HomeMy WebLinkAbout8-2-2023 - Schwab 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:Calvert, Maren L.
To:Phil Olbrechts; Patrice Kent
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, August 2, 2023 10:32:21 AM
Attachments:image001.png
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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
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.
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.
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 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
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.
<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
CONFIDENTIALITY NOTICE: This e-mail, including any attachments, is confidential and may include privileged information. If
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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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