|
<br />• ~ 65 :P. 2d 1050 (982 rn which case the court specs a y he that
<br />assertion of a claim under the Mining Act of 1872, 30 U.S.C., Sections 22
<br />through 54, if valid, gives rise to a right in the applicant, to assert the
<br />doctrine of federal pre-emption of state authority over those uses on public
<br />lands authorized by said act;
<br />3. That based upon the opinion of the County Attorney, the Board
<br />hereby finds that it does not have the authority to deny the subject land use
<br />permit since the possible exercise of a denial would constitute "an obstacle
<br />to the accomplishment and execution of the full purposes and objectives of
<br />Congress", Brubaker, pg. 1055; and
<br />4. Therefore, as a matter of legal necessity, the above application is
<br />for a conditional use permit.
<br />FffiERE'AS, the Board must, for the purpose of analyzing the subject
<br />application in accordance with the provisions of the Zoning Resolution,
<br />establish the neighborhood which may be affected by the granting of the
<br />proposed conditional use permit, which the Board finds as follows:
<br />1. That the Board has determined that, except as otherwise noted
<br />herein, such neighborhood is the area of Garfield County, Colorado, in Range
<br />92 West, Township 4 South, within a one mile radius of the real property
<br />described above;
<br />2. The Board hereby finds that located within the neighborhood of the
<br />proposed site are recreational uses, including private recreational
<br />homesites, the Rifle Mountain Park, the Rifle Falls State Recreation Area,
<br />and the Rifle Falls Fish Hatchery, which is a recreationally oriented
<br />industrial operation; rural residential uses; and agricultural uses;
<br />3. The Board hezeby finds that adjacent to the neighborhood and
<br />through which the proposed access route goes is a near-by area which includes
<br />the Rifle Gap State Recreation Area, the Rifle Golf Course, and residential
<br />development;
<br />4. That substantial evidence in the record exists for the Board to
<br />make a finding that the proposed use is incargxtible with the neighboring
<br />uses for such reason, among others, that the proposed use is industrial in
<br />nature, while the neighboring uses are recreational in nature;
<br />5. That the court in Brubaker, supra, has determined that denial of a
<br />proposed land use on public lands cannot stand since "the federal government
<br />has authorized a specific use of federal lands, and [the county] cannot
<br />prohibit that use, either temporarily or permanently in an attempt to
<br />substitute its judgment for that of Congress". Brubaker, pg. 1059; and
<br />~-~ 6. Therefore, the presence of substantial evidence in the record that
<br />the proposed use is incompatible with uses in the adjacent and nearby areas
<br />cannot be a basis for denial, but may be the underlying rational for the
<br />imposition of conditions.
<br />WHEFtF.AS, the Board hereby finds that Section 5.03.12 of the Zoning
<br />Resolution imposes on the Board an obligation to scrutinize the access to the
<br />propose6 site for a special or conditional use permit, and the Board finds as
<br />follows:
<br />1.. The Board hereby finds that it is the proposal of the applicant to
<br />transport crushed limestone from the quarry site by means of state highway
<br />325 in trucks of 38 feet in length;
<br />2. As to state highway 325, the Board acknowledges that said roadway
<br />is part of the State Highway System, over which the board does not exercise
<br />jurisdiction;
<br />3. The Board hereby finds that the inq~act of the proposed use on state
<br />highway 325 would require denial thereof, because there is substantial
<br />testimony in the record (frown residents in the area and from the traffic
<br />study report~of Matthew Delich, P.E.) that said roadway, in its layout, has a
<br />narrow driving surface, in many places has inadequate shoulders, contains
<br />blind curves with inadequate sight distances, and has many hidden driveways;
<br />and further, that state highway 325 in its present condition presents a
<br />-~ danger to the public health, safety and welfare of the residents of Garfield
<br />County, and that increased truck traffic on said roadway will increase the
<br />potential for personal injury due to automobile accidents;
<br />2
<br />
|