What should be done about these messy CBAs?

CBAs have been a big issue in New York lately, ever since New York City Comptroller John Liu announced his intent to reform the process a few weeks ago. Just this week, the New York City Bar Association issued a report that's very critical of CBAs, calling for the agreements to be excluded from the land use approval process.

Amid all of this CBA to-do, it can be easy to lose sight of the ultimate goals of the community benefits movement, viz., making development more responsive to community needs, ensuring that the benefits and burdens of development are more equitably distributed, requiring more transparency and responsibility in the distribution of subsidies, encouraging affordable housing construction, ensuring the creation of quality jobs, creating programs to help local employees find employment and progress in their fields, protecting small and local businesses that strengthen local economies, etc.

CBAs are just one way to achieve some of these goals. But they're certainly not the only way, and they're often not the best way. The problems with New York's CBAs are symptoms of deeper problems in the way that development and planning happen in New York City, and regulating CBAs won't fix these problems. What's needed is better and more transparent planning, and a different understanding of how CBAs are supposed to fit into the development approval process.

Is regulating CBAs even feasible?

CBA advocates have generally eschewed legislative CBA requirements because of the difficulty of defining "the community." To illustrate, CBA legislation was proposed (but not passed) in Allegany County, Pennsylvania, in 2008. It would have required developers to meet with community representatives, but it didn't really explain how those representatives would be chosen. A law recently passed in Washington D.C. similarly hedges on the question of who represents the community. It's not hard to imagine how competing community groups could end up in counterproductive arguments over this issue, with the excluded group(s) claiming that the developer didn't adequately consult the "community" because it didn't meet with them. Just consider the Atlantic Yards CBA, or the SugarHouse CBA. In both cases, opposition groups weren't involved in CBA talks, and in both cases (although indirectly in the case of SugarHouse) the community groups that did participate had financial reasons to do so. So was the "community" really involved?

So, you might ask, what about making the local government or some agency responsible for selecting the relevant community? Well, to begin with, as the NYC Bar Association points out, there are due process and takings problems when CBAs are mandated or considered as part of the planning process. Indeed, the planning commissions in New York City and Pittsburgh have both recognized that CBAs are not an appropriate factor to consider in the planning approval process. Nevertheless, they can be attached to public subsidies and government property disposition policies, and this will include a lot big projects.

Where subsidies or government properties (rather than development approvals) are involved, a CBA requirement raises fewer red flags, and in this context, having local government involvement might work. But you still run the risk that political forces will favor certain community representatives over others, and that could result in unfair results and obviate the potential for disadvantaged community members to band together and use a CBA to gain a seat at the table.

There are other questions. Would CBA legislation prescribe negotiating rules? The proposed Allegany County law would have required the developer to meet with community groups three times, but beyond that it called for no particular negotiation structure. Under a Connecticut law that regulates CBA-like agreements, the developer has to file a "meaningful [public] participation plan" before meeting with the local government to determine whether a CBA is necessary. Other regulations might require the developer to negotiate in good faith, maybe using negotiation rules fashioned after the National Labor Relations Act requirements for collective bargaining (although I've never seen anything like this for CBAs).

It's also worth considering that even if you regulate CBAs, there will always be the opportunity for developers and community coalitions to enter into side deals and call them something else (like maybe a Neighborhood Benefits Agreement or a Good Neighbor Agreement). While people often talk about CBAs as a new tool, the fact is that they're just bilateral contracts with social justice goals and a different name. And even if it might be inappropriate for planning boards and development agencies to consider these sorts of private agreements, negotiated outside of formal "CBA" regulations and not submitted as part of the development application, it's not like planning boards and development agencies exist in a vacuum, and the same PR that makes CBAs a useful persuasive device will make other CBA-like-agreements useful too.

What about existing land use regulations?

The New York City Bar Association has wisely discerned that the biggest problem with CBAs may not be the lack of regulation but the failure of existing land use and planning regulations to meet communities' needs.

To take New York City as an example, there are numerous changes that could make the planning process more inclusive and more responsive to neighborhood concerns. The city could provide funding to Community Boards to create 197-a neighborhood plans, and the city could enact regulations to make it more difficult for developers to receive approval for projects that are inconsistent with adopted 197-a plans. Community Boards could also be given a more significant role in the city's Uniform Land Use Review Procedure. Currently, Community Boards get to hold a public hearing, review development applications, and then submit a recommendation to the borough president and the planning commission. That recommendation is purely advisory, however. Requiring planning commission decisions overturning a Community Board's recommendation to be passed by a supermajority, as they must when they overturn a borough president's recommendation, would help give the Community Boards more say in developments impacting their neighborhoods.

Developers could also be required to submit better information in their Land Use Review Applications, which could help everybody in the process to better understand projects' impacts. Community Impact Reports have been recommended for this purpose (see here for information on similar "Economic Impact Reviews"). These reports require the developer to provide a cost-benefit analysis and to assess employment impacts, housing impacts, neighborhood needs, and sustainability issues. Developers could also be required to provide subsidy disclosures. Of course, all of this information should be posted on the city's website and should be easily accessible offline, such as by providing copies to libraries. That being said, the application process itself should be more open and transparent, especially in the earliest stages. Community Board representatives, for example, should be invited to pre-application meetings between developers and the Department of City Planning. Even better would be regulations providing for a pre-application public hearing.

Finally, a lot of CBA provisions deal with policy issues that might be appropriate for city-wide legislation. Living wage laws, targeted hiring requirements, big box restrictions, green building requirements, and inclusionary housing ordinances all seek to address problems that are covered by a lot of CBAs. Enacting these sorts of ordinances makes the process more predictable for developers and ensures that these policies are applied to all development projects (or at least all projects covered by the legislation), and not just developments located in neighborhoods with strong community coalitions.

The importance of planning

Good planning, anyway, could help developments to provide more benefits to the communities where they're located. As Washington D.C. planner Richard Layman points out, CBAs are justified in part because projects too frequently only have a "trickle down" effect on their communities; but "part of the 'failure' is the failure to coordinate investment and improvements, and to ensure that a project fully connects to the neighborhood and/or commercial district beyond the confines of the lot lines of the development."

Comprehensive planning forces cities to consider where development benefits are needed before developers come in promising tax revenues, new jobs and affordable housing, and cheery project renderings where it's always sunny and there's never any traffic. Layman continues:

Having a structured conversation about community benefits is a necessary first step in the consideration of a wider-range of public-private partnerships organized around land use and development that is designed to yield neighborhood and/or city-wide stabilization and improvement benefits.... In order to craft agreements, first neighborhoods... must work together to develop a set of neighborhood priorities, and ensure that proffers are directed only to those items which the community agrees are important.

This sort of planning--at least in jurisdictions where land use decisions have to be consistent with a comprehensive plan--gives developers some notice as to the type of amenities they should include in an application in order to get a project approved. It also gives communities more leverage before the planning board when they oppose projects that aren't consistent with the existing plan. And when cities facilitate community-based planning, they help to provide a role for neighborhood residents and business owners, which can in some cases obviate the need for a CBA. The Melrose Commons development in the Bronx is one example. The Dudley Street Neighborhood Initiative in Roxbury, Massachusetts, is another.

Comprehensive planning and formalized planning approval procedures can also help to ensure that development amenities are more equitably distributed. Layman says that "communities that are better organized and have more resources end up getting more (or some) benefits, while under-organized communities get little to nothing in terms of benefits from new development occurring within the neighborhood." A 1988 report by the NYC Bar Association similarly explained that "Unrelated amenities... can satisfy needs of the favored community which should not receive priority when viewed on a city-wide basis, while leaving unmet significantly more important needs elsewhere. Communities which lack construction projects are thereby short changed." The more recent NYC Bar Association report reaffirms these points:

The community negotiating the CBA may capture benefits that would have gone instead to the broader community if CBAs were not allowed. Or the community may bargain for one type of benefit, and thereby reduce the ability of elected officials in the public approval process to get a different kind of benefit that would have been more appropriate for the City as a whole.

Further, while the benefits incorporated into CBAs may address important needs, such as affordable housing, critics contend that these issues should be confronted citywide, rather than on a neighborhood-by-neighborhood basis. A citywide approach would be more likely to channel resources into the neighborhoods that need them most, which may not be the neighborhoods that happen to be getting development....

A citywide approach to the City’s needs is likely to be more comprehensive, better planned, and better integrated with the City’s other initiatives.... Diversion of benefits from the City as a whole to the host neighborhood also may result in greater inequality among the City’s neighborhoods. Many neighborhoods within the City will not be zoned for major development or will not have the infrastructure or underused land required for such development. Those communities may share in any benefits of development that are obtained in the public approval process. If CBAs divert benefits from the City as a whole, however, those neighborhoods may see little of the benefits from the City’s growth.

The report mentions as an example the affordable housing commitment in the Atlantic Yards CBA. While the affordable housing promise is superficially very attractive, the fact is that it's conditioned on the availability of scare affordable housing bonds, and the result is that it may become a monopoly on affordable housing financing in the years to come. This kind of result isn't fair, and it's not the ultimate goal of the community benefits movement--CBAs are there to fill the gaps, but they're only a means to an end, and local governments should be working to ensure that the benefits (and burdens) of development are equitably distributed.

Another example is the supermarket fight involving the Kingsbridge Armory CBA (which was never finalized because the project wasn't approved). The CBA coalition wanted the developer to promise not to lease space to any grocery store that would compete with the supermarket across the street. The supermarket exclusion was intended to protect existing unionized jobs, but it also could have had negative effects on the larger group of residents who might shop at a new grocery store for higher quality food and a better selection of healthy foods. The supermarket exclusion might have also had unintended consequences were the existing supermarket to close; then there would be no unionized jobs and no selection of food. I'm not saying that one side or the other was right, but this is the type of issue that should resolved within the context of a comprehensive plan, and not by community coalitions that might be biased or unrepresentative of the relevant community.

Perhaps most importantly, formal planning ensures a level of democracy and accountability that you can't always ensure in the CBA process. Yes, many CBA coalitions do excellent work. But some don't. When amenities are decided on as part of the formal planning process, however, you avoid secret negotiations and ensure that everybody at least has an opportunity to participate.

What else can be done to give some integrity to the CBA process?

To start, CBAs need to be more transparent. Local governments should require all CBAs considered during the project/subsidy approval process to be publicly available, and if the developer negotiates an agreement and doesn't include it in its project application, it shouldn't get any special consideration. Even in California, where the CBA has become something of an institution, the agreements are often not easy to find. (Just go try to find a copy of the Grand Avenue or Hollywood & Highland CBAs.) Where local governments or other agencies have a role in overseeing CBAs, they should also make monitoring reports, amendments, and other CBA-related documents publicly available.

CBA regulations protecting community members and signatories could also be enacted without getting into the messy task of identifying the community. So without mandating CBA negotiations, whenever a developer submits a CBA along with its land use or subsidy application, it could be required to include certain provisions, like periodic reporting requirements, disclosure requirements, amendment procedures, and procedures for members of the public to lodge complaints regarding compliance.

Finally, if CBAs are going to be considered in the subsidy award process, state and local development agencies need to create uniform award guidelines--not just for CBAs, but also for other project aspects. Too many development agencies award subsidies on an ad hoc basis, which gives developers the upper hand. Instead, development agencies should have clear guidelines about subsidy availability that are based on the expected number of jobs and/or affordable housing units to be created, estimated tax revenue increases, sustainability and green building practices, etc. Development agencies also need to be more transparent about the subsidy application and award process (subsidy disclosures and better application requirements, as detailed above, can help in this regard), and they need to attach enforceable conditions to subsidies through the use of clawback agreements.