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Bylaws. Mr. Phelan inquired how the ZBA would have been allowed to grant the variance if it was not <br /> allowed by the Bylaw. The Chair stated that the Planning Board attempted to acquire the information <br /> from the applicant, who refused to discuss it and information was not submitted during the Public <br /> Hearing. Mr. Phelan stated that the ZBA issued their variance during a public meeting. Mr. Balzarini <br /> suggested that it was illegal because the tower was not zoned for the proposed site. The Chair <br /> referenced the variance located in Exhibit 7, quoting that the project proponent would"need height to <br /> remedy the gap in service." The Chair further quoted the variance on page of 6 whether it would be a <br /> detriment to the public good, but letters received from First Responders demonstrated a need for the <br /> coverage and would not be a detriment but it would help to serve and protect the public. <br /> The Chair referenced the Appeal, Exhibit 32,but it was Mr. Phelan's opinion that the ZBA Appeal was <br /> not relevant because it had been granted. The Chair stated that, in Item 16,the variance could be <br /> granted related to soil, shape or topography and structures,but not as it affected the zoning district. <br /> Mr. Phelan noted that the statement was part of the appeal, which would be considered by a judge, and <br /> was not a fact. The Chair stated that the applicant was asked to allow for a continuance for the matter <br /> to be heard in the court system,but they did not wish to do so. Mr. Phelan stated that the 1996 <br /> Telecommunications ACT required that the matter move along quickly. The Chair stated that the ZBA <br /> cited public safety,but the statement indicated that it had no effect. In order to amend the Zoning <br /> Bylaw to take into consideration Public Safety, it would need to occur at Town Meeting, and the voters <br /> at Town Meeting voted against placing the site into the Wireless Facility Overlay District. As a result, <br /> public safety could not be used as a reason to go against the Bylaw, supported by a legal opinion. The <br /> Chair added that variances typically could only be given in cases of soil condition, shape or land <br /> structure, like a rock in the way of a driveway. The Chair reiterated that they had asked the applicant <br /> to wait,but they did not wish to do so. The Chair stated that they could not set a precedent allowing a <br /> variance to overrule everything. <br /> Mr. Balzarini inquired about the specific variance awarded and the Chair responded that it was a height <br /> variance, but the Chair suggested that it was a use variance. Mr. Cummings suggested that the <br /> reasoning was height and safety. The Chair stated that if a height was allowed in a particular district, a <br /> variance could not be used to locate it outside the district. <br /> Mr. Phelan stated that two variances were awarded on page 6 of the Decision, the R-3 zone and a 160 <br /> foot height variance. Mr. Balzarini stated that the hardship discussed the height and not the <br /> topography. Mr. Phelan noted that Ms. Thompson explained the hardship during discussion. <br /> Chairman Waygan, Mr. Balzarini and Mr. Cummings still agreed with the finding. <br /> Mr. Phelan did not agree with the finding because the ZBA granted the variance and Mr. Callahan <br /> agreed with Mr. Phelan that the variance had been given by the ZBA. <br /> The Chair referred the Board to page 8 of the findings, noting that the Planning Board should be the <br /> only Board to waive a height. <br /> MASHPEE ZONING BOARD OFAPPEALS DECISION FOR A VARIANCE WOULD NOT BE <br /> EFFECTIVE EVEN IN THE WIRELESS 0VERLAYDISTRICT,PER THE MASHPEE ZONING <br /> BYLAW <br /> 5 <br />