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Hillbrook School Conditional Use Permit Applicationo"" F MEETING DATE: 1/13/15 ` ' tM.Vrlr �a8 CAS�9 COUNCIL AGENDA REPORT ITEM NO: I DATE: JANUARY 8, 2015 TO: MAYOR AND TOWN COUNCIL FROM: GREG LARSON, TOWN MANAGER v ROBERT SCHULTZ, TOWN ATTORNEY SUBJECT: CONDITIONAL USE PERMIT APPLICATION U -12 -002 AND ENVIRONMENTAL IMPACT REPORT EIR -13 -001. PROJECT LOCATION: 300 MARCHMONT DRIVE. PROPERTY OWNER: HILLBROOK SCHOOL. APPLICANT /APPELLANT: MARK SILVER. APPELLANT: PATRICIA ELLIOT (AND OTHERS). CONSIDER AN APPEAL OF A PLANNING COMMISSION DECISION APPROVING A CONDITIONAL USE PERMIT MODIFICATION TO INCREASE SCHOOL ENROLLMENT AND MODIFY OPERATIONS OF AN EXISTING PRIVATE SCHOOL ( HILLBROOK SCHOOL) ON PROPERTY ZONED HR -1. APNS 532 -10 -001 AND 532 -11 -011. RECOMMENDATION: After opening and closing the public hearing, it is recommended that the Town Council adopt a Resolution to deny the appeals and uphold the decision of the Planning Commission to approve the application subject to conditions of approval (Attachment 21). ALTERNATIVES: Alternatively, the Council may: Adopt a Resolution to deny the appeals, determine that the Planning Commission's decision should be modified, approve the application subject to modified conditions of approval as determined by Council, and find one or more of the following in accordance with Town Code Section 29.20.300: a. There was error or abuse of discretion on the part of the Planning Commission; or PREPARED BY: LAUREL R. PREVETTI�� Assistant Town Manager/ ommunity Development Director Reviewed by: N/A Assistant Town Manager N/A Town Attorney N:\DEV\TC REPORTS\2015\M=h nont300.dmx Reformatted: 5/30/02 PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 b. The new information that was submitted to the Council during the appeal process was not readily and reasonably available for submission to the Commission; or c. An issue or policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision (Attachment 22); or 2. Adopt a Resolution to grant one or more aspects of the appeals, determine that the Planning Commission's decision should be modified, approve the application subject to modified conditions of approval as determined by Council, and find one or more of the following in accordance with Town Code Section 29.20.300: a. There was error or abuse of discretion on the part of the Planning Commission; or b. The new information that was submitted to the Council during the appeal process was not readily and reasonably available for submission to the Commission; or c. An issue or policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision (Attachment 23); or 3. Adopt a Resolution to grant one or more aspects of the appeals, deny the application (the previously approved Conditional Use Permit PRJ -99 -062 would remain active), and find one or more of the following in accordance with Town Code Section 29.20.300: a. There was error or abuse of discretion on the part of the Planning Commission; or b. The new information that was submitted to the Council during the appeal process was not readily and reasonably available for submission to the Commission; or c. An issue or policy over which the Commission did not have discretion to modify or address, but which is vested in the Council for modification or decision (Attachment 24); or 4. Continue the application to a date certain with specific direction. The resolutions identified under the alternatives are draft documents intended to assist the Council in its considerations of the appeals. Staff anticipates that the Town Council may wish to modify the language in any resolution to reflect the Council's deliberation and action(s). Any substantive changes to the adopted resolution will be brought back to Council for confirming final adoption as a Consent Calendar item. BACKGROUND: The report to the Planning Commission for its September 24, 2014 meeting contains a history of Hillbrook School and its approvals with the Town of Los Gatos (Attachment 5). Based on historic records, the property at 300 Marchmont Drive has been used for a school since 1936. In 1966, following annexation of the school property to Los Gatos, the Town approved a Conditional Use Permit (CUP) to add a classroom, ballet room, and high school. Other approvals occurred over time and the 2001 approval is the current CUP (Exhibit 9 of Attachment 5). Hillbrook School has also obtained Architecture and Site approvals for renovations and new construction, and the last approval was granted in 2007. In February 2012, the Town received an application to modify the existing Conditional Use Permit (CUP) for Hillbrook School to increase the total enrollment of the school from 315 to 414 PAGE MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE /U -12- 002 /EIR -13 -001 JANUARY 8, 2015 students. Other elements of the proposal are identified in the next section of this report. After completing traffic analyses, an Initial Study, and Mitigated Negative Declaration, the Town and the applicant decided to prepare a Draft Environmental Impact Report (EIR) in accordance with the California Environmental Quality Act (CEQA) due to the high degree of controversy surrounding the proposal and its potential environmental impacts (Attachment 2). The Draft EIR was circulated for public comment and responses to comments are contained in the Final EIR (Attachment 4). The Planning Commission began its public hearing on the EIR and the CUP application on September 24, 2014. To provide an opportunity for all members of the community who wished to speak on the items, the Planning Commission continued the hearing to September 30, 2014. On September 30, 2014, the Commission completed public testimony, closed the public testimony portion of the public hearing, and continued the matter to October 6, 2014 for its deliberation and action. On October 6, 2014, the Planning Commission deliberated, and early on October 7, 2014, the Planning Commission certified the Final EIR and approved CUP U -12 -002 with an increase in enrollment and associated conditions (Attachment 10). On October 8, 2014, the Town received an appeal from Mark Silver, the applicant (Attachment 11). On October 17, 2014, the Town received an appeal from Patti Elliot and 93 other appellants (Attachment 12). Both parties voluntarily agreed to defer the appeal hearing until January 2015 (Attachments 13 and 14). The Town provided both appellants the opportunity to submit supplemental information for the basis of their appeal and these documents are included as Attachments 18 and 19. DISCUSSION: A. Project Summary The applicant has proposed CUP modifications that would: • Increase the number of students from 315 to 414. • Change the allowed number of vehicle trips during school peak hours from a maximum of 165 to a daily average of 150. • Allow maximum average daily trips (ADT) of 960 (480 trips each way). • Allow a maximum ADT of 480 (240 trips each way) during the summer. • Change the twice - yearly vehicle hose counts to monitoring by means of an electronic counter, the data of which would be evaluated by third parties for verification and averaging three times a year. • Implement a Transportation Demand Management (TDM) program. • Identify fines for exceeding vehicle trip limitations. • Increase efforts to communicate with and reduce impacts to the neighbors. No new construction is proposed. Attachment 5 contains the applicant's letter of justification, proposed conditions of approval, and additional letter of justification. Attachment 8 contains the applicant's proposed modifications and Attachment 9 contains a supplemental letter from the applicant. PAGE MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 B. Planning Commission Decision The Planning Commission considered the subject application on September 24, September 30, and October 6 and 7, 2014. The Planning Commission approved the CUP with additional and modified conditions (see Attachment 10) including: • Use and hours of operation with a table of permitted activities; • Reduction of permitted activities during summer; • Number of students increase contingent on compliance with the maximum number of trips; • Number of employees; • Delivery hours; • Maximum number of daily vehicle trips; • Trip monitoring; • Neighborhood coordination; • Transportation Demand Management implementation; • Penalties for noncompliance; and • A one -year review. Attachments 15, 16, and 17 contain the verbatim minutes of the public hearing including the Commission's full discussion. C. Anneals The applicant (hereafter referred to as Hillbrook) appealed the decision on the basis that: 1. The modified conditions are not supported by data or substantial evidence; 2. The modified conditions abridge Hillbrook School's vested rights; and 3. The traffic conditions do not have nexus to the project and its impacts. Patti Elliot and others (hereafter referred to as Elliot et al.) appealed the decision on the basis that the Planning Commission: 1. Failed to follow the Town Code, General Plan, and polices regarding substantial harm, impaired residential environment, and health, safety, and general welfare; 2. Failed to consider available data or require study of significant impacts; 3. Did not sufficiently evaluate alternatives; 4. Failed to consider the impact of existing uses; 5. Failed to consider impact on quality of life; and 6. Certified EIR based on insufficient, faulty, and inaccurate data. D. Analysis of Anneal Elements This section provides an overview of the main points of the appeals. The full appeals are contained in Attachments 11, 12, 18, and 19. Brief responses to the main points of the appeals are provided in italics below for Council's consideration. PAGES MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 1. Data to supuort modified conditions a. Hillbrook contends that the modified conditions are not supported by data or substantial evidence in the record (Attachment 11). The modified conditions were determined by the Planning Commission after its consideration of the totality of the evidence in the record associated with the application, including but not limited to the EIR, public testimony, written correspondence, staff reports, and other documents. b. Hillbrook contends that the Planning Commission erred because they did not approve averages for vehicle trip limitations (Attachment 18). The EIR contains a Traffic Impact Analysis (TIA) that evaluates averages to estimate traffic impacts. The Planning Commission is not bound by a single approach in determining CUP conditions to address traffic concerns associated with an increase in enrollment. c. Hillbrook contends that the Commission erred in its use of Traffic Infusion on Residential Environment (TIRE) Index to impose a vehicle trip maximum (Attachment 18). The TIRE Index is an additional traffic analysis to examine quality of life impacts associated with car trips. It is often used where, as here, traffic impacts from a proposed project are not severe enough to rise to the level of significant traffic effects for purposes of the California Environmental Quality Act (CEQA). The TIRE Index thus addresses potential "quality of life" concerns that may not qualify as "environmental" impacts. Because most traffic analyses rely on the impacts to signalized intersections, TIRE analysis can also be useful in circumstances where intersections close to the project are in neighborhoods with stop signs instead of signals. This information was provided to the Planning Commission and the public. Based on the Town's police power (rather than CEQA), the Planning Commission may use any substantial evidence in the record as the basis for imposing CUP conditions to address traffic concerns associated with an increase in enrollment. d. Hillbrook contends that the Commission set a bad precedent by imposing a maximum number of vehicle trips, which Hillbrook contends is a departure from Town policy (Attachment 18). The Planning Commission's approval does not set a precedent in that each application is reviewed on its own merits and the facts pertaining to that application. The Town does not have a policy requiring trip averaging or any specific approach when determining conditions of approval. The Planning Commission can approve conditions that address a public health, safety, and welfare based on the substantial evidence in the record. PAGE MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 2. Vested rights and modified conditions a. Hillbrook contends that the modified conditions abridge Hillbrook School's vested rights (Attachment 11). The modified conditions in the approved CUP do not affect Hillbrook School's vested rights to have 315 students. These rights are secure under CUP file number PRJ -99- 062. In order to clarify the vested rights of the Applicant, staff proposes that Condition of Approval 2 read as follows: EXPIRATION: The Master Plan approved May 7, 2001 (Resolution 2011 -048) is vested. The Conditional Use Permit modification will expire two years from the approval date pursuant to Section 29.20.320 of the Town Code, unless the approval has been vested. Pursuant to Town Code Section 29.20.335 an approval is vested when the activity approved is commenced in a substantial, as distinguished from tentative or token, manner. For this Conditional Use Permit, substantial shall mean any increase in student enrollment above 315. In addition, Town Code Section 29.20.195 specially states that "In approving a conditional use permit, time extension or modification thereto, the deciding body may include such conditions as are reasonable and necessary under the circumstances, to preserve the integrity and character of the zone and to secure the general purposes of this chapter and the general plan. " In addition, Town Code Section Sec. 29.20.305 states "Applications for modifications are determined by the body having jurisdiction to grant the original application. Applications for modifications are heard anew and the deciding body may impose new conditions or modify previous conditions. " With the clarification to Condition 2 mentioned above, the penalty condition (condition 22 of Attachment 10) and all other conditions in the approved CUP do not remove the school's ability to have 315 students. Rather, the condition penalizes Hillbrook School for exceeding vehicle trips if Hillbrook School wants to increase the number of students. In addition, Hillbrook could chose not to accept a CUP modification and to continue its operation under the existing CUP, which allows 315 students without penalties. If Hillbrook chooses to continue its operation under the existing CUP (PRJ -99 -062), the Town can initiate its own proceedings to modify Hillbrook's CUP pursuant to Town Code Sec. 29.20.310. b. Hillbrook contends that the Commission overstepped its legal bounds by imposing a maximum number of vehicle trips (without averaging) because the approval could result in penalties for trips when the school has only 315 students (Attachment 18). Hillbrook voluntarily offered to implement Traffic Demand Management ('TDM) measures to reduce the number of car trips to and from the school daily. The record indicates that not all TDM measures have been implemented to date with the current enrollment, and Hillbrook has represented that they expect full implementation to reduce trips even further (Appendix H of Attachment 2, Chapter 8.5 of Attachment 4, and Appendix M of Attachment 4). Therefore, with TDM implementation required by PAGE 7 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 CUP U -12 -002, there should not be penalties associated with 315 students. Hillbrook could chose not to accept a CUP modification and to continue its operation under the existing CUP, which allows 315 students without penalties. In addition, CUP U -12 -002 has provisions for determining baseline information on maximum numbers of trips prior to any enrollment increases. This provides an opportunity for Hillbrook to work with its parents and students on TDM implementation to reduce the probability of penalties as Hillbrook incrementally increases the number of students. 3. Nexus for traffic conditions a. Hillbrook contends traffic conditions do not have nexus to the project and its impacts (Attachment I1). Hillbrook contends that the penalties lack a nexus and proportionality between the project and its impacts (Attachment 18). The traffic conditions in the approved CUP directly address the traffic impacts associated with an increase in enrollment based on the record available to the Planning Commission. (Note: The EIR and TIAs found no and less than significant impacts) Similarly, the penalties are based on Hillbrook's original proposal for penalties (Exhibit 15 and 16 of Attachment 5). The Commission evaluated the penalties and approved penalties to discourage Hillbrook School from violating conditions of approval, namely the number of vehicle trips associated with an increase in enrollment. 4. Town Code, General Plan, and Policies a. Elliot et al. contend the Commission failed to follow the Town Code, General Plan, and policies regarding substantial harm, impaired residential environment, and health, safety, and general welfare (Attachment 12). Elliot et al. contend the approval is inconsistent with the General Plan (Section I of Attachment 19). The Planning Commission followed the Town Code, General Plan, and other relevant policies in its deliberation and action on the CUP. Although Elliot et al. might disagree with the Commission's interpretations of some of the relevant Code provisions and policies, the Commission's interpretations were reasonable and consistent with past interpretations by the Planning Commission and /or Town Council. The site is already developed and has adequate infrastructure as required by Town Code and the General Plan and as evidenced in the record, including the EIR. The Planning Commission placed conditions in the new CUP to minimize potential impacts to the surrounding residential neighborhood to address health, safety, and general welfare concerns associated with the proposed activities. Although formal mitigation measures were not required under CEQA because the EIR did not find a significant traffic impact, limitations were placed on the project to minimize the number of vehicle trips associated with an increase in enrollment. The Planning Commission made the finding that the project complies with the General Plan goals and policies, as outlined in the staff report (Attachment 5). Even in the absence of any legal compulsion under CEQA to mitigate significant environmental PAGE 8 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 impacts, the Commission had authority through the Town's police power to impose conditions that the Commission reasonably concluded were in furtherance of public health and safety and the general welfare of the community. b. Elliot et al. contend the approval is inconsistent with the Town Code Section 29.40.380 pertaining to the R -1 Zone to minimize traffic and parking congestion, and reduce hazards from encroachment of industry and commercial activity (Section I of Attachment 19). The subject property is zoned HR -1, not R -1. The Town Code allows the proposed school use through a Conditional Use Permit (Sections 29.40.240 and 29.20.185) to determine if the use is appropriate in the HR -1 zone. The Planning Commission identified conditions for the project to minimize potential traffic and parking congestion associated with the increase in enrollment and other activities. Through the evaluation of the proposal, including the EIR, no hazards from the educational use were identified. c. Elliot et al. contend the approval is inconsistent with the Town Code Section 29.20.200 because the Planning Commission failed to consider unapproved use modifications (Section II, Attachment 19). Town Code Section 29.20.200 requires approval of a CUP modification and the applicant obtained approval of a CUP modification. All aspects of Hillbrook School's operation were considered in the Planning Commission's action on the CUP as evidenced in the record, including both the EIR and the specific conditions for all activities associated with the school and its enrollment increase (see approved CUP in Attachment 10). With an approved CUP, all use modifications are approved once the new CUP is effectuated. In addition, in 2013, staff evaluated neighbor complaints against Town Code Section 29.20.200 and found after school activities were consistent with CUP in effect ale number PRJ -99 -062). On March 18, 2013 Town Council did not disagree with staffs evaluation that Hillbrook School had no active violations. The previous CUP, PRJ -99 -062, did not limit the number of staff. The referenced Town Code Section requires modification when peak hour trips increase. The Planning Commission granted the applicant a CUP modification after reviewing evidence in the record and the TIAs which includes evaluation of trip generation from teachers. CUP PRJ-99 -062 limited the use to a school with restrictions on peak period trips, nighttime and weekend activities, and number of students. The CUP did not restrict after school activities that are typical of private and public schools. The EIR prepared for the CUP modification evaluated whether the traffic generation would create a significant impact and determined that it would not. Traffic was greater in 2000 than traffic that would be created by the CUP U -12 -002. CUP PRJ-99 -062 does not limit the school to specific hours of operation and Elliot et al. acknowledge Hillbrook School conducted after school care and activities PAGE 9 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE /U -12- 002 /EIR -13 -001 JANUARY 8, 2015 (Attachment 19). The Planning Commission considered summer activities and approved a condition with summer program limitations (condition 3 of Attachment 10). Elliot et al. acknowledge summer activities occurred at Hillbrook School (Attachment 19). The Planning Commission considered summer activities and approved a condition with summer program limitations (condition 3 ofAttachment 10). The Town has requested enrollment lists and reviewed the enrollment provided to the state. The Town may request enrollment lists and access state data when concerns about enrollment are raised in the future. d. Elliot et al. contend the approval is inconsistent with Town Code Section 29.20.190: The proposed uses will not impair the integrity and character of the zone (Section III of Attachment 19). The residential neighborhood grew around the school and the residential development required the installation of Marchmont Drive. The EIR provided additional non -CEQA information to evaluate further potential traffic impacts on the residential environment. The Planning Commission approved conditions that seek to minimize impacts of the enrollment increase by including a daily limit of 880 vehicle trips, as requested by some of the people providing testimony to the Planning Commission. e. Elliot et al. contend the approval is inconsistent with Town Code Section 29.20.190 because the Planning Commission failed to consider noise impacts to residences on Long Meadow Drive (Section IV of Attachment 19). The school's operations have and will continue to make noise. The EIR evaluated potential noise impacts. The noise is anticipated to be a less than significant impact (Section 4.4 ofAttachment 2). The school could build a wall on the school's property and screen it with vegetation without the neighbors' consent, but in public testimony, Long Meadow Drive residents expressed that they did not want a wall. In addition, the Planning Commission placed conditions on the CUP modification, particularly regarding limited hours of operation for different activities, to address neighborhood compatibility issues (see conditions 3, 15, and 18 in Attachment 10). f. Elliot et al. contend the approval is inconsistent with Town Code Section 29.20.190: The proposed use of the property is essential or desirable to the public convenience or welfare (Section V of Attachment 19). Elliot et al. contend the project would worsen conditions of a "significantly impaired residential environment" and substantial traffic mitigation should be required (Section V of Attachment 19). The Planning Commission made findings that the use is essential and desirable to the public convenience or welfare. "Public" is not limited to Los Gatos residents or even the Town as a whole. The statement "significantly impaired residential environment" is used for the TIRE analysis, which was provided as additional information for deciding bodies, not as a requirement of CEQA. The Final EIR concluded that based on the TIRE index there would not be a noticeable increase (Section 8.2 ofAttachment 4). The Planning Commission placed conditions requiring PAGE 10 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U- 12- 002/EIR -13 -001 JANUARY 8, 2015 the applicant to show compliance with traffic mitigation prior to increasing enrollment and restricting enrollment increases to occur over a period three years. g. Elliot et al. contend the approval is inconsistent with Town Code Section 29.20.190: The proposed use would not be detrimental to public health, safety or general welfare (Section VII of Attachment 19). Safety considerations were addressed in the Traffic Impact Analyses (TIAs) and EIR, and were considered by the Planning Commission in their deliberations and actions as contained in the record of the proceedings. Similar to Hillbrook School, children and parents attending other schools such as Blossom Hill Elementary School walk and ride bicycles on neighborhood streets without sidewalks to such other schools. In these instances, pedestrians and bicyclists share the road with vehicles. While Elliot et al. suggest that access to Hillbrook via Ann Arbor Drive may create a safer route to school, the same factors exist on streets to Ann Arbor Drive of no sidewalks, no bike lanes, the need to share space with vehicles, and the possible driving in a manner to avoid glare from the sun. Elliot et al. also question whether the buses are acceptable on neighborhood streets; however, the Town does not limit access of school buses on neighborhood streets. h. Elliot et al. contend the approval is inconsistent with Town Code Section 29.20.185 because certain approved uses are not listed in the CUP table as allowed in the zone (Section IX of Attachment 19). The Planning Commission conditions in the CUP modification do not permit conferences but do permit education to Hillbrook School staff and parents. The CUP modification also contains conditions to limit ancillary after school activities and to allow Hillbrook to contract out educational services. 5. Available Data and Required Studies a. Elliot et al. contend the Commission failed to consider available data or require study of significant impacts (Attachment 12). Elliot et al. contend the approval was based on false or inaccurate data that was prejudicial to Elliot et al. (Section XII of Attachment 19). These contentions relate to concerns about Hillbrook School's violations of the previous CUP. The record acknowledges past violations and acknowledges that Hillbrook School has no active violations. For CEQA purposes, however, the EIR was required to compare the impacts of the proposed project against existing baseline conditions. The courts have required this approach even where existing conditions arguably reflect violations of existing or past entitlements. The courts have required this approach because CEQA is an impact assessment law and is not intended, and is not designed, to be used as a mechanism for ensuring enforcement of conditions imposed on previously granted permits or other entitlements. Zoning enforcement or permit enforcement proceedings, in which due process concerns are paramount, are the proper venues for assessing whether past violations have occurred and should be remedied. Here, the CEQA process for the applicant's CUP modification appropriately focused on an enrollment increase and modifications to PAGE 11 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE /U -12- 002 /EIR -13 -001 JANUARY 8, 2015 school activities. As discussed in Section E of the report to the Planning Commission, the Town has separate processes for the revocation or the removal of previously approved uses (Attachment 5). Town staff took extra measures during the CUP modification process to address concerns expressed by neighbors to Hillbrook School. Staff requested enrollment lists to assess compliance with the condition of the existing CUP regarding the maximum allowed number of students. Staff also provided information for the number of vehicle trips east of the hose placements, and determined that there are differences between Average Daily Trip (ADT) numbers and actual hose counts. These efforts demonstrate that the Town studied residential impacts beyond what was required by CEQA. 6. Alternatives a. Elliot et a]. contend the Commission did not properly evaluate alternatives (Attachment 12). Elliot et al. contend the Commission failed to consider and approve the Ann Arbor Drive access (Section VI of Attachment 19). As required by CEQA, the EIR included a reasonable range of alternatives. Nothing in CEQA required the inclusion of an Ann Arbor Access Alternative because such an alternative was not necessary to substantially lessen any significant environmental effects associated with the proposed project. Notably, moreover, such an alternative could have resulted in biological resource impacts that would not occur with the project itself (see Final EIR, pp. 8.5 -5 and 8.5 -133). The Planning Commission considered the whole of the record, including alternatives evaluated in the EIR and options proposed during public testimony. 7. Impacts of Existing Uses a. Elliot et al. contend the Commission failed to consider the impact of existing uses (Attachment 12). Elliot et al. contend the Commission failed to consider or require study of detrimental impacts to Elliot et al. (Section X of Attachment 19). Elliot et al. contend the existing residential environment is impaired by Hillbrook's operations and the Planning Commission failed to consider ways to alleviate that existing condition (Section X of Attachment 19). As noted in the response to item 5 above (Available Data and Required Studies) CEQA required that the EIR consider the effects of the proposed project against existing baseline conditions. This legally mandatory approach does not consider the effects of existing uses except insofar as they are reflected in baseline conditions. The record reflects consideration of the potential new traffic on the adjacent and surrounding streets, and the highways in the TIAs and EIR. The Planning Commission addressed concerns relative to the increase in enrollment and modification of school activities in the conditions of approval. It is not legal for the Town to impose conditions that do not have nexus to the CUP modification. PAGE 12 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE /U -12- 002 /EIR -13 -001 JANUARY 8, 2015 8. Ouality of Life a. Elliot et al. contend the Commission failed to consider impact on quality of life (Attachment 12). Elliot et al. contend the approved conditions fail to protect the character of the residential zone (Section XIII of Attachment 19). The Planning Commission identified and approved conditions associated with the increase in enrollment and modification of other school operations to protect the residential neighborhood. For example, these conditions require the Hillbrook week day work to end at 9:00 p.m., not 9:30 p.m. as Elliot et al. state. Other conditions address the maximum vehicle trips, limited summer hours, maximum number of students, and a TDM condition requiring all of the measures identified in the TDM to be implemented. The approved CUP also includes a monitoring condition as a means for enforcement as well as a Neighborhood Coordination condition to improve notification and communication with the neighborhood regarding events. 9. Environmental Impact Report a. Elliot et al. contend the Commission certified the EIR based on insufficient, faulty, and inaccurate data (Attachment 12). Elliot et al. contend the EIR was certified based on insufficient and inaccurate data that did not assess the impacts of the proposed project (Section XI of Attachment 19). The EIR was prepared in accordance with CEQA, and reflects input from a variety of trained experts in numerous fields of science and engineering, including experts on how to undertake traffic impact analyses for EIRs. The traffic analyses not only followed the Town's methodology for Traffic Impact Assessments (TIAs) but also included additional neighborhood level studies through the TIRE Index evaluation. The traffic studies evaluated the effectiveness of the TDM program. The EIR also considered access from Ann Arbor Drive. The record associated with the Final EIR addresses comments about the TIAs, emergency access, and other issues raised in public comments. Where commenters raised technical questions about the methodologies and data used, the Final EIR included detailed responses explaining why the methodologies and data were appropriate. E. Request to Waive Fees Elliot et al. are requesting a waiver of fees associated with the appeal (see page 2 of Attachment 12). Pursuant to the Town Code, the Town Council adopts fees to cover the costs of appeal proceedings. The fees paid by the appellants cover the time and materials to process an appeal that takes one hearing. The Town Code does not provide a process for a fee waiver request for appeals, only for administrative violations. To grant the request to waive fees, the Town Council could consider: a. Adopting a new fee schedule that exempts appellants of the Hillbrook School CUP modification application from paying appeal fees; or b. Using the General Fund to pay for Elliot et al.'s appeal fees; or c. Modifying the Town Code to include a process for a fee waiver request for select Town fees. PAGE 13 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE/U -12- 002 /EIR -13 -001 JANUARY 8, 2015 CONCLUSION: In consideration of the appeals, the Town Council is conducting a de novo hearing. As identified under the alternatives, the Council has full discretion to uphold or deny the appeal(s), and either deny the CUP modification or approve it with conditions. The Council may chose to alter conditions approved by the Planning Commission. if the Council approves the CUP, the Council may wish to clarify specific elements of the CUP modification with respect to enforcement, penalties, and when and how the CUP modification is effectuated. When reviewing a Conditional Use Permit (CUP), the deciding body should consider the information in the applicant's proposal; however, the key consideration should be the explicit proposed school use since operation of the school can change from owner to owner and the CUP runs with the land. ENVIRONMENTAL ASSESSMENT: An Environmental Impact Report (EIR) was prepared for this project (Attachments 2 and 4). The EIR addresses all of the topics identified in the CEQA Guidelines and no mitigation measures are required. As one of the appeals pertains to the EIR, this staff report explains that the EIR meets the legal requirements under the California Environmental Quality Act. Most of the Elliot et al.'s concerns relate to existing conditions as created by the existing CUP. As explained above, CEQA treats those conditions as part of the affected environment. FISCAL IMPACT: None. Attachments previously received 1. Public Comments received August 6, 2012, to November 21, 2012 (228 pages) 2. Draft Environmental Impact Report (previously received February 7, 2014) 3. Public Comments received November 22, 2012 to August 19, 2014 (305 pages) 4. Final Environmental Impact Report/Comments and Responses 5. September 24, 2014 Planning Commission Staff Report 6. September 24, 2014 Planning Commission Desk Item 7. September 30, 2014 Planning Commission Desk Item 8. October 6, 2014 Planning Commission Staff Report 9. October 6, 2014 Planning Commission Desk Item 10. Planning Commission approved CUP 11. Hillbrook Appeal 12. Elliot et al. Appeal (formerly identified as Neighbor Appeal) 13. Hillbrook consent to waive 56 -day Appeal hearing requirement 14. Elliot et al. consent to waive 56 -day Appeal hearing requirement (formerly identified as Neighbor consent to waive 56 -day Appeal hearing requirement) PAGE 14 MAYOR AND TOWN COUNCIL SUBJECT: 300 MARCHMONT DRIVE /U -12- 002 /EIR -13 -001 JANUARY 8, 2015 Attachments received with this report 15. September 24, 2014 Planning Commission Verbatim Minutes 16. September 30, 2014 Planning Commission Verbatim Minutes 17. October 6, 2014 Planning Commission Verbatim Minutes 18. Hillbrook Supplemental Appeal Information 19. Elliot et al. Supplemental Appeal Information 20. Peak period outbound trip counts completed after the Traffic Impact Analysis Addendum 21. Resolution to deny the appeals and uphold the Planning Commission's decision to approve the project (with Exhibit A) 22. Resolution to deny the appeals and modify the Planning Commission's decision to approve the project 23. Resolution to grant one or more aspects of the appeal(s) and approve the project with a modification(s) to the conditions of approval 24. Resolution to grant one or more aspects of the appeal(s) and deny the project 25. Public Comments received 11:01 a.m. October 6, 2014 to January 8, 2015 11:00 a.m. Distribution: cc: Mark Silver, 300 Marchmont Drive, Los Gatos, CA 95032 (on behalf of Hillbrook) Patti Elliot, 269 Marchmont Drive, Los Gatos, CA 95032 (on behalf of Elliot et al.) LRP:JS:ct