IN RE: TOWN OF OYSTER BAY (1998)

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the State of New York Office of Mental Retardation and Developmental Disabilities, dated August 27, 1996, which, after a hearing, rejected the petitioner's objection to the establishment of a community residential facility for the disabled in the Town of Oyster Bay.

ADJUDGED that the determination is confirmed and the proceeding is dismissed on the merits, with one bill of costs to the respondents appearing separately and filing separate briefs.

The petitioner contends that the determination in question should be annulled based on its claim that the proposed community residential facility would substantially alter the nature and character of the surrounding area, inter alia, by increasing foot and vehicle traffic.   These concerns were properly rejected by the Commissioner since they are speculative and undocumented (see, Matter of Jennings v. State Off. of Mental Health, 90 N.Y.2d 227, 660 N.Y.S.2d 352, 682 N.E.2d 953;  Matter of Town of Oyster Bay v. Maul, 231 A.D.2d 580, 647 N.Y.S.2d 240;  Matter of Town of Oyster Bay v. Maul, 231 A.D.2d 579, 647 N.Y.S.2d 242).   The petitioner presented no concrete evidence that the establishment of the facility would alter the nature and character of the area.

As the determination was based upon the findings that there was a need for the facility and that there was not an overconcentration of similar facilities in the area, the determination was supported by substantial evidence and was not arbitrary and capricious.

MEMORANDUM BY THE COURT.