Bedroom Limitations (2-BR Cap and Overlay District Density)

AG Disapproved

Falmouth, Barnstable County

Use & Occupancy

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What This Means for Your Project

The Attorney General has disapproved this provision as inconsistent with G.L. c. 40A §3. It is preempted by state law, though it may still appear in Falmouth's local code. Builders should cite the AG decision if this comes up during permitting.

State Law

G.L. c. 40A, § 3 prohibits the direct regulation of the interior area of a single-family residential building. Bedroom limits also constitute impermissible 'Use and Occupancy Restrictions' under 760 CMR 71.02 because they limit the number of occupants beyond what is required by applicable state code.

Local Bylaw

Section 240-9.1C(5) capped ADUs at two bedrooms. Sections 240-9.1C(8) and (9) imposed additional bedroom density limits in the Water Resource Protection Overlay District and Coastal Pond Overlay District (one bedroom per 10,000 square feet of lot area).

Impact on Your Project

The Attorney General disapproved all three provisions on two independent grounds: interior area regulation and impermissible occupancy restrictions. The AG also noted that bedroom limitations would likely violate Fair Housing laws prohibiting discrimination based on family status.

AG Decision

AG disapproved June 2, 2025 — bedroom cap (§ 240-9.1C(5)) and overlay district bedroom density rules (§§ 240-9.1C(8), (9)) all deleted.

Sources

MGL c.40A §3 760 CMR 71.02 AG Decision — Falmouth (6/2/2025)