacent to the RCB/St. Aml property which shall provide an additional twenty-five parking spaces. It is understood by the parties that in order to achieve this goal, the RCB and St. Ann Parish must obtain a special permit from the Town of Lenox and the Plaintiffs agree that they will support the ReB/St. Ann application for this special permit and will submit a letter in support of granting the special permit. 2. The RCB and St. AWl further agree that they will modify the existing plan for the lN~med Defendant 1110mns L. Dupre no longer holds any office and the only real party ill interest is the Roman Catholic Bishop of Springfield, a corporation sole. EXHIBIT 3 10/02/2006 15:55 FAX 1 413 739 6550 EGAN. FL-\NAGAN & COHEN 141 003 building of the 81. Ann Parish Family Center in the manner shown on the Foresight Land Services Schematic Plan of Proposed Screening Landscaping, St. Ann's Church, Lenox' review draft, dated 5/22/06 (Exhibit A) and as further described in the letter of Joseph Cacciola and Fr. CJ. Waitkus io Daniel Mintz dated 5/1212006, with the following modifications: \ a. There shall be a third landscape island with trees six (6) to eight (8) feet in height on the present parking lot. b. In the area where the present drawing calls for the creation of an evergreen hedge with ten hemlocks three (3) to four (4) feet in height adjacent to the Biancola property, the RCB and St. Ann's will instead put thirteen (13) hemlocks six (6) to (7) feet in height in a zig-zag pattern. 3. The RCB/St. Ann's will create an account in the amount of $2,500 for the purpose of planting additional landscape scr~ening in the area adjacent to the Ann Phillips' property with Ms. Phillips having the discretion to request use of the funds for that purpQse if she sO.desires within three (3) years following the completion of construction of the Family Center. 4. On the assumption that this Agreement is signed and executed by May 23, 2006" (exempting Pamela W oIfe and Robert and Jane Hackmann from the May 23 deadline) the RCB and St. Ann's Parish, together with the contractor for the Family Center building will provide their best efforts and will endeavor to complete all site work and foundation work by July 1, 2006. The RCB and St. Ann's will require the contractor to start at 8:00 am. instead of 7 :00 a.m. on each work day during the month of July 2006. 5. The RCB and St. Ann~s Parish will establish a committee which shall be responsible for monitoring the use of the Family Center and setting standards for proposed uses for the building. The Plaintiffs shall be entitled to designate one (1) individual who resides in the neighborhood to sit on this committee, which shall consist of 110 more than seven (7) members. 6. The Pastor of St. .Ann's, on behalf of St. Ann's and the RCB, will provide a letter to the Board of Selectmen oftbe Town of Lenox endorsing the restriction of on street parking beyond the Parish's easterly property Iineto 81. Ann's residents and their guests only. 7. The Plaintif:6'Appellants and the Defendant/Appellees shall execute a vohmtary dismissal, pursuant to Federal Rules .of Appellate Procedure 42(b) in the Court of Appeals specifying that no costs or any fees are to be owed by either party. The Defendant! Appellees also waive any right to any costs as ordered by the District Court in this action. 8. In consideration of the mutual promises contained herein, the Defendant! Appe~leesJ hereby on behalf of themselves, their executors, heirs, administrators, assigns and anyone else claiming by, through or under them, waives, releases, Covenants not to s~e and forever discharges the Plaintiffs/Appellants, their parent and subsidiary companies, successors, present and former officers, directors, agents, employees and representatives (hereinafter "Releasees") of1 from and with respect to any and all debts, demands, actions~ causes of action, suits, covenants, contracts, agreements, promises, torts, 10/02/2006 15:56 FAX 1 413 739 6550 EGAN. FLANAGAN & COHEN I4J 004 damages, claims, and liabilities whatsoever of any name and nature, both in law and in equity (hereinafter t'Claims") which he now has, ever had or may in the future have against each or allY of the Releasees by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of the signing of this Agreement, including, but not limited to, any Claims arising out of, 'based upon or connected with United States Court of Appeals for the First Circuit Case No. 06-1743 and in United States District Court Civil Action No. 04-10809-KPN. 9. In consideration of the mutual promises contained herein, the Plaintiffs/Appellants, hereby on behalf of themselves, their executors, heirs; acb.nil1jstrators: assign-5 md anyone el$e claiming by, through or under them, waives, releases, covenants not to sue and forever discharges the Defendants! Appellees, their parent and subsidiary companies, successors, present al1d former officers, directors, agents, employees and representativ~$ (hereinafter uReleasees") of, from and with respect to any and all debts, demands, actions, causes of action, suits, covenants, contracts, agreements: promises; torts, damages, claims>> and liabilities whatsoever of any name and Iiature~ both in law and in equity (hereinafter "Claims") which he now has, ever bad or may in the future ,have against each or any o.f the Releasees by reason of any nlatter, cause, or thing whatsoever from the beginning of the world to the date of the signing of this Agreement, including, . but not limited to, any Claims arising out of, based upon or connected with United States Cotut of Appeals for the First Circuit Case No. 06-1743 and in United States District Court Civil Action No. 04-10809-KPN. Maurice M. Cahillane~ Esquire ~tomey for the Defendant! Appellants Roman Catholic Bishop of~pr.iUgfield 'Rv' ~./ . ~LS:-- Date Witness 0/).]/01- Andrea Winter 6 , Date Vlitness 'V James Biancolo Date Witness J Sandra BiancQlo Date Witness j Ann ~hillips Date Witness l!!trvtJ~ 6fflJ(P teven Baum ' Date Witness Kol Shofar verses St.Hilary's 1. A gymnasium is different then a multipurpose room. There are other multipurpose or similar types of rooms available in the vicinity for Kol Shofar to use. 2. KS has the opportunity to remodel their existing facility to make better use of their space to accommodate a functioning multipurpose room and sanctuary. SH required a gymnasium to provide an athletic facility which was not able to be achieved through a remodel of their existing facility. 3. St. Hilary's (SH) only 500 feet from Tiburon Blvd. Access to Kol Shofar (KS) is far from the main thoroughfare, Tiburon Blvd. Cars must drive, 2,000 feet along Blackfield Dr., through residential neighborhoods to reach KS. KS is not a convenient access to Tiburon Blvd. as SH. 4. Reedland Woods Way and Via Los Altos, egress and ingress for KS are' neighborhood streets. Egress and ingress for SH is on Rock Hill is a collector street. 5. SH school and gymnasium ~raffic will only ingress and egress on Rock Hill Dr., a collector street. KS's school, multipurpose room and synagogue traffic will ingress and egress" after driving through the Bel Aire neighborhood along Blackfield Drive, onto Via Los Altos and Reedland Woods Way, neighborhood residential streets. 6. Traffic generated by KS at Blackfield Dr. /Tiburon Blvd. is required by Caltrans, as stated in the EIR to lengthen the left turn pocket lane to accommodate KS traffic. SH does not require changes on Tiburon Blvd or Rock Hill to accommodate traffic. Substantially less traffic is projected to be generated by SH. 7. Traffic studies for KS indicate unsafe turn arounds in residential neighborhood streets related to KS use. These unsafe turn arounds are found to be unmitigated in FEIR. SH has no traffic significant impacts. 8. SH has a person designated to control vehicular traffic on all school days in the AM at two intersections. KS application only calls for infrequent traffic control at limited intersections. 9. 85% ofKS attendees do not live in Tiburon, thus would increase the number of trips on Tiburon Blvd coming from outside the Tiburon peninsula. SH reduces the number of trips of Tiburon residents for CYO practices and fills the needs of primarily Tiburon peninsula residents. 10. SH parking for CYO is available on site, since they are able to use the churches parking lot and thus able to meet all the parking needs the church, school and EXHIBIT 4 CYO. KS parking is inadequate for its size and scale of use. KS requires off site or on street parking in neighborhoods and does not meet the parking needs of synagogue, school and multipurpose room. 11. SH limits concurrent functions -to not over burden their parking facility. KS has no plans to regulate multiple uses that might exceed capacity of their parking lots. 12. Kol Shofar requests events until 11 PM and clean up until 12 AM on Sat and 9 PM and clean up 10 PM on Sundays. SH gymnasium is used only until 3 PM on Sat-and no gymnasium on Sundays. Weeknights, SH basketball practice only is until 6:30/7:30 PM. KS on weeknights activities last until 13. SH's activities are held at times that do not interfere with family's hours of rest and sleep. KS hours of use would interfere with hours of families rest and sleep. 14. SH has two sets of doors in their vestibule to control the escape ofnoi,se. KS design for the multipurpose room has glass doors that open directly to the outside. Noise fromKS multipurpose room is able to escape into the neighborhood as people move in and out of the room during events and activities. 15. SH CYO program produces only 18 additional trips per hour on Rock Hill during CYO activities. KS ev.ents would add vastly larger number ofvehic1e trips traveling in and olit of the residential neighborhood, even at late night hours with an increase in volume and character of the traffic, noise and light. 16. SH classrooms would not result in an increase of school emollment. KS classrooms would result in 50 more students. A 50% increase beyond existing school emollment. 17. SH's CYO provided a gymnasium that is available for community use. CYO gymnasium is open to all children on the Tiburon peninsula. KS is open primarily for its members. KS has other facilities in and around Tiburon that could provide room for celebratory events such as parties. 18. SH has no skylights in the gymnasium and a solid wall facing the neighbors to limit light pollution. KS design proposes skylights in the sanctuary and large glass doors and windows facing the homes of the adjacent residential neighborhoods. 2 .EXmBIT ~ - EXHIBIT R Memo from Town Attorney Regarding RLUIP A Due to a family emergency, the Town Attorney has been unable to complete the memorandum to the Town Council regarding the Religious Land Use and Institutionalized Persons Act (RLUIPA). A memo will be prepared and released as soon as possible. EXHIBIT NO. ~ EXHIBIT -r l~/l~/L~~b 12:18 202-955-0090 THE BECKET FUND PAGE 01/18 J~ r 111 J~ ~_l~._~~_~~'~';- k:-~ !. if~1 PST r ~ANNiNG lli\!iSiC'[" J TOW~\i OF Ti?UFJJ[\j THE BeCKa FUND FOR ~ellGIOUStiBeRTY FAX COVER SHEET To: ANN.R. DANFORTH FAX NUMBER: 415.435.2438 FROM: ERIC RASSBACH PHONE NUMBER: 202.349.7214 DATE: OCTOBER 10, 2006 PAGES (INCLUDING COVER): 17 . LETTER REGARDING CONGREGATION Kot SHOFAR APPEAL. 1350 CONNECTICUT AVENUE,NW, SUITE 605, WASHINGTON, DC 20036-1735 Phone: (202) 955-0095 Fax: (202) 955-0090 E-mail: erassbach@becketfund.org www.becketfund.org This communication is intended -for use only by the individual or entity to which it is ,addressed 'and may contain informatioll ilia t is privileged, confidential and exempt from disclosure under applicabJelaw, If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering this communication to the intended recipient, you are hereby notified that any dissemination, distribution or' copying of this comrnunica Don is strictly prohibited. If you llave received this communication in error, please notify us immediately by telephone and return this original communication to us at the above address via United States Postal Service. Thank You. EXHIBIT NO.~ 10/10/2005 12:18 '202-955-0090 THE BECKET FUND PAGE 02/18 ' j~ BOARD OF AOVISORS Hon, \MJllam p, Barr Former Attomey General of the Uniled Sta1es Prof. Stephen L. Carter Yale Law School His Eminence Francis Cardinal George, 0, M,I., ArchblstJop of Ohicago Prof. Mary Ann Glendon Harvard Law School Hon. Orrin G, Hatch ' Unlled States Senator {R.Utah) Hon. Henry J, Hyde United Stales Representative (R.lIIinois) Prof. Douglas Kmiec Pepperdine Law SChool Prof, Dougl8& Laycock University of Texas Law School Rev. Richard John Neuhaus Preeident, In6tltute of Religion end Public Life Eunice Kennedy Shriver Founder and Honorary Chairman. Special Olympics In~ern8110n81 Sergent Shriver Chairmen of the Board, SpeclalOlympicsln1ernatlonal Dr. Ronald B, Sobel 'Senior Rabbi, Congregation Emanu-EI of the Otyof New York John M. T emp/e1on. Jr., M.D. Bryn Mawr, Pennsylvania 1350 Connecticut Avenue. NW Suite 605 \1\18 shington, DC 20036.1735 202-955-0095 Fax: 202-955..{l090 www,becketfund.orp j:::>~ ~'~;;f;'r,.:4' THE BeCKET FUND f'O R R E \",1 G , OU 5 ll8 e RT 'r Bv Facsimile and Fit.sf Class Mail October 10, 2006 Mayo~ and Town Council Tovvn of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Re:Tiburon's Duty to Grant the Appeal ofCong..egation Ko) Shofar under the Religious Land Use and Institutionalized Persons Act of,2000 Dear Mayor Smith and Council Members: We represent Congregation Kol Shofar in its appeal of the Tiburon Planning Commission's denial ofKol Shofar's conditionaJ use permit' appli cati on. We write to reiterate and amplify what Gary Ragghianti wrote you on' September 6-that denying Kol Shofar's appeal would constitute a violation of both the Religious Land Use and Institutionalized Persons Act ('~LUIPA") and the United States and California Constitutions. If you deny the appeal, reduce the size of Kol Shofar's needed expan~ion, or impose onerous conditi ons of approval, you will open Ti buron to years of litigation, millions of dollars in damages and a1tomeys' fees, and the ignominy of being the only town in Marin County to place arbitrary limits on Jewish worship. Federal law"":'-and prudence-demand that you approve Kol Shofar's permit application without additi~na1 restrictions. ,\ We have also read and evaluated the letter from the synagogue's opponents dated October 3 and submitted in opposition to Kol Shofar's appeal These opponents, of course, have no particular expertise with RLUIP A, and the town should pause before risking its reputation and its resources on their opinion. Indeed, an examination of their letter reveals that they apply the wrong standards to the wrong facts, Throughout their 1 etter, the synagogue's opponents improperly attempt to place the burden of complying with RLUIP A on Kol Shofar instead of Tiburon. They fail to distinguish RLUIP A cases that have held bans on expansion to be substantial burdens. And they ignore the fact that the Planning Corrunission used the most restrictive, means at its disposal to meet its stated interests-denying Kol Shofar's application outright. Finally, these opponents completely misunderstand the constitutional doctrines at issue here. . 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 03/18 October 10,2006 Page 2 Becket Fund Experience With Relil!ious Land Use Liti2ation Our assessment, and our decision to work on this case, is based on our involvement in most of the major religious land use decisions in recent years. The Becket Fund for Religious Liberty is an international, interfaith, public interest law firm dedicated to protecting the free expression of all religious traditions. We litigate in support of these principles in state and federal courts throughout the United States, both as primary cOWlseJ and as amicus curiae. In particular, we have been intensely involved in litigation Wlder RL.l1IPA, (and corresponding constitutional protections) involving discrimination or the burdening of religious exercise by local land use regulations and officials. We successfUlly represented the plaintiffs in the first case resolved \D1der RLUlP A, Haven Shores Community Church v, Ctty of Grand Haven, No. 1:00-CV-175 (W.D. Mich. 2000). Since then, we have brought successful suits under RL VIP A in courts in 12 states. I , . In California, we recently successfully briefed and argued the companion cases of Elsinore Christian Cenrer v. City of Lake Elsinore, 2006WL 2456271 (9th Cir.Aug. 22,2006) (mem.) and Guru Nanak Sikh Society v. County of Sutter, 456 F.2d 978 (9th Cif, Aug. 1) 2006). In addition, our clients in Cottonwood Christian Center v. Cypress Redev. AgenCy, 218 F. SUppa 2d 1203 (C.D. Ca1. 2002) received a multi-million dollar settlement after the district court iss~ed an injunction against it for a RLUIPA violation. We also represent Redwood Christian Schools in its $30 million lawsuit against Alameda County, currently scheduled to go to trial in February in San Francisco federal court. Redwood Christian Schools V. County of Alameda, Civ. No. 01-4282 (N.D. Cat). We've also been involved with a number RLVIPA matters specifically involving Jewish religious exercise. We have represented severaJ different synagogues under RLUIP A~ all of which resulted in favorable settlerpents for our clients. See. e.g., Congregation Kol Ami in Pennsylvariia (settled for, six figures)~ Chabad of Key Biscayne in Florida (town utilized RLUIP A ~s safe harbor provisions)~ and Temple B'nai Shalom in HlUltsville, Alabama (defendants agreed to, bear costs of historicpreservation). We have worked closely with the plaintiffs in Westchester Day School v, Village ofMamaroneck, 417 F.Supp.2d 477 (S.D.N.Y 2006) (village violated RLUIPA by limiting Jewish school's expansi on). Moreover, we have Ii tigated prisoner claims for kosher prison food against Texas, Georgia and Florida under the "Institutionalized Persons" provisionsofRLUIP A, as well as numerous other Jewish groups' claims based on constitutional civil rights. See, e,g., TenajZy Eruv Ass 'n v. Borough of Tenafly, 309 F-.3d. 144 (3d Cir. 2002) (town ordinances banning eruv violated First Amendment). We are forced to turn down over 99% of the RLUIP A inquiries we get, because there are so many. But we chose to become involved with this case because of the nature of the burden being placed on Kol Shofar-a denial of the only expansion requested by the mllY Jewish institution in Tiburon-and because this could be a good vehicle for demonstrating the scope ofRLUIP A's protections, should the matter go to litigation. We hope that litigation will not be necessary to vindicate Kol Shofar's rights. In that regard, the Council should keep in mind that, in our experience, this sort of dispute can involve miBions of dollars We also operate a website abou.t RLUIPA at \\!ww.rlu,ipn.com. 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 04/18 October 10, 2006 Page 3 in damages for increased con~truction costs, fmancing costs, and attorneys' fees availabl,e under 42 U.S, C, ~ 1988~ Ano~er issue you will want to consider is that RLUlP A litigation, because it is so fact- intensive.. typically forces decisionmakers like you to spend a lot of time, over a numb,er of years, dealing with both litigation management and preparation for deposition~and trial testimony. Finally, given the circumstances here-especially the straitjacketing of the only Jewish house of worship in Tiburon-there is a distinct possibility that the Department of Justice would open an investigation into this case were it alerted to the problem. Department of Justice involvement almost always 'means additional fees and the entry of a federal consent decree. See, e.g., Hale 0 Kaula Church v. Maul Planning Comm 'n, Civil No. 01-615 (D. Haw. 2004) (Becket Fund case with Department of Justice intervention in which 'Maui 'paid over $700,000 in attomeys~ fees in addi1ion to those it paid its own counsel); Hollywood Community Synagogue v. CityofHo//ywood, Fla., Case. No. 04-61212-CIV (S. D. Fla. Jul. 7, 2006) (city settled RLUIP A lawsuit with Department of Justice by paying synagogue $2 million and having staffand council members undergo RLUIP A training)? Tiburon Must Follow and Applv Federal Law As a preliminary, matter, it bears repeating that although-as Kol Shofar's opponents accurately sta1e--RLUIP A has not abrogated land use planning law, where federal law and state law conflict, the Town must follow federal law. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819) (federal law is ~'the supreme law of the land, 'anything in the constitution or laws of any state to the contrary notwithstanding~'). Tiburon's compliance or noncompliance with CEQA procedures ~d standards is therefore irrelevant to the question of whether it has met its affirmative oblig~tion to follow RLUIP A and the Constitution. It may also help in this regard to remember that RLUIP A is a federal ci viI rights statute~just like the Civil Rights Act, the Voting Rights Act, or the Fair Housing Act. Just as Tiburon would not (and could not legally) comply with a state procedural or substantive standard that caused it to violate the Fair Housing Act, it cannot use CEQA or Town ordinances to trwnp RLUIPA or the Constitution. Loca1law yields to federal law, not vice versa. RLUIP A, Back~t'ound The civil rights principles embodied in RLUIP A enjoy broad, bipartisan support. The legislation sailed virtually unopposed through both houses of an otherwise sharply divided Congress, and was . signed into law by President Clinton on September 22~ 2000. RLUIP A's remarkable success in the legislative process can be attributed to strong ~upport from an exceptionally diverse coalition of religious and civil rights groups, ranging from the American Civil Liberties Union and People for the American Way to the National Association of Evangelicals and the Union of. Orthodox Jewish 2 Kol Shofar's opponellts erroneously state that the Hollywood Community Synagogue case has been appealed, Opponents' Lener, pp. 25-26n.118. The appeals docket sheet attached as Exhibit 1 to the Opponents' Letter is actuaJ)y an appeal of a denial of several synagogue neighbors' motion to intervene after the city had decided to settle. The city entered into a consent decree with the Department of Justice and an agreement with the synagogue, requiring it to pay $2 million to the synagogue. Pursuant to the consent decree, councilmembers and staff must l.Uldergo RLUIP A training, the synagogue has an absolute right to build whatever it wants (subject to the fire code) on its property, the city cannot prevent the synagogue from acquiring andbuiJding what it wants on two adjacent parcels and the city will remain under the oversight of the Civil Rights Division for years to come. 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 05/18 October 1 0, 2006 Page 4 Congregations of America3 The requirements ofRLUIP A are, for the most part, parallel to the protections provided by the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Thus, actions that violate RLUIP A are likely to violate the Constitution as well. RLUIP A has four main provisions: ' · the USubstantial Burden" provision, which establishes that a local zoning regulation cannot substantially burden religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. 42 V.S,C. ~ 2000cc(a)(1),4 · , the <'Nondiscrimination" provision, which forbids discrimination "on the basis of religion OJ religious denomination." 42 D.S.C. ~ 2000cc(b)(2). · the "Equal Terms" provision, which bans "treat[ing] a religious assemb~y or institution on less than equal terms with a nonreligious assembly or institution. 42 V.S.C. ~ 2000cc(b)(I). · the "Exclusion and Limits~' prOVISion, which prohibits municipalities from "unreasonably lirnit[ing) religious assemblies, institutions, or structures within a jurisdiction." 42 D.S.C. ~ 2000cc(b)(3). Each of these provisions would be violated by a decision to deny Kol Shofarls appeal or a decision to impose onerous conditions of approval, because KolShofar has applied for the minimum necessary to accoTtunodate its current religious exercise. Denvinl! Kol Shofar's Appeal Would Violate RLUIPA's Substantial Burden Provision RLUIP A's Substantial Burden provision provides in relevant part as follows: No government shall irnpose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution- (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. ) The Ninth Circuit recently recognized that RLUIP A is a constitutional exercise of Congress 's authority in Guru Nanak. See also Cutter v. Wilkinson. 544 U.S. 709 (2005); Midrash Sephardi, Inc. v. Town of Surfs ide. 366 F.3d ]214 (11th (::ir. 2004). See also Saints Constantine & HeLen Greek Orthodox Church v, City of New Berlin, 396 F.3d 895 (7th Cir, 2005) (noting that RLUIP A is an .'uncontroversial use" of Congress , s power to enforce the First and Fourteenth Amendments' guarantee of free religious exercise). 4 "The tenn 'religious exercise' includes ~ exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C, ~ 200Occ-5(1) (emphasis added). Moreover. "[t]he use, building, or conversion ofreal property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose." Id. 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 05/18 October 10, 2006 Page 5 This pro\'ision reflects the Supreme Court's conclusion, originally outlined in Sherbert v. Verner, 374 U.S. 398 (1963), and later reaffirmed in Employment Dtv. v, Smith, 494 U.S. 872 (1990), and Church of the Lukumi BabaluAye. lnc, v. City afHialeah, 508 U.S. 520 (1993)" that government-imposed burdens on religious exercise must be su~jected to the strictest fOTm of judicial scrutiny when they are imposed by systems of"individuaJjzed assessments," In other words, .pursuant to both the First Amendment and RLUIPA, strict scrutiny applies where burdens are applied on a discretionary, case~by-case basis, as is practically unavoidable in the zoning context. 5 Here it cannot be disputed that Tiburon makes decisions to grant or deny conditional use permits on a case-by-case basis. A denial of Kol Shofar's application to expand its place of religious assembly would substantially burden its ability to engage in fundamental religious activities. In its current facility, Kot Shofar is unable to carry out the precepts of Conservative Judaism, which require, among other things, meeting toge1her for worship, studying Torah together, educating the young, sharing with the community, and doing good works, Specifically: · Forced to violate Jewish law on Hi2h Holv Davs. Reducing or eliminating the expansion of the Multi-Purpose Room would deny Kol Shofar the ability to meet together for worship as a group, Right now, because the available worship spaces are too small, Kot Shofar members are prevented from meeting together at one time for Rosh Hashanah andY om Kippur worship, the holiest days of the Jewish religious year. . Ko) Shofar is currently forced to' hold Rosh Hashanah and Yom Kippur morning worship services a12 p.m., when these services must, under Jewish law, be over by 1 p.m, Moreover, one Kol Nidre service (the evening worship service on Yom Kippur) has to be scheduled after SWlset. also in violation of Jewish Law. ~e specific size of , the new Multi-Purpose Room was chosen so that Kol Shofar could accorrunodate approximately 700 people for High Holiday services-the minimwn necessary to avoid dual services in violation of Jewish Law, 6 ' · Kol Shofar's current relieious activities must be held in woefullv inadequate soaces. Ko.l Shofar is forced to conduct over 20 religious activities of all sorts-which are currently crammed into spaces that are woefully inadequate, The following r~ligious activities are all severely constrained, and will remain so, absent approval of the needed expansion:7 - Neshama Minyan religious worship - Shabbat Family religious worship S See, e.g..' Freedom Baptist Church v. Township of Middletown, 204 F. Supp. 2d 857, 868 (E.D. Pa. 2002); Cottonwood Christian Ctr. v. Cypress Redev. Agency~ 218 F, Supp, 2d 1203, ]221 (C.D. Cal. 2002). 6 TIle late services on Rosh Hashanah and Yom Kippur also have to be shortened. making those who are forced to attend at Ulose times second:-elass members. In addition, dual services place an enonnous stress on the clergy as we)) as the lay leadership of Ko! Shofar. 7 It bears repeating that Kol Shofar seeks to expand its buildings to meet existinlZ needs, not in anticipation of becoming a "mega-synagogue" as some ofKol Shofar's opponents have claimed. Since all of these activities have been a part of the congregation's religious exercise for years. it is hard to argue that contiuuing them-albeit in a space that can actually accommodate them-will increase traffic to the site. In fact, consolidating the two sets of High Holy Day services into one should decrease the amount ofthne that traffic is entering and exiting the site. l~/l~/L~~b lL:lH LI1L-~!:Jb-~~~~ IHt.. l;t..CKt..l foUND ~A\":)t. ~ 1/ 1 tj October 10, 2006 Page 6 - Sunday religious school worship (with 250 children Ko} Shof~r needs at least two different rooms for worship) Shabbat spiritual movement and practice group - ShabbatFriday evening CommWla1 and family dinners - Kiddush (post-worship collations and IWlcheons) on Shabbat and festival days - Passover Seders - Chanukah candle-lighting and communaJ dinners - Yom Kippur communal break-the-fast meal - Religious school assemblies Adult religious education classes (Kol Shofar has over 100 adults participating in adult classes and programs on Sundays and 50-75 adults on Wednesdays) - Purim Schpiel (a religious holiday theatrical presentation wi1h 350 people in attendance) - Purim Carnival for children - Ritual Fair for adults and children (200 adults and children participate in a 3 hour fair to learn how to do a variety of Jewish religious rituals) - Bridges to Israel religious educational lectures (over 100 people in attendance once a month) Luncheons for Seniors - Sunday Hot Lunch Program for the homeless Most of these currently-existing religious activities would be held in the new Multi-Purpose Room, Since many of these programs go on simultaneous,ly, the new Multi-Purpose Room has been designed to be di vided so that they can go on at the same time without interference. In the current inadequate facilities, some of these programs end up interfering with one another. Moreover, the new Multi-Purpose Room can be divided so that more than one religious ceremony canoccut at the same time. All of these features will enable Kol Shofar to meet the requirements of Conservative Judaism. · Kat Shofar cannot educate its members adeQuatelv. A denial of the full space applied for would trap Kot Shofat in its current, inadequate facilities, inhibiting the religious education of its adults and children. This restriction limits Kol Shofar members' ability to comply with the command to study Jewish law, ' It also makes it harder for Kol Shofar members to live in accordance with Jewish law, or to pass their faith on to the next generation, Ko} Shofar's current facilities greatly limit the number of adult education classes that can be held. · Ko. Shofar cannot keep kosberwithout a new kosher kitchen. The laws of Kashrut require that certain very detailed procedures be followed when preparing food, Among these are certain requirements regarding the separation between milk and meat, as well as ensuring 1hat utensils are, kept apart so that they remain kosher at all times, There are vel)' specific rules about the separation distances required in a kitchen, whiCh the current kitchenette cannot meet. As Conservative Jews, Kol Shofar members are required by their faith to keep kosher, so Kol Shofar uses this kitchenette for dail)' items only. In many cases, this .means that much of the Passover and Shabbat meals (which include meat) cannot be eaten. In some instances, food must be prepared in individual homes, which means that the food is not prepared under the necessary 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 08/18 October 10s 2006 Page 7 rabbinical oversight. The planned new kitchen will provide the minimwn separation distances necessary to allow meals to be prepared at Kol Shofar, · Bar and Bat Mitzvahs and Kiddusl1luncheons cannot be properly celebrated. Kol Shofar hosts Bar and Bat Mitzvahs on approximately 30 Sabbaths ayear, and usually has abou1250-300 people in att.endance at those services. Moreover~ onShabbat afternoons after worship Kol Shofar serves a kiddush luncheon. In the current social hall, this means that everyone must stand at the luncheon and, even so, the crowd spills out into the hallway or other rooms. Most importantly. there is little room for the elderly to sit down. The new Multi-Purpose Room allows space for ~l the' attendees to sit down during the luncheon. · KolShofarmembers are prevented from celebratin2weddio2s in their spiritual home. Kol Shofar members celebrate about 8-10 weddings every year. Over the past ten years only five weddings have been held'in the sanctumy, the religious home of the cou.ples getting married. This is.due to the current space restrictions, which means that no wedding dinner can beheld the social hall because the kitchenette is inadequate and there is not enough seating for guests. With the.new Multi~Purpose Room Kol Shofar will be able. to tellaB of its engaged couples that they can be married in their own sanctuary and/or host their wedding reception in their own synagogue. Jewish halakhic literature states that a wedding meal is a "seudat mitzvah," a meal of religious obligation, since it is a religious obligation for the community to rejoice with the bride and groom. See Seudat Mitzvah entry in the Encyclopedia Judaica, · .schedule restrictions enact a de facto ban on Saturday weddio!!s and bar/bat mitzvahs. Under the Jewish law governing Shabbat, set-up for receptions and other celebrations may not begin on Saturday evenings unlil 45 minutes after dark because it constitutes work. During May-September, Shabbat ends much too late for there to be any weddings or bar/bat mitzvah celebrations. During most of the remaining seven months of the years set-up for celebrations may not begin lUltil 7 p.m. Prohibiting all activity on the site after 9 p.m. thus makes any celebration completely untenables and severely inhibits Kol Shofar's ability to observe these religious celebrations. · Social outreach_ includinl! social aid~ is inhibited bv space and time restrictions. Conservative Jews believe in serving the communitY they live in. But imposing onerous time and space restrictions interferes with Kol Shofar's religious mission of communicating its message to the community, hosting comrrnmity meetings and events, and engaging in social action programs in the community. Kol Shofar carmot share with others as freely as it would like because it is trapped in an inadequate, aging facility. Forcing Ko] Shofar to remain in the straitjacket of its current facilities does not allow its members to live out their Jives in accordance with the truths of Judaism. They should not be substantially burdened by a government prohibition on expanding to accommodate their current religious exercise.8 S inee Kol Shofar has applied for the minimum space necessary to meet these 8 The synagogue's opponents argue that Kol Shofar submitted no evidence concerning burden at the hearings and therefore cannot raise RLUlP A at this junclure. Opponents' Letter at pp. 23-24. But RLUIP A does 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 09/18 October 10, 2006 Page 8 religious needs. the COWlciJ must, under RLUIP A, approve the entire square footage applied for. Courts have repeatedly f01md that denying the members of a religious body the ability to expand to meet the needs of that group constitutes a substantial burden on religious exercise. For example,. a federal court held that a denial of a permit for expanding a Jewish school in a residential neighborhood "hinder[ed) and significantly interfer[ ed] with the religious education and practice of current students," finding a substantial burden violation under RLUIPA. Westchester Day School v. Village of Mamaroneck, 417 F.Supp.2d 477 (S.D,N.Y 2006).9 Notably. space constraints did not comnletelv prevent the plaintiff from carrying out any religious activity at th~ site, but rather forced the school to curtail and to choose among its religious activities. ld. The sarneis true for Kol Shofar, Similarly, LiVing Water Church of God v, Charter Township afMeridian, 384 F.Supp.2d 1123 (W.n. Mich. 2005), is indistinguishable from the situation here. In that case the trial court held that denying a CUP to expand a church.s Christian school substantially-burdened religious exercise. That school, like Kol Shofar, was tmable to adequately "practice its religious beliefs in its current location because the facilities are too small for the needs of the congregation and staff..'. Living Water, 384 F,Supp.2d at 1333. As in Westchester Day, the plaintiffs were able to carry out some religious exercise on their property, but some of their religious exercise was substantially burdened. Id. KoI Shofar is also able to conduct some religious exer~ise now, but is now substantially burdened just as the church in Living Water Church was, and will remain so unless you approve what Kot Shofar has requested: the bare minimum, in both space and time, it needs to cond\lct its religious exercise. The decision in. Cottonwood Christian Center v, . Cypress Redev, Agency, 218 F.Supp.2d 1203 (C.D. cat. 2002)1 a case we litigated, is .also instructive. There, the court fOWld a substantial burden where the city refused to grant a CUP for a new church that was needed because the church had outgro~'l1 its existing facility. Like Ko] Shofar, the inadequate she of the Cottonwood church impeded and prevented it from carrying out various religious activities, Id. at 1212, Just as space constraints prevented Cottonwood Christian from conducting outreach to potential new members, id. at 1212, KoJ Shofar faces space constraints for current and inc9ming members and students. Cf Westchester Day, 417 F.Supp,2d 494-95. Cottonwood Christian also faced difficulty in conducting its daycare minist!)'l itswomen's ministries, and various adult classes. Cottonwood, 218 F.Supp.2d a1.1212. Kol Shofar has faced similar difficulties, since lack of space inhibits its ability to provide religious educatIonal classes not require tbe religious assembly or institution to submit evidence on burden as part of a CEQA process-the focus is on the result of the relevant land regulatol)' process. And we are unaware of any case holding that a civil rights plaintiff waived its rights under RLUTP A because it had failed to raise the claim before the government defendant rendered a rmal decision resulting in the burden. hl any case, there is in fact evidence ill the record about why Kol Shofar needs to expand. Moreover. ifthe Council requires more infonnation about the burden on KoJ Shofar's religious exercise were no pennit to be granted1 Kol Shofar is willing to provide furtheJ affidavits and other testimony alJout such burdens. ' . 9 , Kol Sllofar I s opponents claim that the Westchester Day decision "has been appealed to the First Circuit... ." Opponents' Lener, pp. 25-26 n. 118. Aside from the fact that the Westchester Day appeal is to 'the Second Circuit, not the First Circuit, this point betrays a lack of understanding of the federal appellate sy stem. Federal courts of appeals do not have discretionary appellate jurisdiction-they must hear every appeal, no matterhow frivolous. The Westchester Day decision is thus good precedent, and something you should take into account. 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 10/18 , October 10, 2006 Page 9 and cOW1seling for its members and students. Cf Westchester Day, 417 F.Supp.2d 490-94. Thus, the burden here is at least as "substantial" as that in Cottonwood and Westchester Day. Nwnerous other courts have likewise fOlmd asubstantial burden where the government denied a zoning permit that prevented religious exercise at a particular piece of property: . DiLaura v. AnnArbor Charter Township, 30 Fed. Appx. 501 (6th Cir. 2002): Finding a substantial burden under RLUIP A where the town denied a variance to allow the plaintiffs to use a particular property in the township as a religious retreat center. The Court held that preventing "gatherings of indiyiduals for the purposes of prayer (the activity [sought by the religious landowner)) is a use of land constituting a ~eligious exercise that is substantially burdened," Id, at 509. Notably., the Court held that the burden existed even though the plaintiffhad the option of applying for a CUP after the van ance was deni ed. · Ch urch of the Hills v. Township ofBedminster, 2006 WL 462674 (D.N.J. Feb. 24, 2006): Allowing RLUIP A substantial burden claim to go forward where variance denial , prevented 'ch urch from meeting toget~er as a body, partiei paling in necessary ministries, and being accessible to its congregation. . Castle Hills First Baptist Church v. Castle Hills, 2004 WL 546792 (W.D.Tex. 2004): Denying city's motion for summary judgment on substantial burden cl~m, where city refused to accept and grant zoning permit application to use existing c~urch property for its religious school. ' . Hale 0 Kaula v. Maui Planning Comm 'n, 229 F.Supp.2d 1056 (D,Haw, 2002): Allowing RLUIP A substantial burden claim to go fOJward. where county 'denied church SUP to expand ,bllilding to allow needed religious activities. · Elsinore Christtan Centerv. City of Lake EL'iinore, 291 F.Supp.2d 1083 (C.D.Cal, 2003): Finding substantial burden where city denied a CUP to allow church to move from existing inadequate facility to a new property. The Ninth Circuit affirmed this part of the district court's opinion, but reversed its ruling that RLUIPA was Wlcoristitutional. See Elsinore Chr.istian Center v. City of Lake Elsinore, 2006 WL 2456271 (9th Cir.Aug. 22, 2006) (mem.) · Greater Bible Way Temple v. Jackson, 2005 WL 3036527 (Mich.App, 2005): Finding substantial burden where the city prohibited the church fro~ adding a ministry building for the elderly and disabled near existing church property. · Shepherd Montessori v. Ann Arbor, 675 N.W.2d 271 (Mich.App. 2003): Allowing substantialburden claim to go forward where township denied variance to allow plaintiff to operate religious school adjacent to religious daycare. 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 11/18 October 10, 2006 Page 10 . Jesus Center v. Farmington Hills, 544N.W.2d 698, 703-704 (Mich.App. 1996): Finding substantial burden in denial of application to run a homeless shelter on church property where that action "flow[ ed] from [J religious beliefs and [was] aq. exercise of those beliefs." . Alpine Christian Fellowship v. CounlyComm 'rs, 870 F. Supp. 991,994 (D.Colo. 1994): Finding substantial burden under Pree Exercise Clause where County denied a SUP to allow church to operate a religious school on its property. [d. ("[g]iven the importance of religious education to... the Church, the importance of conducting the school within the church building is self evident.") · First Covenant Church v. Seattle, 840 P.2d 174 (Wash. 1992): Finding substantial burden under Free Exercise Clause where landmarking law imposed severe financial burdens upon the church and prohibited alteration of the church building. These examples bear out what Judge Posner emphasized in the leading Seventh'Circuit RL VIP A land use case: burdens on religious exercise need not be "insuperable" to be "substan1ialH Wlder RLUIPA, Saints Constantine & Helen Greek Orthodox Church, Inc, v, City a/New Berlin, 396 F.3d 895, 900-901 (7th Cir. 2005), Even "delay, uncertainty; and expense" can constitute a substantial burden. ld. Although the Ninth Circuit has not ruled directly on a RLUIP A expansion case, in Guru Nanakit cited both Westchester Day and Living Water Church with favor, agreeing that the governm~ntallimits on expansion in those cases constituted substantial burdens.1o Guru, 456 F.3d at 991. Guru also noted that courts should also look to the religious plaintiff's history of planning applications, as well as its prospects for future ability to exercise its beliefs within the jurisdiction. During- the 22 years it has worshipped in Tiburon, KolShofar has never asked for permission to expand, even as its membership grew. In its only request, Kol Shofar designed its expansion to have minimal impacts on others, and throughout the process has offered alternatives and options for moving fonvard in response to the concerns expressed. In fact) Kol Shofar has asked for the minimum necessary to meet its religious needs. Like the temple in Guru, it also agreed to all of the mitigation measures set forth in the EIR. The Planning Commission's response was to deny the perinit outright, finding that no mitigation was possible. Under Tiburon's Zoning Ordinance, this means Kol Shofar will be stuck in its aging, W1renovated facility for at least a year before it can apply for another pennit. Tiburon Zoning Ordinance, 9 16-4.4.14. And since "the reasons given for the reasons given for ultimately denying these appJi cations" won't change in fu~e years, Tiburon has already "to a significantly great extent lessened the possibility that future CUP applications would be successful." Guru, 456 F.3d a~ 989 (citing Saints Constantine & Helen, 396 F.3d at 899-900). Nor is there any other site in Tiburon, or for that matter in southern Marin County, where Kol Shofar could be expected to move. ' Throughout their letter, Kol Shofar~s opponents state-erroneously-that becauseKol Shofar did 10 Kol Shofar's opponents, apparently in an effort to disparage its holdings. dub Westchester Day an "East Coasf' opinion, Opponents' Letter at p.25. Since the Ninth Circuit directly relied on Westchester Day in Guru, it is relevant to your determination, regardless of the coast it's on. ,10/113/20136 12:18 2132-955-1313913 THE BECKET FUND PAGE 12/18 ' October 10, 2006 Page 11 not agree to a stipulation on mitigating conditions, it cannot complain Wlder RLUIP A. This is a red herring, Zoning proceedings are not contractual negotiations where the government haggles with the appli cant in an effort to reach a deal. They are regulatory proceedings where the government must fairly apply pre-existing rules to an applicant. The Planning Commission's final decision onKol Shofar's appli cation was not conditional approval, it was complete denial"-no renovation, no expansion, and no ability for its members to hold bar and bat mitzvahs and weddings. If this dispute ends up in federal court, the judge will not be evaluating what might have been if Kol Shofar had been coerced into a stipulation, she will be evaluating the effects and fairness of the complete denial of the permit appli cation. Moreovet, contrary to KolShofar's opponents' assertions, Kol Shofar attempted to accommodate neighbors' concerns~ and even submitted multiple alternative designs. See, e.g., .FEIR 3. Like the Sikh temple in Guru, the Jewish day school in Westchester Day, and the church in Living Waters Church, Kol Shofar cooperated with planningstaffthroughout. Of course this cooperation need not be so absolute that the reiigious plaintiffhas to give up its religious exercise in order to cooperate with the implacable demands of neighbors. See Guru, 456 F.3d at 991 n.19 (temple's "predicament" caused by neighbor sentiment that "[NJo family wants to live near a religious temple with all the excessive crowds, traffic, and noise"). The overwhelming weight of authority under RLUIPA thus demonstrates that Kol Shofar's religious exercise is s:ubstantially burdened by the Planning Commission's absolu1e refusal to allow it to renovate and expand its building, or to meet together for worship and other religious ceremonies. Moreover, on these facts, any limitation you might impose, even if it is short offull denial, would also violate the law. Kol Shofar's application is for the minimum necessary to enable 10 conduct the religious exercise Conservative Judaism requires it to do. Attempting to reduce that irreducible minimwn would create just as much asupstantial burden as the Planning Comnrission)s outright denial, The Town's Asserted Inte,'ests Do Not Justifv Denial of Ko) Shofar's Auulication We are not aware of any interests that the Town might have sufficient to impose such substantial burdens on the applicant's religi ous exercise. RLUIP A and the Fint Amendment provide that the state may only substantially bunJen religious exercise when the imposition of such burden is the least restrictive means of furthering a compelling novemment interest See 42 U'.S.C. ~ ZOOOcc. Courts have repeatellly held that "in this highly sensitive constitutional area, 'only the gravest abuses, endangering paramount interests, give occasion for pennissible limitation. ", Sherbert v. Verner, 374 U.S. 398, 406 (J963); Wisconsin v. Yoder, 406 U.S, 205,215 (1972) ("only those interests of the highest order and those not otherwise,served can overbalance legitimate claims to the free exercise of religi on. "). Courts scrupulously follow the Supreme Court's instruction to classify only "paramoW11 interests" of ''the highest order" as worthy of burdening religious exercise.l1 Compelling. interests are the kinds of interests that allow governments to discriminate among races, suppress speech, or sterilize people. See, II See Sherbert, 374 U.S. at 40 (protecting public safety and order); Nat'l Treasury Emplayees Union v. Von Raab, 489'U.S, 656, 677 (1989) (avoiding disclosure of sensitive governmental infonnation); Skinner v. Ry. Labor Executives' Ass'n, 489 D,S. 602. 633 (1989) (railway safety),' u.s. v. Lee, 455 U.S. 252, 260 (1982) (compulsory participation in the Social Security system); Warsoldier v. Woodford, 418 F.3d 989, 998 (9th Cir. 2005) (prison security a compelling govenunent interest under RLUIPA), 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 13/18 October 10, 2006 Page 12 e.g., City ofRichmondv.JA. Croson Co., 488 D,S. 469 (1989); Texas v.Johnson, 491 U.S. 397 (1989); Skinner v. Oklahoma ex rei. Williamson, 316 D,S, 535 (1942).12 , From our I~evjew of the record, we Wlderstand that the Planning Connnission based its denial on noise, traffic, headlight intrusion, and compari bility with the neighborhood. However, courts have repeatedly concluded that noise, traffic, and aesthetics, though legitimate concerns for a municipality, do not meet the high threshold of a "compelling" government interest. 13 Nor does the bare assertion by the 12 In the land use context, compelling interests have been described as those in preventing "a clear and present; grave and'immediate danger to public health, peace and welfare," First Covenant Church of Seattle v. Seattle, 840 P.2d 1.74,187 (Wash. 1992), such as fire safety and occupancy limits. See, e.g., Antrim FaithBaptist Church v. Comm011weaJth, 460 A.2d 1228, 1230 (.Pa,Cmwlth, 1983). . 13 See, e.g., Whitton v. City afGladstone, 54 F.3d 1400, 1408 (8th Cir. 1995) ("[A) mw\icipality '5 asserted interests in traffic safety llud aesthetics; while signific811t, have never been held to be compelling.")~ Cilrry v, Prince George's COW'!ty, Md, 33 F, SUppa 2d 447, 452 (D. Md. 1999) ('Ag8in, while recognizing aesthetics and traffic safety to be 'significant government interests: Ilone of these courts found those interests sufficiently compelling to pass the applicable strict scrutiny test."); McCormack v. Township of Clinton. 872 F. SUPPa 1320, 1325 n.2 (D.NJ:1994) ('[N]o court has ever held that [aesthetics and traffic safety] form a compelling justification for a content-based restriction on political speech"); Village of Schaumburg v. Jeep Eagle Sales Corp." 676 N.E.2d 200, 204(111, App. 1996) (finding that U[t]raffic safety and visual aesthetics are not the sort of compelling state interest required to justify a content-based restriction on expression~.)~ National Advertising Co, v. City of Orange, 861 F.2d 246, 249 (9thCir. 1988) tinterests in traffic safety and aesthetics, while (substantial: fell shy of 'compelling, I); Loflus v. Township of Lawrence Park. 764 F. SUpPa 354, 361 (W.D. Pa. 1991) (we doubt that aesthetics or residential quietude is sufficiently compelling to ever justify a content-based restriction.. . on freedom ofexpressioll"); Love Church v. Evanston, 671 F. Supp. 51 S, 519 (N~D. lll.I987), vacated based on standing, 89'6 F.2d 1082 (7th Cir, 1990) ('"'While traffic concerns are legitimate. we could hardly call them compelling."); American Friends ofSocy of St. Pius v.Schwab, 4]7 N.Y.S.2d 991,993 (N.Y.A.D. 1979) (" [C)onsiderations of the surrounding area and potential traffic hazards, , . are outweighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public benefit and welfare which i's itself an attribute of religious, worship in a community,"); State ex rei. Tampa Company of Jehovah's Witnesses, etc. v. Tampa, 48 So, 2d 78,79 (Fla. 1950) ("TIle contention that people congregating for religious purposes cause such congestion as to create a traffic hazard has very little in substance to support it. Religious services are normally for brief periods two or three days in the week and this at hours when traffic is at its lightest."); New Hope Baptist Church v. City of Hack en sack, No. L-2873-03, at 35-36 (Super. Ct., Bergen Co, N.J. Oct. 22,2003) (asserted interests concerning traffic and parking - as a basis for denying church permit - are Rot compelling under RLUIPA); Dimmitt V. City of Clearwater, 985 F.2d 1565, 1569-70 (11th Cir. 1993) (holding 'that "interest[) in aesthetics , . . is not a compelling government interest"); XXL of Ohio, Inc. Commerce v. City of Broadview Heights, 341 F,Supp.2d 765, 789-90 (N.D. Ohio 2004) (internal citations omitted) (rejecting uaesthetics" and protection of "neighborhood character" as a compelling government interest); Castle Hills, 2004 WL 546792, at "'16 (W.O. Tex. 2004) (preserving neighborhood privacy concems not a compelling government interest); Ohio Citizen Actionv. City of Mentor- On- The-Lake, 272 F.Supp.2d 671,685 (N.D. Ohio 2003) (interest in protecting residents. privacy did not rise to the level of compelli~g interest); Cottonwood, 218 F. Supp. 2d at 1227-28 (purely aestltetic'hanns, such as the elimination of blight, are not compelling); King Enterprises, Inc. v. Thomas Township, 2002 WL 1677687, at * 18 (E.D. Mich, 1002) C' Although 'safety I and 'aesthetics' are substantial govenunent interests, they are riot compelling.. . ."); Open Door Baptist Church v. C/arkCounty, 995 P.2d 33, 41 (Wash. 2000) (furthering "aesthetic and cultural interests" is not a compelling interest); Keeler V. Mayor of Cumber/and, 940 F. SUppa 879, 886 CD, Md. 1996) (holding that such important interests as safeguardillg the heritage ofa city and fostering civic beauty are not compelling); A Ipine Christian Fellowship, 870 F. Supp. at 994 (holding that avoiding additional "noise impacts" of religious school not a compelling interest) ~ Society of Jesus v. 10/10/2006 12:18 202-955-0090 THE BECKET FUND PAGE 14/18 October 10, 2006 , Page 13 Planning Commission or Kol Shofar opponents that Ko} Shofar's expansion would be incompatible with the sUITOlmding residential neighborhood provide a sufficient' reason to substantially burden the Congregation's religious exercise. Under Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, 126 S. Ct. 1211, 1220 (2006), this sort of "mere invocation;' of broadly defined interests "cannot carry the day." Id, 126 S. Ct. at 1221. See also Stuart Circle Parish v. Board o/Zoning Appeals, 946 F. SUppa 1225, 1239 (E.D. Va. 1996) ("compatibility ofland uses" would not be a compelling government interest sufficient to support racial classifications, so it cannot support "a substantial burden on the free exercise of religion.'). 14 Not a single court has ever held that such aesthetic concerns constitute a compelling government interest. Again, we direct your attention to the rec~nt Westchester Day School case which held that asserted "traffic, parking, aesthetics, drainage and public concem[ s] . . . do not bear the necessary substantial relation to public health safety or welfare." 417 F.Supp.2d at 564. , The record also reveals that the Planning Commission's proffered reasons were dubious at best (for example, comparing projectmaximmn noise levels to ambient background noise levels rather than pre-existing maximum noise levels). The worst example is the Planning Commission's pootstrapping of ~ observed turnaround Hadjacent to a residential driveway" (FEIR 27) into "1.D1safe turnarounds" that endangered children, Tiburon Planning Commission, Res. No. 2006-16, p. 14. There are many other examples that would be probed fully in discovery and before ajury. By openly putting its thumb on the scales and making findings additional to and different than those in the EIR based on the flimsiest of evidence, the Planning Commission demonstrated bias against Kol Shofar, or at the very least an attempt to bullet-proof a decision it had already determined to make. In 'addition, there are a myriad of ways to address legitimate concerns absent a flat refusal to permit Kol Shofar to expand its use for religious assembly Wlder any circumstances. For example7 the mitigation measures described in the EIR would be less restrictive means than denying Kol Shofar the space and time it needs. Refusing Kot Shofar's request-already at the bare minimum necessary- would certainly not be considered the "least restrictive meanst, of achieving a proffered compelling interest. Accordingly, a denial ofKol Shofar's application would v.iolateRLUIP A's Substantial Burdens provision. ' Denvin!! KoJ Shofar's Application Would Violate RLUIP A's Non-DistJimination Provision RLUIPA's non-discrimination provision provides that "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion' or religious denomination," 42 U,S.C. ~ 2000cc(b)(2). Every,house of worship in Tiburon Boston Landmarks Comm.,.5 64 N .E. 2d 571) 574 (Mass. 1990) ('The government interest in historic preservation, though worthy, .is not sufficiently compelling to justify restraints on the free exercise of religion, a right of primary importance."). See also Congregation Comm. v. City Council afHa/tom City, 287 S'.W,2d 700, 704-05 (Tex. Civ. App.1956) ("Neither is mere inconvenience to neighbors, . . a valid reason to deny a church the right to exist in a residential district. It is hard to visualize a church being constructed In a residential district without inconveniencing someone. To restrict churches to areas where no one will be inconvenienced would be, in effect. excluding churches from residential districts:'). " . ' 14 See also Kikumura v. Hurley, 242 F.3d 950, 962 (lOth Cir, 2001) ("[A) coun does not consider the [policy] in its generaJ application, but rather considers whether there is a compelling government reason, advanced in the least restrictive means, to apply the (policy] to the individual claimant."). 1B/10/20B5 12:18 2B2-955-BB9B THE BECKET FUND PAGE 15/18 October 10, 2006 Page 14 (other than Kat Shofar) is Christian, IS but those houses of worship have not been subjected to the same procedure, or the same standards, as Kol Shofar, To deny Kol Shofar~s application for its first expansion ever during the 22 years it has been in Tiburon, while Christian churches are allowed to expand at will creates aprirnafacie Non-Discriminationc1aim under RLUlPA. This is especially so because the Planning Commission's decision was in part based on <<inc{)mpatibility'~ with the neighborhood. The prime example of this discrimination is the comparison with the expansion ofSt. Hilary~s, approved on~y aJew, years ago. A federal jury would need to determine whether Kol Shofar had been treated worse than 81. Hilary' 5, which is located in the same RD-] zone, and judged by the same CUP standards, but was allowed to build bC?th anew gymnasium and an additional expansion of25,OOOsquare feet. Since 81. Hilary's was allowed to renovate and expandt but Kot Shofar Wa$ not, a reasonable jury would'haveiittlechoice but to find that Tiburon violated RLUlPA by discriminating againstKol Shofar. In their lettert the synagogue's opponents argue that the 81. Hilaryts expansion was d~fferent,but of , course that would be for the trier of fact to decide, in this case a federal jury. 16 Denvin~ KG] Shofar's ApulicatiGn Would Violate RLUIPA's EQual Tenus PI4ovision RLUIP A's Equal Terms provision bans "treat[ing] a religious assembly or institution on less than equal terms with a nonreligious assembly or institution, 42 V.S.C. ~ 2000cc(b)(1). RLUlPA thus mandates that religious institutions can be treated no worse than any nonrelie:iGus assemblv under zoning law, Here~ it is clear that some nonreligious assemblies within Tiburon's jurisdiction have been tJ:eated on better terms than Kol Shofar. For example:> Tiburon has granted CUPs to both the Tiburon Peninsula Cl u b and the Lodge at Tiburon to increase their,square footage, but has not forced ei ther to go through the same EIR procedures or meet the same standards that were imposed on Kol Shofar. Other, assemblies were granted CUPs long ago or were never subjected to the CUP process or its standards. These places of assembly include the Richardson Bay Audubon Center and Tiburon's Town Hall. Federal litigation ofKol Shofar's Equal Terms claim would focus on whether Tiburon applied the same exacting procedures and standards to those entities as it has to Kol Shofar. Since it hasn'tt Tiburon will commit a RLUIP A violation if the Planning Commission's decision is allowed to stand,l1 DeJivin~ Kol Shofar's ADolication Would Violate Both the Federal and California . Constitutions For the same reasons it violates RLUIP A, the Planning Commission's decision also violates Kol 1.5 RLUIPA comparators would include Sl. Hilary's Catholic Church, Community Congregational Church, Shepherd of the Hills Lutheran Church, and Tiburon Baptist Church, ., 16 Since other churches in Tiburon were also allowed to undermke m~jor renovations without undergoing the EIR process, their approval processes and the standards applied by Tiburon wouJd also need to. be explored in RLUIP A litigation, 17 For the same reasons, this discrimination in favor of non-religious assemblies would violate RLUIPA's Exclusions and Limits section, because it "unreasonably limits religious assemblies, institutions, or structures within ajurisdiction." 42 U.S.c. ~ 2000cc(b)(3). 10/10/2005 12:18 202-955-0090 THE BECKET FUND PAGE 15/18 ' October 10, 2006 Page 15 Shofar~s (and its members ') rights to freedom of speech, freedom of association, and freedom of religion under the United States Constitution, and the even broader protections of California Constitution, Article I, Sections 1-4. For example~ by preventing Kol Shofar's members from assembli.ng together for worship, Tiburon is violating their First Amendment right to assemble and associate with one another. It is worth briefly pointing out that, in their letter, Kol Shofar's opponents completely misunderstand one of the First Amendment counts that would be available to Kol Shofar in a federal lawsuit. The "unbridled discretion') doctrine has nothing at all to do with whether the. Planning Commission was meticulous or not; it has everything to do with whether the Town's ordinances give the Planning Commission too much leeway in making decisions that affect First Amendment rights. Ordinances "must avoid placing unbridled discretion in the hands of government officials." G.K. Ltd. Travel y. City of LAke Oswego) 436 F.3d 1064, 1082 (9th Cir. 2006) (citing FWIPBS, Inc. v. City of Dallas, 493 U.S. 215) 225-26 (1990)). In FW/PBS, the Supreme Court reiterated its well-settled unbridled discretion jurisprudence as follows: [A)n ordinance which... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -as by requiring a permit or license which may be granted or withheld in the discretion of such offi cial - is an Ullconstitutional censorship or prior restraint upon the enjoyment of those freedoms. FWIP BS.lnc., 493 U. S. at 225-26. To withstand a constituti onal challenge, the ordinance must provide "narrow, objective, and definite standards to guide the licensing authority," Kreisner v. City of San Diego, 1 F,3d 775, 805 (9th Cir. 1993). , , Tiburon's zoning ordinances make Kol Shofar's "peaceful enjoyment" of its First Amendment rights "contingent upon the uncontrolled will" of the Planning Commission (and this Council) by faihng to provid.e "narrow, objective, and definite standards" to guide either body. Tiburon's Zoning Ordinance includes bro&I;subjective, and fndefinite standards such as "properly related to the, development of the neighborhood as' a whole~~ "reasonably compatible with the types of uses normally permitted in the surrounding area"; "adequate facilities and services required for such use"; "reasonably assure that the basic purposes oftrus chapter and 'the objectives of the general plan would be served"; and "whether the town is adequately served by similar uses." Tiburon Zoning Ordinance ~ 16-4.4.2. Each of these "standards" is in eye of the' beholder. Since that beholder is the Planning Commission, Tiburon has given unbridled discretion to governmental officiaJsover Kol Shofar's First Amendment rights. ~e Town Council Can Take Advanta2e ofRLUIPA's Safe Harbor Provision RLUIP A grarits mUnicipalities discretion, via a safe harbor provision, to take measures to avoid applying their land use ordinances in such a way as to violate the Act. Specifically, Section 5(e) of RLUIPA provides: Governmental discre1io'n in alleviating burdens on religious exercise A government may avoid the preemptive force of any provision of [RLUIP A] by changine the policv or practice that results in a substantial burden. on religious exercise, by retaining the 10/10/2006 12:18 202-955-0090 THE BECKET FUND PAGE 17/18 October 10, 2006 Page 16 policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for appli'cations that substantially burden religious exercise~ or by any other means that eli minates the substantial burden. 42 V.S,C. 2000cc-5(e) (emphasis added), Here, the Council may take advantage of this safe harbor provision-and avoid the violations of RLUIPA discussed above-by using its discretion to lift the burden on Kol Shofar's religious exercise and approve the Congregatjon~s application for a conditional use permit. IS Again, complying with federaJ law would trump any claims based on state laws like CEQA. Conclusion We urge the Council to approve Kol Shofar's pennit application. It's not only the law, it's also what's fair, We welcome any inquiries. Sincerely ~ The Becket FUnd for Religious Liberty jr~~~ Derek L. Gaubatz, Esq. Director of Litigation ~12~ Eric Rassbach. Esq. Legal Counsel Cc: Ann R Danforth, Esq. Gary Ragghianti, Esq. 18 The Council could, for example, approve Alternative 7 as one method of taking advantage of the , RLUIP A safe harbor, since Alternative 7 provides KoJ Shofar with the mmimurn amounts of time and space needed to meet its religious requirements. I~ EXHIBIT 10/11/2005 14:50 15102355524 COLECTG t""HI,,:lt:. 0": . ~ ~~~~:!~~~~~~~!~~I~~N~~21~P ~ ~o~ ~I~:S~ ~ October 11,2006 PLANNING DIViSION TOWN at T!L~UF10N Mr. Scott Anderson Director of Community Development Town of Tiburon 1505 Tiburon Boulevard T1.buron, CA 94920 Dear Mr. Anderson, CrRu.e Transportation Group (CTG) has reviewed the materials sent to us in your September 28,2006 transmittal. We understand. that the Town requests erG's opinion of the efficacy of mitigation m.easures put forward to d.ate related to the ''unsafe tumaround'~ impact identified in the Kol Shofar Project EIR: (l) the UParking Receipt Program!) proposed in the FEIR, and (2) th.e replacement mitigation measures involving signage that were recommend.ed by Town. Staff after. concluding that the UParking Receipt Program" would be infeasible or ineffective. These measures wete set forth in the draft Resolution of approval (Exhibit 6) to the April 24, 2006 Staff Report to the Planning Commission.. We understand that the following is applicable to botb mitigati<?n measures; . Kol Shofar 3:pplicants' site plan change to allow ingress at tho Kot Shofar Via Los Altos driveway, Ot1.Jy) and egress at the Kol Shofar Rcedland Woods Way driveway, only. ' The following defin.es and evaluates the mltigation measures in question: (1) Parking Receipt Progra.m, This program was defined in the Kol Shofar Final EIR as mitigation for Impact 3.3-C: The project will creale a demand for more parking spa.ces than can be mer. by on- site pa1'ki71g l6ts which will result in drivers who park on local streets making unsafe turnarounds in residential neighborhoods. 545 BURNETI AVe · SUITE 101 . SAN FRANCISCO, CA 94131 . 415/2B2'965~XHIBIT No.L 10/11/2006 14:513 151132365524 COLECTG PAGE 03 ~ .:;,r-: The parking receipt program is defin.ed in the Final EIR as follows: Require people attending new proposed events on weekend afternoons/evenings and Monday through Thursday IIspecial events 1'1'0 produce a receipt that they have parked on the sUe or in an approved offsite parking lot. Kol Sh.ofar wi/I staff the parking lot to give people the parking receipt and staff the door to ensure that attendees have a receipt. The Town will monitor the program. Ko/ Shofar will place $1,000.00 (or whatever amou7tE deemed appropriate by the Planning Commission) on account to be drawn upon by the Townfor use in a tandom (un,announced) monitoring afthese events.lfho violations are detected during monitoring in the first year, only on.e monitoringper year will be required in subsequent years. If one violation occw's in. any year, monitoring will be conducted 5 or 6 rimes per year the following year. If there are no violations during that year, then monitoring can return. to a once a year schedul~: If two violations occur during the first year or years when multiple monitoring is done, Ko! Shofar will be required to conduct patrolling and placing signs warning people not to park on the street during new proposed events. If two ormore violations occur after the year when tow violations were identified, then the Town can revise the Conditional Use Permit to allow fewer events and/or attendees at those events or require additional measures aimed at reducing on-street parking during the target events. CTG evaluation: We agree with Town staff and the Planning Commission that the .'parking receipt progr.amu raises many practical questi.ons with respect to effective implementation. Such a program would be difficult to manage and monitor for the many reasons cited by the Planning Commission and other commenters, am,o,ng them: . How Bnd where will receipts be obtained? . Would the process of obtaining a receipt produce queues ofvehiclest or queu.es of ped.estrians, waiting to obtain a receipt either at or near the lot entra.nce, or in,side fue~n . . Will receipts be applicable per group or per person in 3 group? . Will in.dividuals or groups be turned away at the door if they do not have a receipt? . Will separate monitoring of on-street parking and tum-arounds accompany this program? . Will attendees be directed to a remote parking lot when the maximum attendance is reached? 10/11/06 CRANE TRANSPORTATION GROUP Page 2 of 4 Lettcrr to Scott Andenon, Town ofTiburont CA 10/11/2005 14:50 15102355524 CUL~L.:Il:l r-HU[;.. U.... ~ . How will the Town implement the monitoring? Will it be conducted by a third. party answerable to the Town? erG considers this mitigation measure to require far more d.cfmition than has thus far been provided before its efficacy can be thoroughly evaluated, and we doubt itS overall feasibility. Conclusion: The m.itigation as d.cfined above is i.n.suffi.cient to ensure no parking on residential streets and, no turnarounds) or alternatively, safe turnarounds. 'In our opinion, the traffic safety impact would remain significant and un.avoidable after mitigation. (1) Parking Mitigati.on Cbange Proposed by Town Staff After concluding that tbe "Parkin.g Receipt Program" as set forth in the EIR ~as infeasible) Town Staff recommended the fonowing replacement mitigations for FEIR Mitigation Measure 3.3-C.3: Ar a minimum, the following traffic control measures shall be taken for all new and existing events, or combination of events,. with 250 or'more participants: 1) "Resident Traffic Only" or similar courtesy sign placed on Reedland Woods Way near the .8lackfield Drive intersection and on Via Los Altos immediately east of (upslope from) the main Ko! Shofar parking lot entrance. 2) "No parking" signs placed on the east side of Reed land Woods Way north of fire hydrant 'lone near the driveway entrance to 20 Reedland Woods Way up to the property line between 20 and 30 Reedland T1'oods Way. (Equivalent mitigation for Mitigation 3.3- C.3). CTG evaluation: CTG .has concerns that signs placed along the frontages of Via Los Altos and Reedland Woods Way would n,ot provid.e sufficient control to ensure no on-.street parking and no tum-arounds in residential areas. Some examples of foreseeable proble,ms are as follows: . Some attendees m,ight not see the signs. . Some attendees might read the signs while parkin.g on-street, or after parking on- street) then choose to move the car, resulting in a turn-around on Via Los Altos, Reedland Woods Way or Blackfield Drive. . Some visitors, upon seeing the signs, might choose to park on.-street anyway to avoid having to park on site. lOll.1I06 CRANE TRANSPORTATION GROUP Page:; of 4 Letter to Scott Ander!lon~ Town of Tiburon, CA 10/11/2005 14:50 15102355524 ~ COLECTG Conclu.sion: The replacem,ent mitigation measures as recommended by Town Staff are , insufficient to ensure no parking on, residential streets and no turn.arounds, or alternatively, safe turnarounds. In our opinion" the traffic safety impact would re.main significant and unavoidable after mitigation. We hope this evaluation has been of assistance to you and your staff. Please call if you requi.re further assistance. ' Sincerely, f}:I!dl/ tv Crane Transportation Group LO/II/06 CRANE TRANSPORTATION GROUP Page 4 of4 Letter to Scott Ander!lon,.Town of Tibufon, CA PAGE 05 EXHIBIT U CONTENTS u. Correspondence received after Planning Commission denial: (1) Letter from Vista Tiburon HOA dated June 23, 2006 (2) Letter from Jerry Thayer dated July 5, 2006 (3) E-mail from Karen Nygren dated August 18, 2006 (4) E-mail from Tim Metz dated August 25, 2006 (5) Letter from John & Karen Nygren dated August 25,2006 (6) Letter from Orrie B. LeClerc dated September 4, 2006 (7) Letter from Ida Gelbart dated September 14, 2006 (8) Letter from Ron Berman dated September 21, 2006 (9) Letter from Tim Metz dated October 9, 2006 (10) Letter from Tiffany Wright dated October 13, 2006 and attached memo from Robert Harrison dated 9/12/2006 regarding additional Tiburon Boulevard/Blackfield Drive left-turn volumes LATE MAIL RECEIVED AFTER COMPLETION OF STAFF REPORT ~ . Vista Tiburon Homeowners' Association 20 - 80 Reedland Woods Way 10 - 60 Vista Tiburon Drive 32 - 44 Via Los Altos Tiburon, CA 94920 RECEIVED JUN 2 6 2006 Mayor Paul Smith Tiburon Town Council Members Town of Tiburon 1505 Tiburon Blvd Tiburon, CA 94920' TOWN MANAGERS OFFICE TOWN OF TIBURON June 23, 2006 Re: Kol Shofar Conditional UsePenrut Appli~ation /)IG~ '8}" Dear Mayor Smith and Town Council Members, This letter is being sent on behalf of the Vista Tiburon Homeowners' Association (VTHOA), a neighborhood of 22 homes immediately adjacent to and surrounding Congregation Kol Shofar. The VTHOA held a general meeting on June 21, 2006 and the overwhelming majority of homeowners voted in favor of sending the following letter to the Town Council: The proposed Kol Shofar expansion is too ambitious for our neighborhood. The negative impacts which would result from the project and its proposed use include an increase in traffic, noise, lighting and glare, late hours of use and lack of sufficient parking. ' TheJig-ht-ano-noise-..w.ould-bc~~ptabl~4istur-han€e-at--aig~wet-neighberbooo-w~e--ch:ildren----- '.' .~. need their rest and residents most need and appreciate the privacy of their homes. The increase in the number of events and the number of people using the facility would bring more traffic into our neighborhood, particularly at times when our children are out playing on weekends and in the eveningS. The lack of adequate on-site parking would force more vehicles to park on our neighborhood streets. The combination of increas'ed traffic and unsafe turnarounds caused by insufficient on-site parking puts' our .children's safety at risk. Kol Shofar's proposed expansion is incompatible with the well~establishedresidential setting. Furthennore, the negative, impacts created by the proposed expansion are inconsistent with the Tiburon General PIan and Zoning Ordinance~ Residents of Reedla.nd Woods Way, Vista Tiburon Drive and Via Los Altos have located their families in Tiburon because of its qUiet and safe suburban nature. The Planning Commission's lengthy and thorough two year hearing process of the Kol Shofar application .led them to the' conclusion that the expansion/remodel plan is inappropriate for oUr neighborhood and is inconsistent with the Tiburon G:~ne.ral Plan and Zoning Ordinance. We ask the Town Council to continue to uphold the General-Plan and Zoning Ordinance without bias. Although we have some Congregation Kol Shofar members within our HOA, over 90% of our members are opposed to the expansion. We urge the Town Council to fairly consider the impacts of this overly ambitious project in our neighborhood. We strongly urge ,rejection of the Congregation Kol Shofar proposal. Sincerely, ~./'?-, ~ pi , ./' /..e:~~ ,,/) . /~.' I ---- / /l-, ~---oC.:=o ,~{...."-->- ....(......-- , / Mike Bentivoglio, President ofVisUl. Tiburon Homeowners"Association On Behalf Of Vista Tiburon Homeowners' Association EXHIBIT No.M:.1 RECEIVED JUL - 6 2006 If. July 5, 2006~Q~ Rufus G. Thayer '0\ 158 Blackfield Drive r Tiburon, CA 94920 415-381-2504 TOWN MANAGERS OFFICE TO'NN OF TIBURON Tiburon Town Council 1505 Tiburon Bouevard Tiburon, CA 94920 Re: Kol Shofar Environmental Impact Report , Exclusion of Impacts on the Bel Aire Neighborhood Dear Councilmembers: The subject Environmental Report (EIR) certified by the Planning Commsiion as complete on May 31, 2006 makes no mention of the foresee'able, significa,nt, traffic and parking impacts on Blackfield Drive, Karen Way and possibly other parts of the Bel Aire neighborhood which is immediately adjacent to. Kol Shofar. Attached are my letters dated July, 14,2005; March 14, 2006; april14 2006 and May 25, 2006 expressing our concern over these foreseeable impacts and the lack of any meanigful discussion il1 the EIR concerning these impacts. Also attached are eight pictures taken about 6pm on October 16,2005 during the High Holy Days showing parking clogged along the length of Blackfield Drive and on Karen Way. These pictures were submitted to the Planning Commission atthe initial hearing on April'24, 2006 (minutes, -'------page~ey-are-ifleieative--af-tl&aaditiaflal-impaets--aA-tRe-fleigAbemeoo-as-a foreseeable consequence of the 310k capacity expansion planned by Kol Shofar. Apparently the staff has intentionally exduded the impacts onBlackfield Drive and Karen Way even though such impacts are demonstrably foreseeable and substantial as part of the continued expansion of Kol Shofar. These impacts were excluded even though the EIR discussed the potential congestion in the traffic storage lane on Tiburon Boulevard. The Bel Aire r~sidents along Blackfield Drive and Karen way receieved formal notice of the Planning Commission hearings and attended in good faith believing their concerns would be addressed. Instead, these very substaintial concerns have been ignored throughout the process. It does not appear to us that the Kol Shofar EIR can be deemed complete without addre~ing these obvious, very substantial impacts. It is requested that the Council direct the staff to investigate the foregoing. impacts and their mitigation, and include their findings in the Kol Shofar EIR. Respectfully, ~ f:l! VG EXHIBIT NO. U - J.. Pagel ot 1 Scott Anderson From: KNygren Sent: Friday, August 18, 2006 9:22 AM To: Scott Anderson Cc:' Vice Mayor, Tom Gram; Paul Smith (External) Subject: Kol Shofar and synaplex May I suggest you look at these websites. It has come to the TNC's attention that Kol Shofar plans to develop synaplex programing. This was not mentioned to the Planning Commission at their hearings and its impacts not discussed in the FEIR. Having this information might make a difference as one plans for their CUP. Karen l1ttp:/ Iwww .starsynagogue. orQI synaQlexl http://synviews.blogspotcom/2006/01/are-you-serving-customer .html EXHIBIT NO.lA - 3 8/18/2006 EXL)anding the Many Dimensions of Shabbat Page 1 of2 e', ",:' '~, l~ i~(. ~leK-' ir~'~>I(~ , , 24 Av 5766 STAR GAZER Newsletter I Signup Synaplex™ Participant Login Sea rch I Home >> Synaplex TM Expanding the Many Dimensions ofShabbat Synaplex™ is designed to transform the contemporary American synagogue institution that speaks to an increasingly limited segment of the Jewish comr one that is relevant, inspirational and significant. The vision of Synaplex synagogues to grow with people as they evolve over time, instead of allowin, grow out of them. Synagogues provide lifelong opportunities for Jewish livin~ and celebration and place a premium on being part of a pluralistic, multi-gen community. Synaplex™ synagogues 'focus their energies on providing a multitude of diffe Jewish experiences on Shabbat. They are characterized by excellence in pro~ mar e mg .and connecting to members and the broader community, both in f Shabbat programming and in everything they do. View samRle Sy-naplex™rr The goal is not merely to create more innovative programs. Rather, Synaple: programs as a lever for strengthening Jewish identity and developing comml piece of the program is based on practical experience with synagogues as W( demograDhic research in the Jewish community. Synaplex™ provides a powerful alternative to how synagogues look today. For a limited time, your congregation can jQjJl..lb~ national SYJlaQ.J~.xT Initiative for free. If Learn more about Synaplex™ with the links at left. Bring inspiration to you congregation with practical resources. Already a Synaplex™ congregation to access additional resources, such as Synaplex: Celebrate ShabbatL a me small congregations. \.... ~ ~' -........ .. Re-Envisioning the Synagogue: STAR Resources Visit a Synaplex™ Synagogue "... the most provocati' most insightful book Jewish life I have rea http://www .starsynagogue.org/synaplex/ 8/18/2006 page.1 01 1 Scott Anderson From: Metz, Tim Sent: Friday, August 25,2006 5:21 PM To: Scott Anderson Cc: csla@comcast.net; drholden@comcast.net; kaull@gryphoninvestors.com Subject: KS Facility Usage, the CUP and the new Synaplex initiative Hi Scott, Thanks for taking the time to talk with me today. I wanted to follow-up with you to stress how important the whole Synaplex issue is and how even more important it is to get a matrix filled out with current, pre-Synaplex, baseline usage. I know that KS has been resistant to filling out the matrix that I provided, but we definitely need information at this level of detail to truly understand the current facility usage and the baseline of impacts that we currently experience. In addition, we need them to layer in the projected usage so we can qualify and quantify the changes. The significant ramping up of number and frequency of activities as well as the dramatic increase in number of attendees at events that a Synaplex can bring cause very significant concerns for us. We 'all feel that even the current CUP would need to be reviewed and revised in light of the new information regarding Synaplex. In addition, these new Synaplex activities cause an even more elevated level of concern regarding what the projected new usage patterns could mean when coupled with the potential of a dramatically expanded facility. Thanks for listening and I hope these concerns can be addressed in the Staff Report. Best regards, --T=rm-Metz EXHIBIT NO...fk:lf-. 8/28/2006 Au~ 25 OS 02:33p Karen N::t~ren 415-435-4642 p. 1 John and Karen Nygren 22 Paseo Mirasol Tiburon, CA 94920 Scott Anderson, Director of Community Development Tiburon Town Council Tiburon Town Hall 1505 Tiburon Blvd. Tiburon, CA 94920 r,~ ~'~"'~ \-~~" (C;! ,~-', II ~ L)~ ~~~-" 'I \ I q ^ ')f~r\k~ ,} .r.UIJ L t-:_ L..UvU I ~- j _..-1 PL?\N\~ffiVT~\ON TOWN OF I\BUKON August 25,2006 Dear Mr. Anderson and Town Council members, New information has come to our attention regarding a program of which Congregation Kol , Shofar has recently become a participating member. The program is caned Synaplex. You will find attached pages, downloaded from the Internet, that verifies our statements and descriptions of the program, samples of how the program functions at other congregations and an article by Gary S. Cohn stating the results of the program. You can find out more information about Synaplex by investigating its comprehensive website http://www.starsynagogue.org/ . We commend the religious community for its desire to attract more people to i~ program) but wonder why Congregation Kof Shofar has not revealed this information to the Town or Planning Commission at prior meetings and have told the public and staft'they have no plans for growth. We believe it is critical for the Town Council Lo be aware of the Synaplex program, which Congregation Kol Shofar is now part of, to understand the extensive impacts of such a program on the surrounding neighborhood. The Town must consider how Synaplex and its impacts will be included as part of the Conditional Use Application soon to be heard by ~he Town Council. Significant new questions need to be answered after discoverlng this new information. Will these new expanded activities and events be 'regulated by the existing or potentially new CUP? Win Synaplex activities be considered an expansion of existing activities or events or be considered new programs and events? If there is, as suggested in these articles, a 50 -80% increase in attendance on Friday nights, and Saturday daytime and Saturday evenings, how will the CUP regulate, if at all, the parking, traffic, nuise, lights, hours of use and other environmental impacts of this new program, Synaplex? This is new information was not reveled by Congregation Kot Shofar and thus not included in the FElR analysis. In order to understand the full impacts of the expansion of the multipurpose room and a new CUP, the impacts ofSynapJex must be included in the FEIR analysis. This is tbe only way lhat the Town and Town Council can be able to fully understand the significant impacts of the proposed Congregation Kot Shofar project on the surrounding quiet residential neighborhood. We strongly urgethe Town and Town COllw:il to investigate and find out the extent ofthe impacts of the new SynapJex project and how and iflhe significant impacts from a potential 50 - 80% increase of attendance by Congrcgaliol1 Kal Shofar can be mitigated to a level of insignificance. Thank YOll; for your interest in protecting the residents cf our Town. SincerelY,~, ~/~ -7 ,-'JL /~ /~Jd .tohn and KarcJ Nygren 1J2~1~ 00 EXHIBIT NO. U-s Aug 25 06 02:33p Karen N~~ren Expanding the Many Dimensions of Shabbat ii~~.i::~;::r-'--:...',:"":':':::..::.. .Rl~!r-:- 1 EluJ 5766 . . . . . .. . . . Synaph!~~ph~tti :~JJ~m , " "... '. ... ...... . . "":-:""~- ~""7;':':' -.'----..-":- .~:-.~:~... ..-..._.:.....--:--.:..~~::~:..... , . F~Qs" , ' ...~_. :: ~~~:.-.:_.J--::~...... ~......~_.:.__.~,;;)..~~.:"":. ':""'7"- .._~,:.:~~.~~i~~., t40me ..---.-....----......---...---.,..-.-.-....--.....-- of2 415-435-4642 p.2 http://www.starsynagogue,orgtsynapleXl STAR GAZER Newsletter I SionUD ~ Partir ~'u~J lB ,~ Search L,..-- ,_, ___ ". ~r- Home >> SynapleX nO Expanding the Man", 0imensions of Shabbat Synaplex"" is de~'. Jned to trap ',,, '.Ie contemporary American synagogue from an institution that ~.;,;C'aks to on if ; 'Jly limited segment of the Jewish community to one that is .-elev,lnt, inspirat .'iU ;;lid significant. The vision of SynaplexT" Is for synagogues to grow with p'eOr';~ dC, ,:ey evolve over time, instead of allowing people to grow out of thsrn. Syna9ogue~' ~ro', Ide lifelong opportunities for Jewish living, learning and celebration and place a premiulll on being part of a pluralistic, multi-.generatlonal community. SynaplexlM syn ' iogues focus ~hri,. Jewish experief',,' on Shabbio' marketing and Itiectin') to r Shabbat prog(,o'ining and in .'2rgies on providing a multitude of different , are characterized by excellence In programming, 5 and the broader community, both In their ing they do. View sample SvnaDlexTl" materials, The goal is not I, ',Jcly l~) ere, programs as () ~ . :cr for stren piece of the prV1ram is based ii, demooraphic research in the .1.::,. ,~ innovative programs. Rather, Synaplex™ uses ~ Jewish identity and developing community. Each , :tical experience with synagogues as well as '.~ommunlty. . Synaplex'TM provides a powerful cd! "native to how synagogues look today. Fora limited (,,;le, your co Initiative for! r> tiDn can loin the national Svnaolex"'" t' '"". learn more ,"r)IJt Syr,,]plc:. congregatio:1,'lth .l2.Gl.ctical ' , to access au,jltional resources, small congr(:'<J~\tions. 'he links at left. Bring inspiration to your own '~s. Already a Synaplex™ congregation? login ,.h as Svnaolex: Celebrate Shabbat! a model for \.. ~ r- .,/ Re-Envisioning the Synagogue: . Vi",; ->ynaplex'" Synagogue .. ...the most provocative, most insightful book on Jewish life I have read in years; full of hard truths we need to heaL" -- Harold Kushner MORE>> 8/25/2006 10:34 AM Tibu ron Town Council 1505 Tiburon Blvd. Tiburon, Ca 94920 ~. ~ t ~ ~ ~ ~.rlr~-:)\.'.'.i. r: I, I 'I ' ... I i I 1/ I · 'i"o'} -------' ....- PLNF'!!f,!G [j;\/iSION TO,/\ij\) ()F TIRUFWN 62 Claire Way Tiburon, Ca., 94920 September 4, 2006 RE:Kol Shofar Expansion The Planning Commission has done its job. I agree with their decision to deny the Conditional Use Permit at 215 Blackfield Drive, Tiburon, Ca.' for the follow- i ng reasons: - ~t!J ' 1. It is my understanding that religiOU~ schools are tax emept which puts the additional maintenance onto the current tax payers. ' 2. Hard surfaces intensify additional water runoff into an old drainage system. 3.Blackfield Drive is the major entrance and exit to Bel Aire and to Kol Sholar. Additional traffic will create a hazzard to one and all Bel Aire residence. NO more buses please!!!! 4. There are approximately 360.adults plus children living in Belaire. Kol Shofar wants to bring in four times that many people. This is not com- patable to the area. Please note that about 15% of the members of Kol Shofar are residence of Tiburon which means that most of the members are not residence of Tiburon. THIS ACTION MUST BE STOPPED NOW.Please support the Town Planning Commission Thanking you in advance, I am, Sincerely, llJ. (t '''.) ~/)J. ~L ~ie B. LeCle c~ EXHIBIT NO.~' Page 1 of 1 Scott Anderson From: idagelbal L Sent: Thursday, September 14, 2006 10:01 PM To: Council member Alice Fredericks; Scott Anderson Cc: Mayor Paul Smith; Tom Gram; Miles Berger; Jeff Slavitz Subject: Kol Shofar's impending improvement permitt. Dear Mayor Smith and dear Tiburon Town Council, It is with much trepidation as well as with a heart full of sadness that I write these lines to you. I am a Kol Shofar member and an 81 year old Holocaust survivor. At age 15 I was usurped from my home in Poland and sent to labor and concentration camps. I lost my entire family as did my dear departed husband who was also a Holocaust survivor. We were fortunate enough to be given the opportunity to immigrate to the United States, to work and raise our family in a free society, a land par . ' to none. We became an integral and contributory part of the tapestry of life in our adapted land. Our two sons are upstending citizens and individuals. One employed by the University of Berkeley, the other in the field of medicine. I am utterly dismayed and disturbed by the way some of the neighbours of Kol Shofar have taken upon themselves, by all and any means to see to it that Kol Shofar does not receive the permitt for remodeling. They went so far as to tell us to move somewhere else. If this is not a sign of antisemitism, I'll eat my hat. It is not so long ago, when I was witnessing synagogues being burned, sometime even with people inside of them. This is the United States, here we do not burn Synagogues, here we do not even choke the lifeline out of Synagogues, which is what the neighbours would like to do to Kol Shofar. Kol.Shofar is a house of learning, house of worship, 'a house where the hornless are fed, a house of prayers, a house to congregate, a house to celebrate, a house where all people are welcome. What a blessing for a neighborhood. Weare not a rowdy bunch, but law abiding people with a sense of understanding and purpose. The renovations we necessitate will allow us to be able to function in a normal envirnoment, wheras now we do so with much stress and curtailment. I implore you therefore, to put an end to this obvious injustice. Please, let Kol Shofar become whole, by issuing the permit. With sincere thanks, Ida Gelbart u-~ EXHIBIT NO. 9/15/2006 Scott Anderson From: Sent: To: berman.r . Thursday, September 21,2006 10:42 AM Paul Smith (External); Vice Mayor, Tom Gram; alice@ Miles Berger' Scott Anderson Kol Shofar application. \ Councilmember Cc: Subject: Dear Mayor and Councilpersonsi As a homeowner in Marin for forty years, I absolutely understand the concerns of those in the immediate vicinity of Kol Shofar about any improvements we want and need to make. In the nearly 20 years I've attended services and events at Kol Shofar I have found my fellow congregants to be caring of not just one another, but the people who live in our neighborhood. I believe the compromises we have made in our plans reflect this. I cannot imagine our congregation doing anything that would impede the lifestyles of our neighbors or annoy or inconvenience them. I truly believe that this is a wonderful opportunity to show how the 'people of Tiburon can welcome the much needed improvements to our synagogue while ,we, the members, continue to show how caring we are about the wellbeing of our neighbors. Thank you for your kind attention. Ron Berman 79 Berens Drive Kentfield, CA. 94904 459-2492 EXHIBIT NO. U - i 1 Page 1 of2 Scott Anderson Sent: To: From: Metz, Tim Monday, October 09,20063:49 PM Scott Anderson; Council member Jeff Slavitz; Alice Fredericks; Councilmember Miles Berger; Vice Mayor, Tom Gram; Mayor, Paul Smith Cc: Christy Seidel; KurtKaull; drholde. KNygre. Subject: Parking - a major issue for the proposed Kol Shofar expansion project , kirbylindsa) Scott, Mayor Smith and Town Council Members, One of th~ main issues (along with late night noise, etc.) that needs clarification in regards to the proposed Congregation Kol Shofar expansion project is parking. Unfortunately this issue is not very clear at all. ,I have included four attachments with this note to assist us all in understanding this issue: 1) An e-mail with my analysis of both the current and the future Kol Shofar parking situation.' 2) A response from Scott Hochstrasser reo my parking analysis. 3) A satellite photo of 215 Blackfield Drive taken on 2/27/2004 from maps.google.com. " 4) A close-up view of the satellite photo in 3) above. I can state with certainty that the simple algorithm of "increase building square footage by 31%, increase parking by 31%" is extremely flawed logic that should not be used. The existing official parking (121 spaces) for the Kol Shofar facility is woefully inadequate for the functions that currently take place there and cannot be used as a legitimate baseline for additional parking needs emanating from the proposed expansion. Complicating this issue is the fact that much of the space currently used for "overflow" parking (the wood chip covered lot by the access road, the access road itself, the area by the annex building in the rear of the facility and the spaces in the driveway by the preschool entrance) will no longer be available as "overflow" parking spots if the project is built as proposed. The use of this on-site "overflow" parking also serves to blunt the impact of existing functions on traffic and parking in the area because more cars are parking on-site than the official parking spaces (now or in the future as proposed by the project) can accommodate. If any baseline is used for current on-site parking, it should include the capacities in these "overflow" parking areas as they are being used actively today. To help understand this point, please review the satellite photos that I attached. The Kol Shofar proposal increases parking from 121 spaces to 139 spaces for a net increase of 18 spaces. Count all of the cars in the back lot by the annex building and the proposed new classroom wing (at least 26) and in the upper driveway/preschool entrance area (at least 24) and thegrass/woodchip area (at least 15 with room for many more) for a total of 65 cars parked in on-site "overflow" areas. With Kol Shofar's new parking configuration, those "overflow" areas would not be there anymore. Some of those cars will park in the 18 newly established parking spaces. HOWEVER, even with the new configuration, there would still be 47 of those additional cars at this particular event on the street instead. Take a look at the surrounding streets and try to determine where those 47 cars are going to park and what safety issues we would be faced with as those people look around for a parking spot? Furthermore, Kol Shofar has stated that they are counting the 33 street parking spaces along the frontage of their property towards their parking capacity. As you can see from the photos, there are far more than 33 cars from this function ALREADY parked on the street and they are not just on the Kol Shofar property frontage. Another extremely important point to note is the lack of sidewalks and crosswalks surrounding the Kol Shofar site. There is no sidewalk on the south side of Via Los Altos, so all of the adults and children that arrived in the 25 or more vehicles that parked on that side of the street had three choices for getting to the facility: 1) Cross the street illegally on Via Los Altos and risk causing an accident or being hit by a car coming out of the Kol Shofar parking lot or down the hill on Via Los Altos (most people probably chose this option). 2) Walk down the south side of Via Los Altos (on private property where,no sidewalk currently exists) and cross Via Los Altos at the crosswalk at Blackfield and Via Los Altos - not something that people who are dressed up and in a hurry to get to a party generally do...you know these people were the late arrivals or they would have found a spot in the lot. 10/1 0/2006 EXHIBIT No.~4 Page 2 of2 3) Walk down the middle of Via Los Altos, again risking being hit by a car or causing an accident, and cross at the crosswalk at Blackfield and Via Los Altos. Also, how.did the cars parked on the south side of Via Los Altos get into that position? Do all of those people live up the hill on Vista Tiburon or Via Los Altos? I doubt it. Did those people travel all the way up Via Los Altos to the roundabout to turn around safely and descend the hill into their parking spot? Again, I doubt it. As we have observed time and time again at Kol Shofar functions, these people most likely: 1) Did a T turn in the place where they are parked. 2) Pulled into the Kol Shofar driveway and backed onto Via Los Altos to park. 3) Did a U-turn at Vista Tiburon (despite the blind curve on Via Los Altos). 4) Used a neighbors driveway to turn around. Similar incredibly dangerous situations exist for those parked on the east/south side of Blackfield. Where did they cross the street? The only crosswalk they could have ,legitimately used is the crosswalk at Blackfield and Karen Way. There. is a crosswalk up the hill at Via San Fernando...trouble is there is no sidewalk on the west/north side of Blackfield for them to use to get to Kol Shofar. Most likely these people darted across Blackfield. potentially causing an accident or risking being hit by cars coming around the blind curve. Again, these are the people that showed up late and did not get a spot in the parking lot, so they were probably in a hurry. Also, when the function was over, where did all the traffic go that was parked on the east siqe of Reedland Woods Way? Up to the cui-de sac for a turnaround or T-turn or a neighbors driveway - kids play in the cul-de-sac, driveways and on the sidewalk every day here. What about the cars parked on the north side of Via Los Altos? What about those on the east/south side of Blackfield? I know this message has been long and detailed, but I also hope it has shed some new light onto this complicated issue. Hopefully this helps you to understand why we in the TNC think it is so imperative that the on-site parking for the proposed facility be in compliance with the Town Zoning Code and aligned with the capacity of the proposed facility. Anything less would be unnecessarily putting peoples' health and safety at risk. Thank you in advance for all of the hard work put into this analysis and assessment. Sincerely, Timothy I. MetZ 50 Reedland Woods Way 10/10/2006 Page 1 of3 Scott Anderson From: Metz, Tim [tmetz@mountainhardwear.com} Sent: Thursday, May 25,20066:36 PM To: Dan Watrous; Scott Anderson Cc: (Tiburon Planning Commission) John Kunzweiler; csla@comcast.net; kaull@gryphoninvestors.com; KNygren@aol.com Subject: Inaccuracies with the Parking numbers used in Kol Shofar Denial Resolution Importance: High Hello Dan and Scott, Please include this e-mail in the Late Mail and ensure that a copy of this gets to all Planning GomlT\issioners. I just finished reading the Kol Shofar draft resolution for denial and there are a couple of figures in the Parking section that need to be corrected as they show inaccurate information., These numbers should be corrected on the draft resolution so that the parking requirements are stated accurately for the record. " 1) The parking requirements per the General Plan based on assembly area usage have been underestimated. The parking requir.ed by the General Plan should actually be 714 spaces (see analysis below). Page 15 and 16 of the draft resolution states: "Section 5.08.04(d). Place of assembly: one parking space for each 4 seats of maximum seating capacity; or one for each 40 square feet of assembly area, whichever is more; and Section 5.08.04(k)(1). Child Care:3 minimum, ,plus one for each 10 children over the first 15. "As indicated in DEIR Appendix D: Table 9, the Tiburon Zoning Ordinance parking requirement is comprised of the following elements: 1) for the 4,500 square foot portion of the Multi-purpose Room that would provide up to 642 seats: 161 parking spaces; for the 5,336 square foot remodeled Sanctuary that would provide up to 550 fixed seats: 138 parking spaces;for the remodeled 1,842 square foot Chapel: 46 spaces; and for the 150-student Pre- School: 18 spaces. The combination of uses yields a total parking requirement of 363 spaces, far more than the 139 spaces proposed for the existing lower and proposed new upper parking lots." Based on capacities of assembly areas that could be used concurrently, these numbers should actually be: . Proposed New Multi-purpose room (642 person capacity - 4500 sq. ft.) = 160 spaces required based on seating capacity (113 based on sq. ft.) . Proposed Expanded Sanctuary (550 person capacity - 5336 sq. ft.) = 1 ~7 spaces required based on seating capacity (133 based on sq. ft.) . Remodeled Chapel (150 person capacity - 1842 sq. ft.) = 46 spaces required based on sq. ft. (37 based on seating capacity) . Classrooms as proposed in Existing Main Building (150 person capacity - 3032 sq. ft.) = 76 spaces required based on sq. ft. (38 based on seating capacity) . Library as proposed in Existing Main Building (14 person capacity - 735 sq. ft.) - 18 spaces required based on sq. ft. (3 based on seating capacity) . Classrooms as proposed in Existing Administrative Wing (90 person capacity - 1919 sq. ft.) - 48 spaces required based on sq. ft. (22 based on seating capacity) . Conference Room as proposed in Existing Administrative Wing (30 person capacity - 538 sq. ft.) - 13 spaces required based on sq. ft. (7 based on seating capacity) . Classrooms as proposed in Existing School Wing (150 person capacity - 3612 sq. ft.) - 90 spaces required based on sq. ft. (37 based on seating capacity) . Library as proposed in Existing School Wing (15 person capacity - 887 sq. ft.) - 22 spaces required based 1 ()Il ()!?()()f) Page 2 of3 on sq. ft. (4 based on seating capacity) . Existing Annex (80 person capacity - 1454 sq. ft.) - 36 spaces based on sq. ft. (20 based on seating capacity) . Proposed New Classroom Wing (120 person capacity - 2734 sq. ft.) - 68 spaces based on sq. ft. (30 based on seating capacity) = 714 spaces required per the General Plan Note: If the minimum numbers are used. the total is still = 444 spaces required. ~ 2) The parking requirements per the General Plan based on additional square footage are also incorrect. The parking required by additional square footage should actually be approximately 271 spaces (an additional 151 spaces). The final paragraph on page 17 of the draft resolution states: "Alternatively, the proposed expansion represents an increase of 31 % of the existing floor area, thus existing parking could be required to increas'e by a comparable percentage or to a total of 153 spaces." The number here should actually be 157 spaces (120 existing spaces x 1310/0 of existing building size-= 157 spaces) using the resolution's existing figures and algorithms. However. this logic is extremely flawed because using the existing parkina (which is SIGNIFICANTLY less than what is required for the current facility) as a baseline makes no sense. Any baseline for a square footage increase based parking requirement needs to take into account the parking that the existing facility SHOULD have and not what the existing facility DOES have. The current facility is well above its current parking capacity, so using current parking numbers as a baseline only compounds this issue. I do not have existing building capacities for this analysis, but using the figures above give a close approximation. The figures above (for the existing facilities) actually understate what the current parking requirements are since some existing classrooms have been removed and since the proposed sanctuary capacity is actually less than the current sanctuary capacity. Current building parking requirements should be: . Proposed Expanded Sanctuary,(550 person capacity - 5336 sq. ft.) = 137 spaces required based on seating capacity (133 based on sq. ft.) .' Remodeled Chapel (150 person'capacity - 1842 sq. ft.) = 46 spaces required based on sq. ft. (37 based on seating capacity) . Classrooms as proposed in Existing Main Building (150 person capacity- 3032 sq. ft.) = 76 spaces required based on sq. ft. (38 based on seating capaGity) . Library as proposed in Existing Main Building (14 person capacity - 735 sq. ft.) - 18 spaces required based on sq. ft. (3 based on seating capacity) . Classrooms as proposed in Existing Administrative Wing (90 person capacity - 1919 sq. ft.) - 48 spaces required based on sq. ft. (22 based on seating capacity) . Conference Room as proposed in Existing Administrative Wing (30 person capacity - 538 sq. ft.) - 13 spaces required based on sq. ft. (7 based on seating capacity) . Classrooms as proposed in Existing School Wing (150 person capacity - 3612 sq. ft.) - 90 spaces required based on sq. ft. (37 based on seating capacity) . Library as proposed in Existing School Wing (15 person capacity - 887 sq. ft.) - 22 spaces required based on sq. ft. (4 based on seating capacity) . Existing Annex (80 person capacity - 1454 sq. ft.) - 36 spaces based on sq. ft. (20 based on seating capacity) = 486 spaces currently required per the General Plan Note: If the minimum numbers are used. the total is still = 301 spaces currently required. Apply the 31% square footage increase to these numbers and there are 151 additional parking spots required. Using minimum numbers, there are an additional 93 spaces required. 1 () /1 () /'-'{){)L: Page 3 of3 Please consider this information as you review and discuss the resolutions before you. Sincerely, Timothy I Metz 50 Reedland Woods Way Tiburon, CA 94920 1 Oil ()f') 00" REMY, THOMAS, MOOSE and MANLEY, LLP MICHAEL H REMY ATTORNEYS AT LA W 1944 - 2003 BRIAN J. Pl-ANT OF COUNSEL Telephone: (916) 443-2745 Facsimile: (916) 443-9017 E-mail: Info@runmlaw.com http://www.rtmmlaw.com JENNIFER S. HOLMAN ASHLE T CROCKER SABRINA V. TEl.l,ER MICHELE A. TONG AMY R HIGUERA HOWARD F, WILKINS III MEGAN M. QUINN AMANDA R, BERl.IN JASON W, HOLDER TINA A THOMAS JAMES G, MOOSE WHITMAN F. MANl.EY ANDREA K. LEISY TIFFANY K. WRIGHT 455 CAPITOL MALL, SUITE 210 SACRAMENTO, CALIFORNIA 95814 October 13, 2006 !oJ ~(c~~'\P~r~ ~~~~ PLr,.!~~,lIi\JG DIVISION TOVVN OF TIBUFWN Scott Anderson Town of Tiburon 1505 Tiburon Blvd. Tiburon, CA 94920 Re: Kol Shofar's Appeal of Certification of the EIR Further Evidence That hnpact 3.3-A Is Not Significant Dear Scott: Congregation Kot Shofar appealed the certification of the Final EIR for its conditional use permit application because of the EIR's conclusion that left turns at the Tiburon BoulevardIBlackfield Drive intersection would create a significant impact requiring mitigation. (Draft EIR, Impact 3.3-A, p. 62.) We have previously explained why the evidence does not support such a conclusion and also why the proposed mitigation is unfair. With this letter, we are providing additional traffic counts and analysis of the intersection prepared by Robert Harrison. The analysis is further evidence that the impact should not be considered significant. Robert Harrison has conducted several additional traffic counts and completed modeling based on those counts which provides further evidence that the project will not cause the intersection to back up. Some key items to note about the TRAFFIX modeling prepared by Robert Harrison: . Even assuming 300 people in attendance, there is adequate queue space under all scenarios: existing and cumulative, with or without the project. . Traffic counts were taken over three Saturdays, during the peak hour, providing a much more reliable basis for the modeling than the single day in March 2004 used for EIR's conclusions. EXHIBIT NO.JA:J 0 Scott Anderson October 13, 2006 Page 2 of 3 . Although there was more traffic flowing through the intersection on the three Saturdays recently counted, many fewer cars made left turns than on the March 2004 Saturday, which was the basis for the HCS modeling in the Draft EIR. . The accuracy of the TRAFFIX software was verified by field counts of the actual length of the left turn queue. The TRAFFIX software provides a more accurate estimate of the existing condition than the HCS modeling as set forth in the EIR. The additional counts, and the modeling using these counts, demonstrate the intersection is not likely to ever back up - with or without the Kol Shofar project. Thus, the conclusion that this should Dot be labeled as a significant impact is well- supported by the evidence. In addition, the fact that 300 to 400 people attend services every Saturday with no back up at the intersection is further evidence the project will not cause back ups. But Kol Shofar can support this somewhat anecdotal observation with hard evidence. On Sunday, October 1, 2006, Kol Shofar hosted the Kol Nidre service, the most holy occasion on the Jewish calendar and consequently, the singular annual peak evening congregational gathering during the entire year. The service began at 5:45 and Kol Shofar filmed the intersection from 5:15 to 6:15 PM. The video reveals that not once during that "peak hour" did the cars back up beyond the left- turn queue, despite the fact that approximately 750 people attended those services. Again, the evidence supports the determination that impacts at this intersection will be less than significant, without mitigation. We also address the basis for the EIR's conclusion of significance. As you lmow, the original EIR's analysis was based on 40 Saturday events per year. Kol Shofar has voluntarily agreed to limit Saturday events to 12 times per year, yet the Town has not revisited the conclusion of significance. Even if there was evidence the intersection would ever back up, a fair consideration of the issue leads one to conclude the impact is not significant. With the agreed upon limitations, a potential back up could only occur a tiny fraction of the time. The EIR analysis assumed that 300 people would arrive for events, all at the same time, and during the peak hour. But the EIR. consultant's assumptions simply will not occur. The reality is that: (1) Kol Shofar has voluntarily limited attendance to much less than 300 people per event; (2) due to the occurrence of the Sabbath, many of the 12 events per year will begin after the peak hour; and (3) visitors will not arrive all at once, but rather will arrive over time. Thus, even if the evidence supported the conclusion that, under the worst- case traffic scenario the intersection might back up, such potential would happen so rarely as to be clearly insignificant. Scott Anderson October 13,2006 Page 3 of3 I have also attached to this letter a memorandum I drafted for Gary Ragghianti, explaining the problematic nature of the Em's conclusions and proposed mitigation. The memorandum was intended to summarize the issue so that Mr. Ragghianti could address the issue in meetings with Town Council members. I believe a copy has been provided to Paul Smith, so we provide one to you for review and inclusion in the record. We believe this infonnation is necessary for a fair consideration of Kol Shofar's appeaL We therefore request that it be included in the staff report. 6] 006046.001 doc ~EP-'2-2006 0':40 PM ROBERT L HARRISON I~ ~ . (Obert I. harrison 415 435 011S P.01 , 2370 Vl&ta Del Mar Lane Tlburon. CalifornIa 94920 Tol.41543Sr2671 Fax 415 436-0116 Tranlponclllon Planning and ProJoct Management MEMORANDUM ~ [E~[E~~~I'~ I' , II 1 1 ?nn(\ i I ~ Iv LUUO JQ, PLf.\I\Jr\JIf'J~, DIVISION TOWf'J OF TiBURCJ~J To: Scott Hoehstraeser From: Robert L. Hamson Date: September 12, 2006 Re: Ana\ysis of Current Traffic Count Data at Tiburon Boulevard and BlackfieJd Drive In response to requests from the Kot Shofar planning team I have conducted several current Saturday evening traffic counts at the intersection of Tiburon Boulevard with BJackfieJd Drive. Using the data collected in these counts, I have calculated the intersection Level of Service (LOS) and length of the traffio queues that would be expected based on adding an event witb 300 persons in attendance at Congregation Kol Shofar, Traffic was counted from 5:00 p,m. to 7:00 p.rn on Saturday August 26th, September 2nd, and September 9th, 2006. The one hour volume from 5:00 p,rn to 6;00 p.m. of the two hour period counted was the peak hour for aU three Saturdays- The counts represent a Summer season count, a Labor Day weekend count and a post Labor Day weekend count The peak hour total approach volume was 2,550, 2,206 and 2,617 vehicles on August 26ths September 2nd and September 9th respectively. The August 26th and September 9th counts exceed the March 2004 oount of 2,369 vehicles which was the base for the Kol Shofar EIR traffic study. The total approach volume on the Labor Day weekend count was lower than the other counts and lower than the March 2004 count used in the ElR Cumulative traffic is estimated using growth factors for the 20 year buUdout of the Tiburon Peninsula. Thus, tbe cumulative condition varies dependent on the which existing traffic count base is considered, In partioular, the count from the Labor Day weekend is lower than all other counts, The projection of the <;umulative condition for the future Labor Day weekend is therefore lower than the projections based on the other existing traffic counts. Intersection LOS was calculated using the TRAFFIX software, A summary of the LOS and length of eastbound left turn vehicle queue is shown below. The accuracy of the software caloulated length of the 95th percentile left turn vehicle queue was validated by comparing it to the queues observed in the field. The 95th percentile queue observed in the field was the same number of vehicles as estimated by the TRAFFIX software, i.e.) 9 vehicles on August 26th and 7 vehicles on September 2nd. SEP-12-2006 01:41 PM ROBERT L HARRISON 415 435 0118 Memorandum to Scott Hochstrasser -- . September } 2, 2006 Analysis of Current Traffic Count Data Page Two Intersection of Tiburon Boulevard at BJackfleld Drive Level of Service (LOS) and Eastbound Left Turn Queue Kot Shofar Project Assumes 300 Person Attendance S15turdesy Evening Conditions 2004 Count 2006 Counts March August 26 September 2 ~ EB Left Q t bQ.e.. EB Left Q' LOS EB Left Q t 8 10 Veh B 9 Veh B 7 Veh C 13 Veh B 12 Veh B 9 Veh existing Existing + Project Cumulative C Cumulative + C Project September 9 LOS EB Left Q t B 8 Veh B 10 Veh 12 Veh 15 Veh 10 Veh 13 Veh B B B C 10 Veh 13 Veh B C a Veh 11 Veh Notes: 1 - Number 01' vehIcles In the 95th percent/Ie queue in the eastbound left turn lane. Source: R()I)en L. Hamson TransportatIon Planning As shown above, the intersection would operate at an acceptable LOS C or better under any of the scenarios tested. While the total traffic volume was higher on AUb'Ust 26th and September 9th 2006 as compared to March 2004, the distribution of the turning movements allowed the intersection to serve the higher 2006 volumes more efficiently than it could serve the 2004 traffic. Existing C.onditions. . Using either the 2004 or the more recent 2006 data, a 300 person event at Kol Shofar added to existing traffic would result in a Saturday evening eastbound left turn queue no greater than 13 vehicles As reported in the project EIR the capaoity of the existing left turn lane is 13 vehicles The traffic generated by the largest Kot Shofar event tested would fit within the capacity of the existing left turn lane and traffic signal design. Cumulative ConditionJ. Assuming the 2006 traffic volumes as a base, and adding an event at Kol Shofar as large as 300 persons in attendance to each count7 the longest eastbound left turn queue would be 13 vehicles. Thus, under any of the 2006 traffic based cumulative conditions, the largest Kot Shofar event tested would not cause the storage capacity of the existing left turn lane to be exceeded. Summary. It appears that the March 2004 traffic count found a disproportionately high eastbound left turn count as compared to the total traffic volume at the intersection. Assuming no increase in the existing capacity of the intersection and a 300 person event at Kol Shofar, the three traffic counts conducted in 2006 result in an acceptable LOS and an eastbound left turn vehicle queue that does not exceed the capacity of the left turn lane under existing, existing plus project, cumulative or cumulative plus project conditions. P.02 ~ ~ ~ ~ n "vI r~::~\l .' ~li;; \~:;;;;~.. .U \'~~1.111,...\.\1', OC~ i 0, i ! II ! J . j ; i ____________,j I PL r"I'J[\:: :":8 Di'/::"! C :,1 I TO;N !\j CJ i: ~ l C,~,! I, ijli____. REMY, THOMAS, MOOSE and MANLEY, LLP MICHAELH.REMY ATTORNEYS AT LAW 1944 -2003 JENNIFER S. HOLMAN ASHLE T CROCKER SABRINA V. TELLER MICHELE A. TONG AMY R. HIGUERA HOW ARD F. WILKINS III MEGAN M QUINN AMANDA R. BERLIN JASON W HOLDER TINA A THOMAS JAMES G. MOOSE WHITMAN F, MANLEY ANDREA K. LEISY llFFANY K WRIGHT 4SS CAPITOL MAl.L, SUITE 210 SACRAMENTO, CALIFORNIA 95814 BRIAN 1. PLANT OF COUNSEL Telephone: (9 I 6) 443-2745 Facsimile: (916) 443-9017 E-mnil: info@rtmmlaw com hnp:llwww rtmmlaw com MEMORANDUM TO: Gary Ragghianti FROM: Tiffany Wright DA TE: Septenlber 27, 2006 RE: Congregation Kol Shofar/Tiburon Boulevard Mitigation INTRODUCTION The Draft Environmental Impact Report (EIR) for the Kol Shofar Conditional Use Permit Application ("project") labeled the impact of traffic turning left at the intersection of Tiburon Boulevard and Blackfield Drive as a significant impact. It then proposed mitigation purportedly to reduce the impact to a less-than-significant level. As explained below, both of these proposals are problematic. First, the initial determination of significance is inconsistent with previous determinations by the Town and appears to be purely arbitrary. Second, the suggested mitigation goes well beyond the impacts of the project, imposes conditions beyond the pr~ject' s fair share, and imposes a substantial burden on Kol Shofar's religious practices. DISCUSSION The Draft EIR stated that: "[t]he only potentially significant impact associated with study intersections is that the 325-foot long Tiburon Boulevard/Blackfield Drive intersection eastbound turn lane would not have adequate queuing space to accommodate projected vehicle queues. Project-generated traffic on a peak Saturday evening would result in inadequate left turn capacity. An additional 150 feet of lane capacity (i.e., the space needed for an additional 6 vehicles) would be needed to handle existing traffic plus peak project-generated traffic." (Draft ElR, p. 62.) The Draft ErR also stated that the project would contribute to a significant cumulative impact. There is little explanation as to how these conclusions were reached. Gary Ragghianti September 27) 2006 Page 2 of 3 The Draft EIR preparer proposed the following mitigation: To address the project impact the following measure is required: I. Pending Caltrans approval, the project shall fund lengthening the eastbound left turn lane at the Tiburon Boulevard/Blackfield Drive intersection by adding at least 150 feet of storage to the lane. To address the project's increment of the cumulative impact, the following measure is required: ? Pending Caltrans approval and determination of need, the pr~ject) in combination with other approved development, shall fund lengthening the eastbound left turn lane at the Tiburon Boulevard/Blackfield Drive intersection by adding at least an additional 150 feet of storage to the lane (this assumes that the initial 150 feet has been added per Mitigation Measure 1 above). The project applicant would be responsible for 75 feet of this ISO-foot extension, 3. If lengthening the lane is not acceptable to Caltrans, then the proposed events for Saturday evening will be eliminated from the project, and the Sunday evening events shall be reduced to allow 50% less attendees. The Final EIR added an additional option for mitigating this inlpact: 4. If Caltrans detennines that a~justing the signal length and/or ' phasing would not adversely affect the level of service at intersections on Tiburon Boulevard and approves adjusting the signal timing, then the signal cycle at the intersection will be changed to anow sufficient time for left turns to clear the intersection on weekends between at least 6:30 and 7:30 p.m. In this case, lane lengthening would not be required. 1. The Conclusion of Significance The conclusion of significance is problematic for at least two reasons. First, it is not clear what threshold of significance this determination is based upon. Although the draft EIR was based on 40 Saturday events, the revised proposal for the project (Alternative 7) limits Saturday events to 12 times per year. It seems arbitrary to label a traffic impact as significant when it will happen, at most only about 30/0 of the days of the year, and even then only for a short amount of time of that day. Even the 30/0 figure is unlikely - with agreed upon limits on attendance, and the likelihood that guests will not all arrive at the peak hour, the actual potential for the intersection to be impacted is lower. We are not aware of any other pr~jects in which the Town has made a sinlilar finding. Gary Ragghianti September 27, 2006 Page 30f3 Furthermore, the underlying study itself is flawed because the Town's traffic consultant failed to consider that the traffic lights at the intersection are traffic activated. Thus, when more traffic is in the queue, the left turn light stays green longer, allowing the intersection to clear. It should also be noted that different traffic programs return different results. According to the TRAFFIX model, the intersection would never back up. 2. The Mitigation Imposed Even more troubling than the conclusion of significance is the mitigation proposed by the preparer of the ElR. First, requiring the applicant to fully fund permanent improvements to this intersection goes well beyond a fair share contribution. This appears to violate well-established constitutional limitations requiring a "nexus" and "rough proportionality" between the project's impacts and the conditions of approval. (Nollan v. California Coastal Commission (1987) 483 U,S. 825, 836-837; Dolan v City of rigaI'd (1994) 512 U.S. 374, 390.) The EIR consultant goes even further, however, requiring that Saturday night events be eliminated entirely and Sunday event attendance reduced by 50% if the intersection is not extended. There is absolutely no basis for eliminating Saturday events entirely. And reducing Sunday events is entirely arbitraty since Sunday nights were not even identified as an impact. Requiring such extreme mitigation in response to such a dubious significance detemlination is a prime example of the "substantial burden on religious exercise" that RLUIPA has outlawed. 60806046.001 CONGREGATION KOL SHOFAR APPEAL October 24, 2006 +++++++++++++++++++++++++++++ LATE MAIL RECEIVED AFTER COMPLETION OF STAFF REPORT Please add to Binder #1 10/20/06 12:00 p.m. ~~ Ragghia Ilti IFrei tasLLP ""~~OWN COUNCIL 87:; r: ,}l' H LATE MAIL # / MEETING DATE ''I. ,,~..., October 20,2006 r -:~~_.-rE-((~~-~--~.-~7 ~~~G~U.-l:-~ , ----------__J PLA!~r~II~G DIVISION TOW~J OF TibUr-ior~ Tiburon Town Council 1505 Tiburon Blvd. Tiburon, CA 94920 Re: Kol Shofar CUP Appeal: Applicant's Response to 10/13/2006 Staff Report Dear Mayor SlTIith and Menlber of the Town Council: The October 13, 2006 Staff Report concerning this appeal is a continued and strained effort to re-write the history of this application in an attelnpt to justify an unla.wful and unfair effort by the Town and its Planning Commission to force a religious congregation into abandpning its balanced and carefully considered proposal to provide for the religious rnandates of its ll1embers. I write today, at this final nlonlent to subnlit written COlTIlTIent to the Town, on behalf of the applicant Congregation Kol Shofar (CKS), cOlnpelledto do so because we cannot let stand in the record of these proceedings the nlany nlisstatenlents, false assertions, and the particularly unfortunate blame-the-victinl theme, of this document. Most objectionable is the effort to porh'ay the applicant and its representatives as uncooperative, as having walked away from a /I deal" just when the Planning COlnmission was ready to lTIake an "offer." The actual facts of this applica tionJ s chronology tell quite a different story. The Planning Comlnission have \' iewed the CUP process as a bazaar or nlarket place where, after the applicant has worked diligently and. spent huge sums of money over the course of two years just to arrive there - having consulted extensively with staff and with neighh,)]"s in the design of the project; having nlodified the project several tinles to rL\s~)ond to further input trOITI staff and ff()In neighbors; and, finally, having offered (1 last proposal in response to potential inlpacts identified in an EIR -:- the Planrnng Conllnission believes it has reached merely a good "starting point" froIn \vhich it is required to haggle for further concessions under threat of a pennit denial, and for no reason other than a few vocal f\i : :"j;.:,r.1( ; f ~~ RagghiantilFreitas LLP Tiburon Town Council October 20,2006 Page 2 of 7 neighbors pressuring them to do so. Bu t state law and federal civil rights law casts a long shadow over such pretext and counsels otherwise: the applicant is entitled to a decision under preexisting rules and standards, fairly applied to the application, which accomlnodates their right to religious exercise guaranteed by the Constitution. To suggest, as the Staff Report does, that CKS has been uncooperative because it insisted on the decision to which it is legally entitled - in the face of an atteITIpt by the Planning Commission to burden substantially and without justification its constitutional right of religious exercise - is, simply stated, a gross affront to principles of reason and fairness. The chronology of this application begins at least as far back as November 2003, when CKS convened the first of hvo publicly noticed neighborhood meetings. A second such nleeting occurred on March 11, 2004, followed by a smaller informal Ineeting held exclusively for the benefit of the inllnediate neighbors, on March 17, 2004.1 What this delTIOnstrates is that, far fronl being uncooperative, CKS sought out the opinions and concerns of its neighbors froln the very beginning of the project, before an application was ever submitted. Indeed, and it is a sad truth, the efforts of CKS to listen to and accommodate the concerns of its neighbors have gone entirely unreciprocated throughout this process. In any case, as a result of these early neighborhood meetings, CKS asked independent consultants to prepare traffic, noise, and visual impact studies. Thereafter, CKS, on its own initiative, incorporated substantial modifications to the initial project plans in response to this neighborhood input. These included changes to the parking lot and to the location of the buildings, along with modifications to the landscape plan to include significant planting, benning, and fencing that would avoid light spillage and noise impacts on immediate neighbors. The project application was thereafter submitted to the Town in April 2004, but CKS was nlade to spend five 1110nths "fine-tuning" its application before the 1 As staff did not include the text of the Kol Slll)far application in the material., distributed to the Councit we r~quest you review closely Page 14 of the application booklet and Appendix H - Kol Shofar Neighborhood Meeting Notes. ~~ Ragghian ri I F rei ras LLP Tiburon Town Council October 20, 2006 Page 3 of 7 Town formally accepted it as complete.:: CKS waited a full two years, until April 2006/ for a hearing on the l11.erits of its proposal. In the meantime, tremendous SUITIS were spent on additional expert studies, plan revisions, as vvell as a full-scale EIR ordered by the Planning Commission in December 2004. CKS voluntarily modified it initial plans a second time in response to the findings of the Draft EIR, by agreeing to reduce Saturday events from a max of 40 to 27 and Sunday events from 30 to 20, and, further, to reduce the number of people attending events frOll1 a Inaximum of 300 to 275.3 With this Inodification, CKS acted on its own initiative to reduce potential noise impacts, in response to concerns expressed by a few immediate neighbors. A third response to neighbors' concerns occurred prior to the April 24, 2006 Planning Cormnission meeting, when CKS again volunteered to reduce Saturday events frOln 27 to 12 - and Sunday events from 20 events to 15, each of which would have a cap of 250 people. The resulting proposal, which became known as 1/ Alternative 7," was analyzed in the Final EIR;4 the conclusion reached by these independent experts was that the potential for nighttime noise impacts had been reduced to a level of insignificance. Thus, by the till1e the project finally received a hearing on the merits, at the Planning COlnmission 111eeting of Apri124, 2006, it had been substantially modified several tinles in response to concerns expressed by neighbors as well as by staff. Yet, with every modification, the neighbors simply pulled the goalposts back another ten yards, loudly insisting that stilllTIOre reductions and changes were necessary to address perceived problelns. It is this state of affairs that the staff-which supported approval of the project and provided draft approval resolutions for the Planning Commission to adopt - now characterizes as a Inere "starting point" for the imposition of further restrictions by a Comlnission reacting to the continued 2 The staff report incorrectly states that the application was filed in September 2004 (five months after it was in fact actually submitted), and U deemed complete" in October 2004 (it was deemed complete two months earlier, in August of that year but (1 fullS months after subluittal). 3 See FEIR at p. 2. -I See Binder I, Exhibit E. t~ RagghianrilFreiras LLP Tiburon Town Council October 20, 2006 Page 4 of 7 groundless, conclusory, and factually unsupported argulnents of a few detennined and \vell financed neighbors. In SUIn, the project as Il10dified in Alternative 7 fully addresses the requirements of the General Plan and the Zoning Ordinance, and has been extensively modified to respond to neighborhood concerns. I respond brief! y, now, to specific issues raised in the Staff Report. WeekendJ~Hghttime Events As noted above, CKS has nlodified their application numerous times to address this issue. They have agreed tn cap weekend events and reduce the number of people in attendance at these events. l'hese use restrictions set forth in Alternative 7, voluntarily proposed by CKS, respond to the issues raised by the EIR and render the project entirely consistent with the Town General Plan. Alternative 7, with the proposed mitigation, reduces noise, traffic, and parking iInpacts to less than significant, and avoids any conflict with even the "most conservative" interpretation of the General Plan Policies and Goals. l\1oreover these requested functions relate ONLY to new member sponsored events and not to. ongoing religious events at the synagogue. On-site Parking As noted in the project EIR, parking for the weekend events, as proposed in Alternative 7,would Ineet the parking delnands of the Town for the maximum number of people, 250, that could attend any single weekend event. The current CUP has no cap on the nUlnber of people on site, although it requires off site parking for activities expected to exceed 400 people. Staff now recommends that the project increase the on-site parking to 161 (plus handicapped) from the 139 (plus handicapped) proposed, to avoid turnaround and potential safety hazards in the neighborhood. This figure is a 3000/0 increase over the recommendation of 7 additional spaces set out in the April 24, 2006 staff report. The latter report provides no analysis or rationale to support this change in position. Moreover, ~~ RagghiantilFreiras LLP Tiburon Town Council October 20, 2006 Page 5 of 7 even the expert opinion from CTG5 says nothing about the additional parking on- site as a possible solution to any traffic safety turnaround issue. The fact is that the determination of a problem by the FEIR6 stems solely from the observation of 6 turns observed from 6:30pm to 9:30pm.during a count in October 2005, where luore than 700 people attended services at the facility, which hardly suggests a "significant" issue. We hasten finally here to observe that the recent St Hilary's CUP approval permits over 57,000 square feet of total building on site with only 123 parking spaces. Size and Capacity MPR Staff now recolnmends that the J\hllti-Purpose Roonl (MPR) addition be reduced in size by 15%, resulting in the reduction of proposed seating frOlU 642 to 460 persons. The proposed reduction in seating is intended to address the purported insufficiency of onsite parking. This resh'iction is entirely illogical, and underscores the arbitrary nature of the Hmits the Town seeks to impose on the ability of this religious community to worship together. First, it is arbitrary and oppressive because the Town already seeks to ill1pose additional onsite parking to deal with this perceived insufficiency. On top of that, a reduction of 182 seats simply does not address the concern about weekend events, which has been the focus all along of the Planning Commission and the neighbors. CKS has already agreed to limit the weekend uses to a maximuln of 250 people. Instead, this limitation significantly burdens the ability of CKS to hold required religious services on-site three times a year, during the High Holy Days. In Slunmary, the proposed reduction is a direct nUlnerical regulatory limitation on the religious exercise of CKS members which, we have pointed out previously, the courts have determined constitutes a violation of RLUIP A. The staff report makes it clear beyond any legitimate debate that the reason for reduction of the MPR is Si111ply to restrict people fr0111 COIning to the synagogue to practice their religion and to engage in worship. Combined High Holy Day Services Evidence in the record of this lnatter establishes that the existing facilities are inadequate to permit the fullluenlbership of the congregation to simultaneously 5 See Binder 1, Exhibit T. 6 See FEIR at p. 27. ~~ RagghiantilFreitas LLP Tiburon Town Council October 20, 2006 Page 6 of 7 worship on the three yearly High Holy Days, as required by religious law. In contravention of their religious practices and laws, members are required to have split services. The staff report COll1es to the rather remarkable conclusion that "retaining the split service schedule that CKS has used for the past many years may be the best approach" to address the anticipated impacts of a unified service. This suggestion shows a startling disregard for the boundaries of church and state relations. If those boundaries mean anything, they mean that government can have no role in determining whether it is appropriate for religious persons or institutions to ignore the mandates of their religion. A denial of this CUP application, which aims, among its many objectives, to enable the synagogue to accomnlodate simultaneous services during the High H.oly days, forces CKS to violate Jewish law and is a cleaT violation of the congregations' right of religious freedon1. under RLUIP A, and under applicable constitutional Ihnitations. Conclusion CKS has acted diligently, repeatedly, and in good faith to respond to the legitimate needs and concerns of its neighbors, and to address all potential impacts of its project identified in the many and voluminous studies conducted with respect to its proposal. When faced with the coercive demands of the PI aIming Commission to reduce the scope of its proposal beyond the point at which it would satisfy the religiously motivated objectives of the congregation, CKS could do little more than insist on its right to a fair decision. Instead, the Planning Commission made good on its threat to deny the CUP, even in the face of staff and expert recommendations supporting approval. As noted above, Alternative 7, with l11.itigations, has been determined by staff, by the independent EIR consultant, by the very experienced contract planner hired by the Town, and by numerous other experienced experts to be consistent with even the most conservative interpretation of the Town General Plan, as well as all applicable Town zoning regulations and development policies. On behalf of CKS, I respectfully dsk the Town Council to make good on the constitutional and statutory guarantees of religious freedom it is duty-bound to Tiburon Tovvn Council October 20, 2006 Page 7 of 7 ~e Ragghia 11 ti I F rei tas LLP abide by, and grant the Congregation's appeal froln the Plaluung Comll1ission's denial of the CUP, and to deny the unfounded appeals filed herein. GTRI tws cc: Clients S. V oiker VerYfulyy~ rJ (_J / /,v'''-Jt'~-J Gary T. Ragghianti Marci A. Hamilton, Esq. 36 Timber Knoll Drive Washington Crossing, PA 18977 (215) 353-8984 (215) 493-1094 (fax) hamilton02@aol.com TOWN COUNCIL LATE MAIL #L MEETING DATE~ ~" [E ~ [E ~ ~ ~ 'r':~.\'l "-.) f--....-~.~.. ~-_. _.~-,.----~~,.,I., I \ \..1.,."" . ,II 1'1 utI :OCT { 0 ; i! ! ' L 1---; ! ! - ___________......J 'I PL I\I'lfl! I i': (~ i-' "~if C' 1(', r~ . Hi 'i/ r:,ll_t1~'I(J~li:: ~ )-f~ J October 20, 2006 Mayor Paul Smith Town Council Members Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 RE: Analysis of RLUIP A and Constitutional Issues Related to Application of Congregation Kol Shofar Dear Mayor Smith and Town Council Members: The Tiburon Neighborhood Coalition (TNC) has asked me to evaluate the Religious Land Use and Institutionalized Persons Act and constitutional aspects of the Congregation Kol Shofar's application to add four classrooms, a kosher kitchen, and a large "multi-purpose room" on its existing property. By way of introduction, I hold the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University, where I specialize in church/state and constitutional issues. My most recent major publication is God vs. the Gavel: Religion and the Rule of Law (Cambridge 2005), and I was the prevailing attorney representing Boerne, TX in the Supreme Court case holding the predecessor ofRLUIPA, the Religious Freedom Restoration Act, unconstitutional. See Boerne v. Flores, 521 U.S. 507 (1998). In preparation, I have read the letter submissions from Gary T. Ragghianti (on behalf of Congregation Kol Shofar), the Becket Fund (on behalf of Congregation Kol Shofar), and Stephan Volker (on behalf of TNC), and the Tiburon Staff Report (10/13/06), which address the Planning Commission's denial of a Conditional Use Permit and approval of the FBIR . It is my view that the Planning Commission's decision is supported both by the record and the governing law. The Ragghianti and Becket Fund letters obviously were written to intimidate the Town, with their heavy-handed references to attorneys fees and lengthy litigation.! The Becket Fund's brief, in particular, tries to paint a colorful picture of never losing an RLUIP A case and exaggerates the actual holdings that are relevant to the determination here, or simply ignores contrary precedent. Before succumbing to raw fear, as the Becket Fund hopes and expects, I strongly urge the Town to examine this case with great care. This is one of the most intrusive expansion proposals I have seen in a residential neighborhood while working on RLUIPA cases, and certainly no existing case in the Ninth Circuit requires the Town to permit Congregation Kol Shofar to radically alter the residential character of the neighborhood. As a procedural matter, Congregation Kol Shofar may not bring a federal lawsuit until there is a fmal decision by the Town (absent overt discrimination, which is absent here). Despite the Becket Fund's bluster, it has lost cases (either as the primary litigant or amicus curiae), including two that require the religious land use applicant to reach the end of the local government's process before entering federal court. See San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024,1034 (9th Cir. 2004) (holding that having to go through land use process is not a substantial burden on religious exercise); Murphy v. New Milford Zoning Comm'n, 402 F.3d 342 (2d Cir. 2005) (holding RLUIPA case unripe where RLUIPA claimant did not pursue land use process at the local level). The legislative history ofRLUIPA states explicitly that it was not intended to be a substitute for local land use procedures. 146 Congo Rec. S 7774, 7776 (2000) (statement of Sen. Hatch) ("This Act does not provide religious institutions with immunity from land use regulation, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provisions in land use regulations, where available without discrimination or unfair delay."). 1 The Becket Fund also makes a thinly veiled threat to call in the Department of Justice, which it cannot unilaterally accomplish and which would be wholly unjustified as there is no evidence of discrimination in this case, as I discuss infra. The facts indicate that Town Staff and the Planning Commission engaged in good faith negotiation with Congregation Kol Shofar for a period of time, with both sides evidently interested in finding a good middle ground for all affected by the project. At the Planning Commission meeting on May 10, 2006, an.ad hoc subcommittee was formed to attempt to come up with a solution that met the needs of both the Congregation and the neighbors. As they approached that middle ground, though, Congregation Kol Shofar suddenly cut off talks when, prior to the first meeting of the subcommittee, Gary Ragghianti, Kol Shofar's attorney, contacted Staff and advised that Kol Shofar had requested that no further work be done on other or revised alternatives. This case raises a number of issues, and I would like to begin by setting aside two that are so frivolous as to merit only limited attention: the assertions of discrimination and unbridled discretion in the process. I will then focus on the major issues necessary to decide the application. Alleged discrimination. For obvious strategic reasons, both Mr. Ragghianti and the Becket Fund attempt to manufacture religious animus out of a record that simply cannot support such claims. Their primary contention is that St. Hilary's Roman Catholic Church received a CUP for a large gymnasium, and, therefore, the denial of Congregation Kol Shofar's request must be based on religious animus. This is typical strategy in these sorts of cases, but it is not based in fact, not to mention needlessly divisive. As the 10/13 Staff Report makes clear, the CUP granted S1. Hilary did not implicate the same intensity of use, which is a standard, neutral criterion in land use law. The S1. Hilary gym proposal did not propose new nighttime events, and included a closing time of 7 :30 p.m. on weekdays, 5 :00 p.m. on Saturdays, and no activities on Sundays. In sharp contrast, the Congregation Kol Shofar proposal would add many new nighttime activities, and late night hours. The first proposal would have increased weekend events from 30/year to 11 O/year and would extend its hours until 1 0:00 (Friday), 11 :30 (Saturday); and 11 :00 (Sunday). Moreover, these times do not include" clean-up time, which typically would add an additional hour to each day. Alternative 7 scaled this initial request back, but still demanded 52 weekend events, and closing times of9:00 (Friday); 11 :00 (Saturday); and 9:00 (Sunday). Mr. Ragghianti's own numbers indicate that even Alternative 7 yields 5,050 more people coming to Congregation Kol Shofar on Saturdays and Sundays than have been coming to date. There is simply no comparison between the two projects, which means different treatment does not yield a conclusion of discrimination. The Becket Fund also tries to make much of the fact that this is the only Jewish congregation in the Town, apparently trying to i,mply that animus is responsible. Yet, there is no evidence whatsoever that Tiburon has ever sought to exclude any Jewish congregation or that it acts out of anti-Semitic motives; indeed, the record establishes quite the opposite with respect to Congregation Kol Shofar, which was welcomed when it was built and has had a long, cordial relationship with the town. An analysis of Town Council minutes starting in 1997 yields the obvious conclusion that traffic has been an ongoing concern. Both the Town and the Congregation have worked out the issues in an amicable and professional way. Religious animus does not exist just because the Becket Fund says so. There can be no claim that TNC itself is acting out of anti-Semitic motives. Out of 47 families that have contribute.d to TNC' s efforts, 7 are Jewish. Moreover, the Executive Committee of the TNC is composed of 14 members, including three Jews and two former members of Congregation Kol Shofar. The record indicates that they are concerned about the total impact of the new schedule, which includes all past use and now a dramatic step-up in use. Given the record of concerns about traffic even before this proposal appeared, the concerns about impact and intensity of use are not pretexts for discrimination, but appropriate concerns for private homeowners in a residential neighborhood. Unfounded claim of unbridled discretion. Both Mr. Ragghianti and the Becket Fund attempt to argue that the process applied to Congregation Kol Shofar involves unbridled discretion, which camiot be supported by the record. They fundamentally confuse the necessity of case-by-case determinations with respect to land (because each piece of land is unique) with the question whether there are sufficient procedural safeguards and neutral principles to cabin the officials' discretion. Here, it is obvious that the Planning Commission applied neutral land use principles to decide the CUP application, and that more than adequate procedural safeguards exist. The Becket Fund relies upon the Supreme Court's 1990 decision in FW/PBS v. City of Dallas, 493 U.S. 215 (1990). It neglects to mention, however, that the FW/PBS opinion has been modified by the Supreme Court in recent years. In City of Littleton v. Z.J. Gifts D-4, L.L.C, 541 U.S. 774, 781-82 (2004), the Court explicitly stated that it would modify the holding in FW/P ES. Unbridled discretion, and the strict scrutiny that accompanies it, is not found where there are "ordinary judicial review procedures," which are . sensitive to First Amendment concerns. California law does afford judicial review of a local government's final zoning decisions, and there can be little question that the courts in these cases have acted with respect for the First Amendment. The Becket Fund would like to create new case law that would hold zoning schemes with case-by-case determinations are the equivalent of standardless permit schemes. Setting aside the fact that this interpretation would suddenly subject virtually all land use decisions across the country to strict scrutiny, which has not been the law to date, this conclusion is at odds with the Supreme Court's decisions regarding speech and standatdless licensing, which are the closest analogous cases. Those cases do not trigger strict scrutiny unless the licensing is wholly discretionary, which cannot be said of the Tiburon zoning process. The Supreme Court's reasoning in Thomas v. Chicago Park Dist., 534 U.S. 316, 322-23 (2002), decidedly undermines such an extension of the law: A licensing standard which gives an official authority to censor the content of a speech differs toto coelo from one limited by its terms, or by nondiscriminatory practice, to considerations [*323] of public safety and the like." Niemotko v. Maryland, 340 U.S. 268.. 282.. 95 L. Ed. 267.. 71 S. Ct. 325 (1951) (Frankfurter, J., concurring in result). . . . Regulations of the use of a public forum that ensure the safety and convenience of the people are not "inconsistent with civil liberties but. . . [are] one of the means of safeguarding the good order upon which [civil liberties] ultimately depend." Cox v. New Hampshire, 312 U.S. 569.. 574.. 85 L. Ed. 1049.. 61 S. Ct. 762 (1941). Such a traditional exercise of authority does not raise the censorship concerns that prompted us to impose the extraordinary procedural safeguards on the film licensing process in Freedman. I. The Burden Rests on Congregation Kol Shofar to Prove that Denial of Its CUP Application Imposes a Substantial Burden Under RLUIPA, Congregation Kol Shofar bears the burden ofprovihg, as a threshold matter, whether there is a substantial burden placed on it. 42 U.S.C. ~ 2000cc-2(b). See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1308 n.7 (11 th Cir. 2006). Neither the Becket Fund nor the Ragghianti memo bother to direct attention to the most important Ninth Circuit case governing whether a "substantial burden" can be proved. The Ninth Circuit established this standard with its decision in San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024,1034 (9th Cir. 2004), which stated that "a substantial burden on religious exercise must impose a significantly great restriction or onus upon such exercise." Rather, they only draw attention to the Guru Nanak case, apparently thinking it will support their claims. Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F .3d 978 (9th Cir. 2006). Guru Nanak does not overrule Morgan Hill and it has no application to this case, however, because it involved the extreme circumstance where the county twice refused to permit the project to go forward at all, first in a residential zone, and then in an agricultural zone with ample space. Guru Nanak, 456 F .3d at 982. Those facts are extremely far from this case, where the Town has welcomed the synagogue for decades. The question here involves expansion on a pre-existing lot, in the middle of a built-up residential neighborhood, which is not remotely addressed by Guru Nan. The Becket Fund insists that the burden imposed by denial of the CUP must be a substantial burden, but it does so by falsely representing the holding in Castle Hills First Baptist Church v. City of Castle Hills, 2004 U.S. Dist. LEXIS 4669 (D. Tex. 2004). There were two holdings in that case, as the Becket Fund knows, given its involvement. It mentions there was a substantial burden shown with respect to "expansion," (it was really only the addition of a fourth floor to a pre-existing building), but fails to mention that the court also held that a denial of a parking expansion request did not impose a substantial or undue burden. The latter part of the holding, of course, is far more relevant to this case. See also Lighthouse Inst. For Evangelism, Inc. v. city of Long Branch, 406 F. Supp. 2d 507 (D.N.J. 2005) (finding no substantial burden where church was forced to look for other location following passage of redevelopment plan). The Becket Fund also misrepresents the religious beliefs of Conservative Jews, like this congregation, in order to make its "substantial burden" argument. It implies that marriages and marriage celebrations must be held in a synagogue, that bar mitzvah celebrations must be held in a synagogue, and that there can be no split services on High Holy Days. None of these claims are part of this particular faith. It also completely misstates the beliefs governing kosher kitchens, which have no so-called "distance" requirements. See http://www.chabad.or2/librarv/article.asp?AID=82667 A request to intensify use in a house of worship in a residential neighborhood without a religious basis bars a finding of "substantial burden." See Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006) (rejecting substantial burden argument and upholding jury jury finding that operation of day care in religious building in residential neighborhood was not a sincere exercise of the church's religion). II. The Town Has a Compelling Interest in Preventing a Combination of Noise, Lighting, Glare, and Traffic Negative Effects on a Residential Neighborhood The Becket Fund collapses the numerous negative secondary effects resulting from the multi-purpose room into mere traffic and "aesthetics" concerns, as though such concerns are trivial as a matter of law. The record establishes a much more comprehensive set of negative effects, including traffic, parking, lighting, glare, and noise, each of which is a potential factor every weekend night of the year (and perhaps week nights). The combination of these factors poses an extraordinary and new burden on the entire neighborhood. There is a very strong argument that the Town has a compelling interest in rejecting any proposal that will permit this collection of negative secondary effects to harm residential neighbors, or a compelling interest in finding meaningful mitigation for each one. The Planning Commission was forced into the denial by Congregation Kol Shofar's demand for a vote before the mitigation measures could be fully crafted. There is also a compelling interest in this case to address the traffic issues by themselves, because this congregation has a history of having problems with traffic in these neighborhoods even before any addition was contemplated. The traffic problems are documented in Town Council minutes and reqtiired ongoing meetings between Congregation Kol Shofar and Town Council They were resolved in a cordial manner, as stated above, but an ambitious proposal like this one can certainly serve as the tipping point that will prove this issue by itself is a compelling interest. Even if the neighbors' legitimate concerns could be reduced to parking or traffic, which they cannot, the Becket Fund misleads Town Council by declaring that traffic and parking concerns by themselves are never compelling. The Becket Fund relies heavily on Westchester Day School v. Village of Mamaroneck, 280 F. SUppa 2d 230 (S.D.N.Y. 2003),judgment vacated by 386 F.3d 183 (2d Cir. 2004), remanded to 363 F. SUppa 2d 667 (S.D.N.Y. 2005), because it is pleased with the District Court's rulings, but it fails to point out to Town Council what the Second Circuit in the same case had to say about traffic as a compelling interest: We know of no controlling authority, either in the Supreme Court or any circuit holding that traffic problems are incapable of being deemed compelling. It is true that one circuit opinion in the Eighth Circuit recited that "interests in traffic safety and aesthetics . . . have never been held to be compelling." Whitton v. City of Gladstone, 54 F.3d 1400, 1408 (8th Cir. 1995) (emphasis added). However, the fact that the case reports do not reveal any case in which a court has found traffic concerns compelling does not support the proposition that traffic concerns by nature cannot be compelling. While it is true that there are no authoritative cases holding that a traffic concern satisfies the" compelling interest" test, nor are there authoritative cases holding that a traffic concern cannot satisfy the test. In fact, there are very few rulings discussing the question, and none that we know arising under RLUIPA. We make no ruling on whether the traffic concerns specified by the Board are compelling or on the broader question whether traffic concerns can ever represent a 'compelling concern' . Westchester Day Sch. v. Village ofMamaroneck, 386 F.3d 183, 191 (2d Cir. 2004). This is an awfully lengthy, detailed, and recent discussion of whether traffic can be a compelling interest to omit from their analysis, unless the intent is to intimidate the Town through misrepresentation of the law as well as attorneys fees. The Becket Fund, as is typical, treats all concerns relating to private homeownership and the retention of a residential neighborhood's character as trivial, if not just vanity. In the United States, though, this is a mistake. Private property, especially a private home, has long been considered one of the cornerstones of this country's greatness. There is precisely nothing in the RLUIP A legislative history that would indicate that members of Congress intended to harm or even affect residential neighborhoods. Indeed, there is no reference to residential neighborhoods at all. See generally Marci A. Hamilton, Federalism and the Public Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act, 78 In. L.J. 311 (2003). We can glean Congress's view of the sanctity and importance of private homeownership, though, in recent statements by members: "If anyone does not realize how important private ownership of property is to both our freedom and our prosperity, they should do a more detailed study of economics and world history. The most prosperous countries in the world, without exception, have been those that gave the greatest protection to private property. Not only is it important to individuals, it is important to government as well." 151 Congo Rec. H5167-05 (2005) (statement of Rep. Duncan). "The protection of homes, small businesses, and other private property rights against government seizure and other unreasonable government interference is a fundamental principle and core commitment of our Nation's Founders." 151 Congo Rec. S7429-01 (2005) (statement of Sen. Cornyn). There is little doubt that RLUIPA, at least as it would be interpreted by Congregation Kol Shofar and its representatives, unreasonably subjugates the interests of residential homeowners to ambitious religious projects. That is especially true where a religious entity tries to squeeze an incompatible use onto an existing religious building that is already placing burdens on neighbors and that is in the heart of a residential district. Despite the Becket Fund's hyperbole, Congregation Kol Shofar may not be able to establish a "substantial burden" from either a denial of the multi-purpose room proposal or rigorous mitigation measures. III. Town Staff Has Proposed Less Restrictive Means of Achieving the Town's Compelling Interest than Full Denial of the CUP, But the Least Restrictive Means Inquiry Does Not Require Rubber-Stamping Congregation Kol Shofar's Current Demands The discussions over mitigation of the negative secondary effects of the proposed project were progressing nicely when Congregation Kol Shofar demanded in up-or-down vote. At that time, the Planning Commission was not prepared to fully endorse the proposal on the table, but gave Congregation Kol Shofar what it demanded in terms of a vote. Thus, it seems clear that approval of the CUP might have occurred at the Planning Commission stage if Congregation Kol Shofar had had the patience and good faith to continue the process (which is always a time-consuming process. whether one is a secular or a religious developer). It certainly cannot be the case that a religious landowner can hold a town responsible under RLUIP A by unreasonably refusing to continue what were otherwise productive negotiations. Town Staffhas suggested approving the CUP, but only with "further modifIications to] the project through conditions of approval." Town Staff Rep., at 10 (Oct. 13, 2006). Town Council should consider whether these modifications are adequate for the residential zoning.2 ll. There Is No Unequal Treatment Evident in the Record The Becket Fund and the Ragghianti memo demand not only equal treatment, but better than equal treatment. There is no other entity in all of Tiburon that has the right to do what Congregation Kol Shofar demands: operate a catering hall on weekends to late hours in a residential district. IV~ RLillP A Violates the Etsablishment and Equal Protection Cia uses The Town should also ~e aware of the Establishment Clause and Equal Protection Clause arguments available to the neighbors. The Ninth Circuit has held that RLUIPA is legitimate exercise of congressional power, but it has not yet ruled on whether it conflicts with the Establishment Clause. Guru Nanak, 456 F.3d at 994-95. 2 One point Town Council should understand is that, as a matter of First Amendment doctrine, it may not treat similarly situated religious entities differently. So any privileges granted to Congregation Kol Shofar in a residential neighborhood would have to be granted to another religious entity making similar demands in a similarly zoned neighborhood. RL UIP A creates two classes of landowners - the first-class landowners, who receive special privileges to avoid neutral, generally applicable land use regulations, because of their religious identity All other landowners within a community, like the Tiburon neighbors here, are second-class citizens. They cannot exercise the religious landowners' special privileges and must accommodate the religious landowners' otherwise illegal, negative secondary effects. The federal. government is treating two otherwise similarly situated landowners in radically different ways. Government distinctions like this, which are based on religious identity are subject to strict scrutiny, and violate both the Equal Protection Clause and the Establishment Clause. See Bd. of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O'Connor J., concurring) ("Absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits. As I have previously noted, 'the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community. ' Wallace v. JafJree, 472 U.S. 38, 69 (1985).") This is an excellent case to illustrate the fundamentally unfair dynamic of RLUIPA. Congregation Kol Shofar is requesting what is, to be fully truthful, a catering hall with a full kitchen. If any of the residential neighbors had the temerity to demand the right to build an 8,000+ square- foot building for the purpose of holding activities every weekend night, including Sunday, until late hours, in the same neighborhood, they would not even get a foot in the zoning door. This is akin to Justice Stevens' concerns in Boerne v. Flores: If the historic landmark on the hill in Boerne happened to be a museum or an art gallery owned by an atheist, it would not be eligible for an exemption from the city ordinances that forbid an enlargement of the structure. Because the landmark is owned by the Catholic Church, it is claimed that RFRA gives its owner a federal statutory entitlement to an exemption from a generally applicable, neutral civil law. Whether the Church would actually prevail under the statute or not, the statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Wallace v. JafJree, 472 U.S. 38, 52-55 (1985)." City of Boerne v. Flores, 521 U.S. 507, 537 (1997) (Stevens, J. concurring) Here, however, Congregation Kol Shofar demands a right to have such a space, and it does so with the Becket Fund's utterly extravagant and misleading claims about the religious need for such a space. Claimed need for kitchen "distance": While' all sources on how to prepare kosher food or keep a kosher kitchen mention the necessity to keep milk and meat from touching, there is no mention anywhere of a minimum distance. Indeed, single sinks and single countertops are acceptable.3 Jewish law for Rosh Hashanah and Yom Kippur It is contrary to the logic of the Rosh Hashanah if services were to end at 2:0~, because the two days of rosh that begin the "High Holy Days" are considered by many to be one long continuous spiritual day. There is also no support for the necessity of a single service. Kol Nidre. Not everyone goes to kol nidre, so it does not involve the full congregation, which reduces the need for the multi-purpose room. Weddings and Bar and Bat Mitzvahs. The Becket Fund does not make the mistake of claiming that the parties following weddings and bar or bat mitzvahs must occur in the synagogue, and the Town Council should not read their language as though they must. Moreover, while some days [Tuesdays, first of the month] may have been preferred for one reason or another, certain days were explicitly prohibited. Jewish weddings are not held on Shabbat [Sabbath], because work and travel are not permitted then, and, therefore, the need for late Saturday activities in the multi-purpose room does not support the need for such a space. Given the tradition that makes Tuesday or the first day of the month a favored day for weddings, Alternative 7 is lacking in that it inadequately addresses the likely use of the multi-purpose room during the week for such activities, with the attendant lighting, traffic, parking, glare, and noise problems. There is no religious requirement that parties following weddings or bar or bat mitzvah's occur on synagogue premises. See www.mviewishlearnin2:.com 3 The Becket Fund's apparent notion that a rabbi has to be present in a kosher kitchen at all times is truly mystifying and deserves no further comment. Given that the reasons for the multi-purpose room are not based on religious requirements, were the Town Council to grant the CUP to the detriment of neighbors, there is strong evidence that the Town would have violated both the Establishment Clause and the Equal Protection Clause. .4 The Becket Fund fails to bring to the Town Council's attention the fact that few courts have ruled on the constitutionality ofRLUIPA, and that the Supreme Court has only upheld against Establishment Clause attack the prison provisions ofRLUIP A. Cutter v. Wilkinson, Cite. In that case, the Court explicitly stated that it was not addressing the land use provisions, so any attempt to use Cutter to undermine the land use provisions is at best a hope, not a legal argument. Conclusion Town Council has the obligation to consider the interests of all parties, the goals and purposes of the town plan, and all relevant law. There is good law and a good record to support the Planning Commission's determination to deny the CUP application, at least as it now stands. Respectfully submitted, MARCI A. HAMILTON, Esq. 4 There is no indication that the proposed four classrooms cannot accommodate the activities listed in the Becket Fund's brief, other than the wedding and bar and bat mitzvah parties and the single service on High Holy Days. These latter are not required by Jewish doctrine, and, therefore, denying the CUP for the multi-purpose room (or scaling it back significantly) would not necessarily burden any religiously required activity. TIMOTHY METZ AND JENNIFER JORGENSEN October 20, 2006 Mayor Smith and Tiburon Town Council Tiburon Town Hall 1505 Tiburon Boulevard Tiburon, CA 94920 ~~OWN COUNCIL LA TEMAIL # / [:\ ~- (G ~"-U.'~-I?-n=~ "', 10) r------- ---- . ~I oor L Lp.-L'-- "j--II--;, i.'-;-~-;'7T -;: 7::;,:. ,-_....J If /I. !\, f~ III ~l y! .'v'.: ,) :..lJ J ~ TOWf\J 01- i r:.; ~Ei~)f~ -l Re.: , Kol Shofar Expansion Plans MEETING DATE If.. ,,'(-.It Mayor Smith and Members of the Town Council: We welcome and recognize the vital role that a religious ~rganization such as Congregation Kol Shofar plays in a community like Tiburon. Their presence in our community adds tremendously to our daily life as citizens of a broader community than just the neighborhoods we live in. That being said, there is a broader neighborhood that Congregation Kol Shofar exists in and their proposed expansion project needs to take into account the impacts that this neighborhood will experience. Among those negative impacts that would result from the expansion project as currendy proposed are increases in traffic and noise at late hours as well as unsafe conditions on our streets as a result of a parking proposal that dramatically under serves the capacity of their proposed facility. Tiburon Zoning Ordinance Chapter 16, Section 5.08.04(d) states: . "Place of assemblY: one parking space for each 4 seats of maximum seating capacity; or one for each 40 square feet of assemblY area; whichever is more; and Section 5.08.04(k)(1). Child Care: 3 minimum, plus one for each 10 children over the first 15." According to information provided in the EIR and Alternative 7, aside from the High Holy Days, maximum capacity of the facility will occur during a heavily attended Shabbat service where 400 people will attend. Congregation Kol Shofar says in the EIR that during these services, both the Multi Purpose Room and the Sanctuary will be used. Therefore, for a 400 person Shabbat service, parking required by this ordinance would be between 246 spaces (based on usable square footage) and 299 spaces (based on capacity). See Table 1 (attached) for details. In the Staff Report dated October 13, 2006, Staff has recommended a 15% reduction in the size of the proposed Multi Purpose Building. Staff assumes that the entire spa~e reduction would come from the Multi Purpose Room and not from the Lobby or other areas of the building. We have no assurances that this will end up being the case. Our assumption must be that a 15% reduction in building space would see an equal application of the lost space or even a compromise in ancillary space such as storage space or the Lobby. That being said, even indulging the assumption Staff has made for the moment, for a 400 person Shabbat service, parking required by this ordinance would be between 209 spaces (based' on usable square footage) and 253 spaces (based on capacity). Again, see Table 1 (attached) for details. We believe these parking requirements should be used' as a minimum starting point in determining the parking required by this expansion project. There are several reasons for this: 1. The Tiburon Zoning Ordinance assumes very generously that one space.will be provided for every four people of capacity. In reality, as observed and published in the EIR from the Robert L. Harrison Transportation Planning surveys from 2004 (see attached Table ~, the actual Congregation Kol Shofar parking survey rate is 2 people per car. Based on this survey rate, 200 parking spaces would be needed for the current 400 person Shabbat service. 2. There is no guarantee that the attendance at Shabbat services will not grO\v. If attendance grows and only 200 parking spots have been provided, there will definitely be spillover of all excess parking onto neighborhood streets. This will in turn lead to unsafe turnarounds, increased traffic and unsafe conditions on our streets. 3. There is no guarantee that dramatic increases in participation or choices bf sen;ices either on Shabbat or on another day of the week will not occur. Since so many days already see high attendance at functions, it will not take much to break the parking model wide open by expanding facility usage. If the project is built as proposed (or as modified in the Staff Report), there would be ample room for more concurrent functions to take place on site. This would push an already compromised parking situation over the edge. 4. Based on data available in the Building Occupancy Summary from Figure 5 of the DEIR (attached as Table~, the project as proposed in Alternative 7 will have a capacity (in assembly areas) of 2,455 people with 29,970 NSF (see attached Table 4) and 2,273 people with 28,510 NSF as recommend by the 10/13 Staff Report (see attached Table 5). Obviously, if the facility is built as proposed, there will be the potential to dramatically increase the parking (and therefore the traffic and safety impacts) if more concurrent functions take place in the ample space that would be available. In light of this, the parking required by the Town Zoning Ordinance seems eminently reasonable. Another major issue we have with the project as originally proposed, as modified by Alternatiye 7 and as currently proposed in the 10/13 Staff Report is the late night noise issues associated with functions that do not end until after 9:00 PM (inclusive of clean up). The hours of operation for the Kol Shofar facility should end no later than 9:00 PM (inclusive of clean up) on any night of the week. Often the noisiest part of a function is the time at the end when caterers are moving trays and carts to their trucks, when party rental companies are packing up tables and chairs, and when musicians are taking down their equipment. We live in a residential area where c~dren and adults need their rest. In addition to children needing rest to be healthy and prepared for school, many adults work in the financial markets where they work "Market Hours". That means that these adults need to be at work by 6:30 AM in order to start work when the New York Stock Exchange opens for business. If late night parties and cleanup are happeningon weekdays and Sundays, these hard working neighbors will have their rest disrupted and their health will suffer for it. In addition to the late night hours proposed for the facility, we take issue with the size of some of those late night functions, even if they end by 9:00 PM (inclusive of cleanup). A function with 250 people is far more obtrusive and noisy than a function with 50 people. We would humbly recommend a resolution whereby large scale celebratory events that unreasonably burden the neighborhood are hosted at off-site facilities. That being said, the neighbors would welcome smaller celebratory events (still subject to a ending time of 9:00 PM) that are more in character with what would be expected in a residential neig~borhood. It is not the celebratory event itself that causes the significant impacts; rather it is the size, frequency and ending times that the neighbors object to. Generally speaking, smaller parties tend to be quieter and less obtrusive than larger parties. The multi purpose room proposal should be reviewed with these guidelines in mind. Upon review of all the Staff Reports for the original project, Altemativ~ 7 and now the proposed changes coming from the 10/13 Staff Report, it is clear that CUP management is the solution that Congregation Kol Shofar would like to see implemented for managing facility capacities and usage. That is all well and good until it comes to attempting to enforce those CUP limitations. Enforcement of a CUP such as the one being proposed is impossible. There are too many enforcement issues to document, but without a clearly defined and measurable plan, CUP enforcement is impossible. The following questions need to be resolved and proven to be effective before CUP enforcement will ever be an effective solution: . Who will monitor the number of functions taking place at the facility? How will they monitor those functions? . Who will monitor the time the functions end? How will they monitor those functions? . Who will monitor whether shuttle services are used when they are required? How will this be monitored? . Who will monitor whether parking in the lot is being used before people spill onto neighborhood streets? How will this be monitored? . Who will monitor the number of attendees at a function? How will the number of attendees be monitored? Having people sign in is burdensome and relies too much on the "honor system". The enforcement mechanism here needs to be airtight. . If CUP conditions are violated, what are the ramifications? There needs to be a strong incentive to abide by the CUP. Putting functions on a calendar is one thing; tracking them and making sure their limits (time, attendance, number of functions) are not exceeded or abused is quite another. This monitoring burden falls on the Town, not the neighbors, so. a strong methodology must be determined no matter how the CUP gets written. The CUP compliance burden of proof rests with the Town. Neither the neighbors nor Congregation Kol Shofar can be the monitors of CUP compliance. There was a similar synagogue build/expansion project in Berkeley for Congregation Beth Elless than two years ago. In that case, the synagogue was built from the ground up after it relocated from a prior location. Congregation Beth El has 600 member units. Congregation Beth El moved into a facility that is 33,000 square feet. Congregation Beth El has a 2,183 square foot Social Hall and their original proposal was for a 2,890 square foot Social Hall. Congregation Beth El has functions monitored by a CUP. Congregation Beth El's neighbors have been fighting an ongoing battle with lack of CUP enforcement and CUP violations because proper CUP monitoring was never implemented. Please do not let us get into this same situation. Use the foresight that we have right now to craft an effective solution for this project. Once again, thank you for your consideration. Sincerely, Timothy Metz and Jennifer Jorgensen 50 REEDLAND WOODS WAY' TIBURON, CA . 94920 PHONE: 415.383.5381 ... "'C .- "'C .- CD (J Q) (J .. ca .. ca .S ca .S ca go go O:::C o:::c C)O C)O c"'C c"'C .- CD .- CD ~U) ~U) .. ca ... ca :'.t:J :'.t:J "'C ('I) ('I) CO "'C CO ('I) ~ ('I) ~ ...... 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C/) Z '"d ~ rn Cl) :E u t'l ~ U t'l Cl) ~ ~ ~ ..c E rn .< ~ ~ o ..c: C/) ~ t:: o .+=3 t'l M Cl) ~ M t:: o U I lL') ~ :0 ~ Christianna Seidel & Peter Stock 30 Reedland Woods Way Tiburon, CA 94920 ~~~~~,~~ m1 0 C T 2 0 2006 ill) "'(OWN CLERK TOWN OF TfBURON Tiburon Mayor and Town Council Tiburon Town Hall 1505 Tiburon Blvd Tiburon, CA 94920 TOWN COUNCIL October 20, 2006 LA TEMAIL # / Re: Kol Shofar Conditional Use Permit Application MEETING DATE I'-~~"~ Dear Tiburon Mayor and Town Council Members, The proposal for the expansion of Congregation Kol Shofar (CKS) is too ambitious for our neighborhood. The negative impacts resulting from the proposed conditional use permit and expansion are noise, lighting and glare, significant increase in traffic, lack of sufficient parking and late hours of use for events in a residential neighborhood. Our family and home would be adversely impacted since we live directly across the street from the project site. The impacts would also adversely affect all the homes on our street as well as many of the residences in the greater neighborhood. Increased Traffic The staff report for the April 24th Planning Commission meeting says, "Unquestionably, the number of new traffic trips that would be generated by the proposed Kol Shofar expansion is much larger than other recent projects" referring to St Hilary's Church, The Tiburon Peninsula Club, and the Belvedere Tennis Club (p. 7). This magnitude of traffic in a quiet residential neighborhood is out of character and poses significant safety impacts for the residents, particularly the turn-arounds. 20 New Parking Spaces are Grossly Inadequate The sanctuary, when combined with the multipurpose room and adjoining spaces, has a capacity of 1,430 persons according to the staffreport. .The Marin Civic Center auditorium seats 2,000 people. CKS has only 139 planned on-site parking spaces, a ratio of 1:10, one parking space for every ten people, versus 538 parking spaces at the Civic Center with a ratio of 1 :4, one parking space for every four people. Even with the 1:4 ratio, the Civic Center utilizes overflow parking on the nearby streets as it reaches full capacity. Per code and elaborated upon in Table 5 of the DEIR (p. 66), CKS should provide 246 parking spaces based on square footage or 299 based on the capacity of the sanctuary and multi-purpose room. Clearly there is not enough on-site parking for the current facility and the net gain of only 20 new parking spaces is grossly inadequate. "A new use, structural addition on such a parcel shall be allowed only if it does not increase or create a parking deficiency as determined in this section." (Section 5.08.00 of the Parking Code) To not apply the Town Parking code, particularly when "the EIR traffic engineer considers an increase in actions that would potentially injure or kill a child or other pedestrian is significant", is to ignore the health, safety and welfare of the community. Overflow Parking Condition 9 ofKol Shofar's CUP Resolution 97-17 states on-street parking on Via Los Altos and Blackfield Drive is expected and accepted to meet overflow parking on occasion. Kol Shofar has exceeded occasional use and relies heavily on street parking on most Saturdays and Sundays. Many of the congregants park on Via Los Altos; however, there is no sidewalk on the side of the street that allows for parking. This is also true for parts of Blackfield Drive and both are steep streets with blind curves. On any weekend one sees parents, their children, and older folk alike walking in the street or crossing the street randomly to get to the temple. Very few people use the crosswalks since their locations are inconvenient and indirect. The infrastructure of this neighborhood does not support regular, intensive on-street parking. It endangers both residents and congregants alike and creates significant liability for the Town. This issue of safety is a compelling reason to create the preponderance of parking on-site or to shuttle people to the site. Valet Parking and Shuttle Service Westminster Presbyterian has valet parking, regardless of anticipated attendanct; for all their services in an effort to keep their parking on..site. Kol Shofar should be held to a similar standard. Although even with help of valet, CKS still needs to provide significant additional parking on-site to accommodate the preponderance of its attendees. Codified Parking Agreement In addition per the parking code, Kol Shofar is responsible for identifying a remote lot and securing a written agreement for its shuttle service. It appears that Kol Shofar has not filed this document. While there may be a tacit agreement recognized by the Town, a proper and binding agreement is important to the neighbors. Parking is a significant issue for the various neighborhoods because we have all experienced the dangers and adverse impacts of our streets being packed bumper to bumper with cars parked by attendees of events at Kol Shofar. Furthermore, the town staff concluded the parking receipt mitigation was too unwieldy and difficult to monitor and went on to recommend "no parking signs" as an alternative to control parking for events. This only serves to push the tr~c in search of parking into other neighborhoods. This existing solution is ineffective. In the current staff report, planners recommended that if CKS does not comply with the parking restrictions set forth in the CUP, that the receipt method could be implemented. The parking receipt solution has been deemed inadequate therefore it is unrealistic to suggest it be applied as a final solution ifKol Shofar does not comply. Nighttime Noise There are a number of homes that are currently impacted by noise levels that are not listed in the FEIR. Neighbors not mentioned in the noise study that we know are affected by current noise levels are numbers 10,30, and 40 Vista Tiburon and 31,32 and 38 Via Los Altos. There are six neighbors on Reedland Woods Way, not five as stated in the FEIR (p. 45) that face the Temple that would be adversely affected. The acknowledged "bowl effect" in the FEIR (p. 92) 'causes more homes to be affected than the study leads one to believe. In addition, homes on Blackfield, many whose bedrooms face the street, would be affected by late night traffic noise and parked cars in their neighborhood. While the annualize Ldn is below 60 dB with Alternative 7, the night-time noise generated by proposed evening events is predicted to create noise spikes at night as much as 25 dB higher than existing noise levels, as noted in the FEIR. Reduced events is a step in the right direction, but 27 nights with crowds up to 250 people until!! PM remains an incompatible "pattern" of use. To allow this expanded facility to be built based on caps set to control the environmental impacts is to create an inherently faulty system where the neighbors will have to register complaints on an on-going basis to keep the number of events and the hours in check in order to maintain the residential quality. Late night noise is an unacceptable impact. The CKS attorney states that the inconvenience of nighttime noise on several residences does not necessarily create a significant impact. (FEIR, p.42) Firstly, many more than several residences will be inconvenienced; secondly, nighttime noise disruption is more than an inconvenience: the disturbance would affect adults' and children's sleep which in turn affects their well being and performance at work and at school; and thirdly, it is inappropriate to marginalize the many residences surrounding the temple. 11 PM on Saturday nights with clean-up lasting 1 hour later is simply unacceptable in a quiet, established Tiburon neighborhood. A 9 PM completely cleaned up, lights out policy on some Friday and Saturday nights is acceptable since other Tiburon residences have agreed to this in similar circumstances. Celebratory events on Sunday nights when families are preparing for the work and school week, is clearly in appropriate. "Uncharacteristic" noise at night in a residential neighborhood is incompatible and should not be allowed. St. Hilary Church's CYO gym closes by 7:30 PM weeknights and 5:30 PM Saturday and is closed on Sundays. That seems reasonable and could serve as a guideline for Kol Shofar's hours of use. We ask that the City officials uphold the General Plan and Municipal Code and work with CKS to achieve a proposed facility that is compatible with its surroundings and the infrastructure of the neighborhood. Visual Impacts Living across the street from CKS, we can see clearly the story poles for the proposed classroom addition. The height of this addition makes its presence unnecessarily known to the neighborhood. .The photo simulation in the DEIR showing the outline of both the classrooms and the multipurpose facility grossly understates the visual impact of these structures. As the Staff report points out, the multipurpose room extends down slope, presenting a significant visual impact to the existing neighborhood. We support the recommendation by staff to pull the building back into the level area so it tucks into the site rather than protruding from the site. In addition, the height of both additions should be lowered to lessen the visual impact. Light and Glare The proposed expansion plan is acknowledged to produce headlight glare into nearby homes from cars. With the proposed hours of use extended well into the night, combined with the addition of upper parking lot and the grand circular turnaround, we would experience significant impacts in our home, as would several other neighbors. The reduction of nighttime hours during the week and weekends would mitigate this problem. And although the addition of berms and evergreen bushes and/or trees would help to screen headlight intrusion, there are very little to none in evidence on the current landscape plans. In addition, the light scoops on the roofs of these buildings are directed toward Vista Tiburon homes and will spill light during nighttime use. The New Preschool Under California preschool-licensing requirements, a 150 children preschool must have 11,250 square feet of outdoor play space. The existing playground has been consumed with proposed buildings. Little focus or inquiry has been placed on the school expansion. I believe it merits closer scrutiny prior to the approval. New Events versus Existing Activities We are concerned with the increased intensity of use, hours of use and the associated environmental impacts. In Exhibit 1 of the Staff Report for the May 10th meeting entitled, "The Multi-Purpose Room Usage", Kol Shofar states "Many of those described functions have been going on for years at the Synagogue. Few are new and only those that are new are the subject of the EIR for the CUP currently before the PC." Kol Shofar goes on to say, "with the exception of those functions described below as new, all events currently take place at Kol Shofar, and have for years, although in a drastically inadeauate space." There is a subtle and confusing differences between the use of activities and events, and between new and existing. It is very important to clearly define the terms being used and articulate between activities that have been allowed but not utilized prior to the expansion. The numbers in the EIR studies used to document existing conditions do not show the existing facility used at its maximum capacity, nor do the projected numbers for the expansion represent the impacts of the new facility used to its fullest extent. The neighbors understand and accept the desire of the congregation to offer more and/or better programs to enhance their community, but at what level of utilization does the facility actually create health, safety and welfare issues for neighborhood residents as well as for the congregants? Synaplex Initiative In the Congregation Kol Shofar newsletter called "The Rabbi's Study" dated July 2, 2002 on page 1 (See Attachment A or go to http://www.kolshofar.org/leadership/rabbis/sermons/rosenzweig.html the rabbi writes, "It's probably no wonder one of my favorite movies is "Field of Dreams".... [Costner] is out in the cornfield where he hears a voice whispering 'If you build it they will come' ." He goes on to say, "Let me tell you that our efforts have been met with success beyond our wildest dreams. Our Saturday Night at the Synagogue Program is drawing hundreds of people to Kol Shofar..." As the Rabbi said they would not turn people away from a house of worship and that is as it should be; however, the potential for increased usage and the associated significant impacts as they relate to health and safety are very real given the capacity of the proposed facility. The Synaplex Initiative is very much related to this topic. While the Staff Report, dated October 13,2006 states that Synaplex is too "speculative" and is therefore not addressed, is to miss a significant issue. Kot Shofar is a certified and paying member of the Synaplex Initiative and is listed on the STAR website as a participant. See Attachment B or go to: http://www.starsvnagogue.org/SvnaplexCurrentsvnagogues/ The Synaplex program is developed and refmed to attract all ages and diverse interests to come together as a community through a variety of classes and venues. It is used nation-wide and has been "wildly successful". According to StarSynagogue, "Data for our first two years full years of Synaplex shows an increase in attendance of 50% on Shabbat mornings and more than 80% on Shabbat evenings". See Attachment C or ' http://www .starsvnagogue.org/SvnaplexResultstodate/ Currently attendance varies between 250 to 400 people for Saturday services, with the Synaplex, up to 600 people may attend. That is similar to the High Holy Days attendance and its attendant traffic and parking issues. "Our Saturday Night at the Synagogue Program is drawing hundreds of people to Kol Shofar..." If the words preached by Rabbi Derby in his sermon are true: "Our Saturday Night at the Synagogue Program is drawing hundreds of people to Kol Shofar...", why does the memo from Scott Hochstrasser, dated March 21, 2006, list the attendance to these events . as 100 people. Other questions also arise: Why did Kol Shofar use the 2003 figure for the number of events? How many Saturday Night at the Synagogue Programs occurred in 2004 and 2005? How many people actually attended these events? ~t happens when the quota of 100 people is reached? In fact, how will any of the numbers provided for the new events at Kol Shofar be verified given the capacity of the multipurpose room far exceeds the caps set forth in the CUP proposal? The rabbi stated at a Planning Commission meeting that all comers will be welcome (as they should be to a house of worship). But the issue at hand is to understand the frequency of these events, hereto undisclosed by the synagogue, and how to mitigate the impacts of a concentrated program of events recommended by Synaplex and maintain a safe and compatible use of the neighborhood? The residents of Vista Tiburon have located their families in Tiburon because of its quiet and safe nature. We ask the Town Council to uphold the General Plan and Zoning Ordinances. The goals and policies of the General Plan should be applied even-handedly to all within the jurisdiction of the town. Sincerely, /ILA/ Christianna Seidel & Peter untitled1.html Page 1 of 4 fl1Tl1c/r,M c/t// II Rabbi_s' Pa~ WHAT WOULD ROSENZWEIG SAY? Kol Nidre, 5757 One of my favorite stories about Kol Nidre is a modem story about the German Jewish philosopher Franz Rosenzweig. Rosenzweig grew up in an assimilated, secular Jewish family in the years before W orId War 1. As a young man in search of spirituality he made the decision to convert to Christianity, and at age 27 he went to the synagogue on Kol Nidre eve in order to say goodbye to Judaism. But something happened to him. The power of that service was so real, he was moved so deeply, that he decided not to convert but rather to hnmerse himself in Judaism instead. This is a haunting story and what haunts me about it is a single question: what would happen if Franz Rosenzweig came into Kol Shofar? Would he have had the same experience? What would he feel? What would happen inside him? Would his life be changed forever by the experience? Some of you undoubtedly read the article in the Jewish Bulletin last week which boldly announced that "the majority of Bay Area Jews neglect or even consciously shun synagogues for most of the year." yet, the article, continues, these same Jews return to their spiritual birthplaces for two days every fall. And I am haunted by the question: what is it about synagogue life that fails to attract and arouse the fervor of Jews? If a visitor walked into our synagogue, what would she find? What would she feel? Would she feellnoved by transcendence or by boredom ? Would she feel a dynalnic connectedness or just another disconnect? Let me confess to you that these questions are much more than academic to me. They are "devarim ha- omdim be-rumo shel o/am" -matters that are at the center of the universe. And I take them very personally. Despite a lifetime of watching people flock to synagogues two days a year, only to stay away the other 363 days, I nevertheless must believe that a synagogue which thinks of itself as a community more than an institution will be attractive to people; that a community based on spiritual and ethical values which offers people the opportunity to expand their own spiritual and ethical sides will be attractive to people; that a religious community which is truly open to personal exploration and which addresses people's joy and suffering, love and death, which addresses people's quest for meaning must be attractive to people. I believe this. Probably, I need it to be true. It's probably no wonder that one of my favorite movies is "Field of Dreams" . You remember: midwestern farmer Kevin Costner is out in his cornfield where he hears a voice (on the High Holidays we would describe it as a "still, small voice") whispering "If you build it they will come." That's what I believe about synagogues: if you build an authentic Jewish community, one in which Judaism is lived authentically, honestly, passionately, joyfully, then people will come. Particularly at this moment in history when we are riding a great wave of interest in the spiritual, in personallneaning, people will come. During the past year and a half we at Kol Shofar have been given the opportunity to find out. Thanks to an initaitive of the Koret Foundation, and with the cooperation and generosity of the Marin Community Foundation, three Bay Area synagogues and Kol Shofar were given the fmancial resources to hire program directors whose job it would be to "build it" and see if they would come. Ostensibly what they were meant to build was a progrmn, but in reality what they needed to build was community. That's what our very fine program director, Karen Roekard, helped us focus on. Building and strengthening community . 1 (\/1 o/'")(\(\{;; untitled 1.html Page 2 of 4 Very early on in our project we made the decision to focus our efforts in two different, but mutually complementary, directions. Because Marin sits at the heart of the spiritual renewal movement in our country, our leadership decided to reach out to those Jews who think of themselves as spiritual seekers. At the same time, we decided to build our own community by focussing on two populations which have been traditionally underserved by synagogues: singles over 35 and adults whose children are already grown and out of the house. Let me tell you briefly that our efforts have met with a success beyond anyone's wildest dreams. Our Saturday Nights at the Synagogue Program is drawing hundreds of people to Kol Shofar not for membership but to experience the spiritual depth that Judaism offers. Our neshama minyan draws a hundred people on Shabbat, many of them members who never come to regular services but who never miss a Neshama minyan. The group of singles now has over 80 names on its roster. They meet regularly for Shabbat dinner and other activities. They call themselves a "mishpacha" -- a family. The same thing has happened to our group of, for lack of any better description, "Empty nesters. " With the nurturing presence of our program director, these 30 -40 households have evolved into a havurah which meets regularly for socializing, discussion and spiritual growth. They have already mapped out an entire year's worth of activities. And that's just the beginning. over the past year 10 new chavurot have been created, including a havurah of mental health professionals whose 25 active members have committed themselves to use their professional skills to serve the Kol Shofar community. Currently they are studying the Jewish traditions surrounding death and mourning so that they can help bring comfort to the bereaved with both their psychological skills. and their knowledge of Jewish tradition. They will also provide volunteer teaching . and guidance about the sticky issues that arise when people come together in community. This year we will see the creation of neighborhood get togethers on Shabbat and other occasions. And all these efforts are designed with one purpose in mind: to empower people, to nurture relationships and connectedness, to foster intimacy, to build a richer, deeply fulfilling community. Kol Shofar has always been known throughout the area for our emphasis on community. I didn't create it, but I'm enormously proud of it. Our Rabbi Emeritus, Rabbi David White and the founders of this synagogue 15 and 20 years ago dreamed of a community whose hallmark would be "haimishness." Just this past Thursday I received a letter from a member which begins: "On January 9, 1981, 1 attended services at Kol Shofar for the first time. My journal entry from that night said, 'What an amazing experience. Went to services at Kol Shofar. This is what I want. It was beautiful, warm. I have never felt so accepted in a Jewish place. Everyone was so welcoming and encouraging... .'" Go anywhere in the Bay Area and mention Kol Shofar by name and you will hear the same thing: "Oh, Kol Shofar, it's so haimisch!" When we were 100 families this was a wonderful accomplishment. Now that we are 470 households, it is simply extraordinary. In fact, 61 % of our members stated that our warm and friendly atmosphere was a very important factor in their choosing to join. Of the four synagogues studied by the Koret Foundation, we are the only one whose atmosphere was of major importance to people. We are people who seek community. And if you build it, they will come. We dreamed that a synagogue might be a place were people could examine and explore the intricacies of Judaism and discover the depth of meaning within it. We dreamed that Kol Shofar might become a safe _~ _ _ ! __ 1_.L__ 1 1 (\/1 O/")(\(\h untitled 1.html Page 3 of 4 place where adults could stretch themselves and grow Jewishly, intellectually and spiritually. You know what we learned this year? Of the four synagogues in the Koret study, we have the highest rate of involvement in adult Jewish education. 67% of our members have participated in Jewish studies this past year, and almost half of us engage in Jewish learning at the synagogue once a month or more. If you build it, they will come. One of the proudest moments of my life occurred last year when a group of Kol Shofar members, led by Anne Zhishka, Elliot Bien and others, stepped forward to take responsibility for a project of feeding the homeless here at kol Shofar on Sunday's. We had participated for years in the tzeddakah project of bringing meals tohomeless shelters and collecting food for the Food Banle And when our members came together to feed the poor here, in our home, I felt again as if Judaism had come alive. They showed me that our Torah is not just words on a parchment. The Torah is alive, and the adults and children who feed the homeless on Sundays are showing us all how to live it. I used to joke that Sundays at Kol Shofar was the quintessential Jewish experience: we study Torah a little, we davven a little" we eat a little, we schmooze a lot! And now we do tzeddakah on Sundays. And, our building is packed on Sundays. Because if you build it, they will come. F or the most part, people will come for a lot of activities and programs. Except services. Kol Shofar appears to be the same as every other synagogue described in the Bulletin article. 270/0 of our our members believe that attending synagogue services is very important. Fewer than that actually attend services once a week. Despite our proclaimed interest in God and spiritual questions, it appears we do not fmd services at all interesting. What conclusions should we draw from this? To me, the most stunning statistic to emerge from the Koret Foundation's study of four Bay Area synagogues is that 99% of members from all four synagogues agreed that it is important or very important for them to be Jewish and for their children to be Jewish. 990/0 That's practically impossible -- you can't get two Jews to agree on anything. So when 990/0 of the members of four synagogues agree -- well, we're talking motherhood and apple pie. We have arrived at the highest value, the elusive sunnum bonum. But note the following: while 99% throughout the Jewish community insist that-it's very important to be Jewish, 7% keeps kosher. 18% attend synagogue services. 19% think its important to experience Jewish culture. 21 % report that they usually light candles on Shabbat. 29% think its very important to observe Jewish rituals. 37% believe its very important to contribute to social justice. 45% say its very important to have a bris for their male children. And these are synagogue members! Imagine what the unaffiliated must think! And at Kol Shofar, 24% of us have a Shabbat dinner. Only 2 1/2% regularly do havdallah. But 99% of us think its important to be Jewish. What shall we make of these facts? What are they telling us about ourselves? I suppose it depends on whether you like to see the glass half full or half elnpty. The fact that 99% of all synagogue members say that being Jewish is important to them suggests that they feel real commitment to Jewish community and identity. They express considerable interest in religious programming and in studying Jewish spirituality. But at the same time the vast majority of us are ambivalent about how to translate that into daily practice and meaning. We do not seem to make room for religious content to our Jewish lives, and the key traditional determiners of Jewish identity- keeping kosher, lighting shabbos candles, having a bris, going to the synagogue for prayer -seem to be irrelevant. We distance ourselves from daily practice and observance. Ritual has little place in our 1 f\ /1 f\ /~f\f\~ untitled I.htmI Page 4 of4 Jewish lives. The activity of tefillah is, for all intents and purposes, a forgotten art. I wonder if we are afraid to be religious. In our current political and cultural climate, where religiousity is associated with extremism and with the far right, luaybe its just not PC to be religious. Or maybe, the meaning of being Jewish is going through a radical transformation. For us, today, being Jewish means belonging, connecting, having a warm. Jewish feeling, learning. We gravitate towards the intellectual pursuit, the social connection. The spiritual, ritual practice is ignored. Consider again our Sunday morning program. It's amazingly popular. And thanks to the generosity of one of our members we have this year added a new feature to our Sunday morning program: a cappucino cart. We call it "Mi Ka-Mocha." The name is cute, but also revealing. The building is jammed. And the success of our Sunday program has virtually replaced Shabbat as the day of gathering at the synagogue. If you build it, they will come, but not for davenning and not for regular ritual practice. It's the sign of the times. The truth is Jews are changing, and Jewish identity is in flux. In luany ways our Jewish lives are fuller than ever before. But we are giving up mitzvot. Weare giving up the ritual practice that gives energy and life to our spiritual search. Weare abandoning the very activities that concretize the spiritual meaning we hunger for. 150 years ago most Jews gave up the notion of a commanding God. We have since even given up the possibility of hearing God's voice and feeling God's presence through the mitzvot. We have discovered that there ~e no consequences -~no punishment --for not doing the mitzvot. But we have forgotten that there is awesome consequence when we do the mitzvot --we are raised to a new spiritual level, to greater closeness with God and greater awareness of the gifts and blessings we have received. I am haunted by Franz Rosenzweig. What would he fmd here, at Kol Shofar, that would change his life forever? What would he experience here that would set his soul on fire and move him to a life devoted to God and Torah? I hope you'll ponder my question over the next day. And I hope you'll let me know what would luove you, too. Because the real question is not about Rosenzweig. It's about you. 1. 1._1_1_._1_______1_________=_1..4--1 10/1 anoo,; What's Playing at a Synaplex™ Near You? Page 1 of7 11 tr flc"l-f Me ^' / 6 -nlex -~......... 28 Tishrei 5767 AbQut Synaplex" Synaplex~Pttllto . Album FAQs Other STAR prograrnS About STAR Contilct Us Horne STAR GAZER Newsletter I Signup ~~ Svnaplex™ Participant Login Search I Home >> ~naplex ™ >> About Synaplex ™ >> Current Synagogues What's Playing at a Synaplex™ Near You? ~ Over 115 congregations across the country representing all denominations a denominational synagogues are participating in Synaplex™. Visit them to lea about their specific programming and plans. Below is an alphabetical listing, them by region, East Coast, West Coast, South and Central. Adath Jeshurun Congregation Conservative -- Minnetonka, MN Adath Shalom NEW Conservative -- Morris Plains, NJ Adat Chaverim Reform -- Piano, TX Adat Shalom Synagogue Conservative -- Farmington Hills, MI Am Yisrael NEW Conservative -- Northfield, IL Barnert Temple NEW Reform -- Franklin Lakes, NJ Baron Hirsch ConQregation Orthodox -- Memphis, TN Beth EI Congregation of the South Hills NEW Conservative -- Pittsburgh, PA Beth EI SynagQgue NEW Conservative -- East Windsor, NJ Beth EI Temple Conservative -- W. Hartford, CT 6~th-EI Zed~ck Conservative -- Indianapolis, IN Beth Hillel Synagogue NEW 11"\ /""1"\ '''''^I''\/ What's Playing at a Synaplex™ Near You? Page 2 of7 Conservative -- Bloomfield, CT Beth Israel Congregation of Chester County NEW Conservative -- Uwchland, PA Beth Jacob Congregation Conservative -- Mendota Heights, MN Beth Jacob Synagogue NEW Conservative --Norwich, CT Beth Sholom Congregation Conservative -- Elkins Park, PA Beth Tikvah - Bnai Jeshurun NEW Conservative -- Erdenheim, PA Beth Tzedec Congregation of Toronto Conservative - Toronto, Ontario Canada B'nai Israel Congregation of Baltimore NEW Modern Orthodox -- Baltimore, MD B'nai Shalom of Olney NEW Conservative -- Olney, MD j2nai Keshet Reconstructionist -- Montclair, NJ Brotherhood Synagogue Unaffiliated -- New York, NY Chisuk Emuna NEW Conservative -- Harrisburg, PA Congregation Adath Jeshurun NEW Conservative -- Louisville, KY Congregation Agudas Achim Reconstructionist - Attleboro, MA Congregation Agudas Achim NEW Conservative -- Bexley, OH Congregation Agudath Israel Conservative -- Caldwell, NJ Congregation Ahavath Chesed Reform -- Jacksonville, FL Congregation Anshei Israel NEW Conservative -- Tucson, AZ Congregation Beth Am Reform -- Los Altos Hills, CA Congregation Beth EI Conservative -- Bethesda, MD Congregation Beth EI NEW Conservative -- South Orange, NJ 1C'1 __~ ~ ~~ t ___F"'I_______.L___~ _ __ _____ J 1 f\nf\nf'\f\t::. What's Playing at a Synaplex™ Near You? Page 3 of7 Congregation Beth Israel NEW Conservative -- Worcester, MA Congregation Beth Israel Abraham & Voliner Orthodox -- Overland Park, KS ~ongregatiQn Beth Or Reform - Spring House, PA Congregation Beth Sholom - Chevra Sh~s NEW Conservative -- DeWitt, NY Congregation Beth Tikvah NEW Conservative -- Boca Raton, FL Congregation Bnai Emunah Conservative -- Tulsa, OK Congregation B'nai Israel Reform -- Bridgeport, CT Congre-9ation Har Shalom NEW Conservative -- Potomac, MD Congregation Knesset Israel NEW Conservative -- Pittsfield, MA Congregation Kol Ami Reform -- White Plains, NY Congregation Kol Emet NEW Reconstructionist -- Yardley, PA . Congregation Kol Shofar NEW Conservative -- Tiburon, CA Congregation Ner Tamid NEW Reform -- Henderson, NV Congregation Netivot Shalom NEW Conservative -- Berkeley, CA Congregation of Moses NEW Conservative -- Kalamazoo, MI Congregation Ohav Shalom NEW Conservative -- Cincinnati, OH Congregation Ohev Shalom NEW Conservative -- Wallingford, PA Congregation Ohev Sholom NEW Conservative -- Prairie Village, KS Congregation Or Ami NEW Reform -- Lafayette Hill, PA Congregation Rodef Shalom NEW Reform -- San Rafael, CA Congregation Rodeph Shalom Reform -- Philadelphia, PA 1 n ,,,,n ,,,,nnr Many Approaches, Many Kinds of Success Page 1 of2 R 17 /ic,#~ & t+ff C/ -nlex' Wr...... ~ .\~'r 27 Tishrei 5767 STAR GAZER Newsletter I Signup Svnaplex™ Participant Login Search I .,r- Home >> ~naRlex ™ >> About Sy:naglex ™ >> Results to Date AboutSynaplex'" synaplex--PbotoAlbum Many Approaches, Many Kinds of Success FAQs Different synagogues, organizations and individuals have different criteria fOI . ......n..._._....~. ....._........ ...._._.__ STAR engages independent evaluators to gather both quantitative and qualit Other STAR. Programs to determine the impact of Synaplex™ on participating synagogues and indi\i ~~ The Numbers Synaplex™ synagogues report data on participation in Friday night and SatUl services and events via an online form. STAR's evaluator downloads the infol review in aggregate as well as on a shul-by-shul basis. About STAR Data for our first two full years of Synaplex™ shows an increase in attendc 500/0 on Shabbat morning and more than 800/0 on Shabbat evening than 0 Synaplex™ Sabbaths. Contad Us Home In addition to increased participation during Synaplex™, participating synagc report a general increase in participation on all Sabbaths. The Stories Participation numbers tell one kind of success story; individual participants tl Repeatedly, synagogue representatives state that Synaplex™'s varied progrc opportunities have energized their congregation's lay leadership, staff, volun committees and general membership - all of which strengthens the overall s community. STAR contracted with Ira Rifkin, a noted New York-based journalist, to resea write the Synaplex™ story. We were interested in understanding the on-the- results of Synaplex™, beyond what the numbers said. Read Ira Rifkin's repol report is a PDF file; you will need the freely available Adobe Acrobat Reader ' Here are some expressions of the impact of Synaplex™, in the words of parti themselves: "People circle it on their calendars. When we first instituted the pro~ spoke at the high holidays. I said, 'I'm asking you to come once a n asked a lot of things over the years on the high holidays, but this 01 happened." - Rabbi Arnie Rachlis, University Synagogue, Irvine, CJ ''Synaplex™ has been invaluable In terms of community building. I people than ever feel like they have a home, a niche for them some also an anti-burn out pill; it keeps fresh people coming in, and it al~ people engaged and keeps them as members. It's no longer just 'in _1..L-----....L_.-1_.L_1 1 () / 1 Q /") ()()h Many Approaches, Many Kinds of Success Page 2 of2 when a kid becomes a Bar Mitzvah. It's also given a real energy to 1 synagogue, just a tremendous shot of adrenaline. And now we're rE map. We have been written up a lot in both secular and Jewish pre~ giving us a higher profile." - leaders at Bnai Keshet, Montclair, NJ (- For a limited time, join the national Synaplex™ Initiative for free. View sample materials from Synaplex™ synagogues. '........ ~ r- o Practical tips... Find articles and resources on synagogu transformation and renewal },Site MaP..... STAR Resources Visit a Synaplex™ Synagogue MorE ~ ~T.~'."l' ""', ~",.,<]..",_ ""',_>0:.,:..,\ ~'" .' ~..:"!,n;-.-., - ....'?\,," .'.'.<! - _A_", '",c,.. 0/1;,> "'" . . ".'.-'1 '_ ,1 -' :~ '~":<o. .-~ .,.-. e.' ..~.~ Copyright A@ STAR 20 10/lanOOh "rOVtlN COUN.Cll Richard Goldwasser, M.D. 38 Paseo Mirasol Tiburon, CA 94920 LA TEMAIL # I MEETING DATE /O-~Y..,oh October 12, 2006 Tiburon Town Council 1505 Tiburon Boulevard Tiburon, CA 94920 f5) ~~~~W~ ~ ~ OCT 1 8 2006 W Re: Congregation Kol Shofar T.OWN CLERK TOWN OF T~BURON Dear Town Council Members, This is to elaborate upon my earlier correspondence regarding Kol Shofar's proposed expansion. In the five years that my three children, wife, and I have attended services, religious school, classes, and special events at Kol Shofar, the current space has always been adequate (except for the High Holidays when, as previously noted, the Neshama Minyan and family services are held at Westminster Presbyterian Church, and the rabbis have led early and late services in the main sanctuary). This arrangement has worked well; there is no compelling religious or educational need for the expansion. Aside from Rabbi Lavey Derby, President Diane Zack, and Ron Brown, I have never heard a congregant, teacher, or child complain about the lack of space except one Sunday school music teacher who did not have a regular room in which to meet with the kids. If the existing annex were renovated along with the main building, there would be ample space for music and all other activities. Thus, Kol Shofar's existing facility adequately meets the congregants' needs. The proposed expansion, it appears, is to accommodate future growth and non-essential new activities (e.g., parties). As a family who has lived in Tiburon for almost a decade, we value the close-knit, peaceful, and safe neighborhood in which we live. As a Jew, I am deeply sympathetic with Kol Shofar's desire for a nicer facility, and I support it, but not at the expense of its neighbors. At Kol Shofar's current level of utilization, with the use of adjoining streets for parking, weekend bicycling up and down Blackfield Drive is extremely dangerous. This renders the Tiburon Ridge Trailless accessible, and, as a father, it makes me unable to Tiburon Town Council 10 October 2006 Page 2 safely bike with my children to Blackie's Pasture during peak family time. Any further membership growth and expansion of hours, without adequate parking, will constitute not only an "inconvenience" to neighbors, but a grave safety issue. Moreover, although it has not been discussed, there is reason to believe that Kol Shofar may develop a full-time Day School. The preschool that currently exists has children coming and going at various times throughout the day and poses no significant problem. If, however, this ultimate use is realized, the concentrated traffic on Tiburon Boulevard turning left onto Blackfield and then egressing will endanger students every day who walk and bicycle ride to Bel Aire, Del Mar, and Reed Schools, not to mention the danger along Tib~n Boulevard if the left turn lane is not lengthened. The dangerous backups that occurre<f-6n the first day of Sunday school last month could portend tragic accidents for which nobody wants to be responsible and which cannot be justified as acceptable in any way. Unfortunately, none of these issues are adequately addressed in the certified EIR, nor does it address the traffic/parking/safety issues when Kol Shofar activities co-occur with weekend and afternoon sports activities at Bel Aire School. I urge you to approve a remodel but not an expansion. It will be enough. ~ l.P\ T. b CI\ rr\1 ~ 1 v' J ~ Sincerely, p 'c cY C) I- Richard Goldwasser, M.D. ~V1bh: D,uh~~ /1 I ~ ~ KOL SHOFAR { .e 1t..0y" trcfVV1 (1t ~ f ? V1 aNI m e- y C l..e ClY/1 I VI. 0-/ \C ~.{.e S 1/..e P r ,'yn t1"? r V\.....,..>~ "\II '1' ~ R j2...o (/ "'" ~ &U-b 'r"' f, eM " F 'I ,.. (~ " '1 c {.Ii? /71 <I WI -e 1'1 '1-<; , , ,,-.- fPlY+1'...e.>. '1l1eR t'.r~ t1c1f es>,eY/1,""( ~ -/'4 '(.e 1"J,"<lvLJ tJf eJvtCcih'dYld. W,,'5>,,'cf"V\ of -r1u. $YY'P1}U}",e, W ~ (rn-e+ IV' -rit H (/ w vvJ Z f/I c!::- ()IJI\-tI 'J'o<ve,( po 15 J:. 7 August 10,2005 pc4rf"ec; w~r-€- PilS"t7 +k -f,^-rfA.S1- o+, -;Jt..e,;" J fA f-J. " ('t' Cet ..J.. " tfY\ ./en- ~ >: f f/1~ -e. , r, 'c ~GL"el C~/1A- ~i' of~ th11A , t I~ - Dr. Richard Goldwasser 38 Paseo Mirasol Tiburon CA 94920 Dear Dr. Goldwasser, I read your letter yesterday evening after returning from a brief vacation, and I wanted to let you know that I will be passing it along to Mark Levy, our Executive Director, and to the lay leadership who are guiding our building project. I am sure they will be in touch with you in due course to discuss your various concerns. ~ I truly respect your right, and the right of all our congregants, to express an independent opinion about all matters, including those that relate directly to the synagogue community. Nevertheless, I was saddened to read your views about our community's project. It seems possible to me that you may be misinformed about the nature of our project, its purpose, and why I and others feel how important it is for our members to celebrate our lifecycle moments in our own space. When our lay leadership calls, I hope you will be willing to meet with them and to listen with an open mind to their explanation of the project, the reasons why it is necessary to create a new multi-purpose room, and the status of our current conversations with our neighbors. With all good wishes, Sincerely, l Lv...,< 0-1./""// Rabbi Lavey t:l.dby (~) . 215 Blackfield Drive / Tiburon / California 94920 . telephone - 415.388.1818 / facsimile - 415.388.5423 · www.kolshofar.org ."'1IlIIIIiII .c.,...."", .~ '>":;' _ . ' .'. ~~ " .:~:j'~':l;t<:'~..~::;.",,,,,-:,,' ,-~., , , .' . . ""i. .'. I. , ' , . I r l' ,~ .t ~ : ~. ..l ,- -- ..-- ~~ l ,.y ./.~ ..l.~~~ ,,;.-""';..,/ Tiburon Town Council 1505 TibW'on Blvd. Re: Kol Shofar appeal TOWN COUNCil LATE MAIL # I October20,200RECE~VE[) MEETING DATE~ OCT 2 i) Z006 Dear Sir or Madam, TOWN MANAGERS OFFICE TOWN OF TIBURON We are writing in response to the appeal for the Kol Shofar project. We live within a block ofKol Shofar. I am a licensed architect and contractor. I have worked on a number of projects in Tiburon, and often have to inform clients that they have an uphill battle ahead if they can't meet the requirements for parking and get neighborhood support. Kol Shofar has been in the planning process for two years because they have not been able to solve these problems. We can get past the occasional parking nuisance caused by the congregation because of the positive service Kol Shofar provides for its members. We have dealt with it for many years without complaining. What we cannot get past is the increase and change in use that is proposed by allowing late evening weekend parties an additional 27 times a year. We are already dealing with both Kol Shofar's and Bel Aire School's activities dwing the daytime on weekdays. Kol Shofar's evening and weekend events will take away from us the only relatively quiet time we have left on weekends and evenings. The Bel Aire homes are all designed with 3 bedrooms oil. the front. . This is a quiet neighborhood at night and we hear everything --- Every car door opening and shutting at night, every conversation on the street within a block, or anyone playing music. Please consider the effect on you if a neighbor a block away had a party for 250 people every other weekend of the year. Please consider that although the party ends at II pm, it takes another I-~ hours for the noise to end Because it is otherwise quiet at night, the noise seems amplified. When people head out to their cars, it is human nature to be talking about the event the entire way. People tend to speak louder if alcohol has been served. Two hundred and fifty people open and shut the car doors 250 times when leaving then start up the engine. There are also all the service people, loading supplies, opening and shutting car doors. Imagine yourself on a quiet night hearing all these noises outside your bedroom window for 1-112 hours after the party has ended at 11 pm. All these noises are more significant at night, when ambient noise is low. Please also consider that the additional weddings and parties are most likely to take place in the half of the year when the weather is nice, the same time everyone else in the neighborhood has the opportunity to enjoy their backyards. Conceivably then, a party at Kol Shofar could ruin every nice weekend for the neighborhood inhabitants. If you reconsider the Kol Shofar proposal, please consider limiting the events to maximum I event per month, not just ''x'' number per year. This would bring the nuisance within an acceptable range, and not ruin every summer weekend. Regarding parking, we see many of the reports leave Karen Way out, and we don't know why as we witness first hand that we are one of the quicker streets to fill up, even before the end of Blackfield fills up. Thus, we are impacted by parking, and more significantly by the after hoW's noise of people coming and going. We see the consultants' nmnbers in these reports; however, we do not always see how they mesh with human natW'e and common sense. Each report has to establish certain variables~ and if one of those variables is not considered, (Le. that people park on Karen Way and talk all the way back to their cars) then the report does not present an actual reality, only a bunch of nmnbers "proving" one point or the other. Please see the attached photos (taken on the recent 9/23 holiday) which show the typical parking condition when a large group gathers at Kol Shofar. Although an officer was on duty (presumably for traffic control), the photos show a vehicle entering the exit with no respect for the "Exit Only" sign. The Official took no action. All parking spots were filled on Blackfield, Karen Way, and Via Los Altos. Cars were constantly circling, pulling into driveways, or making U-twns at inappropriate locations (see Via Los Altos photo). This shows the existing condition, in hopes that you will realize how the increase and change in usage will significantly and negatively affect the Bel Aire neighborhood. Page 1 Capping the nwnber of events, the time of the events, and the nwnber of attendees at the events is the only way to mitigate the parking and noise problems. We realize that neighbors have different concerns---our position is that we can accept the project expansion if we see a cap of evening weekend events limited to 1 per month, and the hours limited to 8pm, both on weekends and for large events during the week. We would like to see restrictions on music amplification and see it limited to the interiors. We would like to see Kol Shofar make a better effort to provide more parking. We can accept a certain amount and can bend some to accommodate, but not every other weekend. We Wlderstand that Kol Shofar will not be able to solve their parking problem on a few special holidays, and can accept that as long as the problem is not multiplied by the addition of late evening and weekend parties. C:',... Sincerely, ',.,. .....--:> <~~~~_.-k'.- (-/~R~/~' ~t:a~~~?/) Fred and Lara Conte 258 Karen Way Tiburon, CA 94920 -- - Page 2 Karen Way Via Los Altos Blackfield - South Richard A. Holway 42 Paseo Mirasol, Tiburon, CA 94920 RECEIVED OCT 1 9 2006 TOWN MANAGERS OFFICE TOWN OF TIBURON Subject: Kol Shofar Expansion Project TOWN COUNCIL LA TEMAIL # I - Uii.~. MEETING DATE_ 10 ..._;~" To: Town Council ofTiburon From: Richard A. Holway October 19,2006 This letter is to go on record as opposing the expansion project of the Kol Shofar. I have personally signed two petitions which indicate the following: 1. I support the Kol Shofar in our neighborhood. 2. I support the needed renovation of the Kol Shofar facility. 3. I oppose the expansion of the project with its expanded usage. My opposition to this project is based on: 1. Increased noise, (particularly at night.) 2. Increased parking and congestion on our neighborhood streets. 3. Increased traffic and turnaround problems (safety to our children.) These issues have all been documented in the EIR as well as letters and testimony to the planning commission. The Kol Shofar expansion is not compatible with the General Plan of the Town of Tiburon. The Tiburon General Plan dated September 2005 provides many land use goals. Among these goals are: 1. To provide an orderly balance of public and private land uses... 2. To preserve the character of the Tiburon peninsula... 3. To protect the health, safety, and welfare of the community ... 4. To protect and preserve existing neighborhood character... Among the General Plan's land use policies are: 1. To limit the type and amount of uses within the Town to those compatible with the nature, character, and image of the Town as a quiet, small-town residential community ... 2. New development to be in harmony with adjacent neighborhoods ... The key word in the previous two paragraphs is harmony, which is defined in the dictionary as "agreement, accord, a consistent, orderly or pleasing arrangement of parts, congruity etc. " The expansion project does not meet the test of this definition. The Environmental Impact Statement and the Staff Reports of the Planning Commission pointed out that there are significant and unavoidable impacts of the project. These impacts will disturb the character .of our residential neighborhood. During the past twenty years, the Kol Shofar has been both welcomed and supported by the local residents, and there has been an appropriate balance between the needs of the residential neighbors and the synagogue. Granted, the facility does need renovation and the neighbors both understand and support the basic renovation. However, the increased impacts of the expanded facility combined with increased weekend and evening usage will upset the harmonious balance that has existed for the past several years. Sincerely, /"} '-'. ' , t! \" {ctt~( !t'~~7 Richard Holway Jody Ceniceros Modified: Wed 10/18/2006 9:04 AM RECEI\ll::O OCT 1 9 2006 TOWN MANAGERS OFFICE TOWN OF TIBURON Dear Tiburon Town Council, My husband, Peter Clare, and I own 73 Via Los Altos and 146 Blackfield, where our parents, Ron and Joan Clare, reside. We are very concerned about negative impact on both of our neighborhoods of any proposed expansion of Kol Shofar. Our concerns are those shared by others here: lowering property values; increasing traffic congestion, noise, pollution, litter and lights on an already busy route to Bel Aire School: dangerous conditions, noise, trucks and dirt of the construction site. Expanding the Kol Shofar site will make our neighborhood less cozy, more commercial and more congested. It is already difficult to get out of our driveway on 146 Blackfield and traffic must come nearly or to a stop when ever there is a car making the turn into Kol Shofar's driveway on Via Los Altos. Besides that, the exra parking on Via Los Altos makes driving more dangerous with numerous doors opening into the roadway, people walking about, cars pulling in and out (sometimes doing a 3 point turn), and parking on both sides of the street. Many people who ride the hill on their bike to access Ring Mountain will also have a harder time. We understand when the noise travels between the neighbors, but it is not fair for our neighborhood to have to listen to the cars and conversations of hundreds of people who do not live in Tiburon at all. I am shocked and dismayed that such a project expansion would be considered for this neighborhood which is nearly fully built and functioning just about right. Don't tip the balance to the negative for the people who LIVE here, for the benefit of hundreds or thousands who are just coming in for an hour or two! It seems that with the large numbers of people and events the Kol Shofar wants to accommodate that they should look into purchasing another property where they can be of service to people from other parts of Marin, therefore not forcing our neighborhood to bear the whole impact of business and gatherings. Thank you for listening to our letters. I believe I also speak for the hearts and minds of the Tiburon Crest and Blackfield neighbors. Sincerely, n~ J ody Ceniceros TOWN COUNCIL LA TEMAIL # I MEETING DATE_ 10 -~-D~ . 1 Jron Town Council Tiburon Town Hall 1 505 Tiburon Blvd. Tiburon, Ca 94920 RECEI\fED OCT 1 9 2006 1 0 Vista Tiburon Dr. Tiburon, Ca 94920 If ~ a.. 0 0 , TOWN MANAGERS OFFICE TOWN OF TIBURON Dear Sirs, We live in the lot just above the Kol Shofar property, and are mentioned as one of the lots that will be impacted by Kol Shofar in the EIR. We chose to buy our home in Tiburon because of it's reputation for peace and tranquility. While the Temple is our neighbor, and we have no objection to their religious practices or renovating the existing structure, we feel the expansion is too ambitious and not at all in keeping with our neighborhood. If we, or any of our neighbors, decided to build a 12,000 sq ft home & hold large weekly parties ["Lifestyle Events" are just that - parties: very large, very loud, very late parties] , I am sure the request would be challenged by Kol Shofar & the other neighbors and promptly denied by the, Town Council. And rightly so. A 1,624 seating capacity, and large, late night time parties are not consistent with our neighborhood, which is zoned for low density. Besides the noise and traffic, the basic si~e of the structure and events is just not in keeping with the neighborhood or the Town Plan. jdition there's the worry about future uses should the Temple increase membership or should some other group take over the structure in years to come. If you build it, they will come and once it's built you can never go back. And we're talking about seating capacity second only to Marin Civic Center Autitoriuml You the Town Council for the citizens of Tiburon [ only 15% of Kol Shofar membership are Tiburon residents] will be setting a sorry precident for all the wonderful , quiet neighborhoods in our town. We were very disapointed that Kol Shofar litigated first, rather than negotiating a lesser structure that we all could live with. We respect the fact that they are a religion, but that does not give them the right to disrespect the rights of their neighbors, destroy our American dream and lower our home's property values [ the main investment of most homeowners]. We urge you to turn down the project in it's current form. yaWN COUNCIL LATE MAIL #-t- MEE~rING DATE ./0 --&.',f...j, /' tJ Most Si~cerely,. . <lVt -,? xr~ DennIS N. Sakal 1/ t/L~)~' .' . Sara P. Sakai ../. ~ ,.'~ / -1- \D)~~~U1~~ ~ 0 C T 2 0 2006 ~, TOWN CLERK TOWN OF TIBURON Kol Shofar Expansion Submission to Town Council October 2006 Final Edward Baker 31 Via Los Altos TOWN COUNCIL ; ,:.,...-', "'. . -r .; I " ~ ~ lATE MAtt # I MEETING-DATE 10 - LY...IJ/J Preface 1 Parking for Kol Shofar Highly Attended Event on Tuesday 10/4/2005 from 11 :30 a.m. to 11 :50 a.m. " ',"t" ,..",.-." . d _, '.. .'", ,.....,.,..'v,:-'..,~+._C' _~~~l)''';:~";y}~~'_:~~~~~~ib1#,:~;~',i-!~;''~,,:~;;:, ~-~ ~,~;~~t~':.;i>i;;' At Paseo Mirasollooking down Blackfield toward Kol Shofar At Via Los Altos looking North up Blackfield, Kol Shofar at left Above Kol Shofar looking down Via Los Altos Preface 2 ....... At Via Los Altos looking South down Blackfield looking up Via Los Altos, Kol Shofar on rig ht "Shuttle" parking at Westminster Presbyterian Church at 11 :49am - a few cars used the Shuttle Service Parking for Kol Shofar Highly Attended Event on Wednesday 10/12/2005 from 6:55 p.m. to 7:20 p.m. At Blackfield looking up Via Los Altos, Kol Shofar on right Blackfield at Karen Way looking North toward KolShofaratbackleft Preface 3 Further down Blackfielq looking at Kol Shofar Above Kol Shofar looking down Via Los Altos "Shuttle" parking at Westminster Presbyterian Church at 6:55pm - Shuttle Service not used ~ Turnarounds for Parking at Kol Shofar Fall 2006 events The following photos show cars doing turnarounds at dangerous locations. All of these cars ended up parking near their turnaround location in the opposite direction from which they were originally going. The lack of adequate onsite parking contributes to these actions. There are additional photos of some of the turnarounds that show the progression of the turns. Sep. 23 at 10:31am (#1540) On Blackfield curve with traffic without drivewa Oct. 1 at 5:58pm (#3415) into KS main entrance with traffic & kids Oct. 1 at 6:04pm (#1610) At KS handica ed entrance on blind curve Oct. 1 at 5:43pm (#1596) Via Los Altos at main entrance to Kol Shofar Oct.1 at 6:02pm (#1598) Backin into KS main entrance Oct. 1 at 6:31pm (#1624) ark oin downhill on Blackfield curve Preface 5 Kol Shofar - Highly Attended Event Turnarounds occurring late morning September 23, 2006 Preface 6 Aesthetics The EIR incorrectly concluded there would be no visual impacts from the multipurpose facility expansion on the views from Via Los Altos, without even considering the impact on 31 Via Los Altos, the view from which is above. This also shows how the unchecked growth of broom (which Kol Shofar is committed to remove) is obscuring any view of the multipurpose room from Via Los Altos - again completely ignored by the EIR in its conclusions that views from Via Los Altos would not be impacted. Preface 7 3/12/2006 10:23:33 PM 1 - Introduction This document has been prepared, by Edward Baker of 31 Via Los Altos, in response to a suggestion from the Mayor and other Council Members for a summary of concerns from homeowners in the neighborhoods surrounding Kol Shofar. This is one person's view of the neighbors' concerns. Kol Shofar's presence in the neighborhood is and always has been welcomed; however the burden placed on the neighborhood from its planned expansion, in particular the construction and use of a multi-purpose facility, is unacceptable in a quiet residential neighborhood. This document is in the following sections: 1- Introduction 1 2- Description Of The Neighborhood 2 3- Kol Shofar Current Uses Original Application And Alternative 7 3 4- Summary Of Concerns 4 5- History 6 6- Multi-purpose Facility 7 7 - Lifecycle Events 8 8- Size, Capacity And Growth 9 9- Noise 11 10- Parking And Traffic 13 11- Aesthetics And Glare 16 12- St Hilary's 17 13-School 18 14- FEIR Shortcomings 19 16 - Tiburon General Plan 20 Appendices I Unanswered Questions 21 II Richard Goldwasser Letter to the Ark April 5, 2006 22 III Capacities 23 IV Kol Shofar and St Hilary's 25 V Parking 27 VI Field Of Dreams Sermon 32 VII Noise Survey 34 1 2 - Description of the N ei!!hborhood The neighborhood is considered to be the area sweeping from the Ring Mountain ridge down Via Capistrano and Via Los Altos, along Blackfield Drive to the Cove shopping center, and Highway 131. The area is entirely single family residential or open space, with the exceptions ofKol Shofar, The Cove, and Bel Aire School. This is a peaceful gentle, quiet area. It is not an exceptional neighborhood; in fact it is probably typical for Tiburon. This area has lots of open space, such as the foothills of Ring Mountain. There are few street lights, with minimal light pollution at night. Kol Shofar, during the Planning Committee meetings, has referred to the St Hilary's development as justification for its project. Section 13 discusses the differences between these two developments. The Kol Shofar proposal, if accepted, would create significant precedents that would apply to the whole of Tiburon. 2 3 - Kol Shofar Current Uses. Orieinal Application and Alternative 7 Kol Shofar presently has Friday night special services until 10:00 PM for fewer than 100 people. This is a religious service held in the sanctuary, and with this exception and some board meetings/adult educational classes, there is no activity beyond 6:00 PM. There is presently no activity whatsoever on Saturday or Sunday evenings/nights. In its original application, of April 2004, Kol Shofar requested: On 35-40 Saturday nights there will be 'Congregational Activity' until 11 :30 PM and clean-up until 12:30 AM. On 25-30 Sunday evenings a 'Congregational event' until 1 0:00 PM and clean-up until 11 :00 PM Unspecified 'special events' until 10:00PM on two nights each week for nine months of the year. In addition, the application advised the multi-purpose facility would be used for Saturday morning services, which currently only take place in the Sanctuary. Presumably these would be expanded with multiple activities running concurrently. Kol Shofar has presented Alternative 7, reducing the frequency and timing of activities, which we do not consider acceptable for the following reasons: It still imposes the burden of noise, traffic and parking issues in the evening on more than half the weekends in a year in a quiet residential neighborhood. The neighborhood is concerned that Kol Shofar will continue to push for more events/parties creating an increasing burden on the neighbors to defend themselves annually against 'CUP creep'. The CUP application and expansion of the facility opens the door for a whole range of expanded uses and activities not even conside~ed in the EIR. Despite the FEIR conclusion that there are no significant impacts from Alternative 7, it identified 23 impacts that were significant but could be mitigated to less than significant, leaving the neighborhood still bearing the burden of their acknowledged impacts. We also disagree that these impacts have been fully assessed and can be successfully mitigated. 3 4 - Summarv of Concerns Kol Shofar is building a facility that will not only have the potential to attract new members from Marin, but also San Francisco and the rest of the Bay Area. Indeed, its membership is from across Marin, with only 15% being from Tiburon. It has a record of considerable growth. The EIR fails to consider the effect of the full capacity of the premises or even the new additions; only the impacts from the proposed usage of Alternative 7 as controlled by a CUP. It is considered the hours, type, and frequency of use requested in Alternative 7 are not in harmony or compatible with a residential area and the goals of the Tiburon zoning requirements and the General Plan. The congregation originally anticipated growing to a maximum of 350 family units with no more than 480 people attending High Holy Day services. It has now grown to 600 family units. It has been suggested that a lights out, and all cleaned up cut-off at 9pm with restricted numbers and fewer events than Alternative 7, may be acceptable. This is not unattractive; however there exist major concerns: Vagaries of future councils. The current Town Council is taking the trouble to understand the neighbors' concerns. Subsequent councils are not bound by the present Council's decisions, and the likelihood of the CUP terms being overridden will remain each year. Burden of permanent vigilance on neighbors. The requirement that the neighbors would have to be ever vigilant in policing the CUP and the annual review thereof in order to maintain the peace of the neighborhood is an unfair burden. As we have seen with St Hilary's, neighbors eventually get fed up complaining, and it would only require Kol Shofar to be successful one year in having the conditions relaxed for the parking, traffic and noise issues in our neighborhood to be permanently eroded. Disparity between facility size and Alternative 7 usage. The policing of the CUP would be expensive, complicated and likely to be ineffective. This is an unfair economic burden on the Town. The capacity of the facility is so out of context with the existing and proposed day to day pses of Alternative 7 that any practical policing of the CUP is unrealistic as stated by the Planning Commission. Enforcement has no teeth. There is a lack of any effective redress by neighbors if the conditions of the CUP are breached; there are no teeth to the enforcement. Aesthetics. Even with limited use there will still be the overwhelming bulk and mass of this addition to the existing buildings. New baseline. As we are seeing with the current application; increased levels of activity become the new baseline for any future assessment of impacts leading to 4 an ever declining quality of life as neighbors are faced with ever increasing burden from traffic parking and noise. It is considered: A remodel of the existing structure within its existing footprint, to be acceptable, and that such a remodel could accommodate most of Kol Shofar's needs and indeed would be welcomed by the neighborhood The holding of large late night events is not acceptable In a residential neighborhood. Clear commitments and guidelines need to be established before there is any extension of activities and events currently held, or in the hours of use, at Kol Shofar All parking shall be accommodated on-site and not require the regular use of residential neighborhood streets, that presents safety issues to neighbors and those attending Kol Shofar. The neighbors believe that a religious facility adds to a community and support Kol Shofar's presence in ours. But, the religious community needs to support and respect the neighborhood's quality of Hfe, family, and the sanctuary of peace and quiet of our homes. 5 5 - Historv The original school development was on a much larger site (of 22.6 acres) than the 6.94 acres currently occupied by Kol Shofar. To finance the purchase in 1984, Kol Shofar sold a large parcel of its land for the development of the 22 homes now known as Vista Tiburon. These homes are immediately adjacent to Kol Shofar and located on Vista Tiburon Drive, Via Los Altos, and Reedland Woods Way. The acceptance of Kol Shofar's original proposal for the site was based on an understanding that its congregation size would not increase dramatically. The original 1985 Project Description says: "Kol Shofar has a present membership of 220 families, and anticipates expansion to 3 50 families in the future. As with any religious institution there are active, participating and non-participating members... ..Kol Shofar anticipates its maximum attendance at services to be 300 persons. Future expansion in membership to 350 families is expected to increase to level of activity shown in .....by 60 percent" [So by implication a maximum attendance of 480 persons.] (Appendix F of the DEIR) It currently has 600 membership units and a maximum attendance of 1,500 persons at High Holy Days. Previous Court Action by Neighbors In 1996 Kol Shofar failed to get approval for a parking lot in the same location it is now proposing, that is in the open space adjacent to Reedland Woods Way. A proposed compromise between the neighborhood and Kol Shofar was not acceptable to Kol Shofar. The full proposal was deliberated and rejected by the Town's Planning Commission, but on appeal approved by the full Town Council. The neighbor's objected so strongly to the issue that they proceeded to take the Town Council to the Marin District Court and won. The area remains open ground. ' 6 6 - Issues related to Multi-Puroose Facilitv High Holy Days Rabbi Lavey Derby has explained as a religious imperative the holding of High Holy Day services at a single time to accommodate the entire congregation. Kol Shofar has used this rationale to demand the approval of the multi-purpose room. However, research of many conservative congregations in the San Francisco Bay area has shown that there seems to be a variety of options followed. Some congregations, in order to have the entire congregation worship at the same time, hold split services in two locations; typically the second location is a nearby church or community hall. Others do as Kol Shofar has done for many years now, and hold split services at two different times. Others do as the Rabbi is proposing and have two concurrent services - one in the sanctuary and the second in the social centre. As an example, Congregation Rodef Shalom in San Rafael has for many years now utilized the Veteran's Auditorium at the Marin Civic Centre, whilst also holding alternative services at its sanctuary on San Pedro Road. Lifecycle Events The Rabbi has never put forward any religious argument that the multi-purpose room is required for 'Lifecycle' events. He has explained how it could be used for other functions, such as congregational dinners and religious education classes and how it will help in the bringing together of the community. It would be more convenient for Kol Shofar to worship communally on High Holy Days and to have a large multi-purpose facility. However we do not accept the excessive burden placed on the surrounding neighborhood to justify the size, and degree of use of this proposed facility, whilst other options are available. 7 7 - Lifecvcle Events In its application and in Alternative 7, Kol Shofar fails to detail the nature and range of uses that constitute 'Lifecycle' events. An important distinction should be made between the religious aspect (services) and the social aspect (parties) of such events. Kol Shofar's April 2004 Conditional Use Permit ('CUP') expansion application simultaneously establishes yet blurs a distinction between 'activities' and 'events'. Religious 'activities' and existing 'events' are being excluded from the current review of the CUP. There is however, no clear definition from Kol Shofar of what each constitutes. This is necessary in order to intelligently monitor and understand the CUP. Similarly the recent introduction without clear defmitions from Kol Shofar of 'Congregational Events' and 'Private Events' needs careful clarification. Kol Shofar has argued that the multi-purpose room is only for extending existing activities; however at present when there is a wedding or Bar-Mitzvah at Kol Shofar, the social 'party' side almost always follows elsewhere (such as, for example, the Mill Valley or Strawberry Community Centers). To the extent that post Bar-Mitzvah parties are presently held at Kol Shofar, they have been restrained, quiet, afternoon affairs rather than late night events with amplified music. Large party-type events do not currently occur at Kol Shofar. Enclosed in Appendix II is a letter from Richard Goldwasser MD, a former member of Kol Shofar, that further discusses this point.. The frequency and timing of Lifecyc1e events, requested in Kol Shofar's original application, cannot have been random suggestions. It must have had specific reasons for the number of events requested and this must serve as a guide to its long- term intentions. Adopting the limited Alternative 7 usage now will inevitably lead to CUP creep over time to that of the original application. 8 8 - Size" Capacitv and Growth Kol Shofar has every right and reason to grow. That growth however needs to be understood before a proper assessment of future impacts can be made. Kol Shofar has currently 600 membership units, with up to 400 people attending Sabbath services with some regularity, and 1,500 people attending High Holy Day services. In comparison this considerably exceeds the 350 membership units and maximum future attendances of 480 at services it anticipated its maximum would be when it received its initial CUP in 1985. Kol Shofar has provided a letter containing an opinion that attendance at synagogues can be expected to decline. ABAG's 2002 projections however indicate a 14% increase in the population of Marin over the period 2000 to 2025. This population will be graying, a time when many rekindle their spiritual beliefs. As a point of reference the Marin population grew by 7.5% over 1990 to 2000. The construction of these very large facilities is bound to attract and accommodate increased membership and usage yet does not supply adequate parking per the Town zoning code. Rabbi Lavey Derby, in what has since been referred to as his 'Field of Dreams' sermon, has said: It's probably no wonder that one of my favorite movies is 'Field of Dreams'. You remember: Midwestern farmer Kevin Costner is out in his cornfield where he hears a voice (on the High Holidays we would describe it as a 'still, small voice') whispering 'If you build it they will come.' That's what I believe about synagogues: if you build an authentic Jewish community, one in which Judaism is lived authentically, honestly, passionately, joyfully, then people will come. Particularly at this moment in history when we are riding a great wave of interest in the spiritual, in personal meaning, people will come. Even though he has since dismissed this as 'Rabbinical rhetqric', the entire sermon has been reproduced as Appendix VI. A marketing initiative being adopted by synagogues is the 'Synaplex' initiative; www.starsvnagogue.org/synaolex.This aims to provide a range of activities for children, teenagers, singles, families and adults, with the objectives of both attracting more attendance at existing services by running concurrent events, and of increasing the range of events with such diverse activities as film screenings, yoga, hip-hop and dances. In what seems an amazing achievement Synaplex claims: 9 Data for our fITst two full years of Synaplex ™ shows an increase in attendance of 50% on Shabbat morning and more than 80% on Shabbat evening than on non-Synaplex ™ Sabbaths. In addition to increased participation during Synaplex™, participating synagogues also report a general increase in participation on all Sabbaths. www.starsynagogue.org/SynaplexResultstodate/ As of August 2006 the Synaplex website refers to Kol Shofar as having newly joined the initiative. The proposed Kol Shofar pre-school on the site will additionally be a major driver for its growth and was not considered in the FEIR as Kol Shofar's intentions were (and remain) unclear . The FEIR has a significant flaw in that it makes no attempt to assess the impact of increased attendance at existing events such as the Sabbath services, and measures impacts only in reference to Alternative 7 and not the capacity of the buildings. The CEQA process requires full disclosure of the future impacts, even if the current proposal uses less than full capacity. The Tiburon Planning Commissioners expressed their concern about the compatibility with and safety of the surrounding neighborhoods due to 'CUP creep' over time. They also persistently and unsuccessfully asked for growth projections from Kol Shofar. Kol Shofar needs to be open about its growth plans and expectations, and if facilities are to be built that can accommodate massive growth, then after the true impacts are assessed, a requirement is made that infrastructure (such as on-site parking) is mandated that can accommodate the maximum capacity of the buildings without imposing parking, traffic and noise burdens on the neighborhood or presenting health and safety concerns. 10 9 - Noise. The FEIR initially concluded that there would be significant noise impacts caused by traffic and the parking lots, from people leaving parties talking, opening and slamming of car doors, car alarms and the starting of engines, as well as from entertainers and caterers leaving. The FEIR proposed and examined five alternatives. Kol Shofar then, through its consultants, suggested as a mitigating option Alternative 6, then Alternative 7 both with the same size building but reducing levels of activity, which Leonard Charles & Associates, concluded would reduce these noise impacts to less than significant. At Appendix VII is included a report from Wilson Ihrig & Associates, a leading environmental consultant. This lists reasons why the conclusions of Leonard Charles re Alternative 7, are not supported by adequate methodology, analysis and data. These include: Use of Ldn. The FEIR's conclusions are based on measurements of Ldn, which is an average measure of noise and useful in assessing the impact from, for example, steady traffic. However this is not appropriate where the noise. is intermittent, with loud spikes. Event type and timing. The Kol Shofar application gives no indication of what noise will be generated from 'Lifecycle' events or what the attenuation properties of the building will be. Without such data it is difficult to understand how the FEIR can conclude there will be no impact from noise generated from within the facility. Maximum Leo measure. The Leq calculated from existing conditions, as a measure of the maximum hourly noise, does not adequately characterize what the effects of parking lot and event activity noise will be from Alternative 7 because of the difference these will be from typical neighborhood noise. Windows and doors: While there are vague assurances, by Kol Shofar, they will be kept closed The necessity for fire safety and normal traffic of doors and windows that can be opened directly to the outside from the multi-purpose facility, means they will be opened and the FEIR is unrealistic to assume this will not be the case of an evening. Only the main entrance will have double doors. The glass doors of the multi-purpose room lead directly outside, with no sound control. Thus, every time someone goes in or out of the multi-purpose room doors, noise spikes will be created from the inside of the room, directly impacting the community day and night when functions are taking place. Comparison to existing levels: The important comparison should be between existing noise levels and expected noise levels for the duration of the new heightened levels, not a comparison of averages of both. The EIR describes the multi-purpose room as 'noise secure' with no explanation of what this means or how it will be achieved. It then assumes that event noise will be contained 11 within the building without providing any detailed analysis of what the new proposed Lifecycle events will be or what noise will be generated from them. The new parking lots impose a burden of noise coming in spikes at night, which is particularly uncharacteristic in an extremely quiet neighborhood. Not only are the immediate houses such as 20. 30, 35, 40, 45, 55, 80 Reedland Woods Way 220, 230 & 231 Blackfield Drive affected, but the remaining homes on these streets and those on Via Los Altos, Paseo Mirasol and Vista Tiburon Drive will be highly impacted by these noises as well. 12 10 - Parkin1! & Traffic At present on a reasonably well attended Sabbath service, about twice a month, there can be up to fifty cars parked on the neighborhood streets; up and down Via Los Altos, along Blackfield and Reedland Woods Way. This is the situation today when members of Kol Shofar are on their best behavior and every person is fully aware of the expansion plans. On High Holy Days, even with split services, there are 100s of cars parked on the streets in a multitude of neighborhoods. This situation is difficult with a split service, and will be intolerable with the proposal for a single service at which 1,500 people will attend. Besides the High Holy Days, there are still other busy 'special service' event days when even residents across Tiburon Boulevard are affected, as evidenced by the appeal made by the Greenwood Beach Road Homeowners Association. Visitors use shuttle buses and off site parking only as a last resort because it is inconvenient and takes a longer; time which families rushing to events understandably cannot take. There are certain parking places on the streets surrounding Kol Shofar, such as on the blind curve of Blackfield Drive at Reedland Woods Way, outside 230 Blackfield Drive, and on Via Los Altos, that present enough dangers in daylight, but at night with cars turning around and reversing, these present unacceptable risks. This unsafe parking further decreases the sight lines and increases the danger for residents and children coming and going. Kol Shofar members choose to park in these locations because by so doing it avoids the bottleneck of entering and exiting the parking lot. Cars regularly park on stretches of the west side of Via Los Altos and upper parts of Blackfield Drive that do not have sidewalks; presenting a health and safety risk to those attending events at Kol Shofar, who are forced to cross these streets at random locations and walk down the centre of the roadway. This is risky as it is but with it occurring at night and after parties it will be downright dangerous. Zoning - Parking requirements Kol Shofar has already been extended considerable discretion by the Town in that it fails to comply with the Town's parking requirements. The Tiburon Parking Code (Section 5.08.01) says: A new use, structural addition or alteration on such a parcel shall be allowed only if it does not increase or create a parking deficiency as determined in this section. Kol Shofar does not have enough on-site parking, but argues that the public streets are public, and that it is entitled to use them. Kol Shofar's neighbors (including those in Vista Tiburon and Bel Aire) strongly disagree. The streets need to remain public and cannot and should not be dominated by one single entity at the expense of others. Kol 13 Shofar's consistent use of the streets surrounding the Temple denies the neighbors use of the street parking, especially on weekend days and evenings when guests are mostly like to visit residents. As reported in the EIR: The project will create a demand for more parking than can be met by on- site parking lots which will result in drivers who park on local streets making unsafe turnarounds in residential neighborhoods. (Impact 3 A-C, a significant and unavoidable impact of the expansion). On Saturday morning, with Kol Shofar using both the sanctuary and the multi-purpose room, congregants would be vying for 139 spaces when 246-299 are required by code. This leaves some half of the cars to park off-site on neighborhood streets when many of the families in the neighborhoods are playing on the streets, sidewalks and driveways, and when friends come to visit. Unsafe turnarounds result from a lack of parking space on-site, not from the arrangement of entrance and exit or circulation pattern; keeping the main entrance on Via Los Altos (as opposed to a proposal in Kol Shofar's April 2004 application to have it on Reedland Woods Way) does not alleviate the significant and unavoidable impact, with the danger being that some child or other pedestrian could be injured or killed. Kol Shofar must provide adequate on-site parking to meet its present and foreseeable attendances at full capacity, or alternatively find a remote lot that meets the Town's criteria. It does not appear to have officially declared any remote lot as its shuttle parking lot, although most recently it seems to be using the parking lot of Westminster Presbyterian and Tiburon Baptist Church on Greenwood Beach Road. The residents there have filed an appeal. This is an issue that affects Tiburon residents beyond the immediate neighborhoods surrounding Kol Shofar. A 'parking receipt' mitigation was deemed unwieldy by the staff and too difficult to monitor. No viable solution to solve the parking problems has surfaced. The town planners have only defaulted to the existing and ineffective solution of placing temporary signs on high traffic days that disallow cars to park near the Temple. The "No Parking" signs recommended by staff in Alternative 7 only serve to push the traffic further into other neighborhoods, namely Bel Aire. This mediation measure has since been considered unfeasible in the Crane traffic study presented in the Staff Report for the 10/24/2006 Town Council meeting. If the building capacity is increased in the expansion, and Kol Shofar chooses to use that capacity, inevitably cars will need to be parked on neighborhood streets. Until Kol Shofar defmes all the uses of the spaces within the building, the number of parking spaces required will remain unknown. Cars continue to park up and down Via Los Altos, Blackfield and to some extent, Reedland Woods Way. What will the health and safety 14 issues associated with the increased traffic and turnarounds be like in these neighborhoods after the expansion? There is not enough parking to accommodate even the existing crowds. The Town should consider the obvious mitigation of conditioning approval on the inclusion of adequate on-site parking, or alternately, sizing the building according the amount of available on-site parking. The town's own traffic consultant recommended that "parking be contained on-site and or occur at remote parking lots with shuttle or carpool service." In its original expansion application (on page 4) Kol Shofar has as one of its objectives "To improve site facilities...to accommodate Kol Shofar religious and school programs...which allow for flexibility and opportunity to grow without substantial inconvenience to the surrounding neighbors". With the development of growth initiatives, many more activities will be running simultaneously over a longer period of time. The impacts of the traffic and parking from these situations have not been studied in the EIR. The application fails to comply with the Town's parking requirements. Kol Shofar is attempting to mitigate this by proposing off-site parking that also fails to meet parking and loading zoning codes. A summary of the parking issues is: 1. A significant disparity between what the Town requires for parking and what the Kol Shofar expansion project supplies. The EIR fails to identify this as a significant impact or present feasible mitigation of this health and safety risk. 2. 13,000 sq ft addition to building with only 22 net new parking spaces. 3. Currently there is not enough parking on-site for Saturday morning services or afternoon events such as Bar Mitzvah celebrations. Cars park up and down Via Los Altos, Blackfield and Reedland Woods Way. 4. Health and safety dangers are presented by the necessity of parking adjacent to roadsides lacking sidewalks. 15 11 - Aesthetics and Glare Aesthetics The EIR goes through considerable contortions to use the existing building to justify the new additions. The existing building is out of keeping with the neighborhood, but just because there is one such building does not justify a second. Objections have been raised regarding the inadequacy of the photo-simulations in the EIR and there appears to be some disparity between the recently erected story poles, which give some idea of the bulk of the proposed expansion, and the photo-simulations, the only ones included in the EIR being those prepared by Kol Shofar itself. These are from selected viewpoints and also take no account of the vegetation cut-back Kol Shofar is committed to, and which will massively expose the new building from Via Los Altos and Blackfield Drive. Glare Several of the immediate homes surrounding Kol Shofar would be subject to headlight intrusion due to the addition of the new parking lot and the grand new circular turn- around. The grand new turn around is at a higher elevation than both parking lots and it is therefore more problematic to screen these headlights. There is currently only one streetlight on each of Reedland Woods Way and Vista Tiburon Drive; hence the streets are virtually pitch dark at night. The proposed expansion and the nighttime events would add headlights, glare and increased light emission from the site which would affect many homes. While Kol Shofar maintains that 220 Blackfield has had headlight intrusion for many years without complaint, it fails to acknowledge that currently there is very little nighttime activity, and that the headlight intrusion into this house will be a very different matter after the expansion. Skylights are shown in the ceiling of the newly remodeled sanctuary dome and multipurpose facility. The light emitting from these skylights uphill will be considerable. This has not been mentioned let alone analyzed in any of the FEIR reports. The DEIR concludes (page 19) that the proposal will change nighttime views, particularly for those homes within the immediate area surrounding the site, though not significantly. We disagree and maintain the exceptionally quiet, dark, nature of the neighborhood will be forever changed. In summary the DEIR states that: The visual changes caused by the... .lighting may be inconsistent with the Town's General Plan policies regarding maintaining the 'harmony' of residential neighborhoods. 16 13 - The St Hila" comDarison Kol Shofar has made great pains to try to compare its project to the recent St Hilary expanSIon. However: . St Hilary's did not have as its main aim the holding of late night events/parties or increasing the number of students. . There was to be no substantial increase in traffic . The hours of use were compatible with a residential neighborhood. . The parking needs for St, Hilary's were in compliance with the Parking Code requirements. Further points and discussion for these is at Appendix IV. 17 14 - School Kol Shofar currently leases part of its property to the Ring Mountain pre-school. As far as Kol Shofar is concerned, this is a purely commercial activity for which it derives revenues. The school currently has 100 students with Alternative 7 requesting a 50% increase and capacity for more. It has transpired that Kol Shofar is seeking to promote its own preschool on the premises, yet it remains unclear if this will run alongside or replace Ring Mountain School, whose lease expires in 2007. Kol Shofar has already advertised for a preschool administrator. The Town is entitled to a clear explanation of intentions in this respect. As part of its commitments in 1985, Kol Shofar was not going to increase student numbers above 100. The application for an additional 50 students adds more cars to an already over-stressed traffic situation in the mornings where many children are walking to school or riding their bikes to Bel Aire, in addition to a significant amount of traffic on the road from Ring Mountain Day School and Bel Aire Schools. The growth of the Bel Aire School must be assessed before adding yet more children and traffic in this neighborhood where safety is critical. Kol Shofar's claim that it does not have enough space in the current building to house its growth, completely ignores the obvious solution of not renewing the expiring lease for Ring Mountain, and using this space as part of its remodeling. 18 15 FEIR Shortcomine:s Listed below are only some of the shortcomings referred to in the appeal by the neighborhood groups' of the FEIR. Growth & Capacity The FEIR fails to consider the likely impacts from the cumulative usage of existing and new uses of the buildings and or at their capacities. It fails to consider the effects of expanded use through growth at existing services and/or the holding of multiple events / activities concurrently. It fails to consider the possibility of any growth beyond the present attendance. Noise It fails to investigate at all the likely noise sources and levels from and indeed what actually constitutes a 'Lifecycle event' It fails to investigate the method of construction of the multi-purpose room and to detail the construction's noise attenuation abilities, merely making vague general discussion. In using Ldn, it does not realistically characterize the interference to the peace and quiet of the neighborhood from noise spikes. It is unrealistic in assuming doors and windows will be kept shut. It fails to look at cumulative noise impacts from existing as well as new events and activities. In determining a background noise level for the Ldn, the EIR only relies on data presented by Kol Shofar's consultants, which was collected on the day three garbage trucks collect. The FEIR promised to provide its own Ldn measurements, but failed to deliver on that promise. High Holy Days , The FEIR avoids completely even attempting to judge the impact from parking and traffic and safety on High Holy Days, claiming these are only occasional impacts. The Fire department in its letter (FEIR page 74) is particularly concerned as to impacts at periods of high occupancy. Other Neighborhoods The traffic, parking, safety and noise impacts along Blackfield Drive below Karen Way and on Karen Way itself were completely excluded from any analysis in the FEIR. As indeed was Greenwood Beach Road; the homeowner's association of which has appealed the approval of the FEIR. 19 16 Tiburon General Plan Plan goals The Tiburon General Plan as a stated goal says it will "protect and preserve the existing neighborhood's character and identity". Plan policies As a stated policy of the plan it says the following three relevant things: "The Town shall limit the type and amount of land uses to those compatible with the nature, character and image as a small residential community" "Development shall be in harmony with adjacent neighborhoods". Further, the Town is to "maintain all existing . . . Residential streets with consideration of residents' safety. . . and protection of residential quality of life." This language relates to the size of a building being developed in a neighborhood, as well as its types hours and frequency of usage. The EIR consultant claims the multi-purpose room is an "extension" of the established use of the property for school and church purposes so the project was not going to change the "identity" or "character" or "harmony" of the surrounding neighborhoods. Our view is that the consultant finding is factually wrong-weekend and evening parties that carry on late into weekend evenings are not extensions of "school" or "church" "purposes" . The Alternative 7 had these issues over 50% of the year's weekends (27 of the possible 52 weekends in the year) and 25% of the weekend nights (again 27 of the possible 102 nights) where activities where carrying on until times between 9pm and 11 pm and clean- up until 10 and 12:00 midnight. The EIR consultant states that it is the Planning Commission's decision as to whether a project is in keeping with General Plan Goals and Policies, and in this instance the Planning Commission's reasons for the denial of the project include its view that the project is inconsistent with the neighborhood. Articulated this way, it is easy to see why this project should not be approved as presented and the Town Council, as the body charged with upholding the Town's General Plan, cannot, using common sense find grounds to approve the project so must therefore reject it as inconsistent with the Tiburon General Plan. 20 Appendix I - Unanswered Questions Lifecycle Events - A comprehensive list of what comprises a 'Lifecycle' event is required. - Definition and clarification of the difference between activities and events. And between 'Congregational' and 'Private' events. - What will be the maximum noise level generated from amplified music within the building? - Will alcohol be provided at these events/parties? - Rental of the facility is to be limited to members of the congregation, does this include a congregation member being allowed to rent for a friend's wedding? Building Design - The proposed multi-purpose room is claimed to be 'noise secure'. What does this mean? - What will be the noise attenuation built into the building? Aesthetics - If vegetation is to be planted to hide the building, who will be responsible for maintaining and trimming this; who for controlling and who for enforcing same? - The site for the multi-purpose room is currently hidden by overgrown 'broom' and other vegetation. What is the visual impact if this is removed? Capacity - Appendix III analyzes how High Holy Day numbers of 1,500 can be accommodated and how over 2,000 persons could easily be accommodated - does Kol Shofar agree with our analysis? If not how does it analyze the accommodating of 1,500 at High Holy Days? 21 Appendix II - Letter from Richard Goldwasser to the Ark - April 5, 2006 To the editor: As a member of Congregation Kol Shofar, I am profoundly disappointed and angered by the distortions of Jewish law that are being used to gain approval of the proposed expansion. Executive director Mark Levy argues disingenuously that the almost 10,000- square-foot multi-purpose room is "necessary for religious purposes"-to properly accommodate High Holiday observance. This is not true. Except for the High Holidays, the current sanctuary (which accommodates over 700 people) always seats all the members and guests who attend religious services, life-cycle events, lectures, and special events. F or Rosh Hashanah and Yom Kippur the attendance is greater than the sanctuary holds. Rabbi Lavey Derby and countless other Conservative Jewish congregations throughout the United States have routinely made the compromise of holding early and late High Holiday services. Contrary to what Kol Shofar is arguing to the Tiburon Planning Commission and Town Council, there is no compelling religious justification for changing this practice now. Finally, the argument that Jewish religion dictates that parties must be held on site following weddings, bar and bat mitzvahs is laughable. Very few Jewish congregations have banquet facilities connected with the temple. As with other religious communities, Kol Shofar's members have taken their parties to other venues for over 20 years. The cost to Tiburon will be dear if Kol Shofar is allowed to create a heavily used banquet facility/multi-purpose room. Common sense and the EIR acknowledge that noise, traffic and safety of children traveling along Blackfield Drive will be impacted by more people and parked cars on neighboring streets for more extended periods of time. Let us hope that Tiburon's leaders have the integrity and honesty to reject a plan that has no benefit to Tiburon, and is sanctimoniously misrepresented. -Richard Goldwasser, M.D 22 Appendix III Capacities The information below is derived from the Building Occupancy Summary on page AO.2 of the Kol Shofar application also reproduced as Figure 5 of the DEIR. Reference is made in Kol Shofar's application to a seating capacity for the multi-function room of 300 at dining tables; the capacity of the room and lobby is 880 'theatre style'. The stated planned High Holiday attendance of 1,500 could rise with the projected expansion and there would still be further capacity in the classrooms that open onto the sanctuary in the main building. There is nothing in the Kol Shofar application to suggest it will limit its attendances to the figures presently higWighted by it, and if it does so now, why will it not continue to expand. At its conception it was a community of 220 families and envisaged only growing to 350 families; it has in fact already reached 600 families. The Draft EIR does not clearly set out and discuss the total capacity of the enlarged facility. The tables below are an attempt to indicate the maximum capacity of the buildings. The capacity of the Sanctuary and multi-purpose facility with the associated lobbies is over 2,000. The capacity of the existing administrative wing and religious school is 160. The capacity of the existing school wing and the proposed new classroom wing is 395. . Comment has been made that the Sanctuary will be reduced from its current size but no analysis of the revised capacity provided so the existing capacity is being used. The capacity of the multi-purpose facility is for the multi-purpose room itself and the attached lobby. The lobby-hallway of the existing sanctuary is used to capacity on High Holy Days. Tables on next page. 23 Building Occupancy Usage A- Sanctuary and Multipurpose facility Projected Allowed Assumed for Occupancy Capacity High Holidays Existing Sanctuary - fixed seating 550 550 Sanctuary - w/out fixed seating 762 Chapel 150 263 150 Lobby - Hallway 226 226 926 1,251 700 Multi purpose building Multi purpose room- seated 642 642 642 Multi purpose lobby - seated 256 238 238 898 880 880 1,824 2,131 1,580 Source: Figure 5 Draft EIR Source: Projected and Allowed Capacity are as per AO.2 ofKol Shofar Application Assumed is our interpretation of figure of 1,500 provided by Kol Shofar Building Occupancy Usage B-Administration and Religious school Offices and conference room Religious school Capacity 67 93 160 Building Occupancy Usage C- Existing School Wing Existing school Annex 211 48 Proposed new classrooms 136 395 24 Appendix IV - Kol Shofar and St. Hilary's 1. A gymnasium is different then a multi-purpose room. There are other multi- purpose or similar types of rooms available in the vicinity for Kol Shofar to use. 2. KS has the opportunity to remodel their existing facility to make better use of their space to accommodate a functioning multi-purpose room and sanctuary. SH required a gymnasium to provide an athletic facility which was not able to be achieved through a remodel of their existing facility. 3. St. Hilary's (SH) only 500 feet from Tiburon Blvd. Access to Kol Shofar (KS) is far from the main thoroughfare, Tiburon Blvd. Cars must drive, 2,000 feet along Blackfield Dr., through residential neighborhoods to reach KS. KS is not a convenient access to Tiburon Blvd. as SHe 4. Reedland Woods Way and Via Los Altos, egress and ingress for KS are neighborhood streets. Egress and ingress for SH is on Rock Hill is a collector street. 5. SH school and gymnasium traffic will only ingress and egress on Rock Hill Dr., a collector street. KS's school, multi-purpose room and synagogue traffic will ingress and egress" after driving through the Bel Aire neighborhood along Blackfield Drive, onto Via Los Altos and Reedland Woods Way, neighborhood residential streets. 6. Traffic generated by KS at Blackfield Dr. /Tiburon Blvd. is required by Caltrans, as stated in the EIR to lengthen the left turn pocket lane to accommodate KS traffic. SH does not require changes on Tiburon Blvd or Rock Hill to accommodate traffic. Substantially less traffic is projected to be generated by SHe 7. Traffic studies for KS indicate unsafe turnarounds in residential neighborhood streets related to KS use. These unsafe turnarounds are found to be unmitigated in the FEIR. SH has no traffic significant impacts. 8. SH has a person designated to control vehicular traffic on all school days in the AM at two intersections. KS application only calls for infrequent traffic control at limited intersections. 9. 85% of KS attendees do not live in Tiburon, thus would increase the number of trips on Tiburon Blvd coming from outside the Tiburon peninsula. SH reduces the number of trips of Tiburon residents for CYO practices and fills the needs of primarily Tiburon peninsula residents. 10. SH parking for CYO is available on site, since they are able to use the churches parking lot and thus able to meet all the parking needs the church, school and 25 CYO. KS parking is inadequate for its size and scale of use. KS requires off site or on street parking in neighborhoods and does not meet the parking needs of synagogue, school and multi-purpose room. 11. SH limits concurrent functions to not over burden their parking facility. KS has no plans to regulate multiple uses that might exceed capacity of their parking lots. 12. Kol Shofar requests events until 11 PM and clean up until 12 AM on Sat and 9 PM and clean up 10 PM on Sundays. SH gymnasium is used only until 3 PM on Sat and no gymnasium on Sundays. Weeknights, SH basketball practice only is until 6:30/7:30 PM. KS on weeknights activities last until! 0 PM. 13. SH's activities are held at times that do not interfere with family's hours of rest and sleep. KS hours of use would interfere with hours of families rest and sleep. 14. SH has two sets of doors in their vestibule to control the escape of noise. KS design for the multi-purpose room has glass doors that open directly to the outside. Noise from KS multi-purpose room is able to escape into the neighborhood as people move in and out of the room during events and activities. 15. SH CYO program produces only 18 additional trips per hour on Rock Hill during CYO activities. KS events would add vastly larger number of vehicle trips traveling in and out of the residential neighborhood, even at late night hours with an increase in volume and character of the traffic, noise and light. 16. SH classrooms would not result in an increase of school enrollment. KS classrooms would result in 50 more students. A 50% increase beyond existing school enrollment. 17. SH's CYO provided a gymnasium that is available for community use. CYO gymnasium is open to all children on the Tiburon peninsula. KS is open primarily for its members. KS has other facilities in and around Tiburon that could provide room for celebratory events such as parties. 18. SH has no skylights in the gymnasium and a solid wall facing the neighbors to limit light pollution. KS design proposes skylights 'in the sanctuary and large glass doors and windows facing the homes of the adjacent residential neighborhoods. 26 Appendix V - Parking The tables below are derived from Kol Shofar's Parking Study, Tables 10 and 11. They show the Parking requirements for High Holidays and how that requirement is planned to be met. The plans understate the number of vehicles that will park on the streets as: The numbers arriving by bus/van are overstated and no parking for these vehicles is included. The number of persons per car is overstated. The valet parking with 250 vehicles; almost twice the number of striped spaces will produce congestion in the lot and discourage its use. Off-site parking has only been used in the past as a last resort and is often empty when the surrounding streets are full. People prefer not to use the shuttle. High Holidays Parking Requirements Total attendance People arriving in buses/vans(10% est.) People arriving in cars Persons per car (2.3 observed +10%) Cars to be parked Source: Table 10 Kol Shofar Traffic & Parking Study 1,500 Persons 150 Persons 1,350 Persons 2.5 People per car 540 Cars High Holidays Parking Plan On-site On-site striped spaces 139 On-site additional through valet parking 111 Sub-total 250 Off-site with shuttle buses Westminster Presbyterian Church 84 Tiburon Baptist Church 96 Sub-total 180 On Street Via Los Altos 60 Blackfield Drive 50 Reedlands Woods Way 10 Sub-total 120 Total Potential Parking 550 Source: Table 11 Kol ShofarTraffic & Parking Study 27 Parking Analysis There are certain figures in the Parking section of the Planning Commission's Kol Shofar draft resolution for denial that need to be corrected as they show inaccurate information. These numbers should be corrected on the draft resolution so that the parking requirements are stated accurately for the record. 1) The parking requirements per the General Plan based on assembly area usage have been underestimated. The parking required by the General Plan should actually be 717 spaces (see analysis below, the range based on size or capacity varies from 619-748). Page 15 and 16 of the draft resolution states: 'Section 5.08.04(d). Place of assembly: one parking space for each 4 seats of maximum seating capacity; or one for each 40 square feet of assembly area, whichever is more; and Section 5.08.04(k)(l). Child Care: 3 minimum, plus one for each 10 children over the first 15. The draft resolution states: 'As indicated in DEIR Appendix D: Table 9, the Tiburon Zoning Ordinance parking requirement is comprised of the following elements: 1) for the 4,500 square foot portion of the multi-purpose Room that would provide up to 642 seats: 161 parking spaces; for the 5,336 square foot remodeled Sanctuary that would provide up to 550 fixed seats: 138 parking spaces; for the remodeled 1,842 square foot Chapel: 46 spaces; and for the ISO-student Pre-School: 18 spaces. The combination of uses yields a total parking requirement of 363 spaces, far more than the 139 spaces proposed for the existing lower and proposed new upper parking lots.' However, based on capacities of assembly areas that could be used concurrently, these numbers should actually be: 28 Parking required Capacity Size Required Based on: 4 40 Multi Purpose room 642 4,500 161 Capacity Multi purpose lobby Capacity Sanctuary 550 5,336 138 Capacity Chapel 150 1,842 46 Size Classrooms main bldng 150 3,032 76 Size Library 14 735 18 Size Classrooms in admin wing 90 1,919 48 Size Conference room 30 538 13 Size Classrooms existing school 150 3,612 90 Size Library in school 15 887 22 Size Existing Annex 80 1 ,454 36 Size New Classroom wing 120 2,734 68 Size 1,991 26,589 717 . Proposed New multi-purpose room (642 person capacity - 4500 sq. ft.) = 161 spaces required based on seating capacity (113 based on sq. ft.) . Proposed Expanded Sanctuary (550 person capacity - 5336 sq. ft.) = 138 spaces required based on seating capacity (133 based on sq. ft.) . Remodeled Chapel (150 person capacity - 1842 sq. ft.) = 46 spaces required based on sq. ft. (38 based on seating capacity) . Classrooms as proposed in Existing Main Building (150 person capacity - 3032 sq. ft.) = 76 spaces required based on sq. ft. (38 based on seating capacity) . Library as proposed in Existing Main Building (14 person capacity - 735 sq. ft.) - 18 spaces required based on sq. ft. (4 based on seating capacity) . Classrooms as proposed in Existing Administrative Wing (90 person capacity - 1919 sq. ft.) - 48 spaces required based on sq. ft. (23 based on seating capacity) . Conference Room as proposed in Existing Administrative Wing (30' person capacity - 538 sq. ft.) - 13 spaces required based on sq. ft. (8 based on seating capacity) . Classrooms as proposed in Existing School Wing (150 person capacity - 3612 sq. ft.) - 90 spaces required based on sq. ft. (38 based on seating capacity) . Library as proposed in Existing School Wing (15 person capacity - 887 sq. ft.) - 22 spaces required based on sq. ft. (4 based on seating capacity) . Existing Annex (80 person capacity - 1454 sq. ft.) - 36 spaces based on sq. ft. (20 based on seating capacity) . Proposed New Classroom Wing (120 person capacity - 2734 sq. ft.) - 68 spaces based on sq. ft. (30 based on seating capacity) = 717 spaces required per the General Plan Note: If the minimum numbers are used" the total is still = 444 soaces required. 29 Appendix VI - Field of Dreams Sermon This is the full sermon given by Rabbi Lavey Derby; with emphasis added. WHAT WOULD ROSENZWEIG SAY? Kol Nidre, 5757 One of my favorite stories about Kol Nidre is a modem story about the German Jewish philosopher Franz Rosenzweig. Rosenzweig grew up in an assimilated, secular Jewish family in the years before W odd War 1. As a young man in search of spirituality he made the decision to convert to Christianity, and at age 27 he went to the synagogue on Kol Nidre eve in order to say goodbye to Judaism. But something happened to him. The power of that service was so real, he was moved so deeply, that he decided not to convert but rather to immerse himself in Judaism instead. This is a haunting story and what haunts me about it is a single question: what would happen if Franz Rosenzweig came into Kol Shofar? Would he have had the same experience? What would he feel? What would happen inside him? Would his life be changed forever by the experience? Some of you undoubtedly read the article in the Jewish Bulletin last week which boldly announced that "the majority of Bay Area Jews neglect or even consciously shun synagogues for most of the year." yet, the article, continues, these same Jews return to their spiritual birthplaces for two days every fall. And I am haunted by the question: what is it about synagogue life that fails to attract and arouse the fervor of Jews? If a visitor walked into our synagogue, what would she fmd? What would she feel? Would she feel moved by transcendence or by boredom? Would she feel a dynamic connectedness or just another disconnect? Let me confess to you that these questions are much more than academic to me. They are "devarim ha- omdim be-rumo shelolam" -matters that are at the center of the universe. And I take them very personally. Despite a lifetime of watching people flock to synagogues two days a year, only to stay away the other 363 days, I nevertheless must believe that a synagogue which thinks of itself as a community more than an institution will be attractive to people; that a community based on spiritual and ethical values which offers people the opportunity to expand their own spiritual and ethical sides will be attractive to people; that a religious community which is truly open to personal exploration and which addresses people's joy and suffering, love and death, which addresses people's quest for meaning must be attractive to people. I believe this. Probably, I need it to be true. It's probably no wonder that one of my favorite movies is "Field of Dreams". You remember: Midwestern farmer Kevin Costner is out in his cornfield where he hears a voice (on the High Holidays we would describe it as a "still, small voice") whispering "If you build it they will come." That's what I believe about synagogues: if you build an authentic Jewish community, one in which Judaism is lived authentically, honestly, passionately, joyfully, then people will come. Particularly at this moment in history when we are riding a great wave of interest in the spiritual, in personal meaning, people will come. During the past year and a half we at Kol Shofar have been given the opportunity to find out. Thanks to an initaitive of the Koret Foundation, and with the cooperation and generosity of the Marin Community Foundation, three Bay Area synagogues and Kol Shofar were given the financial resources to hire program directors whose job it would be to "build it" and see if they would come. Ostensibly what they were meant 30 to build was a program, but in reality what they needed to build was community. That's what our very fine program director, Karen Roekard, helped us focus on building and strengthening community. Very early on in our project we made the decision to focus our efforts in two different, but mutually complementary, directions. Because Marin sits at the heart of the spiritual renewal movement in our country, our leadership decided to reach out to those Jews who think of themselves as spiritual seekers. At the same time, we decided to build our own community by focusing on two populations which have been traditionally underserved by synagogues: singles over 35 and adults whose children are already grown and out of the house. Let me tell you briefly that our efforts have met with a success beyond anyone's wildest dreams. Our Saturday Nights at the Synagogue Program is drawing hundreds of people to Kol Shofar not for membership but to experience the spiritual depth that Judaism offers. Our neshama minyan draws a hundred people on Shabbat, many of them members who never come to regular services but who never miss a Neshama minyan. The group of singles now has over 80 names on its roster. They meet regularly for Shabbat dinner and other activities. They call themselves a "mishpacha" -- a family. The same thing has happened to our group of, for lack of any better description, "Empty nesters." With the nurturing presence of our program director, these 30 -40 households have evolved into a havurah which meets regularly for socializing, discussion and spiritual growth. They have already mapped out an entire year's worth of activities. And that's just the beginning. over the past year 10 new chavurot have been created, including a havurah of mental health professionals whose 25 active members have committed themselves to use their professional skills to serve the Kol Shofar community. Currently they are studying the Jewish traditions surrounding death and mourning so that they can help bring comfort to the bereaved with both their psychological skills and their knowledge of Jewish tradition. They will also provide volunteer teaching and guidance about the sticky issues that arise when people come together in community. This year we will see the creation of neighborhood get togethers on Shabbat and other occasions. And all these efforts are designed with one purpose in mind: to empower people, to nurture relationships and connectedness, to foster intimacy, to build a richer, deeply fulfilling community. Kol Shofar has always been known throughout the area for our emphasis on community. I didn't create it, but I'm enormously proud of it. Our Rabbi Emeritus, Rabbi David White and the founders of this synagogue 15 and 20 years ago dreamed of a community whose hallmark would be "haimishness." Just this past Thursday I received a letter from a member which begins: "On January 9, 1981, 1 attended services at Kol Shofar for the first time. My journal entry from that night said, 'What an amazing experience. Went to services at Kol Shofar. This is what I want. It was beautiful, warm. I have never felt so accepted in a Jewish place. Everyone was so welcoming and encouraging... . III Go anywhere in the Bay Area and mention Kol Shofar by name and you wjll hear the same thing: "Oh, Kol Shofar, it's so haimisch!" When we were 100 families this was a wonderful accomplishment. Now that we are 470 households, it is simply extraordinary. In fact, 61% of our members stated that our warm and friendly atmosphere was a very important factor in their choosing to join. Of the four synagogues studied by the Koret Foundation, we are the only one whose atmosphere was of major importance to people. We are people who seek community. And if you build it, they will come. We dreamed that a synagogue might be a place were people could examine and explore the intricacies of Judaism and discover the depth of meaning within it. We dreamed that Kol Shofar might become a safe place where adults could stretch themselves and grow JewisWy, intellectually and spiritually. You know what we learned this year? Of the four synagogues in the Koret study, we have the highest rate of involvement in adult Jewish education. 67% of our members have participated in Jewish studies this past year, and almost half of us engage in Jewish learning at the synagogue once a month or more. If you build it, they will come. 31 One of the proudest moments of my life occurred last year when a group of Kol Shofar members, led by Anne Zhishka, Elliot Bien and others, stepped forward to take responsibility for a project of feeding the homeless here at kol Shofar on Sunday's. We had participated for years in the tzeddakah project of bringing meals to homeless shelters and collecting food for the Food Bank. And when our members came together to feed the poor here, in our home, I felt again as if Judaism had come alive. They showed me that our Torah is not just words on a parchment. The Torah is alive, and the adults and children who feed the homeless on Sundays are showing us all how to live it. I used to joke that Sundays at Kol Shofar was the quintessential Jewish experience: we study Torah a little, we davven a little, we eat a little, we schmooze a lot! And now we do tzeddakah on Sundays. And, our building is packed on Sundays. Because if you build it, they will come. For the most part, people will come for a lot of activities and programs. Except services. Kol Shofar appears to be the same as every other synagogue described in the Bulletin article. 27% of our our members believe that attending synagogue services is very important. Fewer than that actually attend services once a week. Despite our proclaimed interest in God and spiritual questions, it appears we do not fmd services at all interesting. What conclusions should we draw from this? To me, the most stunning statistic to emerge from the Koret Foundation's study of four Bay Area synagogues is that 99% of members from all four synagogues agreed that it is important or very important for them to be Jewish and for their children to be Jewish. 99% That's practically impossible --you can't get two Jews to agree on anything. So when 99% of the members of four synagogues agree --well, we're talking motherhood and apple pie. We have arrived at the highest value, the elusive sunnum bonum. But note the following: while 99% throughout the Jewish community insist that it's very important to be Jewish, 7% keeps kosher. 18% attend synagogue services. 19% think its important to experience Jewish culture. 21 % report that they usually light candles on Shabbat. 29% think its very important to observe Jewish rituals. 37% believe its very important to contribute to social justice. 45% say its very important to have a bris for their male children. And these are synagogue members! Imagine what the unaffiliated must think! And at Kol Shofar, 24% of us have a Shabbat dinner. Only 2 1/2% regularly do havdallah. But 99% of us think its important to be Jewish. What shall we make of these facts? What are they telling us about ourselves? I suppose it depends on whether you like to see the glass half full or half empty. The fact that 99% of all synagogue members say that being Jewish is important to them suggests that they feel real commitment to Jewish community and identity. They express considerable interest in religious programming and in studying Jewish spirituality. But at the same time the vast majority of us are ambivalent about how to translate that into daily practice and meaning. We do not seem to make room for religious content to our Jewish lives, and the key traditional determiners of Jewish identity -- keeping kosher, lighting shabbos candles, having a bris, going to the synagogue for prayer -seem to be irrelevant. We distance ourselves from daily practice and observance. Ritual has little place in our Jewish lives. The activity of tefillah is, for all intents and purposes, a forgotten art. I wonder if we are afraid to be religious. In our current political and cultural climate, where religiousity is associated with extremism and with the far right, maybe its just not PC to be religious. Or maybe, the meaning of being Jewish is going through a radical transformation. For us, today, being Jewish means belonging, connecting, having a warm Jewish feeling, learning. We gravitate towards the intellectual pursuit, the social connection. The spiritual, ritual practice is ignored. Consider again our Sunday morning program. It's amazingly popular. And thanks to the generosity of one of our members we have this year added a new feature to our Sunday morning program: a cappucino cart. We call it "Mi Ka-Mocha." The name is cute, but also revealing. The building is jammed. And the success 32 of our Sunday program has virtually replaced Shabbat as the day of gathering at the synagogue. If you build it, they will come, but not for davenning and not for regular ritual practice. It's the sign of the times. The truth is Jews are changing, and Jewish identity is in flux. In many ways our Jewish lives are fuller than ever before. But we are giving up mitzvot. Weare giving up the ritual practice that gives energy and life to our spiritual search. Weare abandoning the very activities that concretize the spiritual meaning we hunger for. 150 years ago most Jews gave up the notion of a commanding God. We have since even given up the possibility of hearing God's voice and feeling God's presence through the mitzvot. We have discovered that there are no consequences --no punishment --for not doing the mitzvot. But we have forgotten that there is awesome consequence when we do the mitzvot --we are raised to a new spiritual level, to greater closeness with God and greater awareness of the gifts and blessings we have received. I am haunted by Franz Rosenzweig. What would he fmd here, at Kol Shofar, that would change his life forever? What would he experience here that would set his soul on fire and move him to a life devoted to God and Torah? I hope you'll ponder my question over the next day. And I hope you'll let me know what would move you, too. Because the real question is not about Rosenzweig. It's about you. 33 WilSON, IHRIG & ASSOCIATES, INC. ACOUSTICAL AND VIBRATION CONSULTANTS 5776 BROADWAY OAKLAND, CA USA 94618-1531 'All; (51 0) 658-6719 Pc: (510) 652-4441 m.-d: info@wi8Lu..... -.: www.wI..I.f;l)m May 8, 2006 Planning Commissions Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 Subject: Supplemental comments of Tiburon Neighborhood Coalition on the traffic impact analysis included in the Alternative 7 proposal for the Kol Shofar Conditional Use Permit Final Environmental Impact Report Dear Commissioners: I am an acoustical consultant with 21 years of experience evaluating environmental noise impacts and assessing strategies to avoid, reduce or mitigate noise from human activity including land use developments and associated traffic and human occupancy and use. I am a Principal in the acoustical consulting firm of Wilson, Ihrig & Associates ("WIA"). Founded in 1966, WIA offers a complete range of professional services associated with acoustics, and noise and vibration control. I have been retained by the Tiburon Neighborhood Council to examine the adequacy of the Town's assessment of the noise impacts of the Kol Shofar project, as modified by Alternative 7 proposed by Congregation Kol Shofar in April, 2006. I have reviewed the Draft and Final EIRs, the Town Staff Reports, and public comments on this project. Based on my review of these materials and my professional background in noise assessment and mitigation, I have the following comments. Alternative 7 was proposed by Congregation Kol Shofar for the Town of Tiburon as a proposed modification of its Final EIR for Kol Shofar's Conditional Use PeImit application in April 2006. Alternative 7 proposes twelve new Saturday evening events of varying maximum attendance (four with 250 attendees, four at 200 and four at 150) and fifteen new Sunday evening events (three with 250 attendees, five at 200, four at 150, and three at 100). The proposed Saturday new events would continue "until 11 p.m. plus cleanup," and the Sunday events would continue "until 9 p.m. plus cleanup." Alternative 7 Analysis prepared by Leonard Charles and Associates for the Town of Tiburon, dated April 18, 2006, at page 1. According to the Alternative 7 Analysis, "the applicant's noise consultants. . . . have concluded that the new proposed Alternative 7 would reduce the noise impacts from new nighttime events to a less than significant level." [d. at 5. Based on my review of the relevant materials, in my professional judgment this conclusion is not supported by adequate methodology, analysis, and data. I reach this conclusion for the following reasons. WILSON, IHRIG & ASSOCIATES, INC. 2 Tiburon Neighborhood Coalition 1. The impact of developing an unimproved parking lot (now a meadow) to a paved parking lot, a change which will increase noise due to the new hard surface, has not been adequately assessed. 2. The correlation between Ldn and speech and sleep interference on which the Draft and Final EIRs is based (see Draft EIR at page 76) is not appropriate for assessment of intermittent noise such as the late-night events proposed in Alternative 7. Rather, Ldn is the appropriate methodology for assessment of the impact of steady traffic noise on speech and sleep interference. 3. The Alternative 7 Analysis appears to rely on the Draft and Final EIRs' use of Ldn as a predictor of human annoyance. This is a methodological error. Ldn is not a predictor of annoyance for intermittent and/or infrequent noise events such as the Saturday and Sunday evening events proposed here. Ldn trivializes occasional noises, and is appropriate only for a relatively steady ambient noise environment. 4. The underlying data utilized by Kol Shofar's noise consultant, Charles M. Salter Associates, is inappropriate for the noise assessment needed here. Of the three ambient measurements by Salter, two included temporal events and none fully nor adequately documented the background environment at times when there are no services or other events at the site. (See DEIR at 76.) The Draft and Final EIRs are inappropriate for use in assessing the noise impacts of Alternative 7 because the events assessed in the Draft and Final EIRs do not have the same time, day, and duration characteristics as events proposed in Alternative 7. Ambient measurements must characterize noise at all times that proposed events and services may take place, rather than simply at random times or when a few previous events occurred. Because the Draft EIR provides only an incomplete characterization of the existing environment, its analysis is inappropriate for use in assessing the impacts of Alternative 7. 5. Neither the Alternative 7 Analysis, nor the previous Draft and final EIRs, adequately assessed the fact that noise from parking lot activity during large-scale individual events, where cars starting, doors shutting, and people talking are multiplied in their frequency and thus their apparent intensity, is not similar to a "typical" neighborhood noise. Yet the Alternative 7 Analysis and its underlying Draft and Final EIRs, rest on this inappropriate assumption. (See Draft EIR at 82.). 6. The maximum hourly average noise level ("Leq") employed by Kol Shofar's noise consultant does not adequately characterize the effect of parking lot activity (See Draft EIR at 82.) The noise effect of parking lot activity late at night, as would occur during the weekend events allowed under Alternative 7, has not been quantified sufficiently for its assessment for this project. Substantially more observations of previous events, and substantially more ambient noise data, are essential to adequately characterize the impact of these evening weekend events. The type and intensity of noise that likely would occur with these late night events is unlike typical neighborhood noises at that hour and therefore it is inappropriate to use Leq, and nonsensical to use Ldn, as Kol Shofar's consultants have done. (See Draft EIR at 85). Because Ldn averages noise levels over 24 hours, in quiet neighborhoods as is the case here the noise WILSON, IHRIG & ASSOCIATES, INC. 3 Tiburon Neighborhood Coalition impact of activity that lasts only a couple to a few hours is substantially understated by this measure. In effect, Kol Shofar's consultant is taking credit for the fact that this neighborhood is quiet the rest of the time in order to trivialize the significant impact of late night noise from these events on the surrounding neighborhood. 7. Both the Alternative 7 Analysis and the underlying Draft and final EIRs assume mistakenly that the potentially significant noise from this facility is "unavoidable." This statement overlooks obvious mitigation measures such as moving all attendee parking to offsite locations in combination with a shuttle bus service, or terminating the events earlier in the evening. 8. Neither the Alternative 7 Analysis nor the underlying Draft and final EIRs employs an appropriate noise metric. The noise metric that should be used is the maximum level of noise generated, how often it will occur, and how audible it will be at various neighborhood locations in order to determine annoyance - primarily conversation- and sleep-disturbance - for late night events. The Draft EIR fails to address this in a quantitative manner. (See Draft EIR at section 5.2.) Appendix E of the Draft EIR employs an even less simple metric by "annualizing" the Ldn for the parking lot noise. In light of the short period of time during which parking lot noise occurs, it is highly inappropriate to "annualize" these events. Doing so trivializes their impact on the neighborhood, and takes inappropriate credit for the fact that the background noise environment for this residential location is very quiet. 9. Neither the Alternative 7 Analysis nor the underlying Draft and final EIRs disclose anticipated noise levels during late night parking lot activity at specific residential locations. Such a disclosure is essential for meaningful evaluation of the impact of Alternative 7 on the surrounding residences during the late evening. 10. Neither the Alternative 7 Analysis nor the underlying Draft and Final EIRs considers the possibility, if not the likelihood, that during these evening events, doors or windows on the proposed facility may be opened in order to provide fresh air for attendees, facilitate the movement of attendees in and out of the facilities, or to communicate with attendees who are meeting in the surrounding patios and gardens. Conditions where doors or windows are opened, including open windows of the adjacent residences should be, but have not been, modeled to provide this information. Without this information, it is impossible to assess the magnitude of the potential adverse noise impacts of these late-night events on the surrounding neighborhood. 11. Likewise, neither the Alternative 7 Analysis nor the underlYing Draft and final EIRs (and their Appendix E) provide a quantitative modeling of noise levels that may be expected at night during these evening events, compared with existing conditions at the same time of day/night. The ambient noise levels presented in the EIRs either fail to address the relevant time periods, or are so generalized as to be nearly meaningless. Because of these omissions, there is no adequate assessment of the impact on the surrounding neighborhoods of these late night activities. Instead of relying on time-weighted averages, which understate the impact of these events, the EIR should be revised to model the impact of these events compared to existing WILSON, IHRIG & ASSOCIATES, INC. 4 Tiburon Neighborhood Coalition conditions during late evening at specific residential locations ill the surrounding neighborhoods. f or the foregoing reasons, in my professional judgment, the Alternative 7 Analysis' conclusion that "the 11 p.m. ending time for these twelve [Saturday] events would still achieve a less than significant impact given the other reductions encompassed in Alternative 7" is not supported by existing data and analysis. [d. at 6. Based on the information presented, it appears that just the opposite is true: the new Saturday and Sunday events allowed under Alternative 7 are likely to generate significant noise impacts on the surrounding, otherwise quiet, residential neighborhood. Very truly yours, WILSON, llIRIG & ASSOCIATES, INC. ~ Richard A. Carman, Ph.D.,P.E. Principal RAC:bdm John Nygren 22 Paseo Mirasol Tiburon, CA 94920 Mayor Paul Smith Tiburon Town Council 1505 Tiburon Blvd. Tiburon, CA 94920 October 20,2006 Re: Photos Showing Parking, Traffic, & Safety Problems at Some Kol Shofar 2006 Events Dear Mayor Smith and Town Council members: Attached is a photo journal showing parking, traffic, and safety problems at some recent Kol Shofar events. Over the past few years I have submitted similar sets of photos to the Planning Commission, most of which should be in the town records. The attached photo journal shows that the safety and parking problems continue to persist during the time Kol Shofar's application and appeal is under review by the Town Council. I have many other photos showing parking and traffic problems for other recent and past Kol Shofar events. Following is a summary of the sections of the photo journal: . Unsafe Turnarounds . Illegal Parking . Neighborhood Streets Congested . Kol Shofar Parking Lot Congestion . Off-Site Lots Used in Past for Kol Shofar Events . Safety Problem Observations Plotted on Google Earth Map Thank you for reviewing the attached photo journal. Yours truly, d:::n~ 'rOWN COUNCIL lATE MAIL # I MEETING DATE ,... a.-y..,,, -. ^ ^ ^ ^ ^ ^ v v v v v v en 0 " z - c: S>> ::t 2- CD CD ~ -+i cO. ca ,1/) CD I ~ en en :T S>> S>> ::;: :T -+i CD 0 tT "tJ CD "tJ 0 -I -: r- -+i -: S>> 0 0 S>> :T -: s:: C" -: 0 ~ -: ,... "tJ ~ CD en 0 ~ S>> S>> 3 c: -: Q, ca -: en ~ en 0 0 CD ~ ,... s:: tT Q, ca -: ~ CD Q, en ~ r- CD en CD ,... < "tJ 0 en .... S>> S>> 0 0 .... en 0 o. .... 0 ~ ~ 0' ~ ca en ca CD -: CD en "tJ " en .... 0' 2- .... CD .... o. Q, CD en ~ Q, :T 0 0 -+i ~ S>> -: C> m 0 < 0 CD ca ~ CD .... en m S>> ::I- :T 3: S>> -0 "'tJ ::T 0 .... 0 tn en ::T 0 ~. ~ (Q "'tJ S>> ... ~ ~ (Q .. -I ^ ... S>> 0 3! ,S") (J) QO =r en 0 S>> or ;' !.. ~ en '"0 Z ... CD 0 C" co CD =r 3 C'" tn 0 S>> ~ .... =r en 0 0 0 3 a. 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I+- ::J -- ceO ....::s ~ m -c ::1. -g 0- "0 ~:+ 2.eD CJ)c. :r 2.0 ~ ::s ~G) !o ....0 Ice D._ aeD CD em ::J A) 9~ ~::T 2.3: A) -c John and Karen Nygren 22 Paseo Mirasol Tiburon, CA 94920 Mayor Paul Smith Tiburon Town Council 1505 Tiburon Blvd. Tiburon, CA 94920 TOWN COUNCIL LATE MAIL # I · ~, ~ MEETING DATE'lI~t.~:1t.~~ ~ ~(C~~'WLE r-~ o r~~'.-~. --'-".-_."-~- .11 \ i : = . .~ . - ! I I !: j !OOT ., 0 'IoUi' t I ! ! I I~.. L. L to [!~.> ! L-___~__.__J I' PLt-\!\! ~~ li)G _l,)!Vi Si~jN TO \01LQt.Ji~L:j~0,)J~L____J October 20, 2006 Re: Staffreport of Oct 13,2006 and Exhibit D regarding Congregation Kol Shofar Dear Mayor Smith and Town Council members: Thank you for your time and efforts in carefully evaluating and deliberating the Congregation Kol Shofar Appeals regarding the Certification of the FEIR and Conditional Use Permit Application and Expansion for the Existing Facility and Day School. We submit this letter to primarily comment and ask questions regarding the Town's Staff report of October 13, 2006 and Exhibit D, Response to Appeals of Planning Commission Decision's Congregation Kol Shofar Expansion Project, 215 Blackfield Dr. We believe staff recommendations to the Town Council, for the October 24, 2006 meetings, Table 1, page 9 of 12 do not mitigate the significant negative impacts of the Congregation Kol Shofar's Conditional Use Permit Applicant and Expansion to a level of insignificance. We believe you have in your binder previous letters which we had submitted to the Tiburon Planning Commission regarding our concerns about the Congregation Kol Shofar's Conditional Use Application and Certification of the FEIR. Much of the content of these letters remain applicable and pertinent to the scheduled Town Council hearing of October 24 and November 15. You will find in your binder of materials, letters from John and Karen Nygren dated March 20, April 17, April 24, April 28, May 4, May 20, and May 26, 2006. We agree that the Planning Commission was correct in denying the Kol Shofar CUP application since Congregation Kol Shofar was unwilling to continue working with the town and the community to resolve remaining significant impacts and serious issues included in their application. We believe the Certification of the FEIR was premature and there are still remaining significant issues not studied, analyzed and included in the EIR to thoughtfully assist the Town in making informed decisions regarding the application. The CUP Application and Expansion Plan is one that must be viewed only as a land use issue and one that must comply with the Town's General Plan and Zoning Codes. We do not view this CUP Application in any way as a religious issue. The key to approval of a CUP Application is finding how the uses of the application and facility will be harmonious with the predominant residential neighborhood. To 1 accomplish this task, one of the main elements of consideration which the Town Council must consider is the "intensity" of the proposed uses and facility and how to mitigate its significant negative impacts. I. Table 1 on page 9 of 12 indicates the staff is recommending new events ending Saturday at 10 PM, Sunday at 8 PM and Friday at 9 PM. There is no indication in Table 1 if these include additional time for clean up and lights out. If this is not the case, the residential neighborhood would be subjected from new events/activities/parties to noise, lights, traffic, safety and health issue imposed on their families and residences until 10 PM on Friday's, 11 PM on Saturday's and 9 PM on Sunday's. Currently Congregation Kol Shofar has no events, parties or activities on Saturday or Sunday evenings. The suggested hours of use in the staff report remain a significant impact and burden on the community who have young children living immediately adjacent to the synagogue and the working families who need to relax and get adequate rest in order to successfully function during the daytime at their places of employment or study for school. The new hours and uses on weekends must either not be allowed or be limited to no later then 9 PM including clean up with lights out for all new events, activities or parties on Friday's, Saturday's and Sunday's. The staff s suggested hours of new weekend events are a burden on the community and not in harmony or compatible with the neighborhood. Allowing for 10 PM on Saturday's is later then what the Town allows for other such facilities nestled in a neighborhood or similar location such as St. Hilary's or the Tiburon Peninsula Club. The Belvedere Tennis Club is separated from the surrounding community by Tiburon Blvd and thus late night impacts are different then those of the location of Congregation Kol Shofar, which is surrounded by homes adjacent to their facility. It's understandable that the Belvedere Tennis Club's hours of use might be considered for later activity due to the Club's separation from the residential community across the Highway. The Tiburon Peninsula Club is required by a Town CUP to have all events on Friday, Saturday and Sunday's concluded by 9 PM to insure that the surrounding neighborhoods are not impacted by the noise, light, traffic and related impacts of its facility. It is inconsistent and inappropriate to subject the neighborhood surr<?unding Congregation Kol Shofar to the suggested late night weekend hours in Table 1. Approval of the proposed late night hours for weekend events is inconsistent with Tiburon's current practices. These late hours of use for a facility nestled within a community, would set a significant new precedent in Tiburon for other facilities. Will the TPC be next to request to also be allowed to hold weekend events until 10 PM (clean -up to 11 PM) if Kol Shofar is permitted to have the suggested hours of use? II. One of several significant concerns the residents of the surrounding community have is that as more people attend more events/parties/activities at Congregation Kol Shofar, congregants will continue to disregard the Conditional Use regulations that require congregants to park on-site. Instead, they will continue their current pattern and park on the neighboring streets such as Via Los Altos, Blackfield Drive, Karen Way, and 2 Reedland Woods Way. They will continue to make unsafe and dangerous T -turns, U- turns, drive down the middle of the street on Via Los Altos, and drive around the curve on Blackfield Drive crossing over the middle yellow line. Since there are no side walks on Via Los Altos and portions of Blackfield Drive, the Kol Shofar congregants frequently, unsafely walk down the middle of the streets going to and from the synagogue. Even though a shuttle service has at times been provided, particularly during the High Holy Days, the congregants usually do not use this service. The few shuttles which drive up and down Blackfield Drive have been observed by residents to be unused and empty. The off site parking lots, which are to be used by the congregation and served by the shuttle service remain primarily empty and unused. Weare concerned, as the size of the parking lots increase, the capacity of the facility expands and the number of attendees grows, so will proportionately the increase of the number of people who disregard the regulations of the CUP which require congregants to park on-site. The increase of the capacity of the facility will lead to a more hazardous and unsafe conditions not only for the children and residents of the neighborhood, but the congregants as well. The Town must be very thoughtful as they consider Congregation Kol Shofar's Conditional Use Permit and Expansion Application so as not to place the residents and congregants at greater risk. The EIR has already stated that T -turns are a significant and unsafe impact that cannot be mitigated. The EIR has stated that attendees will continue to park on neighborhood streets, even if the CUP requires otherwise. III. As noted on page 5 of 12 of the staff report, Congregation Kol Shofar's site already suffers from on-site parking deficiencies and the additional square footage of the Kol Shofar expansion will only increase their parking deficit. Page 19 of the Town's Response to Appeals mentions that in the Alternative 7 application only 139 parking spaces were proposed. This 139 number is less then what is required by the Town's Parking Code, even if there were no overlapping uses of the property. The Tiburon Parking Zoning Code parking requirements calculated by staff for Kol Shofar were to range between 161 to 299 parking spaces for a facility with a multipurpose room with a 642 seating capacity. If the overlapping times of use were considered, 363 total spaces (if each were considered separately), would be required for the existing and proposed uses on the site (sanctuary, chapel, multipurpose room and classrooms). It was noted during the Planning Commission deliberations that potentially the expansion from the 122 space existing parking lot to a lot with a capacity to accommodate 139 vehicles might in fact require the use of retaining walls, changing the natural contour of the land, and require cut orland fill. The design and impacts of this expansion are unknown and have never been evaluated in the EIR or by the Planning Commission since it was determined by the EIR consultant and staff to be analyzed during the Architectural Review stage of the project. Staff now recommends in Table 1, page 9 or 12, that 161 unrestricted on-site parking spaces plus 24 spaces for handicap parking spaces = 185 spaces, be required for on-site parking for the facility. The 161 spaces is the lowest number of the range (161 to 299 parking spaces) suggested by staff with a multipurpose room with a capacity of 642 seats. 3 Even with staff s recommendation for the reduction of seating capacity within the multipurpose room to potentiallv 460, a 161 parking spaces does not guarantee sufficient on-site parking space according to the Town Parking Zoning Codes. What remains as a big unknown is if Congregation Kol Shofar will reduce the size of its multipurpose room to decrease its seating capacity to 460 people, or if instead Kol Shofar will maintain its 642 seating capacity by reducing the size of the facility by 15% in other areas of the building. Kol Shofar might consider, for example, eliminating space from such areas as the kitchen, storage or lobby. If so, the 161 unrestricted parking spaces plus 24 handicap spaces will remain significantly inadequate to accommodate the capacity of the multipurpose room, which very likely would remain at 642 seating capacity and traffic and parking impacts and safety hazards would stay significant. Most importantly, there is no evidence in the record, by the Planning Commission, staff or environmental documents to demonstrate that the recommended total number of 185 parking spaces will actually fit within the useable portion of the Kol Shofar property without requiring the addition of retaining walls and/or making other significant changes to the site. In staffs recommendation for 185 parking spaces, what staffhas overlooked are the other requirements in Tiburon's Parking Zoning Codes regarding parking lot design which will affect the ability to accommodate 185 parking spaces on site. The Town Council has no proof the 185 space parking lot, which also must comply with the requirements for layout in Section 5.08.03 (Layout) of the Town Zoning Code, can adequately be accommodated on the site, without significant impacts to the temple's property and the surrounding neighborhood. IV. There is no proof or information on the record that the circulation plan within the parking lot with 185 spaces will safely accommodate the access or ability for a fire truck or emergency vehicle to drive around the perimeter of the facility in case of an emergency. There is no information, on the record, if a parking lot accommodating 185 vehicles will require grading or retaining walls and what the impacts of this might be. There is no information as to how the increase to 185 from 139 vehicles will impact the access or queuing at Via Los Altos, Karen Way, or the exit within the parking lot onto Reedland Woods Way or Blackfield Drive. There is no information if the T - turns will increase and what might be the safety hazards created by approving a parking lot holding an increase to 185 vehicles instead of 139, with only one narrow and restricted entrance and exi 1. V. The entrance to Kol Shofar on Via Los Altos in Alternative 7 will be the same entrance for the preschool, religious school and other school traffic as the congregation's. Currently the school uses a different driveway and drop off site on Via Los Altos than the sYnagogue. The new circular drop off will become the sole drop off and pick up site for 150 school children, versus the school's current separate entrance for the 100 school children. This change will now require the school's 150 students to simultaneously use the same single access for all of Congregation Kol Shofar's functions. The school's 4 traffic will occur along with the other Kol Shofar activities/events. It will also compete with the shuttle service and traffic when large events occur on the weekends or Friday nights. The impacts of how the circulation pattern will safely and efficiently function within the parking lots have never been studied or mitigations suggested in any EIR analysis. This critical information is deferred to the Architectural Design stage of the proj ect. VI. The preparer of the EIR, Leonard Charles, commented on Page 213, #L25 of the FEIR H The EIR preparers agree with the comment that congestion in the parking lots is one reason some people currently park on neighboring streets, and this would be expected to occur in the future. " Page 18 of the DEIR states that "even if there is adequate on-site parking for proposed events, people are expected to continue to park on local streets due to the convenience that such parking affords." The DEIR goes on to say that ''people parked on Via Los Altos, Reedland Woods Way, and possibly Blackfield Dr and Karen Way will turn around in private driveways or on streets that have children playing near the street or riding bicycles in the street in order to return to Tiburon Blvd. This poses a safety hazard for people living along those streets. While this impact can be reduced by providing adequate on-site parking, it is not possible to prohibit parking on these residential streets. As such, the EIR traffic engineers have concluded that this is a siJ!nificant and unavoidable safetv imoacts. " Thus, with this EIR information it is only logical to determine that as the size and capacity of the parking lot increases to accommodate a larger facility, the impacts to the safety of the residential streets, off site parking, dangerous T -turns and other related issues will also grow. Page 20, of the Response to Appeals stated in Section 5.08.03 (D) (Layout) "Access driveways shall not be arranged so as to unduly increase hazards to traffic or pedestrians." The Planning Commission determined that with only 139 parking spaces this would not be a significant impact. We disagree with this conclusion. What has not been studied by a traffic engineer is staff s recommendation to increase the parking lot to include 161 unrestricted spaces plus 24 handicap spaces = 185 total parking spaces. It is pure speculation by the town and the consultant to reach a conclusion that there will be no new significant safety hazards or impacts with the increase to 185 parking spaces at the point of access or exit without professional analysis. This analysis cannot be deferred until after the approval of the CUP; until the Architectural Review stage of the project. It is only logical to conclude that traffic back ups as cars turn into the parking lot from Via Los Altos will increase with the enlarged capacity of the parking lot to accommodate more vehicles on site. The internal circulation will become more congested causing more delays and backups and the potential for more pedestrian and vehicle accidents within the parking lot. The larger the capacity of the parking lot, (required due to the increased capacity of the facility), with the same small single entrance and exit, the greater the cong"estion will be within and outside the parking lot. For the Town Council to make the same findings as the Planning Commission, that there are no significant impacts without any professional information, would be remiss in doing its due diligence. The Town Council must analyze the change from 139 vehicles to 185 vehicles using the same sized parking lot footprint as had been considered by the Planning Commission. 5 The design detail for the parking lot, according to the proposed CUP, is not to be determined until the Architectural Review of the project, after the approval of the CUP. The October 13 staff recommendation includes a multipurpose room with a revised seating capacity of potentially only 460 along with 550 seats in a remodeled sanctuary, plus 238 seats in the contiguous lobby, 150 in the newly remodeled chapel, 30 seats in the conference room, 80 people in the annex, 14 seats in the library as well as 150 school children and staff in the expanded school facilities. Thus, if the Town Council bases an approval for a CUP on a requirement of supplying adequate on-site parking for a 161 unrestricted space parking lot plus the 24 handicap spaces, it has based its conclusion on pure speculation and without regard for the health and safety issues related to the interior movements within the existing and new parking lots and circular driveway. The Town Council has insufficient information to understand the related impacts of this revised parking lot and how it interacts with the surrounding streets and health and safety of the community as well as the Kol Shofar's congregation. A design for the interior layout of the parking lot must follow the layout requirements of the Parking Zoning Code which include in Section 5.08.03 Layout (D) each parking stall and loading berth shall have vehicular access to the street, without passing over other parking stalls; (D) Each parking stall shall have vehicular access to the street without backing into it or another stall, except where conditions of terrain or siting in the case of one and two family dwellings makes this infeasible, as determined by the Town. Access driveways shall not be arranged so as to unduly increase hazards to traffic or pedestrians. (F) Landscaping including trees and shrubs for shading and visual buffering shall be required and shown as part of the parking layout. Large paved areas shall be given visual relief by the interspersion of landscaping within the paved area, as well a wound the perimeter... .. . Defective or dead landscaping shall be promptly replaced. Once again, the EIR has not evaluated the interior layout of the parking lot, and there is no design available for review by the public or Town Council. Thus, there is no informed way the Town Council can insure compliance with the Parking Zoning Code regulations is attainable. The staff's statement, the useable footprint will accommodate the required parking capacity, is purely speculative and arbitrary. A design for the interior layout and circulation plan of the parking lot must be submitted to the town and available for public review to determine if the on-site parking is in fact feasible and will adequately function and/or is safe prior to approval of any CUP and Expansion of Congregation Kol Shofar. The other option is the Town Council must condition any approval of a CUP, if this is the direction the Town Council might take, on whether the on-site parking for 185 parking spaces will actually safely fit and function on the site, meeting the Parking Zoning Code requirements and Fire Department's safety standards, without any significant environmental impacts. If this parking requirement cannot be safely and accurately achieved, the approval of any such CUP must be required to be voided prior to the issuance of any building permits. If the town approves this project without fully understanding the health and safety implications of the interior parking lots circulation, capacity, and layout and how it relates to the surrounding residential neighborhood's traffic, safety and circulation, it might place the town in a liable position. 6 If the Town Council decides to approve the staff s recommendation, they must require in the CUP that with a maximum seating capacity for the multipurpose room of 460 spaces, no other uses within the facility shall simultaneously take place when the multipurpose room's use is at full capacity. The facility and its uses must be conditioned on a cumulative basis. The staff s recommendation for 161 unrestricted parking spaces plus 24 handicapped spaces is an arbitrary recommendation and does not comply with the Tiburon Parking and Loading Zoning Codes. With specific CUP conditions, it will be a step in the right direction to assure there is adequate on-site parking. VII. For Emphasis It is unclear in the staff report or Response To Appeals, if other uses within Kol Shofar will be allowed to simultaneously occur while potentially 460 attendees are in the multipurpose room and using the assigned 161 unrestricted parking places. If Kol Shofar plans to have other events and or activities taking place in the sanctuary, chapel, school rooms, lobby or other areas of the facility at the same time as the multipurpose room is in use, with potentially 460 people, the capacity of a 161 unrestricted parking lot plus the 24 handicap spaces would be insufficient to supply adequate on-site parking as required by the Town's Parking Zoning Code. The staff report is unclear how the Town will address this issue and regulate this with a CUP. A new CUP.. if approved bv the Town Council.. must include specific lan!!ua!!e that states that the cumulative use of the Kol Shofar facility cannot exceed the capacity of the 161 unrestricted on-site parkin!! spaces plus 24 handicap spaces. One of the few exceptions would be during the High Holy Day services. VIII. The staff report recommends allowing an additional 50 students to the existing 100 at the school, in 4 new classrooms. There is only vague reference in the staff report as to what the parking requirements will be to accommodate the teachers, staff and parents who teach or assist the children at school. What is the required number of parking spaces in the Tiburon Parking and Zoning Code for a school of 150 students? Where will these additional cars park? Is this number included with the 161 parking .spaces plus 24 handicap spaces for the new multipurpose room? The staff report and Alternative 7 do not include these numbers in their requirements for the CUP. Once again, we need to understand the cumulative number of people using the entire facility for new and existing uses to understand what is the accurate number of parking spaces that must be required for the facility. Some of these parking spaces during the weekday could be considered as overlapping uses. On the Friday evenings, with SYnaplex, and weekends, when Sunday school or other educational activities will occur in classrooms simultaneously with other activities/events/parties, the number of required parking spaces has not been adequately calculated for the spaces required, including the classrooms using the Parking Zoning Codes. Overlapping numbers cannot be used in this situation. Thus, the 185 parking spaces, on weekends, shall be grossly deficient. Once again, we request a CUP, if approved by the Town Council, establish caps (or limits) of the uses which can occur simultaneous Iv on any given day (as well as at the 7 same time) and how many people cumulatively can be on site during existing as well as new events/activities/parties within the entire facility. This is the only way to insure the ~arking and Zoning Code is adhered to and there is adequate on-site parking provided for all the uses within the entire facility. IX. The staffreport in Response To Appeals on page 32 states a Conditional Use Permit is to control impacts. "The impacts would only change if the caps were changed"...It further states, "If and when such a revision is proposed, then a CEQA analysis of that exact revision could be performed." The statement by staff that an analysis could be performed is quite different then would be performed. Our concern is the current EIR analysis only evaluated the impacts of the new multipurpose room and the facilities new events. The EIR based the analysis of using the CUP as controlling the impacts of the use and not on the capacity of the new facility and remodeled existing facility. Thus, if the Town in the future considers revising, changing and/or relaxing the CUP, there is no information on the record from the current DEIR or FEIR studies to assist in directing the decision makers as to what the impacts might be if the caps were changed. The Town has revised and changed Kol Shofar's CUP several times since the original CUP in 1985. The only way to insure an analysis shall be adequately performed, is when a future application for a change to the CUP is requested, is to require this condition: Prior to any future revision of Congregation Kol Shofar's CUP, any changes which have not been analyzed in the FEIR certified by the Town of Tiburon in July, 2006 which would allow for greater time, hours, days, uses, capacity and parking beyond what might now be approved within a new CUP Application, a CEQA analysis shall first be required. X. Kol Shofar has recently announced they plan to begin a Synaplex program. Weare only looking at this new program in relation to land use and Parking and Zoning Code requirements of the Town for the proposed use. The Synaplex program, if one notes on their website, could expand participation by its members by 80%. For the Congregation this is an admirable goal. A new Conditional Use Permit issued to Congregation Kol Shofar must look at the cumulative impacts of the entire facility and how it will be able to accommodate all the synagogues' on-site parking needs. The CUP will need to carefully regulate and monitor the expanding cumulative uses from this successful program and its impacts in order to not negatively affect the health and safety of the surrounding cOlllJIlunity. Additional parking needs which may be greater then the 185 total spaces, might occur from this successful program. The inability to supply on-site parking by Congregation Kol Shofar for a successful Synaplex program must not become a burden on the surrounding community. Congregation Kol Shofar's facility's uses and capacity must remain in harmony and compatible with the community as a whole. On-site parking or other parking arrangements must be insured to meet the Parking and Loading Zoning Codes and regulated by a CUP. XII. 8 The Conditional Use Application does not make adequate reference to ways to insure compliance by the applicant. We suggest that various types and degrees of penalties must be included in a CUP to insure compliance. The neighborhood does not feel secure that Kol Shofar will comply with CUP regulations due to Kol Shofar's previous ''track record". Some of the significant impacts the residents are very concerned will not be complied with by Congregation Kol Shofar are, insuring on-site parking versus parking on the neighborhood streets by the congregants, parking in the neighborhood streets instead of using the shuttle service, complying with the hours of use, following the regulations related to containing and controlling noise, and turning the outside lights off at the required times. Without any penalties specified in the CUP there is no incentive for Kol Shofar to comply with CUP requirements. Penalties the Town Council should include in a CUP range from reducing the hours of use, times of use, days of use, capacity of the facility to even some sort of financial penalty to insure compliance. The town might require Kol Shofar to pay the Town of Tiburon a certain sum of money on an annual basis to hire an independent person to monitor the facility to insure Kol Shofar's compliance with their CUP. It is not for the residents and surrounding community's to be burdened with the job of monitoring Kol Shofar by complaining, calling the town's Manager, Planning Director, Town Council members or police to insure compliance. It is the duty of the Town to insure that a CUP is adhered to by the applicant. Including a penalty system in a CUP appears to be the only way to assure compliance. Conclusion We believe the staff recommendations for the October 24,2006 Town Council meeting listed in Table 1, page 9 of 12, do not resolve the significant remaining negative impacts of the project. This project, as recommended does not comply with the Tiburon General Plan Goals and Policies and Parking and Zoning Codes (as mentioned in our previous referenced letters). We believe the Town does not have adequate information regarding project, particularly relating to Kol Shofar's interior circulation and parking plan to conclude significant health and safety impacts of the project related to the community as well as Congregation Kol Shofar have been mitigated to a level of insignificance. Thus, the Town Council must reverse the decision of the Planning Commission regarding the Certification of the FEIR and uphold the Tiburon Neighborhood Coalition's appeal regarding the Certification of the FEIR. The Town Council must either deny Congregation Kol Shofar's CUP Application and Expansion and Day School Project, or require Congregation Kol Shofar to return with a revised Conditional Use Application and Expansion plan which includes significant changes to comply with the Town's General Plan and Parking and Loading Zoning Codes. Thank you for your listening to our concerns. Yours truly, Cm'J!:: 2t- 9 ------- 'r\ ~\~~"'~\ GE.U'L'D . . CA 94~}1,() .~ ...... 1..A, i.l\SOl.. · 1'n~\JllON, - \ t)-12 ..,'!)'i.() \"f\.\ ~ ~c~ ~ ~ ~oo~ ~ TOWN CLERK raWN OF T~BURON Dear Mayor and Tiburon Town CounciL, October 20, 2006 My wife and I have live at 59 Pasec{Miiasol f~r ~Ye~ Ziyears, before rhe former school sjte became Kol Shofar. We have seen Kol Shofar grow and'ro this poilu in time it has been a good thing. We have .always felt comfortabl~ and appr~ciated Kol ShOhlr in- our mid~t. . Yet at this dnle and place KOl Shofar ~IUS to impi-o~e its physical spa,(;~ and that is a good thing, they need room, elbow room one might say for events... however, and this is a very significant and importanc consideration. They want an illogical space addition,' far larger rhan their needs require. They are puttih.g an into place event making apparatus at the expense of the surrounding neighborhoods. , , . This: is wrong and violate.s our constitutional rights and the'legal issues of the Tiburon General Plan. The Town ofTiburon must first consider ~e General Town Plan) the safety of our neighborhood and streets, and most importantly - the safety of our chUdren. What ~ have seen increasingly in' re~ent ye;us has been chaos. And mere has been no build out yet. At their last nLaJor ~enc we were retur~ing home while the service was over and cars were congested and lined up and down Blackfield, There W~ a police officcr directing traffic through the StOp sign at: .., Via Los Altos the corner next to Kol Shofar. Yet .we could. go nowhere because cars were turning around in drive ways, and one actually was turning around on the area of the curve over the double yellow line, which caused a [Otal jam. 'Ihis presented a feeling of horrific proportions. h was JUSt scary. Finally we reached the rop al Via San Fernando and cars were turning around there in the inrersection. We were just glad eventually to get to our driveway and away from the chaos. Before any major build out takes place there must be a solution. A garage must be constructed, undecgtound or into the hill, whacever, but the cars involved in the services and the life cycle eventS must be accounred for. The overflow parking on Blackfield and the streets about our neighborhoods must be eliminated. This is uner cha,os a.nd dangerous. And these things add up to a destruction of our neighborhoods, our property values, our rest and rhe inalienable right of all American citizens to me pursuit of happiness. Destroy our neighborhood and you destroy our American right to the pursuit of our happiness, our health, wdlness and peace of nlind. Safe neigh- borhoods must come first. Chaos is not a solurion. ~fOWN COUNCIL ~/~ ~~-f~ GCr;1Jd tlnd Sand,'3 Pisani LA TEMAIL # I MEETING DATE_~~' ~d W~0[:~~ S00c c0 'qd~ 'ON 3NOHd W31SAS X~~ 81UOSPUPd wo~~ October 18,2006 /D) ~~~~\'8~ ij 1m 0 C T .2 0 2006 I!J) Bv Facsimile and First Class Mail Mayor and Town Council Town of Tiburon 1505 Tiburon Boulevard Tiburon, CA 94920 lDWN CLERK TOWN OF TIBURON ~fOWN COUNCIL LA TEMAIL I I Dear Mayor Smith and Council Members: MEETING DATE I. · LI/ ,,'I- As residents of 80 Reedland Woods Way, my wife and I strongly oppose the expansion of the Congregation Kol Shofar's facilities in our neighborhood. While we welcome Kol Shofar and its members to our neighborhood, and hold precious their rights to practice their faith, we are adamantly opposed to the expansion. Our opposition centers squarely on our, and the community children's safety and well being in that we are certain that the expansion will both materially decrease the neighborhood's safety, and severely change the neighborhood's atmosphere and character. My wife and I moved to 80 Reedland Woods Way in Tiburon because it was, in our opinion, the perfect neighborhood to raise our young family. We were drawn to the safety of the cul-de-sac and the amazing (and, sadly, increasingly rare) feeling of community fostered by the large number of young children playing on the street and sidewalks. We were especially impressed at the care neighbors would exercise in driving on those well played streets, fully aware of the dangers of driving too quickly in a neighborhood with an abundance of young, spirited children. However, we have been dismayed at the impact Kol Shofar has had on this peaceful environment. On days of services the change in the neighborhood is palpable. The level of dangerous traffic on Reedland Woods Way during these times is such that we cannot allow our children to play in the cul-de-sac. The thought of increasing the number and magnitude of these instances would just be unbearable. Additionally because our property is adjacent to Kol Shofar we 'are subject to the noise generated by the events held on the property. Our two young children's bedrooms face the property, making the increase in noise associated with the expansion extremely detrimental to their long-term health. Our reason for residing in the neighborhood was the . idyllic, peaceful atmosphere, whe~e children could play during the day and sleep in a quite peaceful environment at night. Residing next to a massive complex generating noise and bright light late into the evening materially changes the entire character of the neighborhood for the worse. Finally, the lack of parking at the facility would clearly impact the safety of our family, both with respect to driving, as well as walking in the surrounding neighborhood. When Kol Shofar events are currently held we are effectively held hostage. Weare uncomfortable driving with the level of congestion caused by the parking on the narrow streets, and even more uncomfortable with walking our small children in that environment. We would no more walk with our children down Blackfield Drive during a Kol Shofar event than we would walk with our children down Lombard Street in San Francisco during rush hour traffic. Yes, the danger level is that high. Given the substantial risks to members of the neighborhood, as well as the material negative change in the neighborhood's character associated with the expansion, we implore you to deny the requested expansion plans. They are simply too large and ambitious for this small beautiful neighborhood. Please help us keep Tiburon a special place - a place where children line the streets, not automobiles; a place where one can still gaze at the stars with one's children without the glare and noise of an imposing urban structure. Regards, Gr---\-\ ~ Jalnes & Grace Dignan 80 Reedland Woods Way Tiburon, CA 94920 tA ~.' /~ tI / w~ ~. OJ~ Town Council Town of Tiburon 267 cY6anm ~ay @'"uf~/ ~~ .94.920 f5) ~~~~W~ ~ lf1) OCT 2 0 2006 1m RE: KOL SHOFAR HEARINGS TOWN CLERK TOWN OF TIBURON Over twenty years ago we welcomed Kol Shofar into our community and a conditional use permit was granted with an annual review to which none of us in Bel Aire or other neighborhoods objected as the congregation grew. We were pleased to have them as our neighbors. Now with the unyielding attitude of Kol Shofar to their expansion, we are finding this is not a planning issue but a religious issue, per the IIRLUIPA Actll about which no one knew until a few weeks ago. There are Jewish people in Bel Aire (and in their congrega- tion) who don't believe the expansion is appropriate as planned; who have asked Kol Shofar to consider this isn't about religion it is about CARS. One hundred and twenty or more cars overflowing into Bel Aire looking for a park- ing place is what we are talking about, period. Why can't Kol Shofar demonstrate some principles of almost all religions - the Golden Rule - and not do unto us what they would not want done to them. I doubt seriously that any of them would want their neighborhoods so affected. It would seem timely for Kol Shofar to show some good neighborliness rather than threaten the Town with financial disast r as they pursue the RLUIPA Act to their satisfac- tic · -z;7 . . . ~ ,61~ V RG~A R. BRUNINI TOWN COUNCIL LA TEMAIL #.L MEETING DATE .1~~~~'l::.A 10 ( '~() r OG /. ,.z / ,/;' I //1 . 'J - ('/~) 0,. 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'I FAX~ \f)$' -- ?-'-t 3~ FROM: Richard Goldwasser, M.D. FAX (415) 381-1699 phone (415) 381-1690 cd/ Z-~! r/ 0 3 pages including this. coaftdelltlamr Netile: '1'bo ~ tl) ~ this FAX I1IA'J COIlllin privste, contidClltla1 wcmnation wbich is legally privUeged, The Infomlllion is iJIkIIdcd llDly for !hI lIIe of the jnIended recipient namc:d aboVe- If you lIl'e not the iBtended recipiIat. you .. hereby notified lhat rJlI'j disc1osme. copying. dis\ribIJI.iOn. or tbe I8Idng of 111'/ aOtloD in re1iaDCO OD Ihe contCIlII of tbia telecopied iDforIIlatioll is Slrictly prohibited. If yell ha\'B ~ 1his FAX in error. please notify IIIB by alepaone (415) 3 B 1.1690 to arranse for the retIII'II of the Ql'igiJlal cIocIIIPDl to me. f2e: C'I5Y'-J r ~J .,. f-c tfVJ ~1 s~~~ p~ d.;s'frr: hO"~ TOWN COUNCIL LA TEMAIL # I MEETING DATE /,.,1,,/-'" OCT 20 2006 8:28AM R GOLDWASSER M.D. (415)381-1699 p.2 Richard Goldwasser, M.D. Child, Adolescent and Adult psyclUatry 655 Redwood Highway, Suite 261 Mill Valley, CA 94941 Telephone (415) 381-1690 Fax (415) 381-1699 ft:':Je-r(~ '0 7(,17-'1()6~ ~ 0 vY\e P\c;/~"''''ir ~ J ~ Pc^5~c;' tr1, ;1H,.,r-c{ T. hvtroYt . eft Q'1 f1?-O OC.~~ " 2-00,( ( [,.e fJ-t.'.rS 'TO ~ Ed. fo>". ~,4.vk tv~lVff~fY FA-)(. (L."r) 'f3>_6~~1 2i J . II (Jr I (V1 , c h ..e ( ,e.", ~" ~ Jf. e IVI',5 ldtt'V (Id / l'i lOb) wt'\v1+5 ~ In ;+5 2"X f '1'" .5',' dYI f r~.J e c.+. C c.FY1 J l' ~-; CIi t t M ..", f1 1/ ..,,/.1 (J1'.J : f ~ T~ h L-tr~ t?t $' ~ ~ ,- t:> ~01+ V\ lit J. -e v- ~vl ~ k~.c~r ts ltt J '-~ 111 ~ L 1,1 , P A- -e It1 .... .~ +~ J ff"''''~';'''1 COW>t>'I.',r,"M {:,VI.....{ ~ or'jrnct.! frpf"JP1/ dI V\ 4 .rf...t. ? , .. J /,., r', v>'1 (/). (t"./ '1 fi /t~ 1'1 '" f..) V (:' 7 " Vl\~ Ictf..12 ~ .,-; b,A.rC"Vl 6~~q'~ fl""., I ~ fctrl'r C ",l~ ( ()i~( t'-\y( &:) 11'+ {.~+ {h "'r"&'\ ct-er w, ~ ~ 11 '" + '^i ~ "1'1.( h M yVl <IYl1 0 {' ~ 11.e ''Jt. b <n' t-, <i ., '" . }t ,c~ j'S '" C. Cot $..e 0 .( o?t T", W" , .r '-e; ..f I' "J h. 1- 'i'G ef'-r" bl.5~ MI.) VIr 'h(J iJ I '" HI f (-l' J OIrd :"J {1At'lJ Vt, e I V.e.y- > IAJ " r ~ /;J r CI Vlf I ^ 5" t...- -4. -j..,'c1'YI' S r ''1 ('dw r ,0< c+--. (-<l , W h,'1 ~ gL fA Ij/J/f OCT 20 2006 8:28AM R GOLDWASSER M.D. i,5 t?f/50 --rle d {~'Y'WI.e-d I~ r iJ t, 1- -t v f+ r s c ,rn1-r- ~ I -r~ ("> 0. +~ V'\ -tv s ~(V \'( .R 5' 11'\ /"'W I CCll^""+- it- h. tl J ()t. J c.c ,"'" J T J ~nJ LA r-e . t'\ ,SlJil dt'\7 (415)381-1699 p.3 h ~n): V',,! f ..., o r d .e r -;-c f1 ~ v..e.r b~ '" 1. tJ I.V "" I S IN h..eVl '" fe w TO Wfl /' J .2.....$.f..e Yl i 1'0( I b vr : II 4 , ~ r J €,y I'l of c <fW1 f ''1 w' 1" t" ~ <: .. 1.+, -t"'- .. 1- ,I rl e J 'f'~ T \' b VI...-M C. .2. ;'1 -(.('" ~ C rfY'. J ,r J c, t> ;,,,, f ~;t of dv.r ~ ,)". Vi YI 'I!ar+ IA. V' gt f t P (01 v,,) ,;.. t e1 J e ['" ... j-.('. (e f;t r rIY1 P1 b Ie h v ltt y .s: C QVl +r" i f -f.k '" j- ~'"'~ CA~{ .> . .t' e-- +, r t:> 1::..5 M,'j ~ haY? k'c, ) p ) 01V1 ~ ~~ +cKr CoYV' n" V1Y1.'+l . L CfYl {.~l \c + r C'. v k ' ~;, p+ do "'., J PV\r }cl;', C .../'" . 115 ~ Ven i Vle.1 )1- c.." V\ I J "Vel (,I ~"W\f)'1 hj f1. d ,'.> e PI b Of 'if m~ VI of. , Ill.> li1 J ~ p1 fl J -Ir'" /T.- c V'l d + " t') ~ y- e l't. s -e h ~ Q /...., 4 ~ r'J'" rt-T, J C h .' I'/r~ '~,~.r hi d"Vt~ r n ~ '1-M . 1 C"(,v 1'1 J11 Y. 1< 'v\ ~ Sf e ).; w .' I) J \ ',s / W J r w,'+~ ~ ~f~ <J+- ho(-e 1fr~f- yY\ Cl ~f, fl' C ("'"I. 1---,' GrYt .J' -rt -e,:'}.(( ~~Jf" I I -tv ~~t:tJCj? /(1 10/19/2006 09:00 415-3895499 DOUGLAS DAVIS PAGE 01 ~ ~~~~w~ fm ~ 0 C T 1 9 2006 W TOWN CLERK TOWN OF TfBURON 266 Karen Way Tiburon, CA 94920 10-19-06 Tiburon Town Council Fax = 435-2438 Dear Sirs: [ am writing to oppose the Kol Shofar Expansion project in its current fonn. I would oppose a facility that Invites too many people without adequate on- site parking. I also oppose allowing large gatherings late in the evening since we live in an area where sound carries easily. My bedroom fronts onto Karen Way, and on some nights, such as Bel Air back to school night, I am already disturbed by people walking to their cars, then talking to one another, then pushing their electrical beep door openers, then starting up and roaring off. It is also inconvenient when my street parking places are jammed up and my visitors have no place to park. It is dangerous when people who are a bit late and tn a rush, then begin to drive unsafely, Or puU dangerous turnarounds; especially considering the number of children and pets in our area. I certainly do not want to endure this repeatedly every time a big event occurs at the synagogue. Thank you for your attention In this matter. I will plan to attend the next council meeting. Sincerely, Douglas Davis .,,")!, ".....~ ~OUNCIL . ~:"C.Jli SlJ ~ . L~ TEMAIL I I MEETING DATE~1c - a,t::t6 OCT 19 2006 9:19AM R GOLDWASSER M.D. (415)381-1699 p. 1 Richard Goldwasser, M.D. Child, Adolescent and Adult Psychiatry 655 Redwood Highway, Suite 261 Mill Valley, CA 94941 Telephone (415) 381-1690 Fax (415) 381-1699 hlTVM~ "3 'i f{)l~.e" rn"r&~5cf T.' h ""-rcn., C/,!- ~ '1 ., '"l..-Q frJ/ltfj / () 6' 1""": h CA~~ T tI W"-. C,Vl.-'\ c: I f ,+.)( (Lf, r) l( '3 $" - 2 '1 "3 S' ~ ~C~ ~ ~ ~oo~ ~ ftt: Cet''''tIY-, ~f..~ tvl ShcJ4,.. T.oWN CLERK TOWN OF TIBURON O~~r Ttf/.~ Co v-.(t C: r )11~ ~ r ;C"'Y\ Br~wn t-t I\. J ~J ""~ frQVI.j~.1 w.th / Vl c, CC"'n'I 1e i' t1 .{!cry Wl p. ..,.. ,. <IY\ . ~ }11,' /( Ie. e CY'lV\. f.., ;,., ~"..~ tr PtvC\ ,. I,; bl < It/V, V .. If/!7 I'--- r e -' rj"ovtS 'f c / ,'v I' -/.: ~ 5' . I--e.ff -ti.. Of '1 +w~ '1 ~ "y> J1Jf' fn7 BCf7 /11\'f""LY^~ h ~II -t'h.er~ ,c.", .' r I I?I '" ,f ()(,...) f'" r f, I qHe-t?J-I-/ " l'Jv~/'1 L - -r~ 01' fV~"C~ ""'-t.y~ 5:,,~.,J~ ' f~tlf G)!- - !.;\=1"~i'b-U~ GOU NeIL f..1... .1. \ y. p..... .MAll # I I. .~ t.J ,.n i'o )* 1\1-1 l.L ~...; IJ Ii r;:::.J e~~EETiNG DATE /0.. .L~~ ~rOWN COUN.Cll Richard Goldwasser, M.D. 38 Paseo Mirasol Tiburon, CA 94920 LA TEMAIL' I MEETING DATE Io-LY~& October 12, 2006 Tiburon Town Council 1505 Tiburon Boulevard Tiburon, CA 94920 ij ~~~~W~ ~ ~ OCT 1 8 2006 l!!J Re: Congregation Kol Shofar TOWN CLERK TOWN OF T~BURON Dear Town Council Members, This is to elaborate upon my earlier correspondence regarding Kol Shofar's proposed expansion. In the five years that my three children, wife, and I have attended services, religious school, classes, and special events at Kol Shofar, the current space has always been adequate (except for the High Holidays when, as previously noted, the Neshama Minyan and family services are held at Westminster Presbyterian Church, and the rabbis have led early and late services in the main sanctuary). This arrangement has worked well; there is no compelling religious or educational need for the expansion. Aside from Rabbi Lavey Derby, President Diane Zack, and Ron Brown, I have never heard a congregant, teacher, or child complain about the lack of space except one Sunday school music teacher who did not have a regular room in which to meet with the kids. If the existing annex were renovated along with the main building, there would be ample space for music and all other activities. Thus, Kol Shofar's existing facility adequately meets the congregants' needs. The proposed expansion, it appears, is to accommodate future growth and non-essential new activities (e.g., parties). As a family who has lived in Tiburon for almost a decade, we value the close-knit, peaceful, and safe neighborhood in which we live. As a Jew, I am deeply sympathetic with Kol Shofar's desire for a nicer facility, and I support it, but not at the expense of its neighbors. At Kol Shofar's current level of utilization, with the use of adjoining streets for parking, weekend bicycling up and down Blackfield Drive is extremely dangerous. This renders the Tiburon Ridge Trailless accessible, and, as a father, it makes me unable to Tiburon Town Council 10 October 2006 Page 2 safely bike with my children to Blackie's Pasture during peak family time. Any further membership growth and expansion of hours, without adequate parking, will constitute not only an "inconvenience" to neighbors, but a grave safety issue. Moreover, although it has not been discussed, there is reason to believe that Kol Shofar may develop a full-time Day School. The preschool that currently exists has children coming and going at various times throughout the day and poses no significant problem. If: however, this ultimate use is realized, the concentrated traffic on Tiburon Boulevard turning left onto Blackfield and then egressing will endanger students every day who walk and bicycle ride to Bel Aire, Del Mar, and Reed Schools, not to mention the danger along Tibur~n Boulevard if the left turn lane is not lengthened. The dangerous backups that occurre<Fnn the first day of Sunday school last month could portend tragic accidents for which nobody wants to be responsible and which cannot be justified as acceptable in any way. Unfortunately, none of these issues are adequately addressed in the certified EIR, nor does it address the traffic/parking/safety issues when Kol Shofar activities co-occur with weekend and afternoon sports activities at Bel Aire School. I urge you to approve a remodel but not an expansion. It will be enough. ~ ~ T- b","'1 " I,,} . Sincerely, ~'ckO~J- Richard Goldwasser, M.D. ~C1 bh: Der-b1 ~ /' ~ KOL SHOFAR I f -!t...0y tycfVV1 I 0' > t- ? ""M WI~,r cLeClyl'1 \V\c1IC...-/.-eS 1i.e pr.'tht1T''1 rV\rr"f~ " 11\ 7' ~ ~ R-oo "" ~ ce&-br-VI -I, v Y\ " f 'I ,,. (~ c '1 c f.((. m t/ WI ~ YI f<;; " "...... r PI r +- ........> . 'T tt e '.R.. t'. r~ '" d- e .> F .e,d .- <7t ( .....4.- -r~ re 1.'J''-.9.......5 I!Y 2JVlCOI-I---r-tfYI..1. W\l~>>I'dV\ 0 r 4 >'fYlPlJoJI.1€, W ~ (yY\ .e+ IV' ..,.i, H CI w/ &y d '2 tTr C f:- PI.....d 'Tv.. r' e'; po J s J::. 7 August 10,2005 fotr+\'ec; W.e.-r-€- &'flSc7 +k -+"'rfASt- d+ ~,'r .j (./\.f-1 " ~, c~ 1- t" trV\ f;n- ~ >' f 0~.e ~ r''c0~el C~/l~ vri' of~ tA1 tA It,' - Dr. Richard Goldwasser 38 Paseo Mirasol Tiburon CA 94920 Dear Dr. Goldwasser, I read your letter yesterday evening after returning from a brief vacation, and I wanted to let you know that I will be passing it along to Mark Levy, our Executive Director, and to the lay leadership who are guiding our building project. I am sure they will be in touch with you in due course to discuss your various concerns. ~ I truly respect your right, and the right of all our congregants, to express an independent opinion about all matters, including those that relate directly to the synagogue community. Nevertheless, I was saddened to read your views about our community's project. It seems possible to me that you may be misinformed about the nature of our project, its purpose, and why I and others feel how important it is for our members to celebrate our lifecycle moments in our own space. When our lay leadership calls, I hope you will be willing to meet with them and to listen with an open mind to their explanation of the project, the reasons why it is necessary to create a new multi-purpose room, and the status of our current conversations with our neighbors. With all good wishes, Sincerely, I L~ 0+(// Rabbi Lavey b.etby (~) ,~' if~<' u' ~ ", ~ 215 Blackfield Drive / Tiburon / California 94920 . telephone - 415.388.1818 / facsimile - 415.388.5423 · www,kolshofar.org ~,'N'''~ ~ i ( ~ ~ . J} , A ,,~~ "",,"".r. I ~\; ~~...:,.,/ October 16, 2006 ~OCT 8 Robin Gonci and Satoshi Tanaka 254 Karen Way Tiburon, CA 94920 RE: Kol Shofar expansion To the Tiburon Town Council, Thank you for offering the opportunity for nearby residents to comment on the expansion of Kol Shofar. We live on the corner of Karen Way and Blackfield so this expansion would negatively impact our quality of life. We strongly oppose any expansion beyond the existing footprint for the following reasons: 1. The proposed addition is not in keeping with the town charter's goal of maintaining the look of a small town and is so big that it is so big it would ruin the peacefulness of our residential area. Adding an event facility which would bring capacity to 1624 seated people which means Kol Shofar would be placing a large sized event facility in the middle of a ~small neighborhood. Sams has only 100 people worth of book able banquet space. Servinos has a maximum capacity of 140. Kol Shofar is trying to put a facility larger than these two restaurant/bars combined (which are in a business district) in the middle of quiet neighborhood. Please do not let this happen because it would set a precedent that would allow other large businesses to move in to our town and destroy the quality of our lives. 2. Kol Shofar should not be allowed to build a facility larger than what its parking lot can accommodate. Our neighborhood should not be allowed to become a Kol Shofar parking lot on a regular basis. The new plan would bring total parking spaces to approximately 160 spaces. Assuming an average of 3 people to a car means the facility should not accommodate more than 480 people. When there is overspill from the parking lot that means lots of noise of people parking cars, turning on alarms, cars turning around, conversations, doors slalnming. This would ruin our quality of life. 3. A Kol Shofar expansion would negatively impact many people in Tiburon outside of our neighborhood because traffic would back up on Tiburon Boulevard. The left turning lane cannot possibly accommodate so many people turning at once. People leaving the Cove Shopping Center would also have a hard time taking a left out of the parking lot. This would create dangerous traffic intersections. My comer (Karen and Blackfield) would also become substantially more dangerous with the added traffic. Our neighborhood has many children and accidents involving them would become more common. ~rO\VN COUNCIL lA TEMAIL # I MEETING DATE 10,2-.l/-i)(" 4. The frequency of planned events is way too high and they would run too late into the evening. Children are sleeping after 9pm. The noise of all those cars and people moving around later than that would wake them up and ruin the peacefulness of our evenings. This is another reason why noisy events like weddings should not happen on a regular basis in the middle of a neighborhood. That kind of noise and traffic belongs in a business district. Weare against this plan to expand their facilities. Thank you for providing us the opportunity to express our views. Sincerely, ~~ch f 9J;fo~ ~ Robin Gonci and Satoshi Tanaka CONGREGATION KOL SHOFAR APPEAL October 24, 2006 +++++++++++++++++++++++++++++ LATE MAIL *(e-mails)* RECEIVED AFTER COMPLETION OF STAFF REPORT Please add to Binder #1 10/20/06 12:00 p.m. Page 1 of 1 Scott Anderson From: dridermd@aol.com Sent: Friday, October 20,2006 10:21 AM To: Scott Anderson Cc: csla@comcast.net Subject: Opposition to Kol Shofar OCT 2 0 2006 TOWN CLERK TOWN OF TfBURON Dear Mr. Sanderson, I am writing to register my opposition to the Kol Shofar expansion. It does not matter what they claim the use is for, what matters is if that use is appropriate for the site in question. Here it is clearly not. Moreover I as well as you should be outraged over the strong arm measures that Kol Shofar has taken to bully the town council into approving their selfish plans. We can not let ourselves be intimidated over the fear of a law suite. If we did what kind of planning would we have? I live at 55 Via Los Altos and I can assure you that the traffic, congestion and safety issues that Kol Shofar generates right now is unexceptable. Any further expansion of the use of this facility can not be tolerated. I look forward to the council doing the right thing and not approving these plans for expansion and thus not setting a precedent for others in the future. I also look forward to the council not making decisions based on intimidat ion from developers such as the Kol Shofar group.----------------Dean Rider M.D. 55 Via Los Altos Tiburon C.heck__QJlt__th~Jle.lY_AOL. Most comprehensive set of free safety and security tools, free access to millions of high-quality videos from across the web, free AOL Mail and more. 10/20/2006 FW: Kohl Shofar Page 1 of2 Scott Anderson From: Grinnell, Mike (SAN FRANCISCO, CA-TD) [mike_grinnell@ml.com] Sent: Friday, October 20, 2006 10:58 AM To: Scott Anderson Subject: FW: Kohl Shofar o TOWN CLERK TOWN OF TlBURON Dear Town Council, I am concerned about the potential impact of one of our neighbor's proposed actions on the rest of our neighborhood. In essence, one of our neighbors wants to be given the right to impose their will on the rest of us with respect to the character of our neighborhood. The lack of consideration for the nature of the setting is apparent in the desire to be given the right (building and conditional use permits) to impose on the families who live in the area. The traffic, evening noise, new commercial ventures and the fact that the site is simply not able to hold the cars involved leads me to believe that the site may simply not be suitable for the aspirations of the owners. 'I have no problem with daytime or indoor use of the facility, upgrading the buildings or having more functions on the property- provided it is not an additional burden to the homeowners. I find it disturbing that the sites owners continue to attempt to force the homeowners accept their desires over our rights (do we have rights?) to enjoy our quiet community. The history of this property's conditional use permits has clearly shown concern regarding the sites ability to accommodate larger numbers of people at gatherings and the documented increasing impact on our community. Due to traffic, parking, noise, hours of operation, site lighting and the incompatibility of a virtually open use of a parcel so close to so many families homes is, I believe, incompatible not only with the towns current plan but also with the desire of every homeowner I have spoken with in the area. If I were the owner of the subject property and decided, for example, to build an Grand Buffalo Lodge you would (and should) ask me lots of questions. If you discovered in my permit application that I had the desire to operate witb the frequency and impact currently being proposed you would, no doubt, turn me down flat. Your reason may be because of the potentially significant impact on the neighbors around the property. You could limit membership, hours, parking, frequency of events and might even frown on my desire to open a couple of schools for young and old buffalo training on the property. With that in mind I may have to consider whether this is the right plan for this particular property. If my son decided that he would like to invite the entire high school to our home for a meeting twice a week he may be able to get away with it but it would not necessarily endear us to our neighbors. If he wanted to be given a permit to do it twice a week he would probably be turned down because he could be interfering with others rights. Someone would point out parking, noise, hours and traffic issues. I would like to ask that you do your best to limit the use of the property (hours, number of guests, inside vs. outside use, lighting and new commercial ventures in our neighborhood) to what is compatible with the reasonable use of this property in our residential neighborhood. 10/20/2006 FW: Kohl Shofar Page 2 of2 The current occupant of this property is aware of the shortcomings of the expansion plan. They are apparently determined to impose their desires on the rest of us in spite of the impacts to those of us who will have to live with the unpleasant and unnecessary change to the character of our neighborhood. In closing, I recognize that the people pushing for this may be able to find a way to get their desires met in spite of the impact on the families who live adjacent to the property. My thought for them is "Just because you can do something does not always mean you should". I understand the pressure on you to act. When you do please try to act in a way that offers the neighbors a way to preserve the peace and quiet that is so important to the area we live in. Thank you for taking the time to help our town to preserve our quality of life. Sincerely, Mike Grinnell Mike Grinnell Senior Financial Advisor Vice President Merrill Lynch 101 California Street Suite 2575 San Francisco, CA 94111 415-274-6013 1-800-495-2055 Disclaimer: CAUTION: electronic mail sent through the internet is not secure and could be intercepted by a third party. For your protection, avoid sending identifying information, such as account, Social Security, or card numbers to us or others. Further, do not send time-sensitive, action-oriented messages, such as transaction orders, fund transfer instructions, or check stop payments, as it is our policy not to accept such items electronically. If you are not an intended recipient of this e-mail, please notify the sen<;ler, delete it and do not read, act upon, print, disclose, copy, retain or redistribute it. Cli~kJ}~r~ for important additional terms relating to this e-mail. hJtJ2;LL:www~mL~omb~JJ.}JJil_ tennsL 10/20/2006 Kol Shofar Expansion Plan Page 1 of2 Scott Anderson From: Chris Harney [ChrisH@jonestrading.com] Sent: Friday, October 20,20069:23 AM To: Scott Anderson Cc: Harney (E-mail) Subject: Kol Shofar Expansion Plan r~ \ ~ 1 (( " I ~- I fl \' \ - I~))L~~":--?..If_~ I \ I u] ocr 0 ____ _ _ _ ____ .___ __ _ _I PL/\:\.!:\;i, :'.; :,"jl [',:,: :I\! TO',':i' Dear Sirs, Regarding the proposed expansion of the Kol Shofar Synagogue, I urge the Town Council to deny this expansion in it's present form. I would like to remind the Council of Kol Shofar's application some years back (Design Review will remember) that resulted in a lawsuit brought by some residents of Reedland Woods Way against an expansion of the parking lot on Kol Shofars property. Then, as now, Kol Shofar completely disregarded the recommendations of the Town's engineers. DRB and their neighbors and tried to push through a project which was incompatible with the neighborhood. Then as now they refused to compromise or negotiate a reasonable solution to their proposal. This left us no alternative but to seek relief from the courts where we were successful in keeping Kol Shofar from arrogantly imposing their will onto that of their neighbors. Kol Shofar is not the least bit neighborly. They are arrogant, self righteous and deceitful. My wife and I built and lived in 80 Reedland Woods Way since Vista Tiburon's inception. We were the first family to move in. Not once, in any of their applications did they call, write, visit or fax us anything regarding their various plans. Although they will go on about how they "contacted all" of their neighbors. Horse Pucky! You are being sold a bill of goods here that is contrary to the harmony of a neighborhood that myself and my family paid dearly to belong. If you knuckle under to the pressure of this rude and arrogant group you will be sacrificing the harmony of the best neighborhood the Town Fathers ever had planned in Tiburon. Vista Tiburon is by far the best "Town Planned" neighborhood in all of it's rich history. Again, I say, Kol Shofar has been invited countless times to the bargaining table by everyone who has an interest in seeing progress made. They have refused to compromise or negotiate any agreement or revise any part of their plan. This alone should give you an idea that not everything is as it seems. In my humble opinion, this project is about money not worship. If it were about worship they could renovate their existing facility with the current footprint to a modern facility with plenty of space for their congregation. But, no they want to expand alright. they want to bring "in house" the revenue" and expanded "membership" that a very large "multi-purpose" facility could provide. Once built, who will police whether that facility is used "only for religious events and not "for hire social functions". The Town? I don't think the Town's in that business. They will be able to provide a facility for weddings, Bar/Bat mitzvahs et. al. that now their congregation has to have at hotels, country clubs and restaurants. Does the Town really want a what will amount to a commercial entertainment facility in a residential neighborhood. As a citizen and taxpayer, I don't. Not now, not ever. I say, if the Congregation Kol Shofar has outgrown their facility, they should consider selling it and moving to a larger one more compatible to their needs or split into two or more smaller congregations as has happened in the past. On the recent Hebrew Holidays of Rosh Hashanah and Yom Kippur their congregation had to park well up and down Blackfield Drive seriously impacting the already poor visibility coming up and down the hill above Karen Way. Their various solutions to the enormous parking problems that are inevitable are just inadequate. Consequences to noise, lighting, traffic flows, inhibiting the movement of emergency vehicles on the narrow streets of a residential neighborhood must all be considered. In my opinion, these and others concerns brought up by the other neighbors must bring the unfortunate dismissal of the Congregation Kola Shofar's current application. If you can persuade the Congregation to do what no one has been able to so far, that is, to revise their plan to be more compatible with their own needs and the harmony of their Town we would all be willing to come to the negotiating table. But, not one foot of the proposal has ever been removed or cut back. You cannot let this organization use religion as a proxy to build a commercial facility in a residential neighborhood. Do not be deceived. 10/20/2006 Kol Shofar Expansion Plan Page 2 of2 Very gratefully Yours, Christopher J. Harney 270 Blackfield Drive Tiburon, CA 94920 415-435-9595 10/20/2006 Page 1 of 1 Scott Anderson From: Wilson, Grover, CDEV [GWilson596@worldsavings.com] Sent: Friday, October 20,20069:27 AM To: Scott Anderson Cc: Peter Stock; csla@comcast.net Subject: AGAINST KOL SHOFAR EXPANSION PLANS Scott - as a 13 year resident of the Bel Aire Neighborhood, I am writing to let you know I am opposed to Kol Shofar's proposed expansion plans. The Tiburon building in question was originally designed, built and operated as a school for local children. The use is now changed. It appears we are being asked to make accommodations which are not consistent with the surrounding neighborhood like late night hours of celebratory events, noise at night, increased traffic, and lack of on site parking with increased light and glare during the evening. I appreciate your understanding concerning this matter. Grover Wilson 111,329 Karen Way, Tiburon, CA 94920. ***************************************************************************** If you are not the intended recipient of this e-mail, please notify the sender immediately. The contents of this e-mail do not amend any existing disclosures or agreements unless expressly stated. ***************************************************************************** 10/20/2006 Page 1 of 1 Scott Anderson From: Thomas Szymoniak [thomas@panoramacapital.com] Sent: Friday, October 20,20069:36 AM To: Scott Anderson Subject: Please help stop Kol Shofar's (KS) current expansion plans!!! r---'----.--.--,.-~.........---~'---~.._'_..._'-,..~'~ " \ \, \ 'I' '., '~,,'.: I,' ,II ' \,'} i ! I"~} i r:l~~,~~>:;; - , [" ! i !: ,'\ ; I:! ill OCT l ~,1 b~; I i I L,_, ! L_______"._ Scott - I live on 283 Karen Way with my wife and 2 children, aged 4 and 2. I am extremely concerned about KS's current plans which I know will change the quality of life in our n~ghborhood. I am actually shocked by the lack of concern they have for the safety of our kids as they propose to expand to attract hundreds of new cars each week, but will create only 22 new spaces! Given we already have many cars on our street because of small garages & Bel Aire school, I don't understand how the EIR got certified either. But I hope that the Town Council will not be bullied by the threat of litigation from an organization which is made up of 85% non- Tiburon residents anyway. So please let the Town know that my family, as well as most of my neighbors, are very concerned about KS's current plans and encourage it to uphold the DRB rejection. Thomas Szymoniak 283 Karen Way *****Please note my new contact information***** Thomas Szymoniak (650) 234-1452 (work) (415) 218-7757 (mobile) (866) 727-1595 (direct fax) ID_Qma.s.@p.c!!1.m:a.maQani1.at.9_QID 2440 Sand Hill Road, Suite 302 Menlo Park, CA 94025 (650) 234-1420 (main) www.panoramacapital.com 10/20/2006 Page 1 of 1 Scott Anderson From: Metz, Tim [tmetz@mountainhardwear.com] Sent: Thursday, October 19, 2006 1 :56 PM To: Vice Mayor, Tom Gram; Mayor, Paul Smith; Councilmember Jeff Slavitz; Alice Fredericks; Council member Miles Berger Cc: Kurt Kaull; csla@comcast.net; drholden@comcast.net; KNygren@aol.com; Scott Anderson Subject: Fact Checking Needed for Ron Brown's Letter (see attached) Mayor Smith and Town Council Members, I strongly urge you to perform some fact checking on statements in Ron Brown's August 22, 2006 letter from Exhibit H in the Staff Report for the 10/24/2006 Town Council Meeting (letter attached here for convenience). I have found two incredibly notable factual inaccuracies that needs to be called to your immediate attention. Mr Brown states: "The Mill Valley Community Center is also unavailable to us as the city's policy is to not let religious services take place there.... " This is completely untrue. I called and spoke with Christine Sansom, Director of Parks and Recreation for the City of Mill Valley. This statement upset her very much as it is completely incorrect. They have a religious group, Big God Ministries, that rents a portion of their facility for services every Sunday. They also have an Orthodox Jewish group that rents a portion of their facility several times during the year for services. They will allow any manner of religious services to take place there and have done this numerous times in the past. The facility has been rented by synagogues and other religious entities on too many occasions to count. It has been used for religious wedding ceremonies and for B'nai Mitzvah parties among other things. Richard Goldwasser has indicated to me that he has attended B'ar Mitzvahs at the Mill Valley Community Center in the past. This policy that Mr. Brown refers to does not exist. In addition, facility bookings are only allowed one year in advance. They do not allow long term contracts at the present time, so that means dates are available on a first come, first served basis with a lottery to decide who gets the facility in the case of a conflict. Furthermore, Mr Brown states: "We have talked to the owner of the largest theatre in Marin (in Corte Madera), but he is unwilling to close down the theatre for any reason. " Again, this is factually untrue. Cinemark (which owns the Century Corte Madera theatre) will rent their facility to anyone (religious or not) for as long as that group needs it. The facility can be rented based on a standard facility rental fee anytime a movie is not being shown. If the facility is rented during the time a movie would normally be shown, that group would need to pay the facility rental fee PLUS the equivalent revenue that the theatre would get from a sold out movie. At current rates, that would add a $4300 upcharge for usage during movies before 6 PM, a $6211 upcharge for use during movies after 6 PM. No upcharge would be required for use when a movie is not being shown. I have also confirmed with the Town of Corte Madera that religious services can take place there. I ask that you please perform due diligence and validate the statements made by Mr. Brown. If I can easily find two glaring factual inaccuracies, what other inaccuracies might there be without through fact checking for confirmation first? Sincerely, f5) ~J~~~'W~ ~ lfl1 OCT 2 0 2006 W Timothy I Metz 50 Reedland Woods Way Tiburon, CA 94920 TOWN CLERK TOWN OF T1BURON 10/20/2006 Page 1 of 1 Scott Anderson From: Karen Polivy [kbpolivy@att.net] Sent: Thursday, October 19, 2006 1 :33 PM To: Council member Miles Berger; askalicenow@usa.net; Vice Mayor, Tom Gram; Councilmember Jeff Slavitz; Paul Smith (External) Cc: Scott Anderson Subject: Kol Shofar Expansion I would like to express my support for the proposed expansion of Congregation Kol Shofar. As a participant at the synagogue since coming to the Bay Area over 25 years ago and now a member, the renovation and expansion of the facilities are long overdue. There is no question that the physical facilities at Kol Shofar are severely lacking compared to other synagogue facilities, either in the Bay Area or across the country. Unfortunately for the synagogue members' pocketbooks, the planned physical expansion will probably not increase membership numbers, but it will make the existing activities more comfortable for the congregants. I do not live in Tiburon but I live in an area very close to several schools and churches. I was aware of these institutions before I purchased my home in 1984 and accepted the traffic at that time. Traffic has increased dramatically over the years - not only due to facilities expansion - but because there are more cars, more driving and less walking. It appears that many of the neighbors objecting to Kol Shofar's 'expansion purchased or built their homes after Kol Shofar took over this former school site. They were aware of Kol Shofar's use and traffic when they bought their property. Their objections remind me of people that buy houses next to the airport and then want restrictions on the existing flight patterns and times. In 2003, for 11 months after my father died, I went to Kol Shofar to say shiva prayers (mourning for the dead) which are held at 7 am two days a week. At that time, the synagogue was trying to expand shiva minyan to four days a week but was unsuccessful in attracting the required 10 people each morning. On many mornings, I observed Mercedes' and Porsche's speeding down the hill and hardly slowing for the stop sign at Karen Way. I don't think they were Kol Shofar members. You have received a lot of materials explaining Kol Shofar's project and why it should go forward. Please do the right thing and approve the proposed expansion of Kol Shofar. Thank you. Karen Pol ivy, member of Kol Shofar 203 Monte Vista Avenue Larkspur, CA 94939 fD) ~~~~W~ m\ ml OCT 2 0 2006 ~ TOWN CLERK TOWN OF TlBURON 10/20/2006 Page 1 of 1 Scott Anderson From: sissie twiggs [sissie_twiggs@mac.com] Sent: Thursday, October 19, 2006 9:04 PM To: Scott Anderson Subject: [POSSIBLE TOWN OF TIBURON SPAM] Kol Shofar Noise Importance: Low Dear Mr. Anderson, I am writing to express my most sincere concerns about the Kol Shofar expansion. We live way down Karen Way at 301 - far away from the intersection of Blackfield & Karen Way. On numerous occasions at night, we have thought that our next door neighbors have decided to have a wild, rambunctious party (without even inviting us!), only to find that it was a party at Kol Shofar- very far from our house! The noise from the parties has been bothersome to us several times and lasts late into the night. We are a family with two small children (like many in the neighborhood). With the expansion plans, our concern is even more noise - from the parties that will most likely increase in frequency, to the noise of the partygoers getting in their cars to go home (parking for the events extends all the way down our street - we live at the intersection of Karen & Leland). As Kol Shofar sits on a hill above he homes in Bel Aire, the sound travels very easily across our housetops into our personal lives. If you've ever tried to put a child to bed in the middle of a party, you will understand. Please don't make our lives more complicated. We love living in Bel Aire and value our relationships with our neighbors who are courteous to us. We don't consider the loud parties as being very neighborly. Thank you for your consideration. Sissie Twiggs Homeowner, 301 Karen Way ID) ~~~~~~ ml \!11 0 C T 2 0 2006 I!!) TOWN CLERK TOWN OF TIBURON 10/20/2006 Scott Anderson From: lent: ro: Cc: Subject: Rich Cellini [cellini@usfca.edu] Thursday, October 19, 2006 9:09 PM Scott Anderson cellini@usfca.edu Kol Shofar Expansion Concerns Dear Mayor Smith and Town Council Members, I am writing to you in response to the ongoing conflict surrounding the Kol Shofar expansion project. As a resident of the Bel Air Estates neighborhood I have experienced the overload that occurs to the surrounding streets as well as the safety issues that arise from the increased traffic. There are rules and regulations that each resident of the town of Tiburon must follow. Kol Shofar, having chosen their current location about 20 years ago, was well aware of the restrictions that went along with the site. The town's infrastructure in this neighborhood is barely adequate to support the attendance at the current capacity let alone the proposed expansion. My concerns with this expansion are purely related to traffic, noise, safety, town ordinances, and the general plan and would be the same regardless of what large capacity building was being proposed. It is my hope that you will support the residents of Tiburon that find the expansion unacceptable and unsafe. Cordially, Rich Cellini -1.6 Claire Way iburon, CA 94920-2042 f5) ~~~~W~ ~ Ifl1 OCT 2 0 2006 lQJ TOWN CLERK TOWN OF TIBURON 1 Scott Anderson From: 'Sent: ro: Sally R . Schroeder [sallyrschroeder@comcast.net] Thursday, October 19, 2006 10:17 PM Scott Anderson Dear Mr. Anderson and Members of the Tiburon Town Council: We have been homeowners in Tiburon Hills since 1976. We welcomed the arrival of Kol Shofar in the early 1980s, and have been happy to be their neighbors over the years. Nonetheless, we are opposed to their proposed expansion, feeling that the projected size and scope are way out of proportion to the size and nature of this residential neighborhood. The increased traffic will be not only an inconvenience, but a safety hazard to local residents, and the plans for evening events will be extremely disruptive to everyone. We sincerely request that the town deny permission for this expansion. Sincerely, Steven and Sally Schroeder 10 Paseo Mirasol Tiburon, CA, 94920 [D) ~~~~W~ ~ In1 OCT 2 0 2006 lW TOWN CLERK TOWN OF TIBURON 1 Page 1_ Scott Anderson From: Erika Brooks [truthrules@comcast.net] Sent: Thursday, October 19, 2006 11 :23 PM To: Scott Anderson Subject: Concerning the Kol Shofar Expansion: Dear Mr. Anderson, Mayor Smith and Tiburon Town Council members: Threatening to involve the Department of Justice and "years of litigation and millions of dollars of damages" is an admirable way for a religious institution to foster harmony with their neighbors. It was a concern to the homeowners back in 1984 that having a house of worship in this location could pose problems at some future date. A promise was made (at the time that Kol Shofar purchased the Blackfield property in 1984) that they would never expand beyond a specified size. It is obvious to anyone who lives here that it will have a tremendous impact now and in the future: it will influence our neighborhood's traffic congestion, available parking spaces, and will disrupt the peace and quiet that we are so used to here. Our concern with Kol Shofar is not based on some sinister scheme to discriminate against the people that congregate there, but rather we are interested in protecting our own neighborhood's sense of a safe, peaceful and quiet community. Our already limited parking spaces are stretched to the limit whenever events occur at Bel Aire School; morning drop-off and afternoon pickup times are a caravan of non-stop cars as well. What will it be like to add more traffic to our neighborhood? Potentially catastrophic. Only a handful of the members of their congregation actually live in the aforesaid neighborhood. How can those who do not live here possibly measure how much this affects us? The opposition is not limited to those who do not attend- some of their members who do live nearby are against this expansion. Those who facilitate and condone this project may own a right to the 18 acres of property here, but they do not own the neighborhood. It remains to be seen how this expansion will truly affect this community. Lawsuits from disgruntled neighbors alone will potentially cost as much as the expansion itself. If this project on Kol Shofar prevails, we do not believe that, in the long run, they will be profiting at all. At the very least,their reputation as a religious house of worship will be .forever tarnished and they will no longer be a welcome neighbor in this respectable community. Thank you, The Bel Aire Neighborhood Coalition Primary Contact Information: Erika Brooks 15 Claire Way Tiburon, CA 94920 415-383-5967 /D) ~{c~iW~ ~ IIlJ OCT 2 0 2006 IW TOWN CLERK TOWN OF TIBURON 10/20/2006 Scott Anderson From: lent: fo: John Leszczynski Uohn@skakous.com] Friday, October 20,20066:23 AM MBerger@ci.tiburon.ca.us; AFredericks@ci.tiburon.ca.us; JSlavitz@ci.tiburon.ca.us; Mayor, Paul Smith; Vice Mayor, Tom Gram; Vice Mayor, Tom Gram; Scott Anderson A Solution for KolShofar: How a Lutheran Church in Walnut Creek Did it! Subject: Importance: High Council Members: In an effort to be helpful, I'd like to provide you with the following additional option, in case you didn't like the idea of prohibiting all off-site parking (and enforcing it) in the Bel Aire neighborhood during Kol Shofar events, as I suggested in an email earlier this year. SOLUTION As a condition of approval of their project, please require that they: 1. Provide 360 parking spaces on site (an additional 220 more than they are planning for now), for which they DO have room despite what they might say; it just costs more, of course. But it's fair that Kol Shofar absorb the costs of parking, rather than the Bel Aire neighborhood. 2. Along with this there needs to be proper entrance and exit design so there are no backups onto local streets. In addition, require that Kol Shofar CONTRACT (multi-year, if ~ossible) with some other organization in Tiburon to provide additional OVERFLOW parking during periods when simultaneous religious events overlap the commercial banquets held in the new "multi-purpose room" during the evenings. I call this the "Lutheran Solution" (see below). Based on my attendance at a recent TNC meeting this week, it seems that this simple solution will eliminate all major objections to the project from that organization, at least. lDJ ~~~~W~ ~ U1l 0 CT 2 0 2006 /!!J BACKGROUND TOWN CLERK TOWN OF TIBURON In thinking about this option please consider ONLY the LEGAL capacity of the new "multipurpose" room with lobby: 898 people. You should ignore all promises of number of people in attendance, type and number of events, etc., even under a CUP. That can change, and probably will, as the years go by. And there will be no effective monitoring and enforcement of that anyway, as far as anyone has proposed or will even consider. So we can expect 360 cars (2.5 per people car) at nighttime for "celebratory events", assuming NO overlap from truly religious events held simultaneously. with a total of about 140 spaces available after construction, this leaves 220 cars looking for parking in the early and late evenings throughout the 7 day week. It's important to note that the proposed "multi-purpose room" is NOT one that we know from the local schools: Instead it will serve as a commercial BANQUET hall -"'ring the evenings. BEL AIRE PARKING STUDY 1 The Bel Aire neighborhood, callously considered by Kol Shofar as their "default parking lot" right now to save money on the project, has a total capacity of about 490 cars on the street, with about 200 parked in the area on the average Friday and Saturday night... .which leaves 290 :lat, available spots within "easy" walking distance of Kol Shofar. The Kol Shofar EIR, purposely or not, DOES NOT include any study of the impact on the the Bel Aire neighborhood of those 220 out-of-town cars cruising our neighborhood for a spot.. .noisely parked and retrieved after the occupants have enjoyed a banquet nearby. This is unacceptable to the Bel Aire residents, as you know, and ,is NOT in keeping with the safe, residential environment which is our community. Please remember that there are more children, particularly toddlers, per capita, amongst the 150 or so closely grouped homes in the Bel Aire area than anywhere else in Tiburon. These 220, or more, cars pose a direct threat to the safety of my and my neighbors' children. And don't forget the noise associated with parking and leaving the neighborhood at night. WALNUT CREEK SITUATION: "Lutheran solution" Walnut Creek (www.walnut-creek.org) handled a similar application (smaller in scale) from the St. Matthew Lutheran Church in a much better manner than has Tiburon to date in the Kol Shofar proceedings. Their Planning Commission adopted a Mitigated Negative Declaration (MND). This MND was done in lieu of an EIR because, " there [were] not significant and unavoidable environmental impacts".. .but you should read the DETAILED AND LENGTHY PARKING STUDY THAT WAS DONE JUST FOR THE MND! It's available on the city website. It's shameful that the City of Tiburon did NOT require the same of Kol Shofar, which is why the approval of the ~IR is being challenged now. The highlight of the Walnut Creek solution was that it addressed specifically the lack of sufficient onsite parking during peak periods of use (mostly on weekends) of the newly enlarged, remodeled/rebuilt church facilities. It also addressed noise, of course (which makes interesting reading as to the church's redesign of the building and new wall construction to reduce it: take note!). BUT MAINLY THE CHURCH AGREED TO PROVIDE ADDITIONAL STALLS ON SITE TO THE EXTENT POSSIBLE FOR THE SIZE OF THE SITE, AND CONTRACT FOR PARKING OFFSITE. Central to all this is that they have a "multi-use building" as well, but NO BANQUETS there after weddings, funerals, baptisms or confirmations.. . banquets which Kol Shofar deems a "religious right" at their new facility (but, curiously, not at the old one?). Editor's NOTE: When I was growing up, banquets for ALL religious celebrations (Catholic, Jewish, Lutheran, Baptist, Mormon, etc ) were held in commercial halls far away from sanctuaries. Of course there are residents who still oppose the Church's plans; they are now appealing the Planning Commission's approval to the City Council as this email is being written. IN SUMMARY What's so "discriminatory" about the "Lutheran Solution" that couldn't be applied to "Kol Shofar".. .particularly since the commercial banquets ~~at they so eagerly seek would still be included? Finally, please don't be intimidated by Kol Shofar/Becket Fund's threat 2 to bankrupt the Town of Tiburon. We elect you folks to stand up to this sort of thing, and recognize it for what it is: a desperate, thugish posturing of the Kol Shofar leadership. I can't believe that most of their members, even if they do come from out of town, support this bullying. The leadership is simply afraid that, without celebratory :unctions (on-site or off-site) they won't be able to attract new membership from disbanding congregations in other parts of Marin County that aren't as strong as Kol Shofar.. . and all of whom, from what was said earlier this year by Kol Shofar supporters, are in a competition for survival with each other. Thanks for your patience, if you've gotten this far. Best regards, John Leszczynski 318 Karen Way Bel Aire Mens Association 3