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<br />JAMES S. LOCHHEAD, ESQUIRE <br />PAGE 4 <br />MARCH 12, 1991 <br />permitting for a withdrawal of 2,000 to 3,000 tons of coal to be <br />utilized fo:r test burning purposes. At no point in that letter do <br />I note any statement that we were confirming a lawful pre-existing <br />non-conforming use to that level. Additionally, I do not note the <br />language of existing use, although that may have been my impression <br />at that time. In any event, the only levels of production of which <br />I was aware in 1984 were those levels provided verbally through Mr. <br />Self. Neither the letter nor my recollection of that <br />correspondence confirm that I was attempting to authorize <br />continuous production at the level of 2,000 to 3,000 tone per year. <br />I also note that at the time of this correspondence, Eastside Coal <br />had pending a special use application to greatly increase <br />production from its mine. Neither the correspondence nar my <br />recollection of the events confirms that a lawful pre-existing non- <br />conforming use was a matter of concern or discussion during that <br />time period. <br />g. Additionally, I note no where in your correspondence <br />of February 15, 1991, a claim of reliance upon an authorized 2,000 <br />to 3,000 ton production level in the operation of the subject mine. <br />Therefore, I am at a loss to find that the County is estopped in <br />setting a level lower than that as one appropriate for a lawful <br />pre-existing non-conforming use. <br />h. In regard to the question of abandonment, I am in <br />general agreement with the positions stated in your letter. The <br />Garfield County Zoning Resolution does not talk about an intent to <br />abandon. Rather, it states a discontinuance of use for a period <br />of six months requires that the property be used in conformance <br />with the existing zoning resolution. While we note a number of <br />years in which no coal was produced from the property, the question <br />seems to revolve around the use of the property. The documentation <br />you have submitted seems to confirm that the intent of the <br />property owner and indeed the actual use of the land continued to <br />be for coal mining purposes, even with a lack of production. <br />Therefore, I agree with your position that no abandonment of use <br />occurred. <br />With all of the foregoing in mind, it is my position as set <br />forth above, that Eastside Coal enjoys a lawful pre-existing non- <br />conforming use for coal mining purposes on the subject property to <br />a level of 857 tons per year. Any use in excess of that amount <br />would require the issuance of a special use permit in compliance <br />with the currently existing Garfield County Zoning Resolution. Any <br />use above that level without such issuance would be considered a <br />violation of this Code and subject to enforcement by the County. <br />For your information, I note that a special use permit for any <br />