N.Y. Comp. Codes R. & Regs. tit. 6 § 647.9

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

Section 647.9 - Applications and stays

(a) Upon showing unusual and special circumstances, any party may apply for an order of the board for relief additional to or different from that set forth elsewhere in this Part. Such applications shall not delay or suspend the briefing schedule fixed by the board's docket clerk unless for exceptional reasons the board or its chairman so orders. Such applications shall be made by short written statements, served on all parties and filed with the board's docket clerk; an answering statement to an application may be served and filed within five days after a party receives the application. Such applications shall specify the unusual and special circumstances which a party believes justify its application. Requests for clarification or dismissal generally are not of such unusual and special circumstances as to require an application; parties are expected to cooperate in good faith to assure that each understands the position of the other.

(b) An application for the board to stay the effectiveness of any decision, determination or order of the commissioner, agency or APA, in order to maintain the status quo to avert alteration of wetlands pending the ruling on an appeal, may be made to the board, or its chairman, or a member of the board designated by the chairman, at any time. A copy of the application shall be served on the respondent commissioner, agency or APA, and the original and five copies filed with the board's docket clerk. Any opposing papers shall be served and filed within 10 days of the filing of the application, the original and five copies being filed with the board's docket clerk.

(c) The application shall concisely state the reasons for the relief requested and the facts relied upon, and shall be accompanied by affidavits or other sworn testimony, and, if available, a copy of the order or decision for which a stay is sought.

(d) The application will be heard by the board on the first Monday of the month immediately following the day on which the application is filed. Filing of such an application automatically stays any conduct or action whatsoever affecting the wetlands subject to the appeal, until such time as the board rules on the application for a stay. The applicant shall personally serve notice of the restraints of this provision on the person whose conduct is affecting or would affect or alter the wetland, and serve all other parties by mail, including the respondent commissioner, agency or APA, and file with the board's docket clerk an affidavit of such personal service setting forth the time and place service was made, by whom and on whom.

(e) The board may condition relief available under this section upon applicant's filing of a bond or other appropriate security or stipulation with the board's docket clerk. If security by bond or undertaking is given, each surety submits to the jurisdiction of the board and irrevocably appoints the board's docket clerk as the surety's agent upon whom any papers affecting his liability on the bond, undertaking or other surety may be served. The surety's liability may be enforced in a special term of the Supreme Court, Albany County, pursuant to article 78 of the Civil Practice Law and Rules. The board's docket clerk shall forthwith mail copies of any enforcement motion served on the docket clerk to the sureties if their addresses are known.

(f) The board may modify the security provisions of this Part or order such other terms and conditions as it deems required in the circumstances.

(g) Upon rendering its decision, the board may modify or dissolve any stay granted or may adjourn the effective date of its decision for a reasonable time while the stay continues in effect, with the terms as granted or subsequently modified, in order to afford any of the parties an opportunity to apply to the Supreme Court for any further stay or other relief pursuant to section 24-1105 of the act, while the board's decision is being filed with the county clerk of the county or counties in which the wetlands are located.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 647.9