The New York State Uniform Fire Prevention and Building Code (“Uniform Code”) sets forth uniform building and fire prevention standards for New York State.  Article 18 of the NYS Executive Law requires municipalities within the State to administer and enforce the Uniform Code within their boundaries. Executive Law §379(3) states, “…no municipality shall have the power to supersede, void, repeal or make more or less restrictive any provisions of this article or of rules or regulations made pursuant to [the Uniform Code].”

However, a municipality may adopt more stringent local standards provided it petitions the NYS Code Council for a determination of whether such local laws or ordinances are reasonably necessary because of special conditions prevailing within the local government and that such standards conform with accepted engineering and fire prevention practices and the purposes of the Uniform Code. Executive Law §383. The adoption of more stringent laws that have successfully petitioned the NYS Code Council are available at https://www.dos.ny.gov/dcea/mrls.html (the majority of which relate to sprinklers or fire prevention codes).

Whether a particular local law or regulation is superseded depends upon whether it is inconsistent or in conflict with provisions of the Uniform Code. Local laws enacted pursuant to other municipal powers for example, under zoning or wetlands protection, are recognized as legitimate areas for government regulation and may also regulate the construction and use of buildings in municipalities.

Not so subtle conflicts between zoning laws and the uniform code exist in many municipalities requiring that these laws be considered and applied together. For the most part, courts reject arguments claiming local laws are preempted by the Uniform Code or invalid based upon a failure of the municipality to appeal the local law to the NYS Code Council. Brockport Sweden Property Owners Ass’n v. Village of Brockport, 81 A.D.3d 1416, 917 N.Y.S.2d 481 (4th Dept. 2011)(rejecting that local law was preempted by Uniform Code); Catskill Regional Off-Track Betting Corp. v. Village of Suffern, 65 A.D.3d 1340, 886 N.Y.S.2d 214 (2d Dept. 2009)(finding OTB failed to establish that Village Code improperly superseded the Uniform Code); People v. Robles, 22 Misc.3d 140 (A), 881 N.Y.S.2d 366 (Sup.Ct. App. Term 2009)(rejecting claim that Uniform Code preempted the City of Glen Cove code on the merits, finding an expressed interest in statewide uniformity rather than an implied statement of preemption); People v. Oceanside Institutional Industries, Inc., 15 Misc. 3d 22, 833 N.Y.S.2d 350 (Sup. Ct. App Term 2007)(finding that Uniform Code and Nassau County Fire Prevention Ordinance can coexist and applying more stringent sections of codes in conflict).

With the advent of Airbnb and like services, short term rental regulation has become a hot topic on the East End. A review of the occupancy standards in local rental codes and the Uniform Code for single family residences provides a noteworthy example of the local municipality/state regulation inconsistency.

Municipalities use the definition of “family” to limit the number of occupants permitted in single family residences and thereby control the use of homes in residential zoning districts. On the East End, Southampton and East Hampton Towns have used the definition of family to limit the number of persons occupying a rental property under their rental codes. See Southampton Town Code Chapter 270 and East Hampton Town Code Chapter 199  limiting the definition of family to include five or less unrelated persons living together (Southampton) or four or less living together as a single housekeeping unit (East Hampton).   Alternatively, both codes allow an unlimited number of persons that are related by blood, marriage, or legal adoption to reside together provided they live as a single housekeeping unit.

In addition to Town regulations addressing and limiting single family residence occupancy, the New York State Property Maintenance Code regulates occupancy by limiting the number of occupants per square foot per bedroom. Specifically, Property Maintenance Code §404.4.1 requires that “every bedroom occupied by one person shall contain at least 70 square feet of floor area, and every bedroom occupied by more than one person shall contain at least 50 square feet of floor area for each occupant thereof.”

The Property Maintenance Code does not define family but only references occupant which is defined as “an individual living or sleeping in a building.” Therefore, even if the group of persons renting a home in Southampton or East Hampton qualify as family and are not limited under the rental code definitions, compliance with the Property Maintenance Code is still required (notably, East Hampton and Southampton eventually codified the same restrictions). This section of the property maintenance code specifically addresses overcrowding issues. To that end, the Property Maintenance Code also prevents a bedroom from being used as the only means of access or egress to another bedroom; each bedroom must have access to a bathroom without passing through another bedroom; and bedrooms must comply with the requirements for light, ventilation, room area, ceiling height, room widths etc.

Other examples of perceived conflicts include occupancy standards set forth for commercial structures and restaurants in the County Health Department Codes, Uniform Code and local laws; third stories or mezzanine laws and restrictions; standards for bedrooms in basements; and new energy codes including LEED, Energy Star or other ratings systems embraced in local laws that could require higher standards than the Uniform Code. Upon adoption of such local laws, petitions to the NYS Code Council for approval are recommended. See 3 N.Y. Zoning Law and Practice §32A:35, State Preemption of Local Laws, Patricia E. Salkin, November 2016 update.

Ultimately, the Uniform Code and local municipal codes must be read and applied together to ensure compliance.

East Hampton Town restricts the size of accessory structures to 600 s.f. (each) with no plumbing.   However, because of a long history of artists in the Town (e.g., Pollock, Willem and Elaine DeKooning), an artist’s studio is allowed to have a sink and to be as large as 2,500 s.f., depending on the size of the main house. Of course, you have to be an artist to have an artist’s studio: an “artist’s studio” may be “used only by an individual working in the fine arts on a professional basis.”

shutterstock_596874467For a long time, the building inspector’s office approved artists and their respective artist’s studio expanded accessory structure (greater than 600 s.f.).  The building inspector’s office was a bit loosey-goosey, allowing, for example, studios for knitting sweaters and the like. A few years ago, the Town tightened up the standards and required town board approval of the “artist”  in accordance with the definition set forth in the town code.  The approval is now being transferred to the planning board.

Approval of an artist’s studio requires recording a covenant stating that the non-conforming aspects of the approved studio (the sink and size over 600 s.f.) must be removed once the approved artist’s studio use is discontinued – usually because of the sale of the property to someone without an approved artist in the family. These covenants were almost universally ignored – until recently. The Town is now on a tear to get rid of artists’ studios without artists. The town is screening properties and owners and sending letters to non-artist owners of properties with an approved artist’s studio advising that the approval will expire in six months and that they must cease and desist from occupancy when the artist’s use ceases. The requirement to cease occupancy is usually included in the recorded covenant that was required when the use was approved.

There has been no litigation over the cease and desist regime, at least not so far.  For those who have received the cease and desist letter, or expect to receive one at some time in the future, the available remedies are as follows:

  1. Town board (or planning board) approval of the new owner as a bona fide artist.  This is notably harder than it used to be when applicants pushed the envelope to include studios for knitting sweaters or home repair of furniture.  The standards for compliance set forth in the Code include an application by the artist, who must then comply with the definition of an “artist” set forth in the code.   A person with training, but without exhibitions, might get approval; this is probably not the case for the sweater-knitter or home furniture repair ‘artist’.
  2. Obtain a variance to keep the existing building.  This probably would not work to keep the sink, but might work in particular circumstances – such as keeping a second floor studio space due to the  cost associated with removing it.  The normal balancing test for zoning variances (benefit to applicant v. detriment to neighborhood and community) would apply.  The town planners argue that building owners should not get a variance simply because of the inconvenience of achieving compliance  – especially because buyers had notice of the restrictions through the covenants filed.  The only variance granted recently was for a 150-year old cottage that had been converted to an artist’s studio and then sold by the artist to a non-artist.
  3. Achieve compliance – removing plumbing and reducing size to 600 square feet.
  4. Size reduction by conversion.  Actually making the whole building smaller (or the whole second floor smaller) can be both difficult and expensive. Size reduction by converting a part of the structure to storage might work. In the past, the building department has issued updated certificates of occupancy when a portion of the artist’s studio is converted to non-habitable storage space and is separated from the rest of the studio.  That portion is then not counted as habitable gross floor area, reducing the habitable size of the accessory structure to 600 s.f., thereby conforming to the accessory limits.  This may require a separate entrance to the storage area, no connection between the storage area and the remaining 600 s.f. portion, removal of insulation, etc. and even lowering the joists/cross beams to a non-habitable height, such as five feet.
  5. Litigation challenging the statute on fundamental constitutional issues is feasible. No one wants to go that route, at least so far, because the time and cost is impractical.