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Matter of Town of Brunswick v. Webb

Appellate Division of the Supreme Court of New York, Third Department
Dec 22, 1988
145 A.D.2d 844 (N.Y. App. Div. 1988)

Summary

In Matter of Town of Brunswick v. Webb (145 A.D.2d 844, 845), we approved the location of a community residence facility "absent some indication of overconcentration in the proximity of the proposed site".

Summary of this case from Jennings v. Mental Health off

Opinion

December 22, 1988

Appeal from the Supreme Court, Rensselaer County.


Respondent Residential Opportunities, Inc. (hereinafter ROI) gave notice pursuant to Mental Hygiene Law § 41.34 (c) (1) to petitioner, the Town of Brunswick in Rensselaer County, of its intent to establish a community residential facility at 556 Pinewoods Avenue in the town. Petitioner objected to the location of the facility upon the ground that establishment of the proposed site would substantially alter the character and nature of the area. It requested a hearing, pursuant to Mental Hygiene Law § 41.34 (c) (5), resulting in a determination by respondent Commissioner of Mental Retardation and Developmental Disabilities that petitioner's objection could not be sustained. Petitioner commenced this CPLR article 78 proceeding to annul the Commissioner's determination. Supreme Court transferred the proceeding to this court pursuant to CPLR 7804 (g).

The Commissioner's determination should be confirmed and the petition dismissed. Initially, ROI's failure to include the complete registry of community residential facilities in its notice to petitioner, as required by Mental Hygiene Law § 41.34 (c) (1), was harmless and did not invalidate the proceedings. Petitioner was in possession of the complete registry and, in fact, offered it into evidence at the hearing, thereby eliminating any claim of prejudice (see, Town of Pleasant Val. v Wassaic Developmental Disabilities Servs. Off., 92 A.D.2d 543, 544). Further, we conclude that there was substantial evidence in the record to support a finding of need for the facility. Petitioner concedes an adequate showing of need within Rensselaer County but contends that there was no showing of need in the area of the proposed site. However, the demonstrated need within the county is sufficient, as a matter of law, to justify the location of a residence in petitioner, absent some indication of overconcentration in the proximity of the proposed site (see, Matter of City of Newburgh v Webb, 124 A.D.2d 371, 372; Matter of Town of Pound Ridge v Introne, 81 A.D.2d 890).

Finally, petitioner offered insufficient evidence that establishment of the facility on the proposed site would substantially alter the nature and character of the area (see, Mental Hygiene Law § 41.34 [c] [5]; Matter of Hallenbeck v Webb, 142 A.D.2d 852, 853). The conclusory opinion of petitioner's real estate expert that establishment of the proposed facility would depreciate the value of properties and substantially, adversely affect the nature and character of the surrounding community was properly rejected since it "was based on mere speculation and failed to show, by evidence of a concrete and convincing nature, that any such change would occur" (Matter of Town of Oyster Bay v Commissioner of State of N.Y. Off. of Mental Health, 112 A.D.2d 241, 242). Residents' expressed concerns over fire and traffic safety, safety of clients and of children in the area, adequacy of parking and sewage disposal, and the potential threat to a local stream were speculative and undocumented (see, Town of Hempstead v Commissioner, State of N.Y. Off. of Mental Retardation Developmental Disabilities, 89 A.D.2d 850, 851).

Determination confirmed, and petition dismissed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Mercure, JJ., concur.


Summaries of

Matter of Town of Brunswick v. Webb

Appellate Division of the Supreme Court of New York, Third Department
Dec 22, 1988
145 A.D.2d 844 (N.Y. App. Div. 1988)

In Matter of Town of Brunswick v. Webb (145 A.D.2d 844, 845), we approved the location of a community residence facility "absent some indication of overconcentration in the proximity of the proposed site".

Summary of this case from Jennings v. Mental Health off
Case details for

Matter of Town of Brunswick v. Webb

Case Details

Full title:In the Matter of TOWN OF BRUNSWICK, Petitioner, v. ARTHUR Y. WEBB, as…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 22, 1988

Citations

145 A.D.2d 844 (N.Y. App. Div. 1988)

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