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 647.9 - Applications and stays

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