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This entry was published on 2014-09-22
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Rehearing and judicial review
Public Service (PBS) CHAPTER 48, ARTICLE 10
§ 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.