Disclaimer: This post is based on a review of select ZRD1 and CCD1 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.

Home Occupations in the Zoning Resolution

Home occupations are essentially small commercial spaces occurring within a residential use and are allowed even when commercial use is otherwise prohibited in the zoning district. Home Occupations are defined in the Zoning Resolution as an accessory use with the following conditions:

• is clearly incidental to or secondary to the residential use of a dwelling unit or rooming unit;

• is carried on within a dwelling unit, rooming unit, or accessory building by one or more occupants of such dwelling unit or rooming unit, except that, in connection with the practice of a profession, one person not residing in such dwelling unit or rooming unit may be employed; and

• occupies not more than 25 percent of the total floor area of such dwelling unit or rooming unit and in no event more than 500 square feet of floor area.

Some uses are prohibited from being a home occupation, but low impact uses, such as professional office and artist studio, are allowed. These spaces are not listed separately on the Schedule of Occupancy as they are contained within the residential use. When buildings are being converted in accordance with ZR 15-00, the regulations are a little different for some C5 and all C6 zoning districts.

Home Occupations in the Building Code

The NYC Building Code does not directly address home occupations, but they would be considered an “occupiable space” rather than a “habitable space”. A habitable space, such as a bedroom, living room, kitchen, etc, requires windows fronting upon a “a public street, space, alley, park, highway, or right-of-way; or upon a yard, court, plaza, or space above a setback…” An occupiable space may be artificially lit and ventilated, which means that an home occupation does not require windows.

The Problem with Home Occupations

The building department does not seem to like home occupations and plan examiners provide extra scrutiny when they are proposed. The concern is that a windowless room will be labeled as a home occupation when that space is intended to be used as a bedroom. Some people may not care about the lack of natural light and ventilation in their bedroom, but there are also life safety concerns. In the event of a fire, an occupant could be trapped with no way to open a window for smoke exhaust and emergency rescue.

Nonetheless, working from home is becoming more common and dedicated home offices are trending in the residential market. So what does the department look for when home occupations are proposed? In this case, we look to Construction Code Determinations (CCD1) in addition to ZRD1's for the insights. The following items have appeared in a few CCD1's on this issue:

• Mechanical Ventilation

Most spaces need to be ventilated and home occupations are no exception. The NYC Mechanical Code details the requirements for mechanical ventilation at section 403.

• Notation on plans

The plans need to contain a note saying something like “home office shall not be used as a habitable room for sleeping purposes”

• No closets are allowed in the home office

This comment appears in a pair of CCD1’s from 2015 and 2017. I don’t see anything in the building code that would restrict closets in a home occupation, but it does help to make the room a bit less habitable as a bedroom.

• Minimum 6’-0” opening to the home office

This comment also appears in those CCD1's from 2015 and 2017. Again, there is nothing in the building code to require this opening, but it is something that the building department has added to discourage the use of the home occupation as a dedicated bedroom.

The rules above are general guidelines for home occupations in residential buildings. But there are exceptions that leave us wondering whether department practice has been settled. Take, for instance, this ZRD1 for 20 Broad Street, approved in 2016. The building fronts on three streets, measures approximately 150 feet by 120 feet, and was undergoing a residential conversion. The resulting floor plans are fascinating. Most of the units are over 50 feet deep, leaving almost half of the unit without legal light and air. These areas are occupied by non-habitable spaces, including foyers, bathrooms, closets, hallways and home occupations.

Here is an example of three units:

Units R and T are in accordance with what we believed to be department practice. But Unit S has two home occupation spaces, one of which is enclosed with a door, and there are two full bathrooms even though there is only one bedroom in the unit. This ZRD1 was under review for six months before the approval was issued, so there must have been a lot of discussion about it before the department made their determination.

I don’t know why the conditions of approval were different from the other determination requests, but this one shows that home occupations are sometimes allowed to be enclosed. Perhaps the term “home occupation” is different from the term “home office”. In the first two CCD1’s the applicants proposed a home office, and the department required openness to the remainder of the unit. In the ZRD1 for 20 Broad Street, the applicant proposed a “home occupation”. I think these terms are equivalent, but perhaps the department treats them differently.

I can appreciate the department’s concern for the illegal use of home occupation spaces. Without these restrictions there would be a proliferation of windowless rooms that are occupied as bedrooms. The problem is that the department’s conditions of approval, while justified in a practical sense, do not appear to be supported by the zoning resolution or the building code. Perhaps a zoning text amendment is needed to clarify how home occupations may occur in a residential unit. For now, if you want to get approval for a home occupation, I suggest complying with the four items noted above in the approvals from 2015 and 2017.

Please send us an email if you have recent experience with home occupations or would like to discuss home occupations in a potential development project.