Two accessory dwelling unit applications before the Planning Board Sept. 8 highlighted a question the board is still working through: how much discretion does it have over projects the state now requires communities to allow by right?
Board members spent nearly three hours weighing concerns about building size, neighborhood character, emergency access and existing zoning restrictions against the state’s protections for qualifying ADUs.
The board had invited Town Counsel Adam Costa to the meeting specifically to help navigate what Chair Marc Liebman described as “particularly tricky applications.”
Costa said municipalities are still figuring out how the new rules apply to situations that combine ADUs with new construction, existing development, nonconforming structures and other zoning issues.
“We don’t have any case studies as of yet,” Costa said. “We have examples of what has been done in other communities, but generally, the specifics get worked out typically through litigation and through the establishment and the creation of case law.”
That lack of precedent became particularly apparent in the two applications before the board.
Broadmere proposal fails to win site-plan approval
The first application, for 6 Broadmere Way, involved a proposed approximately 1,800 square-foot, two-story structure combining a garage and an ADU.
The applicants had filed separate applications for site-plan review of the structure and for the ADU itself. Attorney Matt Wolverton argued that the ADU component was a protected use under state law and therefore permitted by right.
But board members questioned whether that protection could extend to a new garage that would serve as the lower level of the proposed building.
One member said he would be willing to approve the ADU but not the proposed structure, arguing that treating the entire building as an as-of-right ADU could establish a precedent for future applications.
Several abutters objected to the proposed building’s height and location, arguing that the two-story structure would appear substantially larger than the existing single-story home and would alter the character of the neighborhood.
One abutter, Jack Tatelman, said he had no objection to the property owner building a garage or an ADU separately, but objected to combining the two.
“I have no objection for them to build a garage. I have no objection to building ADU. It just feels like the way they put the both together is going to be this tower that’s going to reflect bad in our neighborhood,” Tatelman said.
Meanwhile, Wolverton contested that the structure complied with the district’s height requirements and that its location was constrained by the property’s topography and conservation restrictions.
The board discussed whether a smaller or single-story structure might resolve the concerns. But the applicants said they had already tried to work with neighbors and wanted to move forward with the proposal as presented.
At one point, Liebman acknowledged how unusual the decision felt.
“I’m actually torn on this one, which is a very rare thing for me,” he said. “Usually, I know exactly what I want right away with these.”
The board ultimately fell short of the four votes needed for site-plan approval. With no building approved to house the ADU, Wolverton withdrew the ADU application without prejudice.
Maple Circle spotlights neighborhood concerns
The board then turned to 9 Maple Circle, where the applicant proposed a detached ADU on a property that already contains a two-family dwelling.
The application had been pending since May and had already been continued through several Planning Board meetings. The applicant revised the plans to address earlier concerns, including widening the driveway to about 15 feet wide and agreeing to install sprinklers.
Wolverton told the board that the fire chief and an inspector had reviewed the revised plan and determined emergency vehicles could access the property.
The revisions addressed some of the board’s concerns, but not those of neighbors.
Attorney Peter Nechtem, representing an abutter, argued that adding a third dwelling to the property would further distinguish it from the predominantly single-family neighborhood.
He also raised concerns about the proposed driveway, traffic, emergency and construction access, and potential effects on neighboring property values.
The opposition additionally raised the property’s complicated zoning history and argued the board could not override an old ZBA restriction, while Wolverton maintained that the proposed driveway did not use the restricted portion of the property.
The discussion also brought the board back to the question of what it could legally consider when reviewing an ADU.
Board struggles with how much discretion it has
One of Marblehead’s ADU bylaw provisions says the regulations are intended to encourage efficient use of the town’s housing supply while preserving neighborhood character and protecting property values.
Nechtem argued that those goals weighed against the Maple Circle proposal.
But Costa cautioned the board against treating the bylaw’s purpose statement as though it were a traditional discretionary zoning criterion.
The state’s ADU framework, he said, limits a municipality’s ability to deny a qualifying ADU simply because officials or neighbors believe it changes the character of a neighborhood.
Costa said municipal interests, including public safety, can be a legitimate basis for imposing conditions, but speculative concerns are less likely to justify a denial or severe restrictions.
“The courts haven’t looked favorably upon those speculative concerns as being justification for denial or severe conditioning,” he said.
The board also considered whether it could require additional landscaping to address neighbors’ privacy concerns.
Costa said a landscaping condition could be imposed if it was reasonable, but cautioned against conditions that would impose excessive costs or effectively prevent the ADU from being built.
“The difference is, you lack some of the discretion you had previously,” Costa said.
The board ultimately approved the 9 Maple Circle application, with conditions including landscaping and lighting provisions.
A new zoning landscape
Costa said the law is still so new that even attorneys are working without much guidance.
“We simply don’t know yet,” he said. “So even us lawyers are sort of guessing as we go.”
The discussions also prompted a broader reflection from the board about the changes to Marblehead’s own ADU regulations.
Liebman said the town had previously crafted a more detailed bylaw intended to allow ADUs while giving the town more ability to protect neighborhood character. Much of that language was superseded by the state law.
“The state took the authority away from us. We had a much more in-depth bylaw prior to the state superseding us, and we approved as many safeguards as we could,” he said, responding to a frustrated abutter. “They really stripped it down to a bare-bones bylaw for Marblehead and that’s all that we were able to get approved.”
Liebman said the board still has some ability to shape projects through conditions, but far less authority than it once did.
“We’re trying to do the best we can with what we have,” he said. He acknowledged that the board’s decisions on ADUs could leave people on both sides unhappy.
“We’re gonna make as many enemies as we are friends with this,” Liebman said. “And I hope that you understand that it’s not a function of us being lazy or not caring. It’s simply that we don’t have the power to do a ton with this.”
