Harriman City Zoning Code
ARTICLE VII
Accessory Apartments
§ 140-42 Intent.
It is the purpose and intent of this article to allow the establishment of one accessory apartment located entirely within a single-family detached dwelling, connected to Orange County Sewer District No. 1 or similar municipally operated sewer district, in order to provide an opportunity for the development of small rental housing units designed to meet the special housing needs of Village residents, including, but not limited to senior citizens, single persons, persons with disabilities and small households.; to ensure the retention of single-family neighborhood character; allow the more efficient use of the Village's housing stock with minimal impact on community character and resources; and provide for public participation by classifying accessory apartments as a special permitted use subject to a site plan review and a public hearing, and provide the potential for economic support for existing resident families.
§ 140-43 Standards and requirements.
A.
Any person may make application to the Village Planning Board for a special use permit to construct an accessory apartment. Such applications shall be subject to site plan approval in accordance with the procedures set forth in the Village Code, Chapter 140, Article VII, § 140-44 (Special permitted uses) and § 140-45 (Site plan approval). The Planning Board is not granted the authority to waive any of the standards set forth below except as specifically provided herein:
(1)
Accessory to the single-family detached dwelling. Subject to the review and approvals set forth herein, an accessory apartment may be approved in the following zoning districts, which permit a single-family detached dwelling as a permitted use: R-100, R-50. R-M and PAD, and for any nonconforming single-family detached dwelling existing as of the effective date of this article in the B-1 and B-2 districts.
(2)
Compliance with district regulations. An accessory apartment is allowed only entirely within a single-family detached dwelling. The lot on which the accessory apartment is to be located shall meet all bulk requirements applicable to a single-family detached dwelling as set forth in the Schedule of District Regulations for the zoning district in which it is located. Preexisting, nonconforming buildings may only be considered for accessory apartment approval if nonconforming lot size, yard setback dimensions, lot coverage, building height, and other applicable bulk requirements are granted zoning variances.
(3)
Dwelling size. The minimum habitable floor area for an accessory apartment shall be 300 square feet. The maximum habitable floor area of an accessory apartment shall not exceed 30% of the gross floor area of the single-family detached dwelling in which it is located or 750 square feet of gross floor area, whichever is less. Any building which proposes an accessory apartment that exceeds the maximum habitable floor area requirement shall be deemed a two-family dwelling. The applicant shall submit a floor plan to scale of the single-family detached dwelling that illustrates the interior space within which the accessory apartment will be created. No accessory apartment shall be considered accessory where such apartment requires a greater area of a lot, or larger setbacks or yards or for which greater restrictions than for the principal use on the lot are imposed by this section.
(4)
Existing single-family detached dwelling. The principal single-family detached dwelling shall have been lawfully constructed and used as a single-family detached dwelling for at least five years prior to the date that an application is made for the creation of an accessory apartment. Evidence of such use shall include the date of a duly issued certificate of occupancy for the single-family detached dwelling or other evidence of use that the Planning Board finds adequate to establish that the single-family detached dwelling has been lawfully established and maintained for at least five years. The Planning Board may waive the five-year requirement upon an evidentiary showing by the applicant establishing that the accessory apartment will enable the owner occupying the principal dwelling to provide care for a relative or the owner-occupant residing in the principal dwelling.
(5)
Owner occupancy required. The principal single-family detached dwelling wherein the accessory apartment is to be located must be occupied, at the time of application and at all times thereafter while the accessory apartment is established and maintained, as the principal domicile of the record owner of title, or if the dwelling is owned by more than one person, by at least one record owner. Ownership shall be evidenced by the last deed recorded in the office of the Clerk of the County of Orange. Evidence that the dwelling is occupied as the principal domicile of such record owner may be established by an affidavit of the record owner, supported by voting records or such competent evidence as would be sufficient to establish domicile for purposes of voting. It shall be a condition of every certificate of occupancy issued for an accessory apartment that occupancy of such dwelling unit is valid only if the unit is located in an owner-occupied, single-family detached dwelling, and the certificate of occupancy shall prominently display in bold print a statement that occupancy of such accessory apartment is not lawful and valid unless the single-family detached dwelling is owner-occupied. In the event a certificate of occupancy is issued without such statement, it shall not prevent enforcement of the condition. Nothing herein shall permit the establishment of separate ownership, e.g., condominium, of either dwelling unit.
(6)
Maximum number of accessory apartments. There shall be no more than one accessory apartment in any single-family detached dwelling.
(7)
The accessory apartment shall comply with all applicable requirements of the New York State Uniform Fire Prevention and Building Code and shall be maintained in a sanitary, neat and orderly manner.
(8)
Off-street parking shall be provided on the following basis: minimum one parking space per accessory apartment unit, in addition to the minimum spaces required for the principal dwelling unit.
(9)
No accessory building, structure or use and no home occupation shall be permitted in or to an accessory apartment.
(10)
Each dwelling unit in the structure shall contain its own separate and independent bathroom and kitchen entirely located within each dwelling unit. The accessory apartment shall contain no more than one bedroom and no other space shall, in the determination of the Planning Board, be so configured that it could be used as a second bedroom (e.g., a den, a sewing room, etc.).
(11)
No exterior changes or expansion which may alter its existing foundation, existing roofline, or existing facade may be made to the principal single-family detached dwelling except for the installation of an entrance to serve the accessory apartment. The structure in which the accessory apartment is located shall have only one front entrance. An exterior entrance leading to a foyer with interior entrances leading from the foyer to the dwelling units will be acceptable pursuant to this requirement.
B.
Conditions of approval.
(1)
In addition to the above standards, the Planning Board shall grant such application and issue the required accessory apartment permit only in accordance with the standards, criteria and procedures in § 140-44 (Special permitted uses) and § 140-45 (Site plan approval) of the Village Code, except as may otherwise be provided in this article.
(2)
Upon the granting of a special use permit by the Planning Board, the Secretary of said board shall transmit written approval of such use to the Code Enforcement Officer prior to his issuance of a building permit for the accessory apartment.
(3)
It shall be a condition of the accessory apartment permit, whether or not specifically incorporated therein, that the owner shall maintain the accessory apartment use in conformance with the requirements of this section and all applicable provisions of the Uniform Fire Prevention and Building Code, including, but not limited to, the Property Maintenance Code of New York State.
C.
Inspections. The Building Inspector, or a duly authorized designee of the Building Inspector, may perform a fire, safety and property maintenance inspection of the accessory apartment at regular periodic inspection intervals established for residential properties, or upon the request of the owner of the property to be inspected or an authorized agent of such owner or the occupant.
D.
Permit renewals and revocations.
(1)
The provisions of § 140-44C of the Village Code, providing for renewals of approvals for special permitted uses, shall be inapplicable to accessory apartments.
(2)
The accessory apartment permit shall be valid for a period of one year from the date that a certificate of occupancy is issued for the accessory apartment and shall be renewed for additional one-year periods in accordance with this section.
(3)
The Planning Board shall notify the Code Enforcement Officer and the property owner in writing at least 21 days prior to the date of such renewal for the purpose of inspection of the premises. Such renewal shall be granted following due notice to the property owners upon submission to the Planning Board by the record owner of a certification for renewal on a form to be provided by the Village, attesting that the principal single-family detached dwelling is maintained as the owner's domicile; and payment of a renewal fee, in such amount as established by resolution of the Village Board. A certification for renewal is subject to an inspection by the Building Inspector as established for rental dwelling units (whether rent is collected or not) and a determination by the Building Inspector that such use has been maintained in accordance with all requirements herein and any applicable conditions of approval.
(4)
Renewal.
(a)
Renewal shall be approved upon compliance with the requirements of Subsection C, above, and may be withheld:
[1]
Upon a determination by the Code Enforcement Officer to the effect that such conditions as may have been prescribed by the Planning Board in conjunction with the issuance of the original approval or that any of the requirements of this article have not been or are no longer being complied with;
[2]
In such cases, a period of 60 days shall be granted the applicant for full compliance prior to the revocation of said approval.
(b)
Any use authorized by the Planning Board shall be deemed to be a conforming use in the district in which such use is located, provided that:
(5)
Upon granting renewal of this special use permit, the Planning Board may modify the conditions previously attached to this special permit based upon the report of the Code Enforcement Officer or based upon a request of the applicant or upon the Board's own application. No conditions may be modified without giving the applicant an opportunity to be heard before the Planning Board.
(6)
If the Building Inspector determines at any time after a permit is issued or renewed that the use has not been maintained in accordance with the requirements herein or any applicable conditions of approval, the Building Inspector shall issue a compliance order pursuant to § 78-15 of the Village Code. If the violation(s) is/are not timely remedied as required by such order, the building inspector shall notify the Planning Board of such noncompliance. In such event, the Planning Board shall make the final determination whether the permit shall be revoked or renewed. The Planning Board shall consider the Building Inspector's findings in evaluating whether to revoke or renew the accessory apartment permit; and if it determines that it intends to revoke the permit or deny such renewal or to impose additional conditions on such renewal, the Planning Board shall give written notice of its intent to the record owner at the most recent address shown on the tax roll of the Village, and provide an opportunity for the record owner to be heard on the matter, and shall consider any evidence submitted by the record owner in support of the renewal or continuation of the accessory apartment permit. The Planning Board shall thereafter approve, approve with conditions, deny or revoke the accessory apartment permit, stating the reasons for its decision. Nothing herein shall limit or prevent the Building Inspector from proceeding under and enforcing any other provision of the Village Code, including, but not limited to, § 78-9 (Unsafe buildings and structures), § 78-11 (Firesafety and property maintenance inspections) and § 78-15 (Enforcement; penalties for offenses).
(7)
Effect of revocation or denial of renewal. In the event of a final determination by the Planning Board to revoke a permit or deny the renewal, the Planning Board shall direct that the accessory apartment created pursuant to this section be vacated, its use as an accessory apartment created pursuant to this section be discontinued, and that all improvements installed to allow its use as an accessory apartment be removed.
E.
Transfer of title. Upon the transfer of title to the property, a permit for an accessory apartment may be transferred if the new owner(s) files an application with the Planning Board, with a copy to the Building Inspector, for a transfer of the permit within 60 days of the closing of title, and the main dwelling will be or is the principal residence of the new owner upon sale. In the event of the death of the owner-occupant, the permit shall remain valid for a period of 12 months from the date of death, after which it shall expire unless an application is filed within said twelve-month period that complies with the requirements of this section. For purposes of this Subsection E, the time within which to file an application shall be referred to as the application period. As part of the application the applicant shall agree and acknowledge, in writing, to the Village of Harriman the understanding that the Building Inspector is authorized to conduct a site visit to verify that the accessory apartment is in compliance with the conditions of the accessory apartment permit issued for the property. The new record owner shall provide such evidence to the Building Inspector as may be necessary to demonstrate that the principal residential structure is occupied by the new record owner in accordance with § 140-43A(5) of this section. In the event that the new record owner fails to do so, the Building Inspector shall serve a written notice upon the owner or occupant to do so by a date certain. A current permit will be null and void at the expiration of the application period, or at the expiration of such date certain provided by the Building Inspector, where a transfer of ownership has occurred without the required application for a transfer of a permit having been timely filed. In such event the Building Inspector shall provide written notice to the new owner and to the Planning Board that the permit is null and void. In the event an application for a transfer of an accessory apartment permit has not been filed by the new owner(s) in violation of this article, there shall be a presumption that an accessory apartment is being operated, used, rented, leased and/or maintained by the new owner(s) in violation of law. The effect of, and the procedures for, the failure to timely submit an application, rendering the permit null and void, shall be the same as provided in § 140-43.