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Case 1:19-cv-12333 Document 1-4 Filed 11/13/19 Page 36 of 43 <br /> 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 /> reason to go against the Bylaw,supported by a legal opinion. The <br /> public safety could not be used as a <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 VAMNCE WOULD NOT BE <br /> EFFECTIVE EVEN I.NTHE WIRELESS OVERLAYDISTRICT,PER THE MASHPEEZONING- <br /> BYLAW <br /> 5 <br />