ARTICLE XVIII, Accessory Apartments

85-201. Accessory apartment standards and requirements. [Amended 10-16-1990,

effective 11-4-1990; 9-8-1994, effective 10-3-1994; 5-8-1995, effective 6-5-1995; 4-161996, effective 5-6-1996; 12-3-1996, effective 12-23-1996; 9-18-1997, effective 10-61997; 3-17-1998, effective 4-6-1998; 2-26-2009, effective 3-22-2009, effective 4-10-13
A.
Purpose. It is the specific purpose and intent of this article to allow accessory
apartments in the A Residence, A Residence 1, A Residence 2, A Residence 5, B
Residence, B Residence 1 and C Residence Districts to provide the opportunity and
encouragement for the development of small rental housing units designed, in particular,
to meet the special housing needs of single persons and couples of low and moderate
income, both young and old, and of relatives of families presently living in the Town of
Brookhaven. Furthermore, it is the purpose and intent of this article to allow the more
efficient use of the Town's existing stock of dwellings to provide economic support of
present resident families of limited income and to protect and preserve property values
while preserving the character and quality of life of our communities. To help achieve
these goals and to promote the other objectives of this article, specific standards are
hereby set forth for such accessory apartment uses.
B.
Standards.
(1)
Owner occupancy required. The owner(s) of the lot upon which the accessory
apartment is located shall reside within the dwelling that contains the accessory
apartment. The owner may occupy either the larger dwelling unit or the accessory
apartment. No other owner(s) shall own a larger percentage collectively or individually
than the owner-occupant. A homeowner shall be permitted one accessory apartment only,
and only one accessory apartment per dwelling shall be permitted.
(2)
Location on lot. An accessory apartment shall be located in the principal dwelling.
(3)
Provisional accessory apartment license. All qualified applicants are required to
obtain a provisional accessory apartment license. When the Chief Building Inspector
determines that the accessory apartment has been completed and that such accessory
apartment may be occupied safely without endangering life, health or the public welfare,
the Chief Building Inspector may issue a provisional accessory apartment license. All
provisional accessory apartment licenses issued hereunder shall be valid for an initial
period of up to three years and for successive renewal periods of up to five years at the
discretion of the Accessory Apartment Review Board.
(4)
Accessory apartment size. The minimum habitable area for an accessory
apartment shall be 300 square feet and a maximum of 650 square feet; in no case shall it
exceed 40% of the habitable area of the dwelling building in which it is located, except in
certain compelling circumstances a maximum of 850 square feet may be approved, at the
discretion of the Accessory Apartment Review Board, in accordance with Table #1
below. In no event may there be more than one bedroom per accessory apartment.

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TABLE 1
Apartment Size
(square feet)
300 to 650
651 to 750
751 to 850

Maximum Percentage
of Habitable Space
40%
35%
30%

Application

Standard
Board discretion
Board discretion

(5)
Number of accessory apartments per lot. There shall be no more than one
accessory apartment permitted per lot.
(6)
Exterior appearance. The entry to such unit and its design shall be such that, to the
degree reasonably feasible, the appearance of the building will remain as a one-family
residence.
(7)
Water and sewer service. Prior to issuance of a building permit for the
establishment of an accessory apartment in a principal dwelling building, approval of the
proposed method of water supply and sewage disposal shall be obtained from the
engineer for the Town.
(8)
Off-street parking. In addition to off-street parking spaces as required for the
principal dwelling under the Brookhaven Town Code, there shall be located on-site a
minimum of one off-street parking space for use of the accessory apartment. The parking
spaces and driveway thereto must be paved with asphalt, concrete or other similar
materials.
(9)
Maintenance. All structures located on a lot on which an accessory apartment is
located shall be maintained in a neat and clean manner, including but not limited to
exterior shingles, paint, shutters and trim as well as landscaping and shrubbery. The
premises and buildings shall comply with the New York State Property Maintenance
Code and any amendments thereto, and all applicable provisions of the Town Code,
including but not limited to Chapter 82, Neighborhood Preservation. No Accessory
Apartment Review Board approval or provisional accessory apartment license shall be
issued or shall be renewed where a violation exists on the premises or within the
dwelling.
(10) The principal structure as well as the accessory apartment must comply with all
requirements for two-family dwellings as per the New York State Uniform Fire
Prevention and Building Code and/or the laws and housing regulations of the State of
New York, County of Suffolk and Town of Brookhaven.
(11) All applications must be supplied by the owner(s) of the property, and the
applicant shall be required to file an acknowledged statement with the Town of
Brookhaven. This statement shall state that the provisional accessory apartment license
for accessory apartment use and any extension of said provisional accessory apartment
license shall terminate upon the death of the undersigned or the survivor of the
undersigned, upon the transfer of title to said premises, upon the undersigned no longer
occupying the premises as their principal residence or upon conviction for a violation of
this section.
(12) Every owner shall be required to file a sworn and notarized affidavit, representing
to the Town that the owner is not a registered sex offender. The affidavit shall also state

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that the owner is making such representations with full knowledge that the Town of
Brookhaven is relying on these statements as a basis to issue a provisional accessory
apartment license.
(13) The applicant shall be required to file a form stating that the subject dwelling and
premises shall meet with all New York State Uniform Fire Prevention and Building Code
requirements and all Town of Brookhaven requirements pertaining to provisional
accessory apartment licenses for accessory apartments. The applicant will be required to
meet these standards within six months of the granting of the building and zoning permit
or the special permit will become null and void. Said time period may be extended by the
Chairperson of the Accessory Apartment Review Board for up to an additional six
months. In those instances where other governmental or outside agencies cause a delay in
either issuing approval or certifying work, the Chief Building Inspector shall have the
authority to grant additional time to the applicant in which to obtain the required
provisional accessory apartment license.
(14) Limitations. Neither Accessory Apartment Review Board approval nor
provisional accessory apartment license shall be issued for an accessory apartment in the
event that 5% or more of the lots within a one-half-mile radius of the subject parcel
contain accessory apartments. The Accessory Apartment Review Board may vary this
requirement when, due to sparsity of development in the surrounding area, it is not
practicable to maintain the five-percent cap on accessory apartments. This subsection
shall not apply to applications filed within six months of the effective date of this article
where the application is to legalize an accessory apartment preexisting the effective date
of this article.
(15) It shall be unlawful for a property owner or person in charge of property to
establish or maintain an accessory apartment if that property owner or person in charge of
the property is a registered sex offender. For the purpose of this article, the term
"registered sex offender" shall be defined as in 55-2 of the Brookhaven Town Code.
(16) It shall be a violation to fail to meet the requirements of Article XVIII at any time
there exists an accessory apartment.
C.
Applications.
(1)
There shall be submitted to the Building Division as follows:
(a)
An application to the Accessory Apartment Review Board for a special permit.
(b)
An application to the Building Division for all necessary building permits.
(2)
The Accessory Apartment Review Board, as part of its application, may require
the applicant to submit other items, including but not limited to floor plans, photographs,
exterior renderings, etc.
(3)
The application for a transfer of a provisional accessory apartment license to a
subsequent property owner shall be on such forms and in such manner as shall be
prescribed by the Accessory Apartment Review Board. The notice and hearing
requirements of Subsection F(4) and (5) shall not apply to applications for transfer,
except that the Chairperson of the Accessory Apartment Review Board shall have the
authority to require a hearing on notice when, in his sole discretion, special circumstances
exist which would require public input.

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D.
Fees.
(1)
The application fee to the Accessory Apartment Review Board for a special
permit or provisional accessory apartment license for the initial one- to three-year period
shall be $150. The application fee for the five-year renewal period shall be $250. At the
discretion of the Board, and upon a showing of extenuating circumstances, a permit may
be renewed for less than the five-year period for a fee of $50 per year.
(2)
Upon failure to obtain a provisional accessory apartment license for the accessory
apartment, within the total allotted time, the first reapplication fee will be $300. For a
second failure to obtain the provisional accessory apartment license in the allotted time,
the second reapplication fee will be $500. For any and all subsequent reapplications, the
fee will be $500. These increased reapplication fees also apply to renewals.
(3)
The fee for a transfer for the unexpired term of a special permit or provisional
accessory apartment license shall be $50. All fees collected hereunder shall be allocated
to the enforcement and administration of this article.
E.
Accessory apartments shall not be permitted within an existing multifamily
structure.
F.
Accessory Apartment Review Board.
(1)
The Accessory Apartment Review Board shall consist of three members
appointed by the Town Board, one of whom shall be designated Chairperson. The Town
Board may provide for compensation to be paid to said members and provide for such
other expenses as may be necessary and proper. Of the members of the Board first
appointed, one shall hold office for the term of one year, one for the term of two years
and one for the term of three years; provided, however, that the Town Board may, by
resolution, increase the number of members of the Accessory Apartment Review Board
to five members and provide for their compensation, and thereafter such additional
members shall be appointed for terms of one year and three years respectively. Their
successors shall be appointed for the term of three years from and after the expiration of
the terms of their predecessors in office.
(2)
Such Accessory Apartment Review Board shall hear and decide applications for
special permits to allow accessory apartments pursuant to this article.
(3)
The Accessory Apartment Review Board shall adopt rules necessary to the
conduct of its affairs in keeping with the provisions of this article. Meetings shall be held
at the call of the Chairperson and at such other times as the Board may determine. The
Board shall keep minutes of its proceedings and records of its examinations and other
official actions, all of which shall be a public record.
(4)
All applications made to the Board shall be in writing, on forms prescribed by the
Board. The Accessory Apartment Review Board shall fix a reasonable time for the
hearing of the application and give public notice thereof, as well as due notice to the
applicant. The applicant shall mail notice of the hearing by either certified or registered
mail, return receipt requested, to every property owner, as shown on the current
Brookhaven assessment rolls, owning property immediately adjacent and contiguous to
that of the applicant. For purposes of this section, property separated from that of the
application by a public road or right-of-way shall be deemed contiguous.
(5)
The following shall be submitted with such application:

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(a)
A copy of the notice sent to property owners.
(b)
A list, in duplicate, containing the names and addresses of the owners to who
notices were sent.
(c)
Return receipts.
(d)
An affidavit of mailing of the aforesaid notices.
(e)
Three surveys giving the exact description and location of property with all
existing and proposed structures and setback from all property lines.
G.
Revocation. The Accessory Apartment Review Board shall retain the right to
revoke any special permit or provisional accessory apartment license issued hereunder
should the applicant or applicant's tenant violate any provision of this article or any
condition imposed upon the issuance of the Board approval. Said revocation shall be after
a hearing held on notice to the applicant and, if known, the tenant. As an alternative to
revocation, the Accessory Apartment Review Board may continue the special permit or
Provisional Accessory Apartment License on a probationary basis, and in such event, it
may revoke the special permit or provisional accessory apartment license without further
notice to the applicant or tenant upon a violation of any conditions attached to the
probationary permit. Any property owner or person in charge of property who violates
85-201B(15) shall have their special permit and/or provisional accessory apartment
license immediately and automatically revoked upon such registration as a sex offender.
H.
Lapse of approval for a special permit. Every application for a special permit
granted by the Accessory Apartment Review Board shall be and become null and void
and of no further force and effect unless the applicant obtains a building and zoning
permit for work to be done and/or change of use no later than six months after approval is
granted by the Accessory Apartment Review Board. In those instances where other
governmental or outside agencies cause a delay in either issuing approval or certifying
work, the Chief Building Inspector shall have the authority to grant additional time to the
applicant in which to obtain the required building permit or other required approvals.
I.
No person shall create or occupy an accessory apartment without obtaining an
approval from the Accessory Apartment Review Board and a provisional accessory
apartment license for said use from the Building Division.
J.
It shall be unlawful and a violation of this chapter for any owner, person or entity
to allow a provisional accessory apartment license to lapse without renewal or the
obtaining of a building permit and subsequent certificate of compliance for the removal
of the kitchen and reconfiguration of the residences to a one-family dwelling.
85-201.1. Penalties for violations of accessory apartment regulations. [Added 2-262009, effective 3-22-2009]
A.
Any person or corporation who shall violate the provisions in this article shall be
punished pursuant to the provisions of 85-432C of the Brookhaven Town Code.
B.
For each violation of the provisions of 85-201B(15), the property owner or
person in charge of property shall be issued a notice of violation and shall take all
necessary actions within 45 days of the date of the notice to remove the tenant(s) from the
premises, and if, at the end of such period, the tenant(s) has not been removed and/or a

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summary proceeding in a court of competent jurisdiction to remove such tenant(s) has not
been commenced by the property owner, then such owner shall be deemed to have
committed an offense against this chapter, and shall, upon conviction, thereof be subject
to a fine or penalty of $2,500 for a conviction of a first offense; upon the occurrence of a
second or subsequent offense, the property owner or person in charge of property shall be
deemed to have committed a misdemeanor and upon conviction thereof shall be subject
to a fine or penalty of $2,500 or imprisonment not exceeding six months, or by both such
fine and imprisonment. Each week, or part thereof, such violation continues following the
expiration of such 45 days shall constitute a separate offense punishable in like manner.

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