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  the mentally  disabled 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 of mental retardation  and  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  thissection 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.