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

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New [389] York State Office of Mental Retardation and Developmental Disabilities, dated March 20, 1985, which, after a hearing, found that the establishment of a community residence facility would be appropriate. Determination confirmed and proceeding dismissed on the merits, with one bill of costs. Although need should be considered by the Commissioner in determining the appropriateness of the establishment of a community-residence facility, the party contesting its establishment must show that it would result in a concentration of the same or similar facilities such that the nature and character of the area would be altered (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; Town of Hempstead v Commissioner, State of N. Y. Off. of Mental Retardation & Developmental Disabilities, 89 AD2d 850; Matter of Town of Pound Ridge v Introne, 81 AD2d 890). Such challenges may be sustained only when the evidence offered in opposition is concrete and of a convincing nature (see, Grasmere Homeowners’ Assn, v Introne, 84 AD2d 778). In this record, there is no concrete and convincing testimony that such a detrimental alteration would occur. Moreover, the Commissioner properly excluded various nursing homes and hospital facilities within the area when making his determination (see, Matter of Town of Hempstead v Commissioner of State of N. Y. Off. of Mental Retardation & Developmental Disabilities, supra, p 1043). Additionally, 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 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, supra, p 1043; Matter of Town of Pound Ridge v Introne, supra). Lazer, J. P., Bracken, Weinstein and Eiber, JJ., concur.