§ 170 — Rehearing and judicial review

§ 170. Rehearing and judicial review. 1. Any party aggrieved by the\nboard's decision denying or granting a certificate may apply to the\nboard for a rehearing within thirty days after issuance of the\naggrieving decision. Any such application shall be considered and\ndecided by the board and any rehearing shall be completed and a decision\nrendered thereon within ninety days of the expiration of the period for\nfiling rehearing petitions, provided however that the board may extend\nthe deadline by no more than ninety days where a rehearing is required\nif necessary to develop an adequate record. The applicant may waive such\ndeadline. Thereafter such a party may obtain judicial review of such\ndecision as provided in this section. A judicial proceeding shall be\nbrought in the appellate division of the supreme court of the state of\nNew York in the judicial department embracing the county wherein the\nfacility is to be located or, if the application is denied, the county\nwherein the applicant has proposed to locate the facility. Such\nproceeding shall be initiated by the filing of a petition in such court\nwithin thirty days after the issuance of a final decision by the board\nupon the application for rehearing together with proof of service of a\ndemand on the board to file with said court a copy of a written\ntranscript of the record of the proceeding and a copy of the board's\ndecision and opinion. The board's copy of said transcript, decision and\nopinion, shall be available at all reasonable times to all parties for\nexamination without cost. Upon receipt of such petition and demand the\nboard shall forthwith deliver to the court a copy of the record and a\ncopy of the board's decision and opinion. Thereupon, the court shall\nhave jurisdiction of the proceeding and shall have the power to grant\nsuch relief as it deems just and proper, and to make and enter an order\nenforcing, modifying and enforcing as so modified, remanding for further\nspecific evidence or findings or setting aside in whole or in part such\ndecision. The appeal shall be heard on the record, without requirement\nof reproduction, and upon briefs to the court. No objection that has not\nbeen urged by the party in his or her application for rehearing before\nthe board shall be considered by the court, unless the failure or\nneglect to urge such objection shall be excused because of extraordinary\ncircumstances. The findings of fact on which such decision is based\nshall be conclusive if supported by substantial evidence on the record\nconsidered as a whole and matters of judicial notice set forth in the\nopinion. The jurisdiction of the appellate division of the supreme court\nshall be exclusive and its judgment and order shall be final, subject to\nreview by the court of appeals in the same manner and form and with the\nsame effect as provided for appeals in a special proceeding. All such\nproceedings shall be heard and determined by the appellate division of\nthe supreme court and by the court of appeals as expeditiously as\npossible and with lawful precedence over all other matters.\n 2. The grounds for and scope of review of the court shall be limited\nto whether the decision and opinion of the board are:\n (a) In conformity with the constitution, laws and regulations of the\nstate and the United States;\n (b) Supported by substantial evidence in the record and matters of\njudicial notice properly considered and applied in the opinion;\n (c) Within the board's statutory jurisdiction or authority;\n (d) Made in accordance with procedures set forth in this article or\nestablished by rule or regulation pursuant to this article;\n (e) Arbitrary, capricious or an abuse of discretion; or\n (f) Made pursuant to a process that afforded meaningful involvement of\ncitizens affected by the facility regardless of age, race, color,\nnational origin and income.\n 3. Except as herein provided article seventy-eight of the civil\npractice law and rules shall apply to appeals taken hereunder.\n