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LHAVENWORTH & LOCHHEAD, P.C. Don DeFord, Esq. Page 3 February 15, 1991 necessary to comply with the newly promulgated regulations of the Mined land Reclamation Division. The MLRD was apparently prepared to issue a permit, but Peltron failed to make llte bonding requirements, and a permit did not issue. Peltron also failed to make an advance royalty payment required under its lease with the Eldridges, and on June 2, 1980, tfie Peltron lease was terminated. During the slightly more than one and one-half years that [tie Pelircm Lease was in effect, Peltron claimed to have spent approximately $500,000 to develol~ this coal property, including market analysis, planning and sales promotion, mining permits, feasibility studies of work flow and investment analysis forecasts, legal engineering and accounting fees, geological studies, and minimum royalty payments. Immediately upon the termination of the Peltron Lease, the Eldridges began negotiations with other interested entities for a lease of the property. Negotiations were commenced with First Western Coal Company, inc. on June 9, 1980. On 7uly 17, 1980, the Eldridges were contacted by the Animas Coal Company, Inc., wlio was interested in a lease. In August, 1980, the Eldridges entered into negotiations with the Harrison-Western Corporation. In mid-1981, the Eldridges began to negotiate with Westmoreland Coal Company. All of ll~ese negotiations involved meetings and telephone conferences between attorneys concerning lease terms, and al:;o involved investigations by the interested companies into matters relating [o coal reserves, title, market analysis, and permitting requirements. These matters naturally involved some time to pursue. At all times during this period, the Eastside Mine was open. In 1982, the Eldridges began negotiations with Western Associated Energy Corporation, and a lease was exe,:uted wills Western Associated on October 15, ]982. Western Associated immediately Megan tlce construction of portal facilities at the Eastside Mine in Fall, 1982, and commenced l~roducticm in 1983. This lease is still in effect. The mitre is being operated by Fastsidc Coat t:ompany. In 1983, Eastside made contact with the Garfield County Planning Oftic:e, whi~:lt indicated that it was the County's position that mining was apre-existing, non-conforming use on tlcc property, and that no County land use approval was required for contimicd operations at existing levels. The County .informed Eastside that a special use permit would be re~Iuired for higher leve]s of operation and, in particular, for the 20,000 tons of production per year wlti~:h Eastside was then contemplating. In essence, llte County position at that time was that operations at "existing levels" constituted a valid non-conforming use, but t1~at operations of 20,01)0 tons per year or more would require a special use permit. The County did not take any position on the precise level at which a valid non-conforming use would cease. Therefore, it is clear that the level of operation which was valid was at least 5970 tons per year, since this was the most that was produced at the property prior to 1973. i believe the case law on non- conforming uses supports the position that non-conforming uses exist at levels at which the business is capable of operating, based upon past historic record. A "snapshot" of the use of the affected property on the effective date of the zoning ordinance to determine llte scope of the UGr4HDA.~LT