HomeMy WebLinkAbout8-2-2023 - Schwabe 2nd emailRE_ 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:Patrice Kent; Phil Olbrechts
Cc:Katzaroff, Kenneth; Blythe Phillips; McKee, Lisa D.; Schunk, Andrea K.; Wilson-McNerney, Julie;
dzoldak@larsandersen.com; Alex Morganroth; Andrew Van Gordon; Angelea Weihs; Brianne Bannwarth; Clark
Close; Cynthia Moya; Jason Seth; Jennifer Cisneros; Jill Ding; Judith Subia; Margarette Bravo; Matthew Herrera;
Nathan Janders; Robert Shuey; Shane Moloney; Vanessa Dolbee
Subject:RE: Appeal of CED Deferrals (DEF 23001823; DEF 23001824) [IWOV-PDX.FID4777904]
Date:Wednesday, August 2, 2023 1:41:41 PM
Attachments:image002.png
image003.png
image004.png
Appeal Letter Outlot 1.PDF
All,
My apologies. The confusion is my fault. I had forgotten that the City Decision split the Talbot Road
improvements an apportioned them among the Outlots, so that the Talbot Road frontage
improvement issue actually folds into both appeals. Thank you for identifying the problem.
Procedurally, given that the portion of the Outlot 1 appeal regarding Grady Way undergrounding
improvements (page 2 of the attached) is not going to be heard, but is not stayed, is it dismissed? Is
the Examiner ruling that it is moot? Or is there a different procedural mechanism we are employing
to save that issue for later?
Maren
Maren Calvert
Shareholder
Pronouns: she, her, hers
(360) 597-0804
mcalvert@schwabe.com
From: Patrice Kent <PKent@rentonwa.gov>
Sent: Wednesday, August 2, 2023 12:13 PM
To: Phil Olbrechts <olbrechtslaw@gmail.com>; Calvert, Maren L. <MCalvert@schwabe.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 morning Mr. Hearing Examiner –
Attached is the Site Plan (Ex 2 to LUA 21-000452) showing Outlots 1 and 2 from the original
conceptual site plan submitted by The Home Depot. Outlot 1 shows an “L-shaped” parcel bordering
both S. Grady Way and Talbot Rd. South. The final property lines may differ slightly but it is my
understanding that the general outlines were unchanged.
If there are to be any changes to the contours of the appeal under consideration, the City
respectfully requests an extension to the schedule as the City currently has a filing date of Friday
August 4, 2023 for its supplemental motion to dismiss which may be impacted by those changes.
The City would also be available for a scheduling hearing as it is determined to be needed.
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
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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 11:14 AM
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
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.
<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]
The requests for relief in the written appeals to both Outlot 1 and Outlot 2, as stated in the final
paragraph of both appeals, request "the requirements for the street frontage improvements near
Outlet [sic] 1, ["outlot 2" for the Outlot 2 appeal] as expressed in the Decision be reversed and the
surety released." The Outlet I appeal does not indicate it is limited to the undergrounding issue. In
fact, when describing the decision under appeal, the Outlet 1 appeal states "[t]he Decision also
imposes Talbot Road improvement requirements that are arbitrary and capricious, and infeasible."
The Outlet 1 appeal further asserts: "The City’ s Talbot Road frontage improvement demand – which
disregards and contradicts express findings of the Examiner’ s Decision – is a blatant violation of the
doctrine prohibiting collateral attack on a final land use decision." From comments like these and
several others contesting Talbot frontage improvements in the Outlot 1 appeal, I was led to believe
that Outlot 1 appeal was contesting Talbot frontage requirements and that Outlot 1 thus must be
fronting Talbot Road along with Outlot 2. I don't have a copy of the site plan delineating the outlot
lot lines. Can someone please email me the site plan? Thank you.
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
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.
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,
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.
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
<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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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-
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.
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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