02/13/2019 ZONING BOARD OF APPEALS Minutes

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MASHPEE ZONING BOARD OF APPEALS MEETING MINUTES FEBRUARY 13,2019 Mr. Furbush read the Inspection Department comments dated February 4, 2019, and February 6, 2019 into the record. Sharon read a memorandum dated February 5, 2019 from Scott Carline, Chief of Police into the record. Mr. Furbush read a memorandum dated February 11, 2019 from Evan Lehrer, Town Planner into the record. Scott Goldstein read a memorandum dated January 30, 2019 from Thomas C. Rullo, Fire Chief into the record. Sharon read a resident letter dated January 18 2019 into the record who is in favor of the proposed tower. Mr. Furbush opened the meeting to the audience. Attorney Paul Revere,from Centerville,MA represented two residents who oppose the cell tower. He handed the Board his written comments, and recited the M.G.L. Ch. 40A Sec. 10 bylaw stating that there was no evidence of a hardship for this proposal. He said that he never heard a word from the applicants regarding the hardship relating to soil, shape or topography or anything of the site that says it's different than the rest of the zoning district. He said this is the standard to be applied that is the evidence, those are the factors. He mentioned the Telecommunications Act of 1996 under first circuit interpretations somehow changed that standard. He suggested that his sister attorney overstates her case. He went on stating that the Wayland case does say that there is a potential for this factor, but what his sister fails to get to his how the Telecommunication Act works. The first thing it says is that local control still exists, there is a decision, only certain things local control can't do. There are essentially three,the exception is you cannot prohibit or have the effect of prohibiting the provision of personal wireless services. This is a Variance for one location. It is not talking about prohibiting that. The secondary thing is you cannot regulate radiation.He said he will not say anything about radiation.He simply agrees with the Board of Health comments that are only irrelevant to this matter.The third thing is that you cannot discriminate against providers, no one is talking about that issue. He said there's the ability to regulate, but your authority is driven by State Law. The State Law tells you what you can do,not the Telecommunications Act. In fact the FCC has been found to be preempted from trying to give additional authority to State authorities. He pointed out American Towers vs. Shrewsbury, is the same level with the Wayland case. He said;"rather the Board need only evaluate the application for a Zoning Variance are the applicable standards as provided by State and Local law."If this is the only site that it can be done on, then the federal courts can force the Variance down the throats of Mashpee. He said Isotrope reported that the Cape Cod Commission; ordinarily you place the facility in the center of the forest area, on page 6 it says;put it at the intersection of Hush Road and Great Oak Road, it ends up in the exact same place that New Seabury had a lease with Verizon proposed under the Special Permit years ago. '7