2023 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.