2010 New York Code
MHY - Mental Hygiene
Title E - GENERAL PROVISIONS
Article 41 - (41.01 - 41.57) LOCAL SERVICES
41.34 - Site selection of community residential facilities.

§ 41.34 Site selection of community residential facilities.
    (a)  For the purposes of this section, the following definitions shall
  apply:
    (1) "Community  residential  facility  for  the  disabled"   means   a
  supportive  living  facility  with  four  to  fourteen  residents  or  a
  supervised living facility subject to licensure by the office of  mental
  health  or  the  office for people with developmental disabilities which
  provides  a  residence  for  up  to  fourteen  individuals  with  mental
  disabilities,  including  residential  treatment facilities for children
  and youth.
    (2) "Sponsoring agency" means an  agency  or  unit  of  government,  a
  voluntary  agency  or  any other person or organization which intends to
  establish or operate a community residential facility for the disabled.
    (3) "Municipality" means an incorporated village if a facility  is  to
  be  located therein, a town if the facility is to be located therein and
  not simultaneously within an incorporated village,  or  a  city,  except
  that in the city of New York, the community board with jurisdiction over
  the  area  in which such a facility is to be located shall be considered
  the municipality.
    (4) "Commissioner"  means  the  commissioner  of  the  office  of  the
  department responsible for issuance of license and operating certificate
  to the proposed community residential facility.
    (b) If a sponsoring agency intends to establish a residential facility
  for the disabled within a municipality but does not have a specific site
  selected,  it may notify the chief executive officer of the municipality
  in writing of its intentions and include in such notice a description of
  the nature, size and community  support  requirements  of  the  program.
  Provided,  however,  nothing  in  this  subdivision  shall  preclude the
  proposed establishment of a site pursuant to  subdivision  (c)  of  this
  section.
    (c)  (1)  When  a  site has been selected by the sponsoring agency, it
  shall notify the chief executive officer of the municipality in  writing
  and include in such notice the specific address of the site, the type of
  community  residence,  the number of residents and the community support
  requirements of the program. Such notice shall  also  contain  the  most
  recently  published  data  compiled  pursuant  to  section  four hundred
  sixty-three of the social services law which can reasonably be  expected
  to permit the municipality to evaluate all such facilities affecting the
  nature and character of the area wherein such proposed facility is to be
  located.  The  municipality  shall  have forty days after the receipt of
  such notice to:
    (A) approve the site recommended by the sponsoring agency;
    (B) suggest one or more suitable sites within its  jurisdiction  which
  could accommodate such a facility; or
    (C) object to the establishment of a facility of the kind described by
  the  sponsoring  agency  because  to  do  so  would  result  in  such  a
  concentration of  community  residential  facilities  for  the  mentally
  disabled  in  the  municipality  or in the area in proximity to the site
  selected or a  combination  of  such  facilities  with  other  community
  residences  or  similar  facilities  licensed by other agencies of state
  government,  including  all  community  residences,  intermediate   care
  facilities,  residential  care  facilities  for  adults  and residential
  treatment  facilities   for   individuals   with   mental   illness   or
  developmental  disabilities  operated  pursuant  to  article  sixteen or
  article  thirty-one  of  this  chapter  and  all   similar   residential
  facilities of fourteen or less residents operated or licensed by another
  state  agency,  that  the  nature  and character of the areas within the
  municipality would be substantially altered.

Such response shall be forwarded to  the  sponsoring  agency  and  the
  commissioner.  If  the  municipality does not respond within forty days,
  the sponsoring agency may establish a  community  residence  at  a  site
  recommended in its notice.
    (2)  Prior  to  forwarding a response to the sponsoring agency and the
  commissioner, the municipality may hold a  public  hearing  pursuant  to
  local law.
    (3)   If  the  municipality  approves  the  site  recommended  by  the
  sponsoring agency, the sponsoring agency shall  seek  to  establish  the
  facility at the approved site.
    (4)   If   the  site  or  sites  suggested  by  the  municipality  are
  satisfactory with regard to  the  nature,  size  and  community  support
  requirements  of  the  program  of the proposed facility and the area in
  which such site or  sites  are  located  does  not  already  include  an
  excessive  number  of  community residential facilities for the mentally
  disabled or similar facilities licensed by  other  state  agencies,  the
  sponsoring  agency  shall  seek  to establish its facility at one of the
  sites designated by the municipality.
    If  the  municipality  suggests  a  site  or  sites  which   are   not
  satisfactory  to  the  sponsoring agency, the agency shall so notify the
  municipality which shall have fifteen days  to  suggest  an  alternative
  site or sites for the proposed community residential facility.
    (5)  In  the  event  the  municipality  objects  to establishment of a
  facility in the municipality because to do so would  result  in  such  a
  concentration  of  community  residential  facilities  for  the mentally
  disabled or combination of such facilities and other facilities licensed
  by other state agencies that the nature and character  of  areas  within
  the  municipality  would  be  substantially  altered;  or the sponsoring
  agency objects to the establishment of a facility in the area  or  areas
  suggested by the municipality; or in the event that the municipality and
  sponsoring agency cannot agree upon a site, either the sponsoring agency
  or  the  municipality  may  request  an  immediate  hearing  before  the
  commissioner to resolve the issue. The commissioner shall personally  or
  by  a hearing officer conduct such a hearing within fifteen days of such
  a request.
    In reviewing any such objections, the need for such facilities in  the
  municipality  shall be considered as shall the existing concentration of
  such facilities and other similar facilities  licensed  by  other  state
  agencies  in  the  municipality  or in the area in proximity to the site
  selected and any other facilities in the municipality or in the area  in
  proximity  to  the  site  selected  providing  residential services to a
  significant number of persons  who  have  formerly  received  in-patient
  mental  health  services in facilities of the office of mental health or
  the office of mental retardation  and  developmental  disabilities.  The
  commissioner  shall  sustain  the  objection  if  he determines that the
  nature and character of the area in which the facility is  to  be  based
  would  be  substantially  altered  as  a  result of establishment of the
  facility. The commissioner shall make a determination within thirty days
  of the hearing.
    (d) Review of a decision rendered by a commissioner pursuant  to  this
  section  may be had in a proceeding pursuant to article seventy-eight of
  the civil practice law and rules commenced within  thirty  days  of  the
  determination of the commissioner.
    (e) (1) A licensing authority shall not issue an operating certificate
  to  a  sponsoring  agency  for operation of a facility if the sponsoring
  agency does not notify the municipality of its intention to establish  a
  program  as  required  by subdivision (c) of this section. Any operating
  certificate issued  without  compliance  with  the  provisions  of  this

section shall be considered null and void and continued operation of the
  facility may be enjoined.
    (2)  The  office  of  mental  health  and  the  office for people with
  developmental disabilities shall not issue an operating certificate  for
  the  operation  of  a  supportive living facility or a supervised living
  facility of more than fourteen  residents  if  the  agency  or  unit  of
  government,  voluntary  agency or any other person or organization which
  intends to establish or operate such a  facility  does  not  notify  the
  chief executive officer of the municipality in which that facility is to
  be  established  in  writing of the intention to establish such facility
  and include in such notice the specific address of the site, the type of
  residence,  the  number  of  residents   and   the   community   support
  requirements  of  the program; provided, however, that nothing contained
  in this paragraph shall either be construed  to  require  facilities  of
  more  than  fourteen beds to meet any other requirement of this section,
  or to deem such facilities family units for the purposes of  local  laws
  and ordinances.
    (f)  A  community  residence  established pursuant to this section and
  family care homes shall be deemed a family unit,  for  the  purposes  of
  local laws and ordinances.