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JAMES S. LOCFIHEAD, ESQUIRE <br />PAGE 3 <br />MARCii 12 , 19 91 <br />establishing a level of activity. As set forth above, all such <br />activities were undertaken pursuant to a special use permit, not <br />as a lawful pre-existing non-conforming use. Therefore, I am <br />looking to the time preceding 1985 for the basis of your claim. <br />In that regard, I find the following: <br />a. The property that is the subject of your request was <br />first: subjected to County zoning on January 1, 1973. <br />b. By your own documents, the level of production on <br />that property for the preceding year was 85T tons per annum. <br />c. That while that production did not emanate from the <br />portal currently in use, all evidence does indicate that the coal <br />was drawn from the same source. Additionally, I believe it is <br />clear that in 1973, the use of the property in question was for the <br />production of coal. Therefore, I agree with your position that the <br />actual portal from which the coal was withdrawn is irrelevant in <br />determining a pre-existing non-conforming use. <br />d. The provisions of Section 7.01 of the Garfield <br />County Zoning Resolution, as well as Section 30-28-120, C.R.S., as <br />amended, specifically provide that a lawful pre-existing non- <br />conforming use will be determined by that use that is existing and <br />lawful at the time of the adoption of the Zoning Resolution. <br />Numerous authorities construe this language to mean that the <br />landowner is bound by the actual use existing on the property at <br />the time the zoning resolution is adopted. I believe this is <br />contrary to the position set forth in your letter of February 15, <br />1991. <br />©. I recognize that there is some authority for the <br />proposition that a landowner may expand the volume of business by <br />natural expansion and growth of trade without violating the theory <br />of pre-existing non-conforming use. However, that authority does <br />not recognize a seven to eight fold expansion of such use, <br />construction of additional structures, a many fold increase in the <br />type of traffic and size of loads on the roads, water and sewer. <br />All of the foregoing would need to be recognized to accept your <br />proposition that a 7,000 ton limit should be established for a non- <br />conforming use. <br />f. In your letter, you make reference to a 1983 contact <br />by Eastside Coal, in which the County confirmed a pre-existing non- <br />conforming use on the property. I believe that your attached <br />documentation included a letter of May 29, 1984. In any event, <br />that correspondence indicates that it would not enforce land use <br />