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Attachment 18�t. i HILLBROOK SCHOOL December 1, 2014 Marcia Jensen, Mayor Members of the Town Council Town of Los Gatos 110 E. Main Street Los Gatos, CA 95030 RECEIVED DEC 01 2014 TOWN OF LOS GATOS PLANNING DIVISION RE: Hillbrook School— Appeal of Planning Commission Decision Dear Mayor Jensen and Members of the Town Council: We are writing on behalf of Hillbrook School (Hillbrook) with respect to its request for an amendment to its Conditional Use Permit (CUP) that the Planning Commission approved with modified conditions on October 6, 2014 (Project). We are very grateful that the Planning Commission approved the school's request for 99 additional students. However, we remain deeply troubled by the consequences associated with the Planning Commission's imposition of a maximum daily 880 vehicle cap with accelerated penalties. We believe that the Planning Commission made a material, quantitative error by imposing an 880 hard cap instead of an average. The error was based on misunderstood and /or misinterpreted data points in the record. Therefore, on October 8, 2014, Hillbrook appealed the Planning Commission decision on the grounds that the Planning Commission erred or abused its discretion because (1) the modified conditions were not supported by data or substantial evidence in the record; (2) the modified conditions could abridge Hillbrook's vested right to 315 students; and (3) the modified conditions do not have the necessary nexus to the project or its impacts, in violation of constitutional principles. The following expands on the grounds for this appeal and establishes a fair, appropriate path forward for the Town of Los Gatos (Town), the neighbors, and Hillbrook. -I- ATTACHMENT 1 8 Background A. Project Refinements By way of background, in direct response to the neighbors' concerns about the Project's potential impacts on the local streets, Hillbrook refined its proposal to include the following key elements: • Enrollment: Increase from 315 students to 414 students. • Average Daily Count (ADT): 960 average daily vehicles (480 each way) entering and exiting the campus. • AM /PM Peak Periods: Reduction in our AMIPM peak period maximum of outgoing vehicles from 165 to an average of 150 vehicles during drop- off/pick- up periods. • Summer: 480 average daily vehicles (240 each way), half of the regular school year average and no summer evening events. • TDM Program: Implement mandatory TDM program with a bi- annual reporting requirement to the Town. • Enforcement: The Town will engage a third party, independent consultant to determine compliance with the trip cap averages based on the driveway sensor data. • Monitoring Periods: Three periods to reflect Hillbrook's terms, First Term, Second Term, and Summer Term. • Penalty: Escalated penalty system starting at $1,000 per trip in excess of the daily, AM or PM average, with subsequent periods of non - compliance increasing to $5,000 and then $10,000 per trip, with a reset to $1,000 per trip after a return to compliance. B. Planning Commission Modifications During its deliberations, the Planning Commission made major modifications to the CUP proposal, which are summarized here. Enrollment: Increase from 315 to 414 students over the course of three academic years, provided that Hillbrook meets the maximum daily count of 880 trips based on monthly monitoring and compliance for the first year, every two months for the second year, and every three months thereafter. • Maximum Daily Count: 880 maximum daily vehicles entering and exiting the campus. -2- • TDM Program: Implement all measures of the Final TDM program prepared by Nelson /Nygaard. • Enforcement: The maximum daily trips will be monitored by way of an electronic, underground counter that transmits vehicle counts to a third party. This third party shall send the data to the Town for each monitoring period to determine compliance with the Maximum Number of Daily Vehicle Trips. • Monitoring Periods: Every month for the first year, every two months for the second year, and every three months thereafter. • Penalty: Escalated penalty system starting at $1,000 per trip in excess of the maximum daily trip cap, with subsequent periods of non - compliance increasing to $5,000 and then $10,000 per trip and a 10% enrollment reduction in the next academic year. II. Project Impacts The breadth of analysis undertaken by Town staff and its consultants to inform the Planning Commission's deliberations was exhaustive and exceeded the required reporting requirements. By way of history, after moving forward with an Initial Study and a Mitigated Negative Declaration, the Town subsequently decided to conduct a fully scoped Environmental Impact Report (EIR) in order to thoroughly analyze the potential impacts triggered by the Project. The Draft Environmental impact Report (DEIR), released in March 2014, concluded that Hilibrook's increased enrollment would cause no significant Impacts to the neighborhood. This conclusion is important because the California Environmental Quality Act (CEQA) provides the Town with the State - mandated framework for analyzing a project's physical effect on the environment. The DEIR found that the Project triggers either no impacts or impacts that are less than significant under CEQA. The Town received several hundred pages of comments on the DEIR. The Final Environmental Impact Report (FEIR) was released on August 29, 2014 and meticulously responded to each and every comment submitted on the DEIR. It also analyzed the Project refinements. The FEIR confirmed that the changes proposed to the Project would reduce the Project's impacts identified in the DEIR, which already were less than significant under the Town's CEQA significance thresholds. -3- Hillbrook's Letter of Justification attached as Exhibit A summarized the substance of the FEIR's "Master Responses' that were compiled in response to numerous, similar comments on the DEIR. It deserves repeating here: • TDM Effectiveness — Because Hillbrook now proposes a condition of approval that requires implementation of the Final TDM Plan, as well as proposed daily limits, reduced peak period limits, third -party compliance determination and penalties for exceedances, the Project is expected to achieve further trip reduction, as the school has successfully done in the past. • Ann Arbor Access Alternative— Because the Project's traffic - related impacts were determined to be less than significant and Section 15126.6(c) of the CEQA Guidelines states that alternatives should be able to "avoid or substantially lessen one or more of the significant effects," the Town exercised its discretion and determined that there is no justification for a CEQA evaluation of the Ann Arbor Drive Alternative, especially when considering that the Town identified two other alternatives that satisfy CEQA's "rule of reason" with respect to a Lead Agency's choice of alternatives. Traffic Safetv— Traffic safety was evaluated for the Project by the Town's traffic engineering consultant. Consistent with the Town's and standard industry practice, TJKM collected traffic data, reviewed traffic volumes and pedestrian /bicycle counts, reviewed traffic conditions,, observed roadway conditions and site line visibility along routes to the school, observed pedestrian /bicycle traffic, and reviewed accident reports. After this exhaustive analysis, TJKM determined there are no unsafe conditions and the existing roadways are performing in a satisfactory manner, which led to the conclusion that the Project would not cause an increase in traffic that would result in any significant traffic safety impacts. The DEIR concluded and the FEIR confirmed that the Project will not exceed any CEQA thresholds, resulting in no impacts or less than significant impacts across the board, requiring absolutely no mitigations to ameliorate any impacts. Importantly, the DEIR and the Traffic Impact Analysis evaluated the Project's traffic impacts in accordance with the Town's Traffic Impact Policy, VTA Transportation Impact Analysis Guidelines, and standard traffic engineering professional practice. Both determined that the Project will not exceed CEQA significance criteria. In the eyes of the governing law, therefore, this Project has no significant impacts that would require any mitigation when measured against the Town's thresholds of -4- significance —the same thresholds applied to all other applicants seeking project approvals in Town. Consequently, these documents reflect the Town's independent judgment and thorough analysis, and the Planning Commission appropriately certified these documents in accordance with CECA. III. Planning Commission Parameters Prior to the Planning Commission hearings beginning in September, numerous sources emphasized the legal parameters that applied to the Planning Commission proceedings. As shown below, the record reflects complete unanimity with respect to the fact that the Planning Commission did not enjoy unfettered discretion when modifying Hillbrook's conditions. Unfortunately, the legal advice of the Town Attorney was ignored by the Planning Commission on the evening of October 6, 2014 when they imposed excessive conditions that bear no reasonable relationship to the public interest. First, in its Letter of Justification dated September 17, 2014, Hillbrook set forth its reasoning for the very specific modifications sought to its existing CUP, namely an increase in enrollment from 315 to 414 students, with an average daily traffic count to address neighborhood concerns. In that letter, Hillbrook reiterated the Town's direction to the Planning Commission as to the rules and legal principles applicable to the Hillbrook decision. That letter stated: "...Section 29.20.305 of the Town's Code provides that these CUP modifications are "heard anew and the deciding body may impose new conditions or modify previous conditions." However, as noted in the [FEIR] for the Project, the Town's discretion is limited by constitutional principles requiring that there be a nexus between the impacts of the Project and its conditions of approval, such that any conditions imposed must ameliorate the actual amount of harm that would result from the Project. As stated in the FEIR, "[a]lthough the Town may impose new conditions pursuant to Section 29.20.305, such an action does not permit the Town to revisit the wisdom of prior decisions to grant the existing [CUP] in the first place. Town staff is unaware of any potential harm that the proposed [CUP] amendment would cause that would support many of the [neighbors'] proposed conditions." (FEIR, page 8.5 -18.) Consequently, it is important that the Planning Commission recognize these important legal principles during its deliberations." -5- Second, the FEIR concluded that nothing in CEQA supports the imposition of the more stringent conditions of approval proposed by a small faction of neighbors, and the Town only has the authority or "police power" to impose conditions that address the actual effects of the Project —they cannot be excessive (FEIR, 8.5 -17 -18 and 8.5- 64). Third, in the Staff Report for the Planning Commission's September 24, 2014 hearing, Subsection E established the legal parameters for the Planning Commission's action. F. Action.,; Allowed by the Deciding, Cigdy Substantial reliance by a property owner on file issuance ot'a CUP creates a constitutionaliv protected property right to conduct the permitted activity in confirrmnnce with the expre' prop isions in the permit. Town Code Section 29.20.310 contain% it process where the Planning C taninissicm on its own motion or by recommendation of the Planning Director may 1101(1 It hcaring to consider modifying or revoking it Conditional Use Permit (CUP). In addition, procedural as well as substantive protections must he tbllowed when the Town decides whether grounds exist to revoke or modih a CLIP. This process is seldom used as the Yown tries to work with the violator to rectify the problem as long as they respond and work towards cumpliance at a reasonable pace. With this hcanng. the applicant has voluntarily requested approval to modify a Conditional Use Pennit w increase school enrollment and modify operations of an existing private school. Bused upon rite requirements of 'Town Code Section 29.20.310 and State and Federal law, the Planning Commission is not allowed to revoke the existing CUP or remove permitted uses front the existing CUP at this hearing since the appropriate notification and hearing was not set pursuant to Town Code 29.20.310. However, Planning Commission is allowed to modify conditions to the CUP so long as findings can he made that the conditions substantially further n legitimate public purpose that is related to the project and its impacth. Lastly, when queried by the Planning Commission about the legal parameters of the proceeding, Robert Schultz, the Town Attorney, reiterated the Town's position: ROBERT SCHULTZ: But a CUP does have some constitutional protected rights that are vested, and in this case you have an existing CUP, so they do have constitutionally protected rights. There is a process that you could go through where the Town initiates a modification or a revocation that allows you to provide procedural notice of what you're going to change and what you're going to do. In this case, it's the Applicant has come forward with a modification. Certainly that opens up anything that with the project to modify any of the conditions that exist for that project as long as you can show there's a substantial nexus or a —the wording is —a further legitimate QS purpose for that condition. Certainly when we get into those conditions we'll have to take a look at that on what the project is and what you're looking at to make certain that we're not stepping on any of the constitutional protected rights that the Applicant does have. (Los Gatos Planning Commission transcript, 9/24/2014 Item #3, page 11) IV. The Appeal Notwithstanding these directives as to the legal limits of the Planning Commission's discretion, the Planning Commission decided to impose a maximum cap of 880 daily vehicles with penalties that could accelerate into hundreds of thousands of dollars within months —a decision which not only treads on Hillbrook's constitutional rights but would financially cripple the school. Hillbrook believes that the Planning Commission unknowingly erred when making this decision. We ask the Town Council to uphold Hillbrook's appeal and instead impose an 880 average daily count based on the following three pillars: (A) sound Traffic Engineering Principles; (B) avoidance of Bad Precedent; and (C) Legal Implications. A. Traffic Enaineerina Principles As the record reflects, Hillbrook developed an average daily traffic (ADT) approach to respond to the neighbors' concerns about traffic outside of the AM /PM peak periods. Hillbrook proposed an ADT count of an average of 960 vehicles per day (or 480 vehicles each way), which was derived in collaboration with the Town's Engineering Department, who blended rates for private K -8 and K -12 schools, which are based on averages. Hillbrook proposed and Town staff supported this averaging methodology because the number of average daily vehicle trips is the standard industry measurement used in the Town, the County of Santa Clara, the entire Bay Area, the State of California, and nationally. Specifically, with respect to Hillbrook, this averaging methodology forms the basis for every traffic metric used to analyze the Project in the DER and FEIR: • The DEIR's traffic baseline of 880 is an average. • The Institute of Traffic Engineering's (ITE) Trip Generation Handbook uses averages for every land use analyzed in its data set to establish trip generation rates. -7- • The Traffic Intrusion on Residential Environments (TIRE) index relies on averages to determine qualitative impacts to residential streets. Importantly, the Town of Los Gatos utilizes the ITE rates for all of its traffic impact analysis and, therefore, every land use decision in Town is based on an averaging methodology by virtue of the Town's reliance on the ITE Trip Generation Handbook. With respect to Hillbrook, this methodology is fair because the averaging evens out unusual fluctuations and margins of error in order to accurately capture representative trips for a typical school day. Consequently, the Planning Commission fundamentally erred in its deviation from this widely accepted engineering principle. In this same vein, the Planning Commission erred in its interpretation /application of the TIRE index to support the imposition of a 880 maximum daily cap. The DEIR included the TIRE analysis for informational purposes to assess the Project's qualitative traffic impacts to nearby residential streets. The DEIR concluded and the FEIR confirmed that the implementation of the Final TDM Plan would be sufficient to reduce Project- related traffic increases to below the TIRE index's noticeability threshold levels, which would be triggered at an ADT of 1,114 trips (557 each way). Nevertheless, this finding was misunderstood by the Planning Commission in favor of a distorted data point advanced by a few select neighbors —that 890 daily vehicles would "severely impact the neighborhood." This is fundamentally wrong. The TIRE index was manipulated by the Project's opponents to overstate impacts and the Planning Commission mistakenly relied on this misrepresentation to support the concept of the 880 maximum daily cap. There is absolutely no evidence in the record to support the Planning Commission's reliance on this data point as a rational basis for the decision, nor is the TIRE index a legitimate tool used by the Town to determine any project's impact significance. Regrettably, the Planning Commission was misled as to the applicability of this "890" number and, as a consequence, made a quantitative error in judgment that resulted in an unfair and potentially devastating result for Hillbrook. Hillbrook asks the Council to correct this error and find in favor of the averaging approach. As explained before, Hillbrook's proposal for an ADT fell well below the applicable industry standard metrics and relevant equivalents, which means that Hillbrook's traffic is not excessive for the neighborhood. The opponents' hyperbole does not disprove this fact. In every land use circumstance, the Town relies on objective tools and standards to make determinations about any project's actual traffic impacts. These metrics ensure that the Town's decision- makers have objective, reasonable means by which to assess impacts. The fact that Hillbrook causes no significant impacts nor the need for any mitigation shows that the Planning 10 Commission overstepped its bounds by imposing an arbitrary maximum cap with an extremely punitive penalty system. B. Bad Precedent Hillbrook is asking the Council to intervene in this situation and consider the implications of the Planning Commission's decision as an important policy matter. As previously described, the Town's traffic engineers necessarily rely on averages to understand traffic impacts because averages provide a realistic, typical picture of traffic patterns by evening out fluctuations that occur. Averaging is the industry-wide standard, which is why the Town universally relies on the averaging approach to assess traffic impacts, thus making the imposition of a maximum cap on Hillbrook a radical departure from Town policy. This departure from the norm not only is unsupported by evidence in the record, but it would set a bad precedent from both a fairness and an enforcement standpoint. A maximum trip cap is not at all in line with previous Council decisions regarding traffic enforcement. Furthermore, this metric could open the door for excessive scrutiny —and, by extension, excessive enforcement —of every use permit application in Town. Such a result would fall well outside the bounds of the nationwide body of work that informs the Town's standard traffic analysis protocols. As such, Hillbrook asks the Town Council, as a matter of good public policy, to overturn the Planning Commission's imposition of an 880 maximum cap in favor of an average daily cap of 880 vehicles. This approach aligns with the EIR's baseline (a hard cap does not), the approach is supported by staff because it is common industry practice, and it is consistent with long- standing Town precedent. Significantly, an 880 average provides the same protections to the neighbors that were intended by the Planning Commission. By holding to the 880 baseline as an average, Hillbrook would add 99 students with no additional trips. Moreover, the Town Council can apply a maximum cap on top of the 880 average in order to give the neighbors the predictability they seek. It also gives the Council the assurance that the Town's best interests are protected because the system is set up to succeed, not overburden the Town's fragile resources, and not disproportionately penalize the applicant. -9- C. LeaalImplications For the reasons discussed briefly below, Hillbrook believes that the Planning Commission overstepped its legal bounds. Hillbrook also believes, however, that the conversion to an 880 average overcomes these legal infirmities and protects the Town from unnecessary risk. 1. Vested Right Hillbrook has a vested right to 315 students. The "opening up" of the CUP does not diminish this right. However, the imposition of the 880 hard cap by the Planning Commission in effect could diminish Hilibrook's vested right because the Town would be subjecting Hillbrook to possible penalties for trips generated under the school's existing, vested right of 315 students. This would be unlawful because the Town does not have the authority to penalize the school for the total number of students —only the net, new students above 315. 2. Nexus The imposition of escalated and now accelerated penalties demonstrates a lack of nexus between the maximum cap and impacts resulting from the Project.' When considering the totality of the Project's circumstances, there is a complete absence of proportionality between the "impact" and the "penalty." Since this Project has no impacts in the eyes of the law, the penalty system, as modified by the Planning Commission, is excessive, punitive, and threatens the fundamental viability of the school. Put simply, the punishment does not fit the crime here, and the penalty system devised by the Planning Commission violates the constitutional principles that require conditions to bear a "rough proportionality" to a project's adverse impacts. (See e.g. Nollan v. California Coastal Comn (1987) 482 U.S. 825; Dolan v. City of Tigard (1994) 512 U.S. 374; Ehrlich v. City of Culver City (1996) 12 Cal.4'" 854. 'Attached as Exhibit B is an example of how the 880 maximum cap and penalty system would apply to Hillbrook's 2014 Spring semester. The example is based on Hillbrook's real trip data with 315 students enrolled and corresponds to information that was submitted to the Planning Commission on September 30, 2014. This hypothetical applies 5 of the 10 annual exceptions approved by the Planning Commission and omits minor overages (seen in italics) based on the assumption that Hillbrook would ensure these trips were reduced. With these assumptions, the hypothetical shows how quickly the penalties escalate over the course of the 2014 Spring semester. For illustrative purposes, the hypothetical also includes a penalty scenario that assumes noncompliance in April, which then would trigger the $10,000 /trip penalty. As shown, even with a handful of overages in only two consecutive months, the penalties accelerate to over $1 million. These penalties are so excessive they would have the practical effect of shutting down the school —an outcome that runs afoul of the "rough proportionality" rule. -10- V. Clean -Ups In addition to converting the 880 maximum cap to an average, Hillbrook requests that the Town Council address the following "clean ups" to the conditions of approval adopted by the Planning Commission: Condition #3: Grounds and facilities maintenance: Modify hours to 8:00 a.m. to 9:00 p.m. to allow for janitorial services to occur in classrooms after students have left the campus. Hillbrook Faculty /Administrator Weekday Work: Modify hours to 6:30 a.m. to 9:00 p.m. so that faculty and staff can arrive on campus before students arrive and deliveries occur. • Condition #22: • A provision should be added to the penalties section that re- establishes the reset to $1,000 per trip after Hillbrook's return to compliance. • A provision also should be added that expressly acknowledges the grace period for the applicability of penalties prior to Hillbrook's addition of any additional students in the Fall of 2015/2016. VI. Conclusion Based on the foregoing, Hillbrook requests that the Town Council uphold Hillbrook's appeal, overturn the Planning Commission decision, and convert the 880 vehicle maximum cap to an 880 average daily count. This approach is, above all else, fair. it also is supported by sound traffic engineering principles, represents good public policy, and cures serious legal deficiencies. As you consider this appeal, recall that Hillbrook has been a part of the Los Gatos community for 79 years and has contributed to the wonderful, small town culture that makes the Town such a special place. Hillbrook has listened and responded to neighborhood concerns. And the record shows that the Project has no significant impacts on the environment, nor does it cause unsafe traffic conditions on neighboring streets. The Planning Commissioners clearly expressed their desire to see Hillbrook thrive. Let Hillbrook thrive. -I1- Hillbrook looks to this Council for its leadership, independence, thoughtfulness, and sense of fairness. It is time for closure so that the parties can move forward and heal. Thank you for your consideration. Sincerely, Mark Silver, Ph.D. Head of School Attachments 12- Chuck Hammers Chair of the Board of Trustees EXHIBIT A 0 - �II_La kt)CJ j� SCH 0 0 L September 17, 2014 Margaret Smith, Chair Members of the Planning Commission Town of Los Gatos 110 E. Main Street Los Gatos, CA 95030 RE: Hillbrook School Letter of Justification Dear Chair Smith and Members of the Planning Commission: We are writing on behalf of the Hillbrook School (Hillbrook) with respect to our request for a modification to our Conditional Use Permit ( "CUP ") that the Planning Commission will be considering at its hearing on September 24, 2014 ( "Project "). Executive Summary In direct response to our neighbors' concerns about Project impacts on the local streets, we have refined our proposal. The following provides an overview of its key elements: • Enrollment: Increase from 315 students to 414 students. • Average Daily Count (ADT); 960 average daily vehicles (480 each way) entering and exiting the campus. • AMIPM Peak Periods: Reduction in our AM /PM peak period maximum of outgoing vehicles from 165 to an average of 150 vehicles during drop- off/pick- up periods. • Summer: 480 average daily vehicles (240 each way), half of the regular school year average and no summer evening events. • TDM Program: Implement mandatory TDM program with a bi- annual reporting requirement to the Town. • Enforcement: The Town will engage a third party, independent consultant to determine compliance with the trip cap averages based on the driveway sensor data. • Penalty: Escalated penalty system starting at $1,000 per trip in excess of the daily, AM or PM average, with subsequent periods of non - compliance increasing to $5,000 and then $10,000 per trip, with a reset to $1,000 per trip after a return to compliance. Background A. Hillbrook History Hillbrook was founded more than 75 years ago and offers an extraordinary educational experience that prepares students for school and for life. Originally known as The Children's Country School, the school served as a boarding school forwards of the state throughout the 1930s and 1940s. In the early 1950s, the school evolved into an independent day school and, in 1960, changed its name to the Hillbrook School. Hillbrook now educates children between the ages of 4 and 14 from Junior Kindergarten to 8" grade. Hillbrook is non - sectarian, accredited by the California Association of Independent Schools, and a member of the National Association of Independent Schools. Since the 1950s and 1960s, the school has evolved into one of the leading independent schools in the Bay Area. During the past 13 years, the school campus has been rebuilt and modernized, retaining its historical look and feel while bringing the school facilities up to date. The campus itself is 14 -acres and bisected by a creek that divides the lower and middle school sides of campus. (See Exhibit 1.) The school's program also has evolved and expanded, balancing rigorous academics with a focus on social emotional learning and service to the community. The school is a vital part of the Los Gatos community, not only providing an education to many families who live in Los Gatos and surrounding communities, but also through the service efforts of our students and families. B. CUP History Hillbrook's original CUP was approved in the late 1980s when the school sought to build Founder's Hall, the school's gymnasium. To address neighborhood concerns that the Hall might be used for weddings and similar social activities, Hillbrook agreed to limit Founder's Hail usage to school activities and to build a new access road and gate off of Ann Arbor to provide emergency vehicle and limited construction equipment -2- access to the middle school side of campus. This gate remains locked at all times and has never been used for student ingress or egress to the campus. The school also agreed to limit enrollment to 315 students. In 2001, the Town approved the Hillbrook School Master Plan and Architecture and Site Approval application (PRJ -99 -063) for the rebuilding of certain campus facilities that had become dilapidated and were not earthquake safe. As part of this approval, new CUP conditions were added to address neighborhood concerns about traffic backing up along Marchmont Drive. The school agreed to adopt a voluntary carpool program and to limit car counts to 165 outbound vehicles during the AM /PM peak periods (7:30 -8:30 am and 2:30 -3:45, respectively). Since these conditions were adopted, the Town has undertaken bi- annual traffic counts and Hillbrook has been in complete compliance with the 165 outbound limit. The Hillbrook School Master Plan allowed for a total of 55,715 square feet of buildings. Since obtaining that approval, Hillbrook has renovated, rebuilt or replaced most of the buildings on site, for a total of 52,683 square feet (with 5.4% of allowable square feet remaining). Hillbrook, therefore, has ample capacity on its 14 -acre campus to accommodate the additional students. III. Why Increase Enrollment? As noted above, since 1987, our enrollment has been capped at 315 students. However, philosophies as to how best to educate elementary and middle school students have changed dramatically in the past 27 years. As a result, Hillbrook cannot meet the demands of a 21St century, nationally recognized, independent school if it is not permitted to grow and thrive. Specifically, the current 315 student cap does not allow Hillbrook to: 1) enroll enough children to have uniform classes of 18 -20 students across all grades, which is optimal; 2) enroll enough children to meet the current demands of academic differentiation and to optimize sociallemotional development; and 3) have the financial flexibility to continue to expand and grow its curricular offerings and tuition assistance program. We merely are seeking the flexibility and agility in our enrollment process that is critical to address our students' educational needs. At present, Hillbrook turns away applicants, many from Los Gatos, every year. Los Gatos public schools currently are bursting at the seams and will be even worse with the anticipated growth in Town over the next few years. Consequently, leaving empty seats in a local school with space to fill does not make sense given the Town's current circumstances. -3- A. Uniform Class Sizes of 18 -20 Students We believe, as do many other independent schools and the State of California, that the ideal size for our classes is 18 -20 students. This size has been found to be small enough to ensure that students receive individual attention, while still allowing for collaboration, teaming, and the stimulation that is critical to young children's emotional and intellectual development. Currently, with two sections per grade, Hillbrook finds itself with many classes that are too small. The problem is that the current enrollment cap does not correspond to a logical enrollment model, resulting in grade levels that wildly fluctuate in size. Last year, for example, because of the enrollment cap and a lack of attrition in other grades, we ended up with only 23 students in Kindergarten. While other schools in our area are over - crowded, we ended up with an empty classroom for the entire year. This year, that Kindergarten class will be two sections of 1 st grade at 11 and 12 students each, which is not a desirable class size for students to have adequate academic and social peers. And, due to the current enrollment cap, this class will be confined to this size all the way through 8'" grade. The result is that teachers and classroom space are underutilized, and parents are concerned that their children will not have a sufficiently active and challenging environment for 1st grade and beyond. This enrollment constraint does not benefit the school, the children, or the Town of Los Gatos. (See Exhibit 2.) B. Programmatic Differentiation and Social /Emotional Development First, an increase in students will allow for Hillbrook to diversify its programmatic options. A significant change we have seen in education over the past quarter century is the ability to provide curricular innovations that achieve a more effective and desirable program for middle school students. Today, public, private and parochial schools across the country offer far greater course selection than has ever been seen before. Hillbrook, with its current constraints, struggles to effectively provide this curricular variety to students. In the past, Hillbrook offered one or (at most) two levels of math in the middle school, allowing the class to split into two sections. For example, a 7t" grade with 36 students would be divided into two sections of 18 students for math classes. Now, to better meet the evolving educational needs of students and the increasing expectations of families, Hillbrook offers at least three levels of math, ending with pre - algebra, algebra and geometry in 8u' grade. With only 36 students in the grade, this can lead to a math section with only 6 or 7 students. By way of another example, foreign language is even more challenging. Like other leading independent schools, Hillbrook currently offers the option of Mandarin and Spanish in middle school. Increasingly, we are seeing a need to create advanced sections in both languages yet, given our overall enrollment, we may have only 3 or 4 students who are prepared for the advanced courses. me Regrettably, it is both economically and academically infeasible to offer an advanced course, whether math or language, to only a handful of students. Second, it is well- recognized that middle school students need a rich and varied social environment in order to thrive. Therefore, the tiny classes noted above do not provide the opportunities for the adequate collaboration or sufficient peer interaction that is necessary for students to reach their full developmental potential. Other leading independent schools in the Bay Area, including St. Andrews School and the Harker School in San Jose, have recognized the need for a larger critical mass of middle school students and have grown to better meet the needs of their students. These are just two examples of the struggles we face resulting from the 315 student enrollment cap, with many other examples in the core curriculum, arts, athletics, and electives. With an additional section of middle school students, Hillbrook can better meet the evolving academic needs of students by providing more robust and effective course offerings, while providing the necessary critical mass of peers to enrich students' social experiences, as well. C. Financial Health and Diversity An increase in students will ensure our program remains affordable, accessible and inclusive to a socioeconomically diverse community. Since 1935, Hillbrook School has served students from all different socioeconomic backgrounds. The school deeply values being accessible to families with diverse economic circumstances and does everything in its power to remain affordable to these families for whom tuition is a stretch. For example, about twenty percent of Hillbrook families receive tuition assistance, with some families receiving up to 90% of the overall cost. In total, Hillbrook is providing nearly $1 million in financial assistance to families this academic year. Yet, the current enrollment cap, coupled with the evolving demands required to provide an extraordinary educational program, is driving Hillbrook's tuition higher and higher. We strive to attract top teaching and administrative talent to further our educational mission. This requires being competitive in the marketplace. Consequently, an increase in enrollment for the school would allow Hillbrook to keep tuition manageable, stay accessible, and offer a robust program that meets the current demands of families and students. Two important facets of our request must be emphasized. First, the additional students can be accommodated in existing classrooms and buildings on campus. We will continue to be good stewards of our 14 -acre campus and protect the resources we enjoy; therefore, we are not seeking any additional building square footage to -5- accommodate this enrollment increase. Our campus has the capacity to educate many more students than our enrollment cap allows. We have a plan in place to utilize the existing square footage to accommodate the entirety of a 414 student population. By way of illustration, Exhibit 3 shows the excess classroom capacity for grades 5 -8. Second, our request does not mean that we would immediately add 99 students in the next school year. We will spend 3 to 5 years carefully adding students so that our school can continue to provide the community aspect that has always been a cultural hallmark at Hilibrook. Put simply, we are seeking the flexibility and agility in our enrollment process that is critical to address our students' educational needs. Allowing Hilibrook to add an additional section of students in grades 61" through 81" means that, for the first time, local families would enjoy the option of enrolling in Hillbrook for just the middle school years, instead of starting at Junior Kindergarten. This flexibility will provide a better learning environment for our current students by allowing for more robust academic choices, more co- curricular activities, and better social interactions between students. It also will provide another excellent option for middle school students in the Town. Our proposed enrollment cap of 414 makes sense educationally and programmatically, and it will allow our nonprofit institution to be sustainable over the long term. IV. Our Project A. CUP Amendment As discussed above, Hilibrook seeks a very specific modification to its existing CUP to increase enrollment from 315 to 414 students, with proposed conditions of approval to address neighborhood concerns. Section 29.20.305 of the Town's Code provides that these CUP modifications are "heard anew and the deciding body may impose new conditions or modify previous conditions." However, as noted in the Final Environmental Impact Report ( "FEIR ") for the Project, the Town's discretion is limited by constitutional principles requiring that there be a nexus between the impacts of the Project and its conditions of approval, such that any conditions imposed must ameliorate the actual amount of harm that would result from the Project. As stated in the FEIR, "[a]tthough the Town may impose new conditions pursuant to Section 29.20.305, such an action does not permit the Town to revisit the wisdom of prior decisions to grant the existing [CUP] in the first place. Town staff Is unaware of any potential harm that the proposed [CUP] amendment would cause that would support many of the [neighbors'] proposed conditions." (FEIR, page 8.5 -18.) Consequently, it is -6- important that the Planning Commission recognize these important legal principles during its deliberations. B. Prolect Consistency Zoning Hillbrook is located on a 14 -acre parcel in a Hillside Residential (HR -1) zone. HR zones allow for a number of permitted uses, as well as some conditional uses. Hilibrook operates as a conditional use under the HR zoning and, as such, is an appropriate use under the Town's Code pursuant to its CUP. 2. General Plan A project is consistent with a general plan if it is compatible with the plan's objectives, policies, general land uses, and programs and will not obstruct their attainment. Hillbrook is located within the General Plan's Hillside Residential designation and, as such, the school use is consistent with and allowed under this designation. In addition, the Project is consistent with a number of key General Plan goals and policies, including, but not limited, to: Human Services Element • Goal HS -4 To offer a wide range of youth programs and services within the Town. • Policy HS-4.2 Coordinate with public and private schools, local nonprofits, service clubs, and other agencies to provide opportunities for youth to explore and enjoy sports,creative and performing arts, and future career paths. • Policy HS -7.2 Promote the Safe Routes to School program, which supports safety improvements that encourage safe walking and bicycling to school, • Policy HS -7.3 Coordinate with local businesses, organizations and school districts to develop innovative programs, such as "Walking School Buses" and "Bicycle Trains" that encourage youth to commute to and from school in groups. d! Transportation Element • TRA -1.1 Development shall not exceed transportation capacity. • TRA -9.6 Require development proposals to include amenities that encourage alternate forms of transportation that reduce pollution or traffic congestion as a benefit to the community. • TRA -9.2 Encourage bicycling and walking as energy conserving, non- polluting alternatives to automobile travel. • TRA -5 School Pool Program. Implement a School Pool Program that helps match parents to carpool students to school. Open Space, Parks, and Recreation Element • Goal OSP -2 To preserve open space in hillside areas as natural open space. • OSP -2.1 Preserve the natural open space character of hillside lands, including natural topography, natural vegetation, wildlife habitats and migration corridors, and viewsheds. • Goal OSP -5 To create and maintain open space areas and parks that enhance and blend into existing natural habitats, residential neighborhoods, and other Town features. V. Our Refinements A. Overview Buoyed by the DEIR's findings of our Project's less than significant impacts, we worked with our neighbors, traffic engineers, and the Town to refine a set of conditions that allows the school to increase its enrollment while ensuring that we control our traffic on neighboring streets. We have developed a system based on three equally important prongs that function together to guarantee our compliance with an amended CUP — monitoring, TOM, and penalties. We call it the "three- legged stool." The first leg is comprised of the proposed trip caps for the AM /PM peak periods and daily trips, which the Town will monitor through an independent, third party vendor. The second leg is comprised of the mandatory TDM program, which will require parental commitment in the form of carpooling, shuttling, walking or biking. Lastly, the third leg provides the "teeth" in the way of penalty protocols for non - compliance. Attached as Exhibit 4 is a memorandum from Nelson \Nygaard that further discusses the mechanics of our proposal, as well as other traffic-related issues. IN B. Average Daily Traffic (ADT) Count The most important new element of our CUP proposal is the addition of an ADT count. Certain neighbors have expressed concern about solely relying on AM /PM peak period controls because of the traffic that can occur throughout the whole of the day. In direct response to this concern, we developed an ADT count of an average of 960 vehicles per day (or 480 vehicles each way). This ADT count was derived in collaboration with the Town's Engineering Department, who blended the ITE rates for private K-8 and K -12 schools. When this blended rate is multiplied by 414 students (2.68 x 414), the result is an ADT of 1,108 trips, making Hillbrook's proposed ADT count of 960 vehicles a 13% decrease from the blended ITE number calculated by the Town. As one can see, our 960 ADT count falls below numerous metrics relied upon or discussed for informational purposes in the DEIR. First, the DEIR includes analysis for informational purposes that relies on the Traffic Intrusion on Residential Environments index (TIRE ) to measure the Project's qualitative traffic impacts to nearby residential streets. Based on the analysis done by the Town's traffic consultants, the DEIR concludes that, and the FEIR confirms, the implementation of the Final TDM Plan would be sufficient to reduce Project - related traffic increases to below the TIRE index's noticeability threshold levels. The noticeability threshold is triggered at an ADT of 1,114 trips (557 each way); thus, Hillbrook's proposed ADT count of 960 is significantly lower. Second, Table 4.3 -11 in the DEIR indicates that the Project would generate 276 daily trips, which is equivalent to a trip generation rate of 2.79 trips per student. The application of this rate to the proposed 99 student increase would result in 1,155 daily trips, almost 200 more trips than the proposed 960 ADT count or a 17% difference. Third, pursuant to the Town's Traffic Calming Policy, total traffic volumes on a local residential street would have to exceed the established daily traffic volume threshold of 1,500 trips to justify the Town's consideration of traffic calming measures. This 1,500 daily trip threshold is 540 trips or 56% higher than our proposed 960 ADT count. In sum, Hillbrook's proposal of a 960 ADT falls well below the applicable industry standard metrics and relevant equivalents, which means that Hillbrook's traffic is not excessive for the neighborhood. We do not trigger anything close to a significant traffic impact based on the Town's LOS standards. We fall well below the Town's calculation for a blended ITE rate, below the TIRE index threshold for noticeability on a residential street, and far below the Town's Traffic Calming threshold for local residential streets. These are the objective tools that the Planning Commission and 11011 Town Council must rely on to make determinations about any project's actual traffic impacts. These tools do not change because a street is a "dead end" or if a school is a conditional use. These metrics ensure that the Town's decision - makers have objective, reasonable means by which to assess impacts. The fact that Hillbrook causes no significant impacts and the 960 ADT count is well -below industry standards should serve as compelling justification that our proposal is rational and achievable, especially when considering the ongoing success of our trip reduction strategies. C. Transportation Demand Management (TDM) The next critical component of our proposal is the implementation of a mandatory TOM program that will allow Hillbrook to manage its traffic impacts by requiring parents to commit to trip reduction in a number of different ways. (See Exhibit 5.) This Final TOM Plan prepared by NelsonlNygaard recommends a menu of strategies that will reduce peak hour vehicle trips and daily trips in accordance with our proposed trip caps. TOM strategies work as a package, with options and incentives working together to control behavior. For the past couple of years, we have piloted shuttles, which include kiss & ride stops, created a transportation coordinator role, placed a transportation person in the streets each morning to ensure bikers and walkers arrive safely to school, and partnered with Safe Routes to Schools to continually seek new ways to encourage people to bike, walk, shuttle, and carpool to school. We continue to refine our system to make it more effective and efficient. As described by Nelson \Nygaard, the largest contributors to trip reduction are the shuttle system and the expanded carpooling program. Our commitment to a successful TOM program is evidenced by our proposed penalty protocols, which subject the institution to significant financial consequences if we fall short of our trip reduction goals. We are confident that, as is NelsonlNygaard and the Town as stated in the FEIR, we will be able to satisfy this commitment and increase enrollment with a corresponding decrease in neighborhood trips. D. Penalties As noted above, the final prong of our proposed compliance system is the penalty protocols. We have proposed three monitoring periods for which Hillbrook's trips would be analyzed for compliance —First Term, Second Term, and Summer Term. For example, if the Town's independent, third party vendor analyzes the Sensys driveway data and determines that, after taking into account typical school days', ' Pursuant to widely accepted traffic engineering standards, the averaging of typical school days would exclude all days that are less representative of typical school conditions, such as weekends, holidays, special nighttime events. and minimum days. Hillbrook has exceeded the ADT on a given day during the First Term of an academic year, the Town can assess a $1,000 per trip penalty for those trips over the average 960 ADT, if Hillbrook fails to make the necessary adjustments and exceeds a trip cap again in the Second Term (AM, PM or ADT), then the penalty escalates to $5,000 per trip over the average. The penalty could go as high as $10,000 per trip if Hillbrook is out of compliance for three consecutive monitoring periods. Once Hillbrook comes back into compliance in a subsequent monitoring period, the penalty resets to the $1,000 per trip amount, which is standard with respect to these kinds of penalty protocols. VI. Our Impacts A. Draft Environmental Impact Report We have long recognized that our desire to increase enrollment needs to be done sensitively with respect to increased traffic in our neighborhood. We were very pleased that the Draft Environmental impact Report ( "DEIR ") concluded that our increased enrollment would cause no significant impacts to the neighborhood. This conclusion is important because the California Environmental Quality Act (CEQA) provides the Town with the widely accepted framework for analyzing a project's physical effect on the environment. The DEIR found that our project triggers either no impacts or impacts that are less than significant under CEQA., B. Final Environmental Impact Report The FEIR, which was released on August 29, 2014, responds to all of the comments submitted on the DEIR and analyzes the refinements to our Project proposal. The FEIR confirms that the changes we have proposed to the Project would reduce the Project's impacts identified in the DEIR, which already are less than significant under the Town's CEQA significance thresholds. The FEIR contains a number of "Master Responses" that were compiled in response to numerous, similar comments on the DEIR, which we briefly summarize here: TDM Effectiveness — Because Hillbrook now proposes a condition of approval that requires implementation of the Final TDM Plan, as well as proposed daily limits, reduced peak period limits, third -party compliance determination and penalties for exceedances, the Project is expected to achieve further trip reduction, as the school has successfully done in the past. • Ann Arbor Access Alternative— Because the Project's traffic - related impacts were determined to be less than significant and Section 15126.6(c) of the CEQA Guidelines states that alternatives should be able to "avoid or substantially lessen one or more of the significant effects," the Town exercised its discretion and determined that there is no justification for a CEQA evaluation of the Ann Arbor Drive Alternative, especially when considering that the Town identified two other alternatives that satisfy CEQA's "rule of reason" with respect to a Lead Agency's choice of alternatives. • Traffic Safety— Traffic safety was evaluated for the Project by the Town's traffic engineering consultant. Consistent with the Town's and standard industry practice, TJKM collected traffic data, reviewed traffic volumes and pedestrian /bicycle counts, reviewed traffic conditions, observed roadway conditions and site line visibility along routes to the school, observed pedestrian /bicycle traffic, and reviewed accident reports. After this exhaustive analysis, TJKM determined there are no unsafe conditions and the existing roadways are performing in a satisfactory manner, which led to the conclusion that the Project would not cause an increase in traffic that would result in any significant traffic safety impacts. We draw your attention to a number of other important conclusions in the FEIR. First, the FOR concludes that nothing in CEQA supports the imposition of the more stringent conditions of approval proposed by a small faction of neighbors, and the Town only has the authority or "police power" to impose conditions that address the actual effects of the Project —they cannot be excessive (FEIR, 8.5 -17 -18 and 8.5 -64). Second, Town staff has determined that Hilibrook currently operates within its CUP conditions /limits and, therefore, is not in violation of its CUP as some neighbors keep suggesting (FEIR, 8.5 -45). Third, the Town stands by the traffic analysis and believes it to be legally adequate under CEQA, as the data used for the traffic analysis constitutes substantial evidence sufficient to support the DEIR's conclusions (FEIR, 8.5 -20 and 8.5- 107). In sum, the DER concludes and the FEIR confirms that the Project will not exceed any CEQA thresholds, resulting in no impacts or less than significant impacts across all Appendix G topics. Importantly, the DER and the Traffic Impact Analysis evaluated the Project's traffic impacts in accordance with the Town's Traffic Impact Policy, VTA Transportation Impact Analysis Guidelines, and standard traffic engineering professional practice and both determined that the Project will not exceed the CEQA significance criteria resulting in the Project's less than significant traffic -12- impacts. These documents reflect the Town's independent judgment and thorough analysis and deserve certification under CEQA. VII. Conditions of Approval In September 2012, Hillbrook submitted a Letter of Justification that explained the original rationale for the school's proposed CUP modifications (See Exhibit 6). Since then, Hillbrook has clarified the conditions of approval to reflect the refinements discussed above. For ease of reference, attached as Exhibit 7 is a matrix that compares Hillbrook's proposed conditions to the conditions in the existing CUP. Some of this clarifying language is highlighted below. • Condition #4— Carpooling: This condition is replaced with a parking restriction for neighboring streets, and carpooling is discussed in Condition #14. • Condition #5— Enrollment: Hillbrook shall submit the student enrollment roster annually to the Town's Planning division for verification two months from the first day of the school year, • Condition #7(B) -- Nighttime Hours: No nighttime activities shall be allowed during the Summer. • Condition #7(C)— Weekend Activities: Weekend use shall be limited to an Open House event in October and volleyball and basketball toumaments between Hillbrook and other schools only. • Condition #8— Neighborhood Coordination: This is a new condition that establishes regular neighborhood outreach protocols. • Condition #9— Neighborhood Committee: This also is a new condition that establishes a Neighborhood Committee comprised of Hillbrook Trustees, the Head of School, the Traffic Coordinator, and representatives from the neighborhood. • Condition #12— Lease /Rentals: No lease or rental of the campus facilities shall be permitted to third parties, except for those providers of educational programs, which shall be executed in strict accordance with Condition #14, Traffic Conditions. • Condition #14— Traffic Conditions: The majority of these conditions are discussed above in Section V. Condition #14(G) establishes a Traffic Coordinator to oversee the TDM program and facilitate outreach and Condition #14(I) establishes exclusions for Hilibrook's ten (10) special nighttime events, which allows for exceedances of the ADT trip limitation without violation. • Condition #15— Commercial Traffic: No commercial traffic shall be permitted before 7:00 AM on weekdays. Vlll. Community Engagement and Benefits A. Enoagement Hillbrook applied back in 2012 for a modification to our CUP to allow for a student enrollment increase from 315 to 414 students. Since that time, we proactively engaged our neighbors by holding dozens of meetings —large and small —in an effort to understand their concerns so that we may be responsive to them. Last Fall, we set out on an ambitious outreach program with the goal of reaching out to as many neighbors as possible to hear their concerns and emphasize our commitment to being a good neighbor. These 2013 meetings included: • October 28: • November 6: • November 14: • November 17: • November 21: • December 2: • December 4: • December 9: Longmeadow Neighbors Topping Neighbors Englewood Neighbors Ann Arbor Neighbors Hilow Neighbors Lower Marchmont Neighbors Cardinal Lane Neighbors Upper Marchmont Neighbors We also held a neighborhood -wide meeting on May 27, 2014 to re- engage with the community before the summer so we could present the refinements to our proposal that we submitted to the Town. We have made sincere, meaningful efforts to address the neighbors' concerns, and we are committed to remaining fully engaged with our neighbors going forward. B. Benefits Hillbrook has provided immeasurable benefits to the Los Gatos community for over 75 years by providing an exceptional educational option for Los Gatos families and beyond. Prior to August 2014, the Town's Traffic Impact Policy required that any project generating five or more new trips provide a "community benefit" offering. Because the Town's Traffic Impact Mitigation Fee now charges at full cost recovery, the community benefit requirement was eliminated. Consequently, Hillbrook is no longer required to provide a "community benefit" pursuant to the Traffic Impact Policy and, -14- instead, the school will be charged $854 for each net, new trip, which will translate to approximately $68,000 in traffic impact fees. We emphasize here that the Project and its recent refinements offer a community benefit by providing access for more Los Gatos students (current Los Gatos enrollment is roughly 50 %) to educational alternatives, while easing some of the pressure on the local schools and minimizing traffic impacts. IX. Conclusion Hilibrook has been a part of the Los Gatos community for 79 years and has contributed to the wonderful, small town culture that makes the Town such a special place. Hilibrook seeks a modest increase in student enrollment so that we can be a better school for our families and more sustainable as a non -profit institution over the long term. We have listened to the neighborhood concerns and we have adjusted our proposal in response with an all -day traffic count, mandatory TDM, and penalties. The DER and the FOR confirm that our Project has no significant Impacts on the environment and does not cause unsafe traffic conditions on neighboring streets. We request, therefore, that the Planning Commission certify the DER and FEIR pursuant to CEQA and approve our Project as proposed. Thank you for your consideration. Sincerely, Mark Silver, Ph.D. Chuck Hammers Head of School Chair of the Board of Trustees -15- EXHIBIT B O d O N C f0 ..y H N ri C C C C � -t0i N f0 N M W O N N N M h p O" O ti M O Ol an b n H N N M H N 0 0 0 0 0 o 0 O 41 N V} O t! .V G O 19 'L I I a C N £ M O p c p c � o E `o s v � c p £ c m 0 p d Y W 0 CL V w N N w Fp = f0 (0 C C a a 3 Y Y L O O N N N O p. .i Y O m N N t0 m 0 O d u C m CL £ 0 u N G1 N GJ U1 G1 f0 f0 fC cf0 Ip ry ry m N m � LL LL LL LL LL LL ��� C it �� G C C M V V1 tD N M O O lD I� J 00 ) G G G G N M 0. c . 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