Lake Ave Neighbors to Chabad: Follow the Rules

The Chabad Lubavitch went before the P&Z commission Tuesday proposing to use the former Carmel Academy, a private Jewish day school which has largely ceased operation, to include pre-school and kindergarten children. The property is located at 270 Lake Avenue.

Currently Chabad is a tenant and contract purchaser from Carmel Academy.

Existing approvals for Carmel Academy run with the property. One condition is to limit the educational use to grades 1 through 9. Another is a limit on the number of students and staff who can arrive by car and by bus.

The conditions date back to the 1980s and 90s.

Attorney Tom Heagney representing Chabad, said Chabad previously operated their preschool at 75 Mason and 6 Lincoln Ave, which are adjacent, with a staggered drop off and pick up. Recently those two buildings were put up for sale.

Heagney said the Lake Ave campus offered much more parking than the 24 spaces at 75 Mason and 6 Lincoln Ave.

Chabad has already been operating their preschool at the Lake Ave site with 60 preschool students without approvals from P&Z.

Now they seek to enroll 70 preschool and kindergarten students, and allow for them to be driven by car rather than bus.

Heagney said Chabad submitted a traffic report indicating the change would not cause traffic issues.

Also at 270 Lake Ave is the Japanese School, which enrolls 114 students. Their lease expires in March 2022 and they have plans to relocate.

P&Z chair Margarita Alban said that with the Japanese School currently in operation, the number of cars on the campus exceeds the conditions.

“You have actually not asked for that to be revised,” she said to Mr. Heagney.

“That’s a valid point, and one I would ask that we could amend to allow for additional cars,” Heagney said.

Also, Alban said Chabad’s hours of operation were exceeding those approved.

Heagney replied that the Chabad’s hours would be modified to stay within the existing conditions.

“You are aware that there have been complaints about exceeding those hours?” Alban asked.

Heagney said he would speak to his clients about abiding by the conditions on hours of operation.

Ms Alban noted a petition against the application had been filed.

Jacqueline Kaufman of Carmody Law said she had been hired by the Rock Ridge Association, who oppose the application. She said their concerns included a lack of master plan, supplemental traffic impact information, impact on property values and details on violations.

She said the applicant offered to mitigate traffic with carpools and ride sharing, but that those plans were not refined to the point they could be enforceable.

Further, she said the applicant had not reached out to the Rock Ridge Association, of which Carmel was a member, and, per deed restriction are required to receive approval for changes of use.

“Especially if Carmel is planning to sell to Chabad,” she said.

She said the association, incorporated over 100 years ago, was situated at the base of the Lake Ave circle and comprised of 36 residential properties, plus two school campuses – the Eagle Hill School and the subject property, currently owned by Carmel.

Kaufman said the school use in Rock Ridge dated back to the early 1900s, and the residential and school uses had existed harmoniously until recently.

She said the proposed changes weren’t simply a change in the ages of the students or hours of operation, but rather an expansion of uses that change the intensity of activity in the neighborhood.

“It’s somewhat misleading that the daycare use is for 4 children, so it doesn’t seem to be an intense use, but it very much is,” Kaufman said. “This use has been instituted here on the campus in violation of both conditions and the regulations.”

Kaufman described the applicant’s materials, including narrative and traffic report, as “fairly thin” and said the application was deficient in several ways.

She said there were uses in addition to those proposed that were not part of the application.

“Those are akin to an institutional facility in the RA-2 zone, not just educational uses. Those could cause adverse, unavoidable impacts when the use changes so dramatically from what it’s been over the last 30 years, and even the 70 years before that.”

“This small sliver of an application before you represents ‘institutional creep’ of uses that have not ever existed on this property and have not been fully contemplated,” Kaufman said.

“It’s not a fully cooked solution,” she continued, adding, “The proposed increases the number of faculty vehicles, which is important because the daycare size may increase over time. The child-teacher ratio for a daycare facility is greater than for a traditional school. And there may be additional faculty vehicles on site. Also, faculty typically come to daycare in shifts. There may be, at some point, overlapping vehicles for shifts.”

Further, Kaufman said a point of interest concerning traffic was the idea of staggering drop off and pick up in the morning and afternoon.

“If anyone has had a toddler, you know your mornings are unpredictable,” she added. “I don’t think a staggered drop off plan is the solution to all traffic woes in the morning for daycare users.”

Kaufman said neighbors had sent multiple emails in the past six months concerning noise, intensification of activity, of traffic and unpermitted uses, above and beyond existing unpermitted educational uses, and that they had not been addressed.

“That makes it very difficult for a neighbor to reasonably rely on the protections of any type of approval, conditions or regulations themselves,” she added.

She went on to talk about noise ordinance violations, saying there had been a loud party in February, and the disturbance had been recorded by an abutting property owner. “It actually sounds like club music,” she said.

She asked the commission to suspend the daycare use until the commission could properly vet the proposal.

“Please don’t rush to make a decision simply to protect an illegal, nonconforming use right now,” Kaufman said.

Ms Alban said Chabad had an application to correct site plan violations. She asked if the Sept 30 deadline stood, or if the daycare could continue while the issues were addressed. (The permit Chabad was given for the daycare expired on Sept 30).

“It’s been a longstanding policy of the commission and the town law dept that if an application is pending and an applicant is attempting to resolve the issues that brought about any type of claim for a violation, that as long as an attempt is being made, such as, or through litigation, that can continue,” Heagney said. “In the 40 years I’ve been doing this, that’s been the practice.”

Alban said having seen the complaints submitted, the commission would be looking for a commitment to address all the issues raised.

Heagney said there was no master plan, but that if the applicant wanted to have additional uses, they would come to the commission.

The commission asked the applicant to return with a full list of activities taking place on the property, whether they are managed by Chabad or by Carmel Academy.

Commissioner Peter Lowe said even if there was no formal master plan, Chabad should share their thinking with neighbors.

Mr. Heagney said he’d met with Peter Nolin, a senior partner at Carmody Law, as well as representatives from Carmel and Chabad.

“I thought there was opportunity to have further dialogue. I expressed that to Peter Noland and was told there was no reason to have that because the Rock Ridge Association was going to pursue their claim that they have a right of first refusal through an old deed and through their past practices, and therefore there was no need to have any dialogue because there was no opportunity for Chabad to become an owner,” Heagney said.

“My approach I take with these matters is when there is an opportunity to have a dialogue, you have a dialogue,” Heagney added.

During public comment, John Cooper said he and his wife had lived on the back side of the property for 40 years and witnessed the transition from one school to another on three different occasions.

“One thing that has not happened is a maverick who seems to have an attitude that I’ll do what I want, and sue me. That’s the unfortunate thing,” Cooper said.

“There are existing violations that somehow never get processed,” he added. “If there is not daycare (use) allowed on the property, how is there daycare on the property?”

Jackie Balduck from Rock Ridge, said, “Until the Chabad started to occupy the campus, we really had not had any issues…They advertised on their website, ‘Have your bar mitzvah or bat mitzvah here. They posted religious services even though they’ve been told that’s not a permitted use.”

“They say they want to be good neighbors and yet they have threatened to sue every member of the association individually and put a lis pendens on every person’s property because we’re seeking to enforce specific deed restrictions,” she added. “Right now they continue to do a lot of things they know they shouldn’t be doing: the amplified music, the speaker phones – everything.”

Richard Potocki, President of the Rock Ridge Association, said it was explicit in town regulations that educational uses in the zone were permitted by special permit review only, and that had not been done.

“In any of our dealings with Chabad to date, all that Rock Ridge has asked is that they follow the rules,” Potocki said, adding that a petition circulated among Rock Ridge Association, Deer Park, Zaccheus Mead, the Field Club and lower Lake Ave had resulted in 170+ signatures submitted into the record.

John Dalton, current president of the board of governors for the Field Club, located next door, mentioned Chabad’s summer camp.

“It was very loud. We filed three or four formal complaints as to how loud it was,” Dalton said.

He said the club was also concerned about traffic. “This traffic could even back up to the circle by the hospital.”

Commissioner Dennis Yeskey said there seemed to be some basic zoning issues at play. Addressing Mr. Heagney he said, “I’ve got a feeling there wasn’t acceptance that there was an issue. I’m a little confused about that.”

Heagney said Chabad’s summer camp had been before the ZBA for a temporary and then permanent for an above-ground pool, and the number of people participating in it. He said he’d like to have the rabbi and his wife address the noise issues in person, but they were unavailable to attend on Tuesday.

He said the campus had been leased out by Carmel Academy for sports on weekends and other groups had been using the campus.

“If Chabad is able to become the owner, those would cease, but they don’t have control over the campus right now. They’re limited to what they can do with their lease from Carmel,” Heagney said.

“I feel like we’re in two different meetings,” Ms Alban said.

Commissioner Nick Macri asked Mr. Heagney to provide a list what activities were taking place and who was sponsoring them.

“One of the most important things is, moving forward, whatever goes forth with this, it’s creating harmony within the neighborhood,” Alban said.

She said the commission wanted the applicant to meet with neighbors and return as soon as possible with information on parking, traffic, noise violations, etc.

“It’s a real concern that there’s not a master plan,” said P&Z commissioner Arnold Welles.

Ms Alban said she’d spoken to Rabbi Deren.

“I said to him, whatever you do, you have to respect the town zoning regulations and the neighbors, and he said, ‘That’s what I’m going to do.'”

“I don’t want to put the parents with kids in daycare in a bad situation by suddenly closing their daycare, so while you’re before us to address these issues, we could let it remain open, but I don’t want this to drag on,” Alban said.

“If they fail to satisfy our request regarding this application, we may deny the application,” she added.

Ms Alban said that if Chabad sought to locate a worship facility on Lake Ave, the federal RLUIPA law of 2000 would apply.

RLUIPA stands for The Religious Land Use and Institutionalized Persons Act.

“Though the present approval does not allow it, that doesn’t mean they could not propose it in the future,” Alban said.

The application was left open.