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PEPPERELL — An appeal the Planning Board made to a Zoning Board of Appeals decision has yet to be heard in court, but a South Road property owner has submitted new plans to build a sixth house on his property that, with a zoning board variance, could make the lawsuit moot.

Richard Ferrero, of 146 South Rd., has been seeking a variance to his 1991 special permit application that allowed construction of a common driveway — Ottada Way — for three years.

He wants to build a sixth single-family home on a five-acre lot in the environmentally sensitive area. Planning Board amendments to common drive regulations that allowed up to nine homes were adopted by town meeting in 1999 that limit the number of houses to five.

Last April, the zoning board approved a variance to allow Ferrero to build a driveway leading to a sixth house. Its septic design was denied, but other criteria, including frontage, met requirements. The Conservation Commission had also levied an order of conditions.

In an unusual move, the Planning Board hired an attorney to challenge the zoning decision, fearful it would set precedent and open the doors to similar scenarios throughout town. Planners were quoted as saying their board was misrepresented by the zoning board.

This week Ferrero, attorney Raymond Lyons and engineer Daniel Wolfe of Ross Associates in Ayer presented a new design to the zoning board. The house had been moved closer to South Road and an abutter’s property. The driveway would now lead directly in from South Road. This time, the Planning Board had no objection, according to a letter read into the record.

The attorneys agreed that issuing a new variance could make the lawsuit moot and would be the most efficient means of ending it, according to other letters between Lyons and town counsel Ned Richardson.

The design was also before the Conservation Commission that night. Lyons said he had hoped scheduling would have allowed the commission to levy a new order of conditions prior to the zoning appeals hearing, but it didn’t happen.

”I spoke with the Conservation Commission today, and we’re ready to place most of the lot into a permanent conservation restriction using the National Heritage Association’s favorite restraint which came from Groton regarding the blandings turtle and salamanders, etc.,” Lyons said.

”We need to find a holder of the restriction,” he said. “In many towns the Conservation Commission does that, but not in Pepperell.”

A Board of Health letter to the zoning appeals board stated that health officials have not received new septic plans. Lyons said his client is seeking the zoning variance before submitting the new plan to the health board. Lyons and Wolfe agreed that the new plan meets all criteria and was “ready to go.”

The percolation rate has been successfully tested, said Wolfe, but the final requirement — a high groundwater test — must be postponed until March, according to Pepperell’s requirements.

Abutter William McBride, of 150 South Rd., said he had an agreement with Ferrero to access the lot through his land in order to eliminate creating two hammerhead lots. He was to sell Ferrero the land to give the developer necessary road frontage.

”This new driveway would impact my land and our agreement,” he said.

The agreement was not to site the house on the side of wetlands nearest his property, said McBride.

The snake-like driveway from South Road will not impact McBride’s land, Wolfe said, and is located well beyond minimum distance from the lot line.

”I see the Zoning Board of Appeals granting a variance after all boards have input, (but) you haven’t got the Conservation Commission’s or come full circle with the Board of Health,” said zoning board member Sherrill Rosoff.

”In my mind this is better than the previous plan of a common drive, but because of the sensitivity of the land we must make sure all is in place,” she said. “It seems the Conservation Commission is pretty good with this.”

”I totally disagree with Sherrill,” said zoning board member Christine Morrissey. “I’d first want my lot (approved) then go to the Conservation Commission and Board of Health.”

”I have no push back, but my point was I was concerned that not all town departments have commented,” Rosoff said.

”Why isn’t this a subdivision?” Morrissey asked.

”Because abutting lots have frontage on a right of way,” Lyons replied. “We’re not pursuing a purchase and sale agreement because we had sent (permit) money to the Planning Board and (paid the) engineer and attorney. You can’t submit money twice.

”There is no harm in coming back, (and) we do have a Land Court hearing on the (Feb. 16),” he said. “If any of you want to say no to this I ask to know it now for the court case.”

An applicant has a right to poll the board at any time, Morrisey said. If denied, the matter cannot come before the zoning board for two years, and would demand new submissions to the Planning Board.

Rosoff said she is not against the application, but prefers Ferrero have a conversation with the Conservation Commission and Board of Health.

”Hopefully tonight,” Lyons said.

”(The design) is going to be expensive,” Rosoff said.

Her motion to continue the hearing until Feb. 28 at 5:45 p.m. was unanimously approved.

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