[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Editor's Note: This local law also repealed former Art.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:
ACCESSORY APARTMENT
An additional self-contained dwelling unit which is incorporated within a one-family dwelling.
ACCESSORY KITCHEN
A one-family dwelling which has more than one cooking area, but which contains only one dwelling unit.
BASEMENT
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.
CELLAR
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.
DWELLING UNIT
An area of a building designated for and/or occupied as a home or residence containing not more than one cooking area.
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.
ILLEGAL TWO-FAMILY DWELLING
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.
OCCUPANT
A natural person who uses the premises as his/her principal residence.
OWNER
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]
TWO-FAMILY DWELLING
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.
B. 
All permits granted under this article shall terminate immediately upon any of the following events:
(1) 
The death of all owner-occupants named on the permit.
(2) 
When all persons named on the permit are no longer owner-occupants.
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:
(1) 
Affidavit of transfer on a form to be provided by the Commissioner of Planning and Development.
(2) 
Copy of executed contract.
(3) 
Copy of deed in form for filing with the Suffolk County Clerk's office.
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.
[1]
Editor's Note: See Ch. 89, Building Construction.
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]
J. 
Fire Department response notification signs. All one-family dwellings which contain an accessory apartment shall mount on the bottom left-hand corner of the front door of the building a four-inch by four-inch diamond-shaped sign with a reflective "2" in the middle of the sign to indicate that there is more than one residential unit in the building.
[Added 11-7-2024 by L.L. No. 18-2024]
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.