N.Y. Public Service Law Section 170
Rehearing and judicial review


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.


The grounds for and scope of review of the court shall be limited to whether the decision and opinion of the board are:


In conformity with the constitution, laws and regulations of the state and the United States;


Supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion;


Within the board’s statutory jurisdiction or authority;


Made in accordance with procedures set forth in this article or established by rule or regulation pursuant to this article;


Arbitrary, capricious or an abuse of discretion; or


Made pursuant to a process that afforded meaningful involvement of citizens affected by the facility regardless of age, race, color, national origin and income.


Except as herein provided article seventy-eight of the civil practice law and rules shall apply to appeals taken hereunder.

Source: Section 170 — Rehearing and judicial review, https://www.­nysenate.­gov/legislation/laws/PBS/170 (updated Sep. 22, 2014; accessed Dec. 9, 2023).

Dec. 9, 2023

Last modified:
Sep. 22, 2014

§ 170’s source at nysenate​.gov

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