BEFORE THE CITY OF SEATTLE HEARING EXAMINER Page 3

On August 27, 1981 an agreement (Exhibit 38) was executed by Mr. and Mrs. Erickson, the Director of DCLU, and eleven neighbors to resolve the issues then under dispute. As will be abundantly clear when you read the details of the Agreement, PLAYIELD NOISE was one of the principal issues under dispute. The neighbors were appealing the April 28, 1981 MUP decision to the Hearing Examiner - something they were getting all too familiar with over the last several years as they sought to disallow the use of the church as a school. The school was appealing a definite noise-related condition of the use decision that required a fence or shrubbery be installed, creating a fifteen-foot set back from adjoining residential properties. The Agreement was negotiated and signed by al parties in lieu of a Hearing Examiner decision. In the Agreement the school agreed to plant laurel hedges to form a six-foot wide hedge between the school property and the adjacent residential properties. The school agreed to implement a quite sophisticated transportation plan. And the school agreed to limit its total enrollment to 120 students, with no more than 100 students in attendance at any one time. The school agreed to submit annual reports of its compliance with the agreement. Of special note, the noise abatement provisions of this agreement and the enrollment limits are nearly identical to the Declaration of Non-Significance (DNS) that was issued by DCLU April 28, 1981. It was the DNS that established the threshold limits on enrollment, NOT the Agreement. It is important to recognize both documents, but more important to understand the April 28, 1981 DNS established enrollment and noise mitigation parameters.

For reasons unknown and completely unexplained the subject use decision makes no reference to this use decision, to the threshold determinations regarding enrollment, or to the Agreement. Buy omission or commission DPD has made a serious error in judgment.

While the balance of the development history needs to be recounted, it can be inserted here that NOTHING gained through the appellants exhaustive Public Disclosure Request process or in research from DPD's Microfilm Library suggests that the threshold determinations reflected in DCLU's April 28, 1981 Declaration of Non-Significance (Exhibit 36) and the addition dated May 12, 1981 (Exhibit 35) have ever been modified or amended. There is NOTHING to suggest that the Agreement between the Bertschi School, the Director of DCLU, and eleven neighbors has been modified or amended. Once again, the appellants are not seeking enforcement of this permit or agreement. We understand that we may, and we will in due time, pursue appropriate remedies under the Land Use Code. Rather it is the prescription for the type and scope of noise abatement and mitigation "conditions" that is relevant and of extreme importance to this appeal. DPD's most recent MUP decision is almost totally devoid of any substantive noise "conditions" even though the circumstances, the dimensions, and the scope of the applicant's proposal are much higher than that considered by the DPD decision of 1981. A permit review of the type just presented would have undoubtedly caused DPD to render a more complete and comprehensive set of noise mitigating conditions.

After the tumultuous events of 1980/81 the next real high point on the development history has to be the 1985 acquisition, via long-tem lease, of the single-family residence immediately south of the previous daycare center. Referred to as the "Hsu House," so named after its then, and current owners, the school submits an application for a Master Use and Construction Permit on July 25, 1985 (Exhibit 39). The application requests a "change of use from single family residence to private school with interior and exterior modifications and an expanded parking lot area." For reasons unexplained, the DPD Microfilm Library has no follow-on account of DCLU's approval or disapproval or any approval with conditions. Efforts to secure this information from the applicant were initiated via an April 3, 2005 letter to Ms. McCutcheon (Exhibit 40). However, on April 5, 2005 (Exhibit 41) the appellants were advised by Ms. McCutcheon,"this request {for copies of all master use permit decisions} is not reasonable nor relevant to the current appeal proceeding. You are free to research the DPD and Hearing Examiner files to obtain this information, but the School need not do that research for you." The appellants have challenged this position, and the Hearing Examiner has concurred, but Ms. McCutcheon has not responded with any further information. Of note, the permit application for this change of use does not request any change to the threshold enrollment limits or to the noise abatement conditions imposed by the 1981 DNS or Agreement. By the school's own admission, however, they are, by 1985, at the very maximum enrollment level and probably well exceeding the "120 nor more than 90 at any one time" threshold (see Enrollment History, Exhibit 42 and Chart at Exhibit 43).

Enrollment, and with it the noise impacts, continue to expand each and every year. In 1990 the Bertschi School purchased the single-family residence at 913 East Lynn Street (hereafter referred to as the "913 House") and applies for a change of use in much the same manner as they had with the Hsu house in 1985. An Administrative Conditional Use was required in this case, however, because the residence was only two feet from the side lot line and did not meet the required ten-foot side set back requirement. A historical account obtained through disclosure (Exhibit 44) reflects that the school met with the neighbors opposing the expansion in an effort to induce them to withdraw their opposition. One of the neighbors was only four or five feet from the lot line of the 913 House. A series of negotiations transpired and the School and the neighbors agreed to a specific codified set of stipulations - all related to noise abatement. Identical language was used in the Analysis and Decision of the Director of DCLU in its DNS decision and granting of the Administrative Conditional Use (Application No. 9000063, Exhibit 45). There were six "for the life of the project" conditions. Three are exclusively related to "ingress and egress" limitations. The other three are more general and deal with fencing, limits on backyard use, and a landmark concession that prohibited school use of its entire campus during the summer.

This DCLU Decision of Non-Significance also contains several key references to other provisions of the above mentioned applicant and adjacent neighbor agreement: "faculty and visitors will continue to abstain from parking on East Lynn Street or using the two parking garages on the subject property, except for storage as needed." As a matter of record the school routinely violates the East Lynn parking rule. Further, they have been allowed to count the two parking garage spaces as part of their on-campus inventory even though they can't use them. DPD has been misled and did not challenge this, as the Director apparently did not do the look-back research to discover the restrictions on these two "garage spaces."

As this appeal was developing there have been challenges about the validity or applicability of the 1981 Agreement that the Director of DCLU, the owners and operators of the school and the neighbors signed. But a look at the June 1990 application for Change of Use for a single-family structure located at 913 East Lynn Street"(Exhibit 46) will demonstrate that school and its project architects were fully cognizant of the 1981 Agreement provisions. The architectural firm of Michael Canatsey Associates prepared the Application Summary. It references and acknowledges the sound mitigating requirements of the August 1981 Agreement (see page 3, Exhibit 46). It states "the 1981 Agreement specified a series of Laurel hedge screens, fences and buffer zones in order to ensure privacy for the neighbors" and that "these elements have been implemented and are all currently in place." It also stated "as part of the future Comprehensive Plan for the entire complex and future Master Use Application, an overall landscape and open space plan will be developed to ensure continued, visual and sound screening for the adjacent single family zoned properties." Somehow the 1981 Agreement provisions for noise abatement, and the future Comprehensive Plan for the entire complex never got carried forward to this use decision. This is NOTHING on file and NOTHING in any subsequent use applications to even suggest that the applicant or DCLU/DPD had ever changed, revised or deleted these very importantly noise abatement provisions. By all indications the Director has simply failed to provide, or even acknowledged the need, for such continued protection and has certainly not provided for any such level of protection in this most recent proposal.

The Decision of Non Significance and Conditional Use permit for the conversion of the 913 East Lynn Street house was approved and released October 4, 1990. With the ink barely dry the school started making overtures that they wanted to start a summer school program - a noise huge mitigating concession that the school willingly consented to when the permit was issued. When the neighbors cried foul and held up the list of "for the life of the project" conditions the school immediately pursued a legal challenge by requesting a revision to the use permit. The school retained Ms. Melody McCutcheon to advance their care to DPD (Letter to DPD, Exhibit 47).

DCLU issued a revision of its original MUP decision February 25, 1993 (Exhibit 48). The revision affected only Condition No. 6 and in essence allows the school to conduct summer and weekend activities, but the property and building at 913 East Lynn Street must be excluded. No other threshold determinations and conditions were affected by this determination.

Not surprisingly, this DCLU decision was appealed to the Hearing Examiner by the surrounding neighbors with the argument that "the revision eliminated all effectiveness of the mitigation condition....The noise sought to be mitigated comes from the playground not from within the confines of the 913 East Lynn Street." In the legal brief (Exhibit 44) filed before the Hearing Examiner it was noted, "the Bertschi School is no longer in compliance with the 1981 Agreement... In March of this year, 162 children were enrolled... Examination of the inspector's log at the housing/zoning division of the DCLU does not show that any annual reports were received after 1985." Later in the brief it is noted: "Materials submitted by the Bertschi School indicated that the conversion of 913 East Lynn Street classrooms was sought to accommodate an increase in enrollment....The materials state that the school has a constant enrollment of 120 to 130 students... Although no relief from the enrollment cap of 120 student established in 1981 is indicated a projected enrollment increase of 15 students in the next year and the addition of one full time teacher." And finally, as to the 1981 Agreement to plant laurel bushes which were to form into dense six- or seven-foot wide hedges within one or two years..."twelve years later the bushes are short, thin, spindly, providing little relief."

Now 24 years later, the relief from this once acceptable noise-mitigating provision is now ZERO thanks to poor care and constant trimming - all of the visual and noise relief is absent and the school has added over 100 students to the threshold limit of "no more than 1oo at any one time." So now comes a most perplexing response from the owner and Director of the school, Brigitte Bertschi, in a July 1, 2004 letter (Exhibit 49) to DPD. Ms. Bertschi is pledging to "extend the seven-foot wide densely planted landscape" along the west lot line of the property that abuts directly with single-family homes. Why is this perplexing? First, there are no seven-foot wide densely planted landscapes on which to extend - the school has purposely allowed whatever was there to begin with to dwindle or has cut it back to completely expose neighboring properties. Second, the reference to a seven-foot landscape corresponds directly and only with the noise mitigating conditions contained in the aforementioned 1981 Agreement with the neighborhood. The Director is clearly acknowledging this "for the life of the project" permit condition of the 1981 Agreement while completely ignoring the enrollment cap constraints of the Agreement. And DPD is apparently buying into this pledge, and is unaware of its lineage or significance as the record shows that DPD did not perform the review of the permit history that was suggested right from the beginning.

Back to the case before the Hearing Examiner (MUP 93-006 (CU)). In brief, the DCLU decision to revise the summer and weekend condition was affirmed on June 7, 1993 (Exhibit 50). But the decision of the Hearing Examiner does not serve any basis for an erroneous statement in the current MUP decision now under appeal. Page 3 of the MUP Decision (Exhibit 6) before the Hearing Examiner states:

"The Bertschi School received a Master Use Permit (Project number 900063) in 1990. There were Administrative Conditional Use conditions required for the life of the project. The conditions, which relate to the building and ingress/egress, still apply. The condition regarding the internal fencing and school use limitations no longer apply."

The last sentence, regarding the internal fencing and school limitations, is in gross error and, if allowed to prevail, would remove two more important noise mitigation conditions. Exhibits 72 and 73 are offered as evidence to establish the position of the internal fencing that remains a condition of the use permit issued in 1990 and never amended. Exhibit 74 is offered as an acknowledgement that the condition with regard to use of the 913 East Lynn Street house, as amended in a 1993 use permit revision is still intact, and has never been altered or removed. The decision offers no rationale or justification for this change to conditions that are "required for the life of the project." This property is not contiguous with the property of the project and has no bearing on the use of the new property. With all due consideration to the remainder of this hearing, the appellants in this appeal would like to move that, on this basis and this basis alone, that this decision should be reversed.

Just two more historic reference points. In 1994 the institution submitted a MUP application (No. 9400127) to extend an existing playground on the NE corner of Lot 1 (see Exhibit 20 marked "play area"). Once again the application seeks no relief from the enrollment cap of 120/100 students or from the noise abatement provisions established in 1981. Surrounding neighbors considered the project unsightly and not in context with a residential neighborhood. They also argued that it promoted still further enrollment increases. But DCLU issued a SEPA "exempt" determination and approved the Administrative Conditional Use on June 16, 1994 (Exhibit 70). Two "life of the project" conditions related to noise and visual impact are recorded. The current MUP decision makes no reference to this permit or the ACU or conditions.

Finally, in 1999 Bertschi submitted a MUP and Administrative Conditional Use Application (Exhibit 51) for the addition of one classroom with structural upgrades requiring variance for building height. An increase of four students was projected bit no increase in staff. Enrollment was reported at 185. And once again no relief was requested from the enrollment cap of 120/100 students or from the noise abatement provisions established in 1981.

The Current MUP and Administrative Conditional Use (ACU) Applications and DPD Decision

Within days of submitting the MUP and ACU applications and posting the project board in front of the school DPD started to receive numerous letters "adamantly opposing the project." The surrounding neighborhood dispatched written comments to DPD, the City Council, and the Mayors Office. Community and city newspapers picked up the story (see Exhibit 75 for Seattle Times article). As mentioned earlier, groups surrounding the school secured legal counsel and the consultative services of a land use planner with previous employment experience at DPD. The size and scope of Bertschi's latest expansion was overwhelming - doubling their footprint and capturing longstanding single-family and multi-family residences in the process. There were and still are lots of issues related to the impact of this institutional presence in an otherwise old, established, residential community. Always high on the list of issues, especially for those 50 or 60 homes and two apartment buildings that directly border the school, is playground and traffic noise generated by the population at the Bertschi School.

Noise of this type is invasive, it's sharp, and it has become more and more challenging by the ever-expanding enrollment of the Bertschi School student population. The noise that is generated and projected, all with little or no mitigation, has been a leading message of concern to the school, DPD, or anyone that will listen. The guidelines for approving, conditioning, or denying a conditional use are pretty clear. One, the Director is obliged to carefully consider whether use will be materially detrimental to the public welfare or injurious to property in the zone or vicinity in which the property is located. Two, the Director is responsible for mitigating adverse negative impacts by imposing requirements and conditions deemed necessary for the protection of other properties. Three, the Director gets a whole section dedicated to "noise," including a menu of measures that might be used to mitigate potential noise problems. And four, the Director must commit this process to a written decision and explain the conclusions to support the decision. Before looking at the actual decision, we should look at the evidence presented to the Director.

A good place to start might be the SEPA Checklist that generally accompanies the MUP Application. For unknown reasons there are three SEPA Checklists on file for this project. The first is dated and signed May 5, 2004 (Exhibit 52). Playground noise is very understated, very downplayed with the brief statement: "Noise maybe generated by children's play and Physical Education Activities." A little bit later in this presentation you are going to get the opportunity to experience what "maybe" noise sounds like. The proposed measures to reduce or control noise impacts: "noise will be screened from the neighboring property to the west by an evergreen hedge." There is no mention of how high or wide or how far this hedge will be off the lot line. There is absolutely no reference to a fence, type of surface material, or if there will be any restrictions on hours of use. Furthermore, not even the slightest consideration is given to the noise that will be generated by open-door gymnasium activities. And maybe the most offensive of all the extremely large 400-500 person special events that the school is planning on a frequent basis, many of which will be in the evening or on weekends. The applicant and the contracted architectural firm of Miller Hull have grossly misled DPD in this Checklist by failing to even mention this significant noise generator.

The second SEPA Checklist marked "Revised 8-6-10" (Exhibit 53), totally eliminates any reference to playground noise. Totally eliminates any reference to special event noise. This level of misrepresentation is inexcusable. And this level of blind acceptance by DPD suffers likewise.

The third, and presumably final, version of the SEPA Checklist is marked "Revised 11-9-04" (Exhibit 54). Not unlike the second version, playground noise, gymnasium spillover noise, or 400-500-person special event noise, is not listed whatsoever. NONE. The next subparagraph that is supposed to talk about reducing or controlling noise contains a short reference to landscaping and a wood fence and how such a fence might reduce play court spillover noise by some three or four decibels but there is no reference whatsoever to the types of noise, hours of noise, or any baseline data used to predict whether the referenced landscaping or fence would mitigate whatever noise it is supposed to mitigate. And this must be the SEPA Checklist of record because it bears the signature of the reviewing Land Use Planner at DPD, Ms. Holly Godard.

The SEPA Checklists are flawed and incomplete and offer little understanding as to how applicant is going to deal with all the sources of noise generated and distributed to the zone or vicinity in which the property is located. Once again, remember these old and new playgrounds or activity courts directly and immediately abut a residential zone and are surrounded by residential properties.

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