Cellar Level Hotel Rooms

Disclaimer: This post is based on a partial review of ZRD1 approvals. A more thorough analysis of all ZRD1’s approved by the department may lead to alternate conclusions. In addition, department practice may have evolved in more recent approvals. The ZRD1 Project strives to be accurate and fair-minded and we welcome clarifying information from the department or anyone who has better information on the subject discussed below. Please email info@zrd1.com with any questions or concerns.

July 2024 Update - The City of Yes for Economic Opportunity text amendment makes portions of these blog posts obsolete.  Some text sections have been reorganized and links to section references may no longer be accurate.  More importantly, the text amendment opens a new chapter in New York City zoning analysis.  Until such time that these posts can be updated, please consider this post as representative of NYC zoning prior to the enactment of the City of Yes text amendments.

In New York City every square inch of development rights are utilized to generate more rentable area. Since cellar level floor space is not included in the building floor area developers often place additional retail space or residential amenities at the cellar level. An interesting variation on this is when a hotel has guestrooms at the cellar level. Dwelling use in the cellar is highly regulated by various city and state laws, and there has been confusion among many architects and plan examiners about what is allowed in the cellar.

Definition of Floor Area at Cellar Level

The first issue is whether hotel rooms should count as floor area in the cellar. The Zoning Resolution definition of floor area excludes cellar space, “except where such space is used for dwelling purposes”. But what exactly does "dwelling purposes" mean? That phrase is not defined in the Zoning Resolution. However, the term "dwelling unit" is defined:

A "dwelling unit" contains at least one room in a residential building, residential portion of a building, or non-profit hospital staff dwelling, and is arranged, designed, used or intended for use by one or more persons living together and maintaining a common household, and which dwelling unit includes lawful cooking space and lawful sanitary facilities reserved for the occupants thereof.

By this definition, the occupation of a hotel room is clearly not a “dwelling purpose”. The confusion probably stems from hotels being considered an R1 residential occupancy in the Building Code and a Class B Multiple Dwelling in the Multiple Dwelling Law. Nonetheless, we must look to the Zoning Resolution to define the terms used in the zoning text. The Department has previously considered this issue, as in this ZRD1 for 131 32nd Street (Brooklyn):

Adequate Adjacent Space

As noted in the previous ZRD1 approval, all transient hotel rooms located in the cellar must be provided with adequate adjacent space for light and air. Specifically, the Building Code, Housing Maintenance Code and the Multiple Dwelling Law all provide requirements for this adequate adjacent space.

Section 1205.2.3 of the Building Code requires that rooms have at least one-half of their height and all of the required windows above every part an adequate adjacent space measuring not less than 30 feet in its least dimension.

MDL Section 26(8) requires that the level of the yard to be no higher than the level of the cellar floor, unless the depth of the yard exceeds the minimum required depth by at least one-half. In that case, the level of the yard can be no higher than 6 inches below the level of the window sill. It appears that for hotel rooms the Department has allowed a 30 foot deep rear yard to count as 50% deeper than the required 20 foot rear yard for commercial use, despite the requirement in BC 1205.2.3 that defines the lower limit of the adequate adjacent space as 30 feet.

Other requirements are listed in MDL section 34(6). Importantly, the interior clear height must be at least 8 feet, floors and walls are to be damp proof and waterproof, the yard shall be drained, and in some cases the building needs to be sprinklered. This section also states that the cellar shall count as a story for the purpose of all requirements except those relating to the height of the building. This might be relevant if the building included an exterior stair, which is only allowed for buildings which have six or less above grade stories per BC 1026.2.

Permitted Obstructions in Rear Yards

We have established that hotel rooms have been allowed in the cellar if adequate adjacent space is provided and that the floor space used for hotel rooms is not included in the building floor area. There are still more zoning challenges to address. Specifically, whether any obstructions are present in the recessed rear yard.

As seen in this ZRD1 for 120 Thatford Ave (Brooklyn), the applicant received an objection for having stairs in the recessed rear yard, which are not a permitted obstruction pursuant to section 33-23. However, the applicant argued that the stairs are more accurately considered “steps” and a “porch”, which are permitted obstructions in a rear yard:

The Department agreed, writing:

Another obstruction to consider is the retaining wall along the lot lines at the perimeter of the rear yard. In the case of 120 Thatford Avenue, the rear yard had been recessed by 10 feet, so the retaining wall exceeded the 8 foot allowance for a permitted obstruction. In approving the ZRD1 for the stair obstruction, the Department required the applicant to revise the level of the rear yard:

The applicant ultimately revised the level of the rear yard and nine months later received approval on another ZRD1, this time showing the rear yard to be recessed only 7’-9” from curb level. The retaining wall was less than 8 feet tall and was surrounded by a 3 foot high picket fence:

MDL Section 26(8)

An interesting issue that was not discussed in these ZRD1’s is the dimensions of the adjacent open area provided by the recessed rear yard. Notice that the guest rooms at cellar level only occur where there is 30 feet of open space adjacent to the room. The remaining portion of the cellar is used as a breakfast area.

The area adjacent to the breakfast room appears to have a 20 foot minimum dimension. When the bottom of the rear yard was at the level of the cellar floor, this 20 foot open space would be adequate adjacent area for hotel rooms. But since the cellar floor has been lowered relative to the bottom of the rear yard, MDL section 26(8) prevents hotel rooms here because the open space is not 50% wider than the minimum required rear yard.