Use this search box to find articles that have run in our newspapers over the last several years.
Date: 6/20/2023
SOUTH HADLEY — A letter sent to the Attorney General by a South Hadley resident who is an attorney is requesting “increased scrutiny” for the recently passed Accessory Dwelling Unit bylaw. The bylaw, passed at May’s Town Meeting, has sparked confusion since its acceptance.
During the Planning Board’s June 12 meeting, the letter was addressed and Building Commissioner Damian Cote was invited to join the meeting to clear up confusion on the limits of what can be added on to an ADU on someone’s property. According to Director of Planning and Conservation Anne Capra, there have been questions from the public regarding whether various scenarios could occur related to detached ADUs.
ADUs are small houses or apartments that exist on the same property as a single-family residence. These structures have come to play a role in serving the national housing need in recent years as affordable options. Both attached and detached units were made allowable through the Town Meeting vote. A detached ADU, as defined in the bylaw, is described as being separate and more than five feet from the principal dwelling.
Article 22, the item in question from May’s Town Meeting, received a proposed an amendment to exclude detached ADUs, freestanding units up to 900 square feet, that was defeated through the vote. With the detached units allowed, questions have come up on whether a detached unit would then be able, under the bylaw, to create its own decks, driveways or even garages.
Capra explained it would be difficult for some of the concerns made to come to fruition due to the cap on square footage and other town bylaw specifics detailing the percentage of property that can be dedicated to ADUs in specific zones.
“Under the bylaw, attached ADUs are by right so those will go straight to a building permit process. Detached ADUs will be permitted through site plan review with the board,” Capra said.
She explained that because a detached unit would need to be permitted through site plan review with the board, there is a clear guideline to follow for units and through review with the board, board members can make a logical determination on any given proposal before moving on to a building permit.
When Cote spoke, he did say legally, there was nothing in the bylaw denying a property owner from attempting to build off of their approved ADU unit but as Capra had mentioned, the clear parameters and permitting through site plan review allows for the board to not allow any ADU additions on properties to get out of hand.
For example, regarding the construction of a second driveway used only by the ADU, there is a strict criterion for what could be possible. Cote said a large property that is 200-acres and had a second point of entry with a property owner looking to create a driveway entrance for their ADU was a more logical situation as opposed to a neighborhood home adding one in between theirs and a neighbor’s property.
Capra added the property owner is the one who would be filing for ADUs and additions to the ADU and the only one involved in the process.
When opened to the public resident Martha Terry spoke and raised a concern about the article and the freedom someone could have in adding on to an ADU, citing for example the addition of a garage for an ADU. Cote explained the limitations in zoning already in place do a good job of protecting neighborhoods from someone abusing ADUs or additions to ADUs on their property.
“I think the purpose of the ADUs is these are in themselves accessory to the primary dwelling so to clarify, nobody’s going to have a garage or anything — an ADU will not have that. The primary dwelling will have a garage, or three garages, seven gazebos, and two swimming pools and everything else under the sun,” Cote said. “The primary owner of the land is the one that would only be able to apply for and be granted a permit for all of those structures and uses thereof.”
While the detached units are legally allowed to pursue something like a garage even with guardrails making its completion difficult, Terry felt this was not made clear before or during Town Meeting where she claimed that at Town Meeting a member of the Planning Board — who Terry would not name publicly — was telling a handful of Town Meeting members that “detached ADUs cannot have garages,” when technically there is gray area.
“I think this influenced some people’s votes and my question is what can we do about this?” Terry asked. “The bylaw has already gone to the attorney general and we had an authority at Town Meeting — a Planning Board member is seen as an authority — that an ADU detached cannot have a garage. This is a real problem for me.”
Cote reassured Terry that the point of ADUs is having the accessory unit on property owned and whoever would live in the ADU would not have the power to add even more to their unit as power lies with the property owner. He added with detached units the board could reject a site plan proposal under premises they deem unacceptable based on the guidelines established.
As for the board in response to Terry’s claim, they are now awaiting a response from town counsel’s review and the attorney general. Terry said there was much confusion over this due to a Planning Board member making contradictory statements before Town Meeting with the conflicting information to the flyer handed out showing the differences between attached and detached units. She added she felt someone needed to bring this up.
Capra said she has been consistent in the process of creating this bylaw that an accessory structure to an accessory dwelling unit was something she never thought would be feasible. She added that much of this comes down to semantics and working knowledge of ADUs.
“There are maybe an infinite number of scenarios, some of which would not be permissible, some of which will, but that all accessory structures are accessory to our principal use, not to an ADU,” Capra added.
Board member Nate Therien seconded the notion that it would be very challenging for an ADUs to be abused on a property.
“I also think that site plan review will allow the Planning Board to make very sensible decisions based on what we hear from members of the public about the particular setting of an ADU on a parcel,” Therien said. “I think the questions that are being raised by the members of the public are really important questions for the Planning Board to take into account when and if it ever gets requests from the members of the public to place ADUs in the backyards.
Terry said while this information adds context, she still felt uncomfortable with the fact that a Planning Board member was telling Town Meeting members right before Town Meeting began that “a detached ADU cannot have a garage,” when based on the writing it is technically possible.
“That to me is overstepping one’s authority and trying to influence the audience at Town Meeting and I have a problem with that. And I’d like that clarified by you through town counsel or the Attorney General,” Terry added. “I just feel that these were not comments said at the microphone.”
Capra asked that Terry formally write her complaint for review to the Planning Board so it could then be forwarded to town counsel. Capra wanted clear language written on what was being sought after so they board could take the necessary next steps in reviewing the claim.
“To be going around, talking to Town Meeting members and saying this picture is wrong, a detached ADU cannot have a garage – that’s where I have an issue and would like to see legal clarification on this,” Terry said.
Therien said during the meeting he did not know of anyone on the board who was speaking to multiple people regarding a handout on the bylaw question and confusing the information for detached units, the specific claim that was made by Terry. He added he was happy to go through the process needed to resolve the issue.
Board member Joanna Brown agreed that if there are multiple accounts of this incident being said from Town Meeting members, it was the board’s responsibility to review these claims and wait for town counsel or the attorney general to review and speak with them about the next steps.
“If there’s a question about whether there was an attempt to give out inaccurate information that could’ve swayed a vote, I think that’s something worth exploring,” Brown said.
Board member Michael Adelman said if there was an issue relating to the bylaw itself — not about the claim made during the meeting — it would be subjected appropriately to review and amended as needed.
“Unlike Moses coming down from the mountain, our bylaws are not engraved in stone,” Adelman said. “Many communities have an errors and omissions process in their bylaws that allows the town to say, ‘gosh we really may have made a mistake.’ So, I think that’s it. But I think the comment that this is not a place to judge on it, especially for a hearsay comment about a hearsay observation, is important. It’s our duty to do.”
The Planning Board decided to not comment any further on Terry’s claim until a formal letter was written in to be reviewed by town counsel. Capra did make one final note attempting to ease any concerns around the issue by referring to the town’s use of dimensional table and the zoning bylaw.
“For each of the zoning districts there is both a maximum building coverage by percent for both the principal use and accessory uses, and there’s also a maximum impervious coverage total for all impervious services. Just to refer back to these when they will be reviewed when plans come before the board or when they go for building permit,” Capra said. “For example, in the RA1 district, only 10% of the property can be accessory uses. Those things would add up quickly in addition to an ADU.”
The Planning Board will await feedback from town counsel and the attorney general regarding the letter a South Hadley resident sent in about the recently passed article. They will also pass along Terry’s concern to town counsel once it is submitted formally to them.