Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Determination unanimously confirmed without costs and petition dismissed. Memorandum: The Commissioner's determination is supported by substantial evidence (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 180-181). The Town of Cheektowaga (Town) failed to meet its burden of adducing clear and convincing evidence that the establishment of the proposed facility would result in both an overconcentration of similar facilities and a substantial alteration of the nature and character of the community (see, Mental Hygiene Law § 41.34 [c] [5]; Matter of Town of Hempstead v. Commissioner of N.Y. Off. of Mental Health, 170 A.D.2d 1052; Matter of Town of Hempstead v Commissioner of State of N.Y. Off. of Mental Health, 166 A.D.2d 709). The record supports the Commissioner's determination that there is a need for the proposed facility within Erie County sufficient to justify its location within the Town (see, Matter of Town of Hempstead v. Commissioner of N.Y. Off. of Mental Health, 170 A.D.2d 1050). The Commissioner properly determined that the sponsoring agency fully considered the alternate sites proposed by the Town and properly rejected them as unacceptable (see, Matter of Town of DeWitt v. Surles, 187 A.D.2d 969, 970; Matter of Town of Gates v. State of N.Y. Off. of Mental Retardation Dev. Disabilities, 143 A.D.2d 517). We agree with the Commissioner that the sponsoring agency was not required to consider additional proposals after allowing the Town two opportunities to suggest alternate sites (see, Mental Hygiene Law § 41.34 [c] [4]).