Friday, 15 January 2010 00:00
Sahn Ward & Baker has won a decision from the Board of Zoning Appeals of the Town of North Hempstead with far-reaching implications for homeowners. Until this decision was issued, cellars in homes located in the Town of North Hempstead were only being permitted for storage purposes. When plans for new construction or renovation were submitted for approval that included the use of the cellar space for anything else, i.e., a playroom, media room or home office, the request for approval of the plans was denied.
As a result of this new decision, homeowners may now legally use cellars for active residential purposes, so long as they meet the state’s Residential Building Code requirements and do not include a kitchen or sleeping quarters. And while it may seem simple that the Town Code should reflect common use and practice, in the past, this was not the case.
“Our clients are delighted that construction of their new home can get under way and they look forward to enjoying the media room, playroom and home office that their architect had envisioned for the space. We know that builders and architects in the area have been watching for this decision so that they, too, can go forward with residential projects that may now use all of their available space,” said Kenneth Auerbach, Esq., a partner at Sahn Ward & Baker.
Previously, any new construction or renovation plans that required approval from the Town of North Hempstead Zoning Board of Approval had to mark any below-ground space as “storage.” The Town’s Building Department had determined that the Town Code did not permit cellars to be used in any other manner. While existing homes may have had finished cellars that were used for more than storage purposes, applications for new construction and renovation plans were routinely denied on this point.
In this matter, the clients had submitted architectural blueprints to the Town of North Hempstead Building Department that included a maid’s quarters in the cellar. The application was denied. A revised set of blueprints was then submitted to the Board of Zoning Appeals, with a request to instead build a media room, play room and home office in the cellar. This second application was also denied, with a reference to the North Hempstead Building Code that “the cellar shall not be used or occupied as living or sleeping quarters.”
“The New York State Building Code has allowed cellars and basements to be used for living space for many years,” said Kenneth Auerbach. “Use of a finished cellar for a playroom or home office is a traditional and common use throughout the region, the state and the country. However, anyone applying for a building permit in the Town of North Hempstead that incorporated active residential uses of their cellar was denied. This policy has been questioned many times, but this is the first time a challenge has been successful.”
The arguments used to win the appeal rested, in part, upon a misinterpretation of the meaning of the term, “living or sleeping quarters.” It was successfully argued that habitable, recreational use of space was permitted under both the State and Town Building Codes and did not constitute “living or sleeping quarters” per se.