N.Y. Comp. Codes R. & Regs. tit. 19 § 1205.4

Current through Register Vol. 46, No. 22, May 29, 2024

Section 1205.4 - Regional Board of Review Procedures

(a) Any person aggrieved may petition the regional board of review for relief of any provision or requirement of the Uniform Code under this Part. The petition shall be submitted to the department on a form prescribed by the department and shall include, at a minimum, all of the following:

(1) the fee(s) specified in or determined in accordance with section 1205.6 of this Part;

(2) identification of the nature of the grievance, including specific provisions or requirements of the Uniform Code that the case is seeking to vary or modify;

(3) where necessary, electronic submission of construction documents (drawings and/or specifications), site plans, and descriptions of buildings and their histories, or where paper copies are required, copies in such number as the department may require;

(4) evidence substantiating that strict compliance with the specific provisions or requirements would entail practical difficulties or unnecessary hardship or would otherwise be unwarranted; and

(5) evidence substantiating that strict compliance with the particular provision or requirement satisfies one or more of the items identified in section 1205.3(a) of this Part.

(b) Any person aggrieved may petition the regional board of review for an appeal. An appeal may be of any order or determination, relating directly to the provisions of the Uniform Code, of an administrative official authorized to enforce the Uniform Code, or the failure of an administrative official to make an order or determination within a reasonable amount of time. The petition shall be submitted to the department on a form prescribed by the department, together with copies in such number as the department may require, and shall include, at a minimum, all of the following:

(1) the fee(s) specified in or determined in accordance with section 1205.6 of this Part;

(2) identification of the nature of the appeal; and

(3) where necessary, construction documents (drawings and/or specifications), site plans, and descriptions of buildings and their histories.

(c) Upon receipt of a petition for a variance or appeal, the department shall review the petition for completeness to determine that it has sufficient detail to permit the board of review to make a determination on the basis of the information contained within the petition. A petition shall be deemed received only after the department has determined that the information contained within the petition is sufficient to state matters within the jurisdiction of the regional boards of review.

(1) If the petition is complete, the department shall:

(i) determine to which board of review the petition shall be transmitted and transmit the petition, and any materials received by the department in relation to the petition, to such board of review for a decision on the written record or for a decision after a hearing; and

(ii) serve or cause the petitioner to serve copies of the petition upon such other parties and persons as the department may determine, including but not limited to the authority having jurisdiction and any known interested parties. The department shall also cause notice of the receipt of any petition to be published in the State Register together with a summary of the petition. In addition to any information required by other law, such notice shall also state where the petition may be reviewed and that interested persons may request actual notice of any hearing proposed to be held on the petition.

(2) If the petition is incomplete, the department shall notify the petitioner of the information required for completeness. If, after notice that the petition is incomplete, no additional information is forthcoming and the file has remained inactive for a period exceeding 90 days, the department may dismiss the matter for neglect to proceed, but without prejudice to any subsequent petition.

(3) In determining to which board of review a particular petition shall be transmitted, the department shall consider: the region wherein the petition arises, the convenience of parties or witnesses, who has custody and ownership of the building(s), and who has jurisdiction over the enforcement of the Uniform Code for the buildings and/or activities which are the subject of the petition. The department may, upon the request of a party, upon the request of a member of a board of review, or upon its own initiative, transfer a petition to another board of review. The department may effect such transfer to correct a mistake in the choice of the forum, to avoid conflicts of interest or the appearance of impropriety, for the convenience of parties or witnesses, or for other good cause shown.

(4) A hearing under this Part shall be at the discretion of the department and the board of review. Where a hearing is to be held, the department shall provide notice thereof to the parties, such interested persons as the department shall have been able to determine, and any other persons who have requested notice. The board of review may regulate the course of the hearing and require the presentation of evidence in such manner and order as may be most beneficial to the board of review. To the extent not inconsistent with this Part, practice before a board of review shall be guided by the Civil Practice Law and Rules.

(d) Regardless of the form of the evidence and the manner of its presentation, the burden of proof shall be on the petitioner to show that they are entitled to any relief. The petitioner shall provide the board of review with facts which demonstrate the burden imposed by strict compliance and with facts as to the safety and propriety of any alternative to strict compliance.

(e) The regional board of review may state its decision in the record at any meeting of the board. The decision of the board shall be reduced to writing, signed by the chairperson, and shall set forth the board's findings and conclusions and the relief granted, if any. Petitions shall be decided within 60 days of completeness unless a longer period is required for good cause shown. Copies of the written decision shall be provided to the parties within a reasonable time after the determination. A copy shall be filed and available for public inspection and copying at the Department of State, which shall keep a record of all decisions properly indexed.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 1205.4

Amended New York State Register June 28, 2023/Volume XLV, Issue 26, eff. 6/28/2023