Sleight of hand, or léger de main, is the set of techniques used to manipulate objects secretly. Advanced sleight of hand can be performed proficiently in front of others.

There are hundreds of different sleights but they can generally be classified into groups such as switches or changes. A well-performed sleight looks like an ordinary, natural and completely innocent gesture, change, position or posture.

Misdirection is perhaps the most important component of the art of sleight of hand. Techniques are employed so that observers are likely to look where they are guided. More importantly, the techniques distract and prevent observation or review of those items being secretly manipulated.

So here’s the question that I’m posing with this letter. Is the building application for the project at 10th Avenue South and Lake Street South straightforward, easy to interpret and fully compliant with zoning codes? Or are there areas where codes seem to be subject to some pretty rigorous manipulation?

Potala Village – Kirkland Aqua – Path America LLC – It is a bit confusing to follow the name. Certain websites seem to have only referred to the project as Kirkland Aqua, other times Potala Village, Potala Village Kirkland, Path America LLC or Path America Kingco LLC have been used.

The websites also continue to show three different projects for 10th Avenue South and Lake Street South.

One project coincides with the proposal that was submitted in 2011 with the shorelines application. Another is the proposal that has come forward for a building permit (and has also been found on Path America’s Chinese tab that displays a 2009 copyright.

A third rendition appears on the English tab of the Pathamerica website. Basically, this is just flat out confusing. Nothing magical here, I’m just confused trying to follow it.

Confusion on building’s stories

How does a four-story building have floor plates for five stories?

Now comes the confusion that may divert attention away from zoning non-conformances.

As one looks at the building plans as submitted, the top three floors are clearly residential (likely conforming to zoning code).

But what about the ground floor? This is where a reviewer needs to be vigilant and keep both eyes on the ball. The ground floor (under the applicable 2011 code) prohibits residential uses. So, what happens when the ground floor is drawn as two separate pieces?

The front half of the ground floor becomes an architectural drawing of retail uses and is titled “ground floor.” The back half of the ground floor is an architectural drawing titled “first floor residential” and contains 15 residential units.

Is this straightforward, or is it does it utilize “misdirection” so that busy reviewers may fail to recognize that it is the ground floor in the back that has just been re-named, and thus may fail to apply the appropriate zoning restrictions?

The zoning code for Potala Village requires 75 percent of ground floor retail, restaurants, taverns or offices.

Again, if you have two different sections of the ground floor, you comply with this requirement on the half of the ground floor that you title “ground floor” and you do not comply in the back portion of the ground floor because that portion has the name “first floor residential,” in spite of its ground floor location. Straightforward? Or a manipulation made with seemingly innocent architectural drawings?

What about required setback from Lake Street South

Here again, it appears that redefining ABE (Average Building Elevation … or more simply, height), may be the strategy to prevent the project from being appropriately set back from our major arterial. Under the codes, a project must have increased setback from Lake Street based upon the building’s ABE.

But what if the developer were to create sections of building. Then only provide setback based on a lower area of the building’s height? I cannot find anywhere in our codes that allow a portion of the building to qualify as the ABE of “the building.” Is this straightforward, or should this be adding confusion and creating a distortion in the way Kirkland applies its zoning code?

What about parking

Generally, parking is a very thorny issue, and in this case there are several concerns. First is the fact that code does not allow ground floor residential parking. But the ground floor that is titled “first floor residential” includes residential parking and a reviewer may not notice that residential parking is improperly placed on this level.

A second issue surrounds whether parking that is used 16 hours per day to support residential units is properly called commercial shared parking (Planning Commission and/or City Council discussion indicated this should be classified as residential parking when shared in this manner).

The third issue is around whether staff allows support columns to encroach into the widths of parking stalls (in 2011 they were disallowed, but a new ordinance in 2013 now allows them).

Keep in mind that Judge Monica Benton decreed that the project would be reviewed under 2011 codes, rules, etc.

So, is this some sort of zoning magic? Many neighbors were disappointed to hear that Judge Benton allowed the developer to “vest” under the old codes, regulations, and staff decisions of 2011. They recognize that the judge’s decision has been challenged in the Court of Appeals and that the City of Kirkland holds the position that Potala Village-Kirkland Aqua-Path America does not have the right to build 96 units.

The zoning that was put in place allows just 48 units per acre. In the meantime, even the 2011 zoning seems to be stretched by the developer’s interpretations, re-designations and unique presentation of facts.

I am not an expert, but I feel uncomfortable with a ground floor becoming two different “pieces” of ground floor with unique titles. If I recall correctly, the ground floor of the 143 unit proposal had just one ground floor called ground floor (not two components of ground floor).

I am uncomfortable with ABE being represented in sections rather than the ABE of the building as a whole. I am uncomfortable with the appearance that perhaps columns narrow parking spaces since staff previously did not allow and the code just changed in 2013 (so this was not applicable to a project that vested in 2011 codes, rules, interpretations, etc).

I hope that city staff is vigilant in enforcing all the development regulations, including the development regulations that include “all other codes, ordinances or regulations of the city containing regulations regarding the use, development and/or modification of land and/or structures.”

Neighbors have argued that the ordinances that implemented the “very small mixed-use building” and the Comprehensive Plan’s 12 residential units per acre on the east side of Lake Street South and Lake Washington Boulevard, and the restrictions due to ingress and egress issues at the “southeast corner of Lake Street South and 10th Avenue South are but some of the development regulations that apply to the building permit.

Karen Levenson, Kirkland