HomeMy WebLinkAbout8-2-2023 - HEX 4th email 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
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From:Phil Olbrechts
To:Calvert, Maren L.; Cynthia Moya; Patrice Kent
Subject:Re: Appeal of CED Deferrals (DEF 23001823; DEF 23001824) [IWOV-PDX.FID4777904]
Date:Wednesday, August 2, 2023 1:54:34 PM
Attachments:image001.png
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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
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.
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: 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
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, 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 –
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
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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
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.
<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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