No Proof of Illegal Basement Apartment

DOB issued a violation notice to landlord for converting the building's cellar from a boiler room and storage to a dwelling unit with a bedroom, bathroom, and residential sink. At a hearing before the ALJ, landlord claimed that there was no proof of illegal alteration. DOB presented no Certificate of Occupancy or other agency document showing the legal occupancy of the building. DOB's inspector stated that, although the cellar was at grade level, it couldn't be used as a dwelling because of inadequate means of egress. The ALJ ruled against landlord and fined him $800. Landlord appealed.
The ECB ruled for landlord and revoked the fine. The only available DOB record showed that in 1946 the building was approved as a two-family residence. This was consistent with the use cited in the violation notice. Landlord's architect credibly argued that it was possible that the cellar was legal under the laws in effect when the building was built. And it was possible that the lower level, which was grade level at the rear, was classified by DOB as a basement and not a cellar when it was built. A basement can be used legally for living purposes.

Chrysonthou: ECB App. No. 46868 (8/14/08) [3-pg. doc.]