Town of Hempstead v. Commissioner of State of New York Office of Mental Health

170 A.D.2d 1051

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1991
• Docket: Appeal No. 2
• Status: Published

Opinion

Determination unanimously confirmed without costs and petition dismissed. Memorandum: The Town of Hempstead commenced this proceeding pursuant to CPLR article 78, challenging the determination of the Commissioner of the State of New York Office of Mental Health (Commissioner), dated August 11, 1989, which, after a hearing, permitted Pilgrim Psychiatric Center to proceed with the establishment of a community residential facility for 11 mentally disabled adults, over the Town’s objections, at 3531 Oceanside Road, Oceanside, New York. We find that there is substantial evidence in the record to support the Commissioner’s determination that the proposed facility is needed (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; see also, Matter of Town of Brunswick v Webb, 145 AD2d 844; Matter of City of Newburgh v Webb, 124 AD2d 371, 372).

Additionally, the record supports the Commissioner’s determination that the Town did not demonstrate, by evidence of a "concrete and * * * convincing nature” (Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 121 AD2d 388, 389), that the proposed facility would cause an oversaturation of similar facilities in the area to such an extent that "the nature and character of the areas within the municipality would be altered” (Grasmere Homeowners’ Assn. v Introne, 84 AD2d 778, 779; see also, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Health ([appeal No. 1], 170 AD2d 1050 [decided herewith]; Matter of Town of Bedford v State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 144 AD2d 473, 474; Town of Ramapo v Webb, 137 AD2d 518; Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, supra, at 389).

Finally, the traffic and safety concerns urged by petitioner were properly rejected because they lack evidentiary support in the record (see, Matter of Town of Brunswick v Webb, supra, at 845; Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, supra, at 1043). (Article 78 Proceeding Transferred by Order of Supreme Court, Nassau County, Robbins, J.) Present —Denman, J. P., Green, Balio, Davis and Lowery, JJ.