Friday, February 19, 2010

Land Use and Community Benefits

As we have commented, Comptroller John Liu is looking to devise ways to make the process of crafting community benefits agreements more rational-and community friendly as well. In yesterday's NY Daily News he outlined his case: "One of the main reasons why many CBAs in New York City have been disappointing - and have been singled out nationally as examples of what not to do - is that they forgot one important factor: the community. It would, however, be a mistake to consider CBAs a lost cause. In fact, CBA success stories are sweeping across the country."

In making his case, Liu points to a litany of failed CBAs-many of which we were right in the middle of. Our particular favorite? The Bronx Terminal Market: "At Bronx Terminal Market, community benefits depended on developer actions that were largely voluntary and, to date, still have not happened." Which raises an important corollary-something that the Comptroller gets as well.

CBAs are complementary and can enhance the development process if done correctly: "Moreover, CBAs should never become a substitute for responsible government policy on development issues. CBAs should complement policy." If, as in the case of the BTM, the entire process was tainted, no community benefits agreement will be able to rescue the effort from its failed underpinnings. And, in the case of that particular Bronx malling, the CBA process managed to make a bad development worse-so it's not surprising that the terms of the CBA have not been lived up to.

Which gets us to a central conundrum: Who represents the community and therefore gets to negotiate on its behalf? Liu posits the following: "Community groups, elected officials and other parties negotiating with developers must be truly representative of the community, and the benefits from the project to the community should be appropriate to its needs and the impact of the development upon it."

Ah, yes-but how do we decide who is, "truly representative?" It is difficult to see what kind of criteria should be used-and the Liu task force certainly has its work cut out for it-to determine the quality of representativeness. Perhaps, just as Supreme Court Justice Stewart famously remarked about pornography: "I'll know it when I see it"

Certainly it was in place during last year's Kingsbridge Armory battle-as KARA comprised a wide array of community stakeholders. But this gets us to the other sticking point, one that we mentioned in an earlier post-how to coordinate a CBA negotiating process with ULURP: "On a procedural level, negotiating a CBA is complicated by the fact that any discussions need to take place alongside of the mandated ULURP process-a procedure with a clear cut time frame that can't be modified once it commences. So, creating clear cut parameters may have to be done simultaneously with amending the ULURP process itself-something we have recommended but that is subject to mayoral approval."

If coordination is lacking, the negotiation of a benefits agreement becomes slipshod and haphazard-and the Armory debacle is a case in point since the haughty developer, a long time mayoral favorite, was content to play rope-a-dope as the ULURP clock ticked away. In the end, this haughtiness, and the ad hoc nature of the CBA process as well, combined to defeat the entire development.

So, much work needs to be done on this important issue-and the Liu task force is a big step in the right direction. Ultimately, however, the mayor and the city council will need to be brought in, since devising an official status for CBAs needs to be done legislatively and in tandem with reform of ULURP; and with the consent of the mayor as well, the man who has veto over any changes in the city's land use law.

But the Liu task force should begin to bring the CBA issue into the spotlight-and we'll give the comptroller the last word: "This task force will be a partnership with representatives of the community, business and labor who will help shed light through the smoke-filled rooms and work to ensure that CBAs contain clear standards so New York City can once again become a model for effective and equitable economic development."