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Home My WebLink About8-2-2023 - City Email 2nd RE_ Appeal of CED Deferrals (DEF 23001823; DEF 23001824) [IWOV-PDX.FID4777904]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. From:Patrice Kent To:Phil Olbrechts; Calvert, Maren L.; Cynthia Moya Subject:RE: Appeal of CED Deferrals (DEF 23001823; DEF 23001824) [IWOV-PDX.FID4777904] Date:Wednesday, August 2, 2023 3:23:16 PM Attachments:image001.png image002.png image003.png The City appreciates the Hearing Examiner’s clarification, and has no objection to following the current briefing deadline. 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: Phil Olbrechts <olbrechtslaw@gmail.com> Sent: Wednesday, august 2, 2023 2:53 PM To: Calvert, Maren L. <MCalvert@schwabe.com>; Cynthia Moya <CMoya@Rentonwa.gov>; Patrice Kent <PKent@rentonwa.gov> Subject: Re: appeal of CED Deferrals (DEF 23001823; DEF 23001824) [iWOV-PDX.FiD4777904] Mr. Calvert raises a good point on using a more clearly defined procedural mechanism for staying the proportionality issue. Please see the attached revisions to Paragraph G and let me know if that appropriately resolves the issue. in the meantime the existing prehearing order is still in effect along with its associated briefing deadlines. i'm assuming that is now acceptable to the City given the resolution of Mr. Calvert's other issues but if not please advise. On Wed, aug 2, 2023 at 1:54 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: Disregard my last email, Mr. Calvert's email came in while i was preparing it. On Wed, aug 2, 2023 at 1:53 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: at this point i'm limiting the email recipients to those specified in the prehearing order so we don't interrupt the day of 15 other people who don't have any urgent need to keep up on this discussion. Mr. Calvert. i'm puzzled by your comment that "the undergrounding of power lines – which is the only topic raised in Appeal DEF23001823 (“Outlot 1”)." i've looked at the site plan of the project and the Deferral Decision for Outlot 1. The site plan shows that Outlot 1 fronts on both Grady and Talbot. The decision under appeal for Outlot 1 identifies that there are $226,769.50 in Talbot improvements required for Outlot 1. Given that your appeal argument appears to be that no improvements should be required for any Talbot frontage, are you still maintaining that the Outlot 1 appeal is limited to the undergrounding issue? if not, doesn't it then make sense to keep the prehearing order "as is" by consolidating the appeals of both Outlot 1 and 2? as far as my question about including underground proportionality in the City's finality argument, i was not asking for any response to that issue. if it makes no sense to include the proportionality issue in the City's finality argument, then i would expect to hear nothing about it from the parties. i don't have the documents to show that the undergrounding of the lines is included in Talbot street frontage improvements or that the City was including undergrounding in its finality argument. i just knew that if the lines were associated with the City's building finality argument that the modification request probably wouldn't alter the legal or factual arguments necessary to resolve the issue so that it could be addressed up front. if moving forward with the prehearing order will still take significant more discussion we can do a virtual meeting. Hopefully we're close to moving on and that won't be necessary. On Wed, aug 2, 2023 at 10:32 aM Calvert, Maren L. <MCalvert@schwabe.com> wrote: Mr. Examiner, My apologies but i fear we are continuing to talk past each other. Given that we have all exchanged several emails to try to sort this out, we respectfully propose that it may be most efficient for everyone to schedule a call so all parties can discuss and iron out the details once and for all. Your comment below “[t]he current appeal is a consolidation of appeal for both outlots for the frontage improvements on Talbot…” is not an accurate summary of the appeals we intended to file (and believe we did file). appeal DEF23001823 (“Outlot 1”) does not relate to Talbot or frontage improvements, per se. it relates to the undergrounding of power lines near Grady avenue. appeal DEF23001823 (“Outlot 1”) does not challenge the rest of the frontage improvements along Grady, or FOF no. 4F, as discussed in your email from July 28, 2023, below. if the upcoming hearing is not going to address the undergrounding of power lines – which is the only topic raised in appeal DEF23001823 (“Outlot 1”) and will be the subject of the modification request – respectfully, there is nothing left in appeal DEF23001823 (“Outlot 1”) to consolidate with appeal DEF23001824 (“Outlot 2”). Regarding building permit approvals, to The Home Depot’s knowledge, the City’s argument regarding building permit approvals applies only to the proposed frontage improvements along Talbot. Certainly, we defer to the City as to their arguments. The proposed frontage improvements on Talbot relate to appeal DEF23001824 (“Outlot 2”) only. The modification request is not intended to address the proposed frontage improvements along Talbot. Thus, we do not understand how building permit finality (relating to Talbot/Outlot 2) has any bearing on powerline undergrounding (relating to Grady/Outlot 1) – and thus we are presently unable to respond to your comment: “if the parties mutually agree to address building permit finality on proportionality now i'll add that to the prehearing order.” We respectfully request a quick virtual meeting, a scheduling hearing of sorts, to sort all of this out. We can be available almost any time this week, if the Examiner agrees that would be helpful. Maren Maren Calvert Shareholder Pronouns: she, her, hers (360) 597-0804 mcalvert@schwabe.com From: Phil Olbrechts <olbrechtslaw@gmail.com> Sent: Wednesday, august 2, 2023 7:19 aM To: Patrice Kent <PKent@rentonwa.gov> Cc: Calvert, Maren L. <MCalvert@schwabe.com>; 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> Subject: Re: appeal of CED Deferrals (DEF 23001823; DEF 23001824) [iWOV- pdx.FiD4777904] Final order (hopefully) attached. The current appeal is a consolidation of appeal for both outlots for the frontage improvements on Talbot, except for undergrounding of power lines and associated security, which will be addressed in the applicant's deferral request. One issue the parties may voluntarily want to agree to address now is whether the nykreim finality of the building permit approvals precludes consideration of the applicant's proportionality claims. if that issue isn't comprehensively addressed now, the parties may find themselves with the added burden of having to deal with whether collateral estoppel applies in the modification request. if the parties mutually agree to address building permit finality on proportionality now i'll add that to the prehearing order. On Tue, aug 1, 2023 at 1:55 PM Patrice Kent <PKent@rentonwa.gov> wrote: Good afternoon Mr. Hearing Examiner, et al– The City has no objections with respect to the draft pre-hearing order schedule. The City requests clarification on the following: Paragraph B appears to be using language for a reconsideration template referencing a party not in this case (Mr. Plotnikov). The City presumes your intent was to maintain the Exhibit and Witness lists requirements, and to reference the current appeal and parties. Paragraph F: the City presumes the Supplemental Motion to Dismiss for both appeals is due on Friday august 4, 2023. This is based on the City’s interpretation that the Deferral appeal for Outlot 1, not related to undergrounding requirements, will continue on this schedule (see next bullet point). Paragraph G denies the motion for a stay, and appears to consolidate any appeal of undergrounding of utility lines related to the Outlot 1 (Grady Way) (Deferral 23001823) and security deferral decision with an anticipated modification application. is the City correct in its interpretation, and if so will this proceeding continue to consider any street improvements aside from the utility undergrounding? 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 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. 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: Calvert, Maren L. <MCalvert@schwabe.com> Sent: Tuesday, august 1, 2023 8:48 aM To: Phil Olbrechts <olbrechtslaw@gmail.com> Cc: Patrice Kent <PKent@rentonwa.gov>; 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> Subject: RE: appeal of CED Deferrals (DEF 23001823; DEF 23001824) [iWOV- pdx.FiD4777904] Mr. Examiner, Thank you for the opportunity to review and respond. Page 2 lines 15 and 16 state: “The parties are required to exchange witness and exhibit lists for Mr. Plotnikov’s motion for reconsideration per the schedule below.” We think this sentence does not refer to the instant appeals as there is no motion for reconsideration pending before the Examiner. We understand your instruction that The Home Depot’s motion for a stay was denied. Page 3 lines 7-9 also state: “Consequently, the issue of whether Home Depot must underground the power lines and the amount of security for the associated deferral will be considered outside the scope of this appeal and assigned to the modification request review and appeal process.” Does that mean “the issue of whether Home Depot must underground the power lines and the amount of security for the associated deferral,” which is the issue presented in appeal DEF23001823 (“Outlot 1”), will not be heard on this proposed schedule? if not, will appeal DEF23001823 be heard on a different schedule or stayed? (The cover sheet of the Draft Pre-hearing Order also recites only appeal number DEF23001824.) On page 3 lines 1-3, we understand you are requesting a supplemental motion to dismiss in appeal DEF23001824 (Outlot 2/Talbot). are you also asking for a supplemental motion to dismiss in appeal DEF23001823 (Outlot 1/Grady) (assuming it is not stayed)? Thank you, Maren Maren Calvert Shareholder Pronouns: she, her, hers (360) 597-0804 mcalvert@schwabe.com From: Phil Olbrechts <olbrechtslaw@gmail.com> Sent: Friday, July 28, 2023 12:58 PM To: Calvert, Maren L. <MCalvert@schwabe.com> Cc: Patrice Kent <PKent@rentonwa.gov>; 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> Subject: Re: appeal of CED Deferrals (DEF 23001823; DEF 23001824) [iWOV- pdx.FiD4777904] attached is a revised pre-hearing motion. Paragraphs F-H are fairly self-explanatory. Since the revisions are substantial, the parties can have another opportunity to comment by next Tuesday, 8/1/23 if there are still any concerns. it is understood that Home Depot is asking for additional time, not less. However, i want the record to be clear that there are no problems with the appeals process taking as long as it has. if the October hearing date is too far out for any party, please advise and i will see what i can do to shorten the deadlines. The revised order gives the City an opportunity to supplement its motion to dismiss. There is at least one very significant piece of information that both parties appear to have overlooked on the issue of FOF no. 4F of the Home Depot Final Decision. Most of the language from FOF no. 4 referenced in the appeal as binding on the parties was stricken in the Final Decision on Reconsideration. The following sentences were stricken from the Final Decision under Paragraph 3 of the Reconsideration decision: The SEPA review did not impose any off-site traffic mitigation or impose any fees. SEPA mitigation was limited to requiring frontage improvements along Grady Way. it may also be of use for the parties to understand that the last paragraph of FOF no. 4, referencing i-Line improvements, was copied verbatim from Page 42 of the staff report. Finally, it may also be of use to see how the findings can be functionally interpreted to meet review criteria. The first sentence of FOF no. 4, that traffic impacts are adequately mitigated, is the finding necessary to establish compliance with review criteria. The following two paragraphs of that Finding are a summary of the background information used to make the finding that impacts are adequately mitigated. The summary was based upon pages 6-7 of the ERC (SEPa) report and the quoted page 42 language from the staff report. it appears that the stricken language above incorrectly characterized Grady frontage improvements as SEPa mitigation. Since no SEPa mitigation measure was adopted requiring frontage improvements on Talbot or Grady, it doesn't appear that frontage improvements were required under SEPa. it is up to the parties to argue whether a summary of background information can be used to set mitigation requirements. in any case, the significance of the FOF no. 4 background information appears to be largely nullified by the fact that the most pertinent parts to the appeal were stricken by the reconsideration decision. To complete the record on the City's motion to dismiss, the City is requested to submit the approved building permit construction plans it references in its motion with the Talbot improvements highlighted and any other documentation showing that Talbot frontage improvements were made a condition of building permit approval. additional clarification on when the permit was approved and what the permit covered is also requested. On Wed, Jul 26, 2023 at 4:30 PM Calvert, Maren L. <MCalvert@schwabe.com> wrote: Mr. Hearing Examiner, at the risk of beating a dead horse, The Home Depot (THD) would like to make the following observations. 1. The City did not take a firm position or issue a decision on the frontage improvements until april 2023. When it did, THD objected. The City responded that THD’s only option was to request a deferral – which THD did. Since then, THD has been working with the city to find a way to address the modification request in a timely and appropriate fashion. 2. While nexus and proportionality analyses might be complicated in some contexts, this is not the first time the parties have thought about or debated this issue. in fact, the parties and the Examiner debated this issue, in some respects, a year ago. The modification request will not raise new issues or new considerations. it is essentially the same thing the parties will be briefing during the deferral appeal related to Outlot 1. 3. THD requested a stay to allow the City more time to address the modification request. The City opposed such a stay. 4. THD would not object to adjusting the schedule to allow more time, but logistically and administratively, there is no reason for these issues to be addressed by the Examiner separately. if the Examiner would prefer THD file a motion to consolidate, THD can certainly do so. Thank you for your time and consideration, Maren Maren Calvert Shareholder Pronouns: she, her, hers (360) 597-0804 mcalvert@schwabe.com From: Patrice Kent <PKent@rentonwa.gov> Sent: Wednesday, July 26, 2023 4:04 PM To: Calvert, Maren L. <MCalvert@schwabe.com>; 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> Subject: RE: appeal of CED Deferrals (DEF 23001823; DEF 23001824) [iWOV- PDX.FiD4777904] 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 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 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: 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 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. 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 – 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 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. 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 __________________________________________________________ NOTICE: This email may contain material that is confidential,privileged and/or attorney work product for the sole ‎use of theintended recipient. Any review, reliance or distribution by othersor forwarding without express ‎permission is strictly prohibited.If you are not the intended recipient, please contact the senderand ‎delete all copies.‎ __________________________________________________________ NOTICE: This email may contain material that is confidential,privileged and/or attorney work product for the sole ‎use of theintended recipient. Any review, reliance or distribution by othersor forwarding without express ‎permission is strictly prohibited. Ifyou are not the intended recipient, please contact the sender and‎delete all copies.‎ __________________________________________________________ NOTICE: This email may contain material that is confidential,privileged and/or attorney work product for the sole ‎use of theintended recipient. Any review, reliance or distribution by othersor forwarding without express ‎permission is strictly prohibited. Ifyou are not the intended recipient, please contact the sender and‎delete all copies.‎ __________________________________________________________ NOTICE: This email may contain material that is confidential,privileged and/or attorney work product for the sole ‎use of theintended recipient. Any review, reliance or distribution by others orforwarding without express ‎permission is strictly prohibited. If youare not the intended recipient, please contact the sender and ‎deleteall copies.‎ __________________________________________________________ NOTICE: This email may contain material that is confidential, privilegedand/or attorney work product for the sole ‎use of the intendedrecipient. Any review, reliance or distribution by others or forwardingwithout express ‎permission is strictly prohibited. If you are not theintended recipient, please contact the sender and ‎delete all copies.‎