What the heck is a "protected use" ADU ?

If you live in Massachusetts, you have probably heard the term “protected use” when referring to the new ADU regulations. Basically, this is a reference to 760 CMR 71 which is the new regulation enabled by the Affordable homes act from August of 2024.

The regulation defines “protected use ADU” as an ADU protected by M.G.L. Ch 40A section 3. Section 3 is commonly referred to as the “Dover amendment”. Section 3 lists subjects which zoning may not regulate….. may not regulate….we have to repeat that because it is very important and often misunderstood by those charged with its interpretation. This means the ADU is protected from unreasonable regulations by the local zoning bylaw. For example, it is considered “unreasonable” for a municipality to require you to obtain a special permit from a Town board for your ADU. The State has already determined that the use of an ADU is important and necessary enough to be allowed by right. Therefore, there is no need for the municipality to scrutinize the use any further.

As a matter of fact, the State has gone even further and outlined what will be considered an unreasonable regulation. A Town cannot have a regulation that:

A. Results in the complete nullification of the use or development of a protected use ADU

B. Imposes excessive costs on the use or development of a protected use ADU without significantly advancing the Municipality’s legitimate interest; or

C. Substantially diminish or interfere with the use or development of a protected use ADU without appreciably advancing the Municipality’s legitimate interest.

So, what does all that mean? It basically means the Town can’t stop or regulate these in such a way that would make it too hard for you to build. They can have regulations similar to the ones they have for single family dwellings. However, there are some exceptions. For example, the ADU can meet the same setbacks as the ones the Town has for accessory buildings. Meaning, if the Town has side yard setbacks of 25 feet for a single-family dwelling and 10 feet for accessory structures, the ADU gets to go by the 10-foot setback. Whether its attached or detached. (See MLU lookup case# 11743 Lincoln).

By the way, that MLU lookup is an excellent resource. MLU stands for, “Municipal Law Unit” and the “lookup” is where you can see where the State Attorney General’s office has reviewed each city and town’s bylaw changes and either approved them or rejected all or part of them if they are not in compliance with State Law. If you look at all the ADU bylaw changes for this past year, you will see that just about every single Town has proposed a new bylaw that has had at least part of it rejected. This means that even after reviewing the new law, they are still trying to regulate us in violation of our rights. This stems from the attitude of most of the Planning Boards across the State. They incorrectly assume that they are in charge of the Zoning Bylaws within their community. They are not. There only function with respect to bylaw changes is to hold the public hearing that is required under MGL ch 40A. The purpose of the hearing is to let interested parties give their input and direct the Planning Board to recommend either adopting, rejecting, or adopt with amendments the proposed bylaw. Some Planning Boards believe that it is the opinion of the board members that should shape our bylaws. That is absolutely not the case ! Remember, their only function is to hold a public hearing. At which they will listen to interested parties and at that time impart their wisdom and expertise with respect to the Master Plan to try to help the residents make a wise decision.

So, as you can see, a lot of Government Boards have lost their purpose. And as such, the State had to step in and create protections for us from the overreaching authority of local boards. Hence, the “Protected use ADU”.