AMHERST — Amherst’s accessory dwelling unit bylaw is coming under scrutiny as a Newell Court resident contends a home under construction on a neighboring property is oversized, and thus not compliant with town rules, due to significant living space in the attic.
While no decisions have yet been made by the Zoning Board of Appeals, the panel recently began considering an appeal from Noah Kuhn, an abutter to the ADU, on whether to overturn determinations and gross floor area calculations made by Building Commissioner Rob Morra.
Kuhn, of 9 Newell Court, told the ZBA that the finished upper dwelling space in the 27 Newell Court home, constructed by developer Alan St. Hilaire, adds more than 200 square feet to the 891-square-feet first floor. Central to Kuhn’s appeal is the fact that the developer changed the plans for the project so that what had been ruled a half-story became an attic, allowing for the exclusion of that space from gross square footage calculations.
Town bylaws, amended in late 2025, allow two types of accessory dwelling units. The so-called protected ADU has a maximum area of 900 square feet and complies with the state law, while the local ADU, as it is known, can be up to 1,200 square feet, but either it or the principal dwelling must be owner-occupied.
In this case, Kuhn said the upper level has two bedrooms and a bathroom and none of it is included in the gross square footage, because the attic is considered “excluded.” Kuhn said that this means developers could continue to add substantial living space while getting under the 900-square-foot threshold for protected accessory dwelling units.
Morra noted that an attic, which is under one-third the size of the main floor, is excluded from gross square footage area calculations, and that what St. Hilaire built is in compliance with the town zoning bylaw. This “attic exclusion approach,” Morra said, has been used in nine ADUs so far, and he characterized that as bonus space.
“As long as it’s an attic, the attic would be excluded,” Morra said.
St. Hilaire told the ZBA that the home can legally house five people within 900 square feet, with or without a habitable attic. He asked to uphold the findings of the building commissioner. St. Hilaire is represented by attorney Michael Pill, who said his client would suffer financial injury if the determination is overturned.
“There is no increase in density or occupancy that could take place under the relevant building codes,” St. Hilaire said.
But Molly Ryan Strehorn, another Newell Court resident, said neighbors will be impacted, and that with more occupants comes more problems for the condition of the road, the water and sewer lines and noise. Aron Goldman said his concern is that, one by one, the town is being converted to student dormitories, and that basement and attic measures are being used to artificially create more space for student renters.
Ira Bryck, of Strong Street, said the rules seem to be creative and an incentive for developers, a trend that is happening in many neighborhoods. Bryck said the spirit of Amherst’s ADU bylaw was to allow for a modest increase in housing on lots, “not to open the door to what is effectively a second large house with four bedrooms.”
Zoning Board of Appeals members were divided on whether to overturn Morra’s determination, with Chairman Everald Henry saying it is not the role of the board to rewrite the bylaw or redefine terms in the zoning bylaw, and if there are problems with the language those should be addressed by the Town Council.
Board member David Ahlfeld said he supports properly interpreting the bylaw and its definitions. “I don’t see any misinterpretation by Mr. Morra,” Ahlfeld said.
Others disagreed. Board member Sarah Morton said that the attic should be counted in the livable space because, unlike garages and porches, it can be used year-round.
“The intent of the 900 square feet for these ADUs is that they should not be more than 900 square feet,” Morton said.
Board member David Sloviter said he wants to go on record to challenge a definition that makes no sense, adding that he was “intensely displeased” that the board might not stand up for concerned residents.
“I believe we are charged with protecting the residents of the town, not interpreting exact state laws,” Sloviter said.
District 4 Councilor Jennifer Taub represents several neighborhoods that are being impacted by local accessory dwelling units. Already there are some places with primary dwellings that have two units, or eight residents, and getting an accessory dwelling unit onto open space nearby means 12 or more people, and their vehicles, can be on a single building lot.
“What we are seeing in District 4 are protected-use ADUs being built as accessory to primary dwellings that are rented to four non-related, usually student, tenants,” Taub said.
And while this may be beneficial to student renters, Taub said she’s not seeing others helped by it.
“We are not seeing protected-use ADUs being built, and priced, to provide much needed housing for families, retirees and our local workforce,” Taub said.
The Zoning Board of Appeals will continue its discussion, and possibly take a vote, on Aug. 13.
