Town of Hempstead v. Commissioner of State of New York Office of Mental Retardation & Developmental Disabilities

160 A.D.2d 1011, 554 N.Y.S.2d 1017, 1990 N.Y. App. Div. LEXIS 5029

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 30, 1990
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the State of New York Office of Mental Retardation and Developmental Disabilities, dated March 22, 1988, which after a hearing, found that the establishment of a community residential facility in the Town of Hempstead would be appropriate.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

The Commissioner’s determination was supported by substantial evidence. In assessing the need for the facility within the municipality, the Commissioner properly considered the need within Nassau County and was not required to look only to the need of the town or the particular area (see, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 121 AD2d 388).

Furthermore, the petitioner failed to demonstrate that the establishment of this facility would result in an overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area (see, Mental Hygiene Law § 41.34 [c] [5]; Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 112 AD2d 1042).

We have considered the petitioner’s other contentions and find them to be without merit. Lawrence, J. P., Eiber, Rosenblatt and Miller, JJ., concur.