By Ray Klein
Special to Brentwood News
25,000 square feet less than originally proposed plus a handful of other reductions.
Many folks have the impression that because Archer School for Girls received a permit from the City, Archer “won” and the community “lost.” That is not c orrect. Archer is an example of a win-win when people act reasonably and responsibly.
It is true that Archer received a permit to increase the physical facilities and usage of its campus. However, after some community organizations objected to the size and scope of Archer’s original request, Archer cut back their plans. Also, the permit granted by the City includes many restrictions under which Archer must operate.
More importantly, Archer entered into an agreement with the Brentwood Homeowners Association (“BHA”). “The Archer School for Girls Covenants, Conditions and Restrictions” referred to in this article as the “Covenant” is privately enforceable by the BHA and does not rely on the City for enforcement. If Archer defaults, the BHA, on behalf of its homeowners, may seek damages for certain violations, and may seek a Court order requiring performance of Archer’s promises for other defaults. The BHA has been in existence since 1946, and has a long history of enforcing a school covenant. Archer is required to submit compliance reports, and to hire independent traffic engineers to do traffic counts and surveys to demonstrate compliance and to report violations.
During the permit application process, it became clear that the City intended to grant Archer a Conditional Use Permit. And it is general knowledge that the City is notorious for not following up on City imposed conditions and for its lack of enforcement of conditions in its permits granted to institutions and developers. Faced with these circumstances, BHA hired a top land use lawyer and entered into intensive negotiations with Archer. BHA’s lengthy and detailed Covenant affords a much more effective means of policing compliance. The Covenant incorporates many of the conditions contained in the City permit, but also includes additional restrictions not imposed by the City with significant financial damages for violation of these conditions. These additional conditions and financial damages are terms to which only private parties could agree, not the City. Any payments of financial damages will go into a Community Fund to deal with visual, noise, and traffic impacts.
One of the most important protections BHA obtained in the Covenant is that Archer may not, for the 20-year term of the Covenant, apply to the City for further construction or an increase of use of the Archer campus. The conditions will remain unchanged and enforceable for 20 years, something a City permit alone could not do, and something previously not in place. We will be comfortable for a long time, and Archer will be able to continue to provide an excellent education for its students in an updated facility.
The following is a list of some of the most important restrictions in the Covenant, and the damages payable for violations:
1. Three year construction period – for each week of construction beyond three years and a one month grace period, Archer will pay $30,000/week for week 5 through 8, $50,000/week for week 9 through 12, $75,000/week for week 13 and every week thereafter
2. Maximum enrollment of 518 – Archer will pay 50% of the annual tuition for each student over 518.
3. Vehicle trip caps of 44 guest vehicles arriving Monday-Friday, 3-4 pm, zero guest vehicles 4-6 pm, 126 guest vehicles 6-7 pm (maximum of 3,145/academic year), 44 guest vehicles departing 5-6 pm – Archer will pay $500/vehicle in excess of caps.
4. Average vehicle ridership and required busing – minimum three persons per vehicle, and busing of a minimum of 76 percent of enrolled students on a daily basis – $500/trip for violations.
5. Limit of 185 vehicles in underground parking garage – Monday – Friday, 3-6 pm – $1,000/day for each day in violation.
Some additional restrictions include:
1. Summer school – limited to six weeks for no more than 125 Archer students who need additional assistance to meet academic standards, and all of who must arrive and depart on buses.
2. Saturday and Sunday limits on use of the campus.
3. No multi-school athletic tournaments to be held on campus.
4. Athletic competitions limited to 98 days/academic year, and 40 days on the outdoor field.
5. Limit of 65 Special Events per year with additional limits on the size, hours and days for Special Events.
6. Electronic reservation ticketing system for guests to facilitate compliance with parking and trip caps.
7. Independent traffic counts and reporting paid for by Archer.
8. Limits on amount of seating on the outdoor athletic field.
The covenant is only good if it is enforced. Are we really supposed to believe the Brentwood Homeowners Assn. has the guts, the money and the time to police Archer to make sure it obeys the covenant rules? I hope it does. But I wouldn’t bet the farm on it. I also don’t believe there’s anything that prevents the BHA board from amending the covenant (with Archer’s consent) to lift the 20 year cap on Archer seeking further expansions (or any other provisions Archer finds obnoxious to its agenda). It would be child’s play for Archer to back a field of BHA board member candidates who would do its bidding and agree to selling out the community. The fact that Archer “captured” the Resident Neighbors of Archer and turned it into a virtual Archer appendage demonstrates that the school knows how to play realpolitik. Against such Machiavellian wit we have the BHA as our protector? Give me a break.