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Question: Does an ADU proponent have to wait until a local ADU
bylaw or ordinance is established by the local municipality?
Answer: No. G.L. c. 40A,
§ 3(11) (enacted by 2024 Mass. Acts c. 150 § 8, effective Feb. 2, 2025) is a
zoning exemption allowing one ADU by right “in a single-family residential
zoning district” which “may be subject to reasonable regulations, including,
but not limited to” the following:
(1) “310 CMR 15.000 et seq., if applicable”
(i.e., Title 5 septic system regulations),
(2) “site plan review,” by planning board,
which can impose reasonable conditions on a use by right
(3) “regulations concerning dimensional
setbacks and the bulk and height of structures” and
(4) “may be subject to restrictions and prohibitions on short-term rental, as defined in" G.L. c. 64G, § 1.
Question: What if the local municipality drags their feet in creating a local bylaw/ordinance?
Answer: One should apply for a building permit on February 2, 2025 or as soon thereafter as possible. If the municipality has not enacted a site plan review requirement or other restrictions, don’t wait for it to do so.
Question: Can a local building department deny a building permit for an Accessory Dwelling Unit if it meets the criteria of the state law?
Answer: No, unless local zoning has been amended to require site plan review, or “impose reasonable conditions,” or both, and the applicant has not satisfied those requirements.
Question: What is the process for appealing a denial of the ADU building permit application?
Answer: G.L. c. 40A, § 8 authorizes an appeal to the “special permit granting authority” defined by G.L. c. 40A, § 1A as “the board of selectmen, city council, board of appeals, planning board, or zoning administrators as designated by zoning ordinance or by-law for the issuance of special permits.” G.L. c. 40A, § 15 requires that the appeal “shall be taken within thirty days from the date of” the permit denial.
Question: Can a municipality pass a moratorium on ADUs? If so for how long and for what reason?
Answer: Municipalities have six months (until Feb. 2, 2025) to amend local zoning. A municipality can enact a moratorium by claiming it needs more time to develop and adopt local ADU zoning. If a municipality enacts a moratorium, but fails actively to develop zoning amendments, the moratorium is subject to judicial challenge as a stalling tactic.
One reason for seeking to obtain a building permit as soon as possible after the G.L. c. 40A, § 3(11) ADU zoning exemption goes into effect on February 2, 2025 is that G.L. c. 40A, § 6 provides: “[e]xcept as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by” G.L. c. 40A, § 5.”
In other words, if one applies for and is granted a building permit for an ADU before notice of a public hearing for a zoning amendment is published, the amendment does not apply to that building permit.
Begin construction promptly; do not let the building permit expire. That way, in addition to having “a building…permit issued,” one also will have a structure “lawfully begun,” providing additional protection under G.L. c. 40A, § 6.
Question: If you meet the dimensional setbacks of the subject zoning district as they pertain to accessory structures with the placement of the ADU, is there any reason the municipality should be allowed to place more stringent dimensional controls on the ADU's location?
Answer. The answer to this question depends on the language of a particular local zoning ordinance or bylaw, and on the facts of a particular case.
G.L. c. 40A, § 3(11) provides “that the use of land or structures for such accessory dwelling unit under this paragraph may be subject to reasonable regulations, including, but not limited to, 310 CMR 15.000 et seq., if applicable, site plan review, regulations concerning dimensional setbacks and the bulk and height of structures….”
Whether a local zoning limitation on ADUs is “reasonable” requires analysis of that provision to determine whether it can be invalidated on its face or challenged based on its application to the facts of a specific case. Court cases decided under other previously enacted zoning exemptions in G.L. c. 40A, § 3 can be applied by analogy for litigation challenging municipal zoning limiting ADUs.
Question: What does it mean when the state zoning act (G.L. c. 40A, § 1A definition of “Accessory dwelling unit” as amended by 2024 Mass. Acts, c. 150, § 7) says that an ADU is “is subject to such additional restrictions as may be imposed by a municipality, including but not limited to additional size restrictions”?
Answer: The newly enacted G.L. c. 40A, § 3(11) ADU zoning exemption opens with the mandate that “No zoning ordinance or by-law shall prohibit, unreasonably restrict or require a special permit or other discretionary zoning approval for the use of land or structures for a single accessory dwelling unit…,”
The above quoted zoning exemption should take precedence over anything to the contrary in the ADU definition left over from prior legislation.
But 2024 Mass. Acts, c. 150, § 7 reenacted verbatim most of the old definition of “Accessory dwelling unit” in G.L. c. 40A, § 1A, changing only the last portion dealing with owner occupancy and short-term rentals, as follows (amended portions of the definition are in bold face type; line breaks added):
Prior definition in G.L. c. 40A, § 1A, struck out by 2024 Mass. Acts, c. 150, § 7 (am in bold face type): “Accessory dwelling unit”, a self-contained housing unit, inclusive of sleeping, cooking and sanitary facilities on the same lot as a principal dwelling, subject to otherwise applicable dimensional and parking requirements, that:
(i) maintains a
separate entrance, either directly from the outside or through an entry hall or
corridor shared with the principal dwelling sufficient to meet the requirements
of the state building code for safe egress;
(ii) is not larger
in floor area than 1/2 the floor area of the principal dwelling or 900 square
feet, whichever is smaller; and
(iii) is subject
to such additional restrictions as may be imposed by a municipality, including
but not limited to additional size restrictions,
owner-occupancy requirements and restrictions or prohibitions on short-term rental of accessory dwelling units.
New definition inserted by 2024 Mass.
Acts, c. 150, § 7: “Accessory dwelling unit”, a self-contained housing unit,
inclusive of sleeping, cooking and sanitary facilities on the same lot as a
principal dwelling, subject to otherwise applicable dimensional and parking
requirements, that:
(i) maintains a
separate entrance, either directly from the outside or through an entry hall or
corridor shared with the principal dwelling sufficient to meet the requirements
of the state building code for safe egress;
(ii) is not larger
in gross floor area than one-half the gross floor area of the principal
dwelling or 900 square feet, whichever is smaller; and
(iii) is subject
to such additional restrictions as may be imposed by a municipality, including,
but not limited to, additional size restrictions
and restrictions
or prohibitions on short-term rental, as defined in section 1 of chapter 64G;
provided, however, that no municipality shall unreasonably restrict the
creation or rental of an accessory dwelling unit that is not a short-term
rental.
Question: Is this development approach available immediately or is there a waiting period for submitting applications?
Answer: A building permit application (or site plan review application if local zoning has been amended to impose such a requirement) for an ADU can be submitted on or after Feb. 2, 2025, which is the effective date of the G.L. c. 40A, § 3(11) ADU zoning exemption under 2024 Mass. Acts, c. 150, § 142.
Question: Title 5 - In the event of a two-bed ADU, is the local upgrade approval available to applicants, and if so, are you upgrading based on the number of new bedrooms or do you have to design a new system that's designed for the minimum of three bedrooms under title 5?
Answer: A property without access to a public sewer must be served by an on-site sewage disposal system (i.e., a septic system) which should have been designed to serve at least the number of existing bedrooms on the property.
Expanding an existing septic system or adding a second septic system for an ADU will require the services of either a Registered Sanitarian (R.S.) or a Registered Professional Civil Engineer (P.E.). The design professional must make a site-specific evaluation that includes but may not be limited to the following factors: lot area and dimensions; presence of any jurisdictional areas under the Wetlands Protection Act and Regulations (G.L. c. 131, § 40 and 310 C.M.R. [Code of Mass. Regulations] 10.00) and any local wetlands bylaw; proximity of water supply wells on the locus or on abutting properties; size, age and condition of the existing septic system; groundwater elevation; and what type(s) of soils are present on the locus.
Local upgrade approvals for septic systems
are governed by the following provisions in 310 C.M.R. 15.00, known as “The
State Environmental Code, Title 5…”:
15.401: General
Provisions
15.402: Use of
Local Upgrade Approvals or Variances
15.403: Local
Upgrade Approvals
15.404: Maximum
Feasible Compliance - Approvals for Upgrades
15.405: Contents
of Local Upgrade Approval
A “Local Upgrade Approval” is defined by 310 C.M.R. 15.002 as “An approval granted by the Approving Authority allowing the owner or operator of an existing system, including a nonconforming system, to perform an upgrade of that system to the maximum feasible extent, all in accordance with the provisions of 310 CMR 15.401 through 15.405.”
Local upgrade approvals are granted by the “Local Approving Authority” in each municipality, defined by 310 C.M.R. 15.002 as “The board of health or its authorized agent or an agent of a health district constituted pursuant to M.G.L. c. 111, § 27 acting on behalf of the applicable board of health.”
The citation in the quotation above is incorrect; it should cite G.L. c. 111, § 27A, which authorizes two or more municipalities to establish a regional health district, with professional staff serving all municipalities in the district.
Question: Public Utilities - can they come from the primary house or is there a direct connection from the street needed for each service for the new dwelling?
Answer: This requires a site-specific evaluation and determination for each type of utility serving the property (e.g., public water or private water supply well, public sewer, electric, natural gas or propane).
Question: Is there any reason that a single-family home with a detached accessory structure cannot be conveyed to two parties as a condominium?
Answer: No. A condominium is a form of ownership generally not regulated by zoning. If the ADU is to be a condominium unit or may be rented, there should be separate metering of utilities where feasible. This may be a factor in determining whether utility service should come from the primary house or have a separate connection from the street.
A partner with the Northampton firm of Green
Miles Lipton LLP, and a REBA member for more than years, Michael concentrates
in land use (zoning, subdivision control, wetlands, rural water supply and
sewage disposal), real property rights and restrictions, attorney &
surveyor malpractice; status of roads; real estate conveyancing & contract
disputes; forest & agricultural land tax classification; agricultural law,
and real estate development. He is the
author of Massachusetts Practice: Real Estate Law with Forms, Volumes 28, 28A
& 28B (West Publications - 2017).
Michael can be contacted at mpill@verizon.net.
