Alan Breed, a resident of Rock Ridge Association and general partner of Rockridge Partners LP, is the new contract purchaser for Carmel Academy’s 16-1/2 acre property at 270 Lake Ave, but the topic was expressly off limits for conversation on Tuesday night during Greenwich’s P&Z commission hearing on Chabad Lubavitch’s application to run a pre school and kindergarten on the property through the end of their lease on June 30, 2022.
Chabad already operates their pre school on the property, but they still need their application approved. The reason is they had received administrative approval from P&Z staff for 20-21 school year a year ago pursuant to an Executive Order from the Governor that allowed some exceptions to keep people socially distanced and outdoors as much as possible.
It was done with the understanding that it was temporary and any change to conditions for long-term use would go before the P&Z Commission.
That approval expired in September.
Existing conditions, which run with the land rather than with landlord or tenant, are for a school that operates grades 1-9.
Chabad’s lease expires on June 30, 2022, though Rabbi Yossi Deren said earlier this week that Chabad’s goal remained to establish a permanent home for Jewish education on the Lake Ave campus.
The pre-school program had previously been run at 75 Mason Street and 6 Lincoln Avenue, which are now for sale.
Mr. Breed’s attorney Richard Colbert said in a letter submitted to the Commission on Dec 21 that Chabad’s lease did not provide the tenant any option to renew or extend, and that no other agreement existed for the extension of the lease by Carmel Academy.
Until last week Chabad had been contract purchaser.
During Tuesday’s meeting, which had the unprecedented early start time of 4:00pm because of its lengthy agenda, P&Z commission chair Margarita Alban interrupted anyone who digressed from discussion of Chabad’s application for the pre school through June 2022.
Chabad’s attorney Tom Heagney said the most recent conditions offered by Chabad protected the school use of the property as well as the neighborhood from noise or traffic intrusion.
Their conditions included an enrollment reduction from 450 to 400 students, elimination of plans to include 9th grade, limiting the number of pre school and kindergarten students to 70. Rental of fields to outside sports entities and use of bullhorns would be prohibited.
He noted that while Carmel drew students primarily from outside town, 90% of Chabad’s students were town residents, resulting in fewer school buses.
“You’re able to control the traffic better, and you’re serving our community and providing a diversity of educational opportunities through this particular religious school,” he said, adding that consultant studies showed Chabad use would not impact traffic in the neighborhood.
“We also showed through the traffic study, which was backed up by BETA (P&Z’s traffic consultant), that there is no change in the level of service, particularly at the times where we have the most pick-up and drop-off on campus.”
On the other side, Rock Ridge Association, who oppose Chabad’s application, through their attorney Jackie Kaufman, proposed a draft of 27 modified conditions of approval.
Mr. Heagney said though the Rabbi and his wife Maryashie had not had the opportunity to review the conditions, he thought they could work with them.
Ms Alban warned time was running out because applications must close within a certain amount of time.
“This is a must close on Jan 6, 2022,” she said. “We had asked you to work with the neighbors because we knew you were running out of time.”
She said in addition to members of the Rock Ridge Association, Lake Avenue neighbors should also have a chance to respond.
The prospect of the commission closing the application that night began to dim.
Mr. Heagney said he said he thought it possible for Chabad and Rock Ridge to come to an agreement before time ran out, but if not, they would consider withdrawing the application and re-submitting.
Town Planner Katie DeLuca said the specifics of compliance with the list of conditions were still vague and difficult to enforce.
For example, she said parking for 45 cars was proposed and carpooling had been presented as a solution, but how that would work with faculty cars was confusing. She said P&Z would require more clear documentation of conditions.
Maryashie Deren said she hoped there could be a decision that night, but Ms Alban said she wasn’t sure the commission would be ready since to close meant no more input could be submitted from either side or the public.
Ms DeLuca explained that once the application was closed the commission had 65 days to make their decision.
That’s when the meeting began to derail.
The draft of 27 conditions was submitted on behalf of Rock Ridge Association at 7:15pm, well into the meeting that had started at 4:00pm.
Though many of the conditions weren’t new, it was daunting for the commissioners to comb through them during the meeting, that was already shaping up to be a long one.
“There isn’t a whole lot of time to absorb what is in here and pass judgement on it,” said commissioner Peter Lowe.
“I think this is going to be messy if we try to do an application on the go like this,” Alban said.
Ms DeLuca said she wanted explicit definitions of school bus versus van, school activity and chapel use.
“I don’t want to do this on the spot,” said commissioner Dennis Yeskey. “I don’t know who would send a letter at 7:16pm and expect us to have good faith efforts to cover it at this time.”
“This conversation is going in circles,” Yeskey added. “We can’t do this on the fly.”
Commissioner Arnold Welles said attorneys for both sides should work out an agreement and return to P&Z.
“Otherwise it’s a three-ring circus and we only need a two-ring circus,” he said.
“It seems we are waiting until the 11th hour with a gun to our heads and now are forced to pass judgement quickly,” Mr. Lowe said.
Over the course of many public hearings on the Chabad application, no one had testified on behalf of Carmel.
That was about to change.
Daniel Mann said he represented Carmel Academy and objected to the proposed conditions.
He said it was relevant that Chabad was no longer the contract purchaser.
“Carmel has been excluded from any of these most recent communications, including Chabad’s proposal of eliminating students, eliminating grades, restricting campus uses, and Carmel has not been given the opportunity to review all of these – and has not reviewed or approved anything that supports this application as it stands,” he said.
“All Carmel did support in the original application was the extended use of their Pre K and Kindergarten on a temporary basis,” he said. “Carmel does not support (the current application) from a landlord-owner perspective.”
Mr. Heagney said his client was authorized to make this application based on the authority granted to them by the Carmel School as they had received no notification otherwise.
Later, Mr. Mann said, “He is correct, we have not sent in a formal letter, but that is only because the board has not seen these brand new changes that are completely unrelated to Chabad’s operation of a Pre K and Kindergarten.”
Mr. Mann said Carmel Academy reserved the right to review the new conditions before a decision is made.
Ms Alban said all the commission needed to know was whether the authorization was still in place by the next time they hear the item, and that said Carmel would receive the final application materials no later than when the commission receives them, which is Dec 30, 2021.
During public comment, numerous Chabad parents testified that the warm, inviting community Chabad had created in Greenwich had lured them from New York, and said there were neither traffic or noise problems.
Some who testified along these themes were Steve Feldman, Michelle Volberg, Melanie Klement, Shira Schwartz, Yelena Maymi, and Oren Isacoff, who said, “This is an opportunity to make a difference in a community. It would be a massive loss and a massive failure to not get this done.”
Several said they had moved to town recently, in part, because they were attracted to Chabad.
That said, though the maximum enrollment is currently 450 students, there are currently just 184 – 75 from Chabad and 114 from the Japanese School. (The Japanese School plans to depart the campus in March 2022). There have also been comments about the traffic study being conducted during the pandemic.
Mr. Heagney submitted a letter earlier in the day to P&Z saying Chabad’s operation of its school constituted religious exercise that fell under RLUIPA, a federal law.
RLUIPA is short for Religious Land Use and Institutionalized Persons Act.
Several years ago RLUIPA was invoked for the application for Greenwich Reform Synagogue in a heavily trafficked, heavily pedestrian stretch of Orchard Street near Central Middle School and Cos Cob School. After three years of legal wrangling, that application was approved with a list of 23 conditions.
“…RLUIPA applies to any decision by the commission regarding the Chabad’s ability to operate its school on the property,” Heagney said in his letter.
Further he said, “Chabad’s operation of its school constitutes religious exercise within the meaning of RLUIPA, and failing to approve its application to operate that school would substantially burden that exercise.”
“The Chabad here does not have a readily available alternative, and an inability to operate will prevent it from fulfilling its religious mission to teach Orthodox Jewish students religious and secular subjects.”
Lastly, he said Chabad’s right to use the property as a religious school is even more secure under the Connecticut Religious Freedom Act.
At the end of public comment, the application was left open, and will tentatively be on the agenda for the Jan 4, 2022 P&Z meeting.