Cohousing-L Mailing List: Zoning

[John R. Abrams (jabrams]

Dear Glenn,

You said:

>I put our a request two weeks ago looking for groups who have had zoning
>rewritten to allow cohousing and received a couple of responses and was able
>to get a second zoning overlay for our planning board to use as a model.  We
>had a meeting with the board tonight and they would like us to get more
>examples for them.

This is gonna be a long reply which suggests a different approach if your
current path is unsuccessful.  If it's not useful, I apologize in advance.
I'm posting to the general list in view of recent discussion.

We are in the same state and situation as you but taking a different route,
which you may have considered.  If not, it may be useful.  My company is
development consultant/designer/builder for Island Cohousing on Martha's
Vineyard.  Our group owns property and is in the middle of permitting. The
Vineyard is the land of large lot zoning.  The town we are working in has a
toothless cluster zoning by-law which doesn't encourage clustering because
it has no density credits for open space or anything else to encourage
developers to cluster   (Typical zoning problem:  by-laws that imply what a
community doesn't want rather than saying, loud and clear, what it does).

In Massachusetts, as you may know, there is a law, Chapter 40B, commonly
known as the "anti-snob zoning law".  It was established in the 70's to
encourage affordable housing.  It provides that any development which 1) is
planned for a community in which less than 10% of the existing housing
meets the definition for affordable housing (very few communities in MA
have more), 2) plans at least 25% of the housing in the development as
affordable housing (affordable to those with 80% or less of median income)
and 3) has a federal or state subsidy for the low/moderate income units,
can apply to the local Zoning Board of Appeals for a "Comprehensive
Permit".  The application does not have to comply with local zoning and the
ZBA can issue a single permit without full consent of other boards.  If the
ZBA turns down the application without good cause, it can be appealed to a
state body called the Housing Appeals Committee, which generally rules in
favor of the development if it is truly designed to provide affordable
housing, and not just a shuck-and-jive way to by-pass zoning.

It's a powerful housing tool.  The rub has always been the federal/state
subsidy, which often comes with constraints that your group or mine may not
wish to comply with.  There are other complexities that I won't go in to
here; it will suffice to say that we are in the process of using this law
in a way that is likely to get us what we want in a non-confrontational way
and relieve the town of the burden of setting precedents they'd rather not
set.

We recently did a small, innovative housing project for our local housing
authority that required a Comprehensive Permit.  We got it, but not without
some blood, sweat and tears because of the subsidy requirement and the
state agencies that therefore became involved.  Now I'm going to impose on
your time and patience to tell a little story about that project.

As part of fulfilling the subsidy aspect, the Massachusetts Executive
Office of Communities and Development (EOCD) had to approve the financial
viability of the project. We had a hard time with EOCD. Our attorney and I
traveled to Boston to meet with them. They said our application was
unacceptable - it didn't meet their formulas for financial viability. We
talked back and forth without making progress. Finally I said, "This is
gonna sound stupid, but I'd like to propose something.  In this instance
the town is 100% behind the project. A local bank is committed to providing
long-term, low-interest financing.  A local design and construction company
is willing to build at a deeply discounted rate, and for a fixed price. How
can it lose? Why don't you, just this once, forget your formulas and have
some FAITH in a community's ability to get something done?" They chuckled,
and said, "We don't have faith. We've seen that anything can happen, and
the worst is what usually happens." Marcia and I left. We were told later
that when we left, the EOCD people said, "That's the last time we'll see
them - they'll never make this thing work."

It wasn't, and we did. We massaged, and cut, and discounted further, and
puffed some things up to make them look good, and hounded EOCD until they
threw up their hands and said, "OK, it's close enough." We built the
project, and had an opening ceremony at completion.  Some of the EOCD
people, who had nearly sabotaged the project, came to share in the joy of
its completion. The EOCD assistant secretary came up to me and said, "Could
I have a few words with you?" We walked away from the gathering.  She said,
"I've seen a lot of affordable housing. In fact, I've seen all the
affordable housing that's been built in Massachusetts. But I've never seen
anything quite like this.  Today I have faith." I thanked her for her
generosity of spirit and hoped she'd remember the next time we came in.
(By the way, the project is nothing so special - it's just well conceived,
well designed, high quality affordable housing that's reasonably energy and
resource efficiency.  Since most affordable housing is none of those
things, it stands out.)

With that experience as background, when we began to develop Island
Cohousing I initially wrote off the use of a Comp Permit and advised the
group against it.  The EOCD would take one look at our composting toilets
and laugh.  As the project developed, however, two things happened:  1) it
became apparent that it was going to be very tough to do what we wanted
without a zoning change, which would be hard to get, and 2) our Boston
attorney, Matt Kiefer, who has worked on a number of cohousing projects,
introduced us to Bob Engler, a housing consultant who has been advocating
for and successfully doing affordable housing  since before I was trying to
levitate the Pentagon.   Bob has recently developed interesting ways of
using the Comp Permit process that mitigate/eliminate some of the more
onerous aspects.  Coupled with our commitment to subsidize the low/moderate
income units internally, his strategies make it all work for us.

>From the beginning, nearly two years ago, we have worked very closely with
local officials and neighbors and carefully responded to their queries and
concerns.  So when we brought forward this process, as a simple way to
permit our project (which most support but which they see as a square
project that doesn't fit into our round zoning by-laws), they didn't feel
like it was a means of circumventing the town's zoning, but rather a way to
facilitate an important project without jeopardizing the town in the
future.

I can't say we have succeeded at this yet, but I'm optimistic about our
chances, and it may be useful for you or other groups in Massachusetts to
consider.  I don't know if other states have such laws (do they?) but
Chapter 40B has been  successfully used in this state to create affordable
housing which would otherwise have been shouted down, and I think it is an
extremely valuable tool for the cohousing movement.  If you have further
interest, you may wish to contact Bob at Stockard & Engler & Brigham in
Cambridge.

Good luck.

John Abrams