Section 16.09. Approval of new construction

(a) As used or referred to in this section, unless a different meaning
  clearly appears from the context:
    (1) "Facility"  is limited to a facility in which services are offered
  for which an operating certificate is required by this article. For  the
  purposes of this section facility shall include family care homes.
    (2) "Construction"   means  the  erection,  building,  or  substantial
  acquisition,  alteration,  reconstruction,  improvement,  extension   or
  modification  of a facility, including its equipment, the inspection and
  supervision thereof; and the studies, surveys, designs,  plans,  working
  drawings,   specifications,  procedures,  and  other  actions  necessary
  thereto.
    (b) The  construction  of  a  facility,  whether  public  or  private,
  incorporated  or  not  incorporated, shall require the prior approval of
  the commissioner. An application for such construction  shall  be  filed
  with the office, together with such other forms and information as shall
  be  prescribed  by, or acceptable to, the office. Thereafter, the office
  shall forward for comment a copy of  the  application  and  accompanying
  documents  to  the  local  governmental  unit  responsible for community
  services for the mentally disabled where the facility is to be  located,
  and,  for  facilities  other than community residences, to the concerned
  health  systems  agency.  The  commissioner  shall  not  act   upon   an
  application  for  construction  of  a  facility unless the applicant has
  obtained  all  approvals  and  consents  required   by   law   for   its
  incorporation  or  establishment.  The  commissioner  in  approving  the
  construction  of  a  facility  shall  take  into  consideration  and  is
  empowered  to  request information and advice from all available sources
  including local and area mental hygiene and health planning agencies and
  groups as to (i) the availability of facilities or  services  which  may
  serve  as  alternatives  or substitutes for the whole or any part of the
  proposed construction and (ii) the adequacy of financial  resources  and
  sources  of future revenue and (iii) the public need for the facility or
  the services, for facilities other than  community  residences,  at  the
  time and place and under the circumstances proposed. If the commissioner
  proposes to disapprove an application for construction of a facility, he
  shall afford the applicant an opportunity to be heard. The commissioner,
  on his own motion, may hold a hearing on an application for construction
  of a facility.
    (c)  In determining whether there is a public need for any services or
  facilities, for facilities other than community residences, as  required
  by this article, the commissioner shall consider the advice of the state
  health  planning  and  development  agency  designated  pursuant  to the
  provisions of the national health planning and resources development act
  of  nineteen  hundred  seventy-four  and  any  amendments  thereto.  The
  commissioner  shall  not  take  any action contrary to the advice of the
  health systems agency for facilities  other  than  community  residences
  until  he  affords  an  opportunity  to  the  agency to request a public
  hearing and, if so requested, a public hearing shall be held.