BEFORE THE CITY OF SEATTLE HEARING EXAMINER Page 2

The appellants to this particular presentation before the Hearing Examiner have submitted an appeal related specifically to the noise created by, or that will be created by, the applicant under the MUP decision rendered by DPD on March 3, 2005. The Department of Planning and Development's (DPD) process, procedure, and basis for rendering this decision are in question and are challenged. As will be detailed in this presentation before the Hearing Examiner, it will be argued that:

The Director's decision clearly does not demonstrate that the applicant's proposal meets the criteria for establishing a specific conditional use with regard to noise mitigation and noise management.

The Director's decision will substantially aggravate noise in the surrounding area.

The Director's decision was improperly evaluated and studied, it is based on erroneous and/or misleading information from the applicant and the applicant's architectural firm, and it reflects no baseline acoustical data on which to make an evaluation of the efficacy of the mitigating conditions included in the decision that pertain to noise.

The applicant has continued to demonstrate a total lack of accommodation of the harsh and harmful impacts of noise generated by its institution. The Director, via the recent use decision, has failed to mitigate the adverse negative impacts and failed to impose requirements and conditions necessary for the protection of other properties in the zone or vicinity.

The Director's decision will be materially detrimental to the public welfare. Even more egregious and with even greater intensity, the decision will be especially injurious to the RESIDENTIAL zones that are absolutely contiguous with and abutting the applicant's proposed building site. All abutting properties are zoned "residential."

The appellants associated with this appeal strongly contend that on this appeal, and this appeal alone, this use decision should be reversed.

Background and History

Almost immediately after the Bertschi School filed its MUP application with DPD in May 2004, a select group of neighbors surrounding the school retained legal counsel and the consulting services of a land use planner. The land use planner was a savvy and experienced consultant. He has, as does the respondent's counsel, employment experience as a land use planner at DPD. We believe he even worked side-by-side for some time with the land use planner assigned to this project, Ms. Holly Godard. His name is Mr. David Van Skike and the law firm of Buck and Gordon now employs him. He prepared a detailed 5-page response to DPD, June 24, 2004 (Exhibit 16). A central theme of Mr. Van Skike's response was the prescriptive requirement to look at the permit history of the Bertschi School. The rationale was that the Bertschi School would have needed some sort of conditional approval to change the use of the former church, which is now part of the school's operations. And, he argued that at various times the City would have had to consider the school's use as changes were made. Two very important questions were advanced.

First, "Are the school's current operations (hours, enrollment, staffing, parking, hours, etc) within their permits?"

Second, "Did DPD ever consider the cumulative impacts of Bertschi's incremental creep from a reused church to what is now proposed as a half-block development?"

The record shows that DPD has never responded to these questions or to any part of this letter. But this letter is the genesis of the requirement to look at the history of the school and to look at that history with a focus on the issue, which is noise management. It would seem that there need not be such an external reminder to look at the permit history, that it would just come with the territory in cases like this, that it would just be standard protocol for the Director and staff to take a good look at how things came to be. It will become clear that this sage bit of "reminding" was not followed. And by review of the entire project file there was never a response to the provider of that reminder that such action was not necessary or appropriate. Exhibit 16 is introduced because is does serve notice that a use permit review was a matter of concern to an experienced land use planner working under the auspices of the counsel retained by members of the neighborhood.

And there are still further "reminders" in the record that such a permit review was indicated. Exhibit 76, an email dated November 18, 2004 asks about the status and findings that was supposedly being done. Exhibit 77 is a December 3, 2004 letter signed by 27 residents in the neighborhood to Mr. Portman of DPD requesting an Environmental Impact Statement and permit review. And finally, on January 12, 2005 another email and attachment (Exhibit 78) from the neighborhood group to Godard (DPD) with a relatively long list of concerns and questions regarding this project. The very first and second of 17 questions are targeted at, and inquire about, permits and conditions of permits that might establish threshold levels for the applicant. The response of DPD (also at Exhibit 78): "Yikes, that is a big list. I'll read it over and get back to you. Probably a couple of weeks from now, but before publication of the decision." No such response was provided. Of special note however, Ms. Godard and Mr.Van Skike, attended a January 27, 2005 meeting with a neighborhood group at which time Mr. Van Skike reported to Ms. Godard that he had just finished a permit search on behalf of his clients and that there were numerous items of interest in the historical files that she should look at prior rendering a decision. This is nothing in the public record that a complete permit search was ever performed. In fact, this is every reason to conclude that such a search was not completed because the permit and threshold information in the 1981 decision was never mentioned in the decision or in the record.

It is the appellant's contention that because DPD did not perform a complete and thorough permit review the current land use decision is flawed and must be revoked. There is clear evidence to support the conclusion that the decision is confounded by insufficient due diligence on this very important aspect. Further arguments and exhibits presentation will make this point over and over again.

All of the historical information was discovered via a Public Disclosure Request, pursuant to RCW 42.17.260 of the Public Disclosure Act submitted to DPD on March 3, 2005 (Exhibit 17) and several searches of the archived documents available in the Microfilm Library at DPD. The DPD Planner, Ms. Holly Godard, was put on notice March 3, 2005 that this public disclosure request had been made (Exhibit 18). DPD's Public Disclosure Officer, Ms. Jill Vanneman confirmed receipt and established the ground rules for access to documents March 10, 2005 (Exhibit 19).

This short history, which we are about to present, may seem a bit complex. Why? Because it is a bit complex and in fact it was rather time-consuming to unravel. But once it is laid out, it truly provides a foundation and basis for many of the arguments advanced by the appellants with regard to noise produced by this institution. But only key and relevant sections from this history are extracted and presented of this appeal. The relevancy will be demonstrated throughout this part of the presentation. It is our understanding that Mr. Magnusson may introduce similar "snapshots" of the institutions developmental history but his focus will be on traffic, congestion and parking while the appellants of this presentation are focusing on matters relating to noise and how the institution, DPD, and the surrounding residential neighborhood have sought to mitigate this injurious impact.

In 1976, a residential structure at 2227 10th Avenue East (see # 5 on map at (Exhibit 20) was purchased and being operated as a "daycare center" for up to 40 children by the founders of the Bertschi School, Mr. and Mrs. Peter and Brigitte (Bertschi) Erickson. This building would later become a core building for what is now known as the Bertschi School. The record (Exhibit 21, Page 1) reflects that the Erickson's intended on initially establishing a "nongraded school" and after the first year intended to establish a "graded school." Noise management included an outdoor fenced play area set back 15 feet from the surrounding lot lines. A Variance Application (X-76-102) was submitted to construct a third floor and allow parking in the front yard area. The Department of Construction and Land Use (DCLU), the predecessor to DPD, recommended the variance not be granted and the Hearing Examiner concurred and denied the variance on July 2, 1976 (Exhibit 22).

Then in early 1980, the Erickson's purchased the church building located at 2231 10th Avenue East (see #3 on map at Exhibit 20). The vacant church was immediately adjacent to and just north of the day care center the Erickson's were operating. An application (File No. 80-38) for change of use (Exhibit 23) was filed with DCLU. Shortly thereafter, DCLU issued a Declaration of Non-Significance February 14, 1980 (File no. X-80-038, Exhibit 24). The proposal was to rehabilitate the existing church building and convert it to both professional offices and private school classroom use. Enrollment of the combined daycare facility next door and the new classrooms in the old church would sum to an approximate total of 80. This decision was appealed to the Hearing Examiner and the appeal was heard April 25, 1980. The Hearing Examiner concurred with the initial DCLU decision, resulting in the Declaration of Non-Significance (Exhibit 25). However, this decision was subsequently appealed by the neighborhood (Exhibit 26) to the Board of Adjustment for the City of Seattle. Of note many of the signatories to this 1980 appeal are appellants in this appeal or in the appeal to be presented by Mr. Magnusson. The Board of Adjustment ruled, "the decision of the Hearing Examiner is based on an error in judgment or conclusion" and granted the appeal and the administrative conditional use and variances were denied in a decision rendered July 11, 1980 (File No. X-80-038, Exhibit 27). The accompanying statement (page 2, Exhibit 27) from the Board states "that the proposal does not meet the criteria of Section 28.1 {of Ordinance 86300} since authorization of the conditional use will be materially detrimental to the public welfare or injurious to property in the zone of vicinity in which the property is located." Noise, along with traffic and parking, were major arguments advanced and sustained in this decision.

But the Erickson's made another Variance Application, and on August 8, 1980 DCLU granted another conditional use variance to convert the church to an "ungraded school" and to connect it with a corridor to the existing "school" building (the building housing the daycare center). This time the inclusion of "professional office use" was dropped in the application and from DCLU's decision. But almost immediately DCLU notified the applicant, Mr. Erickson, in a letter dated August 26, 1980 (Exhibit 28) he would need a use permit to change the established use of the residence at 2227 10th Avenue East from its currently established use as a "daycare center" to a private non-graded school in order to coincide with the use requested for the church building. On September 15, 1980 Mr. Erickson's permit to establish the private non-graded school at the church was suspended (DCLU letter, Exhibit 29) after DCLU learned that the building was more than 4,000 square feet in area and therefore not exempt from environmental review. All this is relevant as it builds an understanding for the subsequent decisions and conditions pertaining to noise mitigation and abatement. What does all this historical detail demonstrate? In part it demonstrates that the applicant then, who is the same applicant now, has not always been forthright with application information or level of information. This fact will be developed further along in this presentation. The Director should have been sensitive to this type of institutional behavior.

On September 30, 1980, the Office of the Hearing Examiner denied an appeal for the change of use for the church building. The findings of fact of the Hearing Examiner describe the history of the Bertschi School in more detail. It indicates the projected enrollment for the current school session was 84, and the projected enrollment for the future was to be 116 or 120. These are important threshold-type indices to remember because remember the magnitude and breadth of noise generated and redistributed to the surrounding vicinity is directly proportional to the number of individual "noise generators."

An October 20, 1980 letter from the Director of DCLU (Exhibit 30) reveals that all of Mr. Erickson's permits to upgrade the status of the daycare center or to develop the adjoining old church had been suspended or were being appealed or reviewed and that the permit to allow use of the existing daycare center as a non-graded school would require environmental review. Appeals were heard by the Hearing Examiner and ultimately by the Seattle City Council. The impacts of noise, traffic, congestion, and parking are stated, restated, and amplified over and over again in the accounts of these appeals. Looking at this history, and more importantly, looking at how DCLU sought to mitigate the impact of noise of this much smaller enrollment population is critical to understanding the efforts in the current project now under appeal when the enrollment will be nearly double this above reference threshold.

Upon review and recommendation of the Urban Development and Housing Committee, the Seattle City Council, on December 16, 1980, vacated the change of use application (Exhibit 31). They also ordered that the application and SEPA appeal be remanded to DCLU "for further consideration along with an application from the school for a change of use permit at 2227 10th East" (see Exhibits 32 and Exhibit 33). This bit of history sets the stage for a landmark set of events and prescriptions aimed directly at noise and noise mitigation.

To meet the City Council edict for "further consideration," DCLU solicited the input of other City Departments having expertise in selected specialty areas. In a memorandum (Exhibit 33) from the Seattle Engineering Department to DCLU dated January 26, 1981 the size of the school and its impact are discussed: "the student population of the proposed combined facility {original daycare building plus the church building} is estimated to be 88 while the existing facility serves about 60 students (a 47% increase)." This Engineering Department exhibit establishes an enrollment baseline for the decision that DCLU will make several months later with regard to significance/non-significance. A number of traffic and parking recommendations were made in response to the finding that "Bertschi School is the major traffic generator on that block and should not promote traffic interruptions along 10th Avenue East."

This finding and set of recommendations are particularly noteworthy given the enrollment of 60 and the concerns expressed at that time over the impacts if enrollment jumped to 88. Today, with an even more compromised and fragile transportation network, and even more constrained parking availability and basically the same central core of classroom buildings, Bertschi somehow has an enrollment of over 200. And the school is seeking to add another 10%. DPD's Declaration of Non-Significance will allow the addition 18 more students such that enrollment of the Bertschi School that will exceed 220. And that's 220 elementary school aged children with the near in tightly constrained playgrounds and activity courts with an absence of any substantive mitigating conditions. This is a formula for aggravated and long lasting detrimental hardship on the "supporting" infrastructure of the residential area. The level and intensity of playfield noise is directly correlated with the level of enrollment and the levels of enrollment just keep on escalating.

The Seattle King County Health Department was consulted regarding noise mitigation. The initial report, issued via Memorandum (Exhibit 34) dated December 3, 1980, was submitted by the Supervisor of the Noise Program for the Seattle King County Health Department, Mr. Kurt Horner. Mr. Horner subsequently requested a revision to his memorandum on May 6, 1981. This revision is especially revealing as the level and scope of mitigation recommended by the Seattle King Country Health Department for a proposed enrollment of just 88 students: "recommend that a fence be installed around the perimeter of the play area, set back 15 feet from the property line and the existing fence. This will help reduce noise generated by children playing outside since the fence will keep the source of the noise (children at play) further away from the receiver(s) (the neighbors)." (Exhibit 35)

Incorporating these and other inputs for its own department, DCLU issued a new Declaration of Non-Significance on April 28, 1981 (Exhibit 36). Remember, this new decision is in response to a number of appeals of an August 8, 1980 Declaration of Non-Significance that culminated in the City Council's directive that all decisions regarding the Bertschi School proposal be remanded to DCLU for "further consideration." It is this decision, and the follow-on Agreement between the school, the neighborhood, and DCLU that is discussed below, that makes the introduction of this threshold determination especially relevant and cogent to the present MUP decision now before the Hearing Examiner.

On May 12, 1981 DCLU amends this Declaration of Non-Significance. Based on the recommendation of the Seattle King County Health Department, DCLU imposes the requirement for an additional fence to be constructed 15 feet from the property lines which abut single family residences to reduce noise impacts (Exhibit 35).

On June 8, 1981 DCLU issues a memorandum (Exhibit 37) of clarification regarding the "condition" of the fence that is to be set back 15 feet from the property line. Further "communication" with Mr. Kurt Horner of the Seattle King County Health Department is referenced and the "condition" is modified to consist of "heavy shrubbery rather than a solid fence." This exhibit explains in full the focus of the next historical event of significance.

Page 1|Page 2|Page 3|Page 4|Page 5