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Whether a particular local law or regulation is superseded depends upon whether it is inconsistent or in conflict with provisions of the Uniform Code.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Suffern, 65 A.D.3d 1340, 886 N.Y.S.2d 214 (2d Dept. 2009)(finding OTB failed to establish that Village Code improperly superseded the Uniform Code); People v. Robles, 22 Misc.3d 140 (A), 881 N.Y.S.2d 366 (Sup.Ct.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.