As our readers are likely aware, Chapter 150 of the Acts of 2024, also known as the Affordable Homes Act, includes provisions to expand the by-right development of accessory dwelling units (or “ADUs”) in cities and towns across the Commonwealth by limiting the extent to which ADUs may be regulated by local zoning ordinances or bylaws. The new statutory protection for ADUs took effect earlier this month on February 2 and is found in a new paragraph inserted into G.L. c. 40A, §3 (also known as the “Dover Amendment”). This amendment generally provides that municipalities must allow for, and not unreasonably regulate, the by-right construction of ADUs on any property devoted to a residential use, in a zoning district that allows for single-family homes. Further, the Executive Office of Housing and Livable Communities (“EOHLC”) is authorized to adopt regulations to administer the new Dover Amendment protection for certain ADUs.
EOHLC has now issued regulations, 760 C.M.R. 71.00, that address the scope of permissible municipal zoning requirements for ADUs. As is frequently the case, special attention should be given to the definitions section, which appears at 760 C.M.R. 71.02, as a number of definitions are critical to understanding the scope of allowable local regulation. In particular “Single-family Residential Zoning District” includes not only those districts where single-family homes are allowed by-right but also districts which may allow them only by special permit; and “Principal Dwelling” is defined to include not only single-family homes but any structure that “contains at least one dwelling unit.” Applying these terms together, the result is that more properties may be eligible for new ADUs than readers of the Affordable Homes Act initially thought. While the most common siting of an ADU may be one accessory dwelling unit paired with a single-family house in a residential zoning district, under the new law and regulations it would also be permissible to site an ADU, for example, as accessory to a multi-family structure in a commercial zoning district, provided that a single-family house would be allowed by-right or by special permit.
While too broad for comprehensive discussion here, the EOHLC regulations also include, at 760 C.M.R. 71.03, an illustrative list of local zoning requirements which would be per se unreasonable and thus prohibited, to help communities develop compliant local zoning ordinances and bylaws. Finaly, it would be easy to get caught up in the particular limits on local regulation and miss the final section, 760 C.M.R. 71.04, which requires municipalities to collect and maintain data on each of the ADU applications it receives, which must be provided to EOHLC upon request.
In the case of ADUs, the devil is certainly in the details, and a careful reading of both G.L. c. 40A, §3, and 760 C.M.R. 71.00 is required. Please look for further updates in our newsletter as additional guidance on the interpretation and application of this new legal requirement become available.
Comments