Posted by: Patricia Salkin | December 10, 2010

New Report on Use of Community Benefits Agreements in New York City

On September 29, 2010, New York City Comptroller John C. Liu issued the Recommendations of the Task Force on Public Benefit Agreements. The report, which focuses on Community Benefits Agreements (CBAs), follows another set of recommendations issued by the New York City Bar Association in March. While the NYCBA report suggested removing consideration of CBAs from the land use approval process (although not necessarily the subsidy approval process), the Comptroller report concluded that this is unrealistic and that CBAs must be evaluated in light of best practices and standards for accountability, transparency, and enforceability. The term “Public Benefit Agreement” was used in order to encompass a broader range of agreements that involve contracts between elected officials and developers/development agencies, in addition to the community-negotiated agreements typically referred to as CBAs. 

The recommendations set forth in the report were designed specifically for “major projects” (i.e. those over 500,000 square feet or with more than $75 in public subsidies), although the task force acknowledged that the principles of accountability and transparency should apply to agreements for smaller projects as well. The planning and negotiation process for public benefits agreements would be coterminous with the official environmental review and city land use procedure, “thereby allowing benefit measures to be considered in conjunction with land use review.” The report also recommends adopting legislation to codify public benefit agreement standards. The principles enunciated in the report include: 

  1. Accountability
    1. Encourage informed community participation early in the development process.
  2. Fairness
    1. Identifying and quantifying community needs and potential environment impacts should be the basis of the negotiated benefit agreement
    2. PBA development should be facilitated
    3. The cost of delivering PBA terms must be quantified and be proportional to the public assistence provided to the project
    4. The process must be predictable and time-limited
  3. Transparency
    1. Potential conflicts of interest should be avoided
    2. Executed agreements must be made public
  4. Feasibility
    1. Implementation should rely on existing structures rather than creating new ones
    2. There must be capacity to implement the proposed terms
  5. Enforceability
    1. All PBA terms must be clear, concrete and have a schedule for implementation
    2. All PBAs should set forth an accountable enforcement structure that includes reporting requirements for terms, cure and remedy provisions, and is not overly burdensome
    3. Where possible, PBA terms should be made enforceable by the City and the Economic Development Corporation
    4. Physical project impacts should be addressed in a restrictive declaration

 According the report, community involvement would be achieved by the city council member (or state legislator if the project requires state approval) and borough president convening a forum with the affected community board to discuss the project and establish a negotiation team. Special notifications of the process would be sent to: (1) all residents and businesses within 400 feet of the project; (2) members of the affected community boards; (3) community board mailing lists; (4) local development corporations and business improvement districts serving the affected area; and (5) one city-wide newspaper as well as one community newspaper or blog. To minimize conflicts of interest, members of the chosen negotiation team would be required to agree to neither solicit nor accept direct funds from the developer and to be barred from future contracts implementing the benefits agreement. They should also either live or work in the community. 

Once formed, the negotiating team would focus on community needs identified through the project planning and environmental review process, as well as in existing community-based plans (known as 197-a plans). Negotiating teams are also encouraged to hire independent consultants to coordinate public participation and provide technical assistance. After the cost of items on the community’s “wish list” is calculated, the projects would be prioritized by the negotiation team, which would then begin negotiations with the developer. 

Once completed, the report recommends that negotiated benefit agreements be made public by posting online. The report also focuses on enforceability, as detailed in the principles listed above. It suggests that terms be included in development agreements and restrictive declarations, where possible, and that monitoring and oversight structures be included. The report also suggests that a Community Advisory Board composed of signatories be set up for each agreement to periodically meet with the developer and community boards to resolve any implementation issues. Because the benefits in a CBA or PBA have direct and indirect financial impacts on the city, the report also recommends that the City Comptroller should have a role in oversight and monitoring. The Comptroller could also establish a digital repository of all benefit agreements, related restrictive declarations, development agreements, and related resources. 

As long-term recommendations, the report recommends that the Comptroller develop and propose legislation formalizing the benefit negotiation process. The report also recommends that the next Charter Revision Commission should modify the operations of the Economic Development Corporation and the Department of City Planning. Community boards should be given a more substantial role in the city’s land use review process, and land use decisions should be made with more consideration of local economic impacts and provisions for schools, transit, and other support services. 

The report also contains appendices giving summaries of major benefit agreements negotiated in New York and elsewhere, including those for: Atlantic Yards (New York); Yankee Stadium (New York); the Gateway Center (New York); the Columbia Manhattanville campus expansion (New York); the Hollywood and Highland Center (Los Angeles); Staples Center-L.A. Live (Los Angeles); North Hollywood Commons (Los Angeles); the Cim Group Project (San Jose); Hollywood and Vine (Los Angeles); the LAX Airport expansion (Los Angeles); Broadcast Center Partners (Washington, D.C.); the Yale-New Haven hospital development (New Haven); the Christina Avenue Composting Facility (Wilmington, DE); Longfellow Station (Minneapolis); the Minneapolis Digital Inclusion project (Minneapolis); the Consol Center arena (Pittsburgh); the Sugar House casino (Philadelphia); and the Bayview-Hunters Point development (San Francisco). 

Special thanks to Amy Lavine, Esq. who writes the Community Benefits Agreements Blog for this posting. 

For other articles on CBAs click here, here and here

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