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JAMES S. LOCHHEAD, ESQUIRE <br />PAGE 2 <br />MARCH 12, 1991 <br />c. That in regard to Condition No. 3, the applicant <br />complied and tendered to the Planning Department copies of the <br />permits required by that provision. <br />d. That in regard to Condition No. 5, Eastside Coal has <br />continuously used the haul route specified. Additionally, you <br />negotiated with Garfield County concerning an agreement for <br />maintenance and improvements of the roads in question, as <br />commissioned and submitted to the County the appropriate study <br />concerning pavement thickness set forth in that section. Due to <br />the minimal amount of hauling, your client verbally agreed to a <br />road maintenance program with the Road and Bridge Supervisor in <br />lieu of the written agreement and, in fact, did perform some repair <br />of the haul route due to damage done to the roads. <br />e. In regard to Condition No. 6, Eastside Coal has <br />continuously complied with that provision by obtaining permits <br />prior to need. <br />f. That in regard to Paragraph 2 of Resolution No. 85- <br />42, Eastside Coal in its correspondence of February 28, 1990, <br />recognized the need to renew its existing permit under that <br />Section, published notice of a request for renewal of the existing <br />permit under that section, and appeared at the established public <br />hearing in an attempt to obtain that permit extension. Of equal <br />importance, when Eastside Coal was informed at that public hearing <br />that they could not renew as the time had elapsed on their existing <br />permit, no statement was made to the Commissioners disclaiming the <br />existence of such permit. No appeal was taken as required from <br />that decision within the required thirty days. Additionally, you <br />may leave asserted a remedy under the provisions of Section 9.04.01 <br />concerning my decision that no extension of a permit could be <br />granted afL-er its expiration. Such appeal needed to be filed <br />within seven days of that decision. That action was not taken, <br />clearly evidencing your agreement that there was an existing <br />special use permit that had expired. <br />Given these circumstances, it is my position that a special <br />use permit came into existence as earlier stated, that such permit <br />has expired, and that any operations in excess of a lawful pre- <br />existing non-conforming use must be the subject of a new <br />application and approval process. <br />2. With the foregoing in mind, it is my position that no use <br />or activity subsequent to the enactment of Resolution No. 85-42 may <br />be considered a pre-existing non-conforming use and a basis for <br />