Caroline E.
Smith
Section 8
of the Massachusetts Affordable Homes Act (Chapter 150 of the Acts of 2024)
amended Section 3 of the Massachusetts Zoning
Act. This took effect earlier
this month, requiring municipalities to allow ADUs (900 or fewer square feet)
as of right in most single-family residential zoning districts, with some
important limitations.
The
Executive Office of Housing and Livable Communities (EOHLC) published draft ADU
regulations last December for a public comment period, to implement these
amendments. The final regulations were published at the end of last month.
These
regulations are now in effect and are codified in 760 CMR 71.00.
Within the
regulations you will find definitions of the critical terms “Accessory Dwelling
Unit”, “Protected Use ADU”, “Single-family Residential Zoning District”, and
others. You also will find a list of “prohibited” regulations and
“unreasonable” regulations which a municipality cannot impose.
Municipalities
are required to keep a record of each ADU permit denied and approved and other
data. The regulations span eight pages.
The EOHLC
also is developing model ADU Zoning provisions for municipalities to use as a
template if they choose to further “reasonably regulate” ADUs. For
municipalities which already may have local ADU zoning provisions, the EOHLC
will be publishing a checklist to help municipalities identify whether the
current ADU provisions are compatible with the new state law and regulations.
With the
new law in effect, we wait to see how municipalities, homeowners, builders,
planners, architects, legal counsel and courts respond to it.
We are keeping track of
emerging issues such as whether ADUs are allowed by right in any zoning
district that allows single-family dwellings under any condition (including by
special permit or variance); whether an ADU can have a different owner than of the
principal dwelling unit; whether an ADU (meeting the legal requirements) can
legalize an illegal or non-conforming existing unit; whether an ADU can be
added to an existing commercial, industrial, or agricultural building where the
zoning is residential (or residential is allowed); what else beyond the new
regulations may be considered “unreasonable” regulation by a municipality; and
what cities and towns may enact in their special permit standards for extra
ADUs.
With this
(some say) revolutionary change in Massachusetts real estate and land use law
and our development landscape, some things are for sure:
- You may now apply for a building permit for an ADU in every
municipality; and
- Municipalities are busy revising their zoning bylaws and
ordinances to add their mandatory ADU provisions.
Caroline Smith, Esq. is an Associate at
McGregor Legere & Stevens PC in Boston, and a member of REBA’s
Environmental Law Section. She can be
contacted at csmith@mcgregorlaw.com.
