Opinion
April 28, 1995
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Green, J.P., Lawton, Fallon, Callahan and Boehm, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: We conclude that there is substantial evidence to support the Commissioner's determination that the proposed community residential facilities are needed to replace two large intermediate-care facilities that are in poor condition (see, Matter of Town of Cheektowaga v Howe, 206 A.D.2d 948, 949). Petitioner does not challenge the need for the facilities, but maintains that they would create an overconcentration because of the existence of 23 similar facilities within the city.
A party challenging the establishment of a proposed community residential facility must demonstrate by clear and convincing evidence that the proposed facility would cause an oversaturation of similar facilities in the area to such an extent that "`the nature and character of the areas within the municipality would be altered'" (Matter of Town of Hempstead v Commissioner of N Y Off. of Mental Health, 170 A.D.2d 1051, quoting Grasmere Homeowners' Assn. v Introne, 84 A.D.2d 778, 779). Petitioner failed to meet its burden of adducing clear and convincing evidence that the establishment of the proposed facilities would result in an overconcentration of similar facilities and a substantial alteration of the nature and character of the community (see, Matter of Town of Cheektowaga v Howe, supra; Matter of Town of Hempstead v Commissioner of State of N.Y. Off. of Mental Health, 170 A.D.2d 1052).