A decision on whether a Lower Towamensing Township couple may subdivide a five-acre lot could finally be made.

The township's Zoning Hearing Board will hold a continued public hearing for Harry and Elaine Eckhart's request for a variance at 7 p.m. Thursday.

The Eckharts appeared last month before the zoners in search of a variance from Section 500.1 of the zoning ordinance to subdivide out a five acre lot at 5260 Little Gap Road, Kunkletown.

But, shortly after the hearing commenced, the Eckharts indicated they accidentally listed the wrong date in the letter. They then asked for, and were granted, a continuance.

The lot, located in a rural-conservation district, allegedly does not abut a public street or an approved private street.

In December, zoners, on a 2-0 vote, with an abstention from Zoner James DeRosa, ruled that no variance was necessary for the subdivision of 120.54 acres. DeRosa abstained from the vote because he did not attend the initial hearing that came before the zoners on Oct. 23.

The Eckharts 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 the property at 5260 Little Gap Road.

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.

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

Zoning board Chairman James 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 street 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 abut 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.

But, Lutz filed a land use appeal challenging the decision made by the zoners, which is the defendant in the case.

Lutz says the zoning hearing board, after the Oct. 23 hearing, found that a right-of-way servicing the Eckhart property was referenced in a subdivision that subdivided adjacent property to the Eckhart farm, and included the lot which was eventually purchased by Lutz.

The board said since the plan was approved by the board of supervisors, the right-of-way became an approved private street in accordance with the township's zoning ordinance and, as such, a variance was not needed by the Eckharts because the proposed lot is located on an approved private street.

Lutz contends that determination was an incorrect interpretation that the existing dirt lane right-of-way servicing the Eckhart property qualifies as an approved private street, and that a variance was needed by the Eckharts.

The appellee asks the court to reverse the decision of the zoning board and find the township's zoning ordinance requires a variance in order to approve the Eckhart subdivision plan.