Lindenhurst City Zoning Code
ARTICLE XX
Two-Family Residence
§ 193-196 Purpose.
This Article is intended to amend the existing Village ordinances and regulations which do not adequately address the existence of illegal two-family dwellings within the Incorporated Village of Lindenhurst. It is the purpose of this article to encourage the residents of the Village of Lindenhurst who require two-family homes to legalize the existence of such homes. Further, this article intends to provide for the safety and appearance of two-family homes and surrounding neighborhoods. Its purpose is to further preserve the single-family residential character of the Village and to protect the health, safety and welfare of the general public. Moreover, this article will regulate through a permit system the maintenance of two-family dwellings, requiring such homes to be owner-occupied, thereby curbing the existence of absentee landlord situations. It is also the intent of this article to establish a permit system for those wishing to maintain a single-family home with a second kitchen since it is recognized that the unregulated use of second kitchens has resulted in the conversion of such homes to two-family residences.
§ 193-197 Definitions.
As used in this article, the following terms shall have the meanings indicated:
The person who, personally or through another, makes the application for the temporary two-family permit. Such "applicant" must be the owner of the premises under consideration for such permit, must be a "resident" of the premises at the time of the application and continue to be a resident of such premises for the duration of the permit, or such permit shall be deemed null and void. In the case of newly constructed dormers or extensions built without prior approval for use as a two-family residence, such applicant must reside in said premises for a minimum of five years in order to become eligible for a two-family use permit. New dwellings with certificates of occupancy issued after January 1, 2008 shall be ineligible for a two-family permit.
[Amended 2-5-2008 by L.L. No. 1-2008]
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 adjoining the building.
An area or a building designated for and occupied exclusively as a home or residence for not more than one family.
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 a two-family permit that may contain any combination of two or more cooking areas and/or two or more bathrooms and/or two or more distinct dwelling units being accessible by separate doors, in a home possessing a certificate of occupancy for a single-family dwelling.
Any area, room, section of a house, building or structure which contains any two or more of the following shall establish some evidence of a kitchen and any area, room, section of a house, building or structure which contains any three or more of the following shall presumptively be determined to be a kitchen:
A device capable of maintaining and/or preserving food at a cold temperature, including but not limited to a refrigerator of any style or type, a refrigerator/freezer, an icebox or a cooler.
Wall cabinets or floor cabinets storing or capable of storing cutlery, dishes, pots, pans and groceries.
What is known in the trade as "kitchen countertops or counters."
Any device, structure or utensil capable of heating and/or cooking food or liquids, including but not limited to an oven, stove, range, burners or hot plates.
A microwave.
A sink and/or dishwasher.
Any application made by a new owner of the subject premises whose application is not filed with the Two-Family Review Board as of the effective date of this article.
A natural person who uses the premises as his/her principal residence.
Any means of entry to a second-story residence which extends beyond the floor plan, perimeter, lines and walls which outline the parameters of the living space alone (no entryway, etc.) of the first story of the building.
For purposes of obtaining a two-family permit, the "owner" shall be deemed to be any person who owns 51% or more of the premises where the remaining 49% is owned by a single person; such owner/applicant must be in residence at the subject premises.
A single-family dwelling which has more than one cooking area but which dwelling is occupied solely by one family.
A building designed for and legally occupied exclusively as a home or residence for two families. It includes two legally defined dwelling units.
§ 193-198 Two-Family Review Board established; membership; term; ad hoc members.
A.
The Mayor shall provide for the appointment of a Two-Family Review Board, consisting of seven members and one Secretary. The terms of the Board members shall run from the time of the appointment at the organizational meeting for a term of five years. Any person appointed to a vacated position shall serve the unexpired portion of that term. The term of the Chairperson, Deputy Chairperson and Secretary shall be one year, and he or she shall serve at the pleasure of the Village Board. The term of appointment and compensation may be changed by a Board of Trustees resolution.
[Amended 4-4-2006 by L.L. No. 3-2006]
B.
Ad hoc members.
[Added 9-6-2005 by L.L. No. 7-2005]
(1)
In addition to regular members appointed and serving, the Village Board of the Village of Lindenhurst shall appoint one temporary ad hoc member to the Two-Family Review Board to serve as provided herein. Said ad hoc member shall attend meetings of the Board as required, and the Chairman of the Two-Family Review Board shall designate the ad hoc member as an acting member as necessary when the absence of regular members of the Board or a conflict of interest of regular members of the Board would otherwise prevent five members of the Board from considering any pending matter. Once designated to serve on a particular matter before the Board, the ad hoc member shall have the same powers and duties as the regular members of the Board until that matter is concluded. Any determination by the Board consisting of an ad hoc member shall have the same weight and be entitled to the same authority as the act or deed of the regular Two-Family Review Board, and all laws, statutes and regulations shall apply and be applied with equal force and effect. An ad hoc member appointed pursuant to this section shall be paid for his services as fixed by resolution of the Village Board.
(2)
An ad hoc member shall serve a two-year term expiring at the end of the official year. The Village Board shall have the power to remove any ad hoc member of the Two-Family Review Board for cause, after a public hearing if one is requested.
(3)
Although the ad hoc member of the Two-Family Review Board is authorized to attend all meetings of the Two-Family Review Board, he shall have no powers to participate in any actions of the Two-Family Review Board except as provided herein.
§ 193-199 Duties and powers of the Board.
[Amended 1-20-1995 by L.L. No. 1-1995]
B.
The Two-Family Review Board shall hear such applications and grant such permits for specific periods of time under the following guidelines:
(1)
Two-family temporary permit.
(a)
Initial applications. The Two-Family Review Board shall be empowered to initially grant a permit for the use of a one-family dwelling as a two-family dwelling for a period of not more than one year. A public hearing must be held on the initial application.
(b)
Renewal applications. The Two-Family Review Board shall be empowered to grant a renewal of the permit for the use of a one-family dwelling as a two-family dwelling for a period of not more than one year at a time. A public hearing must also be held on the first renewal application. Thereafter, a public hearing for any further renewal applications shall be held as determined necessary by the Board, but in no event less than once every four years.
(2)
Second kitchen for personal use.
(a)
Initial applications. The Two-Family Review Board shall be empowered to initially grant a permit for the use of a second kitchen in a single-family dwelling for personal use for a period of not more than one year. A public hearing must be held on the initial application.
(b)
Renewal applications. The Two-Family Review Board shall be empowered to grant a renewal for the use of a second kitchen in a single-family dwelling for personal use for a period of not more than one year at a time. A public hearing must also be held on the first renewal application. Thereafter, a public hearing for any further renewal applications shall be held as determined necessary by the Board, but in no event less than every two years.
C.
Before such approval shall be given, the Two-Family Review 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 Village will not be adversely affected by the proposed use and its location.
(4)
That the use will be in harmony with and promote the general purpose and intent of this article.
D.
In making such determination, the Two-Family Review 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 bituminous surface 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.
(7)
Whether the use to be operated is unreasonably near to a church, school, theater, recreational area or other place of public assembly.
§ 193-200 Application and renewal fees and requirements.
[Amended 1-20-1995 by L.L. No. 1-1995]
A.
Two-family temporary permit.
(1)
For any initial application, the following must be filed with the Two-family Review Board:
(a)
A completed form with a fee that shall be established by resolution of the Village Board of Trustees.
[Amended 12-1-2009 by L.L. No. 5-2009]
(b)
A copy of the owner's deed.
(c)
A recent, accurate survey.
(d)
A floor plan for the entire residence.
(e)
A parking plan.
(f)
Any other documents that may be required by the Board.
(2)
A public hearing for any such application will be scheduled by the Board. A notice regarding such public hearing shall be made by the Board in the official newspaper and by the applicant/owner as directed in § 193-201 of this chapter. The renewal fee for any previously granted permit shall be $150 for each year of such renewal. The Two-Family Review Board shall have the discretion, in any renewal application, to request any documents that may be required.
B.
Second kitchen for personal use.
(2)
A public hearing for any such application will be scheduled by the Board. A notice regarding such public hearing shall be made by the Board in the official newspaper and by the applicant/owner as directed in § 193-201 of this chapter. The renewal fee for any previously granted permit shall be $25 for each year of such renewal. The Two-Family Review Board shall have the discretion, in any renewal application, to request any documents that may be required.
(3)
No new application for a second kitchen for personal use shall be accepted or considered by the Two-Family Review Board effective March 1, 2010. All valid permits for a second kitchen for personal use existing prior to March 1, 2010, may be renewed as permitted under § 193-199 of the Village Code. Upon the death of the permit holder, failure to timely renew the permit, and/or the transfer of title of the premises, the permit shall be deemed null and void, the second kitchen removed, and the premises reverted to single-family use.
[Added 1-19-2010 by L.L. No. 1-2010]
§ 193-201 Notification by applicant.
[Amended 1-20-1995 by L.L. No. 1-1995]
For the initial application for either a two-family or second kitchen for personal use permit, the applicant/owner must provide notice as follows:
A.
Notification by return-receipt mailing. The applicant/owner must notify all property owners abutting or adjoining the outer perimeter of the property in question of the application. Such notification shall be by return-receipt mail. Proof of service shall be presented at least one day prior to the hearing, and a list of all persons so notified must be provided. For purposes of this subsection, "abutting or adjoining" shall include any property across any street or road from the outer perimeter of the applicant's property.
B.
Notice sign.
[Added 10-6-1998 by L.L. No. 3-1998[1]]
(1)
Signs notifying the public of hearings to be held by the Two-Family Review Board shall be posted by the applicant. Such signs shall be provided by the Village at a cost to be determined by resolution of the Village Board and paid for by the applicant. The sign shall read as follows:
NOTICE |
An application has been made to permit the usage of this premises for a two-family dwelling/second kitchen for personal use. |
A public hearing will be held before the Two-Family Review Board of the Village of Lindenhurst on the above application on (date) at (time) p.m. at 430 South Wellwood Avenue, Lindenhurst, New York. |
Dated: _______________ Applicant: |
For further information, call the Two-Family Review Board at Village Hall (957-7512). |
(2)
All signs shall be posted in accordance with the rules and regulations established by the Village of Lindenhurst Building Department. Failure to properly post such signs shall be grounds for the Two-Family Review Board to dismiss or postpone any application before the Board.
[1]
Editor's Note: This local law also repealed former Subsection B, regarding posting of signs, and Subsection C, regarding the contents of the sign to be posted.
§ 193-202 Conditions for permit approval.
A.
Two-family permits.
(1)
Area of dwelling. A permit may not be granted for a house which has less than 1,000 square feet of habitable space. The area of the proposed second-family dwelling must be 300 square feet or greater counting actual open living space area (not walls, garages, etc.).
(2)
Sewer connection. The connection to the sewer must be made pursuant to the Village Code prior to the granting of the two-family usage permit.
(3)
Street size. Due to concerns over fire, health and safety as well as overcrowding, no permit may be granted unless where the street to which the dwelling on which the two-family permit is sought has access must be 30 feet or wider from curbline to curbline.
(4)
Lot coverage. Lot occupancy must not exceed 20%.
(5)
Front yard. No second-family permit will be granted where, in order to obtain room for the second dwelling, the front yard would or has been reduced to 20 feet or less.
(6)
Side yard. There must be a minimum of ten-foot side yards.
(7)
Second-story dwelling. Under no circumstances may entrance to a second-floor apartment be made via an outside staircase.
(8)
Sidewalks/curbs. Where the two-family permit is sought on a house located on a block where other properties are curbed and/or sidewalks have been installed, the same shall be required of this residence.
(9)
Off-street parking. All properties seeking two-family usage must have room for and provide off-street parking. The license plate numbers of the owner and his or her family as well as the license plate numbers of the second family apartment must be provided to the Two-Family Review Board.
(a)
Number of spaces. The number of off-street parking spaces must be as follows: at least two spaces for the existing dwelling and at least two spaces for the rental unit. These spaces must not provide for greater than two cars behind one another. Both the owner and his or her family, as well as the tenant, must park in the spaces provided to the extent described above.
[Amended 10-7-2008 by L.L. No. 3-2008]
(b)
Pavement for off-street parking. In providing off-street parking, this Board may require that a specific material be employed to construct the driveways. All existing codes dealing with such construction, including but not limited to front and side yard setbacks, must be complied with.
(c)
Tenants and the owner/applicant and such owner/applicant's family must park off-street. The two-family permit will be granted only with the provision that, upon rental of the premises, the applicant/owner will provide the Two-Family Review Board the lease or rental agreement in which it will be stipulated that the tenant will use the off-street parking provided or be subject to eviction.
(10)
Uniform Fire Prevention and Building Code. The New York State Uniform Fire Prevention and Building Code must be complied with.
(11)
Check of Village records prior to renewal. Prior to the grant of any renewal, all Village Code, building or ordinance officials must review their records together with the official records of the Village to ascertain what, if any, violations or problems may have occurred at the subject premises during the last grant of two-family use. Such official must note the type and disposition of any violation/problem.
(12)
Internal access between the units must be maintained.
(13)
Cellar or basement dwellings may not be converted for two-family use. No part of the rental unit may be contained in a basement or cellar. The rental unit may not be located in an accessory structure.
B.
Second kitchen for family use.
(1)
No such kitchen may be located in a cellar or basement.
(2)
The Board shall consider the likelihood and feasibility of converting the dwelling to an illegal two-family dwelling.
(3)
The Uniform Fire Prevention and Building Code. The New York State Uniform Fire Prevention and Building Code must be complied with.
(4)
Check of Village records prior to renewal. Prior to the grant of any renewal, all Village Code, building or ordinance officials must review their records to ascertain what, if any, violations or problems may have occurred at the subject premises during the last grant of second kitchen for family use permit. Such official must note the type and disposition of any violation/problem.
§ 193-203 Violations; penalties for offenses.
A.
Illegal use of residence. It shall be illegal to use a one-family dwelling as a two-family dwelling or to maintain a second kitchen in a dwelling without obtaining a permit as set forth above and without the owner occupying said residence during the usage of this permit.
B.
Death of applicant; transfer of title. Upon the death of the applicant, the transfer of title to the premises or upon any violation of § 193-202 above, the permit shall be deemed null and void and the premises must revert to single-family use.
C.
Failure to use off-street parking. It shall be illegal for a tenant to fail to use off-street parking. Any applicant/owner who fails to evict their tenant, without sufficient reason, pursuant to their lease or rental agreement for that tenant's failure to use the off-street parking provided shall be held to be in violation of this provision, provided that the applicant/owner shall first receive notice by mail of the infraction and a demand that the off-street parking be enforced or the tenant evicted.
D.
Fines. Violations of this article shall constitute a violation and are punishable by a fine of not less than $500 nor more than the maximum permitted by New York State law per offense.
[Amended 1-20-1995 by L.L. No. 1-1995]
E.
Number of offenses. Each week's continued offense against this article shall constitute a separate additional offense.
F.
Failure to comply with any and all stipulations imposed by the Two-Family Review Board or violation of any of the provisions above shall result in the revocation of the two-family permit.
§ 193-204 Inspection and search warrants.
A.
Authorization for inspection. The Building Inspector and/or Zoning Inspector of the Village of Lindenhurst 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 and welfare of the public. The Building Inspector and/or Zoning Inspector or his designated representative is authorized to enter, upon the consent of the owner, any dwelling, dwelling 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. An inspection shall be required in conjunction with every public hearing.
B.
Search warrant applications. The Building Inspector and/or Zoning Inspector of the Village of Lindenhurst or his designated representative is authorized to make application to a court of competent jurisdiction 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 a reasonable cause to believe that a violation of the Article has occurred. The application for a search warrant shall in all respects comply with the applicable laws of the State of New York.
§ 193-205 Interpretation and appeals.
A.
The Two-Family Review Board shall have the power to interpret and implement the provisions of this article, to impose additional requirements or restrictions as may be reasonable and necessary to further the intent of this article and to waive certain requirements in instances where a hardship is shown.
B.
Decisions of the Two-Family Review Board shall not be subject to further administrative review but 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.
C.
In interpreting and applying the provisions of this article, they shall be held to be the minimum requirements for the promotion of the health, safety or general welfare of the Village. It is not intended by this article to interfere with or abrogate or annul any Village building code or any rules or regulations adopted or issued thereunder and not in conflict with any of the provisions of this article; provided, however, that where this article imposes a greater restriction upon the use of the buildings or premises or upon the height of the building or requires larger open spaces than are imposed or required by such ordinance, rules and regulations, the provisions of this article shall control.