Are Basement and Garage Apartments Coming to New York City?

Are Basement and Garage Apartments Coming to New York City?   

Less than a week ago, Governor Hochul and Mayor Adams jointly released a comprehensive policy agenda document to move New York’s economy forward in an equitable manner.  One of the policy items promoted to make housing more affordable is to allow accessory dwelling units (“ADUs”) - an idea taking hold in communities across the country.  The goal is to help alleviate the State’s housing shortage by creating tens of thousands of new, affordable homes while giving homeowners the opportunity to earn new sources of income. New York City’s housing shortage is also directly linked to the 30 percent increase of households in homeless shelters over the past decade.  In recent years, states like California have passed similar ADU laws with support from housing and tenant advocates, homeowners, civil rights groups, and local civic leaders. ADUs advocates state that they offer a path to increase apartment supply while respecting the existing neighborhood context.  In zoning districts that are limited to one- and two-family homes, the passage would allow more dwelling units per tax lot than is currently allowed today under the New York City Zoning Resolution (“ZR”).  

What are ADU’s exactly? 

ADUs are smaller dwelling units on the same lot as a primary dwelling unit.  ADUs are independently habitable and provide the basic requirements of shelter, heating, cooking, and sanitation. ADUs can take many forms: a garage conversion, a basement apartment, or a converted attic. Because they would be encouraged within existing structures (and a resultant lower cost of construction), ADUs are intended to be more cost effective for homeowners and less likely to change a neighborhood’s character. Existing state and local rules often make it impossible or too costly for a homeowner to create an ADU and earn the income that comes with a new rental. And those ADUs that do exist are too-often unregulated and unsafe, leaving tenants without the protections they deserve and homeowners vulnerable to substantial fines.  

The proposed New York State Accessory Homes Act 

We expect that within her upcoming 2023 State of the State Address, the Governor will encourage the State legislature to adopt the New York State Accessory Homes Act (S4547A, A4854A) and then sign it into law. Localities would then be required to adopt ADU ordinances within one year of enactment and submit them to the Department of Homes and Community Renewal (DHCR).  As the policies specified within this draft legislation are undoubtedly controversial – particularly with respect to off-street parking requirements, some or all of these provisions may not survive.  Nevertheless, if adopted in its present form, the bill would include, but not limited to, the following:  

The bill directs localities to adopt local ADU ordinances that:  

• Allow one (1) ADUs per lots zoned for residential use on an as-of-right basis;  
•  Provide that ADUs can be rented separately from the primary-residence but cannot be separately sold;  
• Require that ADUs are rented for a term no less than 30 days;   
• Establish that only homeowners that occupy a unit in the primary dwelling may create an ADU, and that the homeowner must continue to occupy the primary dwelling for at least one year after creating an ADU;  
• Empower localities to set reasonable standards for ADUs, including for height, landscaping, architectural review, and the minimum and maximum size of a unit (but no minimum greater than 200 sf and no maximum less than 1,500 sf); and 
• Ensure that localities can impose fire or safety requirements to protect the health and safety of tenants.   

 What’s really likely to be controversial – especially in NYC? 

• Parking 
  • For locations within ½ mile from mass transit, no parking would be required for a new ADU and that an existing garage may be converted to an ADU without building a replacement parking structure. Effectively two parking spaces ordinarily required would be waived in one fell swoop if the homeowner converts their garage to an ADU.  
• Cellar ADU’s: Too little light and risk of fire and flood?  
  • ADU’s would be allowed in a cellar where more than half the apartment is more than 50% below ground.  One of the proposed requirements is that a cellar ADU must be greater than 2 feet above street level (and the remainder can be below ground) – a condition that would seem to preclude NYC Building Code-compliant street-facing windows, hamper Fire Department access and make the units susceptible to street flooding.   

Will NIMBYs become YIMBYs and embrace ADUs?   

Since the 1980’s, New York City has rezoned substantial portions of low- and medium-density neighborhoods to preserve neighborhood character.  Nearly every housing type conceivable has its own zoning district ranging from narrow rowhouses with curb cut prohibitions to detached single-family homes.  In many cases, lower-density districts that allowed a wide mix of housing types, such as garden apartments intermingled with detached homes, have been rezoned to only allow a specific housing type with a maximum of one or two units per lot.  As a result of these rezonings, civic groups and community boards are typically very well-versed with their perceptions of existing neighborhood character and could make the proposed bill unpopular.  Similarly, while the proposed parking relaxations result from a broad consensus among policy makers that automobiles are harmful to the environment, many residents who continue to rely on their car will likely disagree.  Given the state and city’s acute housing crisis, the proposal is laudable as solutions will need to come from many sources – and ADUs can be part of that mix.