2023 New York Laws › PBS - Public Service › Article 10 - Siting of Major Electric Generating Facilities › 170 - Rehearing and Judicial Review.

§  170.  Rehearing  and judicial review. 1. Any party aggrieved by the
board's decision denying or granting a  certificate  may  apply  to  the
board  for  a  rehearing  within  thirty  days  after  issuance  of  the
aggrieving decision.  Any  such  application  shall  be  considered  and
decided by the board and any rehearing shall be completed and a decision
rendered  thereon within ninety days of the expiration of the period for
filing rehearing petitions, provided however that the board  may  extend
the  deadline  by no more than ninety days where a rehearing is required
if necessary to develop an adequate record. The applicant may waive such
deadline. Thereafter such a party may obtain  judicial  review  of  such
decision  as  provided  in  this section. A judicial proceeding shall be
brought in the appellate division of the supreme court of the  state  of
New  York  in  the  judicial department embracing the county wherein the
facility is to be located or, if the application is denied,  the  county
wherein  the  applicant  has  proposed  to  locate  the  facility.  Such
proceeding shall be initiated by the filing of a petition in such  court
within  thirty  days after the issuance of a final decision by the board
upon the application for rehearing together with proof of service  of  a
demand  on  the  board  to  file  with  said  court  a copy of a written
transcript of the record of the proceeding and a  copy  of  the  board's
decision  and opinion. The board's copy of said transcript, decision and
opinion, shall be available at all reasonable times to all  parties  for
examination  without  cost. Upon receipt of such petition and demand the
board shall forthwith deliver to the court a copy of the  record  and  a
copy  of  the  board's  decision and opinion. Thereupon, the court shall
have jurisdiction of the proceeding and shall have the  power  to  grant
such  relief as it deems just and proper, and to make and enter an order
enforcing, modifying and enforcing as so modified, remanding for further
specific evidence or findings or setting aside in whole or in part  such
decision.  The  appeal shall be heard on the record, without requirement
of reproduction, and upon briefs to the court. No objection that has not
been urged by the party in his or her application for  rehearing  before
the  board  shall  be  considered  by  the  court, unless the failure or
neglect to urge such objection shall be excused because of extraordinary
circumstances. The findings of fact on  which  such  decision  is  based
shall  be  conclusive if supported by substantial evidence on the record
considered as a whole and matters of judicial notice set  forth  in  the
opinion. The jurisdiction of the appellate division of the supreme court
shall be exclusive and its judgment and order shall be final, subject to
review  by the court of appeals in the same manner and form and with the
same effect as provided for appeals in a special  proceeding.  All  such
proceedings  shall  be heard and determined by the appellate division of
the supreme court and by  the  court  of  appeals  as  expeditiously  as
possible and with lawful precedence over all other matters.
2.  The  grounds for and scope of review of the court shall be limited
to whether the decision and opinion of the board are:
(a) In conformity with the constitution, laws and regulations  of  the
state and the United States;
(b)  Supported  by  substantial  evidence in the record and matters of
judicial notice properly considered and applied in the opinion;
(c) Within the board's statutory jurisdiction or authority;
(d) Made in accordance with procedures set forth in  this  article  or
established by rule or regulation pursuant to this article;
(e) Arbitrary, capricious or an abuse of discretion; or
(f) Made pursuant to a process that afforded meaningful involvement of
citizens  affected  by  the  facility  regardless  of  age, race, color,
national origin and income.
3. Except as  herein  provided  article  seventy-eight  of  the  civil
practice law and rules shall apply to appeals taken hereunder.