The C.B.A. at Atlantic Yards: But Is It Legal?

All the politicians, builders and rabble rousers who have been involved in these new-fangled community benefits agreements, from California to the New York island, have emphasized how these are “legally binding contracts” between developers and community organizations. But the eight experts that took part last night New York City Bar’s panel on the topic seemed less than convinced that these C.B.A.’s, including those at Atlantic Yards and Bronx Terminal Market, would hold up in a court of law.

“All we know about the C.B.A.’s is that they are a record of a political process and whatever legal status they may have over time we don’t know yet,” said William Valletta, a former general counsel for the New York City planning department. Contracts, he said, only make sense “when something is given up on both sides. What is the community giving up in order to take part in the agreement? Presumably, they can’t sell their vote or their participation in democracy.”

The panel was moderated by a couple of prominent land-use attorneys—Raymond Levin and Ross Moskowitz—and included Joshua Sirefman, chief of staff for Deputy Mayor Dan Doctoroff, and Council Member Melinda Katz, chair of the City Council’s Land Use Committee. It may well be the first step by which the Bar, if not city government, develops guidelines for these C.B.A.’s, as happened in the late 80s under Mayor Koch.

Carl Weisbrod, the former president of the city Economic Development Corporation, criticized the use of C.B.A.’s in projects that receive public funds—one of which is Atlantic Yards –as fundamentally undemocratic.

“If the public is putting money into the project and the developer is allocating that money in private deals with the community, it is not government setting the priorities. Generally speaking, it is city taxpayer dollars that are being spent in not necessarily high priority areas,” he said. “It shouldn’t be some local community groups making these decisions. It should be a cross-section of the community and city government.”

And yet, C.B.A’s have come about because government has failed, or at least because some residents think so. Ethel Sheffer, president of the New York chapter of the American Planning Association, said in the question-and-answer period that civic groups began negotiating a C.B.A.-like deal with Donald Trump for Riverside South “in the absence of effective public policy by the City Planning Commission.” And didn’t C.B.A.’s take root in Los Angeles because poor people felt that their duly elected representatives were not representing their interests? Where governments are not raising the minimum wage, or mandating affordable housing, or giving the unemployed job training, grassroots groups are agitating to get these things from developers in a piecemeal, patchwork way.

-Matthew Schuerman