Accessory Dwelling Unit Bylaw Updated. Lack of Clarity on Downtown Dorm Persists

Report on the Meeting of the Planning Board, November 6, 2024

This meeting was held over Zoom and was recorded.

Present

Doug Marshall (Chair), Fred Hartwell, Lawrence Kluttz, Jesse Mager, Johanna Neumann, and Karin Winter. Absent: Bruce Coldham.

Staff: Nate Malloy (Senior Planner), Pam Field-Sadler (Assistant)

Updated Accessory Dwelling Unit Bylaw

In order to comply with a new state housing law, the Affordable Homes Act, some provisions of Amherst’s 2021 Accessory Dwelling Unit (ADU) bylaw (Section 5.011) need to be changed. Senior Planner Nate Malloy had attended several webinars of the state Executive Office of Housing and Livable Communities on ADUs and had developed a draft bylaw for the Planning Board to discuss. The Affordable Homes Act goes into effect on February 2, 2025. 

The state law permits ADUs of 900 square feet or less, and up to half the area of the principal dwelling,  to be built on the same lot as the principal dwelling in all zoning districts that allow single-family dwellings. An ADU cannot, however, occupy a lot with a duplex or apartment building on it, nor can it be constructed in a zoning district that does not allow single-family homes, such as in the downtown district. ADUs can be inside a single-family home, attached to it, or detached in a separate building. Each unit must have its own entrance, and contain a place for  sleeping and cooking, and sanitary facilities.

Amherst’s existing bylaw allows ADUs up to 1,000 square feet, so Malloy suggested that new ADUs  between 900 and 1,000 square feet be allowed by special permit. This provision would prevent already existing ADUs of 900 to 1,000 square feet from being considered nonconforming. Smaller units can be approved by the Building Commissioner alone if they meet the other specifications of the bylaw, such as design, setback, parking, and lot coverage. 

Amherst now requires either the ADU or principal dwelling to be owner-occupied, but this will be outlawed under the new state law. The draft bylaw does require the entire property to be owned by a single entity, and that the lease on the ADU must be at least 12 months. In addition, it prohibits short-term rentals of the ADU. Still to be decided is whether  a second ADU can be built on  a property by site plan review or special permit, perhaps with other additional requirements such as owner-occupation of one of the units. Planning Board members liked the idea of one ADU inside the principal dwelling and another as a detached ADU.

Malloy expects the State Attorney General’s office to issue additional guidance on ADUs by the time the new law goes into effect. He said he hopes Amherst can develop a simple bylaw and then amend it if the Attorney General finds some aspects unreasonable, and cited the requirement for a 12-month lease as an example.

Board member Fred Hartwell saw a problem with the new state law prohibiting the requirement for owner-occupancy of one of the units, noting that having an owner-occupied unit on-site is “the proven method of policing antisocial behavior in this market. I am so appalled by that limitation in the state law that I’m inclined to do absolutely nothing more than we have to do.” Karin Winter agreed, saying, “If we allow more [than one ADU on a single property], we could require owner-occupancy, but once they’re built, the state can waive that, and then you have chaos in Amherst.”

Jesse Mager said  the requirement for a 12-month lease might not be enforceable. Malloy pointed out that rental units are subject to the permitting and inspection requirements of the Residential Registration bylaw, and suggested that a 12-month lease might not be necessary. The state law prohibits short-term rentals of ADUs, he said, adding that Amherst does not currently regulate short-term rentals and that the town might want to develop a short-term rental bylaw or  other regulations that could be used for ADUs.

In public comment, Taryn LaRaja and Bruce Carson spoke about the number of cars in their Strong Street neighborhood. LaRaja noted that the bylaw specifies a minimum of one parking space, but she wants a maximum number as well. She said, “We don’t want backyards in our neighborhood paved over, with numerous cars and lights shining.” Carson suggested a maximum of two bedrooms in an ADU or limiting the total number of residents on a property. Jennifer Taub added that there are as many cars as residents in many or most rental units. 

This sparked a discussion among Planning Board members about how many limitations could be put on the number of bedrooms, residents, and cars for an ADU and what restrictions would be allowed by the Attorney General. The board will continue the discussion of ADUs at a future meeting, while waiting for more clarity from the state.

Concerns Voiced, But No Change in Decision on Downtown Amherst College Dorm
Karin Winter and Jesse Mager were still uncomfortable with the decision to allow Amherst College to rent all 22 units planned for Barry Roberts’s 45-55 South Pleasant Street, for use as a dormitory, which Winter pointed out is not allowed in the Zoning Bylaw. It was noted that the board has received several emails from residents who also question this.  Planning Board Chair Doug Marshall took the position, however, that the project was permitted as a mixed-use building, with residential and non-residential space, which is allowed downtown. With the same five board members present at this meeting as at the October 30 meeting, when they voted 2-3 against reopening the hearing, he said he did not see the point of voting again. Board member Lawrence Kluttz recused himself from the discussion because he is an employee of Amherst College. 

Marshall said, “It has raised the question about what we mean by ‘residential’ occupancy. I’ve been thinking about — whether it’s that particular project or some of the other multifamily projects downtown,  we can tell from the unit plan [that] they look a lot like a ‘student apartment building,’ and we’ve approved those. Is it a bad thing if suddenly the institution that those students actually attend now has some skin in the game in terms of where [the students] are living?”

Mager said, “One thing gives me pause: Was this a known plan from the inception or from some point early in the project — that there was going to be a single tenant [Amherst College] for a long time? It sounds like Amherst College has announced that this is a long-term plan — it’s not a temporary overflow. Had that project come in with that presentation, I don’t think we would have approved it,” he added. He did not suggest reopening the hearing, but said he wanted to air his concerns for future projects.

Winter wanted to get legal advice as to whether the plan violates the Zoning Bylaw, but Marshall and Hartwell persisted in their feeling  that the project is a mixed-use building and was permitted correctly, even though Hartwell felt it “was not handled cleanly.” According to Malloy,  Building Commissioner Rob Morra does not think this is a “dormitory” because each unit will be built as a separate apartment with its own kitchen and bathroom.  He added that it is difficult to regulate the end users of a project. However, he acknowledged that some review of residential classifications is needed. He hoped that the Housing Production Plan being developed for the town would help clarify the zoning bylaw, but said he doesn’t think the town attorney would prohibit this use (for Amherst College to rent the entire building for use as a student residence) because it is not an “egregious” violation of the town’s bylaw.

Winter said that Town Meeting prohibited dormitories in most zoning districts to protect the town from becoming only for students. “You’re saying it can’t be a dormitory because it has that commercial space. How then, are we going to protect ourselves in the future when the next building, which is going to be a UMass thing where they sell their sweatshirts and logos and things [from being rented to UMass for students only]?” But Marshall reminded her that “…we require 30% of the first floor to be commercial, we require it to meet our affordable housing requirement, and we require it to pay taxes. It’s doing all the things we’ve asked for. What’s the problem? What’s the harm we’re trying to protect ourselves from?”

Hearing for 422 Amity Street Postponed Until December 18
The continuation of the hearing on Barry Roberts’s proposed mixed-use development at the corner of Amity Street and University Drive was postponed until December 18 to allow for possible site plan changes mandated by the Conservation Commission.