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Thursday, February 22, 2018

Zoning and Other Legal Obstacles to Tiny Houses



Tiny House fever is sweeping the nation. The public seems to be head over (w)heels for the concept—small yet artistically crafted
homes offering  the key elements of a house in the space of a traditional garden shed.

The allure of tiny homes has people buying them in hopes of skirting unattainable home prices. But new Massachusetts tiny home owners have a big problem—where can they put them?

As a Home Rule state, Massachusetts Municipalities have the power and freedom to enact and enforce their own Zoning Bylaws. Further, land uses and structures are also regulated under the Zoning Act, plus the Building Code and other state regulations. Most municipalities have utilized their land use authority to impose restrictions on residential dwellings, of course, and many have adopted siting specifications, permit requirements, and sometimes flat-out bans on mobile homes and trailers.

So begs the question—is a Tiny House a mobile home or trailer, as regulated by many Massachusetts municipalities? The short and inconvenient answer is both yes and no. A recent in-house survey shows the nuances of the question.

Tiny Houses are complex creations. There is no one formula or definition for a tiny home. They can range in size from less than 100 square feet to upwards of 1,000 (as a city apartment-dwelling resident, I can affirmatively say that tiny is subjective.) They can look like miniature Victorian homes decked with gingerbread trimmings, pint-sized manors with mansard roofs, or play-house log cabins. Their appearance is up the creator’s imagination.

One feature of many tiny homes proves to be their downfall in Massachusetts: wheels.

So what if a tiny house has wheels? A survey of 40 zoning bylaws of municipalities in central Massachusetts shows that many legal definitions of “trailer” or “mobile home” squarely include tiny homes on wheels—even if later placed on a permanent foundation. These definitions are often broad and vague.

For example, Section 10 of the Upton Zoning Bylaws defines a “mobile home” as: “A dwelling built upon a chassis, containing complete electrical, plumbing and sanitary facilities, and designed without necessity of a permanent foundation for year-round living, irrespective of whether actually attached to a foundation or otherwise permanently located.” To top it off, Upton further specifies that a mobile home is not considered a dwelling for zoning purposes.

So, in many municipalities, a tiny home built on wheels will be treated as a mobile home regardless of its other features. With this classification comes many obstacles:

Prohibition. Some municipalities outright prohibit whatever qualifies as a mobile home (tiny homes included) except in emergency circumstances (such as Stow and Milford), while others simply omit them from their tables of permitted uses (such as Franklin and Northborough).

Restriction. Other municipalities restrict the location of mobile homes to specific zoning districts, or trailer parks (like Westborough and Hudson). While some towns allow mobile homes as detached accessory apartments, depending on the municipality, there may be a familial relation requirement on the resident of the subordinate structure.

Special Permit.  Often, mobile homes are only allowed with a special permit, and often the permission is only for a matter of weeks (such as in Maynard, Marlborough, Dedham, Cambridge).

While few towns have no restrictions on siting tiny homes on wheels as primary residences, they do exist. For example, under the Millis zoning bylaws a tiny house on wheels would qualify as a trailer, but trailers are allowed permanently in all residential zones with a special permit from the Millis Board of Appeal (although the permit must be renewed annually).

As a testament to their variety, not all tiny homes have wheels. In fact, those who choose to build wheel-less tiny homes on lots, from the ground up, have had some success in Massachusetts. When tiny homes are not regulated as mobile homes, however, there are still obstacles for the tiny-home owners to tangle with.

Even if a tiny home isn’t built on a chassis, siting it can still be thwarted through minimum residential floor area square footage requirements (such as a 600 square foot minimum in Holliston). State laws also come into play with State Building Code requirements, and mandatory minimum square footage requirements of the Board of Health (105 CMR 410). Tiny homes do face big challenges.

Massachusetts residents eyeing tiny homes are getting mixed messages.  Tiny homes are popular, available, and affordable, but difficult to site. To rub it in, the Town of Concord hosted the “2nd BIG Tiny house Festival in 2016”—yet its zoning bylaws outright prohibit mobile homes.

Despite these challenges, there is progress in tiny home siting in Massachusetts. Nantucket recently amended its bylaws to include a provision for a “Tiny House Unit,” allowing mobile tiny homes to serve as primary, secondary, or even tertiary dwelling units.

Other municipalities may follow Nantucket’s lead and make special provisions for Tiny Homes. Without outright bylaw changes, tiny-home owners and their attorneys will have to do their homework to find places for tiny houses to call home.

Olympia Bowker is an associate at McGregor &Legere, P.C. in Boston. She helps clients with a broad range of environmental, land use, zoning, and regulatory matters in both administrative and legal forums.  She is an active member of REBA’s new lawyers section and women’s real estate networking group.  She can be contacted at obowker@mcgregorlaw.com.

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