BEFORE THE CITY OF SEATTLE HEARING EXAMINER Page 1

Presented May 17, 18 and 24, 2005

In the Matter of Appeals of Hearing Examiner File: MUP-05-009 (Noise) Daniel Voran, et al.

from a decision by the Director, Department of Planning and Development, regarding a master use permit application (MUP) #2306429

OPENING REMARKS

Before presenting this appeal let it be known that this appeal pertains and relates solely to the appeals filed on March 16, 2005 that list Daniel Voran as the authorized representative. These appeals have been assigned a Hearing Examiner File number of MUP-05-009. Any and all other appeals that may have been filed pertaining to this Department of Planning and Development (DPD) master user permit (MUP) application and decision are to be considered separate and distinct. Understandably there may be some overlap with respect to arguments presented, to evidence, exhibits, and accounts of discovery, but the focus and intent of this appeal shall be purposely directed at the appeals presented under the File Number of MUP-05-009 (Exhibits 1 & 2).

We think this entire matter has been fully explained in a March 22, 2005 letter (Exhibit 3) addressed to the Office of the Hearing Examiner and signed by Mr. Hettick but the discussion is prefaced here just to rule out any misunderstanding. This matter is further articulated in a March 25, 2005 letter of notice from the Office of the Hearing Examiner (Exhibit 4). This letter explains that the appeals filed listing Larry K. Hettick as the authorized representative have been assigned a separate appeal number and file. The file number for these appeals is MUP-05-010.

Finally, as explained and delineated at the Pre-Hearing Conference held March 30, 2005 and the "Before the Hearing Examiner" pronouncement of March 31, 2005 (Exhibit 5), Mr. Craig Magnusson is representing only the appeals with the assigned file number of MUP-05-010.

As a matter of introduction, the appellants to this appeal would like to state before the Hearing Examiner that we welcome the opportunity to present this appeal. We recognize and are deeply concerned that DPD's recent Declaration of Non-Significance (with conditions) and associated Administrative Conditional Use with conditions (Exhibit 6) will, if allowed to prevail, substantially and forever exacerbate the unacceptable and unlawful impact of noise produced and redistributed throughout the residential neighborhood by the Bertschi School. The impact and ever expanding level of noise generated by the Bertschi School has unfortunately been allowed to proliferate, and to proliferate in a way that is largely unmitigated and exclusive of any noise abatement considerations. Expansion after expansion, in both real estate and student enrollment, of this private institution has been allowed to occur with basic narrowly focused analysis and piecemeal planning and development. Comprehensive assessments, forward-looking analysis, and broad-based decision making are NOT traits that reveal themselves in the record of this institution's development. Such expansions in the physical plant and properties of the institution have fostered and promoted very large increases in student enrollment. And with every increase in student enrollment there seems to be a concomitant expansion in the size and number of playfields that surround the institution. Or vice versa, the playgrounds (and adjoining properties) are acquired under a "no-growth" statement in the use or building permit application AND a short time later after the new faculties are in place a whole new cadre of students all of a sudden appear on the scene -each bringing their own incremental addition to the noise inventory produced at the institution.

Approximately 90% of the exposed building-free property of the institution has been converted into a playground, an activity court, or a "physical education" space for a student population that now exceeds over 200 children between the ages 5 and 11. The project under appeal increases the building-free use percentage of the institution with the development of a very large playfield/performance/event space that conjoins with a new auditorium space to permit large-scale 400 to 600 person events that heretofore were conducted off-site in contacted locations. This development coupled with new activity courts will guarantee that the institution will be able to produce and redistribute excessive noise in all directions into the surrounding residential neighborhood, and have the capability and stated intent to so during each school day AND now evenings and weekends with really large groups. Basically, if there is any space not otherwise occupied by a building, it's a playground, and a playground that in most case extends all the way to the lot line. Exhibit 7 should give you a visual appreciation for the number and size and expanse of the playfields, activity courts, and playgrounds. And Exhibit 8 clearly demonstrates the proximity of these outdoor noise production centers to the west side residential properties. But what is not so evident is that the residential properties across 10th Avenue East are exposed as well, as are the properties across East Boston and Lynn Streets. These residents suffer from the injurious effects of the institution's Code-exceeding noise levels as well.

The evidence will document that this institution, in one form or another, has been in our neighborhood since 1976. It will document that the noise impact has always been substantial, has always been a serious concern surrounding residential neighbors, and has always been a matter of record when each of the intuition's expansion requests are submitted for planning and development review. Our appeal before the Hearing Examiner is not to simply substantiate that 200 elementary students make lots of noise of that the magnitude and breadth of noise distribution has increased as enrollment has increased. But the appeal will present evidence, arguments, and some very compelling technical information that the Director of Planning and Development, hereafter referred to as "Director," lacked the basis, the historical accounting, and the technical information on which to make the decisions with regard to noise mitigation and abatement.

The record and evidence will show that many of our neighbors, or our past neighbors, have attempted to secure mitigating and noise abating concessions from the Bertschi School. A close examination of these concessions/conditions will establish a baseline for trying to understand the land use decision recently rendered by the Director.

The record will show that with each and every successive expansion of the Bertschi School the neighborhood has been forced to challenge each use permit because of the adverse and injurious impacts of school created and redistributed noise. Evidence will be presented to demonstrate that many of these challenges have yielded somewhat purposeful noise mitigating initiatives and the appellants did in fact receive some relief, or at least the promise of relief, via a variety of noise abatement strategies. Unfortunately the record will also show that the relief was in some cases only short-lived, in some cases never fully executed, and in other cases the strategies were executed but never properly maintained. In almost every instance, however, the physical boundaries of the school have been allowed to expand without a concomitant expansion of the noise mitigation measures. It will become very clear from the evidence and exhibits presented that there has never been any form of comprehensive campus-wide environmental impact assessment with regard to noise and noise abatement. The most recent decision from the Director suffers from this malady, as will be demonstrated in this follow-on presentation.

And the record will show that there have been quite a number of successive expansions, all in a seemingly deliberate piecemeal manner. This has allowed the institution to essentially "fly under the radar" of the code restrictions. For example, there is a 4,000-square-foot threshold that dictates a transportation plan. But the institution has expanded via property acquisitions that were conveniently under the 4,000-square-foot threshold. Piecemeal expansions coupled with piecemeal review coupled with more of the same, and the product is one that is collectively unmanaged, unregulated, and calling out for a more comprehensive impact assessment of noise on the vicinity. This appeal purports to demonstrate that the Director erred in not taking a more comprehensive look at the collective impact of this institution, which is a responsibility and obligation when adjudging the needs of the applicant and those in the vicinity, which in this case is a densely developed urban, yet very, very residential neighborhood with underpinnings dating to the turn of the century.

The single, most significant, most impacting and most detrimental impact on noise "production" has been the persistent increases in enrollment. This conclusion is easy because the math is easy: two children make more noise than one, and so on. And the record will show unequivocally that the Bertschi School and its "daycare" predecessor have added more and more student/children to the noise production facility almost each and every year of their existence - from a baseline of 40 to over 220 if this project is allowed to proceed.

The record will show that the Bertschi daycare facility dates back to 1976 and that its "school" status came on board around 1982. But in whatever institutional category the Bertschi School falls, the evidence that will be presented by the appellants will clearly show gigantic increases in enrollment, and with that, gigantic increases in playground noise. The evidence will also point to even further, more injurious, enrollment increases in the future.

And it will be demonstrated that student-generated playground noise will, with this project, have a new "competitor" in the decibels contest. The institution has announced plans to host full-scale 400-500-person "special mega events." They have announced plans to use their new gymnasium/"Community Room" for 185-person auditorium events. Many of these events are scheduled to be in the evenings and on the weekends, and will bring a whole new dimension to the noise impact problem for the surrounding residential neighborhood. And the record will show that the Director has totally ignored and discounted this impact. There is not the slightest reference to such events in the Decisions discussion about the impacts of noise. The record will show that, in spite of numerous inquires, testimony at a public hearing, and meetings with members of the neighborhood about the impact of noise that included specific references to these new noise producing events, the Director, by omission or commission, has overlooked this critical component. Again without basis, without inquiry to the applicant, and without evaluation and analysis, the Director's Decision makes the conclusion that "the proposed institutional expansion in the Lowrise zone is not expected to generate significant increased noise and odors." The appellants in this appeal are not focusing on "odors" but, of course, on noise.

The evidence to be presented will demonstrate that the Director has no basis, no evidence, and has provided no rationale for such a conclusion. Evidence will be presented that the Director did not seek out any baseline noise assessments, did not look back at previous "for the life of the project" permits or permit conditions, and did not perform the rigorous assessments necessary to effect a Declaration of Non-Significance and/or to place further conditions on the use permit and the ACU permit. It is our appeal that the Director erred in determining this current use application complies with Code requirements. The appellants will demonstrate that the relief sought by this appeal - the reversal of the decision -- is unquestionably warranted.

It is understood and acknowledged that the neighborhood made similar appeals in similar forums, and some of the basis of those appeals has been directly related to noise and noise exposure from the Bertschi School. We plan on presenting relevant material from those appeals. This is yet another such appeal to protect the privacy, the lifestyle of this residential area, and most importantly to seek relief from the detrimental and injurious effects of noise generated and redistributed to the "vicinity in which the property is located."

In closing these opening remarks, let it be known that the appellants are not here to simply recount history and agonize over every detail of that history. But part of our appeal will bring relevant, pertinent, and meaningful accounts of this history to this appeal of DPD's decision to grant a conditional use for this proposed project. A brief account of previous DPD/Hearing Examiner decisions will demonstrate that noise management, noise mitigation, and noise control can, within this environment, be potentially effective. A brief account will also demonstrate that such measures, methods, and strategies for noise abatement are only effective if they are sustainable and tailored to the size of the noise-producing population.

Once again the appellants to this appeal welcome the opportunity to present this appeal. Our appeal is straightforward, it is concise, it will be as brief as possible, but it will be complete.

PRESENTATION OF THE APPEAL

This project proposed by the Bertschi School will double the size of this institution's footprint in this largely residential neighborhood. Take a look back at Exhibit 7 and realize that everything to the left (south) of Building Number 1 will be NEW. It will not double the current student enrollment ------ at least not yet. But it will add 18 students immediately. And the record shows that that applicant has expressed strong interests in adding 40-50 more in the outyears by adding another pre-kindergarten class, and another kindergarten class, and robusting the class sizes a bit (Exhibit 9). This particular proposal adds significantly more playfield space and something the applicant is calling "activity space." This "activity space" will immediately abut residential property and the backyards of the single-family residents on the property. The historical record and evidence to be presented near the conclusion of this presentation will clearly prove that this MUP decision will be injurious to property in the zone of vicinity in which the school playfields are located. For DPD to conclude (Exhibit 6, Page 7) that "the proposed institutional expansion in the Lowrise zone is not expected to generate significant increased noise and odors" is clearly unfounded, without supporting technical data, without the benefit of physical examination of the site, and without the consultation of sound and noise experts.

The respondents have moved to exclude historical evidence with the argument that evidence regarding enforcement of other permits and agreements for the Bertschi School is not within the jurisdiction of the Hearing Examiner. The appellants have responded that they do not seek Hearing Examiner enforcement of such permits and agreements. The appellants maintain that evidence concerning past permits and agreements is relevant and important to their appeal of the present decision before the Hearing Examiner. The Hearing Examiner denied the respondents motion in a written decision April 21, 2005 (Exhibit 10). In support of the Hearing Examiner's stipulation that such evidence/exhibits have relevancy, the appellants acknowledge that evidence offered in these matters must be limited to that which is deemed relevant to the appeal. Our comments and presentation before the Hearing Examiner have been developed with strict adherence and accommodation of this understandable constraint.

As a matter of record, the appellants would like to acknowledge that we understand, and do not challenge, the City's Land Use Code that allows "institutions" as a use permitted outright in multifamily zones if the institution meets all development standards (Exhibit 11, SMC 23.45.004). The applicant in this case is a private kindergarten through fifth grade elementary school. It apparently falls within the general and somewhat catchall category of "Institutions meeting all development standards" in this section of this Land Use Code. Other sections of the Land Use Code include "schools" in the definition of "institutions"(Exhibit 12, SMC 23.84.018). Thus we do not appeal the application of Land Use Code provisions that allow schools (and all other qualifying institutions for that matter) in multifamily zones "when they meet development standards." HOWEVER, it must be noted from the outset that the applicant's proposed expansion of its private school DOES NOT meet development standards. This conclusion is not an argument put forth by the appellants but rather a statement of fact that all parties would, without question, would agree with.

We also acknowledge that there are provisions within the Land Use Code that allow institutions that do not meet development standards to be allowed in multifamily zones. Codes that are most applicable in this decision and that are referenced in the decision itself are SMC 23.45.116, "Administrative conditional uses--General provisions" (Exhibit 13) and SMC 23.45.122, "Institutions other than public schools not meeting development standards" (Exhibit 14). Specific reference to these Codes is made because we would like to highlight and emphasize that this "allowance" to operate a non-conforming institution in a multifamily zone may only be granted through the Administrative Conditional Use (ACU) approval process. This process meant to be rigorous. And the appellants understand and would expect that the process be rigorous, as it dictates the application of a wide variety of Codes and other qualifying criteria and the decision has far reaching and forever impacts on the vicinity in which it resides. The ACU process also has an established and very detailed procedure and format for applicant application for an ACU. This process is over and above that which might otherwise be required under SEPA. And it has an even more defined set of procedures, guidelines, and qualifying criteria that the Director of the Department of Planning and Development MUST utilize in approving, or conditioning, or denying a conditional use of a non-conforming institution in a multifamily zone.

Evidence developed via a Public Disclosure Request reveals that has taken the Director nearly eleven months from the date of permit application to render a use permit (with ACU) to this applicant. The record shows that DPD charged the applicant for over 110 hours of "billable time" and that the applicant had to pay $23,625 dollars on or before March 2, 2005 in order to secure publication of the use and conditional use permits on March 3, 2005 (Exhibit 15). What the record does not show is that the process was rigorous; only that a lot to time passed. And in the end the analysis was not well developed and the conclusions were thus lacking in foundation or basis especially with regard to noise assessment and noise abatement.

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