N.Y. Comp. Codes R. & Regs. tit. 6 § 647.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 647.1 - Scope of the rules and definitions

(a) This Part governs procedure in all appeals and applications to the Freshwater Wetlands Appeals Board (hereinafter "board"), authorized by the Freshwater Wetlands Act of the State of New York (hereinafter "act"), for such relief as the board, the chairman or any member thereof is competent to give. This Part shall be known and cited as the Rules of Procedure of the Freshwater Wetlands Appeals Board.

(b) This Part shall not be construed to extend or limit the jurisdiction of the board as established by law.

(c) This Part shall be construed to secure the just, speedy and inexpensive determination of every appeal or proceeding before the board.

(d) The language of this Part shall be construed according to its most obvious and commonly used sense. Where required, interpretation shall accord with the provisions of "Construction and Interpretation", chapter 6, Statutes, book 1 of McKinney's Consolidated Laws of New York. Where applicable, the following definitions and related procedures shall govern in this Part:

(1) Affidavit. A written statement of facts, made voluntarily, and confirmed by the person making the statement under oath or affirmation before a notary public or other officer with authority to administer an oath or affirmation. Exhibits may be annexed to the written statement, and verified by it.

(2) Amicus curiae. A "friend of the court", being a person who volunteers information upon a matter of law important to any given appeal and which may escape the notice of the board.

(3) Answer and appearance. A succinct statement in response to the notice of appeal, either specifically contesting allegations of fact or law, or generally denying the entire content of the notice. The appearance is a written statement by which the respondent advises the appellant and board that it wishes to be heard and designates a person to represent said respondent.

(4) Appeal and notice of appeal. A complaint to the board of an alleged error or unlawful or unjust act, as provided in section 24-1103(2) of the act, committed in the making of an order, determination or decision pursuant to authority of the act. The appeal is started by preparing a succinct statement specifying the alleged error or act; this statement is called the notice of appeal.

(5) Appellant.The party taking an appeal is called the appellant.

(6) Application. Once an appeal has been started, a written request in the form of a short statement to the board asking for any relief--either procedural, such as altering the time limits, or substantive, such as dismissing a given appeal because the board may lack jurisdiction--and succinctly stating the reasons in support of the request and explaining any statutory or other legal authority or factual support relevant to the request.

(7) Board. The Freshwater Wetlands Appeals Board, as framed under article 11 of the act.

(8) Brief. A written statement succinctly presenting all facts and points of law pertinent to, and all arguments for or against, an appeal before the board. The brief may include a summary of the essential facts in the record, a statement of the questions raised by the appeal, a statement of how the party submitting the brief wishes the board to rule on those questions, and what result or relief the party seeks in the board's ruling.

(9) Exhaustion of remedies. The doctrine that, once an appeal has been started, the questions presented to and the relief sought from the board must be ruled upon, and the remedy of taking an appeal to the board under sections 24-1101 and 24-1103 of the Freshwater Wetlands Act must be exhausted, before judicial review is sought under section 24-1105 of the act.

(10) Filing. Delivery in person or by U.S. mail of a document to the docket clerk of the board at the offices of the docket clerk, after providing a copy of the document to all parties as provided in this Part. Once filed, the document is a public record on permanent file with the board.

(11) Intervention. The act by which a third party, neither the appellant nor respondent, seeks to be received as a party in any given appeal, for the purpose of asserting issues on the side of either the appellant or respondent. Upon being granted permission to intervene, the intervenor has the obligation to participate as a full party to the appeal.

(12) Limited appearance. The act by which a third party, neither the appellant, respondent nor intervenor, seeks to advise the board of its views on a given appeal by filing a succinct two-page letter stating those views with the docket clerk of the board. Persons filing such a letter are not parties to an appeal.

(13) Oral argument. An oral presentation to the board or any member thereof, in a public hearing, by all parties of the position of each party, in an effort to establish the party's belief by making a short and reasoned statement. Presentation of the facts not in the record and new testimony are not a part of oral argument. Argument may be by an attorney or a competent expert or other designated representative of a party.

(14) Party. A person taking part in an appeal before the board, either as an appellant, respondent or intervenor.

(15) Person. Any corporation, firm, partnership, association, trust, estate, one or more individuals, and any unit of government or agency or subdivision thereof.

(16) Record. A written account of any order, determination or decision made pursuant to the Freshwater Wetlands Act, and all underlying documents and relevant written information, assembled under authority of law, by a proper officer, and constituting the permanent evidence providing the basis for the decision to which it relates. Where a party contends that facts which should have been in the record were overlooked or omitted so as to constitute an error or unlawful or unjust act, as provided in section 24-1103(2) of the act, such party may file an affidavit to supplement the record and establish the presence of such facts as it claims have been overlooked or omitted.

(17) Respondent. The party which made the order, determination or decision appealed from. Specifically, under the act the respondent is either the Commissioner of Environmental Conservation (herein referred to as "commissioner"), or the competent official duly designated by the local government with jurisdiction over the wetlands, whether village, town, city or county (herein referred to as "agency"), or the members of the Adirondack Park Agency (herein referred to as "APA").

(18) Security. An obligation, pledge, bond, recognizance or other condition required of a party by the board in connection with any party's request for the board to stay an action pending decision of any given appeal, either to assure and secure that the stay will be honored or to provide indemnification for any injury incurred by the party whose action is stayed should the appeal prove meritless, or in connection with any other application of a party.

(19) Service. The act of delivering a copy of any given document to another party, either in person or by mail as provided in this Part.

(20) Stay. Temporarily to stop, arrest and suspend any order, determination or decision subject to an appeal, and to fix such terms and conditions as the circumstances may require, including stay of any conduct whatsoever affecting the freshwater wetlands subject to the appeal, until such time as the board may hear and decide the appeal.

(21) Stenographic transcript. A written record of oral proceedings by a duly certified person skilled in shorthand recording or writing. Where a party wishes a stenographic transcript of oral argument, it must make provision for such and provide a copy with the stenographer's original sworn certificate to the board, to be filed with the board's docket clerk.

(22) Stipulation. A written agreement by two or more parties on opposite sides of an issue, setting forth an agreed understanding relevant to procedure or substance of given appeal in which they are participants. Where the understanding requires the order of the board to be effective, the parties may make an application for such order.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 647.1