Letter: Land Court Should Affirm ZBA’s Decision on Jumbo ADUs

An open letter regarding:

COMMONWEALTH OF MASSACHUSETTS LAND COURT DEPARTMENT OF THE TRIAL COURT HAMPSHIRE, SS. CASE NO. 26 MISC. 000 NEWELL COURT LLC, GRAY & TAYLOR LLC, KILERINE PROPERTIES LLC, SUSAN HAN AS TRUSTEE OF THE REVOCABLE INDENTURE OF TRUST OF SUSAN HAN and WILD ONION RENTALS LLC, Plaintiffs

The Land Court should affirm Amherst’s Zoning Board of Appeals decision and reject Attorney Michael Pill’s appeal of the decision concerning the ADU at 27 Newell Ct. The ZBA was unanimous –5–0 – in concluding that the proposed project is not a 900-square-foot ADU in any realistic sense. It is an approximately 1,200-square-foot, four-bedroom rental building whose upper-level bedrooms, bathroom, closets, and access are being treated as an excluded “attic” in order to avoid the 900-square-foot cap.

…it would be an absurd result if a developer could build a 900-square-foot ADU, then add nearly 300 square feet of fully finished space above it, and still claim to have complied with the 900-square-foot limit. Such an interpretation would turn a clear size limit into an invitation to evade it.

The central question is simple: when an attic has been converted into heated, finished, everyday living space—including bedrooms and a bathroom—it is no longer an attic. It is a living area. Attorney Pill has said that a law producing an absurd result is a bad law. Yet it would be an absurd result if a developer could build a 900-square-foot ADU, then add nearly 300 square feet of fully finished space above it, and still claim to have complied with the 900-square-foot limit. Such an interpretation would turn a clear size limit into an invitation to evade it.

The ZBA’s interpretation is supported by the state agency that drafted the relevant regulations. Counsel for the Executive Office of Housing and Livable Communities, which wrote the ADU regulations implementing the 2024 Affordable Homes Act, explained that an attic generally refers to space that may not be heated and is not used for everyday living, such as a bedroom or bathroom. She further stated that, in the agency’s intended reading of the regulation, an attic converted into ADU living space “ceases to be an attic.” HLC also said that a town may reasonably and consistently interpret “attic” in a way that follows that clear regulatory intent. Amherst’s ZBA did precisely that.

The bylaw’s written purpose matters as much as its definitions. ADUs were meant to provide smaller homes and modest, incremental additions of housing and income within established neighborhoods. The 900-square-foot protected-ADU provision allows a small unit to proceed through an administrative process. Larger units may still be allowed under Amherst’s local-ADU rules, but are subject to owner-occupancy and other conditions. That is not anti-housing. It is the practical distinction that the bylaw authors deliberately created between a modest accessory home and a larger second dwelling.

Pill’s client has a lawful route if the desired structure is approximately 1,200 square feet: apply under the local-ADU rules. The small-unit, low-notice protected-ADU process should not be used to build the functional equivalent of a larger, four-bedroom rental.

In a protected-ADU process, abutters are not necessarily notified, and there is no public hearing. A neighbor cannot reasonably be expected to appeal within a short deadline when the project is approved without direct public notice, and its true scale may not be apparent until plans are obtained or construction begins. It is therefore unfair to dismiss neighbor concerns as “technicalities.”

This case is also bigger than one lot on Newell Court. Amherst Indy reports a pattern of projects built with roughly 900 square feet on the lower floor and nearly 300 square feet of upper-level finished space treated as exempt. If that interpretation is upheld, the 900-square-foot cap will be easy to evade: a project could keep its nominal first-floor area below 900 square feet while adding finished bedrooms, bathrooms, and other everyday living space above. Developers would have a ready-made formula for building substantially larger four-bedroom student rentals while avoiding the local safeguards that apply to larger ADUs.

The concern is not about opposing reasonable housing. It is about preventing a cumulative, neighborhood-altering result: the proliferation of large, student-oriented rental houses—what neighbors understandably call “student stuffer” houses—in close-in residential areas already under pressure from student demand, parking, noise, trash, turnover, and the loss of stable year-round households. In District 4, where lots are often small and homes are close together, the cumulative impact of these decisions matters. A single parcel may accommodate substantial student occupancy and multiple vehicles under maximum buildout; so may many neighboring parcels. That is not the incremental housing addition the bylaw was written to encourage.

It should also concern taxpayers if roughly 1,200 square feet of finished, rentable living space can be treated as though it were only a 900-square-foot unit for regulatory purposes. The town should not create an incentive to conceal usable floor area behind a label that no longer fits. Finished, rentable living space has real market value and can add occupancy and neighborhood impacts; zoning and assessment practices should reflect its actual function rather than an inapplicable label.

UMass Amherst has an important role in the larger housing problem. The long-term answer to undergraduate housing demand cannot simply be an ever-expanding transfer of students into formerly quiet residential neighborhoods. More on-campus housing should remain a serious priority. But whatever UMass does or does not do, Amherst still has an obligation to enforce its own zoning rules fairly and according to their stated purpose.

The Land Court should therefore uphold the ZBA’s unanimous decision. A completed upper level with bedrooms, a bathroom, closets, windows, and access stairs is not an excluded attic. It is a finished living area; it should count toward the size limit, and a nearly 1,200-square-foot four-bedroom project should follow the rules for a larger local ADU—not obtain approval as a 900-square-foot protected ADU through an attic loophole.

Ira Bryck

Ira Bryck has lived in Amherst since 1993, ran the Family Business Center for 25 years, hosted the “Western Mass. Business Show” on WHMP for seven years, now coaches business leaders, and is a big fan of Amherst’s downtown.