Saturday, December 5, 2009

Co-Housing - Part 5: Matters of Stakeholder Governance

Neighbors in the U.S. decided to take community-based matters into their own hands beginning in the 1900s (one of the first POAs being in Kansas City, in 1905), when they realized that governments, no matter how well-intentioned, can’t handle the variety and number of grievances owners have against their fellow owners in a subdivision or condominium project. Sounded like a good idea; but eventually, POAs (my initial-ism for property owners’ associations, a generic term for the several types of organizations of property owners) began to feature, in too many instances, direction by little tin gods who behaved in more draconian fashion than any government bound to recognize its citizens’ constitutional rights. POAs lately are not turning out to rule with sensitivity and benevolence as they initially were envisioned to do. John Uhri of Indiana heard enough of their narratives to start a blog called “Neighbor Revolution,” in which he writes, plaintively enough: “We want to get to know our other neighbors better and turn into a true community. We’d rather have our neighbors stop by and say they wished we’d cut our grass more often instead of sending out a HOA bully to do the job. Is this possible? I don’t know. But I think we should try.”

Amen, John. I got nauseated, as legal counsel, sending demand letters to owners over placement of basketball hoops and holiday-season lights on their buildings and grounds, so I stopped representing POAs decades ago; and I’ve never missed a moment of the bickering. This landscape of micromanagerial silliness is not susceptible to repair by state government. The most Arizona’s legislature has been able to do is to safeguard persons expressing their patriotism to fly certain flags and to post certain political-and-candidate affinity signs. And that legislative effort was agonizing enough. Time to wipe clean the slate of overbearing self-governance in a new environment of co-housing. But how shall you proceed afresh?

First, I think that a new community, especially one that comes on-line in haste, should begin the organization of mass behavior through a constitutional convention. Seriously. I mean in town-hall fashion, the folks committed to purchase their dwelling units – but hold the land on that sale, please - should sit down together and decide what matters to them as a community. What really matters, I mean; not micromanagement of the operation of the project in perpetuity. And a part of that community effort entails doing the same thing, repeatedly, minimally each seven years after the original constitution is adopted. One of the stupidest parts of current POA self-governance is the notion that a development (or public taste) is immutable, and that the neighbors will always hold onto the same “community values.” (Query: Would you rather have the skateboarder using those noisy ramps in his/her parents’ driveway – or in the street?) Truly, later “generations” of owners bring different expectations for the form and appearance of their dwellings and the overall project, and are stuck with the declaration of restrictions from 30 years past that never can be amended or terminated without a unanimous vote of the 48 subdivision lot owners - as if that’s ever going to occur. (You remember the CCRs containing the clauses about the garage or carriage-house that can’t be built until the primary dwelling is erected, coupled with far less kinder restrictions on the races of people who can and can’t live in them.)

But in new co-housing projects with aggregated amenities, the owners begin their engagement with the community under the assumption that cooperation and distinctiveness are themselves virtues, not the ingredients of a recipe for continual contention. And since a property devised co-housing constitution is an organic document, the project is not undergirded by mutual distrust but by respect. Additionally, since the co-housing project may feature movable dwelling units, if there is discord sufficient to fry the “good vibrations” of the community, the folks finding themselves on the “outs,” as they say, can pick up and leave with less difficulty, headed for a more empathetic community of kindred spirits. Here’s a few suggestions on how to prevent that from happening – inserts for the new constitutions.

• Encourage youth to address the periodic community meetings (conventions); they are both more intuitive than adults and less subtle in means of their expression, thus increasing the odds that the truth will be spoken in these meetings,

• Allow the constitution to be amended by something far less than 100% affirmative vote but something more than a simple majority of the voting community members (2/3rds),

• Articulate a dispute resolution process as between individual dwellers; what about this, assuming the instance of a community established via a land trust and having a sole Trustee charged with the daily administration of the land trust:

a. In the first stage, the disputants meet face to face, in an unsupervised conciliation meeting. Conciliation occurs when the parties agree on concessions each to be made to the other’s point of view, sometimes achieved by a change in behavior of a party, and at other times by specific actions of one or both parties to the dispute. If the concessions are sufficiently substantial, the dispute ends there. Accordingly, the most efficient means to curtail expending personal or community resources is to train community members in conciliation processes at the outset of the community.

b. During the second stage, the parties meet in a mediation setting with a neutral person from outside the community. The objective at this stage is to identify the divide between issues that are resolvable and irresolvable without further processes. If sufficient issues are mediated to a reasonably satisfactory result, the next stage of the disputant’s conversation may be a. above or c. below.

c. At the third stage, remaining disputes following steps a. and b. above (if there is no further conciliation process) are arbitrated by a neutral unaffiliated with the community. At the conclusion of this stage, one party has prevailed in its position concerning each issue not earlier resolved; and the arbitrator’s decision is binding, by prior agreement of the parties to the arbitration.

(The fourth stage described in d. below is not technically a dispute resolution step; instead, it is “aftermath adjustment” of the attitude of the non-prevailing party in the arbitration.)

d. In the aftermath phase, a party still aggrieved (due to an adverse outcome on an issue) may elect to meet with the Trustee of the land trust or her representative, likely a member of the community, to discuss the terms under which the griever will sell back to the Trustee her ownership interest in the community. This meeting does not address the merits of the disputants’ positions in the now-resolved dispute, nor the decision of the arbitrator. The sole issue is allowing the griever the opportunity to depart the community – hopefully with some dignity – since the non-prevailing person feels unable to continue her daily interactions with her former adversary (ies) or other persons aligned with the adversary’s viewpoint in the recently-resolved dispute. There would need to be a time limit upon the exercise of this prerogative by the grieving party. (Whether the Trustee would be bound by the same time limit is a decision point; if a disgruntled community dweller spends all her time “poisoning the community well,” this might be form the basis for the Trustee’s requesting purchase of the griever’s property interest for the sake of deescalating conflict.) This is a meeting for economic discussions only pertaining to the value of the griever’s property interest and the terms and timing of that interests’ acquisition by the Trustee.

Above, I chucked in a reference to a land trust. In a future post, I’ll address that and other possible models of co-housing ownership that are pragmatic, not utopian.


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