AMHERST — Officials are considering amending a town bylaw in light of a lawsuit over a recent Zoning Board of Appeals determination that a Newell Court accessory dwelling unit is too large to comply with town zoning.
A few weeks after the Land Court lawsuit was filed, both on behalf of the Newell Court developer and several other property owners, the Town Council Monday considered revisions that would make gross floor area measurements consistent with state rules.
These would ensure that so-called protected ADUs, which are allowed by right, will be capped at 900 square feet, while local ADUs can still be as large as 1,200 square feet as long as the owner occupies either the accessory dwelling or the principal residence.
Jeff Bagg, director of planning and economic development, told councilors the idea is to correct the language “to make gross floor area more clear and more consistent with state requirements” under the 2024 Affordable Homes Act, which caps the size of accessory dwelling units at 900 square feet.
If space has sufficient ceiling height, then that will count toward gross floor area, Bagg explained. Otherwise, it will not be counted toward gross floor area.
The adjustments also provide a definition for “attic” that stipulates these should never be habitable space, but rather be more akin to an area of a home used for storage and accessed with a pull-down staircase, Bagg said.
In addition, the bylaw will stipulate that an attic is never intended for conversion into habitable space. “We’re trying to define what was undefined previously,” Bagg said.
Part of the issue with the Newell Court home was whether the attic space, which has room for two bedrooms and a bathroom, should count toward gross floor area. Based on the way the town’s bylaw is written, Building Commissioner Rob Morra excluded that space under the building code’s “attic exclusion approach.” That allows upper-level space to go uncounted as long as it’s less than one-third the size of the main living area below it.
The revisions are designed to tighten up language. They also include only having floor area count toward the gross floor area if it meets the ceiling height required in the building code, changing the definition of floor and story so there is no confusion about what an attic is and adjusting the definition of half story for both top floor and basement.
“Taken together, the intent of these changes is to ensure that all livable spaces in an ADU are included as part of the size calculation. These changes draw a clearer line between floor area that counts toward an ADU’s size and attic space that does not. This will help applicants and town staff apply the size limit for a protected use ADU consistently,” Bagg and Town Manager Paul Bockelman wrote in a memo.
The changes are expected to be part of a joint hearing by the council’s Community Resources Committee and Planning Board Oct. 22. Following that, the matter could be referred back to the Town Council with a recommendation and for a possible vote.
District 4 Councilor Pam Rooney said she appreciates staff’s work, and the fact that they recognize the need to clean up details to better align Amherst’s bylaw with the intent
of the state law and advisories from the Office of Housing and Livable Communities.
Rooney’s district encompasses areas where there are growing number of accessory dwelling units, many being built explicitly of housing local college students.
Several residents addressed the Town Council about their concerns with the interpretation of the bylaw, and bemoaned that there is no notification system for when an ADU is being built. Bagg said it’s uncertain whether such a notification is allowed or reasonable, based on state law that makes ADUs by right.
Lois Barber, of Taylor Street, said several ADUs are being built in her neighborhood.
“This is an issue you need to look at carefully,” Barber said. “It’s happening so fast without proper scrutiny, without proper definition of words.”
John Kuhn, of Chestnut Street, whose son filed the appeal of the building permit for a Newell Court ADU that led to the lawsuit, said the town’s ADU bylaw is poorly written because the word attic isn’t defined.
“The issue here is really quite simple: Should there be a loophole allowing an additional 300 square feet, resulting in two additional bathrooms and a bath, or not?” Kuhn said.
Ira Bryck, of Strong Street, said he feels the Zoning Board of Appeals made the right decision as to what should count toward 900 square feet, even as the town faces a lawsuit.
Beyond addressing the size of ADUs, Eunice MacAllister, of Newell Court, said she feels she’s lost some of her privacy to an ADU built on what had previously been open land.
“I feel invaded, and I think probably a lot of other people feel the same way,” MacAllister said.
