Cluster Housing in Rhode Island

This study has focused its attention on the conceptual theories of clustering in relation to the actual practices which are occurring today in Rhode Island. The study provides a historical framework for the cluster process and subsequently describes the following components: cluster characteristics in Rhode Island communities, open space, management, legal constraints, cost and a visual analysts. All of the chapters begin with a general discussion which provides a framework for the Rhode Island cluster experience.

given to the problem of defining the "cluster". The conceptual definition of the "cluster" will be discussed in this chapter, while the "working" definitions will be analyzed in later chapters.

THE CLUSTER CONCEPT
Proponents conceive of cluster developments as a viable alternative for residential growth in city and suburb. Their uniqueness is founded on a premise that houses can be grouped together to promote a greater utility of individual lot space, resulting in more creative design and use of the remaining land in the tract.
Some of the general features of the cluster include: 1. The preservation of some part of a tract of land in its natural condition; '-"' 2. The preservation of natural amenities which will be beneficial to the community and to the future residents of the development; There was an acute need for a cure of this mixture of landuse and zoning became the answer for the troubled cities. 5 Zoning is a form of local police power that restricts certain types of building or land use to selected districts . Zoning became a powerful land management control, which affected the lives of many people and the structure of many communities. After World War II, a different attitude appeared among older residents of suburban communities . Instead of seeing all growth as good , selling their property for a profit and moving on , as they once would have done, they now tried to use zoning to protect their established pattern of light settlement against developer encroachment. 8 The aim of many suburban residents was to defend their comfortable style of low-density living against a cheaper and more congested style. 9 Accordingly, regulations that limit an entire town to single-family occupancy, or to minimum lot sizes of one, two or even four acres , have been enacted in order to preserve the existing social context of lightlysettled suburbs.10 By and large, suburban land controls since the Second World War, have enabled a significant number of well-organized communities to limit their growth by halting or de- This rapid growth has put considerable stress on many suburban areas. Some of these communities realize that to keep their fiscal budgets healthy, they must restrict de-I velopers coming into their community. However, what does this growth mean? Are corranunities running out of space? Is there no place fqr growth to go? Often, the case is that little time is spent analyzing the utility of the space which we occupy. Statistics, land use maps, and zoning maps do not present a clear picture of how the land is being used, but rather depict what assets are being used , or overworked.
Richard Saul Wurman 13 advocates that we plan instead for the 'quality of space" . This means that we must look carefully at our environment and plan for a more efficient use of our buildings and land areas. He writes, We don't have the drawings or the maps, or the dynamic way of showing how the city is being used. All we can show is the general floor use. That squares of the map is filled with a color that represents an educational facility that means its filled, and you can't conceive of other uses of that area because our minds can't go past that map .14 8 I believe that cluster zoning, when applied in a careful manner, can use land in a more efficient and productive manner, while still meeting the housing needs of a community .
Clustering is an attempt to look at any area of land in total, and to examine its physical features and assets and plan accordingly for the best use of these physical features and benefits. The ability to plan for a large piece of land, rather than designing on a lot-by-lot basis, confers the opportunity to provide a greater "quality of space".

DEFINING THE CLUSTER
To many people, the process of defining a word or concept is merely the first step when analyzing or presenting a new idea. The cluster concept has suffered from the wide range of definitions which are geared to specific individuals and their purpose. Authors of various literary works have defined cluster developments with respect to their own conceptual beliefs. Cities and towns have adopted cluster zoning ordinances or provisions and have defined "cluster" in terms of their specific goals or motives. These two types of definitions may be categorized as: (a) conceptual or theore--, 9 tical definitions. and (b) "working" definitions . This study will present the variety of definitions which have been given to the cluster process and illustrate the associated problems. The analysis of definitions suggests that there is need to develop a clear definition of "clustering" which provides sufficient description for the layman and enough conceptual background for town officials.

The Problem
What is a cluster development? This is a common question which is asked for the planner, the town official. and even the developer. For the most part, the word "cluster" implies a certain closeness or grouping together of houses.
Unfortunately, for most people, this is the only facet of clustering with which they are familiar. Having such an ambiguous name as "clustering" results.in initial obstacles when trying to promote this idea to townspeople, planning commissions, or governing bodies. Charles Little 15 advocates changing the term "cluster" to "Green Space Development". thus removing any negative aspects which the word "cluster" might have. This is a noble attempt in redefinition. but its practicality is questionable.
Instead of renaming the cluster process, it may be worthwhile to describe it more effectively in ordinances and regulations, attempting to eliminate many of the common problems associated with the mechanism of clustering.
Definitions of "cluster" are numerous and vary in relation to the community in which it is present. A detailed definition is given by Katherine Kulmala, "In Cluster Zoning in Massachusetts". She states, Cluster development, or cluster subdivision, applies to a purely residential subdivision of a tract of land, where instead of subdividing the entire tract into house lots of conventional size, a similar number of housing units may be clustered on lots of reduced dimensions. The remaining land in the tract which has not been built upon is reserved for open space to be held in some form of ownership or easement, which will prevent it from ever being subdivided. The concept could also be applied in districts which permit two-family or multifamily dwellings; or even allow multifamily structures in a single-family district to provide the total number of families to be housed in a given acreage; if it is not increased significantly over what would be allowed in a conventional subdivision. This chapter will outline the major issues which concern clustering in these four connnunities. It is essential that local officials, developers, homeowners, and planners realize that a cluster ordinance cannot operate by itself; it relies on the coordination of attentive subdivision regulations and capital budget considerations in the community.
The coordination of these three elements will help to insure the success of clustering as a concept and as a reality. North Kingstown is also the only town or city in the State to specifically provide for clustering in its town charter. Section 16-4-5.1 states: For the purpose of this division, a "cluster" development is a division of land into lots used or available for use as building sites where said lots are clustered together into one or more groups separated from adjacent property and other groups of lots by intervening "conunon open land".
In the event that the land contained within a development is traversed by proposed collector or arterial street shown on the master plan, such development shall be designed in accordance therewith, and the right of way across the development for such collector and arterial streets shall be dedicated to the public.
Section 16-4-5.2 states: Ownership or tax liability of private open space reservations shall be established in a manner acceptable to the planning commission and made a part of the conditions of the plan approval.
For the purpose of promoting orderly and progressive development, at least fifty percent of the required improvements as shown on any final plan must be installed before final approval can be given on any subsequent enlargement.
Each cluster development proposal submitted to the town for review must file a basic review fee in accordance with the fee schedule of the town and twenty dollars for each acre or part thereof covered by the proposed cluster development project.
Provision may be required to create access at least twenty-five feet wide to each parcel of such common open space from one or more streets in the subdivision, depending on the size of the development and the surrounding land uses as the planning commission may determine.
The town charter provides the authority to administer cluster housing; but without state enabling legislation, 16 there are questions to whether the town is usurping certain legislative powers from the state.

Highlights of the North Kingstown Ordinance
The Working Definition. The working definition of the cluster for the town appears in the zoning ordinance. The purpose of this definition is to establish the goals of clustering in a framework for the community.
North Kingstown defines cluster as: For the purpose of encouraging the preservation of open space and promoting the more efficient use of land in harmony with its natural features and with the general intent of the Zoning Ordinance, an owner or owners of a tract of land, or a duly authorized agent thereof, may seek, in connection with the submission of a subdivision plan for Planning Commission approval under the subdivision of Land Law, approval for a cluster development. The South Kingstown cluster ordinance appears to be the most adequate of any of the cluster provisions in the State today.

Highlights of the South Kingstown Ordinance
Working Definition. South Kingstown defines a cluster as follows: Residential cluster development: A specified minimum area of contiguous land, developed according to a plan at specified densities as a complex of single family dwellings, duplexes or multi-family dwelling structures, (max. of six d.u.) or a combination of such residential structure with one or more common space areas designated to serve the development.

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Housing Type. The cluster ordinance provides for single family, two family, and multi-family dwelling units, with a maximum of six dwelling units. The various regulations permitted demonstrate the flexibility that is afforded through the use of clustering.

CONCLUSION
The data for cluster zoning ordinances in ~hode Island suggest that some of the ordinances are not specific in addressing all of the guidelines for successful cluster development. The following are suggestions to be considered when an ordinance is being amended or adopted in a community.   A period shall be stated making mandatory that the developer submit the homeowner association agreement or contract. Preferably, this would be in the pre-application stage of the development process. Assurance should be made that the homeowner agreement reflects the proposed cluster-homeowner association agreements should not be transferred from one cluster to another The area is beautiful and vulnerable; development is inevitable and must be accomodated; uncontrolled growth is inevitably destructive; development must conform to regional goals; observance of conservation principles can avert destruction and ensure enhancement; the area can absorb all growth without despoliation; planned growth is more desirable than uncontrolled growth, and more profitable; public and private powers can be joined in partnership in a process to realize the plan.
Meharg has proposed the ecological plan and given us a comprehensive methodology which identifies and provides for natural processes based on their inherent capabilities.  This is done when the municipality decides that there is a great value in an area of land and wants to acquire control over it. For example, the areas may be an important aquifer recharge area in the town and the community wants the assurance that they will be able to manage its destiny for years to come. Some communities cannot opt for this alternative because the town may be faced with maintenance and enforcement costs when they take on this responsibility, as well as tax losses.  Federally-sponsored new towns have adopted a somewhat different scheme. According to HUD's ' guidelines, the right to vote in the association must be granted to the owners and the renters alike.7 Perhaps fearful that a system which does not endorse the principle of "one man, one vote" might be held

LIABILITY
Homeowners should be aware that when they agree to become members of a homeowner association that they accept different liabilities than single ownership. The liability depends on whether the homeowner association is incorporated and nonprofit or unincorporated. I would like to briefly outline the differences between the incorporated and unincorporated homeowner association and suggest that this concern be made obvious to all prospective homeowners. 9 My discussion will focus on the following: I) The Guiding Law; II) Ability to Contract; III) Title Insurance; IV) Contractual and Tort Liability.

Guiding Law
The unincorporated association is a creature of an agreement between each of its members and delegates certain powers the "insured parties" may be deemed to be the individual members of the unincorporated association at the time that the policy of the title insurance was issued.

Contractual Liability
What are the differences in liability when comparing an unincorporated homeowner association and corporated homeowner association? Being a member in an unincorporated association generally imposes no personal liability for the debts contracted by the association. However, a member could be charged with personal liability if it could be shown that he actually or constructively assented to, or ratified, the contract on which the liability was based.
It has been suggested that purchasing property subject to a recorded declaration of covenants, conditions and restrictions, may constitute a sufficient, implied authorization to hold a member of an unincorporated association personally liable for debts incurred within the scope of the declaration.
Non-profit corporations have been granted the general power to enter into contracts. Furthermore, the officers, directors, and members of · such a corporation are generally not personally liable for the debts and liabilities incurred by the corporation. However, in an unincorporated association there is not only an element of risk or personal liabilities for a person serving on the government board, there is also a similar risk for one who is only a member of such an association.

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Tort Liability The common law provides that since each member of an unincorporated association is engaged in a joint enterprise, the negligence of each member is ascribed to each and every other member. Consequently, a member who is injured cannot sue the association which injured the member, and each member is personally liable to other injured parties for the negligent acts of their fellow members. But, non-profit corporations, by their very nature, are deemed to be separate entities apart from their members. Thus, the incorporated associations may be sued separately, and generally neither the members nor the directors can be personally liable for a tort of the member who was acting on behalf of the corporation. 12

PROPERTY RIGHTS
Clustering does more than promote new ideas for designs of housing; it develops an organizational framework that helps control and manage the cluster and its space.
It is important to note that when the cluster concept and homeowner association processes are used together, the traditional notions of property rights change. 13 Ureil Reichman in, "Residential Private Governments" discusses a few of the instances where a common property right is not allowed because of specific guidelines set forth by the homeowner association. For example, 1. Architectural controls may be imposed to make sure any or additional construction is in harmony with the rest of the cluster.
2. In some instances the right to use conunon facilities may be suspended by the homeowner association if the board decides that the homeowner in question has violated the regulations.
3. The homeowner association has the right to embody rules by popular majority. However, it is interesting to note that very few substantive criteria are included to limit any future legislation in the association. This is direct contrast to a local municipality which is restricted by Federal and State laws, constitutional standards and administrative norms.

HOMEOWNER ASSOCIATIONS IN RHODE ISLAND
This study has examined all of the by-law agreements of cluster developments that are in operation in Rhode Island today. This analysis has identified the components of the by-law agreement is essential for the success of the homeowner association.

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The sequence of events which climax in the purchasing of a lot by the homeowner may evolve over many years depending on a variety of factors. The question arises as to the appropriate time in the developnent process to include the by-laws of the homeowner association. This study advocates that the by-laws be prepared before and presented for approval at the final application stage of the development process.
These by-laws should be representative of the proposed cluster and not be a prototype of a previous development.
The following sequence of events illustrates the possible steps in the development of a cluster. These steps may be modified or changed depending on the characteristics of the proposed cluster development. However, it is essential that provisions are made for the preparation of a management program.

A developer purchases a piece of land
and contemplates a design and marketability plan.
2. An inventory is made of the physical fea-    Since clust~rs were first adopted, there have been many court cases challenging their legitimacy. The conunon complaint centers on which administrative or legislative body in a 69 community has the power to grant approval of a cluster. The argument is made that the planning commission does not have the power to approve a cl~ter, because it would be a legislative v function and thus being apart from their administrative role.
This role is to be reserved for the zoning board. The distinction should be made that in these situations the case law is concerned with a planning commission approving a zoning change rather than approving a proposed cluster which conforms to existing zoning standards. This distinction is important to note because even when there is a designated cluster zone, there tends to be misconceptions on the part of local officials and homeowners that the approval of the cluster automatically increases the density in that zone. The ambiguity which arises illustrates that there are major conceptual problems associated with the approval process of clustering.

STATUTORY LIMITATIONS
The area of most interest in the broad scope of statutory limitations is the separation of powers doctrine as applied to State and local powers. The connnon contention is that a planning commission or board is given legislative powers in approving a zone change in a locality.
This argument is based on the premise that giving an administrative body (planning commission) legislative powers is  Super. 197,210, 172 A 2d Fed. 40 (Law Div., 1961), the reasoning in the case is as follows: The plaintiffs contend that the cluster provision or open space ordinance was enacted for the special benefit of the owner, Yenom Corporation.
The defendants maintained that they responded  Rpt. 2d, 83, 1973Rpt. 2d, 83, -1974, illustrates the problems when a planning conunission is given legislative powers. The first issue addressed in the case is, "What is the legal nature and effect of the act of imposing a PUD on a specific parcel of land?" To this issue, the court responded, "We hold it is an act of rezoning which must be done by the city council because the council's zoning powers come from the statute and that is what the statute requires". It is emphasized that a change in a permitted use is a rezone or amendment of the zoning ordinance.  The major conclusions can be sununarized as follows: 1. Planned growth of all densities is less costly to create and operate than sprawl in terms of environmental, economic and personal costs, and energy consumption.

Economic and environmental costs are
likely to be less, at higher densities to house and serve a given population.
3. Planning results in savings; however, density is a much more influential cost determinant.
The greatest cost advantages occur when the higher density planned developments are contrasted with low density sprawl.
This study reinforces the idea that clustering can become a useful development alternative for communities that want to accomodate growth and preserve natural amenities that are valuable to the total conununity.

CLUSTER SAVINGS
A major benefit of clustering are the cost reductions accrued during project construction. These cost savings are made possible by the reduction in lot sizes and a decrease in the distances required between houses. The construction savings may be significant, thus making the cluster an appealling venture to both developers and communities. Prices in most phases of construction have escalated as shown in Table 2. (See Table 3.) The cost comparison of development modes illustrated in Table 4 indicates a lower cost for site development through clustering. However, the highway and water costs are considerably less in the cluster style on a per acre basis. It must be realized that the ranges of savings available depend I to a great extent on the design criteria of the development.
The quality and standards of the development play a major role The following are the site characteristics of both types of development (see Table 5).   It is important to note that the overall density is the same for both of these development plants. The cost comparison in Table 6 illustrates that there are considerable savings when the cluster alternative is chosen.

OTHER COSTS
The cost of sewerage becomes a major factor in estimating the impact of developments. Under the conventional plat development communities are faced with somewhat of a dilema.
If the community services the area with sewers, it increases the probability that the area will be developed. If there are no sewers, subdivisions will occur but utilizing septic tanks and leaching fields. In either event. the developer will do much of the installation; but the extra costs, however, will be passed on to the public.6 A cluster development situated in the suburban fringe can cope with septic tanks economically. Proper site design and analysis of the physical properties of the soil can insure that the cost will be less than in a conventional de-  The following discussion is based on a hypothetical example in which a developer proposes a residential development in the township of Tredyfrin, New Jersey.
The following is Section 1608 of the Tredyfrin ordinance which provides for planned residential development: A. THE Sll1PLE CLUSTER -STEP BY STEP The following is Section 1608 of the Zoning Ordinance of In order to permit a better and more attractive pattern of residential development than is possible under the usual district zoning requirements geared to the individual lot, the lot area requirements of R 1/2 and R-1 Residence Districts may be modified in the case of a plan for residential development which complies with the requirements of this Section. Among the objectives of this planned development provision are: (1) a more varied, efficient, imaginative and economical development pattern in terms of such things as increased flexibility in the location and arrangement of homes and reduced length of street and utility improvements, (2) development of sound residential communities, and (3) a more attractive and usable pattern of open space.
1. Any plan for development under this Section shall be in accordance with Township subdivision procedures and shall comply with all other pertinent zoning requirements. \ 2. The area of the tract of land for which a plan is submitted shall be not less than 30 acres in size.
3. In the case of a plan which is approved in accordance with the requirements of this Section: a. The minimum lot area requirements applicable to an individual lot may be reduced as follows, provided that the average lot area for the entire tract or subdivision shall not be reduced to less than that required in the District: 1) In an R 1/2 Residence District, to a lot area of not less than 40,000 square feet.
2) In an R-1 Residence District, to a lot area of not less than 20,000 square feet.
b. Except for the lot area per family requirements, all requirements of the District shall apply.
4. The tract of land to be developed shall be in one ownership, or shall be the subject of an application filed jointly by the owners of the entire tract, and it shall 91 be agreed that the tract will be developed within a reasonable time under single direction and in the manner approved. 5. In order to comply with the average lot area requirement for the tract, required in paragraph 3a above, sufficient area within the proposed development shall be set aside for connnon open space purposes and/or a certain percentage of oversized lots shall be included in the plan. Street area shall be excluded in computing the average. In no case shall the number of dwellings permitted on a tract of land exceed the number which would have been permitted were the district regulations not modified. 6. Any areas to be set aside or reserved for park, woodlands, conservation, playground, or other open space purposes, such as the preservation of natural features or historical areas, shall (a) be suitable for the designated purpose, (b) be not less than six acres in size, (c) be consistent with the plan and policy for future land use for the Township and (d) contain no structure other than a structure related to outdoor recreational use.

7.
Areas for connnon open-space use may be reserved for private use, or they may be dedicated to the Township. Areas which subsequently are to be dedicated to the Township shall be acceptable to the Township, and satisfactory written agreements or other arrangements, acceptable to the Township, shall be made for the perpetual preservation and maintenance of all connnon areas to be set aside and reserved for private use. No land of such size as to be capable of further subdivision under the District regulations shall be included in determining the average lot area, unless the possibility of such further subdivision is eliminated by a deed restriction or agreement in form acceptable to the Township Solicitor and duly recorded in the office for the Recorder of Deeds of Chester County, by transfer of development rights to the Township, or by dedication for park or other open space purpose to the Township. 8. Each dwelling shall be served by public water supply and by public sanitary sewers or by sewer facilities approved by the Township which will assure adequate disposal.
9. The application for development shall be accompanied by a plan or plans for the entire tract, which plan or plans also shall comply with all requirements of the Tredyfrin Township Subdivision Ordinance and other applicable ordinances. The plan shall clearly designate the proposed use of each area of the tract, including areas which are to be devoted to park, playground or similar use. 93 This is a hypothetical example which illustrates some of the factors to be considered in the calculation of costs in a cluster.
A developer discovers 54 acres of land in the R-1 district in Tredyfrin which is for sale at $240,000. The owner is willing to sell the land in 18 acre parcels for $80,000.
each, but those are his immediate cash terms. The developer has the option to buy the whole tract, pay cash for the 18 acres, mortgage the remaining 36 acres or take an option for development. The price will go up if the option on the interest on the mortgage is selected, so the developer ends up in roughly the same position as if he had bought the 54 acres for $240,000. parcel or $80,000. cash and financed the balance at 8 percent per annum.
Let us assume that the developer builds 20 houses on the 18 acres and plans to make $2,500. per house. This $2,500. must be viewed in perspective to the $80,000. which he has already invested in the land. It is important to note that in this example we assume that all of the costs will turn over within one year. This is not the reality of the situation, because of the many problems the developer may have in marketing, and escalation in construction costs.
If the developer is forced to carry the land into the future, he is able to offset his costs by having the land ready for development or by charging higher prices for the \ 94 houses in the next year. Another way of achieving the same result would be to say that the developer's houses will not sell at an average price of $24,000. unless he offers more in the way of a "coDllllunity" than is evidenced by his 20 homes. The preservation of undeveloped open space insures that an area will be undisturbed; enabling it to mature and provide the necessary habitat for many wildlife species. ! , . n 1 M~ r: .,, . . Cedarhurst provides both a swinnning pool area, and tennis courts for the enjoyment of the homeowners. The facilities are within a few minute's walk from any of the townhouses.
Adjoining each dwelling unit is an enclosed private, open space which is designed to serve the private functions of the homeowner.

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' #Sa Transportation Access and ParKI'ng: The main road in Cedarhurst provides direct access to the cluster units. A pleasant visual scene is accomplished through the use of underground utilities.
All homeowners have a designated off-street parking space area, which is numbered. A band of evergreens provide a useful buffer, separating parked cars from direct view of the dwelling units.

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' Transportation Access and Parl<ing: Guest and temporary space are designated as on-street parking throughout the cluster.  Single family houses similar to those found in a "typical" subdivision are popular in many clusters. These houses are located on large or medium size lots and frequently are set back off the road.
The transitional cluster does not utilize the advantage of grouping houses closer together; but rather constructs on the most desirable area and saves the remainder for open space. This field will serve a variety of recreational activities for the homeowners. An extensive hardwood forest in the background, when properly managed can supply both fuel and a variety of wildlife species for the enjoyment of the residents.
VISUAL ANALYSIS -II This section will illustrate cluster design alternatives for four land types: hardwood forest, coastal eco--. '·system, upland wetland, and an area with slope and geologic constraints.
The cluster concept enables a variety of development to take place in natural environments, with careful site design and planning. It becomes important to communicate to the homeowners that they are purchasing more than a ho.me on a single lot; in essence, they are receiving a natural habitat with distinct features which must be identified and maintained.
The first drawing for each Habitat type will illustrate an aerial view of the cluster while the second will give the reader a ground perspective.

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Natural Habitat -I

HARDWOOD FOREST
The forest is a biological connnunity of great complexity; there are many factors which contribute to the diversity and uniqueness of this ecosystem.
Cluster housing can be used to preserve a majority of the forest vegetation by grouping the houses in distinctive "clusters". Homeowners benefit from well-planned housing and the amenities derived from a woodland ecosystem.

COASTAL ECOSYSTEM
The homeowners of the coastal cluster are able to enjoy unlimited visual benefits from this type of ecosystem. The constant activity of the ocean provides an attraction to many homeowners. In order to preserve the integrity 111 of this system, the access to the sea via the salt marsh must be planned for carefully. The use of a wide buffer strip with designated access points will help to achieve this control. However, when there are dune complexes present, the buffer strip should be used to limit access in this area.

UPLAND WETLAND
The woodland ecosystem combines a hardwood forest and freshwater wetlands to fonn an important environment for both aquatic and terrestrial systems. The cluster development is carefully positioned to ensure the preservation of this system. The homeowners are able to enjoy jogging. walking. birding, picnicing, and other passive activities when appropriate land-use planning is used. Except as specifically provided in Section 250 of this Article the dimensional regulations provided in Section 230 of this Article shall not be applicable to building lots and structures developed in a Residential Cluster Development. Building lots and structures developed in a Residential Cluster Development in any zoning district in which such Development is permitted, shall comply with the following dimensional regulations: