National Survey on CBAs

Dr. Tom Musil at the University of St. Thomas in St. Paul, Minnesota, is conducting a national survey on CBAs, and readers who have participated in CBAs should take a few minutes to fill it out. There hasn't been very much research on how CBAs are being implemented and monitored or on the views of people who are involved in the CBA process or represented by coalitions. And there are a lot of CBAs and CBA coalitions out there that haven't received extensive publicity or academic attention. The survey, which is confidential, should help to flesh out this information.

Complete the survey here.

An "Obstructionist Manifesto"

I've been very busy of late, and not following the news or posting as often as I would like. I apologize. The short version of the news in Buffalo is that Bass Pro, the long-proposed anchor tenant of the Canal Side project, pulled out, and CBA supporters are getting a lot of blame. (The mayor called them "obstructionists" and the Buffalo News called the CBA a "job killer.") Mark Goldman, a business owner who has written several books about Buffalo, wrote an "Obstructionist Manifesto" in response to the CBA-naysayers, and it's well worth considering. Some excerpts:

I believe that the Hippocratic Oath, “First do no harm,” while it applies to medicine, also applies to city planning.... As an obstructionist, I believe that all plans that cause harm must be stopped.

As an obstructionist, I believe that when a small group of tightly connected political insiders hijacks the city planning process, it must be stopped.

As an obstructionist, I believe that when these same insiders, for reasons unknown to most of us, are given tens of millions of dollars of the public’s money to spend without the public’s consent, they, too, must be stopped.

As an obstructionist, I believe that when that same group makes plans to turn our city’s splendid waterfront into a big-box retail mall surrounded by surface parking lots, it should be stopped.

As an obstructionist, I believe when the entrepreneurial instincts and desires of our people are stifled and undermined by the lavishing of tens of millions of public dollars on failing retail chains, that must be stopped. As an obstructionist, I believe that all these old and failed ways of planning for our waterfront must be swept aside.

As an obstructionist, I believe that unless and until city planning reflects the values, ideals and aspirations of the people who live and work here, it cannot work and therefore must be stopped. Only when public projects have the credibility of being created by the people directly involved in their use can they succeed.

...

As an obstructionist, I believe in a truly democratic and public planning process that is embraced by our whole community....

.... Only this kind of process can produce a plan that is real, authentic and sustainable. Once these plans and ideas have been clearly articulated and carefully studied, we should, following a real competition, turn them over to the best design professionals who would help us realize our waterfront vision.

The debate continues on Buffalo's waterfront and possible community benefits

Earlier this week, the Erie Canal Harbor Development Corporation (ECHDC, a subsidiary of the Empire State Development Corporation) finalized an agreement with the New York Power Authority to issue $105 million in bonds for Buffalo's waterfront redevelopment project. As of today, this news is up on NYPA's website, but not ECHDC's, even though you would think (hope) the lead agency on the project would want to be more open about its dealings. According to the Buffalo News, NYPA's investment, which includes $55 million in funding for waterfront developments, is "helping to make amends for past decisions that... shortchanged Western New York."

Just after the agreement was finalized, the Buffalo Common Council held a public hearing over the waterfront development, which is continuing to generate controversy, mostly over living wage issues. The city, which controls part of the property, doesn't want the project to go forward without a CBA, and a lot of community groups agree. They want to ensure that quality jobs, not just any jobs, are provided for local workers and that there's support for independent and local businesses.

The ECHDC though, along with pro-business advocates, think that a CBA will stymie development. A living wage requirement certainly would not go down well with the project's proposed anchor tenant, Bass Pro, which is notorious among subsidy wonks for playing the public fisc for all it can get.

Buffalo State College economics professor Susan M. Davis pointed out "the irony of business people asking for subsidies and then turning around and calling it [a living wage] 'socialism[.]'" On the other hand, Julia Vitullo-Martin from New York City's Regional Plan Association claims that "[w]hat they [CBAs] really do is increase the costs of development tremendously--and often halt it altogether." She cites the recently failed Kingsbridge Armory Redevelopment project in the Bronx, which fell apart after community groups and city leaders refused to approve the subsidized retail project without a living wage guarantee. I can't really argue with her. There are a lot of companies that don't want to deal with CBAs and meddling community groups. And CBAs do increase costs, but I would phrase it differently: they force developers to pass on public subsidies to *gasp* the actual public. I would also say to Ms. Vitullo-Martin, have some optimism; the Kingsbridge failure might be a blessing in disguise. The next development proposal for the property might offer something a lot better.

Jordan Levy, chairman of the ECHDC, says that the CBA campaign is interfering with the authority's negotiations with Bass Pro. "We're hopeful we are going to bring them to conclusion," Levy said, "but if this community is saying we don't want Bass Pro, I'm not sure that even an act of Congress is going to get them to come here."

Yes, Mr. Levy, this project is about the Buffalo community, and the interests of the community should come before Bass Pro's bottom line. Maybe it's time to start listening to what the community wants.

Fake NIMBYs

I first heard about the Saint Consulting Group a few years back when I saw an executive speak at a legal conference about NIMBY and the socio-political dynamics of development opposition. It was a fascinating lecture, and it introduced me to some *very* important acronyms like CAVEmen and NIMTOO.

The short explanation of what Saint does is that it's a development consultant. If you're a developer and you want to get a project built, Saint can help you. Or if you want to stop a project from happening, they can help you with that too.

And that's where it gets interesting, because Saint has learned to apply the Harvard approach (see here for more) to development opposition battles. They call their tactics "black arts." The most important thing to remember? If you want to get a project stopped, convince everybody that you're on the side of soccer moms and Joe Sixpacks. Do not let them know that you're being bankrolled by the developer's corporate competition.

The WSJ published a fascinating profile of the company this week, and it explains just how Saint has been clandestinely fighting Wal-Mart projects on behalf of supermarkets everywhere. Basically, after the grocery store chain hires them, the Saint folks move into town, adopt fake names, start fake NIMBY groups, and then try to delay, and ultimately kill, the Wal-Mart. They'll use phone banks to make it look like lots of people are calling the mayor and city council to complain. They'll make up stories about how evil Wal-Mart is to convince neighborhood residents to join the opposition. And then of course come the lawyers and the high stakes development litigation. The funding comes from the supermarkets, but Saint employees don't tell anybody that. They just say they have connections.

There's something distasteful about all of this, with large grocery chains like Safeway and Giant paying Saint to create astroturf grassroots campaigns to trash Wal-Mart. But what Saint does is legal, and aside from the secrecy, it's not so different from what real CBA coalitions do. In fact, a while after my first encounter with Saint, I met some Saint employees at a conference about CBAs. They were keeping up on real grassroots techniques, presumably to better enable them to help their clients. So I'm guessing that if there aren't already, it will only be a matter of time until there are some Saint-backed CBAs out there...

The Fair Wages for New Yorkers Act

Picture via KimTheWolf (flickr), showing a protest sign at Georgetown University in Washington, D.C. (where the living wage is almost $15 per hour.

The Kingsbridge Armory CBA campaign may have tanked, but its supporters have not been deterred. They're hoping the city council will enact the Fair Wages for New Yorkers Act, which would mandate a $10 minimum wage for all projects receiving more than $100,000 in subsidies. As many people have argued of late (including myself), institutionalizing the living wage would be preferable to relying on CBAs and deal-by-deal negotiations. "[T]his debate is not just about one parochial section of the Bronx," explained Ruben Diaz, Bronx Borough President. "This is a citywide debate."

Some details about the bill:

• The law would apply to projects receiving all sorts of subsidies, not just direct cash payments. It would count indirect subsidies like bond financing, tax abatements or exemptions, tax increment financing, fee waivers, energy cost reductions, environmental remediation costs, property acquisition write-downs, and other discretionary assistance.
• Projects used exclusively for affordable housing, or to house social services, arts, or cultural organizations would be exempt from the wage requirement. (Okay, but what does "exclusive" mean?)
• Covered employers include the developer/subsidy recipient; subsequent owners of the property; tenants and subtenants; and contractors that work on the project for 30 days or more (including temp services, food service contractors, and on-site service providers). However, non-profits with annual budgets of less than $1 million would not be subject to the wage requirement.
• Employees would be entitled to a living wage, regardless of their part time, temporary, or seasonal status. Independent contractors would be covered too.
• The living wage would be $10, or $11.50 for employees not receiving health insurance. These rates would be adjusted annually, based on the local consumer price index.
• The living wage requirement lasts for the longer of 30 years or the duration of the subsidy.
• Employers have to post notice of the living wage rules, give a copy of the notice to each employee, and keep records of hours worked and wages paid. The city comptroller's office can inspect those records whenever it wants, either on its own initiative or after receiving a complaint. If an investigation uncovers evidence of a violation, the comptroller would hold a fact finding hearing, and then issue an order, disposition, or settlement. Remedies could include: requiring payment of back pay plus interest to the wronged employee; a fine, not to exceed 200% of the total amount due to the employee; requiring the disclosure of additional records; and/or requiring the reinstatement of any employee retaliated against for trying to enforce the wage requirement.
• If an employer receives two violations in any six year period, the employer would become ineligible for financial assistance for five years.
• Developers and employers would also have include clawback provisions in their financial assistance agreements with the city or city economic development agency, and if an employer failed to cure a violation, it could lose its financial assistance and even be required to pay back already received subsidies.

Well, Mayor Bloomberg has predictably opposed the bill. As explained at the Atlantic Yard Report, his reasoning is completely illogical:

Bloomberg's conclusion: "The free market works much better."

"Having the public subsidize some workers and not others is not fair," he added.

Um, couldn't the same be said about "some projects and not others"?

I would add, isn't it a little unfair when employers, but not employees, get subsidies? And c'mon, we're not really talking about socialism here, we're talking about $10 per hour in one of the most expensive cities in the world. We're talking about ensuring families a decent quality of life.

Bronx Borough President Ruben Diaz, Jr., is one of the bill's chief supporters. City Councilmembers Annabel Palma and G. Oliver Koppell sponsored the bill at his request, and it's received endorsements from about 20 other councilmembers. City comptroller John Liu and Public Advocate Bill DeBlasio are also on board. And about a dozen other community organizations have signed on to the Living Wage NYC campaign.

No doubt we'll be hearing more about this. For more to read:

• Sam Dolnick, Wage Proposal May Prompt Fight at City Hall, The New York Times, May 23, 2010
• Daniel Massey, Living-wage debate gets broader, louder, Crain's New York Business, May 23, 2010
• John Del Signore, Bloomberg Expected to Fight "Fair Wage" Bill, Gothamist, May 24, 2010
• Eliot Brown, Living Wage Bill Formally Introduced; Bloomberg Smirks, The New York Observer, May 25, 2010
• Molly Zelvonberg, Keep the working poor working, fair wages law is "Nice," but stupid says Bloomberg, NY Examiner, May 25, 2010
• Jeanmarie Evelly, Kingsbridge Armory Battle Inspires Citywide Living Wage Bill, Bronx News Network, May 26, 2010
• Michelle Chen, Living Wage Fight Revitalized in New York City, In These Times, May 28, 2010
• Juan DeJesus, Pols, Labor Leaders Launch Wage War Against Big Business, NBC New York, June 2, 2010

New Haven community group asks city to enforce CBA

Representatives from Communities Organized for Resonsible Development (CORD) brought a petition to the mayor's office this week asking the city to enforce the CBA involving Yale's Smilow Cancer Center. Specifically, CORD wants the city to confirm whether Yale has lived up to its local hiring promise. The group's leaders say that Yale representatives have refused to meet with them.

Now, Yale is supposed to provide annual reports on compliance with the CBA's jobs provisions. But the CBA is contained in the development agreement made between Yale and the city, and since CORD isn't a party it can't force Yale to comply directly. Or could it? The development agreement doesn't expressly disclaim the existence of third party beneficiaries, and it acknowledges that certain promises made by Yale and the city were intended to benefit the community.

The third party beneficiary issue is addressed in a recent law review article by Patience A. Crowder, More Than Merely Incidental: Third-Party Beneficiary Rights in Urban Redevelopment Contracts, 17 Geo. J. Poverty Law & Pol'y 287 (2010) (available to download here, for a small fee). Crowder contends that community residents are indeed third party beneficiaries to urban redevelopment contracts, and the article gives an excellent overview of the inconsistent and often complicated law of third party beneficiaries. While Crowder acknowledges that establishing third party beneficiary status for urban community members may be difficult, CORD's case is strengthened because the development agreement specifically states that Yale agreed to "certain commitments to the City and the community as requested by the City[.]"

Sustainability and the Columbia University expansion project

A new law review article critiques the Columbia University expansion project through a rubric of sustainability. This is sustainability in the broad sense--not just environmental sustainability, but economic and social sustainability too. The article puts the Columbia CBA into context, discussing how educational institutions interact with local communities and how "university creep" can impact neighborhoods. Regarding Columbia and West Harlem, the article looks at public participation and community engagement issues, including eminent domain, gentrification, and the CBA.

Can Urban University Expansion and Sustainable Development Co-Exist?: A Case Study in Progress on Columbia University was written by my Albany Law School colleagues Keith Hirokawa and Patricia Salkin.

New York City Bar Association panel on CBAs

The New York City Bar Association last night held a panel on CBAs. Audio is available here, and you can read recaps at Atlantic Yards Report and Noticing New York.

The panelists generally agreed that the CBA process in New York would be improved if signatories didn't accept payments from developers and if CBAs included better enforcement provisions. Additionally, they agreed that some CBA provisions, like living wages and local hiring, should be enacted as city-wide policies, and that the city's land use review process should be changed to allow more meaningful public input. Some of these changes just might happen. Al Rodriguez, General Counsel to the Bronx Borough President, said that next week a living wage bill will be introduced in City Council, and there have been murmurs of late that the Charter Revision Commission might deal with land use and community planning (see, for instance, Manhattan Borough President Scott Stringer's Recommendations to the Charter Revision Commission, and recent news that the commission will hold a land use "issue forum").

Cincinnati School Construction CBA

Perhaps taking a cue from the Syracuse Schools Reconstruction Project CBA, the Cincinnati School Board earlier this week approved a set of community benefits goals to be met on school construction projects, including:

• 40% of workers at a given school site should be residents of the school district;
• 40% should be residents of the Cincinnati metropolitan area outside the school district;;
• 20% of labor and trade personnel should be minorities and women; and
• provisions to encourage more apprenticeships for local workers.

Somewhat akin to an RFP, the "CBA" is expected to be signed by the Greater Cincinnati Building Trades Council and other nonunion employers that might work on school construction jobs. Community groups will also be invited to sign on.

The CBA follows revelations earlier this year that the Cincinnati Public Schools had awarded $12 million in contracts to white-owned firms improperly classified as minority contractors.

Trouble with the Columbia CBA

The New York Post reported yesterday that the West Harlem Local Development Corporation--the quasi-private nonprofit set up to negotiate and implement the Columbia expansion CBA--hasn't exactly been keeping up with its responsibilities. Apparently, it has yet to come up with a mission statement, secure tax exempt status, or even set up a phone line. Nor has it created funding guidelines for the $76 million Columbia is supposed to invest into the community over the next 15 years, which means that it hasn't yet been able to disburse any of the $500,000 it's already gotten from the university. The Post makes it sound like the entire CBA is in jeopardy, but that's probably not the case, at least as long as Columbia keeps making its payments. What might jeopardize the CBA, however, is an upcoming court challenge to the state's use of eminent domain on Columbia's behalf.

CBAs and comprehensive planning

You can find a recently published law review article coauthored by myself and my colleague Patricia Salkin here. (You should also visit Patricia Salkin's excellent blog, Law of the Land.) The article is titled Community Benefits Agreements and Comprehensive Planning: Balancing Community Empowerment and the Police Power, and it's appearing in the current issue of the Brooklyn Law School Journal of Law and Policy.

Here's the abstract:

Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes so eager to stimulate local economic development that they fail to fully engage communities in the project review process, both to expedite development and to avoid confronting local opposition. This emphasis on short-term economic growth, however, may obscure a local government’s perception of the social and environmental needs of particular communities. When this occurs, formal planning processes have failed to accomplish their goals of engaging community members and guiding future growth in a manner that maximizes long-term benefits for the common good.

New approaches to planning provide one response to systemic public participation problems. The environmental justice movement, for example, has sought to ensure a fair distribution of both environmental burdens and environmental goods by requiring local governments to make meaningful public participation available to all community members. Community based planning efforts have attempted to improve the planning process by focusing on small and distinct geographic areas and by developing collaborative and inclusive planning programs. Since the late 1990s, community benefits agreements (CBAs) have offered another method to increase community input in the development planning and review process. For communities that have historically been excluded from the planning process, CBAs can be a powerful tool to ensure that neighborhood interests are addressed as an integral component of development. The result, ideally, is growth and development that is accountable to the people it affects and equitable in its distribution of benefits and burdens. However, the people it affects are often a small subset of the municipal jurisdiction and the equitable distribution sought in the CBAs is limited to the proposed project area.

This article explores how the comprehensive planning process and CBAs complement and contradict each other, and how both could be improved by innovative and more inclusive planning techniques. Part II provides a brief historical background on comprehensive planning and community development, including issues relating to community planning and public participation. Part III examines CBAs and their role in community empowerment, community development and the promotion of social justice principles, including equitable development. This part also provides examples of typical land use related elements found in existing CBAs. Using these examples, Part IV segues into a discussion regarding whether private CBAs usurp the public planning process. The section explores whether CBAs are just another type of community based plan and whether CBAs advance narrow interests at the expense of the larger community. The question of what local governments should do when presented with a CBA that is inconsistent with the local comprehensive land use plan is examined to determine whether amending the plan to incorporate the community vision as articulated through the CBA is appropriate. The article concludes in Part V by pointing out that shortcomings of the current regulatory system allow local governments, intentionally or inadvertently, to exclude robust public participation from the development and implementation of comprehensive land use plans. This provides the impetus for privately negotiated CBAs, but these agreements may not always be ideal because not all parties to a CBA will have the best interests of the neighborhood or the community as a whole at the forefront of their agendas. While many CBAs have been successful, a number of case studies also reveal pitfalls in the process. The article concludes with the belief that local governments must be more inclusive and accountable in the public planning process to better meet the true goals of the community benefits movement.

And the New York City CBA debate continues...

The New York City Bar Association's report on CBAs, issued in March, recommended that CBAs not be considered as part of the planning process. According to a New York Times article summarizing reactions to the report, city comptroller John Liu thinks the suggestion to remove the agreements from the land use process is "idealistic rather than practical." Jesse Masyr, a land use attorney who was involved in the Gateway Center and Columbia CBAs, also argued that CBAs are here to stay, and suggested that better rules and regulations be put into place. N.Y.U law professor Vicki Been, one of the primary authors of the report, defended the report's conclusion by arguing that while private CBA-type agreements may be inevitable, that doesn't mean that government officials have to participate in them or give them undue weight in the planning process.

Liu has convened his own task force on CBAs and according to the NYT article, his "emphasis is on what kinds of mechanisms exist to make sure that the promised benefits are delivered". This may be because the comptroller doesn't have much ability to change the land use planning process, which is heavily dominated by the mayor in New York. Indeed, as reported by City Limits, task force member and urban planning professor Tom Angotti thinks a better solution would be comprehensive land use reform, including more funding and a larger role for community boards.

The City Limits article also reports that Liu's task force will not hold public meetings, apparently because it's a "sensitive issue" and task force members need to be "able to have candid conversations."

Okay, I can sort of respect that. But why not have at least some public meetings? This is, after all, an issue that's sensitive for a lot of people other than the 35 select members of the task force. The task force might even learn something from listening to the public. And, by the way, the task force's PR people should probably tell them that needing to have "candid conversations" pretty easily translates to wanting to keep things hidden. It seems to me that's probably not the best way to earn the public's confidence when you're trying to clean up a process that's already been faulted for secrecy, closed door negotiations, backroom politics, and collusion.

Buffalo CBA advocates get the cold shoulder

The Buffalo Common Council and CBA advocates are continuing to push for a CBA for the Canal Side project, using 12 acres of city-owned land as leverage, but the quasi-public Erie Canal Harbor Development Corporation wants nothing to do with negotiations. The impasse at the moment seems to be about a mandatory living wage requirement, but the CBA coalition says that the initial demands, including the wage provisions, are just a starting point.

Maybe somebody should remind ECHDC that under New York State law, it's supposed to "give primary consideration to local needs and desires and...foster local initiative and participation in connection with the planning and development of its projects." It's also supposed to "work closely, consult and cooperate with local elected officials and community leaders at the earliest practicable time." That would be section 16 of the Urban Development Corporation Act.

The law doesn't mandate a CBA or a living wage, but it suggests that refusing to meet with local groups or officials is not appropriate behavior. As the Council President said, "It's always better to talk.... Let's see how far apart they really are."

Public and city support for a Canal Side CBA in Buffalo; developer and state resistance to negotiations

Despite broad coalition and city council support, the private developer and public sector partner of Buffalo's Canal Side project are still refusing to negotiate a CBA. This probably shouldn't come of much surprise. The project's anchor tenant, Bass Pro, is a well-know subsidy-chaser (or, as some would call it, a tax-dodger) and poverty-wage job supplier. And the quasi-public Erie Canal Harbor Development Corporation (ECHDC) is a subsidiary of the New York Empire State Development Corporation (ESDC), which has used its power to override local laws and its authority to use eminent domain to facilitate the Columbia University expansion and the Atlantic Yards project. Although both of those projects have CBAs, they also face significant public opposition, and ESDC's involvement has been crucial to overcome that opposition.

This week, reporter James Heaney put up a blog post on Canal Side and its CBA issues. He discusses some of the issues relating to the lack of public bidding, conflicts of interest, and the lack of a democratic process. His conclusion: ECHCD and the project's private partners might want to pursue CBA negotiations, if only to avoid protests opposing "the use of more than $150 million in public funds to create mostly low-wage, part-time jobs. Which is one of several ways reasonable people can view the project."

Previous posts on Canal Side also by Mr. Heaney can be found here, here, and here.

Columbia Spectator on the Manhattanville CBA... but what about the 197-a plan?

The Columbia Spectator published an article last week about the Columbia University CBA, going over the criticisms of the CBA process outlined in the New York City Bar Association's recent report on CBAs. The article does a decent job of recapping the CBA's negotiation, but it leaves out any mention of the preexisting community-based 197-a plan that Columbia basically got the city to throw out (with a whole lot of lobbying). And that's an important consideration in the Columbia case, since it's a lot easier to portray the CBA as community-supported when you leave out the fact that the community's own plan was rejected in favor of different plans put forward by the elite and well-connected university.