A petition OPPOSING the Administrative Conditional Use application to extend the overall height of the playground enclosure at the Bertschi School

Background

In 1994 the Bertschi School submitted a project application (No. 9400127) to the City seeking approval to expand one of its two existing playgrounds - in this case the playground on the NE corner of 10th Avenue East and East Lynn Street. Rationale submitted by the school: the "area [was] very much needed to implement the school outdoor activities." The plan called for the existing 2,600 square foot "play area" to morph into a much larger 3,800 square foot "play court" - a 30% increase. The additional space would be achieved by building a retaining wall on or very near the property line along the north end of the property (facing East Lynn Street) and then backfilling the area to bring it to grade. Given the topography of the property the retaining wall would be slightly above existing grade at the NE corner of the property but at the NW corner would, according the City's approved permit, be 6-feet 8-inches in height [Note: the actual height is 8-feet 3-inches - a unexplained deviation of nearly 25%]. On top of the retaining wall the school proposed a new 6-foot wooden fence and a 5-foot"net" on top of the fence to keep balls inside the play court. All told the new play court would cast an imposing shadow - a full 17-feet 8-inches in height at a location only a few feet from both 1oth Avenue East and East Lynn Street. Such retaining walls and fences (with or without nets) are NOT ALLOWED by the City building code on two counts. First, it fails to meet the setback requirements (See SMC 23.45.096) and two, the overall height is considered excessive.

But not to be detoured the Bertschi School applied for a "variance" - in this case an Administrative Conditional Use (ACU) permit to support variances for both the setback and fence height. The record shows that the surrounding neighbors, supported by legal counsel, challenged the project, pointing to its injurious impact on the residential neighborhood:

• imposing "fortress-like appearance
• bulk and size not in context with vicinity
• increased use will create unwanted noise
• no demonstrated need given playground on other side of church, and the
• expansion will in all likelihood promote still further enrollment increases.

Over these objections the Department of Construction and Land Use (DCLU, now the Department of Planning and Development [DPD]) approved the ACU in June 1994 but with the following two "life of the project" conditions related to noise and visual impact:

The owner and/or responsible party(s) shall maintain landscaping and fence per approved plans.

Neither the proposed mesh net nor its supports, including the fence, may be replaced by any structure or material having greater visual impact, as described by the undersigned Land Use Planner or successor.

The permit also included specific dimensional criteria:

• To allow for landscaping the fence and net will be set back one foot from the edge of the retaining wall.
• The fence will consist of alternating 4-foot and 6-foot high, 11-inch and 6-inch wide cedar slats.
• To provide for screening of the retaining wall, fence, and net along the East Lynn Street facade columnar Italian cypress will be placed on the street side at each of the non-corner posts supporting the fence for the net. The retaining wall and fence will also be screened by plantings.
• The existing fence along 10th Avenue East will be replaced and extended to the south for approximately 46 feet. The existing shrubs will be replaced to screen the fence except where an opening would be made to accommodate a new gate.
• The net itself is to be "virtually transparent."
• The fence extension to the south will not exceed 6 feet in height from the existing grade and will be screened by additional landscaping.

As it Stands Now

Early last summer an exhaustive permit search was conducted along with a physical inspection of the site (to the extent possible). The following deviations from the prescriptive requirements of the 1994 Decision were discovered - it is blatantly clear that the owner of this private institution has not maintained the fence and landscaping per approved plans.

• The retaining wall at the west end is 8-feet 3-inches from existing grade not the 6-feet 8-inches specified in the DCLU decision. There is a 6-foot wooden fence on top of the wall for a total pre-net height of 14-feet 3-inches [SMC 23.44.014 says maximum combined height is 9-feet 6-inches].
• The 5-foot high net specified in the DCLU decision is actually 12-feet high.
• After 12 years of growth and maturation the landscaping does not achieve the desired level of screening from East Lynn Street and the enclosure along 10th Avenue East is almost entirely exposed.
• The net is NOT "virtually transparent." It has either been replaced with a much more visible net or the original net simply never met the "virtually transparent" requirement. The extreme height and lack of transparency are onerous and detract from the residential scale and character of the neighborhood.
• The fence is not made from 11-inch & 6-inch wide cedar slats but rather 5 inch and 3 inch slats.
• The fence extension to the south exceeds the 6-feet rule. One 6 foot 5 inch section is 10 feet from the existing grade (SMC 23.44.014)

A search of the DPD Microfilm Library and a recent Public Disclosure Request did not reveal any permits, variances or administrative conditional use applications or approvals that would allow this institution to modify these restrictions for fencing and netting. The subject enclosure is clearly not the enclosure permitted by the City in 1994. We now know that the school took it upon itself to arbitrarily extend the height of the netting during the summer of 2002. This was done without permits, in direct violation of a "For the Life of the Project" condition that was established when the variance was allowed in 1994, in direct conflict with a sworn affidavit signed by the school's owner on July 14, 1994 that she would comply with this "covenant" and certainly without any neighborhood input.

So Why The Petition?

A formal Code Compliance Complaint was filed with DPD on August 12, 2005. After 8 months of "investigation" DPD finally issued a Notice of Violation and gave the school the standard 30-day suspense to correct the violation. Rather than comply with this order the Bertschi School has responded with an "OK you caught us, but we like our fence just the way it is." Rather than downsize this imposing structure the school is now asking for yet another variance that will allow for a wall/fence/net combination that stretches skyward 26-feet and 3 inches - a 48% increase over the height permitted by the City.

The attached petition says "NO." Bertschi School should be required and directed to live within its previously requested and approved parameters for the structure that surrounds this playground. The needs of this institution are not in balance with the residential scale and character of the surrounding area. Such Code violations and violations of a "For the Life of the Project" condition are materially detrimental to the public welfare and injurious to property and persons in this neighborhood and vicinity. Strict compliance with the existing ACU, which provides for maximum height of 17-feet 8-inches, would not cause any undue hardship on this institution. The Seattle Department of Transportation has already ruled that the original height of the enclosure presented "no safety concerns about risks to traffic from balls flying out into the street." There is no compelling reason to cast this level of commercial/industrial blight on this (or any) residential neighborhood. The existing landscaping HAS NOT provided the prescribed visual mitigation - even after 12 years of maturation. Playground NOISE is significant, it has increased and it has NOT been adequately mitigated. Private schools and their playgrounds may well be permitted in "multifamily residential zones" but such permission comes with an obligation to live by the rest of the rules - rules that all others in the area must live and abide by. This ACU application should be denied. Complying with the existing permit would dramatically reduce the imposing and out-of-character flavor of the existing enclosure.

Failure to comply with the prescribed ACU conditions is clearly grounds for revocation of all master use permits as provided for by SMC 23.76.034 "Suspension and Revocation of Master Use Permits."

You can download the petition here: Petition Form

The attached petition has been developed to provide a vehicle for directing neighborhood opposition to this unwanted and unnecessary project. It will be submitted to DPD within the prescribed comment period (an extension has been approved until July 19, 2006. Questions regarding this initiative should be directed to:

Friends of North Broadway District, larry4fnbd@comcast.net

The petition, or any other comments you would like to make, should be mailed to

Department of Planning and Development
700 5th Avenue, Suite 2000
PO Box 34019
Seattle, Washington 98124-7901

Or Faxed to 206.233.7901