NY Ment Hygiene L § 41.34 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 41 - 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  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.