The Telecommunications Act of 1996 affirmed the Village of Old Brookville's authority concerning the placement, construction and modification of wireless telecommunications facilities or complexes within the Village. This article provides for the safe and efficient integration of wireless facilities or complexes necessary for the provision of advanced wireless telecommunications services throughout the Village and to ensure the ready availability of reliable wireless services to the public, government agencies and first responders, with the intention of furthering the public safety, health and general welfare of the Village.

The Village finds that wireless telecommunications facilities (facilities) and complexes may pose significant concerns to the health, safety, public welfare, character and environment of the Village and its inhabitants and neighborhoods. The Village also recognizes that facilitating the development of wireless service technology can be an economic development asset to the Village and of significant benefit to the Village and its residents. In order to ensure that the placement, construction or modification of a facility or complex is consistent with the Village's land use policies, the Village is adopting a single comprehensive wireless telecommunications facility or complex application and permitting process. The intent of this article is to minimize the physical impact of wireless telecommunications facilities on the community, protect the character of the community to the extent reasonably possible, establish a fair and efficient process for review and approval of applications, ensure an integrated, comprehensive review of environmental impacts of such facilities, and protect the health, safety and welfare of the Village.

In order to ensure that the placement, construction or modification of a facility or the components of a complex do not endanger or jeopardize the Village's health, safety, public welfare, environmental features, the nature and character of the community and neighborhood and other aspects of the quality of life specifically listed elsewhere in this article and also pose the least adverse effect upon the Village and its inhabitants, the Village hereby adopts an overall policy and related procedures with respect to the submittal, review, approval and issuance of permits or other approvals for wireless facilities for the express purpose of achieving the policies and goals set forth herein:

The owner(s) of a facility, WTF or complex, or any telecommunications structure, and of the land upon which a telecommunications structure or the same is located, shall at all times be jointly and severally responsible for:

Said owner(s) shall regularly and diligently monitor activities at the site to assure that the facility or complex is operated in compliance with this article, other Village regulations and any special use permit.

Any legally permitted facility, tower or other telecommunications structure or complex that exists on the effective date of this article shall be allowed to continue as it presently exists, provided that:

Any work not properly previously permitted prior to the adoption of this article must be permitted within 90 days of the effective date of this article.

Any co-location on or modification of an existing facility, tower or other telecommunications structure or complex is subject to the provisions of this article and will require the entire facility or complex and any new co-location or modification to comply with this article, including obtaining a valid COC.

No work shall be allowed to be done at or on any facility or complex, excepting normal repairs and maintenance as defined in this article, for which the owner cannot produce the COC for the most recent previous work, until a final inspection has been conducted and a COC has been issued. The owner of the facility, tower or other telecommunications structure or complex shall pay for the actual cost of the required final inspection prior to the inspection being conducted. If the complex does not pass the initial final inspection, the owner shall be required to pay for any subsequent inspection prior to the inspection being conducted. A passing final inspection is required prior to the issuance of a COC.

If no COC can be produced for previously done work, at the discretion of the Building Inspector, fines and other penalties as allowed by law may be imposed until the facility or complex is compliant and the required COC has been issued.

Any facility operated by or on behalf of any unit of government for public or municipal purposes.

Any facilities expressly or implicitly exempt from the Village's zoning, land use, siting, building or permitting authority under law or controlling legal precedent.

Any reception or transmission devises expressly exempted under the Telecommunications Act of 1996.

Any facility used exclusively for private, noncommercial radio and television reception and private citizen's bands, licensed amateur radio and other similar noncommercial telecommunications that are less than 100 feet above ground.

Facilities used exclusively for providing unlicensed spread spectrum technologies where:

Applicants for a special use permit for a wireless telecommunications facility shall locate, site and erect all such facilities and associated equipment in accordance with the following priorities, which are designed and intended to encourage co-location on existing towers and structures improved with WTC and to keep the facilities as far away as commercially practicable from residences, schools, houses of worship and day-care centers, one being the highest priority and nine being the lowest priority.

If the proposed site is not proposed for the highest priority listed above, then a detailed narrative and technical explanation must be provided as to why a site from all higher priority designations was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a special use permit or any other necessary permit or approval should be granted for the proposed site and why any other location higher on the list of priorities would serve to prohibit the provision of service.

Notwithstanding anything to the contrary provided in this article, the Board may approve any site located within an area in the list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety and welfare of the Village and its inhabitants and will not have a deleterious effect on the nature and character of the community and neighborhood given the totality of the circumstances. Conversely, the Board may direct that the proposed location be changed to another location that is more in keeping with the goals of this article and the public interest and that substantially meets the primary service objective of the applicant.

Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Board may disapprove an application for any of the following reasons:

Notwithstanding anything to the contrary provided in this article, for good cause shown, as determined by the Board, such as but not limited to the ability to utilize a shorter, smaller or less intrusive facility or complex at a different location that is more in keeping with the goals of this article and the public interest, and that substantially meets the primary service objective, the Board may require the relocation of a proposed site, including allowing for the fact that relocating the site chosen by the applicant may require the use of more than one site to provide substantially the same service if the relocation could result in a less intrusive facility or complex, singly or in combination with other locations.

All new towers shall be of the monopole type. No new towers of a lattice or guyed type shall be permitted, unless relief is otherwise expressly granted.

Pursuant to the 1996 Telecommunications Act and subsequent case law related to the right to deny an application for cause, the applicant for a new tower or other telecommunications structure shall submit clear and convincing technical evidence by a carrier or wireless service provider committed to use the new tower or other telecommunications structure justifying to the exclusion of all reasonable alternatives: the need for a new tower; the need for the proposed location; and the total height of the proposed tower or other telecommunications structure requested and the basis therefor, including all attachments. If the applicant chooses to provide evidence in the form of propagation studies, such must include all modeling information and support data used to produce the studies at the requested height and a minimum of 10 feet lower to enable verification of the need for the requested height and showing the service area/signal strengths for all frequency bands to be used.

In the event that propagation studies do not resolve the issue of need, the Board reserves the right to require a drive test to be conducted under the supervision of the Board or its expert or consultant as evidence of the technical need for what is requested.

As the Village has made the policy decision that more facilities of a shorter height is in the public interest, as opposed to fewer taller facilities, spacing or the distance between facilities shall be such that the service can be provided without exceeding the maximum permitted height.

The maximum permitted total height of a tower or other proposed telecommunications structure shall be 150 feet above preconstruction ground level, unless it can be shown by clear and convincing technical evidence that such height would prohibit or have the effect of prohibiting the provision of service in the intended service area within the Village. The maximum permitted height is not an as-of-right height, but is the maximum allowable height.

At no time shall a tower or other telecommunications structure be of a height that requires lighting by the FAA.

Towers shall be structurally designed to support a minimum of four carriers using functionally equivalent equipment to that used by the first carrier attaching to a tower or other telecommunications structure and that can be increased in height if needed.

Height. No tower or telecommunications structure that is not a building and is constructed after the effective date of this article shall be of a height that requires lighting by the FAA.

Stealth. All new facilities, including but not limited to towers, shall utilize stealth or camouflage siting techniques, unless it can be shown to be either commercially impracticable or technologically impracticable.

Finish/color. Towers shall be galvanized and/or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings and shall be maintained in accordance with the requirements of this article.

Lighting. Notwithstanding the prohibition of lighting, in the event lighting is subsequently required by the FAA, the applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under local, state and federal regulations. For any facility or complex for which lighting is required under the FAA's regulations, or that for any reason has lights attached, all such lighting shall be affixed with technology that enables the light to be seen as intended from the air, but that prevents the ground-scatter effect so that it is not able to be seen from the ground to a height of at least 20° vertical for a distance of at least one mile in a level terrain situation. Such device shall be compliant with or not expressly in conflict with FAA regulations. A physical shield may be used, as long as the light is able to be seen from the air, as intended by the FAA.

Retrofitting relighting. In the event a tower or other telecommunications structure that is lighted as of the effective date of this article is modified, at the time of the modification, the Board may require that the tower be retrofitted so as to comply with the lighting requirements of this article or be reduced to a height that does not require lighting.

Flush mounting. Except for omnidirectional antennas, all new or replacement antennas shall be flush-mounted or as close to flush-mounted on the telecommunications structure as possible, unless it can be demonstrated by clear and convincing technical evidence that such has the effect of prohibiting the provision of service to the intended service area, alone or in combination with another site(s), or unless the applicant can prove that it is technologically impracticable.

Placement on building. If attached to a building, all antennas shall be mounted on the facie of the building and camouflaged so as to match the color and, if possible, the texture of the building, or in a manner so as to make the antennas as visually innocuous and undetectable as is possible given the facts and circumstances involved.

All facilities, including antennas, towers and other supporting structures, including all guy anchors points and guy wires, shall be made inaccessible to unauthorized individuals and shall be constructed or shielded in such a manner that they cannot be climbed or collided with; and

Transmitters and telecommunications control points shall be installed so that they are readily accessible only to persons authorized to operate or service them.

All proposed towers and any other proposed wireless support structures, except utility poles, shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: a distance equal to two times the height of the proposed tower or telecommunications structure, otherwise known as the "fall zone," or the existing setback requirement of the underlying zoning district, whichever is greater. Any accessory structure shall be located within the fenced compound area, or as required under § 300-45 of this article, as approved in the special use permit and so as to comply with the applicable minimum setback requirements for the property on which it is situated. The fall zone shall be measured from the center line of the tower to the nearest portion of the right-of-way or any public road or thoroughfare and any occupied building or domicile, as well as any property boundary lines. Further, the nearest portion of any access road leading to a facility shall be no less than 10 feet from the nearest property line.

There shall be no development of habitable buildings within the setback area or fall zone.

Ownership and management.

Zoning and planning.

Safety.

The Village shall not be required to issue a special use permit for any facility, the service area for which is not primarily and substantially within the Village.

Attachments to buildings. To preserve and protect the nature and character of the area and create the least visually intrusive impact reasonably possible under the facts and circumstances, any attachment to a building or other structure with a facie, the antennas shall be flush-mounted on the facie without increasing the height of the building or other structure, unless it can be shown by clear and convincing evidence that such will prohibit or have the effect of prohibiting the provision of service. All such attachments and exposed cabling shall use camouflage or stealth techniques to match as closely as possible the color and texture of the structure.

Attachments to towers. So as to be the least visually intrusive reasonably possible given the facts and circumstances involved, and thereby have the least adverse visual effect, all antennas attached to a tower or other structure shall be flush-mounted or as near to flush-mounted as is possible so as to create the smallest profile reasonably possible under the facts and circumstances, unless it can be proven that such would prohibit or serve to prohibit the provision of service or be technologically impracticable.

Attachments to water tanks. If attaching to a water tank, in order to maintain the current profile and height, mounting on the top of the tank or the use of a corral shall only be permitted if the applicant can prove that to locate elsewhere less visually on the tank will prohibit or have the effect of prohibiting the provision of service.

Structural analysis and report. The applicant shall provide a certification by a professional engineer licensed in the state, along with documentation in the form of a structural analysis, including calculations, that prove that the telecommunications structure and its foundation as proposed to be utilized are designed and were or will be constructed to meet all local, Village, state, federal and TIA ANSI 222 structural requirements for loads, including wind and ice loads and the placement of any equipment on the roof a building after the addition of the proposed new equipment.

ANSI inspection. A complete, unredacted TIA ANSI 222 Report regarding the physical condition of the facility or complex and its components done within the previous six months shall be provided. If such report has not been done within the previous six months, one shall be done and submitted as part of the application. No building permit shall be issued for any tower, other telecommunications structure, complex or wireless facility or related equipment without the required TIA ANSI 222 report and where the structure being attached to is in need of remediation to comply with the requirements of this subsection and other adopted standards of the Village, unless and until all remediation work that is deemed needed has been completed or a schedule for the remediation work has been approved by the Village Building Inspector.

Compliance. Other than to remediate noncompliant situations related to matters of safety or the conditions of a permit, no permits for work at a facility or complex shall be issued for any work related to an facility where the facility and complex are not in full compliance with all applicable local, state and federal laws, rules, regulations and orders. A facility and complex not in full compliance shall be required to be brought into full compliance before a building permit will be issued for work related to a facility request or application.

A special use permit and a building permit shall be required for any work that is not routine maintenance as defined in this section.

No building permit shall be required for routine maintenance, nor for work that does not constitute a modification or co-location, all as defined in this article.

The following shall be required in an application for and prior to obtaining a special use permit. No building permit shall be issued until the requirements of this article have been complied with. No work related to a modification or co-location may be performed without having obtained a valid and properly issued special use permit.

In certain instances, the Board may deem it appropriate to have an on-site RF survey of the facility performed after the construction or modification and activation of the facility, such to be performed under the direction of the Board or its designee, and an unredacted copy of the survey results provided, along with all calculations, prior to issuance of a certificate of compliance.

Attachments.

In addition to any other approvals or permits required by Article VI herein, all applications to construct, install, operate, maintain or otherwise establish new wireless telecommunications facilities (including but not limited to DAS equipment and systems) in, upon, above, along, across and over municipal facilities, municipal property and public rights-of-way (including, but not limited to, utility poles or other similar structures owned by other municipal entities or utility companies) shall be subject to the approval of a license and/or right-of-way agreement by the Board of Trustees, except that no license and/or right- of-way agreement shall be required of any entity that already holds a cable television or telecommunications franchise issued or covering the Village.

Any applications under Subsection A solely for installation of wireless telecommunications facilities on poles or similar structures of 40 feet or less in height shall be administered exclusively as provided in this section, and not require a special use permit as provided in this article. Such applications shall require an administrative permit to be issued by the Building Inspector. Such permit shall be issued only after applicant's submission of a building permit application and compliance with all other requirements of this chapter, and the Village Code, as well as all other applicable federal, state and local codes and regulations relating to the construction and safety of wireless telecommunications facilities, as determined by the Building Inspector and only after such permit is approved by the Board subject to the following procedures and standards:

The Board shall assess each proposed site individually, addressing the issues of whether the applicant has a substantial need to locate a wireless telecommunications facility in, upon, above, along, across and over municipal facilities, municipal property and public rights-of-way, and whether there are alternate commercially practicable locations (including but not limited to available public lands) which will adequately serve the lawful interest of applicant and be farther away from residential, religious or educational uses than that proposed by applicant subject to the following standards:

The Board may authorize the issuance of an administrative permit by the Building Inspector for each site or node.

On an application to the Board as referenced above, the Board shall treat each proposed site or node as a separate case, and require a fee from the applicant as required by the Village's Fee Schedule, except that the applicant may include up to three nodes in a single application, provided sufficient funds are deposited to cover the cost of mailing notices and decisions to all property owners as required by this article, in addition to all other required fees and deposits as set forth in Village's Fee Schedule and in this article. In considering the case(s), the Board shall employ all standard procedures, including all public notice and hearing requirements as required generally under § 7-712-a of the New York State Village Law, this Code, and the rules of the Board, subject to the provisions of the Federal Telecommunications Act of 1996, as applicable. Notwithstanding, the notice of public hearing shall be given by publication in the Village's official newspaper at least 10 days prior to the date thereof. The applicant must mail a copy of the public notice thereof to the owners of all real property located within 300 feet of each proposed node, as shown on the official Tax Map of the Village, by certified mail, return receipt requested, at least 10 days but not more than 20 days before the date of the public hearing.

The Village's expert's or consultant's report shall be included in the Board record. The Board may seek the advice and testimony of the Village's expert or consultant, who by virtue of the Village having done its due diligence prior to retaining the expert or consultant, shall be deemed to be a qualified expert. The Board may require the applicant to provide such further information to the Village's expert or consultant to enable the expert or consultant to provide full expert and probative input to the Board as to the merits of the application.

The Board shall grant a special permit for each site or node only if it shall determine that applicant has a substantial need to place a wireless telecommunications facility in, upon, along, across and over municipal facilities, municipal property and public rights-of-way and that no other pole in a commercially practicable location exists or may be installed or established in compliance with this article (including but not limited to available public lands) which will adequately serve the lawful interest of applicant and be further away from residential, religious or educational uses than that proposed.

The Building Inspector shall issue an administrative permit only for those sites for which such administrative permit has been approved by the Board under this article, which permits shall require the following:

The Board may retain any consultant and/or expert necessary to assist the Board in reviewing and evaluating the application, including the construction and modification of the site, once permitted, and any site inspections. To prevent taxpayers from having to bear the costs and expenses related to the permitting and regulating of wireless telecommunications facilities, the applicant shall pay to the Village a fee(s) as set forth in the Village's Fee Schedule. The fee(s) is intended to cover all the costs and expenses of the expert or consultant and attorneys' fees in connection with the review of any application or the permitting, inspection, construction or modification requested under this article.

Timing of payment. The payment of the expert or consultant fees to the Village shall precede any work being done related to the intended application, including but not limited to a site visit, preapplication meeting or discussions or inquiries initiated by the applicant.

Review prior to the formal submittal of the application. The expert or consultant costs for any review of an application or any portion thereof that is requested by the applicant prior to the formal submittal of the application shall be paid for by the applicant and shall be separate and apart from the cost for expert or consultant assistance related to the formal review of the application.

Amended or changed application. If an application is amended or changed after its formal submittal at any time prior to the grant of the permit or approval required under this article, the Board reserves the right to require additional payment for review and analysis equal to, but not exceeding, the cost incurred by the Village by the amendment of the application. Such amount shall be paid to the Village prior to the issuance of the special use permit, any building permit or any other required permit or approval.

Relief or waiver request. The cost of expert or consulting assistance to the Village related to work associated with a request for relief or waiver after the initial submittal of an application shall be paid for by the applicant and shall not count toward the fee cap.

Lease negotiations. The intended lessee shall pay all costs of the Village's expert assistance incurred for lease negotiations. The cost for the Village's expert assistance for lease negotiations is and shall be separate and apart from an application review for any permit, and shall be required to be paid for by the requesting lessee prior to the start of any work related to the intended lease negotiations.

Qualifications. The Village may hire any consultant of its choice to assist the Village in reviewing and evaluating applications, provided the consultant has at least five years' experience working exclusively for the public sector regulating towers and wireless facilities and negotiating leases for such facilities and has reviewed at least 500 applications.

The total amount of the funds needed for expert or consulting assistance as set forth in the Village's Fee Schedule may vary with the scope and complexity of the application, the completeness of the application and other information as may be needed to complete the necessary review, analysis and inspection of any construction or modification or the amount of time spent responding to an applicant's arguments as regards its application or the requirements of this article.

The Village will maintain an accounting for the expenditure of all such funds.

Co-location or modification. There shall be no public hearing required for an application to co-locate on an existing structure or to modify a facility, so long as there is no increase in the height of the telecommunications structure or increase in the size of the profile of the facility. In such an instance, the Building Inspector shall be authorized to administratively issue the appropriate authorization or permit.

New telecommunications structure or increased height or size of profile. When the Building Inspector determines that the application is complete, with all required submissions having been received in proper form and all the information contained therein is truthful, correct and accurate, the application shall be referred to the Board to schedule a public hearing. Except where expressly prohibited by applicable state and federal law, the Board may require such additional information as it deems necessary and relevant to the application or the impact on the Village of what is proposed, or the scheduling of a public hearing.

In order for a public hearing to be held, notice of the hearing shall be published in the official newspaper of the Village no fewer than 10 calendar days prior to the scheduled date of the public hearing. In order that nearby property owners shall be specifically notified of the application, the applicant shall, no less than 14 calendar days prior to the scheduled date of the public hearing, mail a written notice of the hearing to all property owners located within 1,500 feet of any property line of the lot or parcel on which the new wireless telecommunications facilities are proposed to be located, and for that purpose, applicant shall complete and utilize a form provided by the Board, and provide affidavits or such other proof to the Board as the Board requires to ensure that such mailing has properly taken place. The notice of hearing shall be sent by certified mail, return receipt requested, to all property owners located within 500 feet, and by first class mail to all other property owners entitled to notice hereunder.

The applicant shall pay for all costs related to the public notice of any hearing and for the individual notices to property owners of the hearing.

Upon Board review and approval, a special use permit shall be issued.

Timely review. The Village will undertake a review of an application pursuant to this article in a timely fashion, consistent with its responsibilities and applicable law, and shall act within the time required by applicable law.

Referral of application. The Village may refer any application or part thereof to any advisory committee or expert or consultant for a nonbinding recommendation.

Action on an application. After the public hearing is completed, and after formally considering the application, the Board may: approve; approve with conditions; or deny a special use permit. If denied, the decision shall be in writing and shall be supported by substantial evidence contained in a written record. Throughout the application and permitting process, the burden of proof for compliance with this article or the need for a waiver or relief shall always be upon the applicant.

Refusal to provide information needed for written record. An applicant shall not be permitted to refuse to provide information needed to establish the substantial written record required under federal law and applicable case law. Refusal shall result in a denial of the application.

Approval notification. If the Board approves the special use permit or administrative authority for the facility or complex, then the applicant shall be notified of approval of its application, including any conditions, within 30 calendar days of the Village's action. The special use permit or administrative authorization shall be issued within 30 days after such approval.

Denial notification. The applicant shall be notified of a denial of its application at the Board Meeting when the decision was made, and in writing within 30 calendar days of the Board's action, which notice shall set forth in writing the reason or reasons for the denial. The written record expressly includes the minutes of any hearing.

Such special use permit or administrative authorization shall not be assigned, transferred or conveyed without the express prior written notification to the Village, such notice to be not fewer than 30 business days prior to the intended assignment, transfer or conveyance.

A transfer, assignment or other conveyance of the special use permit or administrative authorization shall require the written commitment of the proposed new holder of the special use permit or administrative authorization to abide by all applicable laws, rules and regulations, including but not limited to this article.

Following notice and an opportunity to cure, a special use permit granted under this article may be revoked, canceled or terminated for a violation of the conditions and provisions of the special use permit or other applicable law, rule, regulation or order, and if warranted, the payment of a fine(s) as is permissible.

If a violation is not cured within the time frame set forth in the notice of violation, a hearing shall be held upon due prior notice to the applicant citing the violation and the date, time and place of the hearing, which shall be provided by registered mail to the last known address of the holder of the special use permit.

Following the original notice and an opportunity to cure, subsequent or repeated violations of a substantially similar nature shall be deemed a pattern of misbehavior and not require an opportunity to cure prior to the imposition of fines or penalties.

In order to verify that the holder of a special use permit for a facility or complex and any and all lessees, renters and/or licensees of wireless telecommunications facilities, place and construct such facilities in accordance with all applicable technical, safety, fire, building codes, zoning codes, laws, ordinances and regulations and other applicable requirements and the conditions of any permit granted under this article, and remains in compliance with such, the Village or its designee shall have the right to inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings or other structures constructed or located on the permitted site.

Refusal to allow or grant access to the Village's representative upon reasonable notice shall be deemed a violation of this chapter.

A holder of a special use permit for a wireless telecommunications structure shall secure and at all times maintain general comprehensive public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below:

For a facility or complex located on Village property, the commercial general liability insurance policy shall specifically name the Village and its officers, Boards, employees, committee members, attorneys, agents and consultants as "additional named insureds."

The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the State of New York and with an AM Best's rating of at least A.

The insurance policies shall contain an endorsement obligating the insurance company to furnish the Village with at least 30 days' prior written notice in advance of the cancellation of the insurance.

Renewal or replacement policies or certificates shall be delivered to the Village at least 30 days before the expiration of the insurance that such policies are to renew or replace.

Before construction of a permitted wireless telecommunications facility or complex is initiated, but in no case later than 15 days prior to the grant of the building permit, the holder of the special use permit shall deliver to the Village a copy of each of the policies or certificates representing the insurance in the required amounts.

A certificate of insurance that states that it is for informational purposes only and does not confer rights upon the Village shall not be deemed to comply with this chapter.

Any application for wireless telecommunication facilities that is proposed to be located on Village property shall contain a provision with respect to indemnification of the Village. Such provision shall require the applicant, to the extent permitted by applicable law, to at all times defend, indemnify, protect, save, hold harmless and exempt the Village and its officers, Boards, employees, committee members, attorneys, agents, and consultants from any and all penalties, damages, costs, or charges arising out of any and all claims, suits, demands, causes of action, or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal, or restoration of said facility or complex, excepting, however, any portion of such claims, suits, demands, causes of action or award of damages as may be attributable to the negligent or intentional acts or omissions of the Village, or its servants or agents. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees, and expert witness fees are included in those costs that are recoverable by the Village.

Notwithstanding the requirements noted in Subsection A of this section, an indemnification provision will not be required in those instances where the Village itself applies for and secures a special use permit for a wireless telecommunications facility or complex.

The owner of the property on which a wireless telecommunications facility or wireless equipment is located, as well as the owner and/or manager of the facility, including any support structure and/or the land on which it is located, shall at all times be responsible for assuring that all activities occurring on the structure or at the site of the facility that are related to the operation of the facility and the support structure, including but not limited to: proper permitting for all activities as required by this and other Village laws, rules or regulations; the physical and safe condition and operation of the facility, including any components of such; and compliance with all applicable laws, ordinances, rules, regulations and orders related to the presence and operation of the facility by any user or lessee of all or part of the facility. Said owner(s) and/or manager(s) shall monitor activities at the site and operate the facility so as to assure compliance as set forth in this subsection.

In the event of a violation of this article or any of the terms and conditions of a special use permit or other approval required pursuant to this article, and in addition to any other remedy available to the Village at law or equity, the Village may impose and collect, and the holder of the special use permit for wireless telecommunications facilities or the owner of the support structure responsible for adherence to the law for the construction, maintenance, operation and modification shall pay to the Village, civil penalties in the amount of $500 per day, until the violation or violations are abated to the satisfaction of the Village.

Additionally, the failure to comply with provisions of this article or the terms and conditions of any special use permit, building permit, administrative permit or other required approval shall constitute a violation of this article by the owner of the property, the owner of the improvements and any lessee or other person or entity in control of the property or facility, jointly and severally, and shall subject them or any of them to prosecutions in the Old Brookville Village Court or other court of competent jurisdiction, or injunction actions in any court of competent jurisdiction to compel compliance.

In the case of a Village Court prosecution, any person, firm or corporation which shall construct, alter, repair, move, remove, demolish, equip, use, occupy or maintain any wireless telecommunications facility or part thereof in violation of this article, or the conditions of any special use permit, building permit, administrative permit or other approval issued hereunder, shall be guilty of a violation punishable by a fine not exceeding $1,000 or imprisonment for a period not exceeding 15 days for each such offense, or by both such fine and imprisonment. Each day that an offense continues shall be deemed a separate offense. For conviction of a second offense, both of which were committed within a period of five years, such violation shall be punishable by a fine of not less than $250 and not more than $1,000 or by imprisonment for a period not to exceed 15 days, or both. Except as provided otherwise by law, such a violation shall not be a crime and the penalty or punishment imposed therefor shall not be deemed for any purpose a penal or criminal penalty or punishment and shall not impose any disability upon or affect or impair the credibility as a witness, or otherwise, of any person convicted thereof.

No person or entity may use the payment of penalties set forth in this section as a means of evading or avoiding compliance with the letter and the intent of this article.

If the lease for the existing co-location expires and is not renewed, thereby forcing the facility to be moved, such move shall be allowed upon: the provision of clear and convincing evidence satisfactory to the Board of the need to move or relocate the Facility; and clear and convincing evidence satisfactory to the Board of the lack of impact on the neighborhood or area of intended new location. Cancellation or abandonment of a lease by a lessee shall not be deemed a permissible reason for relocating.

The owner of any facility or complex shall be required to provide a minimum of 60 days prior written notice to the Village Clerk prior to abandoning any facility or complex and shall bear the costs of removal and restoration of the sites of the complex to their original condition, the costs of which shall be bonded in the event the owner/operator does not remove restore the areas of the installation or transfer the ownership and obligations to another entity under this article.

Under the following circumstances, the Village may determine that the health, safety and welfare interests of the Village warrant and require the removal of facilities.

With respect to telecommunications structures other than towers, if any section or portion of the structure to be attached to or area within 100 feet of such, is not in compliance with the FCC's regulations regarding RF radiation, that section or portion must be barricaded with a suitable barrier to discourage approaching into the area in excess of the FCC's regulations, and be marked off with brightly colored plastic chain or striped warning tape as appropriate, as well as placing RF radiation signs as needed and appropriate to warn individuals of the potential danger.

Any applicant desiring relief, waiver or exemption from any provision or requirement of this article shall address and identify such at the pre-application meeting. The relief or exemption must be contained in the filed application for either a special use permit or any other necessary permit or approval, or in the case of an existing or previously granted special use permit or any other necessary permit or approval, a request for modification of the facility or complex and/or equipment. Such relief may be temporary or permanent, partial or complete.

Requests for relief shall not be considered part of the application process.

The burden of proving the need for the requested relief, waiver or exemption shall be solely on the applicant.

The applicant shall bear all costs and expenses of the Village in considering the request and the relief, waiver or exemption, including expert assistance costs.

No relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant affect on the health, safety and welfare of the Village, its residents and other service providers.

To the extent that the holder of a special use permit or any other necessary permit or approval for a wireless telecommunications facility or complex has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a special use permit, permit or approval shall adhere to, and comply with, all applicable rules, regulations, standards and provisions of any state or federal agency, including but not limited to the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.

To the extent that applicable rules, regulations, standards and provisions of any state or federal agency, including but not limited to the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting and security, are changed and/or are modified during the duration of a special use permit or any other necessary permit or approval for wireless telecommunications facilities, then the holder of such a special use permit or other permit or approval shall conform the permitted facility or complex to the applicable changed and/or modified rule, regulation, standard or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard or provision, or sooner, as may be required by the issuing entity.