No variance is necessary for the subdivision of 120.54 acres on a property in Lower Towamensing Township.

That was the ruling made by the township's zoning hearing board by a 2-0 vote, with one abstention, on Tuesday. Zoner James DeRosa abstained from the vote because he did not attend the initial hearing that came before the zoners on Oct. 23.

Residents Harry and Elaine Eckhart had previously requested a variance for a proposed two lot subdivision; lot No. 1 is about 115.54 acres, and lot No. 2 is five acres, at property located at 5260 Little Gap Road, Kunkletown. The property is located in an RC (Rural Conservation) Zoning District.

The applicants plan to convey lot No. 2 to their daughter, Jacqueline Eckhart, who wants to build a home on the five-acre lot.

At the Oct. 23 hearing, it was found that lot No. 2 does not abut a public street, but does abut a recorded right-of-way.

Resident Scott Lutz testified at that time that he is a neighbor to lot No. 2, as he resides and owns the property at 5320 Little Gap Road.

Lutz testified that at the time he purchased his property, he was looking for undeveloped land. He further testified at that time that he purchased the property because he did not want any development to surround him, and that he was opposed to the variance because it would interfere with his view and he does not want development.

Also at that time, Marie Christman, a sister to Harry Eckhart, testified that she was opposed to the applicants' request for a variance.

Ord stated that Section 500.1 of the township's zoning ordinance, Access to Structure, provides that "every building and structure hereafter erected or moved shall be on a lot adjacent to the public street or an approved private street, or on a lot for which a legally recorded right of access to a public street or approved private street exists. All buildings shall be located on lots so as to provide safe and convenient access for servicing, fire protection, and required off street parking. After the effective date of this ordinance, no lot shall be created which does not abut a public street or an approved private street."

An approved private street, Ord said, is defined by township zoning ordinance Section 201 as "a right-of-way which provides the primary vehicular access to a lot, not dedicated or deeded to the township, but approved by the board of supervisors and shown on a recorded subdivision plan."

Ord added that a minor subdivision of lands of Marie Christman shows a right-of-way "which shall exist for the use of the existing dirt lane by Harry L. Eckhart, his heirs and/or assigns in common with Marie Christman, et al, their heirs and/or assigns".

In addition, Ord said the purpose of the right-of-way is to provide vehicular access to the lands of Eckhart, and added that plan was approved by the township's board of supervisors on Feb. 5, 1991, as evidenced by their signatures on the plan. The plan was recorded at Carbon County Map Book 2, Page 301, on Feb. 28, 1991, he said.

By definition, the right-of-way shown on the minor subdivision of lands of Marie Christman is an approved private street, Ord said.

The approved private street shown on Exhibit 4 is the same approved private shown on applicants' Exhibit 2 as an existing 16 foot shale cartway, he said.

The cartway abuts the proposed Lot No. 2, thus the proposed Lot No. 2 does about an approved private street as defined and required by the township's zoning ordinance, Ord said.

In conclusion, Ord stated that a shale cartway as shown on applicants' Exhibit 2 is an approved private street, having originally been approved by the township's board of supervisors, and recorded as the minor subdivision of lands of Marie Christman, et all, at Carbon County Map Book 2, Page 301.

Ord added that the proposed Lot No. 2, as shown on applicants' Exhibit 2, abuts an approved private street. Therefore, Ord said the proposed minor subdivision is in compliance with Section 500.1 of the township zoning ordinance, and no variance is required for Lot No. 2.

"Lot 2 of the proposed minor subdivision plan abuts an approved private street, and is therefore in compliance with the township zoning ordinance; the request for a variance is moot; and the applicants' request for a variance is dismissed without prejudice", he said.