Wednesday, February 11, 2009



February 11, 2009

City Councilmembers
City Hall, 600 4th Avenue, 2nd floor
P.O. Box 94749
Seattle, Washington 98124-4749


Dear City Councilmembers:

The Seattle Community Council Federation understands that the City Council may vote as early as February 17 on a historic weakening of Seattle’s noise ordinance. In addition to other points made below, we urge that the Council not create for public agencies a major construction variance that could last the lifetime of each project. This would be another example of government as regulator going easier on itself than on others. If any such variance is to be created, it must not have a term of more than one year.

We suggest that as currently proposed, the variance for major public construction projects would go back on this uniquely strong commitment that the City Council made in the noise ordinance (SMC 25.08.010): “It is the express intent of the City Council to control the level of noise in a manner which promotes commerce; the use, value and enjoyment of property; sleep and repose; and the quality of the environment.”

Public construction variance must not be for more than one year at a time. The proposal that public agencies receive a variance for up to the lifetime of a project would dramatically weaken the noise ordinance. Currently, most major public projects rely on noise variances that last no more than two weeks, and they are being built successfully under this process.

This current need to re-apply for variances is a self-correcting process. The City and the public identify improvements for future variances as mistakes emerge from earlier variances. As the City Council committee was informed by staff at the December 16 meeting, the City cannot legally change the basics of a variance after it is issued. If the Council were to allow DPD to issue a variance for the life of each project, loopholes later discovered in the variance could not be corrected without facing a lawsuit from the public construction agency that holds the variance.

Appeals—and the very potential of their being filed—are an important tool for the public to protect itself from undue DPD permissiveness with public construction agencies. But the Transportation Committee’s proposal would limit appeals to Seattle's Hearing Examiner only about the initial application for this “forever” variance, and would allow appeals to Superior Court only up to the decision--one year into the variance--when DPD makes the variance permanent for the life of the project.

We are not assured by the December 16 amendment language requiring that the new variance be only for the minimum period needed, by claims that DPD can change the variance in mid-stream, and by promises of other protections to be included in the Director’s Rule. These provisions leave great and inappropriate discretion to the Mayor and DPD that is more likely to be used to loosen the variance further than to strengthen it, and the Director’s Rule can be changed at any time. Later legislation attempting to strengthen the variance process could not legally apply to an existing variance, which would be governed by what the noise ordinance said at the time that the variance was issued.

With projects like the Alaska Way Viaduct replacement, SR-520, and the next phase of Sound Transit light rail, Seattle is about to experience the largest and noisiest construction in its history. This is not the time to weaken the noise ordinance, an important bulwark of livability and the public health. The proposed construction variance would lock in permissive treatment of night-time construction noise that Seattle residents and businesses would suffer from for a decade. Please don’t do it.

If the Council must create a public construction variance, it must be for no longer than one year, with each additional year by a separate application that can be appealed to the Hearing Examiner. Experience with a past year's variance would ensure the best decision on next year’s application, as would a yearly right of appeal to the Hearing Examiner.

Don’t repeal the current right to appeal temporary variances to the Hearing Examiner. Another serious weakening in the noise ordinance that the City Council’s Transportation Committee adopted on December 16 was to eliminate the current right to appeal any temporary noise variance to the Hearing Examiner. This change went far beyond transportation projects, as temporary variances can exempt an applicant from any part of the noise ordinance, such as provisions on nightlife noise. We are glad to hear that Councilmember Sally Clark, Vice Chair of the Transportation Committee, no longer supports this change, and we urge you to support her in keeping the noise ordinance’s current right to appeal temporary variances.

Don’t repeal the current requirement for due notice about public meetings regarding proposed variances. We also welcome that Councilmember Clark wishes to reverse the committee’s December 16 repeal of the current requirement for a “public meeting on due notice” for any proposed variance of more than two weeks. However, we urge that in doing so, the Council should not fail to restore the requirement that the meeting have “due notice,” and that “due notice” must be required not only of the public meeting, but of the deadline for written public comment.

Need for public outreach on this legislation. The City Council has not provided for the public outreach that must occur before a policy change of this magnitude is imposed on the public. DPD did absolutely no public outreach on these proposals before presenting them to the City Council on April 16. It is not enough for the Council to blame the executive; the Council must either send the proposal back for a true process, or conduct that process itself, and has done neither. With an issue like this which affects people’s health and their ability to live in the city, it is essential for the City Council to ensure widespread public notice, discussion, and the opportunity to comment. There should be a series of public meetings, and notice of the proposal should be sent to those who have commented to DPD in the past on noise from major public construction projects.

Land Use Information Bulletin must not be used to curtail Council and public debate. It was a disservice to public debate that the December 25 and January 26 issuances in the Land Use Information Bulletin did not list as a possible Council action the limitation of the proposed public construction variance to a one-year term. Its omission has caused the Councilmembers not to receive thorough analysis of this reasonable measure, and the noise ordinance amendments should be postponed until its omission from the Land Use Information Bulletin is corrected. In any case, the Council should recognize that listing of this proposal in the Land Use Information Bulletin is not required prior to its adoption. Such listing is mandated only by the state’s Growth Management Act, and only for development regulations, which as defined by the GMA do not include the noise ordinance.

Thank you for considering the views of the Seattle Community Council Federation.


Jeannie Hale, President
3425 West Laurelhurst Drive NE
Seattle, Washington 98105
206-525-5135 / fax 206-525-9631

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