New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter IX - Independent Agencies Within The Department › Subchapter B - Freshwater Wetlands Appeals Board › Part 647 - Rules Of Procedure › Section 647.1 - Scope of the rules and definitions

Current through Register Vol. 46, No. 28, July 10, 2024
(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.