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Barbara Nightingale
From: Barbara Nightingale
Sent: Friday, September 08,20069:51 AM
To: 'Powers & Therrien (Diane Sires)'
Subject: RE: Trendwest Project
Diane,
Les should get those to me as soon as possible. The draft staff report around 9/11.
Barbara Nightingale M.MA, MAS.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
(360) 379-4472
bnightingale@co.iefferson.wa.us
From: Powers & Therrien (Diane Sires) [mailto:powers_therrien@yvn.com]
Sent: Friday, September 08, 2006 8:58 AM
To: Barbara Nightingale
Cc: Powers & Therrien
Subject: Trendwest Project
Barbara
Les will be sending you his comments to PLA's comments to the log and he would like them
considered in the staff report.
Diane Sires
Legal Assistant
POWERS & THERRIEN, P.S.
3502 Tieton Drive
Yakima, WA 98902
Ph (509)453-8906 Fx (509)453-0745
This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. Section 2510-2521 and is legally privileged. This message and any
attachments hereto is intended only for the use of the person named above. If you are not that person, you are hereby notified that any dissemination,
distribution or copying of this email message other than to the addressee is strictly prohibited. If you have received this message in error, please
immediately notify the sender and delete this email from your computer.
To ensure compliance with requirements imposed by the IRS, we inform you that any U.s. federal tax advice contained in this communication was not
intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another person any tax-related matter.
LOG ITEM
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9/13/2006
Re: MLA06-000221 (Trendwes_- FYI --- Bert .
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Barbara Nightingale
From: Powers & Therrien [powers_therrien@yvn.com]
Sent: Thursday, September 07,20067:29 AM
To: Barbara Nightingale; Bert Loomis; Rick Rozzell; AI Scalf; John Fischbach; David Alvarez; Pat
Rodgers; David Sullivan; Phil Johnson
Cc: Lewis Hale; Bill; Randall Shelley; Elizabeth Van Zonneveld; Jim Brannaman; Larry Nobles; Tom
Stone; Suzanne Graber; Tom McCay; Ralph Stroy; Don Clark; Tony Durham; Douglas Barber;
ROBERT SKODIS; Hana Buresova
Subject: Re: MLA06-000221 (Trendwest) --- FYI --- Bert
Barbara:
I concur that the HE's role is to recommend to the BoCC. However, I dissent the conclusion that PLA and the
BoCC have the right to amend the Development Agreement. The Development Agreement provides that Pope
Resources and Jefferson County have the authority to amend. However, Pope Resources includes "its
successors, successor in title and assigns with respect to hte property in which they have an interest". See
Development Agreement Sec. 4.6 Successors in title and assigns are not limited to PLA. The term includes any
person who succeeds in title to property directly or indirectly through Pope Resources. This is clear from the
language of Subsection 4.2.2 of the Development Agreement which permits Pope Resources "to assign or
transfer all or any portion of the respective interests, rights or obligations under this Agreement or in the Pope
Property to other parties acquiring an interest or estaete in all or any portion of the Pope Property." It is clear that
anyone who has purchased a lot from within the Pope Property from Pope Resources directly or through PLA is a
successor in title to a portion of the Pope Property. It is equally clear that the PLVC is a successor in title to the
Pope Property by operation of the PLVC CC & Rs recorded at Assessor No. 435975. It is also clear that equitably
any person who has purchased directly or indirectly title interest in any of the Pope Property is beneficially vested
in the PL VC CC & Rs that are obviously intended for the benefit and protection of the lot owners. Rights under
CC & Rs are property rights under Washington law. See Viking Properties. The interest that any ~uch person
enjoys need not be a title interest. It need only be an interest. A person need only be an assign, not just a
successor in title.
Whether you agree with this analysis, it is a legal position that will be tested in the review of the Trend West
project. Under Viking Properties, if the County is found to have violated the CC & Rs by approving a use on the
property that conflicts in language or operation the CC & Rs, there will have been a taking. It is subject to the
standards involved in condemnation, that is there must be a public purpose and there must be compensation.
Moreover, if as I contend the lot owners and/or the PL VC are necessary parties to the amendment, the entire
process will be void without their consent.
I must ask why Jefferson County would proceed at its cost without resolving the basic question whose consent is
necessary for this amendment. It seems to me that the proponents should resolve this problem before asking
Jefferson County and the lot owners to spend time and treasure responding to the substance of the proposal.
Les
---- Original Message -----
From: Ba[Q~[~_Nj9htjn9~~
To: Bert Loomis; Rick Rozzell ; AI Scalf; John Fischbach; David Alvarez; Pat Rodgers; David Sullivan; Phil
Johnson
Cc: .L~~EQ\N~[~ ;1,,~\Ni~_t!~J~ ;6iJJ ; R.~.n~t~JLSh_~IJ~Y ;t=Ji~<;!Q~tb_.Y~n:Z_QlJn~v~Jq ;Jjm-6J~_nn~mC:!n ; I"C:![!Y
Nobles; Tom Stone; Suzanne Graber; Tom McCay; Ralph Stroy ; Don Clark; Tony Durham; Douglas
Barber; Bill Cooke; ROBERT SKODIS ; Hana Buresova
Sent: Wednesday, September 06, 20064:29 PM
Subject: RE: MLA06-000221 (Trendwest) -- FYI --- Bert
LOG ITEM
# 11<{
Bert, paae").... of
The HE does not amend the Development Agreement. He reviews legal issues for~130ec:0nly the BoCC
9/13/2006
.Re: MLA06-000221(Trendwes,- FYI --- Be~
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and PLA can amend the agreement.
Barbara Nightingale M.MA, MAS.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
(360) 379-4472
bnightingale@co.iefferson.wa.us
From: Bert Loomis [mailto:bertl@cablespeed.com]
Sent: Wednesday, September 06, 2006 2:31 PM
To: Barbara Nightingale; Rick Rozzell; AI Scalf; John Fischbach; David Alvarez; Pat Rodgers; David Sullivan; Phil
Johnson
Cc: Les Powers; Lewis Hale; Bill; Randall Shelley; Elizabeth Van Zonneveld; Jim Brannaman; Larry Nobles; Tom
Stone; Suzanne Graber; Tom McCay; Ralph Stroy; Don Clark; Tony Durham; Douglas Barber; Bill Cooke;
ROBERT SKODIS; Hana Buresova
Subject: Re: MLA06-000221(Trendwest) --- FYI --- Bert
Barbara,
Thank you for your response. Unfortunately you have failed to answer my second question.
I repeat my second question:
"Also, site the legal authority that gives the HE jurisdiction to review, modify, recommend
or amend the (a) development agreement."
Regards,
Bert
Bert,
The proposed amendment and the shoreline substantial development permit come before the
HE, as a consolidated application, on September 22nd. The HE will not be making a decision
or ruling he will be making a recommendation(s) to the BoCC on this application.
The Port Ludlow Development Agreement vested in Land Use Procedures Ordinance (LUPO)
#04-0828-98 Section 7 requires that: as a consolidated application, the amendment and
shoreline permit together, as one application is required to go to the highest level for decision,
which is Type C, decision by BoCC. As a Type C pursuant to LUPO Section 16 . "B. Decision
Procedures. 1. Hearing Examiner Recommendation. The BoCC may refer a Type C
application to the Hearing Examiner for an open record hearing. The HE shall follow the
procedures set forth in this Chapter and in the Rules of Procedure adopted in accordance
with this Chapter. The HE's written recommendation shall be transmitted to the
BocCC." (Note: The BoCC did select to have the HE hear this consolidated application). See
LUPO Section 16. "C. BoCC Decision. Elements to be Considered. T~Ao~1I consider
the following in deciding upon an application: a. The contents of the ~tPcJrf':'"D.'The record
of the open record hearing on the application including any tesr~nY writt...p material
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.Re: MLA06-000221(Trendwes,,- FYI --- Be~ .
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submitted as part of the hearing process; c. The recommendations of the HE, if applicable;
and, d. The policies of the Comprehensive Plan and any applicable subarea plans, decision
criteria listed in each section of the Jefferson County Code under which the application was
made, and any other applicable law. 2. Decision The BoCC may approve, approve with
modification, or deny the application. If a decision has been referred to the HE for a
recommendation and the BoCC determines that the HE's record has been insufficiently
developed, the Board may remand the application to the HE with specific instructions for
further proceedings." proceedings."
Hope that is helpful.
Barbara Nightingale M.M.A., M.A.S.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
(360) 379-4472
bn ig htingale@co.jefferson.wa.us
From: Bert Loomis [mailto:bertl@cablespeed.com]
Sent: Tuesday, September 05, 20064:07 PM
To: Barbara Nightingale; Rick Rozzell; AI Scalf
Cc: Les Powers; Lewis Hale; Bill; Randall Shelley; Elizabeth Van Zonneveld; Jim Brannaman;
Larry Nobles; Tom Stone; Suzanne Graber; Tom McCay; Ralph Stroy; Don Clark; Tony
Durham; Douglas Barber; Bill Cooke; ROBERT SKODIS
Subject: Re: MLA06-000221(Trendwest) --- FYI --- Bert
Importance: High
Barbara,
Please clarify exactly what is before the HE on 9/22. Also, site the legal authority
that gives the HE jurisdiction to "review", "recommend or "amend" the
development agreement.
Regards,
Bert
Rick and all,
We realize this is what the response is but it is not what we see happening. We
see the HE, 9/22/06 hearing, reviewing and recommending on both the
amendment and the shoreline permit.
Thanks,
Barbara Nightingale M.M.A., M.A.S.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
(360) 379-4472
bn ightingale@co.jefferson.wa.us
LOG ITEM
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.Re: MLA06-000221 (Trendwes.- FYI --- Be~ .
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From: RR2DP@aol.com [mailto:RR2DP@aol.com] <mailto:RR2DP@aol.com%
5d>
Sent: Friday, September 01, 20068:33 PM
To: Barbara Nightingale
Cc: powers_therrien@yvn.com; LewisHale@aol.com; bertl@cablespeed.com;
bill@msinw.com; r&kshelley@waypt.com
Subject: MLA06-000221(Trendwest)
Log Item # 56 in the response section states "It is the understanding of the
applicants that the Hearing Examiner will make a recommendation to the Board
of County Commissioners whether or not and under what conditions to approve
the application of th applicants for a shoreline substantial development permit but
will not make any recommendation or hear arguments or take testimony
regarding the application for an amendment to the Port Ludlow Development
Agreement (because whether or not to approve the amendment is a legislative
decision, rather than a quasi-judicial decision). The comment does not address
the shoreline permit application, and it therefore is irrelevant to the proceedings
before the Hearing Examiner".
Does this mean that the Hearing Examiner will hear no testimony as to the
proposed Development Agreement changes at all? What exactly will the
Hearing Examiner be hearing? Since AHE Galt's decision still stands and no
modifications to the Development Agreement have been approved, how can
anything be heard as to issuance of a Shoreline permit?
Rick Rozzell
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Barbara Nightingale
From: Powers & Therrien [powers_therrien@yvn.com]
Sent: Tuesday, September 05,20067:43 AM
To: Barbara Nightingale
Cc: LewisHale@aol.com; Rick Rozzell; Elizabeth Van Zonneveld
Subject: Fw: PLA response to comments Trendwest
Barbara:
I join with Lewis in the concerns he raises. The community is entitled to notice and participation. I have read LI
responses that I now understand are from PLA. I have drafted comments to them and will be forwarding those
comments later this week. I expect those comments to be submitted to and considered by the HE. PLA's
application is being processed as a consolidated permit application under LUPO. I strongly object to PLA's
apparent effort to fragment it. Finally, PLA represents in its LI responses that Trend West is a party because it
has acquired Ludlow Cove II or an interest therein under contract. This email is an official request for a copy of
the contract. If the contract only gives Trend West the right to acquire the property at closing, I do not see that
Trend West is a proper party and I strongly object to its continued participation in the process in that capacity.
Les
----- Original Message -----
From: Barbara Nightingale
To: LewisHale@aol.com
Sent: Thursday, August 31, 2006 6:33 PM
Subject: RE: PLA response to comments Trendwest
Lewis,
The HE will discern whether he can address both points when he hears the issues and he sees what kind of
information he has. We (meaning - we here at the County - not just me) believe he will address both parts of the
application, the shoreline permit and the amendment.
That is the best I can answer I can provide right now.
Barbara Nightingale M.MA, MAS.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
(360) 379-4472
tmigbtjnggLe.@gQj~ff!;lI~Qn. waJ,LS
From: LewisHale@aol.com [mailto:LewisHale@aol.com]
Sent: Thursday, August 31, 2006 5:47 PM
To: Barbara Nightingale
Cc: AI Scalf
Subject: Re: PLA response to comments Trendwest
LOG ITEM
# ('iJ 0/
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Barbara, my concern is that I don't trust the political manuevers going on in the background (not within DeD).
went back and looked at the minutes from the BoCC meetings and it is absolutely clear they want
recommendations on both and that this is a "consolidated" application (shoreline and dev agg amd). This was
followed by a unanimous motion to have the HE conduct a public hearing on the consolidat.~nli~'\'l~
Commissioner Rodgers noted that "the benefit of having the consolidated aoolication heard"t't~ Hbaring
Examiner is that it would separate the legal aspects from the political aspects". Cle_y..!.he~.2gg~~mtSJbeHE's
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~ recommendation on the technical aspects of the amendment. PLA is being way too cute with this. In fact their
response is captioned "Notice of Application for Shoreline Substantial Development Permit". So with all due
respect, this is not a question of what you "believe" the HE will recommend on and I would expect that your staff
recommendations to the HE will so state. Sorry to be so direct but this is not about you or DCD but my concerns
noted above.
Please confirm that you will be requesting (directing?) the HE to render a recommendation to the BoCC on the
dev agg amd based on the legal and technical factors involved.
Regards,
Lewis
LOG ITEM
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0/
Barbara Nightingale
Sent:
To:
Cc:
From: Barbara Nightingale
Thursday, August 17,20068:16 AM
'Powers & Therrien'
bert loomis; Elizabeth Van Zonneveld; Rick Rozzell; LewisHale@aol.com; Tom Stone; Terry and
Shelley o'brien; AI Scalf
Subject: RE: Second Response to Your Response to Mr. Loomis
Les,
I merely pointed out that there was a similarity with someone applying a variance. PLA/Trendwest is not applying
for a variance.
Barbara Nightingale M.MA, MAS.
Associate Planner
Port Ludlow Master Planned Resort
Jefferson County
Dept. of Community Development
(360) 379-4472
bnightingale@co.iefferson.wa.us
From: Powers & Therrien [mailto:powers_therrien@yvn.com]
Sent: Wednesday, August 16, 2006 9:38 PM
To: Barbara Nightingale
Cc: Powers & Therrien; bert loomis; Elizabeth Van Zonneveld; Rick Rozzell; LewisHale@aol.com; Tom Stone;
Terry and Shelley o'brien; AI Scalf
Subject: Second Response to Your Response to Mr. Loomis
Barbara:
Let me respectfully direct you to the applicable authority. If as AHE Galt found, vesting occurred in
January, 1995, the Zoning Ordinance controls. As to the specific property, the IUGA controls.
Thereunder, the map provides that the property is multifamily. It is zoned general. To grant a variance
under the Zoning Code that is applicable under the vesting, the following rules apply:
17.20 V ARIANcES-REVIEW CRITERIA. The Hearing Examiner shall not authorize
any variance to the provisions of this ordinance unless all of the following facts and circumstances
exist:
1. The specific effect of the zoning regulation construed literally as to the
specific property is unreasonable due to unique conditions relating to the specific property relating to
the specific property such as size, shape topography, location, proximity to a critical area, or
character of the surrounding uses, or that strict compliance of the regulation would be
unreasonable in view of the purpose to be served by the regulation;
2. The hardship relates to the application of the standard to the land,
than the personal circumstances of the applicant;
rather
3.
The granting of the variance will not serve to erode the pU1.~ftTEMhis
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. ordinance;
4. The variance so granted would allow the reasonable use of the . property, and
would not affect the use of the neighboring properties;
5. The variance does not allow deviation from the specific use
contained in this Ordinance;
restriction
6. The granting of the variance will not be materially detrimental or contrary
to the Comprehensive Plan and will not adversely affect th e character of the character of the
neighborhood and the rights of neighboring adjacent property owners;
7. The granting of the variance does not cause a significant
to the public interest.
detrimental effect
17 .30 LIMITATIONS ON THE GRANTING OF VARIANCE. The Hearing Examiner
and the Board shall not recommend approval of any variance from this ordinance that would:
1. Change the structure of the land or the boundaries of a zoning district;
2. Change the zoning requirements regulating the use of land.
I quote the provision in its entirety. I ask you how a variance procedure permits a commercial resort on
the property, as found by AHE Galt in light of the requirements of Zoning Code Subsections 17 .20( 1),
(2), (3), (4), (6), and (7). I emphasize (6). The proposal clearly violates and conflicts the land use
approved in the Comprehensive Plan. It violatles the MPR Code, the development regulation adopted
under the Comprehensive Plan with respect to the property. Finally, there is no showing that any ofthe
conditions of (1) through (7) have been met, a condition of granting a variance. I further question
whether the proposal does not violate Zoning Ordinance 17.30(2) because it clearly changes the zoning
requirements regulating the use of Ludlow Cove II.
I provide this guidance because I think that you are being misled by PLA, Trend West and those that put
theoretical economic benefits over the legality of the proposition. PLA clearly does not care whether its
activities destroy the basic structure and predictability of land use planning, that those that have
purchased property in the MPR will have their expectations sacrificed to the supposed needs of the
developer or economic development. Keep in mind that our Attorney General promised that we were
not like New London, that public purpose discouraged the sacrifice of the landowners rights to
economic benefit or its perception. I remain suspicious, particularly where I see that you have made a
volte face and now appear to support economic development or its promise over the legal rights of land
owners. I make reference here to Viking Properties and RcW 36.70A.020(6) which I have previously
cited that recognize the GMA's support for private property rights. I realize that various persons have
differing views of the propriety of the proposal. I understand that Mr. Fischbach's views place the
proposals thast he has approved over legal protocol. That is clear fdrom various email exchanges with
which I have been copied.
Please understand, I am deeply committed to the procedure. Where, as here, I view property rights and
protocol violated for quick profits, I intend to voice my objections and pursue my legal rights. As
should be apparent from the last two years, my objection is not to be dismissed as non meritorious or
less meritorious than the position of the developer. Here, my objection is not just that the..l2roperty
should enjoy greater protection than that which would obtain under a Trend \\W&lI~l'A1t also that
the proposal violates those basic land use laws and vesting rights that swuld the successors to
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+ Pope and PLA. The rights of the successors seem to have been dismissed by your office without
meaningful consideration. We are necessary parties to the amendment and our rights to vest are violated
by this proposal. These rights cannot lightly be dismissed. I believe they have been.
I ask you to reconsider the position you have articulated to Mr. Loomis and consider the law that applies
rather than the economic imperative that has been loosely, and, I believe, erroneously, promised by
PLA and Trend West.
Les
Les Powers
Powers & Therrien, P.S.
3502 Tieton Drive
Yakima, WA 98902
Phone: 509-453-8906
Fax: 509-453-0745
This email is covered by the Electronic Communications Privacy Act, 18 U.S.C. Section 2510-2521 and is legally
privileged. This message and any attachments hereto is intended only for the use of the person named above. If
you are not that person, you are hereby notified that any dissemination, distribution or copying of this email
message other than to the addressee is strictly prohibited. If you have received this message in error, please
immediately notify the sender and delete this email from your computer.
To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice
contained in this communication was not intended or written to be used, and cannot be used, for the purpose of (i)
avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to
another person any tax-related matter.
LOG ITEM
#~
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Legal issue - Port Ludlow develtfent agreemen~ modi~cation / Trend.--- FYI --- B... Page 1 of2
Barbara Nightingale
From:
Sent:
To:
Powers & Therrien [powers_therrien@yvn.com]
Monday, August 14,2006 11 :35 AM
John Fischbach; Bert Loomis; AI Scalf; Barbara Nightingale; David Alvarez; Pat Rodgers; David
Sullivan; Phil Johnson
Elizabeth Van Zonneveld; Tom Stone; Larry Nobles; Bruce Pyles; Bruce Schmitz; Allen Panasuk;
Tony Durham; Don Clark; Suzanne Graber; Jim Brannaman; Richard Shattuck; Mickey Gendler;
Lewis Hale; Gregg & Pat Jordshaugen; Peter Joseph; Ed Knodle; Douglas Barber; Hana Buresova;
Rick Rozzell; Bill Cooke; Ralph Stroy; John Fischbach
Subject: Re: Legal issue - Port Ludlow development agreement modification /Trendwest --- FYI --- Bert
Cc:
John:
I think the question may be properly posed as one of code interpretation. This is clearly permitted under LUPO.
By way of example, I cite Chapter IV of the Rules of Procedure adopted under LUPO, "Rules of Procedure for
Appeals of Code Interpretation Decisions of the Director". It should take precedence over the review because it
calls to question the authority of County to consider the underllying proposal. It is not just a question whether the
land use is proper but whether the County has the authority to change the law on this subject in the manner that
has been proposed to it. If you think there is authority that Mr. Scalf cannot hear Mr. Loomis' issue as a question
of code interpretation involving Resolution 42-00, the Comprehensive Plan, or the MPR Code, I would appreciate
it if you would identify same.
Thanks for your consideration.
Les
----- Original Message -----
From: John Fischbach
To: Bert LQQmj~; AL~calf ;~a[paraNigbhngale ;O-8YLc;LAIYare~; palB.QggeJ:~ ; Payi<tSymvan ; J?bjJ.JQbn~Qn
Cc: Elizabeth Van Zonneveld ; TOIlJ...S.tooe ; Larry Nobles; Bruce Pyles; Bruce Schmitz ; Allen Panasuk ; Tony
Durham; Tom Stone; Don Clark; Suzanne Graber; Jim Brannaman ; Richard Shattuck; Mickey Gendler; Les
POWer~ ; LeWis !iale. ; Qreg~'pat JOrgsh.8ugen; PeteLJ.Q~eQ.tl; f;gJSnogle ;pou.Q@.s BaIPer ; Han..a
Buresova ; Rick Rozzell ; Bill Cooke; Ralph Stroy ; John Fischbach
Sent: Monday, August 14, 20069:06 AM
Subject: RE: Legal issue - Port Ludlow development agreement modification /Trendwest --- FYI --- Bert
Bert, thank you for your comments. You are referring to the application for an amendment to the development
agreement currently being reviewed by DCD. The decision is pending an hearing examiner recommendation to
the BOCC and eventually a final decision of the BOCC. You are Asking for a predetermination which is not
proper within the process of application review. The HE public hearing will be September 22nd.
John
From: Bert Loomis [mailto:bertl@cablespeed.com]
Sent: Saturday, August 12, 2006 8:58 AM
To: John Fischbach; AI Scalf; Barbara Nightingale; David Alvarez; Pat Rodgers; David Sullivan; Phil Johnson
Cc: Elizabeth Van Zonneveld; Tom Stone; Larry Nobles; Bruce Pyles; Bruce Schmitz; Allen panasuk; Tony
Durham; Tom Stone; Don Clark; Suzanne Graber; Jim Brannaman; Richard Shattuck; Mickey Gendler; Les
Powers; Lewis Hale; Gregg & Pat Jordshaugen; Peter Joseph; Ed Knodle; Douglas Barber; Hana Buresova; Rick
Rozzell; Bill Cooke; Ralph Stroy
Subject: Legal issue - Port Ludlow development agreement modification /Trendwest --- FYI --- Bert
John,
LOG ITEM
# {~y
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