Secretary Edward M. Augustus
Executive Office of Housing and Livable Communities
100 Cambridge St., Suite 300, Boston

Delivered electronically

RE: 760 CMR 71.00 Protected Use Accessory Dwelling Units Draft Regulations

Dear Secretary Augustus,

The Massachusetts Municipal Association provides the following comments on the Executive Office of Housing and Livable Communities’ (EOHLC) filed 760 CMR 71.00 Protected Use Accessory Dwelling Units Draft Regulations (Draft Regulations). Following these comments is a redlined version of the Draft Regulations for greater clarity and context.

A. Bus Station Definition
The Draft Regulations definition of bus station is so broad as to include essentially any place where a bus might be boarded or deboarded. This definition is inconsistent with EOHLC’s own definition of “Bus Station” in the current Compliance Guidelines for Multi-Family Zoning Districts Under Section 3A of the Zoning Act (3A Compliance Guidelines). While understandably the definition should be broader here, failing to require any fixed infrastructure or connection with other transit modes makes the identification of a “Bus Station” virtually impossible. Bus routes change frequently to accommodate traffic patterns, seasonal ridership and other elements. The MBTA itself is currently undergoing a Bus Network Redesign, with several bus route changes expected over the next five years. “Bus Stations” as proposed by the Draft Regulation will fluctuate, in turn creating fluctuating parking requirements and inconsistency for residents. We suggest clarifying the definition to require fixed infrastructure and/or a connection with other regional or local transit options, or creating some type of ridership or population threshold to better embody regional needs and use.

B. Gross Floor Area Definition
The definition of “Gross Floor Area” in the Draft Regulations includes basements and other unfinished areas, inconsistent with many standard definitions. Many municipalities contain building and zoning codes with much narrower “habitable space” definitions that don’t include unfinished areas. Many homes around the state have basements, crawlspaces, eaves, etc., that are not habitable but which would be considered “Gross Floor Area” under these terms. A definition that better defines the actual habitable space of a home will ensure a potential ADU is properly sized and in fact truly an accessory to the primary dwelling.

C. Short-Term Rental Restriction and Definition
The definition of “Short-Term Rental” in the Draft Regulations refers to M.G.L. Chapter 64G, Section 1. The definition of short-term rental in that statute reads:

Short-term rental”, an owner-occupied, tenant-occupied or non-owner occupied property including, but not limited to, an apartment, house, cottage, condominium or a furnished accommodation that is not a hotel, motel, lodging house or bed and breakfast establishment, where: (i) at least 1 room or unit is rented to an occupant or sub-occupant; and (ii) all accommodations are reserved in advance; provided, however, that a private owner-occupied property shall be considered a single unit if leased or rented as such.

While we understand the reference to Chapter 64G in Sections 7 and 8 of the Affordable Homes Act (Chapter 150 of the Acts of 2024), this definition includes no time period for “short term,” although earlier in the section, under the “Occupancy” definition, the law reads:

“…the use or possession or the right to the use or possession of a room in a bed and breakfast establishment, hotel, lodging house or motel designed and normally used for sleeping and living purposes for a period of not more than 90 consecutive calendar days, regardless of whether such use and possession is as a lessee, tenant, guest or licensee, or the use or possession or the right to the use or possession of a room in a short-term rental normally used for sleeping and living purposes for a period of not more than 31 consecutive calendar days…”

This has been understood to define “short-term rentals” as those rentals of 31 days or less. However, in 830 CMR 64G 1.1: Massachusetts Room Occupancy Excise, the definition of “short-term rental” again contains no period of time, while Section 3(b) of the regulation refers to occasions “where the duration of occupancy in a short-term rental exceeds 31 consecutive days” and appears to consider a short-term rental as any rental for a period of less than 90 days. These inconsistent definitions are unnecessarily confusing, while being incredibly important to explicitly stated municipal regulatory authority.

Acknowledging that many communities in Massachusetts see a rise in residents at specific, seasonal times, the Affordable Homes Act created a “Seasonal Communities” designation with specific allowances and regulations for those communities. Included in that is an allowance for a seasonal community to create rental restrictions of a “short-term rental of less than six months.” Aside from the conflicting definition of “short term,” the Draft Regulations set up an inherent conflict in these communities. Some residential housing units within an area could be allowed to define and restrict short-term rentals of up to six months, while others in the same area could be pressed to define at much shorter time periods.

Massachusetts has a real need for affordable year-round housing. A statutory definition of short-term rental that is 31 days or less does little to help communities meet that need. Wealthy renters looking for a week-long getaway may simply choose a longer rental period to skirt the restriction, further driving up the cost of rental units and exacerbating the problems of housing affordability and availability. This is precisely why many communities seek to restrict these types of rental arrangements. Allowing municipalities to properly regulate rental term periods as they see fit for their area will provide greater flexibility to stave off predatory commercial interests that seek to turn a maximum profit, rather than investing in desperately needed long-term housing.

D. Site Plan Review Definition
The definition of “Site Plan Review” in the Draft Regulations is inconsistent with the definition in the 3A Compliance Guidelines. The addition of subjective and unnecessary language is likely to cause confusion and potential litigation. We recommend the Draft Regulations follow existing understood definitions where possible.

E. Regulation of Protected Use ADUs – Unreasonable Restrictions
The Draft Regulations include a number of restrictions and regulations it considers to be unreasonable for Protected Use ADUs. While the intent of preventing unnecessary and unreasonable restrictions for ADUs is valid, it does not take into account the actual practice of site plan review, the existence of nonconforming structures, or the various environmental conditions and needs of many communities.

For example, many communities currently have restrictions on utilities, including electrical support, that are more restrictive than state laws. Would a Protected Use ADU be exempt from such restrictions while the Principal Dwellings adheres to it? Similarly, many communities necessarily have further restrictions on Title 5 septic due to water district overlays and other area-specific issues. These restrictions may be for single-family, multi-family or commercial structures and may not always comply with larger single-family zoning requirements. It is important to note that not every Principal Dwelling as defined by the Draft Regulations would be sited on a single-family zoned lot, nor is every building in a single-family zoned lot in fact a single-family building. There are nuances, exceptions, and nonconforming structures throughout the Commonwealth and its various zoning codes. Failing to take these many exceptions and needs into consideration and will likely result in confusion, litigation and frustration of purpose. We recommend EOHLC consult with the MassDEP and others to ensure the various environmental standards and considerations across the Commonwealth are being met by these Draft Regulations.

F. Multiple Unit Dwellings and Additional ADUs
Clear guidance for properties that contain more than a single dwelling unit are essential. The current Draft Regulations do not appear to address the issue of a property that contains more than one principle dwelling unit, and what allowance for ADUs would be made. For example, would a property containing 10 condo units allow 10 ADUs as-of-right? How would they be determined, in what order, and with what first rights?

Additionally, the Draft Regulations currently require special permits for multiple ADUs on the same lot. Many municipalities do not currently require any special permit process for ADUs. Allowing municipalities that provide maximum flexibility for ADU development should be encouraged, rather than requiring them to create an additional permit process.

G. Reporting Requirements
While the EOHLC may properly promulgate regulations to govern the scope and content of municipal ADU ordinances or bylaws, it is not clear that the EOHLC also has the authority to require municipalities to expend resources to fulfill reporting and other affirmative duties under the Draft Regulations. The Annual Updates section requires significant data collection, analysis and reporting requirements that would likely constitute an unfunded mandate prohibited by M.G.L. Ch. 29, Sec. 27C (c). We would suggest removing the section, creating a fund to enable municipalities to do this work, or impart the work on a division of the EOHLC.

Conclusion
The MMA appreciates the work and challenges that come with drafting these regulations. We are eager to see clarity on the implementation of the new ADU law so that municipalities can more effectively comply and work with residents to approve more housing options. We are hopeful that these strategies and others will work to bring more affordable housing and economic growth and development to our state and local economies. We would welcome further discussions on the many points discussed in this letter.

If you have any questions, please do not hesitate to have your office contact me or MMA Legislative Analyst Ali DiMatteo, at adimatteo@mma.org at any time. We are grateful for your support of local government in the Commonwealth and deeply appreciate your consideration of the municipal perspective on this important issue.

Sincerely,

Adam Chapdelaine
MMA Executive Director & CEO

Written by Adam Chapdelaine, MMA Executive Director & CEO
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