Preconsidered Int. No.

By Council Member Sanchez (by request of the Mayor)

A Local Law to establish a pilot program to convert existing basement or cellar apartments to habitable dwelling units

Be it enacted by the Council as follows:

Section 1. Definitions. a. Except as indicated in subdivision b of this section, the terms used in this local law have the meanings ascribed to such terms in title 28 of the administrative code of the city of New York.

b. For purposes of this local law, the following terms have the following meanings:

Administrative code. The term “administrative code” means the administrative code of the city of New York.

Apartment. The term “apartment” means a dwelling unit providing permanent provisions for both sanitation and kitchen facilities occupied or arranged to be occupied by not more than 1 family maintaining a common household.

Application. The term “application” means an application for authorization for temporary residence.

Authorization for temporary residence. The term “authorization for temporary residence” means an authorization issued by the department pursuant to section four of this local law authorizing the temporary use of an eligible basement or cellar as an apartment prior to the issuance of a certificate of occupancy or temporary certificate of occupancy for such use.

Basement. The term “basement” means a story partly below the grade plane and having less than one-half its clear height, measured from finished floor to finished ceiling, below the grade plane.

Cellar. The term “cellar” means that portion of a building that is partly or wholly underground, and having one-half or more of its clear height, measured from finished floor to finished ceiling, below the grade plane.

City financial assistance. The term “city financial assistance” means any loan, grant, tax credit, tax exemption, tax abatement, subsidy, mortgage, debt forgiveness, land conveyance for less than appraised value, land value or other thing of value allocated, conveyed or expended by the city.

Community district. The term “community district” means a community district established pursuant to chapter 69 of the New York city charter.

Department. The term “department” means the New York city department of buildings.

Eligible basement or cellar residence. The term “eligible basement or cellar residence” means a basement or cellar in an existing dwelling within the program area, unlawfully arranged to be occupied as an apartment with acceptable kitchen and sanitation facilities as described in department rules, and which apartment was in existence prior to April 20, 2024.

Pre-existing violation. The term “pre-existing violation” means a violation issued by an agency of the city of New York for the illegal occupancy of a basement or a cellar for which a notice of violation, administrative summons, criminal court summons or other process was issued the department prior to the date of issuance of the initial permit by such department for work pursuant to this local law.

Program area. The term “program area” means Bronx community district nine; Bronx community district 10; Bronx community district 11; Bronx community district 12; Brooklyn community district 4; Brooklyn community district 10; Brooklyn community district 11; Brooklyn community district 17; Manhattan community district 2; Manhattan community district 3; Manhattan community district 9; Manhattan community district 10; Manhattan community district 11; Manhattan community district 12; and Queens community district 2, and such other community districts as may be authorized pursuant to section 289 of the multiple dwelling law.

Qualified environmental professional. The term “qualified environmental professional” has the same meaning ascribed to such term in section 24-03 of title 15 of the rules of the city of New York.

Rented. The term “rented” means leased, let, or hired out, with or without a written agreement.

Temporary residence program. The term “temporary residence program” means a program established pursuant to this local law to facilitate the legalization of eligible basement and cellar residences within the program area and to authorize their temporary use as apartments pending the issuance of a certificate of occupancy or temporary certificate of occupancy for such use.

Tenant. The term “tenant” means an individual to whom an eligible basement or cellar residence is rented.

§ 2. Scope. a. The department shall establish a temporary residence program in accordance with this local law.

b. To participate in such program, an owner of an eligible basement or cellar residence shall apply for authorization for temporary residence pursuant to section four of this local law on or before April 30, 2029. Except as otherwise provided in section twelve of this local law, an application for temporary residence may not be made where the eligible basement or cellar residence is within the 10 year rainfall flood risk area or the coastal flood risk area as described in section 24-809 of the administrative code of the city of New York.

§ 3. Occupancy. Notwithstanding any inconsistent provision of the multiple dwelling law, section 27-751 of the 1968 building code, section 27-2087 of the administrative code, section 1208.2 of the New York city building code or of applicable laws in existence prior to December 6, 1968, the department may authorize the use of an eligible basement or cellar residence within the program area as an apartment in accordance with this local law.

§ 4. Authorization for temporary residence. a. The department may issue an authorization for temporary residence for the use of an eligible basement or cellar residence in the program area as an apartment prior to the issuance of a certificate of occupancy or temporary certificate of occupancy in accordance with this section.

b. The owner of an eligible basement or cellar residence may submit an application for an authorization for temporary residence to the department in a form and manner determined by the department.

c. An application for an authorization for temporary residence may not be used as the basis for an enforcement action for illegal occupancy of such residence, provided that nothing in this local law shall be construed to prevent the issuance of a vacate order for hazardous or unsafe conditions.

d. The department may issue an authorization for temporary residence upon determining that (i) the basement or cellar referenced in such application is an eligible basement or cellar residence; (ii) such eligible basement or cellar residence contains an apartment that was in existence prior to April 20, 2024; and (iii) such eligible basement or cellar residence has been inspected and:

(1) would not pose an imminent risk to the life or safety of occupants;

(2) contains a battery-operated or hard-wired smoke detector and carbon monoxide detector;                     

(3) contains at least 1 means of egress directly to the outdoors complying with the construction standards of chapter 10 of the New York city building code, including access to a public way. The exterior door is provided with landings on both the interior and exterior sides in accordance with section 1010.1.6 of the New York city building code.

(4) has (i) a minimum clear ceiling height in all habitable rooms of 7 feet and 6 inches, which may be lowered to 7 feet subject to criteria set forth in rules promulgated by the department or the fire department, with projections as allowed by exception 1 of section 1208.2 of the New York city building code but in no event with such projections lower than 7 feet; or (ii) in a fully detached dwelling with all exterior walls at least 3 feet from any lot line, a minimum clear ceiling height in all habitable rooms of 7 feet including projections.

e. The department in consultation with the fire department shall adopt rules governing the occupancy and use, prior to the issuance of a certificate of occupancy or temporary certificate of occupancy, of eligible basement and cellar residences that have been issued an authorization for temporary residence, including minimum housing maintenance standards. Such rules shall (i) require occupancy of an eligible basement or cellar residence by not more than one family maintaining a common household, (ii) prohibit an owner or occupant from renting or offering to rent such eligible basement or cellar residence for less than 30 consecutive days, and prohibit registration of such residence for short term rental pursuant to chapter 31 of title 26 of the administrative code.

f. The department, the department of housing preservation and development, or the fire department may stay an order to vacate an eligible basement or cellar residence to permit an owner to apply for authorization for temporary residence or at any time following the issuance of an authorization for temporary residence.

g. An authorization for temporary residence expires 10 years after the date of its issuance. Prior to such expiration date, the owner must obtain a temporary or final certificate of occupancy for such residence in accordance with section six of this local law.

h. The issuance of an authorization for temporary residence allows occupancy of the eligible basement or cellar residence during the 10 year period prior to the date that it expires subject to the following conditions:

(1) not later than 3 months following the date such authorization is issued, the owner must submit documentation in a form and manner determined by the department establishing that:

(A) such eligible basement or cellar residence has smoke and carbon monoxide alarms in accordance with sections U103.6.2 and U103.6.3 of Appendix U of the New York city building code;

(B) such eligible basement or cellar residence has water sensors and alarms in accordance with section U202.11 of Appendix U of the New York city building code;

(C) such eligible basement or cellar residence has the required signage posted in a manner prescribed by the New York city housing maintenance code and the rules of the department of housing preservation and development; and

(D) the owner has notified any tenants in such eligible basement or cellar residence about enrollment in an emergency alert system operated by the office of emergency management in accordance with rules established by the department of housing preservation and development.

(2) Not later than 1 year following the date such authorization is issued, the owner must submit documentation in a form and manner determined by the department establishing that such eligible basement or cellar residence:

(A) complies with the fire separation standards set forth in section U202.7 of Appendix U of the New York city building code;

(B) has an automatic sprinkler system in accordance with section U103.6.1 of Appendix U of the New York city building code and section nine of this local law, provided however that notwithstanding any provision of local law or the state multiple dwelling law in no case shall the addition of an eligible basement or cellar residence require the installation of an automatic sprinkler outside of the eligible basement or cellar residence and the means of egress from such residence;

(C) that such eligible basement or cellar residence is tested in accordance with sections U202.9 and U202.10 of Appendix U of the New York city building code.

i. An eligible basement or cellar residence must be in compliance with any additional safety or construction requirements established pursuant to rules promulgated by the department.

§ 5. Deferral or waiver of penalties by the department. a. Payment of any civil penalties for violations issued by the department that would otherwise be required to be paid by an owner of an eligible basement or cellar residence before the issuance of a permit for alterations to comply with section four of this local law may be deferred, and upon issuance of a certificate of occupancy or temporary certificate of occupancy in accordance with section six of this local law, such deferred amounts may be waived.

b. Notwithstanding the provisions of subdivision a of this section, deferred amounts shall continue to be due and owing to the department. Where an owner fails to comply with the requirements of this local law, deferred amounts shall no longer be deferred and payment may be enforced in accordance with the New York city construction codes.

§ 6. Certificates of occupancy pursuant to this local law. a. Notwithstanding any inconsistent provision of the multiple dwelling law, article 118 of chapter 1 of the administrative code or of any other law, where an authorization for temporary residence has been issued in accordance with section four three of this local law, the department may: (i) issue a partial certificate of occupancy limited to the new or altered apartment in the basement of a building or the new apartment in the cellar of a building if such building was erected prior to January 1, 1938 and does not have and is not otherwise required to have a certificate of occupancy; or (ii) for a building with an existing certificate of occupancy, issue an amended certificate of occupancy limited to the new or altered apartment in the basement of such building or the new apartment in the cellar of such building. Such a partial or amended certificate of occupancy shall be issued subject to the following conditions:

(1) Upon inspection, the apartment being created or altered (i) conforms substantially to the approved construction documents, complies with the New York city construction codes and other applicable laws, except as specifically provided in this local law, and is safe for occupancy, or (ii) the department upon an inspection certifies that waiver of otherwise applicable requirements is appropriate because such apartment provides for the health and safety of all occupants of such dwelling by alternative means that are no less stringent than the requirements of this local law.

(2) Upon inspection, the required means of egress from all floors of the building comply with the New York city construction codes and other applicable laws.

(3) Except as specified in subparagraphs (A), (B), and (C) of this paragraph, a partial or amended certificate of occupancy or a temporary certificate of occupancy may be issued where there are open pre-existing violations in the building. All such open violations, including those specified below, shall remain administratively open and the department may thereafter continue to enforce against such violations until, in accordance with applicable provisions of the New York city construction codes, outstanding penalties are paid and, if applicable, certificates of correction are approved by the department.

(A) Where a pre-existing violation in parts of the building outside of the new or altered apartment is classified as “immediately hazardous,” the condition that gave rise to the issuance of such immediately hazardous violation must be removed or remedied in accordance with the New York city construction codes and to the satisfaction of the commissioner of buildings and evidence of such removal or remediation in the form of plans, drawings, photos, affidavits or a combination thereof, with the signature and seal of a registered design professional or, if applicable, a licensee of the department in the applicable trade must be submitted to the department prior to the issuance of such amended or partial certificate of occupancy or a temporary certificate of occupancy.

(B) Any condition that gave rise to a pre-existing violation in the new or altered apartment must be removed or remedied by work performed under permits issued pursuant to this local law.

(C) Notwithstanding any inconsistent provision of the New York city construction codes, including sections 28-118.14 and 28-219.1, a certificate of occupancy or a temporary certificate of occupancy may be issued for a basement or cellar apartment created or altered pursuant to this local law where there are outstanding fines and civil penalties for pre-existing violations provided that such fines and civil penalties may remain due and owing, and the department may thereafter enforce and collect such amounts in accordance with the New York city construction codes, unless such department determines that such fines and civil penalties should be waived in the interest of the program. When determining whether to waive such fines and civil penalties, the department may consider factors including the number and pecuniary amount of fines and civil penalties owed, the financial need of the owner, and the likely effect of such fines and civil penalties on compliance with such codes.

b. The department may refuse to issue a certificate of occupancy or a temporary certificate of occupancy pursuant to this section if there are outstanding violations issued by the department, penalties or open permits not signed off related to work performed under permits issued pursuant to this local law until such penalties have been paid, such violations have been corrected, including filing certificates of correction, if applicable, and permits have been closed, as required by the New York city construction codes.

c. (1) Every certificate of occupancy or temporary certificate of occupancy issued for a basement or cellar apartment created or altered pursuant to this local law must contain a reference to this local law.

(2) A partial or amended certificate of occupancy or a temporary certificate of occupancy issued pursuant to subdivision a of this section must contain a note that such certificate of occupancy does not certify compliance with applicable laws with respect to parts of the building outside of the apartment created or altered pursuant to this local law.

§ 7. Waiver of application, permit and inspection fees by the department. The commissioner shall waive all fees, which would otherwise be required to be paid to the department by title 28 of the administrative code, the electrical code or the rules of the department, in connection with applications, permits and inspections for work in the program area related to the creation or alteration of habitable apartments in basements and cellars where such apartments are officially subsidized under the program administered by the department of housing preservation and development pursuant to section eleven of this local law.

§ 8. Waiver of fees by other agencies. The department of environmental protection shall waive all fees which would otherwise be required to be paid to such department arising out of the creation or alteration of habitable apartments in basements and cellars where such apartments are officially subsidized under the program administered by the department of housing preservation and development pursuant to section fourteen of this local law. Any other agency may promulgate rules to waive fees that would otherwise be required to be paid arising out of the creation or alteration of such apartments where such apartments are officially subsidized under the program administered by the department of housing preservation and development pursuant to section fourteen of this local law, and where such agency determines that such waiver would facilitate such program.

§ 9. Compliance with fire code sprinkler requirements for altered buildings on substandard width streets. Any habitable apartment in a basement or cellar created or altered pursuant to sections three of this local law shall be deemed to be an alteration subject to exception 5.1 of section 501.4.3.1 of the New York city fire code.

§ 10. Construction. Except as specifically provided in this local law, nothing in this local law is intended to grant authorization for any work to be done in any manner in violation of the provisions of the New York city construction codes, or any other law or rule.

§ 11. Enforcement and penalties. a. Violations of this local law and rules of the department issued pursuant to this local law shall be subject to enforcement and penalties in accordance with chapter 2 of title 28 of the administrative code of the city of New York.

b. The department may, after notice and opportunity to be heard, revoke an authorization for temporary residence:

(1) where 3 or more violations of this local law or rules of the department have been committed within a 1 year period, or

(2) where any violation of paragraph (1) or (2) of subdivision h of section four of this local law has been committed.

c. Where an authorization for temporary residence expires or is revoked before a certificate of occupancy or temporary certificate of occupancy is issued for an eligible basement or cellar residence, the department may:

(1) issue a vacate order if the basement or cellar is occupied,

(2) reinstate any prosecution for illegal occupancy that was deferred or waived pursuant to this local law, and

(3) reinstate and commence collection of any penalties that were deferred or waived pursuant to section five or six of this local law, including interest that would have accrued from the time of such deferral or waiver.

§ 12. Variance. An owner of an eligible basement or cellar residence located in the 10-year rainfall flood risk area or the coastal flood risk area may apply to the board of standards and appeals for a variance from the restrictions of section U202.3 of the New York city building code. In reviewing an application for a variance, the board of standards and appeals shall consider the conditions described in section G105.6, of the New York city building code and shall issue such a variance in accordance with section G105.7 of such code. Where a variance is issued such owner may apply for an authorization for temporary residence pursuant to this local law.

§ 13. Zoning. Within 90 days of the passage of this local law, the city planning commission shall propose amendments to the zoning resolution necessary to enact such program. Such amendments shall be subject to a public hearing at the planning commission and approval by such commission and by the city council in accordance with section 197-d of the New York city charter and subdivision 3 of section 289 of the multiple dwelling law, provided, however, that such amendments shall not require environmental review, including environmental review conducted pursuant to article 8 of the New York State environmental conservation law and any state and local regulations promulgated thereunder, or any additional land use review.

§ 14. Financial and technical assistance and outreach. a. The department of housing preservation and development shall establish a program to:

b. Subject to available resources, provide city financial assistance to owners of eligible basement or cellar residences that are contained within one-family or two-family homes who meet criteria set forth by such department in a rule, such as the financial need of an owner in order to meet the requirements of this local law, expected likelihood of such owner to repay any loans provided as part of such financial assistance, and the opportunity for the creation of an affordable rental housing unit.

c. Provide technical assistance to owners of eligible basement or cellar residences that are contained within one-family or two-family homes;

d. Conduct public education and outreach to owners of dwellings such department determines are likely to include eligible conversions.

§ 15. Tenant protections a. An application for authorization for temporary residence pursuant to section four of this local law must be accompanied by a certification from the owner of an eligible basement or cellar residence indicating whether such residence was rented to a tenant on April 20, 2024, notwithstanding whether the occupancy of such residence was authorized by law. Such certification may not be used as the basis for an enforcement action for the illegal occupancy of such unit, provided however that nothing in this local law shall prevent the issuance of a vacate order for imminently hazardous or unsafe conditions.

b. A tenant in occupancy of an inhabited eligible basement or cellar residence on April 20, 2024 who is evicted or otherwise removed from such residence as a result of an alteration necessary to bring such residence into compliance with the standards set out in this local law shall have a right of first refusal to return to such unit as a tenant upon its first occupancy following such alteration, notwithstanding whether such occupancy on April 20, 2024 was authorized by law, subject to rules established by the department of housing preservation and development.

c. A tenant unlawfully denied a right of first refusal to return to an eligible basement or cellar residence pursuant to this local law shall have a cause of action in any court of competent jurisdiction for compensatory damages or declaratory and injunctive relief as the court deems necessary in the interests of justice, provide that such compensatory relief shall not exceed the annual rental charges for such eligible conversion.

§ 16. Rules. The department, the fire department, the department of environmental protection, the department of housing preservation and development, the department of health and mental hygiene, and the office of emergency management may adopt any rules necessary to carry out the provisions of this local law.

§ 17. Application deadline. To participate in the temporary residence program, the owner of an eligible basement or cellar residence must apply for authorization for temporary residence pursuant to section four of this local law not later than April 20, 2029.

§ 18. This local law takes effect 180 days after it becomes law.