LETTER | Potala Village Kirkland Aqua (Path America?) - Legal, Hearings Board and Application Updates

Letter-Stamp Editor:


I have been asked to provide my opinion to the citizens as it relates to the current status of ALL the City of Kirkland and Kirkland Citizen legal challenges, lawsuits and hearings board challenges as well as application status with respect to Potala Village Kirkland Aqua (recently listed also as ownership by Path America LLC).  As you will see, after some relative "calm," the last few weeks have had a tremendous amount of activity.  I apologize in advance for the length of this update (I know it will drive some folks nuts, and they may want to stop at the first 4 bullet points)  For those who want to understand the detail, please persevere).


In brief, the following issues were quiet for awhile but have had major activity during the past two weeks:


1) Shoreline Hearings Board Decisions

2) Submission of a building permit by the applicant that was presumed complete but then failed in its "completeness." Also new conflicts with city zoning codes and other developmental regulations and city policies were introduced with the building permit along with unique attempts that neighbors interpret as attempts to circumvent both the letter and the intent of city rules and regulations.

3) Recognition that the developer allowed Traffic Concurrency Notice to expire, and reapplication for Traffic Concurrency Notice

4) City of Kirkland's disagreement with Potala's claim that they are vested in Feb 2011 zoning code and the City's decision to take their position to the Court of Appeals.


As you will see, things have not slowed down and participation is needed more now than ever!!! If this is important to you, then full participation is still needed.


Information on providing funding for legal support may be found at http://www.stoppotala.com/support-stop/


Questions or comments may be left on the bottom of the following page http://www.stoppotala.com/contacts/


To begin the more comprehensive review of status, it is important to realize that those who are now making decisions are new to the controversy.  In the beginning this was in front of the planning commission and citizens of Kirkland made their case.  Then it passed to the City Council where citizens needed to start the education process from the beginning so the new audience could understand the issues. Then the process began again each time there was a new audience of EIS Consultants, Judges, Hearings Examiners or Hearings Boards.


Now the decisions are in the hands of ANOTHER new audience.  These are the city staff who will be deciding on a building permit and how to "condition" the proposal.  They may use the Draft and Final Environmental Impact Studies as well as their broad authority under the State SEPA regulations to do the right thing for the community.  Many of them may have kept up on the issues involved, but some may have had their attention on other issues and may not understand any of the specific issues.  This is indeed, a cumbersome process requiring the ability to constantly inform new audiences and display the type of unwavering tenacity that has been shown by Kirkland Citizens opposed to a development that does not meet the criteria that they established for subject property during the public process of determining allowed land use for the property with the passage of the 1995 Comprehensive Plan, 2004, 2007, 2009 Plan Updates and multiple governing ordinances (local laws) and developmental regulations and policies that limit or regulate aspects of development.


1. Shorelines Hearings Board Hearing decisions



1a)  All parties put into the record: that all "conditions" of the Shoreline permit will be written with consistent MANDATORY language (reference page 21 of the link above)


The only item not approved as mandatory was the citizen request that a "no further action" letter be issued with respect to the cleanup of any contaminants due to the past use of property as a gas station withunderground tanks and any chemicals associated with the part of the property that was used as a Dry Cleaners.  Citizens argued that a "No Further Action" letter should be obtained from the Department of Ecology prior to the issuance of any land surface modification permit or building permit that is not related to the remediation in order to protect Lake Washington from contamination."  The Hearings board did not feel that there was sufficient evidence that the changes in the provisions were necessary in order to render the Shoreline Permit consistent with the Shoreline Management act and Kirkland's Shorelines Master Plan. [NOTE:  This does not mean that they didn't think it was a good idea, merely that the conditions currently required make it consistent with existing SMA and SMP and that they felt they could not require more than what SMA and SMP require] (reference pg 21-22 of the link above)


1b)  The Board seemed to rule that the applicant with oversight by a professional hired by the city of Kirkland would ensure proper discovery and cleanup of any toxics [NOTE:  This week neighbors found it uncomfortable to find correspondence between the APPLICANT and the CITY wherein the applicant was offering to suggest the names of those who might be hired to "police" the cleanup - This felt like the fox who is hired to watch the chicken coop? Shouldn't the city be finding someone completely independent of the developer?]


1c)  City entered sworn testimony that "EIS conditions" for entire project are not limited to those imposed on the Shoreline Permit


1d)  City entered sworn testimony that further conditions would be part of the Building Permit Application and its review.  This included testimony by Thang Nguyen (Kirkland Staff) that "the city's driveway policy was not part of the City's SMP [Shoreline Master Plan]. and the testimony of Teresa Swan and Thang Nguyen that "the final determination of the site access driveway will be determined by other permits."  The board notes that "final location of the site access driveway remains for later determination" (citations from pg 6 found in the above link).


1e)  Environmental Impact Study (EIS) consultant gave sworn testimony that sufficient 'conditions" could be imposed to mitigate impacts of project


1f)  EIS consultant gave sworn testimony that without sufficient "conditions" NEGATIVE IMPACTS WOULD RESULT

[NOTE: Neighbors argue that It is the City's right and responsibility to "condition" based on Draft EIS, Final EIS and broad SEPA authority - let's see how they do... and what kind of work we pay for with our hard earned tax dollars !!!! ]


1g)  EIS consultant gave sworn testimony that "conditions" for the entire project happen with processing of the  building permit application by city


1h)  Developer gave sworn testimony that their applicant's team was "considering" mitigations to their project


1i)  Developer was asked for a definition of what he meant by "considering mitigations" and which mitigations they were designing into their project. Developer declined any specifics  [NOTE: This week, the developer wrote to the city declining most mitigations of the Final EIS, and offering only what the neighbors consider to be "pseudo-mitigations" or WORDS that sound like mitigation but fail to provide any sufficient relief or remedy]


1j)  Developer gave sworn testimony acknowledging building permit process as the time to address mitigations that can be required of them by the city.


____________BUILDING PERMIT APPLICATION______________


2.   Building Permit Application for Potala Village Kirkland Aqua


2a. Building Permit was submitted by applicant and was almost accepted as complete. Astute citizens, however, advised city staff that the traffic concurrency had expired WITHOUT THE DEVELOPER APPLYING FOR EXTENSION.  The building permit application is therefore INCOMPLETE.


2b.  Building Permit Application was submitted with the owner listed as "Path America LLC," then changed to "Path America LLC and Luella O'Connor," then listed "Potala Village Kirkland LLC and Luella O'Connor."   Meanwhile the permit website listed Mr Lobsang Dargey as the owner and was then changed.  Another interesting change was the original permit listed this as a Commercial building with multifamily and now may list the application as being simply for a multifamily building (confirmation of this change is pending)  Finally, it does not seem to state anything about going for any LEED certification which was the highly touted attribute of the project in their advertising and with the city. Perhaps the developer is still going to strive for LEED certification but neighbors could not find that in the building permit application.


2c.  Citizens believe that a "complete" building permit application is required in order for the developer to "vest" in the building codes and standards (IBC, etc) at the time of the complete application.  Many of the codes and standards have since changed and the developer has not yet submitted a "complete" application.  Citizens believe that now the DEVELOPER MUST RESUBMIT AND MEET NEW BUILDING CODES.


2d.  The recent Building Permit Application introduces MANY NEW CONFLICTS with zoning codes, city developmental regulations and mandatory policies (list of conflicts with zoning codes, developmental regulations and mandatory policies will be addressed later).  The neighbors are unclear as to why the developer seems to be introducing more conflicts rather than correcting items that don't meet zoning code or other developmental regulations including mandatory policies [NOTE: One example is a new driveway location that has been introduced and now seems to maintain the conflicts with driveways across the street (as previously noted) but now adds another major conflict as the newly proposed location of this high volume driveway is 50' or less from Pleasant Bay Apartment driveway which maintains fairly significant volume as well.  This is perhaps less than 1/3 of the city's MANDATORY 150' spacing].


2e.  Neighbors reviewing the Building Permit Application for Potala Village Kirkland Aqua feel that it contains clever, unique attempts to circumvent both the letter and the spirit of zoning codes, developmental regulations and mandatory city policies. They also believe that there are clever attempts to "mix and match" historic zoning policies and interpretations (Feb 2011), with newer 2013 regulations whenever one of the two provides the most favorable result

[NOTE: Citizens expect that we have astute city staff who WON'T BE FOOLED - stay tuned]


2f.  The Building Permit Application (touted as being a change to project based on city and neighbor input) bears engineering date of November 2010.  As this date precedes any knowledge of the project by citizens, the claim made by the developer MAY BE FALSE.


2g.  While city staff has the responsibility for catching ALL conflicts with city  zoning codes, developmental regulations and city policies, the citizens are supplementing the review and notifying the city of conflicts.  CITIZENS STAND READY TO CHALLENGE both the areas they are identifying and any other codes, regulations, rules or policies that the city is required to enforce.



__________TRAFFIC CONCURRENCY NOTICE____________


3.  Traffic Concurrency - Required for Building Permit Application


3a.  Due to the fact that the developer allowed the Concurrency Test Notice to expire, a new application for Traffic Concurrency is required and a building permit may not be applied for until concurrency test is run, a "Notice of Concurrency" is issued and all appeal procedures have run their course.  The city first issues a notice, the citizens (or developer) may then appeal the city's decision to the Hearings Examiner.  If either party remains dissatisfied, the Hearing Examiner has previously stated that the decision might be reviewed in King County Superior Court pursuant to the Revised Code of Washington (Washington State Law) RCW 36.70C.130.


3b.  City staff noted Traffic Data (July) submitted  "MISSING DATA FOR ONE INTERSECTION."  As this project already went through the gymnastics of presenting data, the citizens find it odd that an intersection was "missed." Citizens question whether this is another oversight or whether the data that was obtained was not favorable.  Could someone be fishing for a day when they might document more favorable data?


3c.  The complete data, and thus the Concurrency Notice had an estimated date of Thursday or Friday (8/15, 8/16) and the city was going to present information to fulfill citizen request.  At close of business Friday, no new traffic data or traffic concurrency test/notice was provided.  Citizens have confirmed the availability of the data gathering company and there have been NO dates when they have been unavailable for the study to be conducted to interpret this data. This begs the question "what are we waiting for?"


3d. For use with evaluation and potential appeal of traffic concurrency notice, the citizens and city agreed that the city would provide installments of past traffic concurrency notices/tests.  They were to provide the most recent data first.  Of concern now is the fact that the first installment did not include anything from 2010, 2011, 2012 or 2013 which would have been more recent records and would have included the past documentation of Potala Village. Instead, just 11 pdf documents were provided and they were all from 2009.


3e. The citizens have learned much about traffic concurrency in the past 2.5 years. Also, there have been many changes in assigned "vehicle trips" since Potala Village Kirkland Aqua Dargey Enterprises ran their earlier concurrency test.  We stand ready to review, and if necessary, APPEAL FUTURE CONCURRENCY NOTICE if this project intersection data is ever provided and actually "passes" concurrency. Citizen's believe that video documentation is of LOS F or worse which may not bode well for a project passing concurrency and might suggest an inoperable driveway at LOS F or worse since the queue of traffic beyond the project site will provide no gaps that the industry regards as the minimum "safe gap" for ingress/egress to the site.







4. City of Kirkland is Appealing the Decision of Superior Court.  The City of Kirkland disagrees with the developer's claim that he is "vested" (or entitled to the build the number of units allowed under the zoning codes) at the time that he filed a Shoreline Application without a Building Permit Application


4a.  The city's position is that Mr Dargey, Potala Village Kirkland Aqua and Lobsang Dargey and Tamera Aggasi Dargey did not "vest" in any project greater than 48 units per acre since they did not file a building permit and only a Shorelines Permit.  They cite law that supports their case that only a complete building permit application locks in the zoning codes and regulations in effect at the time of that application.


4b. The city has entered written, sworn testimony from city officials that document the advice they gave the developer suggesting that he talk with his attorney and consider submitting a building permit application so that he could "lock in" the zoning codes and developmental regulations of Feb 2011. [NOTE: In spite of the "warning," no building permit application was submitted during the time when the developer had knowledge and encouragement to do so. The new restrictions allow ONLY 58 UNITS TOTAL on the 1.2 acre property].


4c.  The question arises as to what would happen if the developer begins to build while there is legal dispute over whether he is entitled to a building permit for his intended number of units?  If he begins to build and then the appeals court states that he is not entitled to the permit, one might think that he'll be required to undo any construction that he has begun.  Wouldn't that seem to make sense? Wouldn't this be a risky move on the part of those involved with Potala Village Kirkland Aqua (Path America?) or any claimed owners or investors?  Is there any law that governs what happens if development proceeds while there are ongoing lawsuits challenging the vesting and/or the permit(s)?  Citizens can only speculate since we are not the legal experts.



I hope that my attempt to bring you the information (as I understand it) has been helpful, and I hope those of you who have participated in the visioning for this area of Kirkland will continue to insist that the city only gets development that has been "PLANNED."  Otherwise, of what use are our Comprehensive Plans and what good is citizen participation in Kirkland 2035?


Please continue to support with your $$ (see earlier link) and your question or comments (other earlier link)


Karen Levenson