The essence of CBAs.

The most recent issue of the American Bar Association's Journal of Affordable Housing & Community Development Law is devoted to the subject of CBAs (sorry, subscription required). Over the next few days I'll try to post more reviews of the various articles.

Today though, I want to mention Julian Gross' fine article, Community Benefits Agreements: Definitions, Values, and Legal Enforceability. Mr. Gross starts with the premise that the term "CBA" has become diluted and misused, and that "the CBA concept is at risk of being co-opted and utilized to develop support for controversial projects, without providing the independent legal enforcement rights and community engagement that are hallmarks of successful CBAs." He recommends that the focus be drawn to the core values of CBAs: inclusiveness and accountability. To facilitate this, he provides a definition of the term "CBA":

A CBA is a legally binding contract (or set of related contracts), setting forth a range of community benefits regarding a development project, and resulting from substantial community involvement.

The elements of this definition:

1. A CBA concerns a single development project. This requirement is meant to distinguish CBAs from other community development and social justice tools such as redevelopment plans, inclusionary housing policies, local job quality ordinances, etc.
2. A CBA is a legally enforceable contract. This requirement precludes CBAs from encompassing promises not included in any binding form, such as oral promises, aspirational goals and agreements to negotiate a CBA in the future.
3. A CBA addresses a range of community interests. Simply, a CBA is not a single-issue document.
4. A CBA is the product of substantial community involvement. This requirement reflects the need for CBA coalitions to be inclusive of a broad range of (possibly divergent) community interests. This requirement also excludes from the definition: (1) benefits agreements negotiated by the developer and municipal authority; (2) agreements negotiated exclusively by elected officials, even if they are eventually signed by one or more community groups; and (3) agreements for which the elected officials exerted so much influence and pressure that they may as well have been exclusively negotiated by them.

Building on these elements, Mr. Gross goes on to direct some heavy criticism at a few specific "CBAs":

• Bronx Terminal Market: "First, the bulk of the agreement's commitments are voluntary or aspirational, rather than concrete and enforceable....Second, of the few commitments that are precise enough to be meaningfully enforceable, injunctive relief is generally unavailable....Third, none of the agreement is enforceable by the coalition against contractors or tenants in the project"
• Yankee Stadium: "No community-based organizations signed the agreement. While the agreement contains a statement by the Yankees that it is enforceable against them, the agreement contains no commitments whatsoever by any other entity, raising the question of whether a lack of consideration makes the agreement unenforceable." (For nonlawyers, "consideration" is one of the legal requirements of a valid contract. It requires a give and take of promises by each of the contracting parties. Although the parties don't have to pledge very much to satisfy the requirement, they have to promise something.)
• Columbia University: the "MOU, nonbinding on the substantive benefits it describes, and negotiated with a nonprofit heavily influenced by elected officials working outside their established roles in the land use development process, works against the CBA values of inclusiveness and accountability."
  

The article includes additional analysis of the role that elected officials should play in CBA negotiations, and it details several mechanisms aside from the privately negotiated CBA through which community organization can obtain enforceable CBA provisions. It is an excellent source for any lawyer working on a CBA and for any CBA coalition members interested in understanding the legal nuts and bolts of community benefits agreements.

In my opinion, the article offers a fantastic discussion of accountability and eforceability, but it leaves open a lot of questions about inclusiveness. Atlantic Yards is hardly mentioned in the discussion of the New York CBAs, for example. While the Atlantic Yards CBA doesn't suffer so much from the accountability problems associated with the other New York CBAs, many people (including myself) see it as less-than-inclusive of the community that the project will impact. It's often described as "astroturf," because several of the coalition's eight groups were either created for the purpose of negotiating the CBA or received (or purported to receive) substantial amounts of money from the developer. The developer is also said to have picked and chosen from among community groups, picking only those that supported the project from the outset and refusing to allow dozens of other local groups to have a seat at the table. While the agreement may be structurally more sound than the other New York CBAs, it shouldn't be let off the hook more easily just because it was controlled by the developer instead of by elected officials. After all, even if it satisfied them, it won't be enforceable by any of the community groups that weren't included in negotiations.

All of which raises the question of how valuable accountability is without inclusiveness. Inclusiveness, though, is a more difficult issue to grapple with than is legal enforceability--it can't be written into contracts or automatically created by following any particular CBA process.

Who represents the community? Who should represent the community? Who should represent the community when the community is divided about new development? What are the geographic bounds of the community? How should the needs of various community members be prioritized? What are the best practices for encouraging community involvement during CBA negotiations? How can we ensure that developers don't pick favorites and elected officials don't champion specific causes? None of these are simple questions, and I don't have any good answers for them, but they are things that all CBA proponents should be thinking about.

Until these sorts of questions start to be clearly answered, I'm not sure that you can say that the CBA concept has been "co-opted" in order to develop support for controversial projects. While CBAs may have been created in order to empower communities, from the start they've also been sold to developers as a way to gain public support for their projects, and so it shouldn't be surprising that developers and elected officials are now trying to use CBAs to get more for themselves out of the "win-win" scheme. Like it or not, CBAs have become as much of a tool for developers and the local officials hoping to attract development as they have for communities. What's needed now is a coherent explanation of how to measure inclusiveness, because until we can at least begin to frame what inclusiveness looks like, more developer-driven CBAs are likely to emerge, with the developers and elected officials of course claiming them to be the product of "substantial community involvement."