Editorial: 'Zero tolerance' for daycare's noise comes to Pleasanton


The Trump administration's zero-tolerance for anyone crossing the border illegally has also become policy for a Jewish religious center's use of its backyard for outdoor activities in Pleasanton.

In a 4-1 vote June 27, the city's Planning Commission affirmed an earlier regulation barring the Chabad of the Tri-Valley from holding outdoor daycare sessions on its landscaped backyard and limiting all other Chabad outdoor activities to no more than 15 a year.

The ruling came at the end of a 3-1/2-hour public hearing where Chabad's backyard neighbors Michael and Darlene Miller prevailed in their longtime protest over excessive noise from those using the building at 3370 Hopyard Road, which Chabad bought last year from Pleasanton Masons for $2.5 million.

"We have a petition with 25 neighbors' signatures (from Valley Trails) asking that no outside activities should be allowed at the Chabad," Darlene Miller told planners. "Remember, noise does not distinguish the Masons from the Chabad. Noise is noise. It's detrimental."

Not only did the commission rule that Chabad must move daycare activities to a smaller patio area on the west side of its building, but it also continued a conditional use requirement imposed when the Masons occupied the building that windows facing north toward the Millers' property on Bryce Canyon Court must be kept closed at all times and the one door leading out to that backyard can be used only in emergencies. At one time, the Masons had French doors there for use during their backyard parties.

The Planning Commission's zero tolerance for outdoor noise from a religious institution in Pleasanton is unprecedented. It could affect how other daycare centers operate here or even the tolerance in the future for outdoor services and social events by churches and synagogues.

Even Ellen Clark of the city's planning staff acknowledged that Chabad's is the only religious-affiliated daycare center regulated on its outdoor uses of its property. Her survey of daycares operated by Trinity Lutheran, Valley Community, St. Mary & St. John Coptic Orthodox, Harvest Valley and Ridgeview Hope churches and Beth Emek Synagogue showed no restrictions. Yet planners ruled Chabad can allow its children outside on the side yard only between 10:30 a.m. to noon and from 3-4 p.m., and then only 25 of its 48 enrollees at a time.

St. Clare's Episcopal Church, which shares a parking lot with Chabad, has no outdoor activity restrictions either for its daycare/preschool or church functions.

Commissioners mulled for an agonizing hour while 150 people waited in the City Council chamber for their decision, which only Commissioner Greg O'Connor opposed. Forty of them spoke at the hearing, with most urging planners to cancel all of the Masonic Lodge-era restrictions that now affect Chabad.

"I'm concerned that these rules will apply to other religions (in Pleasanton) and affect outdoor activities for children," said one speaker. "I'm concerned about Christians not being able to practice their religion," said another. "The Millers talk about wild screaming, but they may have been speaking about another playground somewhere else. It was not the Chabad playground because children there are very well behaved," said another.

"Chabad is not prepared to relinquish one-third of its property with no uses allowed at all," said Chabad's attorney James G. Schwartz. "No other houses of worship (in Pleasanton) have such draconian measures."

It's likely that Chabad or the Millers will appeal the Planning Commission's decision to the City Council, as happened once before. If so, let's hope the council will scuttle this unwarranted zero tolerance for noise that bars a Pleasanton religious institution from rightfully using its property for outdoor children's and occasional religious activities.

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63 people like this
Posted by Johnny
a resident of Parkside
on Jul 6, 2018 at 7:47 am

I have "zero tolerance" for pulling random stuff out of nowhere just to mention the Trumps name.

12 people like this
Posted by Bill T
a resident of Alisal Elementary School
on Jul 6, 2018 at 10:42 am

So does this mean that Alisal Elementary can't use the big yard at the back of the school for play? I mean there are homes right across the street. My fear is that this ruling is going to cost the city a lot!!!

38 people like this
Posted by Thomas Gaffey
a resident of Valley Trails
on Jul 6, 2018 at 11:05 am

I too live behind the Chabad and have no concept of what she is talking about, my wife and I have lived on the court for well over 30 years, much longer than the Millers, let alone Darlene, and never had any problem with the Masons in that whole time. We were friends with the former owners and they never complained, we knew the former and current owners on both sides of the Millers and have heard no complaints. When Pleasanton EFC (Ridgeview Hope) was trying to sell our property Darlene was one of the most vocal against it while living a mile away. Also I don't know who the 25 signatures were, it certainly wasn't us, nor were we asked and in a community of over 500 homes, 25 seems insignificant. If I was Chabad I would be seeking redress under the 1st and 4th Amendments as well as legal fees.

24 people like this
Posted by Grumpy
a resident of Vineyard Avenue
on Jul 6, 2018 at 4:43 pm

Grumpy is a registered user.

I completely agree with the editorial...but I admit I too couldn’t follow the connection from the border. I get that the point is that inappropriate “zero” tolerance for reasonable behavior has come to Pleasanton, and I also agree with the commenters that this should and possibly will end in court with an outcome that Pleasanton won’t like. I just think that PW might want to rework the opening paragraph a bit more to make the connection clearer that you think that the city is being unreasonable and that, in your editorial opinion, has something to do with the political climate.

51 people like this
Posted by PleasantonTaxpayer
a resident of Highland Oaks
on Jul 6, 2018 at 4:51 pm

PleasantonTaxpayer is a registered user.

Unnecessary injection of national politics into this story by the PW editorial board.

34 people like this
Posted by Jake Waters
a resident of Birdland
on Jul 6, 2018 at 7:44 pm

Jake Waters is a registered user.

I also agree that the editorial board shows its liberal face by having to take a swipe at the the President and the policies at the border. Stick to the subject you wish to write about. Secondly, Pleasanton stepped in it by placing a number of restrictions on this property. Is this a reaction of some feelings of antisemitism housed in the council? Would you place these strictions on a Mosque?

20 people like this
Posted by Doug
a resident of Birdland
on Jul 6, 2018 at 10:33 pm

Did someone just go ‘Full Loco’ and play the anti-Semitism card concerning a building which has long been the focus of noise and outdoor activities complaints?

19 people like this
Posted by Grumpy
a resident of Vineyard Avenue
on Jul 7, 2018 at 9:18 am

Grumpy is a registered user.

Doug, I get your point but I’d say the answer is no, not yet.

The problem is that the prior bad behavior of the previous *tenant* is being used to justify restrictions on the *building*. And the planning commission has made a grievous error by not limiting their rules to deficiencies of the building itself or unusual bad behavior of the tenant but by trying to preserve the prejudicial restrictions from a previous tenant on a new group.

That may not be de jure antisemitism. But it is de facto discrimination, because a comparison with their equally situated Christian neighbor shows that the planning commision’s rules, in fact and by their operation, single out the current tenants for punishment having nothing to do with their building nor their behavior. So it won’t likely stand in court, and the city attorney ought to be better advising the various arms of the city to drop the restrictions and avoid costly attention. Whether they are giving this advice we won’t know, but I appreciate PW’s work on this and would like to read a follow up.

10 people like this
Posted by no name chosen
a resident of Downtown
on Jul 7, 2018 at 9:29 am

no name chosen is a registered user.

@Grumpy--perhaps the planners rightfully took into account all of the comments and police reports about the Resnick's at their previous home. They clearly violated the law with their non-permitted day care and they created excessive noise that was commented on by many, many former neighbors on a previous thread. These restrictions seem to be not so much for the property but they are being placed on a group of people who have already, many times, shown their complete disregard for the quality of life of their neighbors. If all restrictions were removed they would create a public and private nuisance for everyone in the neighborhood. Not conjecture -- fact. They did it before and will do it again. Their unwillingness to comply with the law before might be the cause of the planners keeping these limits in place to legislate compliance. I also remember reading that they were doing construction on the building before getting permits and they planned to open the day care without sprinklers. All of that violates the law if true. And absolutely NONE of this has ANYTHING to do with their religion!

4 people like this
Posted by Doug
a resident of Birdland
on Jul 7, 2018 at 9:48 am

@Grumpy “That may not be de jure antisemitism. But....”

Shame on you for playing into Jake Waters’ false cry of anti-Semitism as well as his not-so-thinly-veiled Islamophobia.

5 people like this
Posted by Grumpy
a resident of Vineyard Avenue
on Jul 7, 2018 at 10:28 am

Grumpy is a registered user.

Doug, what in the world are you talking about? I haven’t played into anything. I’m commenting on what a likely third party observer (say a judge) will see. I don’t know who Jake is, don’t even know if he exists, and don’t care to try to guess what his motives are.

No name chosen, what you’re saying does not match the record as reported to us. The evidence that we have is that the restrictions were placed on the Masons, who did seem to go overboard on at least one party and may have even earned the restrictions given to their own use of the property. But for the commission to preserve the restrictions upon a change of use and tenant makes no sense and is clearly discriminatory. I don’t care if the commission hates the current tenants or just feels that they don’t want to fight the aggressive neighbor. It makes no difference what they feel, only what they do.

Whether the current tenants jumped the gun in permitting is an issue for them and the building department, and has no bearing on whether they should be restricted from the same identical enjoyment of their land as their next door neighbor.

The good news is that we don’t need to go through these convoluted analyses that you’re suggesting. All that matters is whether they are being restricted from identical uses that others are allowed. If so, then there are First and Fourteenth amendment issues here that require a compelling state interest that has not and will not be met with the current tenants. (They may have been met by the previous tenants, since the behavior of a group can justify restrictions placed on them, but can not run with the land.) This is on top of abuse of discretion.

You can’t make decisions against a current group based on the behavior of a previous group when all neighboring groups with identical circumstances are not required to follow the same restriction.

12 people like this
Posted by ???
a resident of Another Pleasanton neighborhood
on Jul 7, 2018 at 12:52 pm

I don't understand the headline of this editorial. The Chabad is allowed to have a day care with a play area, just not located in the exact location desired. So to say zero tolerance for noise isn't really the case here. (Had they ruled no day care, that would be a different situation.) It seems to me that we're splitting hairs here. If St. Clare's day care is 86 feet from the nearest neighbor and the Planning Commission put the Chabad at 92 feet away; not really a lot of difference in my opinion. Said a different way, if the Chabad playground was located 86 feet from the nearest neighbor would the Chabad accept that?

Grumpy and others, conditional use permits run with the land NOT the user. In this case, the conditional use permit dated back to the 70's, and restricted use of the backyard but interesting, it did contemplate the backyard of the building being turned into a parking lot. Don't you think the city attorney is monitoring this action and if he had any concerns would be stepping in to make sure laws were not violated?

There have been other issues when religious organizations wanted to do something on their property. St. Augustine wanted to build some affordable housing on their property and gave up after the neighborhood protested. Elizabeth Seton wanted to build a gym, neighbors protested and some changes were made.

The only point of my post is to make sure comments are being made based on facts. This sounds like a land use decision--the user of the "land" shouldn't matter.

2 people like this
Posted by Grumpy
a resident of Vineyard Avenue
on Jul 7, 2018 at 1:03 pm

Grumpy is a registered user.

To ???, conditional use permits run with the land but are based on allowing an extraordinary use of the land. If all equivalent landholders are entitled to use their land one way, but one isn’t, and the reason isn’t based on the unique circumstances of the land but only on the bad prior behavior of the tenant, then the city has a problem that may be difficult for them to solve.

The planning commission erred here, as their decision was capricious and arbitrary *in light* of the present tenant. Do I think the city attorney is looking at this? Probably. And they probably will say that this is a risky move. But it’s up to the city council to decide whether to take the risk. The planning commission made an error based on a faulty understanding of their duty. The city may chose to defend them just to preserve the ability to defend other actions, or it may chose to overrule the commission this one time and then go back to business as usual. I expect the second will occur, and without much fuss.

That doesn’t mean though that PW and we shouldn’t speak out about the wrong decision now.

9 people like this
Posted by Lou Stuhle
a resident of Jensen Tract
on Jul 7, 2018 at 9:04 pm

Lou Stuhle is a registered user.

i fully support the planning commission's decision. you can't wipe the slate clean and pretend that resnick's prior behavior never happened. leave the CUP as is, see if he can play nice with his neighbors and if he can, let's revisit it in a year or two.

15 people like this
Posted by Pleasanton Parent
a resident of Pleasanton Meadows
on Jul 8, 2018 at 12:21 am

Pleasanton Parent is a registered user.

From a planning/zoning/regulatory limitations position I'd expect st Claire's and Chabad to get equivalent status. Now I think poor behavior could change that but they should start out the same.

Sorry, but further commenting on this topic has been closed.

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