Town of Hempstead v. Commissioner of the State

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the State of New York Office of Mental Health, dated October 13, 1988, which found that the establishment of a community residence facility at a contested location would be appropriate. Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with one bill of costs payable to the respondents appearing separately and filing separate briefs. Under the Mental Hygiene Law, an objectant to the establishment of a community residential facility bears the burden of adducing concrete and convincing evidence that the establishment of the proposed facility 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, 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, 121 AD2d 388). In this record, there is no concrete and convincing evidence that such a detrimental alteration would occur. The Commissioner’s determination is supported by substantial evidence (see, CPLR 7803 [4]), and was not arbitrary or capricious (see, Matter of Pell v Board of Educ., 34 NY2d 222). Mangano, P. J., Thompson, Sullivan and Rosenblatt, JJ., concur.