ADUs: More Consideration Needed For Articles 42-44

To the editor: Our Planning Board is asking Town Meeting to vote yes on Articles 42-44. These articles would change zoning definitions and temporarily stop new Tertiary Dwellings from being built. Before passing them, we need to make some changes and take a closer look, because as they stand, they could lead to even more crowded neighborhoods without necessarily creating more year-round housing.

These articles respond to The Affordable Homes Act, a State law which gives every residential property owner in Massachusetts the right to build one “Accessory Dwelling Unit” (ADU), up to 900 square feet, without a Special Permit. If the ADU meets basic dimensional and design standards it must be allowed. Towns may not add restrictions, such as requiring the ADU to be affordable or year-round, or requiring the main house to be owner-occupied. The only restriction towns are allowed to make, at their option, is to ban these units from being used as short-term rentals. You can read the full regulation, 760 CMR 71.00, at www.mass.gov/adu.

On Nantucket, this law shouldn’t have a huge effect – or so we thought. Our zoning already allows most properties to have two or even three dwellings (such as a main house, a cottage, and an apartment). But here's the problem: our Building Commissioner has decided the new State rules don’t just give lots one ADU, they give lots one more ADU – even where our local zoning doesn’t allow it. This determination is his call to make regardless of whether a different Commissioner or even the State interprets the law differently. If the new ADU meets size, setback, and code requirements, our Building Commissioner can issue the permit. That means we could see new units being added to already crowded and traffic-choked neighborhoods, and they won’t necessarily create any more year-round housing.

For example, in the Old Historic District, a lot that currently allows a house and one apartment (like one over a garage) could now add a third unit by converting the garage into a housing unit. This is whether it’s an owner-occupied lot or not. The same goes for larger lots that already have three dwellings – they could now get a fourth.

Article 42, a temporary moratorium on Tertiary Dwellings, won’t fix the problem. It only blocks a fourth unit if a lot doesn’t already have any ADUs. It won’t stop more units on lots that already have multiple dwellings, and there are many of those.

Article 43 seeks to change our local definition of “Accessory Dwelling” from: an 800 sq ft dwelling internal to an owner-occupied single-family building to: a self-contained unit not larger than 900 sq ft on a Lot with a Principal Dwelling. The implications of this are technical and haven’t been well explained. It appears that if we make this change, we may be pre-emptively accepting additional detached ADUs by right on nearly all residential lots, in addition to the Secondary and Tertiary Dwellings that are already there and regardless of residency.

Finally, Article 44 asks voters to add a definition for “Protected Use ADU.” What is the relationship between this and the ADU defined in Article 43?

Importantly, the Town wants voters to pass these Articles even though it has not yet produced a detailed, legally defensible explanation of why a Pre-Existing Accessory Dwelling (such as a Secondary or a Tertiary Dwelling) can’t be counted as the one ADU the state requires be allowed.

What can be done? At the very least, Town Meeting should strike this sentence from Article 42: “The compliance requirement of Section 8 of Chapter 150 of the Acts of 2024 will permit up to four dwelling units….” That sentence is outdated and should not be endorsed by Town Meeting. We also need more detailed and legally defensible information about the consequences of passing Article 43.

We can’t fix our ADU bylaws fully before a future Town Meeting. But we can demand more information and make thoughtful changes now - instead of blithely going along and finding out the consequences later.

Hillary Hedges Rayport

A more detailed version of this letter was submitted to the Select Board, Planning Director and Town Moderator on May 1.