Yankee stadiums.

The new and the old Yankee Stadiums, side by side. Photo at flickr by Urch.

More opinions from Crains.

The letters to the editor in the May 19th edition of Crain's New York Business followed up on Alair Townsend's recent remarks about CBAs being "zoning for sale" and "government sanctioned extortion."

Jesse Masyr, the attorney who worked with the WHLDC to negotiate a preliminary agreement with Columbia, wrote in to express support for community coalitions and the CBA process. He also explained that "the time has come for the city of New York to have an open, honest dialogue about whether CBAs should be a part of the land-use landscape."

Atlanta Beltline community benefits

** This post was substantially updated on Aug. 16, 2009. Contact me here to obtain the archived original post. **

Project Overview

The Beltline project, an initiative of the Atlanta Development Authority, involves the development of a 22-mile light rail transit loop around the city of Atlanta. The transit component of the project will include multi-use trails, sidewalks, streetscapes and road improvements, providing alternative transportation options and transit oriented design for a city known widely for its sprawling habits. The $2.8 billion project will also incorporate green space, affordable housing, brownfields remediation, historic preservation and public art. Over the next 25 years, the project is expected to generate billions of dollars of economic development and create tens of thousands of construction and permanent jobs.

In order to finance the Beltline, the city of Atlanta established a 6,500 acre tax allocation district (TAD) in 2005. (Funding is also being provided by private donations and federal programs.) Most of the properties within the TAD are underutilized, and as they are developed, their property taxes will increase. The TAD functions by diverting the difference between the baseline taxes and the increased taxes (sometimes called the "tax increment") to repay the municipal bonds issued to finance the Beltline. For a more detailed explanation of the TAD process, see here. (And for more background on this financing mechanism, including the problems it may create, see here.) In addition to funding the Beltline itself, TAD proceeds will also be used to provide economic development and affordable housing incentives.

Beltline Community Benefits

The Beltline project has been received with enthusiasm, but it has also generated concerns about gentrification and the displacement of current residents. The 2005 city resolution creating the Beltline TAD responded to these concerns, recognizing "the importance of balanced and equitable development of the city in a manner that preserves the dignity of existing residents and ensures equal participation by all residents in the many benefits, direct and indirect...of the Beltline project" (p. 3). Importantly, the law also contained a community benefits provision (section 19):

The capital projects that receive funding from TAD bond proceeds shall reflect, through the development agreements or funding agreements that accompany such projects, certain community benefit principles, including but not limited to: prevailing wages for workers; a 'first source' hiring system to target job opportunities for residents of impacted low income 'Beltline' neighborhoods; establishment and usage of apprenticeship and preapprenticeship programs for workers of impacted Beltline neighborhoods. A more complete list of such principles and a community benefit policy shall be developed with community input and included within the agreements to be approved by City Council.

This provision ensures that community benefits will be included in numerous individual Beltline developments, similar to the Park East redevelopment legislation in Milwaukee that made CBA provisions mandatory for developments of county-owned land.

Community Involvement

Because separate community benefits packages will be developed for individual Beltline projects, continued community involvement is especially important. While there is no Beltline CBA coalition, the project is being managed in such a way as to provide enhanced opportunities for public input.

Atlanta Beltline Inc., an affiliate of the Atlanta Development Authority tasked with planning and implementing the Beltline project, has developed a community engagement framework to keep residents informed and engaged in the Beltline's creation. The framework consists of the Tax Allocation District Advisory Committee, the Beltline Affordable Housing Advisory Board, quarterly public briefings made by Atlanta Beltline Inc., a community engagement advocate, and 5 study groups that seek to receive public input on the project (meeting minutes and briefings are available here).

The community "think and act tank" Georgia STAND-UP was instrumental in having the community benefits provision included in the Beltline TAD, and "[s]ince that win, Georgia Stand-Up has been organizing, educating and empowering community, labor, faith leaders, and elected officials, to develop and fight for comprehensive community benefits policies and CBAs for the Beltline[.]"

Implementation

Like most large projects, the Beltline has had its share of problems in getting off the ground. In 2008, the Beltline was almost derailed by a Georgia Supreme Court decision that prohibited school district tax funds from being included in the TAD (Woodham v. City of Atlanta), but a referendum (Amendment 2) was passed several months later to amend the state constitution and overrule the court. In June, 2009, the Atlanta Development Authority and the Atlanta Public Schools reached an agreement on the financing and the disposition of the $18 million in TAD funds raised since 2005.

Another hitch in the project came in January, 2009, when the Georgia Department of Transportation and Amtrak teamed up in a last minute move to acquire some abandoned railroad tracks needed for the Beltline. The national rail corporation wanted the tracks for a regional heavy rail line running from New York to New Orleans, but after strong public protest, GDOT's board voted to retract its objection to the Beltline project. In July, GDOT and Atlanta Beltline Inc. reached a deal giving the Beltline exclusive control of the tracks until 2012. The agreement brought the Beltline up to almost 50% of its needed acquisitions, well ahead of schedule.

The Beltline's official groundbreaking came on February 23, 2008, with city leaders ceremoniously shoveling dirt from the site of a future bike path in the city's West End. A park project in the Fourth Ward was kicked off in December. According to the Atlanta Beltline 5-year Work Plan, by 2011 the Beltline should have acquired 10 new parks, constructed two portions of the trail system, prepared the right of way for rail construction, completed master planning, provided $19 million in economic development incentives and $42 million in affordable housing incentives, and invested $21 million in road, bicycle and pedestrian improvements.

In June, 2009, the U.S. Environmental Protection Agency awarded a $1 million grant to the city Atlanta for brownfields cleanup along the Beltline. The grant money will be used to seed a revolving loan fund, which is expected to fund the remediation of 10-15 sites.

Links & News

• Atlanta Beltline Inc.
  
• Atlanta Beltline Inc., Official YouTube Beltline Project Channel
• Atlanta Beltline Inc., Twitter page
  
• Atlanta Development Authority Beltline Vision
  
• Atlanta Development Authority Beltline Redevelopment Plan (Nov. 2005)
• Georgia Stand-Up
  
• Atlanta Journal Constitution, Signing of the Beltline (photos of a public art installation)
• Tom Karson, Atlanta: Local Initiative Combines with National Support, WorkingUSA The Journal of Labor and Society, Vol. 10, Issue 1 (2007) (publication website)
• Mara Shalhoup, Stop that train: An Atlanta resident wages a battle against the Beltline, Creative Loafing Atlanta, Mar. 14, 2007
  
• Amendment 2: The Beltline's best shot, Creative Loafing Atlanta, Oct. 15, 2008
  
• Kent A. Miles, Beltline supporters rally against high-speed rail option, Atlanta Journal Constitution, Feb. 1, 2009
• Eric Stirgus, No deal's been set on Beltline rail, Atlanta Journal Constitution, Mar. 5, 2009
  
• Press Release, EPA Administrator Lisa P. Jackson Announces $1 Million Grant to Clean Up Contaminated Land, Support BeltLine in Atlanta, June 2, 2009
  

Grand Avenue community benefits package

The 3.6 million square foot, $2 billion Grand Avenue project (to be located in downtown Los Angeles near such landmark buildings as the Walt Disney Concert Hall and the Museum of Contemporary Art) will include entertainment facilities, restaurants, 400,000 square feet retail space, a high end hotel, up to 2,600 units of housing, and public park space. Most of the land is owned by either the Community Redevelopment Agency (CRA) or the county, which joined together in 2003 as the Los Angeles Grand Avenue Authority to implement the project. The Authority, with the help of the Grand Avenue Community Benefits Coalition, helped to ensure that the redevelopment will include significant public benefits:

• 20% of units will be affordable. In total, 532 affordable units are planned to be built over several phases.
• priority for rental units will be given to displaced residents.
  
• a $750,000 to $1,500,000 revolving loan fund will be established for nonprofits developing affordable housing in the area.
• $50 million will be allocated for the redevlopment of the existing county mall into a 16 acre public park (dubbed the "new 'Central Park' of Los Angeles by the Authority). The project itself will also include outdoor public spaces with seating, public art and landscaping.
• streetscape improvements will be made along Grand Avenue, including tree plantings, landscaping, paving, the installation of benches, trash cans, street graphics and lighting.
  
• there is a minority-owned contracting goal of 25%.
• there is a local hiring goal of 30% for construction and permanent jobs. Of the local employees, 1/3 are to be targeted for low income and at-risk individuals. The developer will be required to use a first source notification procedure so that local residents receive early notification of job openings.
  
• the developer will provide $500,000 for support training to ensure that local workers have the skills necessary to secure these jobs. An additional $500,000 will be provided by the CRA for job training.
  
• all construction jobs will provide living wages, and other parties contracting or leasing property from the Authority will be required to comply with the city's living wage and service worker retention policy.

The development is projected to create 29,000 construction jobs, nearly 6,000 permanent jobs, and it's also expected to generate more than $35 million in annual tax revenues. However, it will receive about $95 million in subsidies, and the city and county are also providing nearly $30 million for public improvements and affordable housing (see here). Although there have been questions about whether the project justifies the subsidies, many people see the economic and community benefits as making up for the public expenditures. A broader debate concerns who the project is really aimed at; the public park, for example, has been described as a project "for the wealthy." And Gilda Haas, the executive director of SAJE, has explained that despite the community benefits, "the fact remains that the downtown Los Angeles currently being developed and expanded is not one that primarily reflects the needs or interests of the majority of people who live in Los Angeles. It deserves to be pointed out that the majority of those moving into the 'new' downtown are white and wealthy, while most of the thousands of current residents being displaced are black, Latino, and poor." On the other hand, public officials have responded to the concerns about gentrification raised by projects like Grand Avenue by noting that "if there's no development, there are no benefits."

The project received final approvals in 2007 and is expected to be completed around 2018.

Lots of information about the project is available on the Grand Avenue Committee's website.

Hollywood & Vine CBA

In 2004, developers Legacy Partners and Gatehouse Capital signed a CBA involving a mixed use, transit oriented development at the corner of Hollywood and Vine in Los Angeles (right up the street from the Kodak Theater at Hollywood and Highland, which was also the subject of a CBA). The 4.6 acre, $326 million project will include a 300-room W hotel, about 500 housing units, 67,000 square feet of retail space and more than 1,000 parking spaces. As in many of the other Los Angeles CBAs, LAANE helped organize the coalition and negotiate the agreement.

Under the CBA, the developers agreed to provide living wages for all of their direct employees (including the hotel, security and parking employees), use a first source hiring program, set aside more than 20% of the rental housing as affordable (about 70 of the 350 apartments), contribute $100,000 for a career ladder training program in the culinary arts, provide $500,000 for arts programs at Hollywood High School, and fund $30,000 to sign employees and neighbors up for low cost healthcare. The hotel also reached a separate agreement with the hotel workers' union.

As of early 2008, the CBA has been implemented smoothly. The affordable units will be more affordable than originally planned, and the developer has hired a staff person to implement the local hiring program. Money for job training and the high school has also been distributed.

Eric Garcetti, a city council member at the time the Hollywood and Vine agreement was made, has written several pieces about the development process and the CBA, located here, here and here. Also, see Community Praises Hollywood & Vine Developers for Community Benefits Package; Agreement Will Bring Living Wage Jobs, Affordable Housing and Job Training to Hollywood.

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."

Seattle's Dearborn Street Coalition for Livable Neighborhoods

The Dearborn Street Coalition was formed in 2006 to ensure that development in Seattle's Little Saigon area and neighboring areas will meet the needs of local residents, small business owners and other stakeholders. With over 40 members in the coalition, it has been seeking to negotiate a CBA involving a large-scale retail and housing complex proposed to be constructed at the intersection of Dearborn Street and Ranier Avenue. The development will encompass an old Goodwill building, and the proposal includes a new Goodwill facility, at least 500 units of affordable and market rate housing, and a significant amount of retail space, including two big box stores, restaurants, a grocery store and smaller retail stores (see here and here for details).

The Dearborn Street Coalition has concerns about a number of the project's likely impacts, such as traffic, parking and the effects of the project on unique local businesses, especially those located in the International District and in Little Saigon. Gentrification and the undermining of regional labor standards are also feared. The Dearborn Street Coalition has warned that the high rents likely to be sought by the regional mall will drive out the area's small ethnic businesses. It is also concerned that the retail jobs offered by the new development will be mostly low-paying and/or part time.

In order to address these impacts, the Dearborn Street Coalition and Puget Sound Sage have been seeking to reach a CBA for the community that will ensure the preservation of Little Saigon's character, provide for the development of adequate affordable housing and lead to the creation of accessible, quality jobs. Unfortunately, the developer has not been particularly interested in negotiating. Another organization, Go Dearborn Street!, has also been formed to support the project. It believes that the project, sans CBA, will provide sufficient affordable housing, create a compact, street-scaled urban area, and that "the project could improve the neighborhood's business climate." While this may be true, a CBA would ensure that the community could enforce the developer's promises.

In order to go forward, the project developers need to secure a rezoning to allow large-scale retail stores, in addition to design and environmental approvals. The Department of Planning recently recommended the rezoning from industrial to neighborhood commercial (with a number of conditions), and the City Council will vote on the matter after a public hearing, which will be held on June 9 (see the official notice here).

More information about the project is available here on the city's website, and the draft and final environmental impact statements are available for download here. For news about the Dearborn Street Coalition, make sure to check out their blog.

Update: Puget Sound Sage finalized a CBA for the Dearborn Street project on August 29, 2008. See here and here.

Update: The Dearborn Street project was cancelled in the spring of 2009 due to economic problems. The CBA nevertheless represents a watershed victory. See here.

One Hill Coalition ratifies the first CBA in Pittsburgh

After months of negotiations, a CBA has finally been agreed upon for the new Penguins arena. Of One Hill's 97 member groups, 42 voted in favor of the CBA, 13 opposed it, and one formally abstained. See here for more details.

Into the cookie jar... another criticism of CBAs

Last week's Crain's New York Business ran an opinion piece on CBAs written by Alair Townsend, who called them "zoning for sale" and "government sanctioned extortion." Ms. Townsend cited the Yankees Stadium and Columbia deals as illustrating that CBAs have "little to do with adverse impacts but are instead designed to grease the approval process. Groups use rezoning proposals as leverage to extract whatever they can--jobs at specified wages, cash, housing, and neighborhood facilities." She also stated that it's "blatantly untrue" that CBAs are private deals.

There is some truth to Ms. Townsend's criticism that the Yankees Stadium and Columbia CBAs were not "private matters," as local officials were extensively involved in each case (especially the Yankees deal, where the local officials signed a CBA without any community groups, although that's another story). However, just because public officials take cognizance of a developer's commitment to work with the communities that a project will impact or facilitate that type of cooperation does not prove that a CBA amounts to extortion. This is especially true where developments are supported by significant public subsidies, as in the case of Yankees Stadium. Ms. Townsend also failed to comment on the Atlantic Yards CBA, which was a mostly private deal not involving public officials and which can hardly be called extortion (although it can certainly be faulted for other reasons, especially its reliance on "astroturf" community groups)--not to mention the dozens of other CBAs from outside of New York State that have been well received by the public, the government and developers alike.

Ms. Townsend's article is available here, but a subscription is required.

Asarco redevelopment in Tacoma, Washington

As reported in the Tacoma News Tribune, a lawsuit was filed against the City of Tacoma and Point Rouston LLC this week alleging errors in the environmental review and permitting process for the redevelopment of the old Asarco smelter site. The developer had earlier refused to negotiate a CBA with Washington Jobs for Justice, and while the developer believes that the suit was brought in retaliation for not signing a CBA, Washington Jobs with Justice sees the lawsuit as part of a larger campaign surrounding the project.

Retaliation probably isn't the best term to use in this context. Citizens groups, after all, have a right to oppose projects that they don't support, and CBAs were developed as a tool of compromise to allow community members and developers to find middle ground.

Richmond, Cal., CBA campaign

The Contra Costa Times reported on Friday that Richmond city officials are seeking to negotiate a CBA with Chevron, which has proposed an $800 million upgrade to one of its plants.

Terms likely to be negotiated include restrictions on whether Chevron can process heavier crude or increase overall emissions, and investments for job training, police and fire services, funding for a local community health center, and possibly funding for a pilot "green" affordable housing project that would use an on-site renewable energy source.

Update here.