Current through Register Vol. 46, No. 12, March 20, 2024
(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.