Section 32.29. 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.
    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  that  require the submission of an application for an operating
  certificate or amendment to an operating certificate or  certificate  of
  approval  previously  issued  by  the office of alcoholism and substance
  abuse services; or which is likely to have an impact on state aid.
    (b) The construction of a facility shall require the prior approval of
  such commissioner if the provider of services seeking to engage in  such
  construction   receives  funding  from  the  office  of  alcoholism  and
  substance abuse services pursuant to this chapter and/or seeks a funding
  source for such construction project other than from the  mental  health
  services  facilities  improvement  program,  or  its  successor  agency,
  directly or indirectly through a closely related entity.
    1. An application for such construction together with such other forms
  and information as shall be prescribed, shall be submitted to the office
  of alcoholism and substance abuse services.
    2. The office shall forward a copy of the application for approval  of
  the  proposed construction, and any accompanying documents, to the local
  governmental unit responsible for community services  for  the  mentally
  disabled  where  the  facility  is to be located. The local governmental
  unit shall report  its  recommendations  on  the  proposed  construction
  within a reasonable time.
    3. Upon receipt of the recommendations of the local governmental unit,
  or  upon  the  lapse  of  a  reasonable  time  for  comment by the local
  governmental unit, the commissioner shall  submit  the  application  for
  facilities    other   than   community   residences   along   with   the
  recommendations of the local governmental unit, if any, to the  advisory
  council  on  alcoholism  and substance abuse services for its review and
  recommendation. The commissioner shall not act upon an  application  for
  construction  of  a  facility  other  than a community residence without
  having first given the advisory  council  on  alcoholism  and  substance
  abuse  services  a  reasonable opportunity to make its recommendation on
  the application, provided however, that the commissioner may act upon an
  application  for  construction  by  an  applicant  possessing  a   valid
  operating  certificate  when  the applicant qualifies for review without
  the recommendation of the council pursuant to regulations adopted by the
  commissioner with the advice of  the  council  in  accordance  with  the
  procedures noted in section 19.05 of this chapter.
    (c)   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 and shall
  not grant approval of an application for construction unless,  based  on
  the  information and advice received and his or her own review he or she
  is satisfied as to (i) the public need for the facility or the  services
  at  the time and place and under the circumstances proposed, taking into
  consideration local, regional, and statewide need; (ii) the  absence  of

  availability  and  feasibility for development of facilities or services
  which may serve as alternatives or substitutes for the whole or any part
  of the proposed construction; (iii) the overall financial  condition  of
  the  applicant,  through  review of audited financial statements, taking
  into consideration the adequacy of financial resources  and  sources  of
  future  revenue;  (iv)  the  absence  of  more  efficient  architectural
  solutions to construction proposed; and  (v)  the  sufficiency  of  such
  other matters as he or she may deem pertinent in the public interest.
    (d)  If  the  commissioner  proposes  to disapprove an application for
  construction of a facility, he or she  shall  afford  the  applicant  an
  opportunity  to  be  heard  in  accordance  with subdivision (e) of this
  section. The commissioner shall not take  any  action  contrary  to  the
  recommendation of the advisory council on alcoholism and substance abuse
  services, unless he or she first appears before the council and explains
  his  or her reasons therefor. The commissioner shall not take any action
  contrary to the advice of the local  governmental  unit  for  facilities
  other  than  community residences until he or she affords an opportunity
  to the local governmental unit to request a public  hearing  and  if  so
  requested, a public hearing shall be held in accordance with subdivision
  (e)  of  this  section.  The commissioner, on his or her own motion, may
  hold a hearing on an application for construction of a facility.
    (e) At the public hearing the commissioner shall outline all pertinent
  matters regarding the application. Thereafter, any person in  attendance
  shall  be  given  a reasonable opportunity to present an oral or written
  statement and to submit other documents concerning the  application  for
  construction.  A  record of the hearing shall be kept, including written
  statements submitted. Copies of such record shall be  available  to  the
  public  for examination without cost during normal business hours at the
  office of alcoholism and substance abuse's central office. Copies  shall
  be  reproduced  upon  written  request  and payment of the cost thereof.
  Further adjourned hearings may be scheduled.
    (f) Nothing in this section shall limit the application of  provisions
  of article twenty-eight of the public health law.