Salem planning staff present ADU ordinance changes to align with state law; debate rent limits, B‑1 listing and nonconforming lots

Amanda Giancola, senior planner with the Salem Planning Department, told the joint City Council and planning board hearing on April 16 that the proposed accessory dwelling unit (ADU) amendments are intended to bring Salem’s zoning into alignment with the state Affordable Homes Act and the corresponding Executive Office of Housing and Livable Communities regulations.

“The key reason we're here is to bring it into alignment with section 8 of chapter 150 of the acts of 2024,” Giancola said, framing the package as mostly preservation of existing local rules while removing requirements precluded by state law.

Giancola and attorney Robin Stein of KP Law walked the boards through three separate edits: changes to the use table (section 3.1), dimensional standards (3.2.4) and a replacement of the ADU-specific section (3.2.8). Under the proposal, ADUs must be allowed as-of-right in any district that allows single‑family homes (the definition adopted in state regulations), the owner‑occupancy requirement would be struck, and local rules may not require special permits for ADUs that state law treats as protected uses.

Stein explained the regulatory background: the Affordable Homes Act amended the Zoning Act and authorized the Executive Office of Housing and Livable Communities (EOHLC) to adopt implementing regulations. She said EOHLC’s final regulations define a “single-family zoning district” to include districts in which single-family houses are allowed as of right or by special permit, and advised the city to work within that legal definition unless a court rules otherwise.

Giancola summarized other key points in the draft: the ordinance would keep existing size limits for ADUs (900 square feet or 50% of the principal dwelling, whichever is smaller), maintain a no-parking requirement for ADUs, keep single ownership (ADU cannot be sold separately), and allow one ADU as-of-right per principal dwelling while requiring a special permit for additional ADUs on the same lot. She also described an optional local mechanism: homeowners who register an income-restricted ADU with the assessor and show a written lease at 70% of HUD fair market rent would be eligible for a tax exemption under the city’s special act.

Councilors and members of the planning board pressed on several issues. Councilor Marcello asked how the state regulations are adopted; Stein answered that the regulations were posted for comment and finalized at the state level. Councilor Watson Feld asked whether accessory units could, in practice, be short-term rentals; Giancola said the city’s code prohibits short-term rentals for ADUs and the principal dwelling in this zoning context. Councilors also flagged a drafting error that omitted a “yes” in the B‑1 column of the use table; Giancola offered options for correcting that in the legal ad or by acting now.

Public commenters included Justin Whittier (10 River Street), who urged the city to retain local affordability protections and the two-category approach previously in the ordinance and warned that the EOHLC definition of single-family districts “gives a garbled and frankly ludicrous definition of single family zoning district,” saying the city should preserve neighborhood protections. Tom Furey of the planning board described ADUs as a “tool in the toolbox” with a “human face,” and Jonathan Burke said the changes would help financing and construction markets for ADUs.

Giancola provided permitting data: 22 active building-permit applications for ADUs and 14 certificates of occupancy since 2022, for a total of 36 ADUs either completed or in process.

On nonconforming lots, Giancola and Stein said section 6 of the Zoning Act (often cited as the statutory framework for nonconforming structures) still applies: a proposed ADU that requires structural change on a nonconforming lot would be subject to a Zoning Board of Appeals finding that the alteration is “not substantially more detrimental” to the neighborhood (a statutory standard), rather than a local special-permit process.

After public comment and discussion the council closed the public hearing and referred the amendments to the planning board for review and recommendation.

Ending: The planning board will draft a recommendation for the council; several councilors asked staff to return with clarifications (B‑1 listing, a map of affected districts, and draft regulations for nonconforming-lot review).