BY JANE MEGGITT
Staff Writer
MILLSTONE — The Planning Board wanted to know the broader implications of a potential minor subdivision at its Feb. 9 meeting.
The Foo-Hsing Corp., which owns 150 landlocked acres off Disbrow Hill Road, wants to reconfigure its lot lines by swapping land with neighbors Edward and Beth Heminghaus.
Township Planner Richard Coppola said the board shouldn’t look at the minor subdivision application in a vacuum.
“The board must look at consequences,” Coppola said. “With access, the property would have the ability to be developed, which it does not presently have.”
The Heminghauses currently have a 2.45-acre lot with 580 feet of frontage on Disbrow Hill Road.
The swap would give them an additional 8 acres, which would comply with the township’s 10-acre zoning, in exchange for 163 feet of their frontage.
The readjustment requires a variance, as 250 feet of frontage is required by ordinance. They are also requesting a hardship variance, since the property currently does not have legal access.
Coppola said a potential access road into the property could interfere with the existing intersection of Disbrow Hill Road and Beechwood Lane.
“A possible access road to Disbrow Hill Road would be poorly angled at the intersection with questionable sight distances,” he said.
When Coppola asked whether it was possible to get a safely designed intersection on the parcel, Eugene McDonald, the applicant’s engineer, said, “I have my doubts.”
McDonald said while a right of way could be purchased from the Heminghauses, it would encroach on their septic, resulting in having to rebuild it.
David Sie, of Marietta, Ga., a principal of the Foo-Hsing Corp., whose grandfather once owned the tract, said the corporation was a result of a provision in his grandfather’s will. The principals are all cousins, he said, and the land is the corporation’s only asset.
Sie said he did not know until recently that the Heminghauses owned access to the farm.
“We always believed the property had access until we started investigating the disposing of the property,” Sie said.
There are existing homes on Lot 4, owned by the Heminghauses, and on Lot 3, owned by Foo-Hsing Corp. The township owns a triangular section near the driveway, used as a right of way.
McDonald showed the board an aerial photograph of the property dating from 1981.
“The driveway on Lot 3 is actually on Lot 4,” McDonald said.
The driveway provides the only access
to the Foo-Hsing Corp. property, which is currently farmed.
McDonald said that the driveway was at least 30 years old but possibly much older, and that the owners should have adverse possession rights to it.
Deputy Mayor Nancy Grbelja asked if the owners would come in with a development plan if the access to the property changed.
The applicant’s attorney, Bret Kaplan, said the property was under contract to a developer, but McDonald said all they were looking for now was a simple lot-line adjustment.
Soil borings have been taken on Lot 3 to see if it is suitable for development, according to McDonald.
About 70 percent of the Foo-Hsing property is wetlands, McDonald said.
Wetlands and buffer requirements may impact the future use of the driveway, McDonald said.
When board members asked for a Letter of Interpretation from the state Department of Environmental Protection, McDonald said it was not requested because construction was not taking place during the minor subdivision.
Attorney Burton Jaffe testified as a fact witness for the applicant. He said the township had previously entered into an agreement with the Foo-Hsing Corp. to purchase the property, subject to environmental due diligence and clear access to title.
According to the title report, there was no access to Lot 3.
Jaffe said after the political climate in town changed, his clients were told if access to Lot 3 could not be provided, the township would terminate the contract, which it did at the end of 2003.
“We’re not looking to pull a fast one,” Jaffe said, referring to the attempt to gain access. “The developer has expended a substantial sum of money doing soil testing. It may not go forward if he’s not satisfied with the perc and soil log tests.”
Board member Evan Maltz said if the landowner was willing to restrict the deed, it might be possible to get the driveway, but McDonald said his client did not want a restriction of further use.
“I can’t recall any application ever done this way, with someone coming in with a minor subdivision now and perhaps a major subdivision later,” Maltz said.
“It doesn’t seem we’re being told what they really want,” said board member George Zanetakos.
Coppola said the board should require the applicant to show how the property could be subdivided. He also said an independent consultant could verify the wetlands boundaries.
Board member Mark Cascella said access to any development would come down to a 50-foot neck, which would allow vehicles to get through.
Jack Kaye, who owns an adjacent property at 3 Beechwood Lane, said the access road would be near the rear of his property line, and that the road at 50 feet would touch his property line without a buffer. He also expressed concern about emergency access to the potential road.
Another neighbor of the property, Gary Mangino, asked why the applicant used a wetlands map from 1989 and an aerial map from 1981.
“Lot 3 had been in the same family for many years, and the lack of access was created when Lot 4, the Heminghaus property, was created,” Mangino said. “The deed of the Heminghaus property allows driveway access for Lot 3 for one residence.”
Mangino suggested tearing down the Heminghaus dwelling.
Kaplan requested a two-month extension for the application, which is scheduled to continue at the April 13 meeting.