Tuesday, April 07, 2020

I recently attended a town board meeting in upstate New York where one of the main topics of discussion was the question of whether or not to repeal the accessory-apartment law entirely or to modify it with the intention of closing the loopholes that have led to claims that many people who currently seek building permits for accessory apartments do so in violation of the original intent of the law.

Originally, the town, which had far fewer people when this zoning provision was enacted, had written the law with the beneficent aim of making it possible for townsfolk of limited income to afford to remain in their homes by building an accessory apartment onto their current single-family detached residence located in a one-family residential district. The accessory apartment would be a small rental unit, for a single person or a couple, and would provide a means of income for existing resident families, thus enabling the family—perhaps a retired couple—to be able to afford to remain in their hometown.

The current law provides that no more than one accessory apartment may exist in each one-family detached residence on a given lot. Accessory apartments may not contain more than two bedrooms and must have their own bathroom and kitchen; two parking spaces per unit must be provided. No commercial or home office activity is permitted in the accessory apartment.

The owner of the one-family detached residence must occupy at least one of the units on the premises and must live on the premises for more than six consecutive months of each calendar year. Failing this, the accessory apartment permit would become null and void and the premises would revert to the permitted use prior to the issuance of the accessory apartment permit. The accessory-apartment permit would terminate upon the death of the owner or if an owner no longer uses the premises as his/her primary residence. If the premises are sold then the new owner must apply for a new permit for an existing accessory apartment within one month of taking title to the property.

Foreshadowing concerns to come, in considering applications for accessory apartments, the building inspector must determine that, if the septic system and/or well is on site, adequate water and/or sewer capacity exists on site to meet applicable Health Department standards. (Water and septic could also be provided by central sewage and water facilities.) Not mentioned in the law, but of grave current concern, is the town’s lack of a tree code, which would regulate clear-cutting, encourage soil conservation and curb flooding and runoffs caused by overbuilding.

But the small town that enacted these provisions 25 years ago has changed. There has been an enormous population influx and one of the town’s sewage systems is nearing capacity. A chicken-processing plant has loaded the sewage system with chicken parts and unacceptable levels of salt, polluting one of the rivers. Traffic volume has increased. Potable water is becoming harder to find. House prices have risen.

Historically, there have not been many requests for the accessory apartments—perhaps five per year. Until now, this has not been burdensome for the town. However, in the past few years, requests for the building inspector to issue permits have risen and the town supervisor estimates that 2016 is on track to see about 33 new permit requests. Considering that hundreds of new homes are in the process of being permitted and built in the town in order to accommodate the projected population increase, the demand for accessory apartments is projected to increase as well. This increased demand is tied to abuses of the accessory-apartment law as builders seek to build what amount to two-family homes in areas zoned solely for single-family homes. This is accomplished by building accessory apartments that are much larger than the two-bedroom, one-bathroom homes mandated in the current building code, a code that does not limit square footage. Another reason for this activity is that people who are buying newly constructed single-family homes are demanding that accessory apartments be built onto these homes so that the apartments can be rented out in order to help pay the mortgage on the primary residence. Some of the people who are applying to build the accessory apartments will not even live in the single-family homes—in fact, some people own several homes and have applied for the accessory apartments in violation of the law’s provision that the owner of the accessory apartment must live in the single-family home to which the apartment is attached. Furthermore, examination of the permit applications discloses that these apartments are not necessarily being built for people of limited means: One permit that I have seen requests an “apartment” whose construction costs will exceed one million dollars! And will this “apartment” be occupied by the single person or couple envisioned in the law? Absolutely not: It will be built for a large family, thus creating a two-family home on a plot zoned solely for one-family homes. Clearly, the law must be repealed, tightened or entirely rewritten to put an end to these abuses.

What is the town to do? It has been proposed that accessory-apartment permits be granted only to existing residents who have lived in the town for a long time—perhaps 12 or 15 years, at least. Proof of limited income might be required before building permits are issued. There has been discussion of how much square footage per apartment should be permitted: At the town meeting, one townsperson suggested as little as 200–400 square feet while another suggested a cap of 1,000 square feet. Clearly, the intent is to prohibit the accessory apartments from being so large as to accommodate not the originally intended single person or couple but a larger family, thus in fact turning the single-family zoned home into a two-family home in a one-family zone. If this abuse continues then the impact upon the environment would be horrendous and would threaten the sustainability of life for the town’s residents, newcomers and people in nearby areas alike.

Why is this matter of particular concern to readers of the Jewish Link? The huge population influx in this particular upstate town is largely due to the migration of a Jewish sect from New York City that has proposed to annex almost 700 acres of town land onto their village so that they can change the zoning and build dense, multi-family housing, with projected devastating environmental impact. The annexation matters are wending their way through the courts; in the meantime, the town struggles to accommodate the burgeoning population while protecting the way of life that the town’s residents desire. Stay tuned for further developments…

By Vivian J. Oleen, Associate Broker, Sopher Realty

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