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LEAVENWORTH & LOCHHEAD, P.C. <br />Don DeFord, Esq. <br />Page 4 <br />February 15, 1991 <br />non-conforming use would not only be improper, but also would be quite problematical for <br />governmental agencies, since such a position would encourage a quick expansion and beefing <br />up of uses which are imminently subject to more restrictive zoning laws. <br />On February 23, 1984, Eastside Coal submitted to the County an application for approval <br />of a special use permit, which application contemplated a substantially higher level of operations <br />-- 200,000 tons of coal per year. Throughout this period, Eastside continrrecl to operate tl4e <br />Eastside Mine and produce coal consistent with pre-existing levels with full knowledge and <br />acquiescence by the County. <br />Garfield County, by Resolution No. 85-42, resolved that a special use hermit Ile <br />authorized, thereby permitting the use of Eastside Coal's land for natural resources extraction <br />and associated facilities at a level of 200,000 tons per year. In a letter dated Mazch 2 (, 1985, <br />to Stephen Self, Mark Bean stated: "The Resolution only authorizes the issuance of the Special <br />Use permit, it is not the actual permit. The permit will be issued when the conditions of <br />approval have been met." The Resolution specified certain conditions for the issuance of the <br />special use permit. Included as a condition was that "any Special Use permits issued shall Ite <br />valid for a period of five (5) years or until production levels exceed 200,000 tons per year or <br />until monthly average daily truck trips exceed 40 round trip, truck trips; whichever corner first.' <br />(Condition No. 2). Also included as a condition was that the Applicant "enter into an ttgreemcnt <br />for the maintenance and/or improvement of the roads in question, based on the study and <br />acceptable to the Board of County Commissioners." (Condition No. 5). <br />Eastside Coa] has continued operations since that time, at existing levels, wil.h the full <br />knowledge and consent of the County. During the period from the enactment of Resolution 85-•12 <br />to the present, Eastside Coal has complied with many of the conditions of the Resolution, <br />including, specifically, the reporting requirements. Additionally, by oral agreement, Eastsille <br />Coal undertook $60,000 in road improvements on County roads in 1988 when production <br />reached nearly 7000 tons. This was strictly a voluntary effort by Eastside Coal, since the <br />Resolution clearly contemplated that an agreement be entered into: for maintenance as well as <br />improvement, at a level of production of 200,000 tons per yeaz, and based upon a study of truck <br />traffic generation. There is no way that this temporary, oral agreement can be said to rise to <br />the level of that required by Resolution 85-42. Therefore, despite this good-faith intent to <br />comply with as many of the terms of the Resolution as possible, and despite the•. fact that <br />Eastside Coal entered into negotiations with the County concerning the permanent road <br />agreement referenced in Condition No. 5, a written road agreement as contemplated in the <br />Resolution was never consummated. As a result, it is clear that a Special Use Permit was never <br />issued, since there has not been compliance with the express preconditions of Resolution No. <br />85-42. It is impossible for a permit to expire when it never came into existence. <br />DQORDA.4LT <br />