§ 41.34 — Site selection of community residential facilities

New York § 41.34

• Jurisdiction: New York
• Law MHY: Mental Hygiene
• Title E: General Provisions
• Art. 41: Local Services

Text

§ 41.34 Site selection of community residential facilities.\n (a) For the purposes of this section, the following definitions shall\napply:\n (1) "Community residential facility for the disabled" means a\nsupportive living facility with four to fourteen residents or a\nsupervised living facility subject to licensure by the office of mental\nhealth or the office for people with developmental disabilities which\nprovides a residence for up to fourteen individuals with mental\ndisabilities, including residential treatment facilities for children\nand youth.\n (2) "Sponsoring agency" means an agency or unit of government, a\nvoluntary agency or any other person or organization which intends to\nestablish or operate a community residential facility for the disabled.\n (3) "Municipality" means an incorporated village if a facility is to\nbe located therein, a town if the facility is to be located therein and\nnot simultaneously within an incorporated village, or a city, except\nthat in the city of New York, the community board with jurisdiction over\nthe area in which such a facility is to be located shall be considered\nthe municipality.\n (4) "Commissioner" means the commissioner of the office of the\ndepartment responsible for issuance of license and operating certificate\nto the proposed community residential facility.\n (b) If a sponsoring agency intends to establish a residential facility\nfor the disabled within a municipality but does not have a specific site\nselected, it may notify the chief executive officer of the municipality\nin writing of its intentions and include in such notice a description of\nthe nature, size and community support requirements of the program.\nProvided, however, nothing in this subdivision shall preclude the\nproposed establishment of a site pursuant to subdivision (c) of this\nsection.\n (c) (1) When a site has been selected by the sponsoring agency, it\nshall notify the chief executive officer of the municipality in writing\nand include in such notice the specific address of the site, the type of\ncommunity residence, the number of residents and the community support\nrequirements of the program. Such notice shall also contain the most\nrecently published data compiled pursuant to section four hundred\nsixty-three of the social services law which can reasonably be expected\nto permit the municipality to evaluate all such facilities affecting the\nnature and character of the area wherein such proposed facility is to be\nlocated. The municipality shall have forty days after the receipt of\nsuch notice to:\n (A) approve the site recommended by the sponsoring agency;\n (B) suggest one or more suitable sites within its jurisdiction which\ncould accommodate such a facility; or\n (C) object to the establishment of a facility of the kind described by\nthe sponsoring agency because to do so would result in such a\nconcentration of community residential facilities for the mentally\ndisabled in the municipality or in the area in proximity to the site\nselected or a combination of such facilities with other community\nresidences or similar facilities licensed by other agencies of state\ngovernment, including all community residences, intermediate care\nfacilities, residential care facilities for adults and residential\ntreatment facilities for individuals with mental illness or\ndevelopmental disabilities operated pursuant to article sixteen or\narticle thirty-one of this chapter and all similar residential\nfacilities of fourteen or less residents operated or licensed by another\nstate agency, that the nature and character of the areas within the\nmunicipality would be substantially altered.\n Such response shall be forwarded to the sponsoring agency and the\ncommissioner. If the municipality does not respond within forty days,\nthe sponsoring agency may establish a community residence at a site\nrecommended in its notice.\n (2) Prior to forwarding a response to the sponsoring agency and the\ncommissioner, the municipality may hold a public hearing pursuant to\nlocal law.\n (3) If the municipality approves the site recommended by the\nsponsoring agency, the sponsoring agency shall seek to establish the\nfacility at the approved site.\n (4) If the site or sites suggested by the municipality are\nsatisfactory with regard to the nature, size and community support\nrequirements of the program of the proposed facility and the area in\nwhich such site or sites are located does not already include an\nexcessive number of community residential facilities for the mentally\ndisabled or similar facilities licensed by other state agencies, the\nsponsoring agency shall seek to establish its facility at one of the\nsites designated by the municipality.\n If the municipality suggests a site or sites which are not\nsatisfactory to the sponsoring agency, the agency shall so notify the\nmunicipality which shall have fifteen days to suggest an alternative\nsite or sites for the proposed community residential facility.\n (5) In the event the municipality objects to establishment of a\nfacility in the municipality because to do so would result in such a\nconcentration of community residential facilities for persons with\nmental disabilities or combination of such facilities and other\nfacilities licensed by other state agencies that the nature and\ncharacter of areas within the municipality would be substantially\naltered; or the sponsoring agency objects to the establishment of a\nfacility in the area or areas suggested by the municipality; or in the\nevent that the municipality and sponsoring agency cannot agree upon a\nsite, either the sponsoring agency or the municipality may request an\nimmediate hearing before the commissioner to resolve the issue. The\ncommissioner shall personally or by a hearing officer conduct such a\nhearing within fifteen days of such a request.\n In reviewing any such objections, the need for such facilities in the\nmunicipality shall be considered as shall the existing concentration of\nsuch facilities and other similar facilities licensed by other state\nagencies in the municipality or in the area in proximity to the site\nselected and any other facilities in the municipality or in the area in\nproximity to the site selected providing residential services to a\nsignificant number of persons who have formerly received in-patient\nmental health services in facilities of the office of mental health or\nthe office for people with developmental disabilities. The commissioner\nshall sustain the objection if he determines that the nature and\ncharacter of the area in which the facility is to be based would be\nsubstantially altered as a result of establishment of the facility. The\ncommissioner shall make a determination within thirty days of the\nhearing.\n (d) Review of a decision rendered by a commissioner pursuant to this\nsection may be had in a proceeding pursuant to article seventy-eight of\nthe civil practice law and rules commenced within thirty days of the\ndetermination of the commissioner.\n (e) (1) A licensing authority shall not issue an operating certificate\nto a sponsoring agency for operation of a facility if the sponsoring\nagency does not notify the municipality of its intention to establish a\nprogram as required by subdivision (c) of this section. Any operating\ncertificate issued without compliance with the provisions of this\nsection shall be considered null and void and continued operation of the\nfacility may be enjoined.\n (2) The office of mental health and the office for people with\ndevelopmental disabilities shall not issue an operating certificate for\nthe operation of a supportive living facility or a supervised living\nfacility of more than fourteen residents if the agency or unit of\ngovernment, voluntary agency or any other person or organization which\nintends to establish or operate such a facility does not notify the\nchief executive officer of the municipality in which that facility is to\nbe established in writing of the intention to establish such facility\nand include in such notice the specific address of the site, the type of\nresidence, the number of residents and the community support\nrequirements of the program; provided, however, that nothing contained\nin this paragraph shall either be construed to require facilities of\nmore than fourteen beds to meet any other requirement of this section,\nor to deem such facilities family units for the purposes of local laws\nand ordinances.\n (f) A community residence established pursuant to this section and\nfamily care homes shall be deemed a family unit, for the purposes of\nlocal laws and ordinances.\n