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<br />In addition to the above, several years ago, Anthony Zellitti applied for an exchange of Zellitti pit <br />property for a like amount of property owned by Phillips. Zellitti Properties was never consulted or even <br />notified regarding this exchange. A review of your file regarding this matter will show that Zellitti <br />Properties ownership of part of the affected lands was not disclosed in the filed documents. The file will <br />also not show any proof of service on Zellitti Properties of the proposed exchange. As a result, Zellitti <br />Properties was deprived of the opportunity to comment on the exchange. This material <br />misrepresentation on the documents also deprived Zellitti Properties of the opportunity to negotiate for <br />compensation for the exclusion of its lands and replacement with non owned lands in the pit. This <br />action as well as the continued use by Hocker Construction of the Zellitti Properties lands without any <br />legal authority is the subject of a pending lawsuit in La Plata County District Court, Civil action #08 CV <br />124. <br />Zellitti Properties objects to the granting of an addition to the pit to the operator Anthony <br />Zellitti and his contractor, Hocker Construction, when they have filed material misstatements in prior <br />filings and have utilized Zellitti Properties' property for access and related operations and plan in the <br />future to continue operations on the proposed addition without legal authority of one of the underlying <br />landowners, Zellitti Properties. In addition attached is a copy of the lease under which Hocker claims <br />the right to use the original pit. This lease states that Anthony Zellitti and Marilyn Zellitti are the sole <br />owners of the pit while county records show that Zellitti Properties is an owner of 25% and they have <br />not executed any lease or agreement with Hocker. <br />In addition, a review of the current application for addition to the pit shows several <br />misstatements of fact. The application does not disclose Zellitti Properties as a subsurface owner of <br />rights in the property where the additions are proposed as required by your regulations, it does not <br />disclose Zellitti Properties as an owner of affected lands, i.e. under the original pit which is part of the <br />entire permit, and as owner of lands within 200 feet of the boundary of affected lands as your <br />regulations require. Also, your rules require that affected land owners be given notice by certified mail <br />or personal delivery within ten days of filing which would have been on or before February 4, 2009 <br />(filing accepted on January 26, 2009). See letter of Kate A. Pickford of January 30, 2009 in your file. This <br />notice was not served on any party including Zellitti Properties in a timely fashion. <br />On February 20, 2009, Kate Pickford forwarded a letter to Jack Nickerson notifying him of <br />deficiencies after an adequacy review. The applicant was advised that Zellitti Properties appeared to be <br />an owner of affected lands, but was not noted on the maps. He was also notified that all owners of <br />adjoining lands must be noted on the maps and this was not done. He was also notified of failure to <br />provide proof of publication and service of notice on the required parties. <br />A response to the deficiency letter by Jack Nickerson dated March 22, 2009 was filed with the <br />Division on March 25, 2009. The letter includes a corrected map of the properties. In regard to the <br />property where the original Zellitti Pit is located the owners are listed as "Zellitti/ Anthony D. and <br />Marilyn, et, als." This property is owned 25% by Zellitti Properties; and, thus, this map represents a <br />material and intentional misrepresentation and refusal to comply with the notice of deficiency letter <br />and refusal to properly disclose affected landowners, specifically Zellitti Properties. <br />Following the revised map is the proof of publication. The attachments include a statement that <br />the address of Anthony Zellitti, the applicant, is 2001 CR 300, Durango, Colorado, 81303. The Certified <br />Mail receipt for Zellitti Properties is dated March 18, over one month late and further shows it was