PERMFILE70783

• Permit No: M2004067
• IBM Index Class Name: Permit File
• Doc Date: 12/30/2004
• Doc Name: Additional Objection Ltrs.
• From: DMG
• To: Banks and Gesso LLC
• Media Type: D
• Archive: No

December 30, 2004
Page 3
As you aze awaze, the Act states that it is proper for the Boazd to deny a permit
application if the "proposed nuniug operation ... is contrary to the laws or regulations of this state
or the United States, including but not limited to all federal, state, and local permits, licenses,
and approvals, as applicable to the specific operation." C.R.S. § 34-32.5-115(4)(d)(emphasis
added). This requirement is restated in Construction Material Rule 6.4.13, which requires an
applicant to identify the permits, licenses and approvals the applicant will need in order to
conduct the proposed mining operation. Thus, compliance with this requirement is
unquestionably mandatory.
As mentioned by Mr. Petersen, the local permits, licenses, and approvals applicable to the
proposed mining operation most certainly include a SUR permit from Gilpin County. The
property in question is zoned part of the Forestry District, where mining is not a use by right. See
Gilpin County Land Use Code, Section 3.1, attached hereto for your reference. Consequently, it
is a use by special review, which means that mining may be permitted on a specific property but
only upon approval from the Boazd of County Commissioners. See Gilpin. County Land Use
Code, Section 6.1(d), attached hereto for your reference.
There is no evidence to suggest that the applicant has taken any of the steps necessary to
initiate the SUR permit process, and Mr. Petersen's letter confines the fact that the applicant has
thus faz failed to comply with County regulations. The Boazd is, therefore, compelled to deny
the application as contrary to local_permits, licenses, and approvals.
Despite Mr. Gesso's suggestion to the contrazy, the Board is well within its grant of
authority to require the applicant to obtain the necessary county SUR pernut before granting the
requested permit. In fact, the Boazd is compelled to do so by C.R.S. § 34-32.5-115(4)(d),
Construction Material Rule 6.4.13, and controlling case law. In C&MSand &Gravel v. Board of
County Commis of the County of Boulder, 673 P.2d 1013 (Colo. App. 1983), the Colorado court
of.appeals decided this very issue, and the court's decision on the matter is dispositive.
The court ruled that the state's regulation of mining through the Reclamation Act, C.R.S.
§ 34-32-101, et seq., a predecessor and parallel act to the Reclamafion Act for the Extraction of
Construction Materials, did not preempt the county's authority to also regulate mining by
requiring a special use permit for an aggregate mining operation. The court found that under a
provision substantially similaz to C.R.S. § 34-32.5-115(4)(d), the Reclamation Act expressly
acknowledged and required local approval before a state mining pemut could be granted. C&M
Sand &Gravel v. Board of County Commis of the County of Boulder, 673 P.2d at 1017. The
court's language is instructive:
The Act preempts only the authority of local government to set performance
standazd§ for mined land reclamation activities, but does not prohibit local
regulation by permit of all aspects of land use for mining, including the location
of mining operation and related reclamation acfivities and other environmental
and socioeconcmic impacts. Reading [state and local regulations] together, we
12/30/04
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