The shed at the property that was hoped to be replaced with an ADU.

Courtesy Ted Scallet

The shed at the property that was hoped to be replaced with an ADU.

Courtesy Ted Scallet

A battle over an application for an accessory dwelling unit in Edgartown could be the first challenge of the state’s major housing legislation passed last year. 

Ted Scallet and his wife Roberta filed a lawsuit in the state Land Court last month claiming the Edgartown zoning board of appeals improperly denied the couple’s plan to build the freestanding unit above a new garage. 

In their 17-page suit, the Scallets contend that the board decision against the accessory dwelling unit (ADU) at their Windsor Drive property violates the Affordable Homes Act, a major piece of legislation signed by Gov. Maura Healey last year. 

The law eased the requirements to build ADUs, the 900-square feet or less units that are often inlaw apartments or freestanding smaller units on a property, to relieve some of the pressure of the ongoing housing crisis. 

The shed at the property that was hoped to be replaced with an ADU.

Courtesy Ted Scallet

The shed at the property that was hoped to be replaced with an ADU.

Courtesy Ted Scallet

An attorney based in Washington, D.C. with a home in Edgartown, Mr. Scallet said he felt the need to push back on the board in court, claiming it didn’t consider the new provisions of the law.

“I think it’s an important piece of legislation and the law [should] get off to the right start,” he said. 

The Scallets submitted an application for the 18 foot by 28 foot garage with an accessory dwelling unit above it in June. They hoped that they could tear down an existing shed to make way for the construction on the .53-acre lot, which is in a residential district. 

The zoning board held a hearing on July 16 and voted 5-0 against the project after raising concerns about the new unit violating the town’s setback requirements in the neighborhood. 

The proposed garage and ADU would have been built 10 feet from the lot’s southern boundary. At the hearing, board members noted that the property requires a 25-foot setback, and they also worried that the bathroom for the ADU was not in the unit, but in the lower level garage, according to meeting minutes. 

In their lawsuit, the Scallets argue that the board had the right to waive the setback requirements if there were similar buildings in the area that also didn’t conform with the zoning and the new construction wasn’t believed to be more detrimental to the neighborhood. 

“Most other Edgartown Residential Districts have setback requirements shorter than 25 feet, and [the board] approved the Windsor Drive development plan, and many other subdivisions surrounding it, with side setbacks of 10 feet,” the couple’s suit argues. 

Though Mr. Scallet shared 18 different instances of buildings that were similar to his proposal, the board could only identify one accessory structure that violated the setbacks, according to the board’s minutes.

The board also noted that, while the Affordable Homes Act does make it easier to to build these types of properties, towns were specifically given the right to enforce setbacks. 

Mr. Scallet said the board should have considered the benefits of creating much-needed additional housing on the Vineyard when it made its decision, as prescribed in the act.

“I do think when something big like this comes along, certainly before you deny a permit, you ought to understand what the new law does and how it affects things,” he said. 

Zoning board chair Martin (Skip) Tomassian did not respond to a request for comment last week. The Land Court has not scheduled an initial hearing date in the case.