[Adopted 6-20-1995 as L.L. No. 14-1995[1] ]
[1]
Editor's Note: This local law also repealed
former Art. II, Two-Family Dwellings in Single-Family Districts, adopted
11-20-1979 by L.L. No. 9-1979, amended in its entirety 9-15-1992 by
L.L. No. 8-1992.
A.
This article is to amend the existing Town ordinances
and regulations which do not address the illegal accessory apartments
situation. Records on file indicated that there are numerous illegal
accessory apartments in the Town. The Planning Department estimates
that between 10% and 20% of what seemingly are one-family dwellings
are really one-family dwellings with accessory apartments. It is to
be noted that economic reasons are causing many one-family homeowners
to add accessory apartments to their one-family dwellings.
B.
It is the purpose of this article to encourage the
residents of our community who require accessory apartments to legally
remain in the Town of Babylon. In addition, this article will provide
for the improved safety and physical appearance of the one-family
dwellings with accessory apartments and the surrounding neighborhoods.
Its purpose is also to further preserve the one-family residential
character of the Town and to continue to protect the health, welfare
and safety of the general public.
C.
It is the intent that any approved accessory apartment
permits be for owner-occupied homes since the Division of Building
in the Department of Planning and Development has found that absentee-landlord
two-family homes disproportionately make up 50% of all two-family
home building complaints received, even though only 10% of the two-family
homes are owned by absentee landlords.
D.
It is further recognized that many holders of accessory
kitchen permits have legally converted their homes to one-family dwellings
with accessory apartments. It is therefore necessary to review all
such applications for the purpose of determining the true intent of
the applicant and to regulate the use of the premises.
[Amended 7-16-2002 by L.L. No. 17-2002]
As used in this chapter, the following terms
shall have the meanings indicated:
An additional self-contained dwelling unit which is incorporated
within a one-family dwelling.
A one-family dwelling which has more than one cooking area,
but which contains only one dwelling unit.
That space of a building that is partly below grade, which
has more than half its height, measured from floor to ceiling, above
the average established curb level or finished grade of the ground
adjoining the building.
That space of a building that is partly or entirely below
grade, which has more than half of its height, measured from floor
to ceiling, below the average established curb level or finished grade
of the ground adjoining the building.
An area of a building designated for and/or occupied as a
home or residence containing not more than one cooking area.
A single person or collective group of persons related by
kinship, adoption, blood or marriage, or the functional and factual
equivalent of a natural family, living together under the same roof
and cooking together as a single housekeeping unit in a common household
whose relation is of a permanent and distinct domestic character.
The "functional and factual equivalent of a natural family" is hereby
defined as a single housekeeping unit bearing the generic character
of a family unit as a relatively permanent household, not a framework
for transients or transient living, leading a stable, nonprofit, family-like
existence, headed by a householder as one would likely find in a biologically
unitary family; in every sense but a biological one it must function
as a stable, single-family unit, albeit occasionally changing in composition
as a natural family might and does.
Any residence without an accessory apartment permit or accessory
kitchen permit that may contain any combination of two or more cooking
areas and/or two or more distinct dwelling units being accessible
by separate doors in a home possessing a certificate of occupancy
for a one-family dwelling.
A natural person who uses the premises as his/her principal
residence.
A natural person who is an owner in fee simple or of a life
estate of at least an undivided fifty-percent interest in the premises
as recorded in the office of the Suffolk County Clerk or Suffolk County
Registrar, as applicable.
[Amended 1-24-2012 by L.L. No. 2-2012]
A building designed for and legally occupied exclusively
as a home or residence for two families. It includes two legally defined
dwelling units.
[Amended 7-9-1996 by L.L. No. 14-1996; 12-22-1998 by L.L. No.
15-1998; 10-7-2003 by L.L. No. 23-2003]
The Two-Family Review Board created by L. L.
No. 9-1979, adopted November 20, 1979, and amended by L. L. No 8-1992
on September 15, 1992, is now known as the "Accessory Apartment Review
Board" and shall consist of nine members who shall be appointed by
and serve at the pleasure of the Town Board. The nine-member Accessory
Apartment Review Board (sometimes referred to in this article as the
"Board") shall henceforth hear all accessory apartment permit applications
and renewal of accessory kitchen permit applications and make a final
determination as to whether the applicant should be granted any such
permit. It shall be a violation to have an accessory kitchen in any
premises without a permit or with an expired permit.
A.
Before such approval shall be given, the Board shall
determine:
(1)
That the use will not prevent the orderly and reasonable
use of adjacent properties or of properties in adjacent use districts.
(2)
That the use will not prevent the orderly and reasonable
use of permitted or legally established uses in the district wherein
the proposed use is to be located or of permitted or legally established
uses in adjacent use districts.
(3)
That the safety, the health, the welfare, the comfort,
the convenience or the order of the Town will not be adversely affected
by the proposed use and its location.
(4)
That the use will be in harmony with and promote that
general purpose and intent of this article.
B.
In making such determination, the Board shall also
give consideration, among other things, to:
(1)
The character of the existing and probable development
of uses in the district and the peculiar suitability of such districts
for the location of any of such permissive uses.
(2)
The conservation of property values and the encouragement
of the most appropriate uses of land.
(3)
The effect that the location of the proposed use may
have upon the creation or undue increase of vehicular traffic congestion
on public streets or highways.
(4)
The necessity for space for the purpose of off-street
parking of vehicles incidental to the use, and whether such space
is reasonably adequate and appropriate and can be furnished by the
owner of the plot sought to be used within or adjacent to the plot
wherein the use shall be had.
(5)
Whether the use or the structures to be used therefor
will cause an overcrowding of the land or undue concentration of population.
(6)
Whether the plot area is sufficient, appropriate and
adequate for the use and the reasonably anticipated operation and
expansion thereof.
C.
The Board shall, in authorizing such permissive uses,
impose such conditions and safeguards as it may deem appropriate,
necessary or desirable to preserve and protect the spirit and objectives
of this article.
D.
No new permits for accessory kitchens shall be granted.
Notwithstanding the foregoing, the Board, in determining whether a
permit for an accessory kitchen should be renewed, shall consider
the likelihood and feasibility of illegally converting the dwelling
to a one-family dwelling with an accessory apartment.
[Amended 2-8-2005 by L.L. No. 2-2005]
A.
The special permits under this article can be granted
by the Board for a minimum of a two-year period and a maximum of a
three-year period. At least 90 days prior to the expiration of the
permit period, the applicant may apply for a renewal of the permit.
The Board, in its discretion, may refuse to renew a permit where there
are any violations by the applicant of the Town Code relating to the
permits herein. Additionally, the Board may alter or revise the criteria,
conditions or restrictions of a previously issued permit.
C.
Notwithstanding the foregoing, a permit may be transferred
to a purchaser of the dwelling within 30 days of transfer of title
of the property, provided that the purchaser executes and submits
to the Commissioner of Planning and Development the following legal
documents and information:
D.
Upon payment of the required fee and fulfillment of
the above requirements, the permit shall be transferred for a term
commencing from the date of conveyance of title and expiring three
years thereafter.
E.
The purchaser shall thereafter submit to the Commissioner
of Planning and Development a copy of the recorded deed with liber
and page of the Suffolk County Clerk within six months of application.
Failure to submit a copy of the recorded deed may render the transfer
of the permit null and void.
F.
All permits granted under this article may be revoked
by the Board upon application of the Town Attorney’s office
for any of the following reasons:
[Added 8-9-2005 by L.L. No. 22-2005]
(1)
Failure to maintain the necessary requirements as
outlined in this article, or occurrence of unlawful activities at
or about the premises;
(2)
There is fighting or violent, tumultuous or threatening
behavior by any occupant of the premises as determined by the Board;
(3)
There is unreasonable noise from the premises on a
regular basis as determined by the Board;
(4)
There are repeated calls to the police for disturbances
and/or disputes at the premises;
(5)
There is obstruction of vehicular or pedestrian traffic
due to vehicles from or at the premises;
(6)
There is a hazardous or physically offensive condition
created by an act of an occupant of the premises;
(7)
For existing violations of the Babylon Town Code on
the premises;
(8)
When violations of any state or local law exist on
the premises;
(9)
Any other reason where the Board finds it is in the
best interest of the community to revoke the permit due to health,
welfare and safety concerns.
[Amended 7-9-1996 by L.L. No. 14-1996]
A.
A public hearing shall be held for every new application
for a special permit for an accessory apartment. The Board shall fix
a time and give public notice thereof by the publication in the official
newspaper of such hearing at least five days prior to the date of
the public hearing. The applicant may appear in person or by an authorized
agent at the hearing. The agent need not be an attorney at law. The
applicant's agent shall be appointed by the applicant through a limited
power of attorney upon a form to be provided to the applicant by the
Town and submitted to the Board prior to the commencement of the hearing.
B.
If there have been no Town Code violations or complaints
by the applicant's neighbors relating to the permit granted herein
during the permit period, a renewal applicant shall not be required
to appear at a public hearing, provided that he shall file an affidavit
with the Board stating that he has in all respects been in compliance
with the Town Code during the permit period. If there has been a Town
Code violation by the applicant and/or complaints by the applicant's
neighbors made to the Town relating to the permits granted under this
article, a renewal applicant may be required to appear in person at
a public hearing upon request by the Board. If, in the event the Board
shall request a public hearing, a notice of hearing shall be forwarded
by mail to adjacent property owners and persons who have lodged signed
complaints.
A.
Subject property is to be posted for a period of not
less than 10 days immediately preceding the public hearing or an adjourned
date thereof.
B.
The posting of signs on subject property shall be
made in the following manner:
(1)
The petitioner shall erect on the affected property
a sign or signs of blue printing on a white background, measuring
30 inches high and 40 inches wide, which shall be prominently displayed
on the premises facing each public street, maximum spacing of 200
feet on center, on which the affected property abuts, set back not
less than 10 feet from the property line, and shall not be less than
two feet nor more than six feet above the grade of the property line,
giving notice that the application for special permit for an accessory
apartment is pending and the date, time and place when the public
hearing will be held.
(2)
An affidavit is to be filed not later than 48 hours
prior to the public hearing on the petition stating that identical
posters not more than 200 feet apart have been conspicuously posted
along the street frontage at least 10 days prior to the date set for
the public hearing.
C.
Applicants for renewal of the permit provided for pursuant to this article shall not be required to post a sign on the property pursuant to § 153-17A, herein nor shall the applicant for renewal be required to file the affidavit of posting provided for in § 153-17B(2) and as further required by § 153-19 herein.
In order to be granted a special permit for
an accessory apartment, the following criteria and requirements must
be met:
A.
The dwelling must be owner-occupied. No accessory
apartment permit shall be awarded to an applicant where the same individual
or individuals appear as the owner or co-owner of any interest in
any other dwelling in the Town of Babylon that has been granted an
accessory apartment permit.
B.
The dwelling must have adequate on-site parking spaces
per dwelling unit. The parking spaces must be paved with asphalt,
concrete or other suitable material of a permanent nature as may be
approved by the Board. The Board may waive these requirements if it
finds these requirements not to be feasible and upon the recommendation
of the Commissioner of Planning and Development.
C.
The owner-occupant may reside in the accessory apartment.
D.
Each dwelling unit must have a minimum of 350 habitable
square feet. One of the dwelling units shall be limited in size to
a total of three rooms, not including a kitchen, a living room or
bathrooms. No rental unit may be contained in any building or structure
other than the main dwelling. No part of the rental unit may be contained
in the cellar. This section shall apply to all new accessory apartment
applications and all pending accessory apartment applications not
yet decided by the Board and shall not apply to renewal applications
and transfer applications.
[Amended 9-2-2003 by L.L. No. 17-2003; 10-7-2003 by L.L. No.
23-2003]
E.
The dwelling shall have only one front entrance; all
other entrances will be on the side or in the rear of the dwelling.
However, this requirement may be waived by the Commissioner of Planning
and Development or his designee if, in his discretion, he determines
that the additional door is in existence and is in keeping with the
general character of the area. An entrance leading to a foyer, with
entrances leading from the foyer to the two dwelling units, will be
acceptable. The Board may waive these requirements if it finds them
not to be feasible and upon recommendation of the Commissioner of
Planning and Development.
F.
The dwelling must comply with all requirements of
the New York State Building Code[1] and all the laws and housing regulations of the State
of New York and the Town of Babylon relating to the permits granted
hereunder and be maintained in a neat and orderly manner.
G.
The applicant will be required to file a form stating
that the subject dwelling shall meet with all New York State Building
Code requirements and all Town of Babylon requirements pertaining
to accessory apartments. The applicant will be required to meet these
standards within a time period stipulated by the Accessory Apartment
Review Board or the permit will become null and void and of no further
force or effect.
H.
No application shall be approved for an accessory
apartment permit pursuant to this article for a period of three years
from the issuance of a certificate of occupancy for the dwelling.
I.
Any property
which is owned wholly or partially by any entity other than a natural
person is required to obtain a rental permit, even if a natural person
owns an undivided fifty-percent interest in the premises as recorded
in the office of the Suffolk County Clerk or Suffolk County Registrar,
as applicable.
[Added 1-24-2012 by L.L. No. 2-2012]
The applicant must file with the Department
of Planning and Development Building Division the following items
in triplicate:
A.
Application to the Review Board.
B.
Floor plans (1/4 inch to one foot minimum scale).
C.
Property survey (40 feet to one inch minimum scale).
D.
Full disclosure affidavit.
E.
Notification of abutting property owners form.
F.
Copy of recorded deed or copy of certificate of title
(as applicable).
G.
Proof of residency.
H.
Personal identification.
Fees shall be set by the Town Board and modified
from time to time. In addition to any rights and remedies provided
by law, a late charge of $50 is imposed for any renewal permit fee
not paid within 30 days after the expiration of a permit herein.
[Amended 7-16-2002 by L.L. No. 17-2002; 9-2-2003 by L.L. No. 17-2003; 10-7-2003 by L.L. No. 23-2003; 4-27-2022 by L.L. No. 10-2022; 12-20-2023 by L.L. No. 25-2023]
A first offense based on a violation of this
article shall be punishable by a fine of not less than $500 and not
more than $1,500 imposed or imprisonment for a period not to exceed
six months, or both. A second offense based on a violation of this
article committed within five years of the first offense shall be
punishable as a misdemeanor and by a fine of not less than $1,000
and not more than $2,000 or imprisonment for a period not to exceed
one year, or both. A third or subsequent offense based on a violation
of this article committed within five years of the first offense shall
be punishable as a misdemeanor and by a fine of not less than $1,500
and not more than $2,500 or imprisonment for a period not to exceed
one year, or both. Any person or entity found by the Bureau of Administrative
Adjudication to have violated this article shall likewise be subject
to a monetary penalty in an amount within the range of fines authorized
herein for a first offense and subsequent offenses.
The Commissioner of Planning and Development
of the Town of Babylon or his designated representative is authorized
to make or cause to be made inspections to determine the condition
of dwellings and to safeguard the health, safety, morals and welfare
of the public. The Commissioner or his designated representative is
authorized to enter, upon the consent of the owner, any dwelling,
dwelling unit, rooming house, rooming unit or premises at any reasonable
time during daylight hours or at such other time as may be necessary
in an emergency without consent of the owner for the purpose of performing
his duties under this article.
The Commissioner of Planning and Development
of the Town of Babylon or his designated representative is authorized
to make application to the District Court of Suffolk County for the
issuance of a search warrant in order to conduct an inspection of
any premises covered by this article where the owner refuses or fails
to allow an inspection of the rental premises and where there is reasonable
cause to believe that a violation of this article has occurred. The
application for a search warrant shall in all respects comply with
the applicable laws of the State of New York.
Nothing in the article, except for provisions
concerning emergency inspections, shall be deemed to authorize the
Commissioner of Planning and Development of the Town of Babylon or
his authorized representative to conduct an inspection of any premises
subject to this article without the consent of the owner of the premises
and without a warrant duly issued by an appropriate court.
The Accessory Apartment Review Board shall have
the power to interpret and implement the provisions of this article.
Decisions of the Accessory Apartment Review
Board may be appealed to the Supreme Court of the State of New York
pursuant to Article 78 of the Civil Practice Law and Rules. This shall
be the exclusive remedy of any aggrieved party.
[Amended 7-9-1996 by L.L. No. 14-1996]
A.
All special permits previously approved by the former
Two-Family Review Board shall continue in full force for the term
specified in such permit and are renewable and transferable pursuant
to the provisions of this article.
B.
All special permits previously required and previously
referred to as "temporary two-family permits" and "second kitchen
family uses permits" shall henceforth be known as "accessory apartment
permits" and "accessory kitchen permits."
C.
All accessory kitchen permits previously required
and previously granted may be renewed pursuant to the provisions of
this article.
