Lawmakers change strategy for legalizing NYC’s basement apartments

Focus shifts to giving localities control over accessory dwelling units

Senator Brian Kavanagh and Assemblymember Harvey Epstein (, NYassembly, iStock)
Senator Brian Kavanagh and Assemblymember Harvey Epstein (, NYassembly, iStock)

The word “shall” comes with a lot of baggage.

When Gov. Kathy Hochul rolled out her executive budget bills, one said localities “shall” create rules to allow accessory dwelling units on single-family lots. An uproar among Long Island lawmakers and residents forced her to remove the proposal from her budget.

But there may be another way. Lawmakers are pushing a measure exclusive to New York City, where granny flats are less controversial and enjoy more political support.

The bill would allow, but not force, the city to create a pathway for building owners to bring their illegal units — basement apartments and other accessory dwelling units — up to code without the state’s multiple dwelling law getting in the way.

The measure, sponsored by Sen. Brian Kavanagh and Assembly member Harvey Epstein, closely mirrors language Hochul promoted after axing her statewide proposal, which required the city to create an amnesty program for building owners looking to bring their units up to code. That proposal was also left out of the budget, along with several other housing measures.

State and city officials held a rally in Queens on Thursday in support of the measure, which also has the backing of the Adams administration. The bill could pave the way for tens of thousands of basement units to become legal residences.

The deaths of 11 New Yorkers in flooded basement apartments during Hurricane Ida renewed calls to address such units and the reluctance of their tenants to report unsafe conditions.

The bill would give tenants removed from a since-legalized unit first dibs on renting it. That provision seems to acknowledge that a landlord might need to clear out a unit to do renovations to make it legally habitable. It also recognizes that elected officials will not pass a bill that results in any tenants losing their homes.

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Critics of the governor’s proposal said the state was usurping local control over zoning. Her political opponents claimed it would end single-family housing, even though it neither barred such housing nor mandated the construction of ADUs.

Republican Rob Astorino even claimed it would “abolish suburbs.” Democrat Rep. Thomas Suozzi, who like Astorino is vying for Hochul’s job, said he does not oppose accessory dwelling units, just any state-level mandate that localities must allow them.

“If a local municipality decides they want ADUs and puts the proper safety precautions in place, I would never try and supplant my judgment for theirs,” Suozzi said in a statement Thursday.

Backers of a statewide mandate believe giving municipalities an option to do nothing would result in few housing units being added. But passing such a measure is difficult, especially in an election year.

Lawmakers now seem focused on giving localities the flexibility to make these decisions on their own. A separate bill, sponsored by Southampton Assembly member Fred Thiele, calls on the state to create an incentive program for creating ADUs in municipalities where they are already legal. Another measure requires all localities to study affordable housing options, such as ADUs.

Epstein said the legislature needs to “regroup” on legalizing ADUs throughout the state.

“We heard a lot during the budget process that we needed to focus on local control,” he said in an interview Friday. He noted that a pilot program in East New York to legalize basement apartments fell short, in part, because of obstacles posed by state law.

The state bill promoted at the rally Thursday gives the city the ability to address illegal apartments on a larger scale. “If you are concerned about health and safety,” Epstein said, “this is your chance to do something.”