David Steinmetz & Jody Cross Successfully Defend Establishment Of Community Residence


By Decision & Judgment, dated March 29, 2017, the Appellate Division, Second Department, upheld a determination by Kerry A. Delaney, Acting Commissioner of the State of New York Office for People with Developmental Disabilities (“OPWDD”), permitting Ability Beyond Disability (“Ability Beyond”) to establish a six-person Community Residence for adults with developmental disabilities in the Village of Port Chester (the “Village”). On July 13, 2017, the Second Department denied the Village’s request to either reargue the case, or to appeal to the Court of Appeals.

Ability Beyond first notified the Village pursuant to New York Mental Hygiene Law (“MHL”) Section 41.24 in December 2012 of its intent to establish the Community Residence on a property previously approved by the Village for a single-family home. Since its adoption in 1978, MHL Section 41.34, also known as the “Padavan Law” after its champion, Senator Frank Padavan, has permitted Community Residences for individuals with disabilities to be established in single-family neighborhoods, unless the municipality can demonstrate that the addition of such a Residence would result in an “overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area.”

After numerous delays, in April 2015, the Village Board of Trustees voted unanimously to object to the location selected by Ability Beyond, and requested a Hearing before the OPWDD. Following the Hearing at which testimony was taken from representatives of the Village and Ability Beyond, in November 2015, the OPWDD issued a determination decisively rejecting the Village’s objection. The Village then challenged OPWDD’s determination in the Westchester County Supreme Court. The matter was then transferred to the Appellate Division, Second Department. In its Decision & Judgment, the Appellate Court upheld the determination of the OPWDD, declaring that “[t]he Village failed to meet its burden of adducing clear and convincing proof that the establishment of the subject community residential facility would result in an overconcentration of the same or similar facilities so as to substantially alter the nature and character of the area.”

The case is captioned Village of Port Chester, et al. v. Kerry A. Delaney, et al., Docket No. 2016-02957 (2d Dep’t).

 A copy of the March 29, 2017 Decision & Judgment can be found here. The July 13, 2017 Decision & Order on Motion can be found here.

Zarin & Steinmetz celebrates with Ability Beyond at its 2017 Annual Gala. From L to R: Brad Schwartz, Marsha Rubin Goldstein, Jody Cross, Zachary Mintz, and David Steinmetz.

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