BEFORE THE CITY OF SEATTLE HEARING EXAMINER Page 4

Another source of data for making an informed and otherwise supportable decision with respect to noise is acoustical studies, generally performed and reported by recognized acoustical consultants. DPD published a Correction Notice October 21, 2004 (Exhibit 55) and directed the completion of such a study with a focus on the following noise generators: sound equipment for the exterior, exhaust fans, HVAC, rooftop A/C, kiln fans, storage room, garage, bathroom, or other ventilation. BUT, for reasons completely undocumented the requested report completely excludes playground noise - without question the biggest noise generator of all at the school. Formal written requests were made to Ms. Holly Godard and Ms. Diane Sugimura on October 30 2004 (Exhibit 56), and November 22, 2004 (Exhibit 57), respectively, for acoustical studies directed at playground noise. Whether these requests were ever translated into a requirement for the applicant is not evident in any correspondence and there is no evidence of a supplemental Correction Notice. Nevertheless, there were references made by Ms. Godard about an acoustical engineer's recommendation for fencing and other related matters, all of which suggested the presence of a report on playground noise. Efforts to locate or even verify this existence of such a report with the DPD Planner over the February 9, 2005 thru March 8, 2005 time period proved futile (see email chain at Exhibit 58).

But the applicant did establish a contract with an acoustical survey firm, SSA Acoustics. Like the multiple SEPA Checklists, there are multiple noise surveys. The first is dated October 28, 2004 (Exhibit 59), the second December 15, 2004 (Exhibit 60), and the third December 22, 2004 (Exhibit 61). All three surveys focus solely on rooftop air-handling units and exhaust fans. All measurement and projection and noise mitigating recommendations are related to these mechanical devices. All three surveys quote the same date of survey: Wednesday, October 21, 2004. No time interval is referenced, no locations are specified other that "various locations around the school," and no mention at all of any playground noise. For the record weather for October 27, 2004 was chilly, temperatures with low of 43 and only a of high 56 degrees, cloudy, with winds gusting to 15 mph (Exhibit 62). DPD's interpretation of these reports is undocumented but the fact that there were no further studies ordered or directed certainly leaves a question with respect to the sufficiency of due diligence. Then appellants contend that the Director made a unfounded decision lacking in quantifiable date with regard to the impact of noise.

Still another source of information regarding noise that is available to the Director, at least in this case, is the Application for an Administrative Conditional Use (ACU). The application for an ACU is dictated by the fact that the proposed new building for this project exceeds maximum width by 20%. The Public Disclosure Request discovered four ACU applications.

The first ACU Application is marked "Revised 8-6-04" (Exhibit 63). The Public Disclosure Request discovered the face sheet of this Application but none of the supporting information. But given the follow-on revisions, further research was not necessary.

The second ACU Application is marked "Revised 10-20-04" (Exhibit 64). There is only a very, very minor acknowledgement to the noise issue when it states: "Potential noise impact from outdoor play and physical education programs on adjacent neighboring properties will be mitigated thru additional landscape screening." Words are chosen carefully here. The inference that there is only a "potential noise impact" is meant only to mislead. After 29 years in this same location with an enrollment that has steadily grown from 40 in 1976 to 204 in 2004, there is a documented history of frequent and consistent complaints about playground noise. Every use permit application has involved specific discussion about playground noise and several appeals to the Hearing Examiner have been based solely on the impact of playground noise. The use of the term "potential" is really quite insulting. There is no mention of how high or wide or how far this "landscape screening" will be off the lot line. Maybe the Director already knows this parameter with the letter from Ms. Bertschi of July 1, 2004 letter (Exhibit 49) in hand that says: "To the west, the school plans on extending the seven foot wide densely planted landscape." But that same letter says, "A solid fence is planned along the west property line adjacent to the Activity Court." There is absolutely no reference to the type of fencing material, or how the fencing and the seven-foot wide landscaping are to be integrated. Much like the oversights noted in the SEPA Checklists this ACU Application totally ignores gymnasium spillover noise (see page 2 of Exhibit 64), auditorium activities with seating for 185 (see extract from Bertschi Website @ Exhibit 65), or the gargantuan 400-500 person special events that the school is planning. And of course there is no baseline acoustical data on which to assess the efficacy of any mitigating initiative. This section of the ACU is completely flawed and should have been rejected by DPD.

The third ACU Application is marked "Revised 11-7-04 (Exhibit 66). This version of the applicant's ACU Application still refers to "potential noise." But, in addition to the undefined "landscape screening," the applicant's "fence" mentioned in her July 1, 2004 letter has now been added. It is described as a "solid wood fence" along the property line - designed by an Acoustical Engineer." But the efficacy is not discussed; there is no reference to baseline noise data, no recognition of event noise mitigation, and no description of the landscaping (unless DPD is still going with the July 1, 2004 letter from the school calling out for a "seven foot wide densely planted landscape"). For some reason the Director makes no provision for this landscaping noise abatement scheme in the MUP decision.

The fourth and final ACU is marked "2406429" (Exhibit 67). It is unclear when this ACU Application was filed, as it is not dated. It bears the number "2406429" in the upper right-hand corner but this number is not associated with this project. It resembles the second ACU as there is no mention of a fence, so presumably this version predates the revision of November 7, 2004 (Exhibit 64), unless the applicant has chosen to reverse a mitigating initiative like they did when they cancelled the drive-through/drop-off extension in the front of the school that was going to materially reduce traffic congestion on 10th Avenue East in the morning.

The appellants to this appeal submit that the Administrative Conditional Use Applications fall into the same abyss as the submitted SEPA Checklists. They 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 and surrounded: residential properties in a residential zone.

It was our intent to have several neighbors testify before the Hearing Examiner. One neighbor in particular came to mind, as he is our reigning "veteran" of the Bertschi School noise explosion. His name is Vern Green. Mr. Green lives at 2218 Broadway Avenue East. He has lived in the same house since 1954 - 22 years before the Bertschi School was started. His backyard abuts one of Bertschi's busy all day-long playgrounds. The highly touted 7-foot wide laurel hedge and wood fence that was specified in previous agreements, and which the School's Director says she is going to extend, is only a straggly maze of old bare limbs. And the wood fence has morphed into a 15-foot high metal-poled cyclone wire fence erected by the school to keep in what the children try to throw out. Instead of bringing Mr. Green, who is now 88 years old, to the Hearing Examiner, we thought it would be more meaningful to bring the Hearing Examiner to Mr. Green - or at least to Mr. Green's beautiful, self-designed and hand-crafted backyard. We also will take you to Steve Turner's house (2222 Broadway Avenue East) right next door to Mr. Green's house. And on this visit we are going to take along a calibrated sound meter that we checked out from DPD. We know that the Director did not have this DVD when the MUP decision was made, but the Director had every opportunity to either personally visit the site or prescribe a noise survey. Neither was done. And yet the Director makes the finding that "the proposed institutional expansion in the Lowrise zone is not expected to generate significant increased noise." The appellants to this appeal find extreme fault in that decision.

This is the statement (Exhibit 68) that Mr. Green submitted when this latest expansion project was announced:

"I have been living at 2218 Broadway East for fifty years (since 1954). Like many homeowners I have poured my assets, time and love into my home and garden. What has been difficult for me is the NOISE impact. It is so intense from the playground l pretty much had to abandon my beautiful garden and my privacy. There is very little time during the day when the playground is not in use. The children are enjoying themselves being excited, hollering, and playing,- however the noise impairs me from even having a conversation outside. It is difficult to accept. As for the parking and pick up I have learned to schedule around them." Signed: Vern Green, neighbor

Now take a visit to his backyard. PLAY DVD, A copy is included in your exhibits (Exhibit 69)

We submit that that neither DPD nor the school really has any appreciation of the injurious impact of the noise generated on the playfields of the Bertschi School.

In April or early May of 2004 just after I assumed the committee assignment to the NCHNA's Bertschi Committee I made an appointment to visit the school and speak with the school's director, Brigitte Bertschi. In addition to a tour of the facilities I was able to ask Ms. Bertschi to address a number of operational concerns - concerns about things that I had heard from other neighbors. I remember specifically asking her that some neighbors were complaining about the noise from the playgrounds. Ms. Bertschi told me that she was surprised about that because no one had ever complained to her about the noise. I thought her response was odd, but had no reason to doubt her statement. But much later as I reviewed the documentation I found out the school has a long history of complaints about the noise.

Later when a group of neighbors crafted a detailed set of questions to the school's Director, Ms. Bertschi, one of the principal inquiries was directed to the subject of playground noise. Here's the January 12, 2005 written response (Exhibit 71) we got from Ms. Bertschi:

"We understand the concerns over schoolchildren's "noise," but these expressions of laughter and joy are an important part of healthy play and emotional development for our students. However, we are very conscious of this impact and have worked hard to mitigate the noise as much as possible. We are also very aware the City of Seattle has noise ordinance and the restrictions on what hours and decibels of noise are allowed and it is our intent to continue to conform with those requirements."

The DVD speaks for itself. The evidence regarding noise abatement compliance with existing "for the life of the project" permits speaks for itself. The lack of acoustical data speaks for itself. The failure of the part of the applicant to even suggest that playground and special event noise might be a problem borders on high questionable and very or misleading reporting on the part of the applicant. Yet the Director of DPD allowed these documents to be submitted and apparently took them at face value in spite of oral and written assessments to the contrary and in spite of a 29-year history that is peppered with appeals and complaints about the noise generated by the applicant. The argument for insufficient due diligence in the Director's decision is hereby presented.

As this is an appeal from a determination on an administrative conditional use, the Director's decision should be given no deference. The appellants hereby request that this decision by the Director of the Department Planning and Development be reversed. Further, and to the extent that the Hearing Examiner's decision reverses or substantially modifies the Department's order or other action "of noise ordinance matters," request that the Hearing Examiner direst that the appeal fee be refunded to the appellants as provided for by Hearing Examiner Rules of Practice and Procedure, Section 4.05(b) and Seattle Municipal Code 25.08.790, Hearing Examiner's Consideration (Exhibit 79).

CLOSING SUMMARY

Hearing Examiner, before I make my closing arguments, let me state that it has been an honor to have the opportunity to plead our case before you. As a layperson and one obviously not trained in legal proceedings I apologize for any inappropriate behavior on my part during this hearing. Aspects of legal proceedings are often confusing to laypersons such as myself and I thank you for being patient with my efforts and correcting me when I needed correction.

These are our closing arguments for the Land Use/SEPA Decision Appeal, file MUP-05-009, that I and fourteen others from my immediate neighborhood filed with the hearing examiner regarding the excessive noise the project will generate.

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