Title 9 Part 274

Section 32 of the Navigation Law provides that no person may erect or replace a dock, wharf, pier, jetty, platform or other structure built on floats, columns, open timber, piles or similar open-work supports in navigable waters of the State which interferes with the free and direct access of any other person without such person's written permission. This Part shall apply in all administrative proceedings brought pursuant to section 32 of the Navigation Law.

A person (complainant) may file a written complaint with the Commissioner of General Services (commissioner) stating that another (respondent) has constructed or will construct a dock, wharf, pier, jetty, platform or other similar structure built on floats, columns, open timber, piles or similar open-work supports in navigable waters of the State which interferes with the complainant's free and direct access to such waters to or from the complainant's property, wharf, dock, or similar structure.

The complaint must involve a dock, wharf, pier, jetty, platform or other similar structure and its interference with the complainant's free and direct access to navigable waters of the State.

A complaint must include:

In case any written complaint shall be filed with the Commissioner of General Services and he shall have cause to believe, or in case the commissioner shall have cause to believe, that any person is violating the provisions of section 32 of the Navigation Law, the commissioner shall cause an investigation to be made within 45 days. When the complaint has been reviewed and found to be in proper form, a notice of approved complaint will be sent by certified mail to the complainant and the respondent. The notice will include the complaint, maps, other pertinent documentation and advice that a reply by the respondent must be submitted within 60 days from the date of mailing.

Within 90 days of issuance of the notice of approved complaint, commissioner's staff will review the information submitted and will:

The primary purpose of a hearing is to determine and evaluate unresolved issues of fact or law.

The commissioner will appoint a hearing officer or may hire a person from outside the Office of General Services to hold a particular hearing. Subject to review by the commissioner, the hearing officer shall have power to: rule upon motions and requests; administer oaths and affirmations; summon and examine witnesses; admit or exclude evidence; hear argument on facts or law; do all acts and take all measures necessary for the maintenance of order and efficient conduct of the hearing.

The hearing officer may schedule the hearing in Albany or any other time and place.

A party may appear in person or by counsel. If an attorney represents a party, all papers not required by law to be served personally upon such party shall be served upon the party's attorney. Any person appearing on behalf of a party in a representative capacity shall be required to disclose the basis of their authority to act in such capacity. If the respondent fails to appear at the hearing, issues on which it has the burden of proof may be resolved against said party. Any party who is present may elect, subject to the discretion of the hearing officer, to present all or part of its evidence by affidavit rather than by oral testimony. The hearing officer may open a default or relieve any party of the consequences of any default upon good cause shown, for example, that one has a real interest in the determination and was not given adequate notice or that one was not able to present certain evidence before for reasons beyond his or her control. Failure to appear at a hearing shall not be deemed to be a waiver of the right to be provided with a copy of the findings of fact, final determination and order or to proceed otherwise in any manner prescribed by law.

When the commissioner schedules a hearing, notice thereof will be mailed to the parties. The notice will include a statement of the time, place and nature of the hearing, the legal authority under which the hearing is to be held, the statutes and rules involved and a short, plain statement of the matters asserted. The notice will also state what the consequences will be if either party fails to attend the hearing or submit additional information.

A written transcript or official record of the hearing will be made and copies will be made available to the parties at cost as provided by section 302 of the State Administrative Procedure Act.

Within 45 days from the date of availability of the transcript of the hearing, the hearing officer will write a report and make recommendations dispositive of the problem.

The hearing officer's report will be submitted to the commissioner who will make and serve an Order setting forth his findings of fact and his conclusions pursuant to section 307 of the State Administrative Procedure Act.

Copy of the order will be mailed to each of the parties.