In an abrupt change of tone, Castilleja School argued in a letter this week that Palo Alto's proposals to reduce the size of the school's proposed underground garage is illegal and that the city's process for reviewing its redevelopment application violates the U.S. Constitution.

The letter, authored on behalf of Castilleja by attorney David Lanferman, was submitted just over a week before the Planning and Transportation Commission is scheduled to hold its public hearing on the contentious campus redevelopment plan, which calls for replacing three existing buildings and constructing an underground garage.

The proposal has already undergone numerous revisions, with Castilleja reducing the size of the garage twice in response to neighborhood concerns and the City Council's direction. Despite this revision and many others, the proposal remains mired in the city's planning process. After both the Planning and Transportation Commission and the Architectural Review Board voted in 2020 to support the plan following nine public hearings, the council in March kicked the project back to these panels for further reviews. The council also demanded that the garage be reduced in size so that it would contain no more than 57 spaces, which is half of the spaces that Castilleja is required to provide.

In the new letter, Lanferman maintains that the council's move to scale back the garage in Castilleja's application runs counter to the city's zoning code, its Comprehensive Plan and the city's precedent. He also took issue with the suggestions from council members and project opponents that underground garages are illegal in low-density residential areas and that, if approved, they should be counted toward the project's overall square footage.

Neither of these restrictions, Lanferman noted, applied to Congregation Kol Emeth, a congregation that was allowed to rebuild its synagogue in an R-1 zone and construct a 109-space underground parking facility, which did not count toward the project's square footage. In the case of Castilleja, meanwhile, the city is exploring requiring the school to obtain a "text amendment" from the city before it could win approval for the garage.

Lanferman calls the proposal for a text amendment, which the planning commission is set to discuss, as "arbitrary," "irrational" and "unnecessary." Requiring it, he argued, would "deprive Castilleja of its constitutionally protected rights to equal protection." The letter cites the 14th Amendment, which prohibits states to deny a person in its jurisdiction the "equal protection of the law."

"Here, the City is proposing to treat Castilleja differently from how it is has treated other similarly situated developments," the letter states. "The larger Congregation Kol Emeth underground parking facility was not counted as gross floor area. Requiring the text amendment as a precondition for approval of the Castilleja Project when none was needed for Congregation Kol Emeth raises obvious concerns of disparate treatment."

The letter represents a toughening stance from the school, which has spent more than five years trying to get its redevelopment plan across the finish line. Lanferman, an attorney at the firm Rutan & Tucker LLC, has a long history of litigation against the city. He represented AJ Capital in its proposal to convert the President Hotel from an apartment building to a boutique hotel, a deeply unpopular project that only received city approval after threats of litigation. Lanferman represented the developer of Edgewood Plaza after it was fined by the city for failing to attract a grocery store as required by the "planned community" zone that facilitated the plaza's renovation. He also had represented John and Forrest Mozart, who had challenged the city's "inclusionary housing" law, which requires housing developers to either designate a portion of their projects to below-market-rate units or to pay an in-lieu fee. And three years ago, he represented Michal Alcheck, who recently concluded his 10-year term on the planning commission, as Alcheck was trying to obtain building permits for two garages.

Lanferman also is currently representing developer Charles "Chop" Keenan, who has argued that the city has failed to follow the law in its refusal to use the parking fees it collects from developers to build new garages in the downtown area.

In the case of Castilleja, Lanferman is arguing that the city's actions toward the school violate not only the law but also the city's own policies. The Comprehensive Plan, he notes, strongly encourages underground garages in lieu of surface parking lots. Thus, he wrote, the proposed text amendment "appears vulnerable to challenge as an arbitrary and irrational action (without consideration of appropriate land use planning principles."

The letter does not explicitly threaten litigation but requests the planning commission to "provide clear direction with minimal further requests of Staff and Castilleja so that Project review can proceed in accordance with the PTC's prior positive recommendation for approval."

The commission plans to hold its next hearing on the Castilleja proposal on Wednesday, Jan. 19, at which time it will consider the school's parking plans and a conditional use permit that would allow the school to expand its student population. While Castilleja is hoping to gradually increase enrollment from the current level of 422 to 540, opponents of the project as well as some council members and commissioners have said at prior hearings that they would favor a more modest student increase.

During recent meetings on the project, the reaction to the proposal has been mixed. A group of neighbors, including those affiliated with the group Preserve Neighborhood Quality of Life Now, has persistently called for the school to scale back its plans and eliminate the garage. Many others, however, have argued that the planning process has gone on for far too long and that the school's proposal merits support.

Lesley King, who owns a home about a block away from the school, told the commission at the Dec. 8 hearing that it's "well past time to find a middle path that serves all parties."

"At this point, though, I'm troubled that even though the Architectural Review Board and, you, the Planning and Transportation Commission have acknowledged that this is a project that should be approved, the staff report and the guidance from council do not heed that advice and instead have raised some seemingly arbitrary numbers and incomplete data to stall progress," King said.

But Rob Levitsky, who also lives next to Castilleja and who strongly opposes its redevelopment, argued at that hearing that a large underground garage does not belong in a single-family neighborhood.

"If Castilleja really wants 500 to 600 students, it's time to move or open another campus like so many others do," Levitsky said.