N.Y. Mental Hygiene Law § 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 persons with

mental disabilities 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 for people with 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.