§ 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 persons with
mental disabilities 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 for people with 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 this
section 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.