EASTHAM — The Cape Cod National Seashore Advisory Commission advertised the topic of its April 7 meeting with just five words: “Protecting the Seashore District Character.”
The meeting, at the Salt Pond Visitor Center, focused on the lack of clarity over which set of laws and regulations — those of individual towns, the state, or the federal government — will govern homeowners’ right to build accessory dwelling units (ADUs) on properties in the Seashore.
Towns with residential property in the Seashore are required to have special National Seashore zoning districts. The Seashore itself issues guidance for those districts, which the towns follow more or less closely.
Eastham was the first to adopt most of the suggested regulations decades ago, according to Seashore Supt. Jennifer Flynn.
But Truro adopted a bylaw in 2024 allowing ADUs that meet certain criteria to be built by right in the Seashore district — in conflict with the Seashore’s interpretation of its statutes.
Layered on top of this conflict is last year’s Affordable Homes Act. Flynn and some members of the advisory commission worried that the law, which overrides local zoning to give owners of single-family homes by-right permission to construct ADUs of up to 900 square feet, would affect the Seashore districts in each town.
“Our initial take is that the potential for change is significant,” said advisory commission member Heather McElroy, who chaired a subcommittee on the effects of the new law.
According to the Cape Cod Commission, where McElroy is the natural resources program manager, Eastham has 88 single-family properties in the Seashore, Truro has 178, and Wellfleet has 211. Chatham, Orleans, and Provincetown each have fewer than 10. According to the new law, all of those homeowners could potentially pursue ADUs, she said.
Mike Fee, Truro’s alternate on the commission, said only about 50 properties in its Seashore district meet minimum acreage requirements and have no additional structures already on the property — the criteria in Truro’s ADU bylaw.
Fee also said there have been only two applications for ADUs in Truro in the last three years.
“I disagree that the sole purpose of the National Seashore is to create a museum,” Fee said at the meeting. The town believes that its bylaw forms “the basis of a compromise that would meet both the town’s affordable housing needs as well as the Seashore’s stated desire to maintain character.”
No enforcement
The 1961 law that created the Cape Cod National Seashore was the first to incorporate existing towns into the mission of a national park. The Seashore’s mandate — “to preserve the nationally significant and special cultural and natural features, distinctive patterns of human activity, and ambience that characterize the Outer Cape” — leaves much open to interpretation, however.
Flynn said she believes ADUs are not authorized under the 1961 law, which defines an “improved property” as “a detached one-family dwelling, the construction of which was begun before Sept. 1, 1959.” Regulations published in 1962 stipulate that any use of an improved property in the Seashore must be as a single-family residential unit, or “customarily incidental” to the principal residential use without altering the “essential character of the dwelling and premises as a private residence.”
Flynn also said that her primary leverage over property owners in the Park was the threat of revoking their “certificate of suspension of condemnation” — that is, the promise that the Park will not seize a property by eminent domain as long as the owner abides by relevant regulations.
That threat “doesn’t have teeth anymore,” Flynn said. Banks had historically required such certificates when issuing mortgages, but the Seashore districts are seeing more and more wealthy buyers who pay cash for their properties and “don’t care” about maintaining the certificate, she said.
The Park would have to pay fair market value if it were to attempt a condemnation — and there is no money set aside for that purpose.
Flynn acknowledged the region’s housing crisis, saying that she is the highest paid employee of the Park and still can’t afford a house on the Outer Cape.
Sarah Korjeff, a historic preservation specialist at the Cape Cod Commission, said she saw “no reason why additions couldn’t happen as long as the original historic structures remain,” although she also said her comments were limited specifically to the matter of “character.”
On Beacon Hill
The advisory commission did not reach any firm conclusions on April 7 — but in a subsequent conversation with the Independent, state Sen. Julian Cyr said he felt the conflict between the state’s new housing law and the legislation that created the Seashore had already been resolved.
On Jan. 9, Cyr and state Rep. Hadley Luddy sent a joint letter to the Executive Office of Housing and Livable Communities, the agency charged with issuing regulations for the Affordable Homes Act, to point out the potential conflict over ADUs and ask the state to find the National Seashore’s legislation to be paramount.
“We understand that the Cape Cod National Seashore enabling legislation, as a federal
statute, preempts conflicting state law under the Supremacy Clause of the U.S. Constitution,” the legislators wrote. “However, the Seashore’s administration and towns located within its borders are concerned about this conflict, especially since the Seashore is often not given the necessary enforcement power to intervene in construction that violates the federal authorizing statute.
“We urge the Executive Office of Housing and Livable Communities to consider these unique
circumstances when finalizing regulations for the Affordable Homes Act.”
On Jan. 31, the state published its regulations. Nothing in the Affordable Homes Act “is intended to supersede state health and safety laws and regulations … or any federal laws,” section 3 of the regulation’s statement of purpose reads.
Even without the state’s by-right ADU law, however, not all towns see eye to eye with the Seashore on “customarily incidental use.” Fee told the Independent that Flynn had argued that ADUs are not allowed in the Seashore in a letter to Truro’s town manager in 2024, before town meeting voters passed the new bylaw.
“We studied that and had a different interpretation,” Fee said. “Truro wants to happily coexist with the Seashore — and having an extra tool to be able to allow small numbers of ADUs within the Seashore would be really helpful.”
