Salem moves to align ADU rules with state Affordable Homes Act; council refers detailed changes to Planning Board

Amanda Giancola of Salem’s Planning Department presented proposed zoning amendments April 16 to bring the city’s accessory dwelling unit (ADU) rules into alignment with the state’s Affordable Homes Act and the implementing regulations from the Executive Office of Housing and Livable Communities.

Giancola said the state law (the Affordable Homes Act, chapter 150 of the acts of 2024) amends Massachusetts General Laws Chapter 40A, Section 3 to treat ADUs as a protected use. Under the state regulations, municipalities cannot require discretionary approvals such as special permits or owner-occupancy as a condition for an ADU in any district where single-family homes are allowed as of right or by special permit. The Planning Department’s draft strikes local owner-occupancy and certain tree-mitigation and termination provisions that were part of the city’s prior ADU rules and reassigns dimensional standards to a new section (3.2.8).

Key elements of the draft ordinance presented by staff: - Definition aligned with the Affordable Homes Act. - ADU size limits remain: 900 square feet or 50% of the principal dwelling, whichever is smaller. - No local requirement for owner-occupancy or familial relationship between owner and tenant (prohibited by state law). - Parking not required for ADUs in the draft. - Short-term rentals remain prohibited in ADUs and the principal dwelling when an ADU exists. - An optional local mechanism to preserve an affordable-rent option: homeowners may apply annually to the assessor for a tax exemption tied to demonstrating the unit is rented at 70% of HUD fair market rent (the exemption is optional and must be elected by the property owner). - Multiple ADUs: one ADU would be allowed as of right; proposals to allow additional ADUs on the same lot would require a special permit (per state rules); the draft suggests limits and special-permit review thresholds for lots with multiple units. - For nonconforming lots (staff said about 90% of Salem residential lots are nonconforming), staff proposed a Section 6 finding by the Zoning Board of Appeals that any structural work to create an ADU is “not substantially more detrimental” to the neighborhood; that process would involve public hearings before the ZBA rather than a special permit.

Attorney Robin Stein of KP Law explained that the state regulations define “single-family zoning district” as a district where single-family houses are allowed as of right or by special permit and that communities should follow the state regulatory definition unless a court rules otherwise. Stein also reviewed how Section 6 of Chapter 40A applies to structural changes on nonconforming parcels and said the proposed finding language tracks existing state law.

Councilors and planning board members asked detailed questions about the B1 and B5 districts, how the state regulation interacts with local use tables, the tax-exemption option and how nonconforming lots would be handled in practice. Public commenters urged retention of local affordability protections and questioned the Executive Office’s regulatory definition of “single-family zoning district.” Staff provided ADU permitting data: 22 active building-permit applications; 14 certificates of occupancy issued since February 2022; a total of 36 ADUs built or in process (some applications incomplete or stopped).

At the end of the hearing the council closed public comment and voted to refer the ADU zoning amendments to the Planning Board for review and recommendation.