A04854 Actions:

BILL NOA04854A
 
02/08/2021referred to local governments
12/08/2021amend and recommit to local governments
12/08/2021print number 4854a
01/05/2022referred to local governments
Go to top

A04854 Committee Votes:

Go to top

A04854 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4854--A
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 8, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  EPSTEIN,  CARROLL,  ANDERSON,  SIMON, STECK,
          GALLAGHER, SEAWRIGHT, MAMDANI, COLTON, JACKSON, GONZALEZ-ROJAS,  FRON-
          TUS,  BARRON,  McDONALD,  SILLITTI, L. ROSENTHAL, MITAYNES, LUPARDO --
          read once and referred  to  the  Committee  on  Local  Governments  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee
 
        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 local laws.
     7          482. State review and enforcement.
     8          483. Low and moderate income homeowners program.
     9          484. Tenant protections.
    10    § 480. Definitions. As used in this article, unless the context other-
    11  wise requires, the following terms shall have the following meanings:
    12    1.  "Accessory  dwelling  unit"  shall  mean an attached or a detached
    13  residential dwelling unit  that  provides  complete  independent  living
    14  facilities  for  one  or  more  persons which is located on a lot with a
    15  proposed or existing  primary  residence  and  shall  include  permanent
    16  provisions  for living, sleeping, eating, cooking, and sanitation on the
    17  same lot as the single-family or multifamily dwelling.
    18    2. "Local government" shall mean a city, town or village.
    19    3. "Low-income homeowners"  shall  mean  homeowners  with  an  income,
    20  adjusted for family size, not exceeding eighty percent of the area medi-
    21  an income.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07619-11-1

        A. 4854--A                          2
 
     1    4.  "Moderate-income homeowners" shall mean homeowners with an income,
     2  adjusted for family size, not exceeding one hundred  twenty  percent  of
     3  the area median income as defined by the division.
     4    5.  "Nonconforming zoning condition" shall mean a physical improvement
     5  on a property that does not conform with current zoning standards.
     6    6. "Proposed dwelling" shall mean a dwelling that is the subject of  a
     7  permit application and that meets the requirements for permitting.
     8    7.  "Division"  shall  mean  the  New York state division of homes and
     9  community renewal.
    10    §  481.  Accessory  dwelling  unit  regulations  and  local  laws.  1.
    11  Notwithstanding  any  law,  rule, policy, regulation or ordinance to the
    12  contrary, a local government  shall,  by  local  law,  provide  for  the
    13  creation of accessory dwelling units. Such local law shall:
    14    (a)  Designate  areas  within the jurisdiction of the local government
    15  where accessory dwelling units  shall  be  permitted.  Designated  areas
    16  shall  include all areas zoned for single-family or multifamily residen-
    17  tial use, and all lots with an existing residential use.
    18    (b) Authorize the creation of at least one accessory dwelling unit per
    19  lot.
    20    (c) Provide reasonable standards for accessory dwelling units that may
    21  include, but are not limited to, height, landscape, architectural review
    22  and maximum size of a unit. In no case shall such standards  unnecessar-
    23  ily impair the creation of accessory dwelling units.
    24    (d) Require accessory dwelling units to comply with the following:
    25    (i)  Such  unit may be rented separate from the primary residence, but
    26  shall not be sold or otherwise conveyed separate from the primary  resi-
    27  dence;
    28    (ii)  Such  unit shall be located on a lot that includes a proposed or
    29  existing residential dwelling;
    30    (iii) Such unit shall not be rented for a term less than thirty  days;
    31  and
    32    (iv) If there is an existing primary dwelling, the total floor area of
    33  an  accessory dwelling unit shall not exceed fifty percent of the exist-
    34  ing primary dwelling, unless such limit would prevent the creation of an
    35  accessory dwelling unit that is no greater than six hundred square feet.
    36    2. A local government shall not establish by  local  law  any  of  the
    37  following:
    38    (a)  In a local government having a population of one million or more,
    39  a minimum square footage requirement  for  an  accessory  dwelling  unit
    40  greater  than two hundred square feet, or in a local government having a
    41  population of less than one million, a minimum square  footage  require-
    42  ment  for  an  accessory dwelling unit that is greater than five hundred
    43  fifty square feet;
    44    (b) A maximum square footage requirement  for  an  accessory  dwelling
    45  unit that is less than fifteen hundred square feet;
    46    (c)  Any other minimum or maximum size for an accessory dwelling unit,
    47  including those based upon a percentage  of  the  proposed  or  existing
    48  primary  dwelling,  or  limits  on  lot coverage, floor area ratio, open
    49  space, and minimum lot size, for a dwelling  that  does  not  permit  at
    50  least  an  eight  hundred square foot accessory dwelling unit with four-
    51  foot side and rear yard setbacks to be constructed  in  compliance  with
    52  other  local  standards.    Notwithstanding  any other provision of this
    53  section, a local government may provide, where a lot contains an  exist-
    54  ing  dwelling,  that  an  accessory  dwelling unit located within and/or
    55  attached to the primary dwelling shall not exceed the buildable envelope
    56  for the existing dwelling, and that an accessory dwelling unit  that  is

        A. 4854--A                          3
 
     1  detached  from  an  existing  dwelling  shall be constructed in the same
     2  location and to the same dimensions as an existing structure, such as  a
     3  garage;
     4    (d) A ceiling height requirement greater than seven feet;
     5    (e)  If  an accessory dwelling unit or a portion thereof is below curb
     6  level, a requirement that more than two feet of such  unit's  height  be
     7  above curb level;
     8    (f) Any requirement that a pathway exist or be constructed in conjunc-
     9  tion with the creation of an accessory dwelling unit;
    10    (g)  Any  setback for an existing dwelling or accessory structure or a
    11  structure constructed in the same location and to the same dimensions as
    12  an existing structure that is converted to an accessory dwelling unit or
    13  to a portion of an accessory dwelling unit, or any setback of more  than
    14  four  feet  from  the  side and rear lot lines for an accessory dwelling
    15  unit that is not converted from an existing structure or a new structure
    16  constructed in the same location and to the same dimensions as an exist-
    17  ing structure; or
    18    (h) Any health or safety requirements on accessory dwelling units that
    19  are not necessary to protect the health and safety of the  occupants  of
    20  such a dwelling. Nothing in this provision shall be construed to prevent
    21  a  local  government  from  requiring that accessory dwelling units are,
    22  where applicable, supported by septic capacity necessary to  meet  state
    23  health, safety, and sanitary standards, and that such units are consist-
    24  ent with the protection of wetlands and watersheds.
    25    3.  No local law for the creation of accessory dwelling units pursuant
    26  to subdivision one of this section shall be considered in  the  applica-
    27  tion of any local policy or program to limit residential growth.
    28    4.  (a) No parking requirement shall be imposed on an accessory dwell-
    29  ing unit, except where no  adjacent  public  street  permits  year-round
    30  on-street  parking  and the accessory dwelling unit is greater than one-
    31  half mile from a subway stop, rail station or bus stop a  local  govern-
    32  ment may require up to one off-street parking space per accessory dwell-
    33  ing unit.  For purposes of this section, an adjacent public street shall
    34  be considered as permitting year-round on-street parking notwithstanding
    35  rules  that  prohibit parking during limited hours or on certain days of
    36  the week.
    37    (b) A local government shall not require that off-street parking spac-
    38  es be replaced if a garage, carport, or  covered  parking  structure  is
    39  demolished in conjunction with the construction of an accessory dwelling
    40  unit  or  converted to an accessory dwelling unit, except where no adja-
    41  cent public street permits year-round on-street parking and the accesso-
    42  ry dwelling unit is greater than one-half mile from a subway stop,  rail
    43  station or bus stop a local government may require the replacement of up
    44  to one off-street parking space.
    45    5.  Notwithstanding  any  local law, a permit application to create an
    46  accessory dwelling unit in conformance  with  the  local  law  shall  be
    47  considered  ministerially  without discretionary review or a hearing. If
    48  there is an existing single-family or multifamily dwelling on  the  lot,
    49  the  permitting  local government shall act on the application to create
    50  an accessory dwelling unit within ninety days from the  date  the  local
    51  agency  receives  a  completed  application  or,  for a permitting local
    52  government having a population of one  million  or  more,  within  sixty
    53  days.  If the permit application to create an accessory dwelling unit is
    54  submitted with a permit application to create a new residential dwelling
    55  on the lot, the permitting local government  may  delay  acting  on  the
    56  permit  application for the accessory dwelling unit until the permitting

        A. 4854--A                          4
 
     1  local government acts on the permit application to create the new dwell-
     2  ing, but the application to create the accessory dwelling unit shall  be
     3  considered  without  discretionary  review  or hearing. If the applicant
     4  requests  a  delay,  the  time period for review shall be tolled for the
     5  period of the delay.  Such review shall include  all  necessary  permits
     6  and approvals including, without limitation, those related to health and
     7  safety.  A  local  government shall not require an additional or amended
     8  certificate of occupancy in connection with an accessory dwelling  unit.
     9  A  local  government may charge a fee not to exceed one thousand dollars
    10  for the reimbursement of the  actual  costs  such  local  agency  incurs
    11  pursuant to this subdivision.
    12    6.  Local governments shall establish an administrative appeal process
    13  for the denial of a permit for accessory dwelling units. When  a  permit
    14  to  create  an  accessory  dwelling unit pursuant to a local law adopted
    15  pursuant to this section is denied, the agency shall issue a  notice  of
    16  denial which shall contain the reason such permit application was denied
    17  and  instructions  on  how  the  applicant  may  appeal such denial. All
    18  appeals shall be submitted to the issuing local government, or any deci-
    19  sional body granting such permits, or any other appellate board or body,
    20  in writing within thirty days of such denial.
    21    7. No other local law, policy, or regulation shall be  the  basis  for
    22  the  denial  of  a  building  permit  or a use permit under this section
    23  except to the extent necessary to protect the health and safety  of  the
    24  occupants  of  an accessory dwelling unit and provided such law, policy,
    25  or regulation is consistent with the requirements of this section.
    26    8. If a local government has an existing accessory dwelling unit ordi-
    27  nance that fails to meet the requirements of this  section,  that  local
    28  law shall be null and void. Such local government shall thereafter apply
    29  the  standards established in this section for the approval of an acces-
    30  sory dwelling unit until such local government adopts a local  law  that
    31  complies  with this section.  Nothing in this article shall be construed
    32  to render an existing dwelling unlawful.
    33    9. The local government shall ensure that accessory dwelling units are
    34  not counted toward the allowable residential density, or any requirement
    35  respecting lot coverage or open space, for the lot upon which the acces-
    36  sory dwelling unit is located under the existing zoning designation  for
    37  such  lot.  The  accessory  dwelling unit shall not be considered in the
    38  application of any local law, policy, or program  to  limit  residential
    39  growth.
    40    10. No provision of the multiple dwelling law shall apply to an acces-
    41  sory  dwelling unit, irrespective of whether such provisions of such law
    42  apply to the primary dwelling, and a dwelling otherwise exempt from  the
    43  provisions  of  the  multiple  dwelling  law  shall  not  fall under the
    44  provisions of such law as a result  of  the  addition  of  an  accessory
    45  dwelling unit.
    46    11. A local government shall not require, as a condition for minister-
    47  ial  approval  of  a permit application for the creation of an accessory
    48  dwelling unit, the correction  of  nonconforming  zoning  conditions  or
    49  minor violations of local law.
    50    12. Where an accessory dwelling unit requires a new or separate utili-
    51  ty connection directly between the accessory dwelling unit and the util-
    52  ity,  the  connection  may  be  subject  to a connection fee or capacity
    53  charge that shall be proportionate to the burden of the proposed  acces-
    54  sory  dwelling  unit,  based  upon  either its size or the number of its
    55  plumbing fixtures upon the water or sewer system.  Such  fee  or  charge
    56  shall   not  exceed  the  reasonable  cost  of  providing  such  utility

        A. 4854--A                          5
 
     1  connection. A local  government  shall  not  impose  any  other  fee  in
     2  connection with an accessory dwelling unit.
     3    13.   A local government may require that a unit in the primary dwell-
     4  ing be owner-occupied in order for an  accessory  dwelling  unit  to  be
     5  lawfully rented.
     6    14. A local government may prohibit the seasonal or vacation rental of
     7  an accessory dwelling unit.
     8    15.  A  local government shall not issue a certificate of occupancy or
     9  its equivalent for an accessory dwelling unit before the  local  govern-
    10  ment issues a certificate of occupancy or its equivalent for the primary
    11  dwelling.
    12    16.  A local government shall adopt a local law pursuant to this arti-
    13  cle within one year of the effective date of this article.  Upon  appli-
    14  cation  to  the  division  and a showing of good cause, the division may
    15  grant a local government one six-month extension of the time to adopt  a
    16  local law pursuant to this article.
    17    §  482.  State  review  and  enforcement.  1. A local government shall
    18  submit a copy of the local law adopted pursuant to section four  hundred
    19  eighty-one of this article to the division within thirty days after such
    20  adoption.
    21    2.  (a)  Within ninety days of receipt of a local government's law, or
    22  ninety days after expiration of the time to submit said local  law,  the
    23  division  shall  submit  written  findings to the local government as to
    24  whether the local government's local law  complies  with  this  article.
    25  Such  findings  shall  include  a  determination as to whether the local
    26  government's local law contains rules that are not reasonable within the
    27  meaning of paragraph (c) of subdivision  one  of  section  four  hundred
    28  eighty-one of this article. If the division finds that the local govern-
    29  ment's  local  law does not comply with this article, the division shall
    30  notify such local government and shall  provide  such  local  government
    31  with  a  reasonable  time, no longer than thirty days, to respond to the
    32  findings before taking any other action authorized under this section.
    33    (b) The local government shall consider the findings made by the divi-
    34  sion pursuant to this subdivision and  shall  amend  the  local  law  to
    35  comply with the findings of the division.
    36    3.  (a)  If,  within thirty days of the local government's response to
    37  the division's findings, or thirty days  after  the  expiration  of  the
    38  local  government's  time  to  respond, the division determines that the
    39  local law does not comply with this article, the division shall:
    40    (i) notify the local government and  the  attorney  general  that  the
    41  local government is in violation of state law; and
    42    (ii)  revise the local laws to comply with this article and direct the
    43  local government to adopt it.
    44    (b) Upon the receipt of the notice of a local  government's  violation
    45  of  this article, the attorney general may bring a special proceeding to
    46  enforce the requirements of this article.
    47    4. The division may review, adopt,  amend,  or  repeal  guidelines  to
    48  implement  uniform  standards or criteria that supplement or clarify the
    49  terms, references, and standards set forth in this article.
    50    5. Within one hundred days of the effective date of this article,  the
    51  division  shall  promulgate  a  model  local  law  that  conforms to the
    52  requirements of this article.
    53    6. The division shall issue an annual report, on or before July  first
    54  of each year, that summarizes:
    55    (a) the activities the division has taken pursuant to this section;
    56    (b) local governments' compliance with the terms of this article; and

        A. 4854--A                          6
 
     1    (c)  the development of accessory dwelling units in the state, includ-
     2  ing but not limited to, information concerning the number  of  accessory
     3  dwelling  units  permitted  and created, the size and characteristics of
     4  such units, and an assessment of the continued obstacles to the develop-
     5  ment of accessory dwelling units.
     6    §  483.  Low  and  moderate  income  homeowners program. 1. Within one
     7  hundred eighty days of the effective date of this article, the  division
     8  shall  establish  a  lending program to assist low-income homeowners and
     9  moderate-income homeowners in securing financing  for  the  creation  of
    10  accessory  dwelling  units, including, without limitation, financing for
    11  design  and  construction,  flood  prevention,  permitting,  and  septic
    12  enhancement.
    13    2.  An  accessory  dwelling  unit financed with the assistance of such
    14  program shall if such assistance is in the form of a repayable  loan  be
    15  offered  for  rent  at a below-market rate for a period of fifteen years
    16  and if any such assistance is in the form of a  forgivable  grant  at  a
    17  below-market rate for a period of no less than thirty years.
    18    3.    An  accessory dwelling unit financed with the assistance of such
    19  program shall not be rented for a term less than one year.
    20    4. The division  shall  promulgate  program  criteria  and  guidelines
    21  necessary to carry out such program.
    22    5.  Such  program  shall  be funded through capital projects appropri-
    23  ations and reappropriations set forth in the state fiscal  year  housing
    24  program.
    25    6.  The division shall issue an annual report, on or before July first
    26  of each year, that includes an itemized list of  each  project  financed
    27  through  the  program, including a brief description of the project, zip
    28  code, and county. Such report shall also summarize the demographic char-
    29  acteristics of participating homeowners, including income, race, ethnic-
    30  ity, and sex.
    31    7. Within one hundred eighty days of the effective date of this  arti-
    32  cle, the division shall establish a program to provide technical assist-
    33  ance  to  all  homeowners  seeking to create an accessory dwelling unit.
    34  Technical assistance shall  include,  without  limitation,  guidance  on
    35  design  and  construction,  flood prevention, permitting, financing, and
    36  septic enhancement.
    37    § 484.  Tenant protections.  1. As used in this section, the following
    38  terms shall have the following meanings:
    39    (a) "Landlord" shall mean any owner, lessor, sublessor,  assignor,  or
    40  other  person receiving or entitled to receive rent for the occupancy of
    41  any accessory dwelling unit or an agent of the foregoing.
    42    (b) "Tenant" shall mean a tenant, sub-tenant,  lessee,  sublessee,  or
    43  assignee of an accessory dwelling unit.
    44    (c)  "Rent" shall mean any consideration, including any bonus, benefit
    45  or  gratuity  demanded  or  received  for  or  in  connection  with  the
    46  possession,  use  or  occupancy  of  an  accessory  dwelling unit or the
    47  execution or transfer of a lease for such unit.
    48    2. A permit application  to  create  an  accessory  dwelling  unit  in
    49  conformance  with a local law adopted under this article shall be accom-
    50  panied by a certification identifying whether the unit was rented  to  a
    51  tenant as of the date of the effective date of this article and the rent
    52  charged  for the unit as of such date, notwithstanding whether the occu-
    53  pancy of such unit was authorized by law. A local government may not use
    54  such certification as the basis for an  enforcement  action  against  an
    55  applicant  concerning  the  unauthorized  habitation  of a unit. Where a
    56  tenant is evicted or otherwise removed from a unit prior to approval  of

        A. 4854--A                          7
 
     1  a  permit  application to create an accessory dwelling unit, such tenant
     2  shall have a right of first refusal to return to the unit upon its first
     3  lawful occupancy as an accessory dwelling unit, notwithstanding  whether
     4  such  prior  occupancy was authorized by law. The division shall promul-
     5  gate regulations governing a tenant's right of first refusal.
     6    3. A landlord shall not, over the course of any  twelve-month  period,
     7  increase  the  rent  charged for an accessory dwelling unit by more than
     8  three percent or one and one-half times the annual percentage change  in
     9  the  consumer price index for the region in which the accessory dwelling
    10  unit is located, as established the August preceding the  calendar  year
    11  in question, whichever is greater. If a permit application to create the
    12  accessory  dwelling  unit included a certification stating that the unit
    13  was rented to a tenant as of the date of  the  effective  date  of  this
    14  article,  any rent increase shall be calculated on the basis of the rent
    15  amount identified in the certification,  subject  to  compounded  annual
    16  increases  no  greater  than three percent or one and one-half times the
    17  annual percentage change in the consumer price index for the  region  in
    18  which  the  accessory dwelling unit is located as established the August
    19  preceding the calendar years in question, whichever is greater.
    20    4. A landlord subject to this section shall, for  any  tenancy  in  an
    21  accessory  dwelling  unit commenced or renewed on or after the effective
    22  date of this article, provide as an addendum to a lease or rental agree-
    23  ment notice of the rent charged in the prior calendar  year  and,  where
    24  applicable,  the  rent charged for the unit as of the date of the effec-
    25  tive date of this article. The division shall  determine  the  form  and
    26  content of such notice.
    27    5. A tenant subject to a rent amount not authorized by this article or
    28  unlawfully denied a right of first refusal under this article shall have
    29  a cause of action in any court of competent jurisdiction for compensato-
    30  ry  and  punitive damages and declaratory and injunctive relief and such
    31  other relief as the court deems necessary in the interests of justice.
    32    § 2. Section 292 of the executive law  is  amended  by  adding  a  new
    33  subdivision 39 to read as follows:
    34    39.  The  term  "housing  accommodation" as used in this article shall
    35  include an accessory dwelling unit as  defined  in  subdivision  one  of
    36  section four hundred eighty of the real property law.
    37    §  3.  Paragraph  (a) of subdivision 1 of section 296 of the executive
    38  law, as separately amended by chapters 8 and 176 of the laws of 2019, is
    39  amended to read as follows:
    40    (a) For an employer or licensing agency, because  of  an  individual's
    41  age,  race,  creed,  color,  national origin, sexual orientation, gender
    42  identity or expression, military status, sex,  disability,  predisposing
    43  genetic characteristics, familial status, marital status, or status as a
    44  victim of domestic violence, to refuse to hire or employ or to bar or to
    45  discharge  from  employment  such  individual or to discriminate against
    46  such individual in compensation or in terms, conditions or privileges of
    47  employment.  In the case of an accessory dwelling  unit  as  defined  in
    48  subdivision one of section four hundred eighty of the real property law,
    49  the  exemption from the provisions of this paragraph for the rental of a
    50  housing accommodation in a  building  which  contains  housing  accommo-
    51  dations  for  not  more  than  two families living independently of each
    52  other, if the owner resides in one of  such  accommodations,  shall  not
    53  apply.
    54    § 4. This act shall take effect immediately.
Go to top