G THE B IN EN V C R H E

S

A N 8 D 8 B 18 AR CE www. NYLJ.com SIN Volume 260—NO. 2 Tuesday, July 3, 2018 Outside Counsel Expert Analysis Overview of Light and Air Legal Requirements in New York

his article provides a ge- itself or, where there is a merged zon- neral overview of legal ing lot, over another parcel on the requirements for light and merged lot. Thus, although By air applicable to residential James P. developers generally focus on zoning use in . Power lot mergers and the associated zoning TAs a general matter, every “liv- lot development agreements (ZLDAs) ing room” in a residential unit must as means of acquiring excess develop- have a legal window, i.e., a window ment rights, they can also provide the through which required light and air window distance requirement. For additional benefit of establishing legal is provided. A living room is, gener- example, the required rear yard for light and air over the adjoining parcel. ally, any habitable room other than a residential use is generally 30 feet, and The benefits of light and air ease- small kitchen or dinette, bathroom, the minimum dimension of an inner ments are many—they ensure that foyer or hallway. Legal windows may court is also generally 30 feet. A legal views will be protected into the future, of course open directly on the street or window can open upon such a rear they allow for the establishment of on a setback portion of a building fac- yard or court with a 30-foot dimen- legal bedrooms on a facade where ing the street. Otherwise, per Zoning sion. The Zoning Resolution allows a they might not otherwise be permit- Resolution Section 23-861, there must reduction of the rear yard requirement ted, and the right to legal windows can be at least 30 feet of open area between for certain unusually shallow lots, and often enhance the layout of a unit or a a legal window and an opposite a legal window is permitted to open floor. However, the right to legal light or a rear or side lot line. That distance upon such a rear yard if it is as little and air is not automatic on a merged is measured “in a horizontal plane at as 20 feet in depth. However, while a zoning lot. The ZLDA should explic- the sill level of, and perpendicular to, reduction of the minimum inner court itly provide for a light and easement such window for the full width of the dimension is available in other situa- over the adjoining parcel, and should rough window opening.” tions, a legal window is not permit- require that the owner of the adjoin- Other regulations under the Zoning ted to open upon such a substandard ing parcel deliver the easement in a Resolution track the 30-foot minimum inner court. separate form document, as required The 30 feet of open area must be by Department of Buildings. James P. Power is a partner at Kramer Levin Naftalis provided on the same zoning lot, i.e., The easement can be established & Frankel representing clients in real estate develop- ment and land-use matters. either on the same lot as the building over the height of an existing building Tuesday, July 3, 2018 on the adjoining parcel, or it can be than 30 feet is provided to the lot line, MDL Section 277 also allows the above a defined plane, in the event but additional open area is provided DOB to waive the otherwise appli- that the owner of the adjacent parcel by easement over an adjoining parcel cable requirements for conversions anticipates additional development on a different zoning lot. of nonresidential buildings, and DOB in the future. In any event, the com- Otherwise, the only exception to the has on occasion allowed legal windows mencement level of the easement must requirement that light and air over an where there is only a minimal distance be sufficient so as to provide direct adjacent parcel be established by zon- between the window and the lot line light and air to each legally required ing lot merger and easement is in the but the light and air condition is oth- window in the new development. The case of conversions of nonresidential erwise sufficient, e.g., where the light easement should also account for buildings to residential use pursuant and air is protected by an easement existing and future bulkheads and roof- to Article I, Chapter 5 of the Zoning over the adjacent parcel on a different top mechanical equipment, some of Resolution. Such conversions are sub- zoning lot. which may be permitted obstructions ject to Multiple Dwelling Law (“MDL”) Under the MDL, legal windows are within the legal light and air. subject to various other requirements, Easement rights established in a A general overview of require- including standards for the size of the ZLDA can be insured by a title com- ments for legal light and air window relative to the size and depth pany under a New York City Develop- applicable to residential use in of the room for which light and air is ment Rights Endorsement. The Title provided. Every window must be at New York City. Insurance Rate Service Association least 12 square feet, and the windows (TIRSA) form endorsement provides: Section 277, which establishes more in every room must have a total area “This policy further insures an ease- liberal provisions for light and air and of at least one-tenth the floor surface ment for light and air … and nega- other requirements than the regula- area of the room. No room may extend tive covenants not to build … as is tions generally applicable to residen- in depth more than 30 feet from a legal set forth, defined and limited in the tial development, and allows for legal window. And windows must be con- ZLDA …” light and air where there is as little as structed so that at least one half of This minimum distance requirement 15 feet between the window and an their required area may be opened, may be waived by the Board of Stan- opposite building wall. Further, such except that this requirement may be dards and Appeals through a variance distance can include up to 10 feet on reduced if mechanical ventilation is pursuant to Zoning Resolution Sec- an adjacent lot, with no requirement provided. tion 72-71, or through certain special that the adjacent lot be part of the A building’s exterior wall openings, permits under the jurisdiction of the same zoning lot or that the 10-foot area i.e., its windows, are also subject to City Planning Commission. However, be protected by an easement. Thus, it fire separation and other requirements the minimum distance requirement is is possible that a legal window could under the Building Code and interpre- considered an important requirement be established in a converted building tive DOB bulletins and memoranda. for residential occupancy, and BSA with as little as five feet of open area and CPC will generally only consider on its own lot, and it is even possible a waiver if the applicant can show that that the adjacent parcel could subse- the proposed light and air condition quently be developed to the lot line, is otherwise sufficient. For example, leaving that five feet of open area as Reprinted with permission from the July 3, 2018 edition of the NEW YORK LAW we have been successful in obtaining the legal window’s only source of light JOURNAL © 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 waivers of this requirement where less and air. or [email protected]. # 070-07-18-02