DRB members were accompanied on the site inspection by neighboring property owners and other interested parties, but neither the applicants nor their representatives were in attendance. The DRB entered the property from Old Ark Road, which applicants Keith and Brian Jurgens, owners of Comtuck LLC, have proposed as an alternate access route to the development. Several residents of public and private sections of Old Ark Road registered their objections to the planned route.
The DRB “gaggle” explored the boggy, unimproved roads of the development, originally laid out in the early 1970s as part of Haystack Corporation’s planned development. The lots, many of which would be combined to create larger building lots under Comtuck’s plan, were freshly marked and Comtuck had, perhaps optimistically, nailed real estate sales brochure holders to trees on many of the lots. A brochure at lot 39/40 advertised a 2,032-square-foot Craftsman cottage for $718,990.
Saddle Ridge is one of several developments on the so-called East Tract of the original Haystack development plan. In 1970, the Haystack development received one of the state’s first permits under its new Act 250 land use environmental law. The original two-page permit allowed Haystack Corporation to build 2,004 units, including houses on 909 individual building lots, 1,095 condominium units in multi-unit buildings, and 700 hotel units. The 1970 permit included just 12 conditions, several of of which required that the corporation observe other construction and environmental laws and obtain appropriate permits. There were two conditions related to roads that required all road construction to meet local and state highway and bridge engineering specifications. Under the original Haystack development master plan, Saddle Ridge and other East Tract lands were to be accessed by East Tract Road, located off Cold Brook Road.
At their initial hearing on the proposed Saddle Ridge development, Comtuck representatives said they expected to move forward with the development under the original 1970 Act 250 permit. Nonetheless, Comtuck said they had requested a jurisdictional opinion from the District 2 Environmental Commission regarding the status of the permit.
On Friday, May 5, District 2 Coordinator Stephanie Gile issued a jurisdictional opinion requiring a full Act 250 application and review process. Gile said the 1970 Act 250 permit, and its amendments had expired. “There is no longer a valid, unexpired, land use permit on the East Tract and, even if there was, the proposed project is a material change to what was previously permitted.
Gile cited several significant changes that, even had the 1970 permit been valid, would require a new Act 250 process, including a change from offsite to onsite sewage and water, as well as the proposed Old Ark access road. In testimony before the DRB, Comtuck said both East Tract Road and Old Ark Road would eventually be access roads for East Tract properties. Currently, however, East Tract Road cannot be used. A culvert on East Tract Road washed out during Tropical Storm Irene and replacing it would require a lengthy state engineering and permit process as well as a significant investment.
In her jurisdictional opinion, Gile noted that plans submitted by Comtuck indicate Old Ark Road as an access point. But she also referred to a letter from Hermitage Inn Real Estate Holding Company attorney Bob Fisher and filed with their master plan permit application, indicating there is not, and never has been, any access to the East Tract from Old Ark Road.
“I have reviewed the Haystack master plan maps and surveys prepared for the initial Act 250 permit in 1970 and none of the surveys depict any access via Old Ark Road,” Fisher wrote.
Gile said the plan for a minimum of 25 property owners and, eventually, up to 100 property owners to access the East Tract by Old Ark Road was a material change that could result in adverse impact under several Act 250 criteria.
“A full Act 250 permit application and review under all criteria is required before any construction on the East Tract or Old Ark Road commences,” Gile concluded.
According to Wilmington Zoning Administrator Craig Ohlson, Comtuck has appealed Gile’s decision.