Thursday, March 18, 2010

Raising the Bar on CBAs

The Observer posts on the excellent Bar Association report on community benefits agreements-and the report raises some of the issues that the Alliance has been pointing out for some time (along with others that we haven't addressed): "The Association of the Bar of New York City doesn't seem to think all that highly of the process of landlords cutting formal, non-standardized deals with community groups—known as Community Benefits Agreements—to win approvals for planned developments."

But we think that to say that the Bar disapproves of CBAs is a bit of a stretch-better to say that they find the concept and the process used to implement these agreements to be problematic: "The use of CBAs has been criticized, in part because of the somewhat arbitrary manner in which they are formed (there is no standard for which groups end up being signatories in a CBA or participate in the negotiations with a developer, for instance), and the offerings from developers may not necessarily benefit the larger public interest, but rather just assuage a certain small constituency that happens to be negotiating the CBA."

At the same time, the Bar recognizes that this vehicle for getting communities to be more involved in the land use process is probably here to stay-and that therefore the process needs to have certain ground rules so as to avoid any number of pitfalls (we haven't read the entire report thoroughly, and will comment further when we do).

The Bar does, however, warn of the danger that CBAs will be used illegally in a quid pro quo manner-and therefore argues for standardization: "The well-researched Bar Association's report piles on more criticism and suggests that the tit-for-tat linking of a council land-use approval with a CBA is improper, if not illegal, given that developers are effectively buying zoning changes by paying certain community groups. It recommends that the city lead a discussion on how to adjust or standardize CBAs, and to formally separate them from the land-use approval process."

Which gets to one of our main points-how CBAs and the economic impacts of developments need to be separated from the ULURP that is supposed to focus exclusively-but never does-on environmental concerns. What comes out from the report-something that the Bar's land use chair Ken Fisher points out-is that ULURP is not the greatest vehicle for resolving these land use issues.

As the former council member tells the Observer: "Community involvement is a good thing," said Ken Fisher, an attorney at Cozen O'Connor and a former councilman who chairs the Bar Association's land-use committee, "but the vehicle that's written into the land-use process—namely the community boards— doesn't necessarily meet all of the needs, and that's why these ad-hoc agreements have sprung up."

Which is why Comptroller John Liu's proposed task force on CBAs is a welcome first step: "The report, which comes as City Comptroller John Liu is organizing a committee to propose changes to the CBA process, also suggests reconsidering the manner in which communities are involved in land-use approvals, as the boom in CBAs could be attributed to a lack of voice that many community groups feel they have throughout the process."

But the report goes further and suggests that the mayor and his economic and planning folks get into the middle of all of this reform-and perhaps the charter commission could play a role here as well. What emerges for us, is that ULURP is somewhat anachronistic, and a standardization of the CBA process-along with their official acceptance-needs to be done in conjunction with the ULURP reform that we have championed for the better part of three decades.