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Hohne Roberts & Owen Lip <br />Attorneys at Law <br />Mr. David Berry <br />November 12, 2010 <br />Page 3 <br />We believe these subdivision efforts alone constitute substantial <br />progress toward development of the alternative post mining land use, and <br />provide sufficient evidence under the Regulations that the approved post <br />mining land use has substantially commenced. The Division has declined to <br />accept Oakridge's development of the subdivision property as sufficient to <br />satisfy the requirements of the Regulations, and has instead required that <br />Oakridge obtain building permits and pour five concrete foundations for <br />"residential lodgings" on the permit lands. <br />Absent statutory or regulatory guidance as to the meaning of <br />"substantially commenced," the Division's requirements appear to be <br />impermissibly arbitrary. The Division has offered no rational, guidelines or <br />process explaining why a requirement for five foundations has been imposed. <br />Given this apparently boundless discretion to interpret the meaning of <br />"substantially commenced," the Division, presumably, could have imposed <br />construction requirements of any scope, from, for example, providing electrical <br />service to one mobile home to building and closing sale transactions on any <br />number of residences. <br />(ii) Development Section 3.02.3(c) requires that "development" of an <br />alternative land use shall have substantially commenced prior to bond release. <br />The above discussion of "substantially commenced" notwithstanding, the <br />Division's requirement for five foundations mandates the construction of <br />infrastructure, not the development of a land use, as the regulation requires. In <br />its most general sense, land development includes any action that improves a <br />parcel of land to a higher use or higher value. In the absence of a statutory or <br />regulatory definition, "development" should be interpreted in accordance with <br />its customary meaning and context of use. In the context of land use <br />development, "development" contemplates any number of activities that would <br />make land more suitable for a particular use, including, for example, acquiring <br />financing, marketing lands, engineering master plans, and can include <br />construction, but does not exclusively require construction, as the Division <br />suggests. We believe the language of the regulation emphasizes land use <br />3 Email from Dan Hernandez to Mike Savage, dated September 30, 2010. <br />#1502381 0 den <br />