Massachusetts lawmakers say accessory dwelling units can unlock the state’s housing crisis one in-law suite at a time. But cities and towns need to move quickly, and zoning rarely does.
Signed into law earlier this month, the state’s Affordable Homes Act greenlit construction of accessory dwelling units, or ADUs, statewide. The legislation removes restrictions cities and towns may have that hinder or slow the development of ADUs. The law’s provisions go into effect Feb. 2, leaving cities and towns fewer than six months to amend such zoning bylaws to be in compliance with the new state law.
Some face one or two tweaks to their bylaws. Others will grapple with extensive changes. The deadline is challenging, too, because communities, planners and lawyers have questions and see gray areas in the law that the state has yet to clarify.
In Berkshire County, 21 towns have some provision in their zoning bylaws governing ADUs. Only three of them have existing bylaws that align with the Affordable Homes Act.
The other 18 face the deadline to make bylaw changes. Berkshire County has 11 municipalities without an ADU bylaw on the books.
Municipalities and planners would have benefited from a later deadline, perhaps June 30, 2025, according to Cornelius Hoss, community planner and development program manager at Berkshire Regional Planning Commission.
“Especially when you factor in that most of the communities in the region are volunteer planning boards with no staff support and they’re doing it on their own,” Hoss said.
Whether or not municipalities amend their bylaws will have no impact on residents’ ability to build ADUs because state law supersedes local bylaws. But not amending bylaws could affect a town’s ability to oversee and regulate the construction and rental of ADUs.
Just because ADUs are now allowed by-right doesn’t mean municipalities shouldn’t be thinking about “reasonable” restrictions, Hoss said. The state law leaves it to towns and cities to make some modifications to the law, as they see fit, such as additional size and dimensional setback restrictions, requiring a site plan review and restricting short-term rental of ADUs.
WHAT EXACTLY IS AN ADU?
The term “accessory dwelling unit” is relatively new, but the concept is not. Before they were called ADUs, people built garage apartments, “granny flats” and in-law apartments. Like those, an ADU is a secondary dwelling that accommodates sleeping, cooking and sanitary facilities on the same lot as a principal dwelling.
Massachusetts Housing Secretary Ed Augustus called ADUs “low-hanging fruit from a policy perspective,” during an editorial board meeting with The Eagle in May. Augustus said removing some of the red-tape that comes with building ADUs was a “no brainer” in the state’s push to create more housing quickly.
In practice, ADUs can take various iterations. Some are modified basements and attics. Some are apartments over garages. Others are cottages and converted barns.
Whatever it may look like, as long as the unit is self-contained and has its own entrance, it’s an ADU.
Beyond this basic definition, the state has long left it up to individual towns and cities to define ADUs, set restrictions and decide whether to allow them at all.
In Berkshire County, this has led to a mosaic of ADU bylaws. Four towns require that residents interested in constructing an ADU apply for a special permit. Four require special permits only when applicants are building new structures. Eleven allow ADUs by-right, requiring only a building permit, not a special permit.
Thirteen towns require that the owner of the property live in one of the units; eight do not.
Size restrictions and parking restrictions also vary widely from town to town.
With the passage of the Affordable Homes Act, Massachusetts has a comprehensive definition of what an ADU is and how towns and cities can regulate them for the first time.
No longer can towns and cities require special permits, except when building more than one ADU on a property.
Municipalities can no longer require that the owner of the property live in either the primary dwelling or ADU, nor can they require more than one parking space for an ADU.
The statute answers questions about size too — an ADU cannot be larger than half the gross floor area of the principal dwelling or 900 square feet, whichever is smaller.
Only three towns in Berkshire County have bylaws that do not require special permits, owner occupancy or more than one parking space, and match the statute’s size requirement: Great Barrington, Williamstown and Lanesborough. The rest of Berkshire County has work to do to meet the state’s requirements.
INCENTIVES TO AMEND
It is up to each town and city whether they amend — or create — their ADU bylaws by the date the statute goes into effect, said Alexandria Glover, a civil litigator at Lazan Law in Great Barrington. The statute will kick in either way.
But currently towns and cities have the opportunity to tailor the statute. While the Affordable Homes Act takes some control out of municipalities’ hands when it comes to regulating ADUs, it does provide municipalities the ability to adopt a handful of restrictions: additional size restrictions, site plan review, restricting the short-term rental of ADUs and other “reasonable” restrictions.
“There are some protections built in that are critical to making sure the number of houses is not just increasing the number of hotel rooms, meaning short-term rentals,” Glover said.
Glover said failing to take advantage of these provisions would be a mistake on the municipalities’ part.
“A town doesn’t have to amend the bylaw to address the new statute, [but] from my perspective it would be a terrible idea because the statute permits the towns to set some parameters,” said Glover. “If the towns don’t set those parameters, the statute is going to permit owners to build ADUs without any restrictions at all except for what’s set in the statute.”
And if municipalities’ leave their pre-existing ADU bylaws on the books, certain provisions will be out-of-date and unenforceable.
“If the towns don’t rewrite their bylaws, you’re going to have a lot of confusion,” Glover said. “Because when people go to the zoning bylaw online and look it up to see what they can and can’t do in the town, the zoning bylaw will be inaccurate.”
WILL MUNICIPALITIES AMEND?
Planning boards across the county are all asking a similar question: Do they amend — or create — their ADU zoning bylaw to be in compliance with the statute?
In Lenox, residents have long needed to qualify for a special permit in order to construct an ADU. The town required the owners of the property to live in the primary or secondary dwelling, and that the ADU be no larger than 50 percent of the primary dwelling’s gross floor area or 800 feet, whichever is smaller.
The special permit requirement has been a significant hurdle for people to overcome and has dampened interest in constructing ADUs, said Lenox Town Planner Gwen Miller.
“The threshold for the special permit is high to achieve and there’s some conservative size limitation in our current language,” said Miller. “So overall, I would say the state’s new regulations are a good thing and should ease the process for property owners.”
Miller said the town already has plans to amend the zoning bylaw by a special town meeting in November or the annual town meeting in May, but doesn’t feel rushed to address it by the Feb. 2 deadline.
“Any amendment we make to bring it into compliance or congruence with the state law won’t be big changes,” Miller said. “We have the framework there and I think what we’ve always intended to do anyway is to take away the special permit.”
But the changes Lenox will have to make to the bylaw are not small. Besides removing the special permit requirement, the town will also need to adjust size limitations and strike out the requirement that the owner occupy one of the residences on the property.
The latter is a particularly sticky issue in Berkshire County, where many residents have expressed concern about the proliferation of short term rentals and absentee landlords.
When the town does draft the amendment, Miller said she hopes they do not pursue the site plan restriction the state left open to municipalities.
“[Site plan review] creates another layer of costs to home owners through the procurement of professionally prepared site plan materials and often lawyer fees,” Miller said. “Site plan review still requires a public hearing, at which neighbors who would be suspicious toward any change sometimes are particularly alarmed over a simple accessory apartment above a garage or in a former stable/barn building on the property because ‘they don’t know who will be living there.'”
Some municipalities are taking a different approach.
ONE GAME PLAN: WAIT AND SEE
Florida is one of 11 towns and cities in the county that have no provision directly addressing ADUs in their bylaws.
Tim Zelazo, vice chair of the Florida Planning Board, said ADUs came up years ago at a town meeting. Residents’ response to ADUs then wasn’t favorable.
“They’re concerned by the character of the neighborhood changing,” Zelazo said.
Zelazo said he’s not in a rush to add an ADU provision to the town’s bylaw anytime soon. When the statute goes into effect in February, it will go into effect in Florida whether or not the town makes any local amendments.
That gives the town time to navigate opinion in town and update its bylaw later, Zelazo said.
What municipalities across the county do share is a feeling that the best game plan is to wait and see.
While the Affordable Homes Act has clarified queries about the definition and “unreasonable” restrictions for ADUs, it has left municipalities, lawyers and planners with a series of new questions about how to interpret provisions in the statute.
A line in the statute signals to further guidance that could come from the Executive Office of Housing and Livable Communities. Hoss, Glover and members of various planning boards said they hope to receive these clarifications in time to determine the best step forward.
The Berkshire Regional Planning Commission assists municipalities across the county in amending their zoning bylaws. With the passage of the Affordable Homes Act, Hoss said a number of towns have reached out regarding tweaking their ADU bylaws.
But the BRPC, like municipalities themselves, is still determining the best path forward — and hoping for news from the state.
“We’ve had a few different communities reach out to us and our response has been, we’re trying to formulate in the near term how we want to have a consistent response,” Hoss said.
But that wait-and-see strategy is hard to balance with the impending deadline.
“Most of the municipalities I work in are going to find this to be a big change,” said Glover. “We’re all going to need to adjust our thought process about accessory dwelling units and how that affects the town. That’s going to be a thought process that has to happen pretty quickly since we have six months to address it in a zoning bylaw amendment.”
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Publish date : 2024-09-01 13:00:00
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