§ 18-28 Appeals.
RCNY § 18-28
(a)An applicant may appeal a final determination issued by the Department under these rules and regulations by filing a petition in writing with the Department and with the New York City Office of Administrative Trials and Hearings, Trials Division ("OATH") within thirty (30) days of the date the determination was mailed. The petition shall state the name, address, and email address of the petitioner and shall include a short and plain statement of the matters to be adjudicated, identifying the approval or variance sought by the petitioner with citation to the applicable provisions of these rules and regulations, the regulated activity for which the Department issued the determination, the proposed location of the activity, and the date of the Department's determination. The petition should also indicate whether the petitioner is requesting a hearing. A copy of the determination being appealed shall be attached to the petition. In addition, a completed OATH intake sheet shall be included with the petition. Blank intake sheets are available from the Department.
(b)The following determinations of the Department are appealable: (1) A denial of an application for approval of a regulated activity.
(2)A denial of an application for a variance.
(3)The imposition of a substantial condition in an approval of a regulated activity.
(4)The imposition of a substantial condition in a grant of a variance.
(c)Petitions for appeal shall be referred to a City administrative law judge (ALJ) for hearing, where allowed by this section, and determination as defined in subdivision (g).
(d)The following issues are reviewable on appeal: (1) Whether the regulated activity proposed by the petitioner will be in compliance with the requirements of these rules and regulations.
(e)Except for appeals from determinations relating to variances, the petitioner shall have the burden of proving by a preponderance of the evidence that the proposed regulated activity is in compliance with the requirements of these rules and regulations. For appeals from determinations relating to variances, the petitioner shall have the burden of proving that the Commissioner has abused his or her discretion.
(f)(1) Appeals from determinations relating to individual sewage treatment systems or variances shall be decided on the record before the Department in its review of the application and any other written submissions allowed by the ALJ.
(i)The hearing may be held in the district of the Department in which the regulated activity was proposed to be located, except that hearings may be held at the Department's offices in Valhalla, New York for appeals relating to regulated activities in the East of Hudson watershed and at the Department's offices in Kingston, New York for appeals relating to regulated activities in the West of Hudson watershed. The hearing may also be held by video conferencing or other electronic means, or as otherwise agreed to by the parties and the ALJ.
(g)The ALJ shall submit a report to the Commissioner within 60 days after the record on appeal is closed with a recommendation as to whether the determination appealed from should be approved, modified or rejected. The Commissioner shall issue a final decision approving, rejecting, or modifying the ALJ's recommendation within 30 days of receipt of the ALJ's report. If the Commissioner does not act within that time, the ALJ's recommendation shall be deemed approved by the Commissioner.
(h)This section shall not apply to determinations made by local governments administering provisions of these rules and regulations pursuant to Subchapter G.
