Cohousing-L Mailing List: Re: Need Zoning Law Expertise

[Philip Dowds (rphilipdowds]

Ellis —

Congratulations:  You have just raised about the most interesting question I’ve 
seen in years on Coho_L.  I am not an attorney, and cannot provide legal advice 
to anyone.  But I do have solid, practical working knowledge of local zoning, 
the development process, and cohousing — so I will offer you some suggestions 
you might want to take back to your allies in the small city:

(1) SIZE MATTERS.  I’m pretty sure most of us would agree that two households 
is too small to be cohousing, and that we’re unaware of any functional 
cohousing at the size of two hundred households.  Somewhere in between, we find 
the size range of cohousing that’s likely to work.  I suggest that 15 to 40 
dwelling units is the appropriate size range.  Obviously, there’s room for 
debate here — but the point is that your zoning definition of cohousing should 
include some size parameters.

(2) MINIMUM INDOOR AMENITY HELD IN COMMON.  I don’t think we want to bog down 
in details, like cohousing must include at least two guest rooms or a kids’ 
playspace of at 200 sq ft.  No.  But I do think it’s appropriate to set a 
minimum target of X hundred sq ft for indoor common “habitable” sq ft, 
exclusive of stairs and corridors, per each dwelling unit.  I leave it to you 
to research what “X” you want to recommend.  Note that “habitable” has a 
specific, legal, building code meaning, and prevents the developer from 
counting basement boiler rooms or storage compartments as part of the common 
indoor amenity.

(3) GOVERNANCE STRUCTURE.  Mass Chapter 183A provides two things of interest 
here: (1) The developer controls the project and community until sales exceed 
50% — at which point, control transfers over to the unit owners, even when the 
developer still has many units to sell.  And (2) the elected Managing Board is 
a critical and essential feature of a condo association; it is where the buck 
stops, and is not optional.  BUT AND HOWEVER, there is still wiggle room room 
in how the transition and the management evolve or stabilize over time.  The 
draft bylaws of the developer — which apply as soon as property ownership tips 
over 50% to the buyers — can emphasize that plenary (the big meeting of 
everybody, as preferred by some communities) controls everything until and 
unless the stability and integrity of the property are threatened, in which 
case, the Board must exercise its duty to step in.
     OK, we’re now in a murky legal can of worms … But the point is that the 
developer must agree to transfer power to the community in a specific form — a 
form consistent with the decentralized, participatory and egalitarian 
principles honored by the cohousing vision.  My more general point here is that 
it’s appropriate for the AHJs (“Authorities Having Jurisdiction”) to have 
review and approval over the Declarant’s (preliminary) bylaws … IF the goal is 
to ensure an open door to the cohousing lifeway.

So:  There are some options; there may be others.  Feel free to contact me if 
you think more detail might be useful.

Thanks,
Philip Dowds
Cornerstone Village Cohousing
Cambridge, MA

mobile: 617.460.4549
email:   rpdowds [at] comcast.net

> On Mar 27, 2019, at 9:00 PM, Ellis Cohen <e.cohen [at] acm.org> wrote:
> 
> We're planning to build a dense 30 unit cohousing project on a relatively 
> small plot of land near the downtown area of a small city in the Boston area. 
>  To facilitate permitting, our supporters on the city council are trying to 
> define a new cohousing zoning category. However, a number of them are 
> concerned about finding a legal and enforceable way to define this category, 
> that would, at the same time, preclude a developer from creating a dense 
> rental apartment building with similar dimensional characteristics.
> 
> If you know of someone who is doing or has done research on zoning law, that 
> could be helpful to our situation, I'd appreciate it if you could put us in 
> contact with one another.
> 
> Thanks
> 
> Ellis Cohen
> e.cohen [at] acm.org
> Bay State Commons
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