645-6.11 Evidence and Burden of Proof
Section 645-6.11 Evidence and Burden of Proof.
(a) All evidence submitted must be relevant. However, other legal rules of evidence observed in a court of law need not be strictly applied. Hearsay evidence may be admitted if a reasonable degree of reliability is shown.
(b) Although relevant, evidence may be excluded it its value as proof is substantially outweighed by the potential for unfair prejudice, confusion of the issues, undue delay, waste of time or needless presentation of repetitious or duplicative evidence.
(c) Where a part of a document is offered as evidence by one party, any party may offer the entire document as evidence.
(d) Whenever possible, an object which is the subject of testimony shall be exhibited at the hearing. It shall be properly identified as relevant, and it must be shown that it has not changed substantially due to the passage of time or any other reason.
(e) Each witness shall be sworn or make affirmation before testifying. Opening, closing and other unsworn statements are not evidence but shall be considered as arguments bearing on evidence.
(f) The applicant shall have the burden of demonstrating by a preponderance of the relevant evidence that the proposed activity will be in compliance with all applicable laws.
(g) The burden of proof to sustain a motion shall be on the party making the motion.
(h) All decisions, determinations or orders shall be made upon consideration of the entire record and as supported by substantial evidence.
645-6.12 Official Notice
Section 645-6.12 Official Notice.
(a) The hearing officer or the Commission may take official notice of a fact not subject to reasonable dispute if it is either generally known or can be accurately and readily verified in generally accepted references prior to or following the close of the hearing record.
(b) If the hearing officer of the Commission intends to take official notice of a material fact not appearing in the hearing record and of which judicial notice could not be taken, every party shall be given notice and an opportunity to dispute the fact and its materiality.
645-6.13 Communication with the Hearing Officer or the Commission in Absence of other Parties (ex parte rule)
Section 645-6.13 Communication with the Hearing Officer or the Commission in Absence of other Parties (ex parte rule).
(a) At all times following the determination to conduct a public hearing, no party shall, directly or through a representative, communicate with the hearing officer, the Commission, or any member of the Commission in connection with any issue without providing notice and an opportunity for all parties to participate.
(b) At all times following the determination to conduct a public hearing, the hearing officer, the Commission, or any member of the Commission shall not, directly or through a representative, communicate with any party in connection with any issue without providing notice and an opportunity for all parties to participate; provided, however, that any party may ask for a clarification of procedures from the Commission, and the hearing officer, the Commission, or any member of the Commission may request aid and advice from any member or employee of the Commission other than the staff acting as a party to the case.
(c) Nothing herein shall preclude counsel to the Commission from giving legal advice to the Commission, regardless of whether the counsel to the Commission is involved in the presentation by the staff of a case which involves a Commission decision.
645-6.14 Payment of Hearing Costs
Section 645-6.14 Payment of Hearing Costs.
(a) Within 30 days of the last day of the hearing, the applicant shall pay for the cost of:
(1) physical accommodations, if not held in Commission facilities;
(2) publishing any required notices; and
(3) any necessary stenographic transcriptions.
(b) The hearing officer may require that the applicant post a bond or other acceptable financial guarantee for the costs of the hearing. Such guarantee shall be provided to the Commission prior to commencing the hearing, or the hearing will be adjourned until the guarantee is made available.
(c) There shall be no charge to the applicant for the services of the hearing officer designated by the Commission to conduct the hearing, unless otherwise agreed.
(d) A final decision will not be issued until the applicant has paid the costs of the hearing referred to in subdivision (a) of this Section.
645-6.15 Final Decision
Section 645-6.15 Final Decision.
(a) The final decision of the Commission may include a ruling upon any matter brought before or decided by the hearing officer, except for those matters for which an interim appeal is provided under Sections 645-6.4 (f) and 645-6.6 (d) of this Subpart. The Commission's decision shall be made after the official closing of the hearing record and shall be mailed to the applicant and the applicant's attorney of record (if any) by certified mail and to all other parties by ordinary mail.
(b) The Commission's decision shall be made upon consideration of the report and the complete record, supported by substantial evidence, and shall be in writing stating the reasons for the action taken. Where applicable, the Commission shall take into account any FEIS prepared for the proposed project, and shall include a statement of findings pursuant to SEQR.
645-6.16 Joint Hearings
Section 645-6.16 Joint Hearings.
(a) A project may require submission of applications for more than one permit, or to more than one government agency, and public hearings may be required for more than one purpose. Whenever practicable, they shall be consolidated into a single public hearing.
(b) If the Commission is the lead agency for purposes of SEQR, the permit hearing may be consolidated with any hearing on the DEIS.
645-6.17 Special Provisions
Section 645-6.17 Special Provisions.
(a) Any time period specified in this Subpart may be extended for good cause by written mutual consent of the applicant and the Commission.
(b) At any time prior to issuing the final decision on the application, the hearing officer or the Commission may direct that the hearing record be reopened. This may be done to secure additional information or date, or to consider significant new evidence or major permit application alterations.
(c) Tape recording or televising of a hearing for rebroadcast is prohibited by Section 52 of the Civil Rights Law.
(d) Unless otherwise specified in this Section, all notice and papers connected with a hearing may be served by ordinary mail.