N.Y. Public Service Law § 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.