BEFORE THE CITY OF SEATTLE HEARING EXAMINER Page 5

In our appeal we said: We live in the immediate vicinity of the property and will be severely harmed by the noise pollution if the project described in MUP 2306429 is allowed. The current Bertschi School harms many of the neighbors with excessive noise and the proposed expansion will spread the noise to even more neighbors. We appellants to this appeal are deeply concerned that DPD's recent Declaration of Non-Significance (with conditions) and associated Administrative Conditional Use with conditions, as published March 3, 2005, and hereafter referred to as "the Decision" (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 surrounded by the Bertschi School. The adverse and injurious impacts of noise already produced by this institution are excessive.

It is clear that in this decision, the director erred repeatedly when considering the impact the project will have in regards to noise.

1. The SEPA checklist which the land use planner and the director accepted was invalid and the director erred in accepting it.
2. The land use planner and the director stated in the decision on page 7 that "the proposed institutional expansion in the Lowrise zone is not expected to generate significant increased noise and odors - READ REST OF NOISE CONDITIONS. These statements are false and were made without any review, as the land use planner recently testified. A land use decision cannot be based on fantasy. It must be based on fact and this decision was not based on facts. We might understand a child of the Bertschi School writing such a decision, but it is irresponsible, negligent and erroneous for a land use planner and the director of DPD to make such a decision.
3. The land use planner erred in basing her decision on the applicant's contention that the impact of the project would result in an enrollment increase of only 18 students. As a result of the project, the school will vacate a large part of their existing facilities. Are we really to believe that the school will leave these vacated facilities empty? How many more children will the school enroll over the coming years now that these facilities are vacant? How will this increase in enrollment affect the noise generated by the school? These are clear impacts the land use planner should have envisioned and they are questions that the school was obligated to answer before a true assessment of the impacts of this project could be understood. The land use planner has a duty to independently verify claims made by the applicant, and she failed to do this.
4. The land use planner removed a "for the life of the project" condition that was specifically made to mitigate playground noise created by the school. She gave no justification for removing this condition and there was no analysis ever done to determine if removing this noise mitigating condition was justified. Each one of these errors is sufficient grounds to reverse the decision. Considered together, it is our view that they leave the Hearing Examiner no choice but to reverse the Director's decision. The evidence developed in this case before the Hearing Examiner has demonstrated that under the parameters of the Decision the impact of noise may be even more harmful to the public welfare and more injurious to the RESIDENTIAL ZONES that are contiguous with, and abut the applicants existing and proposed area of operation. A brief re-examination of a rather comprehensive set of facts and evidence developed over the course of the last several days will serve to demonstrate 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 as to the efficacy of even the very limited abatement measures proposed in the decision.
• 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, for unexplained and unjustified reasons, remove essential "for the life of the project" conditions that provide noise and visual "buffer zones" to other portions of the surrounding residential zone.

For these reasons, the appellants associated with this appeal contend that this Decision should be unequivocally reversed.

Over a year ago now the applicant submitted a formal change of land use application to the Department of Planning Development. The expansion nearly doubles the institution's footprint in this Lowrise multifamily L2 Zone that abuts directly with, and is surrounded by, single-family zones. The entire area is positioned in a classic turn-of-the-century urban neighborhood at the northern most end of an area now referred to as "North Capitol Hill."

Exhibit 8 was developed by the appellants to depict both the existing properties and the project as presented (and amended) by the applicant in its use permit application. Referring to Exhibit 8 everything to the left of building number one in the center that is labeled "Administration/Classroom," is part of the proposed expansion project. And while looking at this exhibit take a look at all of the non-building spaces. Nearly every square-inch has, or will be converted into outdoor play areas. Then look at the orientation of these play areas and realize that all of the area between the "Music Classroom" on the left and the number four building on your right abuts directly with residential properties. There is no alley, there is no school fence and there is no landscaping to speak of on Lots 3, 4, or 5. The DVD you saw, and heard, was taken looking toward the institution from residences facing Lots 4 and 5.

The appellants are not appealing 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, as noted from the outset, the applicant's proposed expansion of its private school DOES NOT meet development standards.

And it is well to point out that the applicant's failure to meet development standards was a choice the applicant consciously made when they made the decision to "supersize" their new gymnasium and auditorium. The proposed building width will be wider than the maximum allowed by the Code. This decision forced the applicant to apply for a "variance," or in technical terms, an "Administrative Conditional Use" (ACU) putting the entire proposal into a very different category of review and different set of development standards. The applicant has argued that this deviation from maximum allowable standards should be discounted because it is just "one little variance." But the fact is the variance is substantial and exceeds the maximum by a full 20%. And the applicant knew full well that this bold undertaking put the entire project under greater scrutiny.

SMC 23.45.116 "Administrative Conditional Uses - General Provisions "states in section C, D and E:

C. The Director may approve, condition or deny a conditional use. The Director's decision shall be based on a determination whether the proposed use meets the criteria for establishing a specific conditional use and whether the use will be materially detrimental to the public welfare or injurious to property in the zone or vicinity in which the property is located.

D. In authorizing a conditional use, the Director may mitigate adverse negative impacts by imposing requirements and conditions deemed necessary for the protection of other properties in the zone or vicinity and the public interest.

E. The Director shall issue written findings of fact and conclusions to support the Director's decision.

Let me make a few observations about the above prescriptive requirements:

1. The Director is under no obligation to approve a conditional use. The Director is free to deny a conditional use.

2. The Director must issue written "findings of fact" - in other words, the Director's decision must be based on facts. It is clear from the evidence presented by the appellants and the evidence presented by the applicant's own expert witnesses and by testimony given by Ms. Holly Godard, the land use planner who wrote the decision for the director, that the decision was not based on facts. This point cannot be emphasized strongly enough. There were no findings of fact in regards to playground noise in this decision. Despite repeated warnings from neighbors of the school, the land use planner failed to even consider the impacts of playground noise.

The evidence, or actually in some cases the absence of evidence, has demonstrated that Director has erred in the decision, a decision that simply and without foundation concludes: "the proposed institutional expansion in the Lowrise zone is not expected to generate significant increased noise..."

There is a brief discussion in the Decision about an acoustical report from SSA Acoustics and that it is "available for public perusal in the public file. " The appellants have produced and presented this report, in fact all three of them as Exhibits 59, 60, and 61. All three use the same one-day only survey data and NONE of them even mention playground noise and NONE of them project what the noise levels might be when 400 people pack into the new auditorium and adjoining outdoor space attending an evening or weekend event. The applicants' own expert witness from SSA has testified that for the purposes of these reports, he did not measure or evaluate playground noise because he was not contracted to perform this analysis. He testified that his reports focused only on mechanical noise from such equipment items as rooftop fans and cooling units. He referred to an October 21, 2004 Correction Notice from DPD and noted that playground noise was not on the list of items to be considered. But he also testified that he was asked by the applicant to conduct a sound study of playground noise after these reports were prepared and submitted. The testimony was startling. We all heard the expert witness say that the school was clearly operating in violation of the Seattle Noise Ordinance and that the new expansion would most likely operate in violation of the Seattle Noise Ordinance as well. Perhaps, this was a shocking revelation to the city and to the applicants, but it certainly was not surprising to us, the appellants who conducted our own noise survey using a calibrated noise meter provided by DPD and a video camera to capture the full impact of noise in the backyards of neighboring properties. The SSA expert also testified that just spreading the student population to the new playfields would not mitigate the noise levels. He also testified that he would have to develop sophisticated acoustical engineering models to prescribe a mitigating plan for existing and new play fields. The lead DPD planner for this project testified that she did not consider playground noise to be a significant factor and that with this new information from SSA and the DVD presented by the appellants she would have evaluated this aspect of the project very different. There is no question that the Director's decision was improperly evaluated and studied. There is 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. During her review, Holly Godard, received numerous letters and comments from neighbors of the school that playground noise was a serious problem of the school. And yet, she admitted in her testimony that she never ... and I repeat ... she never even considered the effect of playground noise. On this reason and this reason alone, the decision must be reversed.

The SMC Title 25 Environmental Protection and Historic Preservation, Chapter 25.05.030 Policy which speaks to how city departments are to implement SEPA states in section 3:

3. Prepare environmental documents that are concise, clear, and to the point, and are supported by evidence that the necessary environmental analyses have been made.

Section 6 in this same chapter states:

6. Encourage public involvement in decisions that significantly affect environmental quality.

The final SEPA checklist for the decision which was submitted 11-9-04 states on page 11: Read page 11 b. 2) There is no mention of playground noise at all. None. It is impossible for the land use planner or for the director to consider that this SEPA statement is valid. As the evidence and testimony of the applicant's own expert witness has shown, this SEPA statement is incomplete and in error. One could even state that it is misleading. There is no discussion in the decision about the three SEPA Checklists submitted by the applicant of the four ACU applications submitted by the applicant. They ALL ignore, and blatantly fail to report playground noise and NONE even remotely mention special events. The Director's decision is based on erroneous and/or misleading information from the applicant and the applicant's architectural firm and appears to have been accepted at face value in spite of numerous complaints and accounts to the contrary. Without an accurate and valid SEPA statement based on findings of fact, the land use planner and director have no grounds on which to make their decision. Therefore, the Hearing Examiner has no choice but to reverse the decision.

As I mentioned at the beginning of these arguments, the land use planner has accepted without question the school's claim that the project will only result in an enrollment increase of 18 students. However, if we look at the expansion project, we find that there are currently no students playing in playfields in the expansion area. Under testimony, the land use planner testified that it is conceivable that there could only be 18 students playing in the playfields that will be created by the project. This statement is absurd. The impact for the neighbors will be new playfields where there will be hundreds of students playing, and as we have shows in our DVD, screaming at the top of their lungs, yelling, and testing their lung capacity to the fullest. For these new playfields, the impact of the expansion will not be 18 pre-K students. It will be several hundred very active children with ear-splitting vocal chords.

In addition, when we look at the historical enrollment trend of the school, we find that at no time as the school even attempted to limit its enrollment to its capacity. We find a steadily increasing enrollment and based on enrollment figures provided by the applicant, it is clear that in a relatively short time, that the school's enrollment could easily exceed 300 students. This we demonstrated in Exhibit 44. On top of that, a direct result of this expansion is that the school will have hundreds if not thousands of square feet of vacated classroom space in their existing facility. It is absurd to think that the school will leave this space vacated. This project enables the school to add many additional classrooms and dramatically increase their enrollment. Not even considering this potential impact shows that the land use planner and the director failed to take into account the full impact of this expansion project. This alone is sufficient grounds to reverse the decision.

There is no discussion about why existing "for the life of the project" noise "conditions" are removed from school's property at 913 East Lynn Street. The property is not even remotely connected or associated with the proposed project site. For unexplained reasons the decision seeks to suspend use permit conditions established in 1990 concerning internal fencing and school use that has NEVER changed. And the condition has no bearing on the proposed project whatsoever. The appellants have moved that this and this alone should be grounds for reversal of the decision because they are important noise mitigation conditions.

There is NO discussion about conducting a thorough permit search that would have revealed a use permit rendered in 1981 by DCLU (now DPD) that spelled out some very restrictive noise abatement provisions AND the most restrictive noise mitigating provision of all --- a cap or lid on enrollment of 120 with not more than 100 at any one time. While compliance and enforcement are understandably not part of these proceedings before the Hearing Examiner our appellant group could not help but wonder what it would be like it these noise and enrollment conditions applied today. But what clear is 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 decision lacks thoroughness and lacks the information on which to render a bona fide assessment of impact of the injurious impact of noise generated and redistributed to the adjoining vicinity by the applicant.

Considerable evidence, captured through discovery via a Public Disclosure Request (1,246 pages) and a search of DPD's Microfilm Library (approximately 625 pages) has been carefully reviewed and reviewed again. The decision itself is very light on analysis and even lighter on discussion. From all indications is appears that the Director and staff at DPD did not do their homework on this application. Granted they took a seemingly long time to render a decision - almost 10 months. And they and racked up over 110 billable hours. But the supporting material simply doesn't make the case for brushing off the significant noise problems associated with this project and with this institution. The DVD depicting sound meter recordings and proximity of students to the lot lines presented by the appellants speaks for itself. The evidence regarding noise abatement compliance with existing "for the life of the project" permits speaks for itself. The lack of current (and projected) 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 highly questionable and very 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. All of the evidence points to a decision that lacks sufficient due diligence.

This proposed change of use will be materially detrimental to the public welfare and will be injurious to property in the zone or vicinity in which the property is located. This proposed change of use will be materially detrimental to the public welfare and will be injurious to property in the zone or vicinity in which the property is located. The facts are there, the data is real and has been corroborated, and the decision itself is devoid of any discussion or supporting rationale that could begin to challenge these appeals.

The appellants wish to remind that this is an appeal from a determination on an administrative conditional use. As such 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 direct 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.

Presented by Daniel Voran

Representative to Appellants of MUP-05-009

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