Incorporated Village of Westbury v. Prevost

— Proceeding pursuant to CPLR article 78 to inter alia, review a determination of the respondent Commissioner of the New York State Office of Mental Health, dated September 7, 1982, which, after a hearing, found that the establishment of a community residential facility at a contested location was appropriate. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. At issue in a hearing to contest the appropriateness of the establishment of a community residential facility (Mental Hygiene Law, § 41.33), such as the 12-bed young adult facility here, is whether the nature and character of the proposed location would be substantially altered as a result of its establishment there (Mental Hygiene Law, § 41.34, subd [c], par [5]). Apart from conclusory allegations, the petitioning municipality produced insufficient evidence to demonstrate that such alteration would take place in this case. Furthermore, the applicant’s evidence showed, inter alia, that the proposed facility, formerly a school for a student body of approximately 50 children, was needed locally and was isolated sufficiently from other similar facilities so as to avoid undue concentration in the relevant geographical area. Therefore, the determination of the commissioner was supported by substantial evidence. Petitioner’s other arguments, including those challenging the constitutionality of the statute, have been considered and found to be without merit (see Zubli v Community Mainstreaming Assoc., 50 NY2d 1024; Matter ofDi Biase v Piscitelli, 87 AD2d 611, app dsmd 57 NY2d 672). O’Connor, J. P., Weinstein, Bracken and Boyers, JJ., concur.