State law guarantees property owners right to build in-law suites

LACONIA — One resident was granted permission to construct a new garage and an accessory dwelling unit on their property at last week's meeting of the zoning board of adjustment. The approval is something of a formality, as the construction of accessory dwelling units on any single-family residential property is permitted by state law.

Craig Stout asked the board on June 18 to approve a zoning variance and a special exception in order to demolish an existing tool shed on his property at 130 Academy St. and to construct a 30-by-30-foot, two-car garage with a second-story ADU inside to provide housing to his mother.

The board approved both applications, first to grant a variance to the setback rule in the zoning ordinance — they agreed to require a 5-foot setback between the side of the new garage and the property line — and a special exception for the planned ADU and required that Stout comply with any stipulations put forward by the planning department.

Stout explained that in seeking a zoning variance from the 10-foot setback rule, he hoped to maintain the use of his driveway, keeping his vehicles off the street in front of his house and therefore reducing congestion in his neighborhood. He said the existing tool shed doesn’t offer utility.

“It’s like a one-car garage but basically all it houses is skunks right now,” Stout said.

Zoning board member Marcia Hayward was apprehensive to grant the special exception because Stout hadn’t provided detailed schematics of the ADU he intended to build. Zoning Board of Adjustment Chair Michael DellaVecchia explained that, because of New Hampshire law, the zoning board of adjustment had no authority to deny his application to construct an ADU within the structure.

The property owner must obtain zoning and building permits prior to building an ADU, therefore anyone intending to construct an ADU must apply for a special exception through the zoning board. After obtaining that approval, applicants work with the planning department to obtain building permits to complete the proposed structure. 

“As it is written in our ordinance, that’s how our process reads,” DellaVecchia said Wednesday morning. “In all zones you apply for the special exception.”

New Hampshire law requires local zoning ordinances to allow the construction of accessory dwelling units on any property zoned single-family residential, and the zoning board of adjustment’s role is simply to rubber stamp applications.

The New Hampshire Accessory Dwelling Units statute, passed into law in 2017, is meant to increase the supply of affordable housing and mitigate the shortage experienced here and around the country while reducing overall land development. 

State law stipulates that municipalities can choose one of three pathways in approving the construction of an ADU: by right, which generally requires an applicant only to seek a building permit; by special exception, which requires applicants to seek a permit through the zoning board of adjustment; or by conditional use permit, generally through the planning board. 

In Laconia an ADU is restricted in size to 25% square footage of the living space within the principal residence on a property and must be between 300 and 750 square feet. An applicant seeking to construct an ADU must work with the planning department to ensure the unit complies with municipal code, and the zoning board must approve applications for such projects when one comes along. 

ADUs, as defined by state law, are residential living units that are within or attached to a single-family dwelling and provide independent living accommodations for sleeping, eating, cooking and sanitation to one or more persons.

The proscriptions regarding ADUs within the city’s ordinance are slightly more detailed. One ADU is permitted on any city property where an owner-occupied, single-family dwelling already exists. Property owners are restricted to constructing one ADU per lot and are required to occupy either the ADU or the primary residence full-time. Unless the lot in question meets or exceeds minimum size requirements in its respective zoning district, an ADU must be located within the same building as the primary residence. 

An ADU could be constructed in a detached outbuilding, such as a shed, barn or garage, if that building is in compliance with yard setback rules in its zoning district. If an ADU is constructed in an outbuilding, connections to municipal utilities can be separate from those within the primary residential structure.

Editor's note: This story has been updated to clarify a quote regarding state zoning requirements should be attributed to Laconia Zoning Board of Adjustment Chair Michael DellaVecchia.