STATE OF NEW YORK
________________________________________________________________________
4854
2021-2022 Regular Sessions
IN ASSEMBLY
February 8, 2021
___________
Introduced by M. of A. EPSTEIN -- read once and referred to the Commit-
tee on Local Governments
AN ACT to amend the real property law, in relation to accessory dwelling
units; and to amend the executive law, in relation to including an
accessory dwelling unit in the term housing accommodations in human
rights law
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The real property law is amended by adding a new article 16
2 to read as follows:
3 ARTICLE 16
4 ACCESSORY DWELLING UNITS
5 Section 480. Definitions.
6 481. Accessory dwelling unit regulations and ordinances.
7 482. State review and enforcement.
8 483. Low and moderate income homeowners program.
9 484. Good cause eviction of a tenant.
10 485. Severability.
11 § 480. Definitions. As used in this article, unless the context other-
12 wise requires, the following terms shall have the following meanings:
13 1. "Accessory dwelling unit" shall mean an attached or a detached
14 residential dwelling unit that provides complete independent living
15 facilities for one or more persons which is located on a lot with a
16 proposed or existing primary residence and shall include permanent
17 provisions for living, sleeping, eating, cooking, and sanitation on the
18 same lot as the single-family or multifamily dwelling is or will be
19 situated.
20 2. "Accessory structure" shall mean a structure that is accessory and
21 incidental to a dwelling located on the same lot.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07619-02-1
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1 3. "Living area" shall mean the interior habitable area of a dwelling
2 unit, including basements, cellars, and attics but does not include a
3 garage or any accessory structure.
4 4. "Local agency" shall mean a city, county, township, or borough.
5 5. "Low-income homeowners" shall mean homeowners with an income,
6 adjusted for family size, not exceeding eighty percent of the area medi-
7 an income.
8 6. "Moderate-income homeowners" shall mean homeowners with an income,
9 adjusted for family size, not exceeding one hundred and twenty percent
10 of the area median income.
11 7. "Nonconforming zoning condition" shall mean a physical improvement
12 on a property that does not conform with current zoning standards.
13 8. "Passageway" shall mean a pathway that is unobstructed and extends
14 from a street to one entrance of the accessory dwelling unit.
15 9. "Proposed dwelling" shall mean a dwelling that is the subject of a
16 permit application and that meets the requirements for permitting.
17 10. "Impact fee" shall mean any payment imposed by a local agency for
18 the purpose of providing new or expanded public capital facilities or
19 infrastructure required to serve a new development.
20 11. "Division" shall mean the New York state division of homes and
21 community renewal.
22 § 481. Accessory dwelling unit regulations and ordinances. 1.
23 Notwithstanding any law, rule, policy, regulation or ordinance to the
24 contrary, a local agency shall, by ordinance, provide for the creation
25 of accessory dwelling units. Such ordinance shall:
26 (a) Designate areas within the jurisdiction of the local agency where
27 accessory dwelling units shall be permitted. Designated areas shall
28 include all areas zoned for single-family or multifamily residential
29 use, and all lots with an existing residential use.
30 (b) Authorize the creation of at least one accessory dwelling unit per
31 lot in designated areas.
32 (c) Provide reasonable standards for accessory dwelling units that
33 include, but are not limited to height, landscape, architectural review
34 and maximum size of a unit. In no case shall such standards unnecessar-
35 ily impair the creation of accessory dwelling units.
36 (d) Require accessory dwelling units to comply with the following:
37 (i) Such unit may be rented separate from the primary residence, but
38 shall not be sold or otherwise conveyed separate from the primary resi-
39 dence;
40 (ii) Such unit shall be located on a lot that includes a proposed or
41 existing residential dwelling;
42 (iii) Such unit shall not be rented for a term less than thirty days;
43 and
44 (iv) Such unit shall be attached to or located within the proposed or
45 existing primary dwelling, including but not limited to attached
46 garages, storage areas, basements, cellars, similar spaces, or an acces-
47 sory structure or detached from the proposed or existing primary dwell-
48 ing and located on the same lot as the proposed or existing primary
49 dwelling.
50 (v) If there is an existing primary dwelling, the total floor area of
51 an attached accessory dwelling unit shall not exceed fifty percent of
52 the existing primary dwelling, unless such limit would prevent the
53 creation of an accessory dwelling unit that is no greater than six
54 hundred squared feet.
55 2. A local agency shall not establish by ordinance any of the follow-
56 ing:
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1 (a) A minimum square footage requirement for either an attached or
2 detached accessory dwelling unit greater than two hundred square feet;
3 (b) A maximum square footage requirement for either an attached or
4 detached accessory dwelling unit that is less than fifteen hundred
5 square feet;
6 (c) Any other minimum or maximum size for an accessory dwelling unit,
7 based upon a percentage of the proposed or existing primary dwelling, or
8 limits on lot coverage, floor area ratio, open space, and minimum lot
9 size, for either an attached or detached dwelling that does not permit
10 at least an eight hundred square foot accessory dwelling unit with four-
11 foot side and rear yard setbacks to be constructed in compliance with
12 other local development standards;
13 (d) A ceiling height requirement greater than seven feet;
14 (e) If an accessory dwelling unit or a portion thereof is below curb
15 level, a requirement that more than two feet of such unit's height be
16 above curb level;
17 (f) Any requirement that a passageway exist or be constructed in
18 conjunction with the creation of an accessory dwelling unit; and
19 (g) Any setback for an existing living area or accessory structure or
20 a structure constructed in the same location and to the same dimensions
21 as an existing structure that is converted to an accessory dwelling unit
22 or to a portion of an accessory dwelling unit, or any setback of more
23 than four feet from the side and rear lot lines for an accessory dwell-
24 ing unit that is not converted from an existing structure or a new
25 structure constructed in the same location and to the same dimensions as
26 an existing structure.
27 3. No ordinance for the creation of accessory dwelling units pursuant
28 to subdivision one of this section shall be considered in the applica-
29 tion of any local ordinance, policy, or program to limit residential
30 growth.
31 4. No parking requirement shall be imposed on an accessory dwelling
32 unit.
33 5. The local agency shall not require that off-street parking spaces
34 be replaced if a garage, carport, or covered parking structure is demol-
35 ished in conjunction with the construction of an accessory dwelling unit
36 or converted to an accessory dwelling unit.
37 6. Notwithstanding any local ordinance regulating the issuance of
38 variances or special use permits, a permit application to create an
39 accessory dwelling unit in conformance with the local ordinance shall be
40 considered ministerially without discretionary review or a hearing. If
41 there is an existing single-family or multifamily dwelling on the lot,
42 the permitting agency shall act on the application to create an accesso-
43 ry dwelling unit within sixty days from the date the local agency
44 receives a completed application. If the permit application to create an
45 accessory dwelling unit is submitted with a permit application to create
46 a new residential dwelling on the lot, the permitting agency may delay
47 acting on the permit application for the accessory dwelling unit until
48 the permitting agency acts on the permit application to create the new
49 dwelling, but the application to create the accessory dwelling unit
50 shall be considered without discretionary review or hearing. If the
51 applicant requests a delay, the sixty day time period shall be tolled
52 for the period of the delay. A local agency may charge a fee not to
53 exceed one thousand dollars for the reimbursement of the actual costs
54 such local agency incurs pursuant to this subdivision, including the
55 costs related to adopting or amending any ordinance that provide for the
56 creation of an accessory dwelling unit.
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1 7. Municipalities shall establish an administrative appeal process
2 for the denial of a permit for accessory dwelling units. When a permit
3 to create an accessory dwelling unit pursuant to an ordinance adopted
4 pursuant to this section is denied, the agency shall issue a notice of
5 denial which shall contain the reason such permit application was denied
6 and instructions on how the applicant may appeal such denial. All
7 appeals shall be submitted to the issuing agency, or any decisional body
8 granting such permits, or any other appellate board or body, in writing
9 within thirty days of such denial.
10 8. No other local ordinance, policy, or regulation shall be the basis
11 for the denial of a building permit or a use permit under this section.
12 9. If a local agency has an existing accessory dwelling unit ordinance
13 that fails to meet the requirements of this section, that ordinance
14 shall be null and void. Such local agency shall thereafter apply the
15 standards established in this section for the approval of accessory
16 dwelling unit until such local agency adopts an ordinance that complies
17 with this section.
18 10. A local agency may amend its zoning ordinance or general plan to
19 incorporate the policies, procedures, and provisions applicable to the
20 creation of an accessory dwelling unit if such provisions are consistent
21 with this section.
22 11. The local agency shall ensure that accessory dwelling units are
23 not counted toward the allowable residential density, or any requirement
24 respecting lot coverage or open space, for the lot upon which the acces-
25 sory dwelling unit is located under the existing zoning designation for
26 such lot. The local agency shall also ensure that accessory dwelling
27 units are for a residential use that is consistent with the existing
28 zoning designation for the lot. The accessory dwelling unit shall not be
29 considered in the application of any local ordinance, policy, or program
30 to limit residential growth.
31 12. No provision of the multiple dwelling law shall apply to an acces-
32 sory dwelling unit, irrespective to whether such provisions of such law
33 apply to the primary dwelling, and a dwelling otherwise exempt from the
34 provisions of the multiple dwelling law shall not fall under the
35 provisions of such law as a result of the addition of an accessory
36 dwelling unit.
37 13. A local agency may require no more than one point of exterior
38 access by door from the proposed or existing residential dwelling.
39 14. A local agency shall not require, as a condition for ministerial
40 approval of a permit application for the creation of an accessory dwell-
41 ing unit, the correction of nonconforming zoning conditions.
42 15. Where an accessory dwelling unit requires a new or separate utili-
43 ty connection directly between the accessory dwelling unit and the util-
44 ity, the connection may be subject to a connection fee or capacity
45 charge that shall be proportionate to the burden of the proposed acces-
46 sory dwelling unit, based upon either its size or the number of its
47 plumbing fixtures upon the water or sewer system. Such fee or charge
48 shall not exceed the reasonable cost of providing such utility
49 connection. A local agency shall not impose any other impact fee in
50 connection with an accessory dwelling unit.
51 16. The first lawful occupancy of an accessory dwelling unit shall
52 occur at a time when a unit in the primary dwelling is owner-occupied,
53 and such owner-occupation must continue for at least one year following
54 the first legal occupancy of the accessory dwelling unit. A local agency
55 shall not impose any other owner occupancy requirement for either the
56 primary dwelling or the accessory dwelling unit.
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1 17. A local agency shall not impose any health or safety requirement
2 on accessory dwelling units that is not necessary to protect the health
3 and safety of the occupants of such a dwelling.
4 18. A local agency shall not issue a certificate of occupancy or its
5 equivalent for an accessory dwelling unit before the local agency issues
6 a certificate of occupancy or its equivalent for the primary dwelling.
7 19. A local agency shall adopt an ordinance pursuant to this section
8 within one hundred eighty days of the effective date of this article.
9 § 482. State review and enforcement. 1. A local agency shall submit a
10 copy of the ordinance adopted pursuant to section four hundred eighty-
11 one of this article to the division within thirty days after such
12 adoption.
13 2. (a) Within sixty days of receipt of a local agency's ordinance, or
14 sixty days after expiration of the time to submit said ordinance, the
15 division shall submit written findings to the local agency as to whether
16 the local agency's ordinance complies with this article. Such findings
17 shall include a determination as to whether the local agency's ordinance
18 contains rules that are not reasonable within the meaning of paragraph
19 (c) of subdivision one of section four hundred eighty-one of this arti-
20 cle. If the division finds that the local agency's ordinance does not
21 comply with this article, such division shall notify such local agency
22 and shall provide such local agency with a reasonable time, no longer
23 than thirty days, to respond to the findings before taking any other
24 action authorized under this section.
25 (b) The local agency shall consider the findings made by the division
26 pursuant to this subdivision and shall do one of the following:
27 (i) Amend the ordinance to comply with the findings of the division;
28 or
29 (ii) Adopt the ordinance without amendments to comply with the find-
30 ings of the division. The local agency shall include findings in its
31 resolution adopting such ordinance that explain the reasons the local
32 agency believes that the ordinance complies with this article despite
33 the findings of the division.
34 3. (a) If, within thirty days of the local agency's response to the
35 division's findings, or thirty days after the expiration of the local
36 agency's time to respond, the division determines that the ordinance
37 does not comply with this article, the division shall:
38 (i) notify the local agency and the attorney general that the local
39 agency is in violation of state law; and
40 (ii) revise the ordinance to comply with this article and direct the
41 local agency to adopt it.
42 (b) Where a local agency is in violation of state law, the attorney
43 general may bring a civil action to enforce the requirements of this
44 article.
45 4. The division may review, adopt, amend, or repeal guidelines to
46 implement uniform standards or criteria that supplement or clarify the
47 terms, references, and standards set forth in this article.
48 5. Within one hundred days of the effective date of this article, the
49 division shall promulgate a model local ordinance that conforms to the
50 requirements of this article.
51 6. The division shall issue an annual report, on or before July first
52 of each year, that summarizes:
53 (a) the activities the division has taken pursuant to this section;
54 (b) local agencies' compliance with the terms of this article; and
55 (c) the development of accessory dwelling units in the state.
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1 § 483. Low and moderate income homeowners program. 1. Within one
2 hundred eighty days of the effective date of this article, the division
3 shall establish a lending program to assist low-income homeowners and
4 moderate-income homeowners in securing financing for the creation of
5 accessory dwelling units.
6 2. An accessory dwelling unit financed with the assistance of such
7 program shall be offered for rent at a below-market rate for a period of
8 fifteen years.
9 3. The division shall promulgate program criteria and guidelines
10 necessary to carry out such program.
11 4. Such program shall be funded through capital projects appropri-
12 ations and reappropriations set forth in the state fiscal year housing
13 program.
14 5. The division shall issue an annual report, on or before July first
15 of each year, that includes an itemized list of each project financed
16 through the program, including a brief description of the project,
17 street address, and county. Such report shall also summarize the demo-
18 graphic characteristics of participating homeowners, including income,
19 race, ethnicity, and sex.
20 6. Within one hundred eighty days of the effective date of this arti-
21 cle, the division shall establish a program to provide technical assist-
22 ance to all homeowners seeking to create an accessory dwelling unit.
23 § 484. Good cause eviction of a tenant. 1. As used in this section,
24 the following terms shall have the following meanings:
25 (a) "Landlord" shall mean any owner, lessor, sublessor, assignor, or
26 other person receiving or entitled to receive rent for the occupancy of
27 any accessory dwelling unit or an agent of any of the foregoing.
28 (b) "Tenant" shall mean a tenant, sub-tenant, lessee, sublessee,
29 assignee of an accessory dwelling unit.
30 (c) "Rent" shall mean any consideration, including any bonus, benefit
31 or gratuity demanded or received for or in connection with the
32 possession, use or occupancy of an accessory dwelling unit or the
33 execution or transfer of a lease for such a unit.
34 (d) "Disabled person" shall mean a person who has an impairment which
35 results from anatomical, physiological or psychological conditions,
36 other than addiction to alcohol, gambling, or any controlled substance,
37 which are demonstrable by medically acceptable clinical and laboratory
38 diagnostic techniques, and which are expected to be permanent and which
39 substantially limit one or more of such person's major life activities.
40 2. This section shall apply to all accessory dwelling units except:
41 (a) premises sublet pursuant to section two hundred twenty-six-b of
42 this chapter, or otherwise, where the sublessor seeks in good faith to
43 recover possession of such housing accommodation for their own personal
44 use and occupancy;
45 (b) premises the possession, use or occupancy of which is solely inci-
46 dent to employment and such employment is being lawfully terminated; and
47 (c) premises otherwise subject to regulation of rents or evictions
48 pursuant to state or federal law to the extent that such state or feder-
49 al law requires good cause for termination or non-renewal of such tenan-
50 cies.
51 3. No landlord shall, by action to evict or to recover possession, by
52 exclusion from possession, by failure to renew any lease, or otherwise,
53 remove any tenant from an accessory dwelling unit except for good cause
54 pursuant to subdivision four of this section.
55 4. (a) No landlord shall remove a tenant from any accessory dwelling
56 unit, or attempt such removal or exclusion from possession, notwith-
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1 standing that the tenant has no written lease or that the lease or other
2 rental agreement has expired or otherwise terminated, except upon order
3 of a court of competent jurisdiction entered in an appropriate judicial
4 action or proceeding in which the petitioner or plaintiff has estab-
5 lished one of the following grounds as good cause for removal or
6 eviction:
7 (i) The tenant has failed to pay rent due and owing, provided however
8 that the rent due and owing, or any part thereof, did not result from a
9 rent increase which is unreasonable or imposed for the purpose of
10 circumventing the intent of this section. In determining whether all or
11 part of the rent due and owing is the result of an unreasonable rent
12 increase, it shall be a rebuttable presumption that the rent for a
13 dwelling not protected by rent regulation is unreasonable if said rent
14 has been increased in any calendar year by a percentage exceeding either
15 three percent or one and one-half times the annual percentage change in
16 the consumer price index for the region in which the housing accommo-
17 dation is located, as established the August preceding the calendar year
18 in question, whichever is greater;
19 (ii) The tenant is violating a substantial obligation of his or her
20 tenancy, other than the obligation to surrender possession, and after
21 receiving written notice from the landlord requiring that the substan-
22 tial violation be cured, the tenant has failed to cure such violation
23 within ten days of receipt of such notice, provided however, that the
24 obligation of tenancy for which violation is claimed was not imposed for
25 the purpose of circumventing the intent of this section;
26 (iii) The tenant is committing or permitting a nuisance in such acces-
27 sory dwelling unit, or is damaging the unit, whether maliciously, inten-
28 tionally, recklessly, or negligently; or the tenant's conduct is such as
29 to interfere with the comfort of the landlord or other tenants or occu-
30 pants of the same or adjacent buildings or structures;
31 (iv) Occupancy of accessory dwelling unit by the tenant is in
32 violation of or causes a violation of law and the landlord is subject to
33 civil or criminal penalties therefore; provided however that an agency
34 of the state or municipality having jurisdiction has issued an order
35 requiring the tenant to vacate the unit. No tenant shall be removed from
36 possession of a unit on such ground unless the court finds that the cure
37 of the violation of law requires the removal of the tenant and that the
38 landlord did not through neglect or deliberate action or failure to act
39 create the condition necessitating the vacate order. In instances where
40 the landlord does not undertake to cure conditions of the housing accom-
41 modation causing such violation of the law, the tenant shall have the
42 right to pay or secure payment in a manner satisfactory to the court, to
43 cure such violation provided that any tenant expenditures shall be
44 applied against rent to which the landlord is entitled. In instances
45 where removal of a tenant is absolutely essential to his or her health
46 and safety, the removal of the tenant shall be without prejudice to any
47 leasehold interest or other right of occupancy the tenant may have and
48 the tenant shall be entitled to resume possession at such time as the
49 dangerous conditions have been removed. Nothing herein shall abrogate
50 or otherwise limit the right of a tenant to bring an action for monetary
51 damages against the landlord to compel compliance by the landlord with
52 all applicable state or municipal laws or housing codes;
53 (v) The tenant is using or permitting the accessory dwelling unit to
54 be used for an illegal purpose;
55 (vi) The tenant has unreasonably refused the landlord access to the
56 accessory dwelling unit for the purpose of making necessary repairs or
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1 improvements required by law or for the purpose of showing the housing
2 accommodation to a prospective purchaser, mortgagee or other person
3 having a legitimate interest therein; or
4 (vii) The landlord seeks in good faith to recover possession of an
5 accessory dwelling unit because of immediate and compelling necessity
6 for his or her own personal use and occupancy as his or her principal
7 residence, or the personal use and occupancy as principal residence of
8 his or her spouse, parent, child, stepchild, father-in-law or mother-in-
9 law, when no other suitable accommodation in such dwelling is available.
10 This paragraph shall permit recovery of only one accessory dwelling unit
11 and shall not apply to an accessory dwelling unit occupied by a tenant
12 who is sixty-two years of age or older or who is a disabled person.
13 (b) A tenant required to surrender a housing accommodation by virtue
14 of the operation of subparagraph (vii) of paragraph (a) of this subdivi-
15 sion shall have a cause of action in any court of competent jurisdiction
16 for damages, declaratory, and injunctive relief against a landlord or
17 purchaser of the premises who makes a fraudulent statement regarding a
18 proposed use of the accessory dwelling unit. In any action or proceeding
19 brought pursuant to this paragraph, a prevailing tenant shall be enti-
20 tled to recovery of actual damages, and reasonable attorneys' fees.
21 (c) Nothing in this section shall abrogate or limit the tenant's right
22 pursuant to section seven hundred fifty-one of the real property actions
23 and proceedings law to permanently stay the issuance or execution of a
24 warrant or eviction in a summary proceeding, whether characterized as a
25 nonpayment, objectionable tenancy, or holdover proceeding, the underly-
26 ing basis of which is the nonpayment of rent, so long as the tenant
27 complies with the procedural requirements of section seven hundred
28 fifty-one of the real property actions and proceedings law.
29 5. No action shall be maintainable and no judgment of possession shall
30 be entered for accessory dwelling units pursuant to this section unless
31 the landlord has complied with any and all applicable laws governing
32 such action or proceeding and has complied with any and all applicable
33 laws governing notice to tenants, including without limitation the
34 manner and the time of service of such notice and the contents of such
35 notice.
36 6. Any agreement by a tenant heretofore or hereinafter entered into in
37 a written lease or other rental agreement waiving or modifying their
38 rights as set forth in this section shall be void as contrary to public
39 policy.
40 § 485. Severability. In the event it is determined by a court of
41 competent jurisdiction that any phrase, clause, part, subdivision, para-
42 graph or section, or any of the provisions of this article, is unconsti-
43 tutional or otherwise invalid or inoperative, such determination shall
44 not affect the validity or effect of the remaining provisions of this
45 article.
46 § 2. Section 292 of the executive law is amended by adding a new
47 subdivision 39 to read as follows:
48 39. The term "housing accommodation" as used in this article shall
49 include an accessory dwelling unit as defined in subdivision one of
50 section four hundred eighty of the real property law.
51 § 3. Paragraph (a) of subdivision 1 of section 296 of the executive
52 law, as separately amended by chapters 8 and 176 of the laws of 2019, is
53 amended to read as follows:
54 (a) For an employer or licensing agency, because of an individual's
55 age, race, creed, color, national origin, sexual orientation, gender
56 identity or expression, military status, sex, disability, predisposing
A. 4854 9
1 genetic characteristics, familial status, marital status, or status as a
2 victim of domestic violence, to refuse to hire or employ or to bar or to
3 discharge from employment such individual or to discriminate against
4 such individual in compensation or in terms, conditions or privileges of
5 employment. In the case of an accessory dwelling unit as defined in
6 subdivision one of section four hundred eighty of the real property law,
7 the exemption from the provisions of this paragraph for the rental of a
8 housing accommodation in a building which contains housing accommo-
9 dations for not more than two families living independently of each
10 other, if the owner resides in one of such accommodations, shall not
11 apply.
12 § 4. This act shall take effect immediately.
