Opinion
Argued December 17, 1998
July 19, 1999
In a proceeding, inter alia, pursuant to CPLR article 78 to review a determination after a hearing of Thomas A. Maul, the Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, dated April 7, 1997, allowing a community residential facility to be established in the Village of Westbury, the Commissioner and the Association for the Help of Retarded Children, Nassau County Chapter, separately appeal, as limited by their briefs, from a judgment of the Supreme Court, Nassau County (Burke, J.), dated January 5, 1998, which, inter alia, upon a finding that there were "substantial defects" in the notification process and in not having the hearing witnesses sworn, granted the petition to the extent of annulling the determination dated April 7, 1997.
Eliot L. Spitzer, Attorney-General, New York, N.Y. (Michael S. Belohlavek and Lyssa M. Sampson of counsel), for appellant Thomas A. Maul.
Chase, Decsi Henderson, Glen Cove, N.Y. (Tip Henderson of counsel), for appellant Association for the Help of Retarded Children, Nassau County Chapter.
LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, JJ.
DECISION, ORDER JUDGMENT
ORDERED that the judgment is reversed, on the law, without costs or disbursements, the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits.
The Supreme Court found that the Association for the Help of Retarded Children, Nassau County Chapter (hereinafter AHRC), failed to comply with the notice requirements of Mental Health Law § 41.34 Mental Hyg.(c)(1) in that the notice did not include data compiled pursuant to Social Service Law § 463 Soc. Serv. or information on community support requirements. This finding cannot be sustained in light of the petitioner's concession acknowledging receipt of the Social Services Law § 463 data. The community support requirements, as provided, sufficiently satisfied the requirements of Mental Health Law § 41.34 Mental Hyg.(c)(1) ( see, Matter of Town of Stony Point v. New York State Off. of Mental Retardation Developmental Disabilities, 78 A.D.2d 858, 859).
The appellants properly assert that no sworn testimony is required at a hearing pursuant to Mental Hygiene Law § 41.34 ( see, Mental Hygiene Law § 42.34[c][5]; State Administrative Procedure Act § 102 A.P.A.[3]; § 301 A.P.A.[3]; Matter of Town of Mount Pleasant v. Perry, 234 A.D.2d 306; Matter of Vil. of Mamaroneck v. Barnum, 226 A.D.2d 733). Therefore, the requirement of Uniform Hearing Procedures of the Office of Mental Health part 602 ( 14 NYCRR 602.1[a]) that an oath be administered to hearing witnesses, relied upon by the Supreme Court, is not applicable here ( see, 14 NYCRR 602.1, 602.2; compare, Mental Hygiene Law § 16.09 with Mental Hygiene Law § 41.34).
"The sole issue to be resolved at a hearing to contest the appropriateness of the establishment of a community residence facility pursuant to section 41.34 Mental Hyg. of the Mental Hygiene Law is whether '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' " ( Matter of Town of Greenburgh v. Coughlin, 73 A.D.2d 672, quoting Mental Hygiene Law 41.34 [former b][5]). Upon our review of the instant record, we note that the Village presented no concrete or convincing evidence that the establishment of the proposed six-person residence would result in such a concentration of the same or similar facilities that the nature and character of the area would be altered ( see, e.g., Town of Hempstead v. Commissioner, State of N.Y. Off. of Mental Retardation Developmental Disabilities, 89 A.D.2d 850). In addition, the concerns raised by the Village regarding, inter alia, increased traffic and depreciation of property values were conclusory and unsubstantiated ( see, e.g., Matter of Town of Hempstead v. Commissioner of State of New York Off. of Mental Health, 170 A.D.2d 1051). On the other hand, the applicant's evidence showed, among other things, both a need for the home and that the proposed situs was sufficiently isolated from other similar facilities to avoid undue concentration in the relevant geographical area ( see, e.g., Matter of Inc. Vil. of Westbury v. Prevost, 96 A.D.2d 1100). Accordingly, the Commissioner's determination that the proposed facility would not substantially alter the nature and character of the area was rational, was supported by the evidence in the record, was not arbitrary and capricious, and was not affected by any error of law ( see, e.g., Matter of Jennings v. New York State Off. of Mental Health, supra, at 239-243; Matter of Town of Hempstead v. Commissioner of State of New York Off. of Mental Health, 200 A.D.2d 675).