Village of Pomona v. Commissioner of the Office of Mental Retardation & Developmental Disabilities

209 A.D.2d 529, 619 N.Y.S.2d 607, 1994 N.Y. App. Div. LEXIS 11179

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 1994
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the Commissioner of the Office of Mental Retardation and Developmental Disabilities, dated August 21 1992, which, after a hearing, granted the Rockland Association for Retarded Citizens permission to establish a community residence for mentally disabled individuals in the Village of Pomona.

Adjudged, that the determination is confirmed and the proceeding is dismissed, on the merits, with costs to the respondent Commissioner of the Office of Mental Retardation and Developmental Disabilities.

As in the case of Matter of Village of Pomona v Commissioner of Off. of Mental Retardation (209 AD2d 528), we conclude that the petitioner failed to meet its burden of establishing, by clear and convincing evidence, that the establishment of the facility in question will result in both an over-concentration of similar facilities in the area and a substantial alteration of the nature and character of the community (see, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Health, 191 AD2d 572, 573).

We have considered the petitioner’s remaining contention and find it to be without merit (see, Matter of Village of Pomona v Commissioner of Off. of Mental Retardation, 209 AD2d 528, supra). Bracken, J. P., Miller, Lawrence and Santucci, JJ., concur.