Town of Onondaga v. Introne , 81 A.D.2d 750 ( 1981 )

— Determination unanimously confirmed and petition dismissed, without costs. Memorandum: In this article 78 proceeding petitioner Town of Onondaga (Town) seeks review of a determination of the Commissioner of the State of New York Office of Mental Retardation and Developmental Disabilities which authorized, after a hearing, the establishment of a community residential facility for mentally retarded children at a contested location in the Town. In making a determination, the commissioner is required to consider the need for a community residential facility and the existing concentration of such facilities and other similar facilities (Mental Hygiene Law, § 41.34, subd [b], par [5]; Matter of City of Schenectady v Coughlin, 74 AD2d 985). The Town contends that the commissioner failed to apply the proper statutory criteria because he did not take into account other facilities in the area which provide programs or services for the mentally retarded, including a nursing home, a hospital and a juvenile detention center. The language and purpose of the statute support the commissioner’s interpretation that only similar residential facilities are to be considered. The legislation was designed to encourage the development of community residential facilities and yet to avoid a concentration of such facilities in any one area. Clearly, institutions such as a hospital and a detention center were not within the contemplation of the statute. The Town further contends that the commissioner’s determination is not based on substantial evidence. We disagree. There is unrebutted testimony that there is a need for such facility and that its establishment would not alter the nature of the area. The determination therefore should not be disturbed (Matter of City of Schenectady v Coughlin, supra; Matter of Town of Greenburgh v Coughlin, 73 AD2d 672). (Article 78 proceeding transferred by order of Onondaga Supreme Court.) Present — Dillon, P. J., Cardamone, Simons, Denman and Schnepp, JJ.