HomeMy WebLinkAbout7-26-2023 - City's email 1 - RE_ Appeal of CED Deferrals (DEF 23001823; DEF 23001824) [IWOV-PDX.FID4777904]From:Patrice Kent
To:Calvert, Maren L.; Phil Olbrechts
Cc:Katzaroff, Kenneth; Blythe Phillips; McKee, Lisa D.; Schunk, Andrea K.; Wilson-McNerney, Julie;
dzoldak@larsandersen.com; Alex Morganroth; Andrew Van Gordon; Angelea Weihs; Brianne Bannwarth; Clark
Close; Cynthia Moya; Jason Seth; Jennifer Cisneros; Jill Ding; Judith Subia; Margarette Bravo; Matthew Herrera;
Nathan Janders; Robert Shuey; Shane Moloney; Vanessa Dolbee
Subject:RE: Appeal of CED Deferrals (DEF 23001823; DEF 23001824) [IWOV-PDX.FID4777904]
Date:Wednesday, July 26, 2023 4:03:42 PM
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Good afternoon Mr. Hearing Examiner –
The City appreciates the opportunity to respond to the draft scheduling order.
With respect to the draft order, the City respectfully requests five rather than the two business
days to Reply to the Response to the Motion to Dismiss. The Home Depot (THD) will have
had the Motion to Dismiss for nearly a full month by the time their Response is due, and in the
interest of equity the City requests additional time to reply.
With respect to THD request to accommodate an anticipated modification request and related
appeal in the instant Schedule, the City objects to its inclusion to the extent it requires an
extremely expedited response from the City.
THD has had nearly a full year ago to apply for a modification and has delayed doing so.
Despite this, THD now requests accommodating a possible modification (“Deadline to file a
Modification Request (if any)”), with a requirement that the City then provide a decision
within 21 calendar days of receipt of whatever THD submits. The modified schedule
requested by THD will not accommodate a reasonable opportunity to review and reach a
decision on any modification request submitted by THD.
The City has not seen a proposed modification request. The City cannot predict whether a
possible submittal on the proposed date will be complete for review. Given the complexities
of nexus and proportionality analyses, the City anticipates a need for communication with
THD to verify and clarify the grounds for modification.
RCW 36.70B.070(1) provides the City up to 28 days to determine whether an application is
complete, and RCW 36.70B.080(1) allows up to 120 days to issue a decision. While the City
does not anticipate needing the full time permitted by statute to review any modification
application and supporting information, without seeing that application it is impossible to
determine what a reasonable review period may be.
With respect to THD public records responses, the City will continue to respond in a timely
and comprehensive manner in compliance with the law.
The City’s proposed amendment to THD response is as follows:
8/4/23 – Deadline to File Modification Request (if any)
8/4/23 - Response to City Motion to Dismiss.
8/8/23 -08/11/2023 Reply to Motion to Dismiss
8/18/23 – Deadline to file other prehearing motions
8/25/23 – Deadline to publish staff report regarding Modification Request
CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open
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9/1/23 - Response to other prehearing motions
9/5/23 - Replies to other prehearing motions
9/8/23 – Deadline to appeal Modification Request (if any)
9/19/23 Witness and Exhibit Lists due, along with exchange of exhibits.
9/22/23 Rebuttal Witness/Exhibit List along with rebuttal exhibits
9/26/23 Virtual Appeal hearing, 9 am, (Deferral Decisions) (Outlot 1, Outlot 2,
Modification Decision (if any))
Thank you for your consideration –
Patrice
M. Patrice Kent | Senior assistant city attorney
city of renton | 1055 S. Grady Way | renton Wa 98057
pkent@rentonwa.gov | (425) 430-6482
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act establishes a strong state mandate in favor of disclosure of public records. as such, the information you submit to the city via email,
including personal information, may ultimately be subject to disclosure as a public record.
From: calvert, Maren L. <Mcalvert@schwabe.com>
Sent: tuesday, July 25, 2023 2:15 PM
To: Phil Olbrechts <olbrechtslaw@gmail.com>
Cc: Katzaroff, Kenneth <KKatzaroff@ScHWaBe.com>; Blythe Phillips <BPhillips@rentonwa.gov>;
McKee, Lisa D. <LMcKee@schwabe.com>; Schunk, andrea K. <aSchunk@ScHWaBe.com>; Wilson-
Mcnerney, Julie <JWilson-Mcnerney@schwabe.com>; dzoldak@larsandersen.com; alex
Morganroth <aMorganroth@rentonwa.gov>; andrew Van Gordon <aVanGordon@rentonwa.gov>;
angelea Weihs <aWeihs@rentonwa.gov>; Brianne Bannwarth <BBannwarth@rentonwa.gov>; clark
close <cclose@rentonwa.gov>; cynthia Moya <cMoya@rentonwa.gov>; Jason Seth
<JSeth@rentonwa.gov>; Jennifer cisneros <Jcisneros@rentonwa.gov>; Jill Ding
<JDing@rentonwa.gov>; Judith Subia <JSubia@rentonwa.gov>; Margarette Bravo
<MBravo@rentonwa.gov>; Matthew Herrera <MHerrera@rentonwa.gov>; nathan Janders
<nJanders@rentonwa.gov>; robert Shuey <rShuey@rentonwa.gov>; Shane Moloney
<SMoloney@rentonwa.gov>; Vanessa Dolbee <VDolbee@rentonwa.gov>; Patrice Kent
<PKent@rentonwa.gov>
Subject: re: appeal of ceD Deferrals (DeF 23001823; DeF 23001824) [iWOV-PDX.FiD4777904]
Mr. Examiner,
Thank you for the opportunity to review and respond to your draft scheduling order.
The Home Depot appreciates the haste with which the Examiner is proceeding. As previously
mentioned, The Home Depot is planning to submit a modification request to the City in
accordance with condition of approval 34 (“COA 34”) of the Hearing Examiner’s previous
Final Decision, approving The Home Depot’s site plan. COA 34 states:
“The undergrounding of power lines pursuant to RMC 4-6-090 has not yet been addressed in
the staff recommended conditions of approval or the staff report. At hearing, the parties have
agreed to defer resolution of the issue pending further assessment of the applicability of RMC
4-6-090. Applicant’s legal counsel has also raised the issue of Dolan proportionality, which
staff may also have to further assess. At hearing the parties also agreed to subject any
disagreement on the underground issue to hearing examiner appeal. As recommended by staff,
if the parties cannot mutually agree on whether power lines should be undergrounded, the
Applicant shall put its position in the form of a modification request and the resulting staff
decision shall be subject to hearing examiner appeal.”
Final Decision at pages 21 line 23 to page 22 line 3 (21:23-22:3). Given that the essence of
The Home Depot’s appeal related to Grady Way (Outlot 1) is based upon the ongoing dispute
a to the Nollan and Dolan constitutional requirement for proportionality and nexus, the
modification request and the appeal regarding Outlot 1 are intimately, and inextricably,
related. The questions presented in each are the same.
Accordingly, in the interests of judicial economy and efficiency, The Home Depot respectfully
requests that the Pre-hearing Order accommodate the inevitable appeal on The Home Depot’s
modification request. We do not think adding an appeal of the modification request to the pre-
hearing schedule will introduce any new issues or argument, and thus, it should not delay the
schedule or prejudice any party. The modification request (and its appeal) will simply tee-up
the question presented in the Outlot 1 appeal, in a succinct format.
The Home Depot has also submitted public records requests related to the instant appeals. If
the responses to those requests are timely produced, The Home Depot is unlikely to need to
conduct discovery during the appeal proceedings. If timely productions are not forthcoming,
The Home Depot may file a motion to compel production of public records/approval to
conduct discovery at or before the time indicated in the draft scheduling order for “other
motions.”
Given the issues discussed above, The Home Depot proposes the pre-hearing schedule could
be adjusted as follows:
8/4/23 – Deadline to File Modification Request (if any)
8/4/23 - Response to City Motion to Dismiss.
8/8/23 - Reply to Motion to Dismiss
8/18/23 – Deadline to file other prehearing motions
8/25/23 – Deadline to publish staff report regarding Modification Request
9/1/23 - Response to other prehearing motions
9/5/23 - Replies to other prehearing motions
9/8/23 – Deadline to appeal Modification Request (if any)
9/19/23 Witness and Exhibit Lists due, along with exchange of exhibits.
9/22/23 Rebuttal Witness/Exhibit List along with rebuttal exhibits
9/26/23 Virtual Appeal hearing, 9 am, (Outlot 1, Outlot 2, Modification Decision (if any)).
In addition, it appears there is some extraneous language in the draft order on page 2 lines 15
and 16 regarding a motion for reconsideration, which the Examiner may want to remove or
modify.
Thank you for your time and attention,
Maren
Maren Calvert
Shareholder
Pronouns: she, her, hers
(360) 597-0804
mcalvert@schwabe.com
From: Phil Olbrechts <olbrechtslaw@gmail.com>
Sent: Friday, July 21, 2023 9:55 aM
To: Patrice Kent <PKent@rentonwa.gov>
Cc: Katzaroff, Kenneth <KKatzaroff@ScHWaBe.com>; Blythe Phillips <BPhillips@rentonwa.gov>;
McKee, Lisa D. <LMcKee@schwabe.com>; calvert, Maren L. <Mcalvert@schwabe.com>; Schunk,
andrea K. <aSchunk@ScHWaBe.com>; Wilson-Mcnerney, Julie <JWilson-
Mcnerney@schwabe.com>; dzoldak@larsandersen.com; alex Morganroth
<aMorganroth@rentonwa.gov>; andrew Van Gordon <aVanGordon@rentonwa.gov>; angelea
Weihs <aWeihs@rentonwa.gov>; Brianne Bannwarth <BBannwarth@rentonwa.gov>; clark close
<cclose@rentonwa.gov>; cynthia Moya <cMoya@rentonwa.gov>; Jason Seth
<JSeth@rentonwa.gov>; Jennifer cisneros <Jcisneros@rentonwa.gov>; Jill Ding
<JDing@rentonwa.gov>; Judith Subia <JSubia@rentonwa.gov>; Margarette Bravo
<MBravo@rentonwa.gov>; Matthew Herrera <MHerrera@rentonwa.gov>; nathan Janders
<nJanders@rentonwa.gov>; robert Shuey <rShuey@rentonwa.gov>; Shane Moloney
<SMoloney@rentonwa.gov>; Vanessa Dolbee <VDolbee@rentonwa.gov>
Subject: re: appeal of ceD Deferrals (DeF 23001823; DeF 23001824) [iWOV-PDX.FiD4777904]
Draft prehearing order attached. Please let me know if you agree with dates (and waive any
rights to speedier appeal date) and also any additional email addresses you'd like added to the
distribution list. Please respond by 5 pm, 7/26/23.
On Wed, Jul 12, 2023 at 10:47 AM Patrice Kent <PKent@rentonwa.gov> wrote:
Good morning –
CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open
attachments unless you know the content is safe.
Hearing examiner Olbrechts – thank you for the reminder regarding filing procedures. i will not
make that error again.
Ken – thank you for sending the update.
regards,
Patrice
M. Patrice Kent | Senior assistant city attorney
city of renton | 1055 S. Grady Way | renton Wa 98057
pkent@rentonwa.gov | (425) 430-6482
cOnFiDentiaLitY nOtice: this e-mail, including any attachments, is confidential and may include privileged information. if you are
not the intended recipient, or believe you have received this e-mail in error, please do not copy, print, forward, re-transmit, or
otherwise disseminate this e-mail, its contents, or any of its attachments. Please delete this e-mail. also, please notify the sender that
you have received this e-mail in error.
PUBLic DiScLOSUre: Please be advised the city of renton is required to comply with the Public Disclosure act chapter 42.56 rcW.
this act establishes a strong state mandate in favor of disclosure of public records. as such, the information you submit to the city via
email, including personal information, may ultimately be subject to disclosure as a public record.
From: Katzaroff, Kenneth <KKatzaroff@ScHWaBe.com>
Sent: Wednesday, July 12, 2023 10:44 aM
To: Phil Olbrechts <olbrechtslaw@gmail.com>; Blythe Phillips <BPhillips@rentonwa.gov>
Cc: McKee, Lisa D. <LMcKee@schwabe.com>; calvert, Maren L. <Mcalvert@schwabe.com>;
Schunk, andrea K. <aSchunk@ScHWaBe.com>; Wilson-Mcnerney, Julie <JWilson-
Mcnerney@schwabe.com>; dzoldak@larsandersen.com; alex Morganroth
<aMorganroth@rentonwa.gov>; andrew Van Gordon <aVanGordon@rentonwa.gov>; angelea
Weihs <aWeihs@rentonwa.gov>; Brianne Bannwarth <BBannwarth@rentonwa.gov>; clark close
<cclose@rentonwa.gov>; cynthia Moya <cMoya@rentonwa.gov>; Jason Seth
<JSeth@rentonwa.gov>; Jennifer cisneros <Jcisneros@rentonwa.gov>; Jill Ding
<JDing@rentonwa.gov>; Judith Subia <JSubia@rentonwa.gov>; Margarette Bravo
<MBravo@rentonwa.gov>; Matthew Herrera <MHerrera@rentonwa.gov>; nathan Janders
<nJanders@rentonwa.gov>; Patrice Kent <PKent@rentonwa.gov>; robert Shuey
<rShuey@rentonwa.gov>; Shane Moloney <SMoloney@rentonwa.gov>; Vanessa Dolbee
<VDolbee@rentonwa.gov>
Subject: re: appeal of ceD Deferrals (DeF 23001823; DeF 23001824) [iWOV-PDX.FiD4777904]
Hearing examiner Olbrechts –
We continue to attempt to resolve the dispute and have identified a potential path forward. to
that end, we are anticipating filing a motion to stay, or other similar motion, for both appeals in
the next few days. it may be or may not be joined by the city pending additional discussion later
this afternoon.
Best,
Ken
Kenneth Katzaroff
Shareholder
D: (206) 405-1985
kkatzaroff@schwabe.com
From: Phil Olbrechts <olbrechtslaw@gmail.com>
Sent: Wednesday, July 12, 2023 10:15 aM
To: Blythe Phillips <BPhillips@rentonwa.gov>
Cc: Katzaroff, Kenneth <KKatzaroff@ScHWaBe.com>; McKee, Lisa D. <LMcKee@schwabe.com>;
calvert, Maren L. <Mcalvert@schwabe.com>; Schunk, andrea K. <aSchunk@ScHWaBe.com>;
Wilson-Mcnerney, Julie <JWilson-Mcnerney@schwabe.com>; dzoldak@larsandersen.com; alex
Morganroth <aMorganroth@rentonwa.gov>; andrew Van Gordon
<aVanGordon@rentonwa.gov>; angelea Weihs <aWeihs@rentonwa.gov>; Brianne Bannwarth
<BBannwarth@rentonwa.gov>; clark close <cclose@rentonwa.gov>; cynthia Moya
<cMoya@rentonwa.gov>; Jason Seth <JSeth@rentonwa.gov>; Jennifer cisneros
<Jcisneros@rentonwa.gov>; Jill Ding <JDing@rentonwa.gov>; Judith Subia
<JSubia@rentonwa.gov>; Margarette Bravo <MBravo@rentonwa.gov>; Matthew Herrera
<MHerrera@rentonwa.gov>; nathan Janders <nJanders@rentonwa.gov>; Patrice Kent
<PKent@rentonwa.gov>; robert Shuey <rShuey@rentonwa.gov>; Shane Moloney
<SMoloney@rentonwa.gov>; Vanessa Dolbee <VDolbee@rentonwa.gov>
Subject: re: appeal of ceD Deferrals (DeF 23001823; DeF 23001824)
Good morning. As far as I can tell it appears that the parties are out of settlement
negotiations and we need a scheduling order. I also found out today that embedded in the
City's "response" is a motion to dismiss. For future reference I ask the city to make its
motions separate from its prehearing briefing so that I'm made aware of the need to set
response and reply dates. I will distribute a draft prehearing order later today.
On Thu, Jul 6, 2023 at 4:25 PM Blythe Phillips <BPhillips@rentonwa.gov> wrote:
Good afternoon,
On behalf of Sr. City Attorney M. Patrice Kent representing the City in the above-titled
action, attached is the City’s response to the Home Depot Appeals of Deferral for Outlots
1 and 2 under LUA 21-000542.
Hard copies have been placed in the mail to Kenneth Katzaroff, counsel for the Appellant,
The Home Depot. Declarations of Service are also attached.
Please let me know if you have any difficulty opening the attachments.
Thank you,
Blythe PhilliPs
Senior Paralegal
Renton City Attorney
1055 South Grady Way
Renton WA 98057
Direct Line: (425) 430-6493 | Fax: (425) 430-6498
__________________________________________________________
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__________________________________________________________
NOTICE: This email may contain material that is confidential, privilegedand/or attorney work product for the sole use of the intended recipient. Anyreview, reliance or distribution by others or forwarding without expresspermission is strictly prohibited. If you are not the intended recipient,please contact the sender and delete all copies.