Common use of Communities Clause in Contracts

Communities. 1. CBAs may give neighborhoods a more meaningful role in the development process than the opportunities ULURP provides for public participation. Those who champion CBAs on behalf of local communities articulate several justifications for the agreements. First, they argue that the City’s normal land use procedures often fail to ensure that the concerns of the neighborhood most affected by the proposed development are considered and adequately addressed.250 They argue that the representatives of the neighborhood -- the community board, the borough president, and City Council members -- are not effective in advocating for the community. They assert that community boards are given few resources and little training to evaluate development proposals.251 They note that members serve at the pleasure of borough 250 More generally, communities in many cities have turned the CBAs out of frustration with the lack of meaningful opportunities for communities to participate in the planning and design of federal urban renewal projects, community economic development programs, and land use decisions more generally. See, e.g., Ho, supra note 3, at 11–19. 251 See, e.g., ▇▇▇▇▇ ▇▇▇▇▇, Issue of the Week: Community-Based Planning, GOTHAM GAZETTE, Mar. 25, 2002, ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/iotw/communityboards/; ▇▇▇▇▇ ▇▇▇▇▇▇▇, Report Finds Disparity in City Aid to Community Boards, N.Y. TIMES, June 20, 2005, at B2; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Back of Bloomy! Rally at City Hall Rips Community Board Cuts, N.Y. DAILY NEWS, June 10, 2009, at 29; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Cutting Back on Democracy, GOTHAM GAZETTE, Mar. 16, 2009, ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/article/fea/20090316/202/2854. presidents, who sometimes are said to replace members because of the members’ views.252 The community boards’ recommendations are advisory only, and may be ignored by the borough presidents, City Planning Commission, City Council and Mayor.253 Elected officials may, of course, disregard a community board’s recommendations for appropriate reasons, such as the City’s need for a particular development. But community members also may fear that their elected officials may disregard the community’s concerns for reasons the community may find more troubling, such as the role developers’ contributions may play in financing political campaigns.254 One of the tools designed to give neighborhoods more power in the land use process -- community based plans sanctioned by §197a of the City’s charter -- is widely seen as having very limited impact.255 Communities that have not yet drafted a 197-a plan complain that such plans are extremely costly and difficult to craft, and many communities, especially in lower income neighborhoods, lack the resources to engage in the planning process.256 Although Section 197-a requires the DCP to “[p]rovide community boards with such staff assistance and other professional and technical assistance as may be necessary to permit such boards to perform their planning duties and responsibilities under this chapter,”257 critics claim that such assistance is in fact rarely given.258 Critics argue that the few planners staffed by the DCP to work with communities focus mainly on reviewing the plans, rather than helping communities develop the plans.259 Some communities that already have drafted 197-a plans believe they are ignored.260 The City Planning Commission officially interprets community plans as nonbinding guidance, which minimizes 197-a’s effectiveness at providing meaningful public participation to communities.261 Relative to ULURP, or 197-a plans, therefore, CBAs are seen as a more direct and powerful way for the community to have a role in shaping their neighborhood’s development. 252 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Wants Reform, New Blood on Community Boards, DOWNTOWN EXPRESS, Feb. 22, 2006, available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/de_146/stringerwantsreform.html. 253 See N.Y.C. CHARTER, ch. 70, § 2800(d) (setting out the duties and authority of community boards); see also Community Board Assistance Unit of the Mayor’s Office, Handbook for Community Board Members (2009), available at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/html/cau/downloads/pdf/handbook_2009.pdf. 254 Gross, supra note 1, at 4. 255 Under Section 197-a of the city charter, community boards are authorized to sponsor plans for the “development, growth, and improvement of the city, its boroughs and communities.” . N.Y.C. CHARTER, ch. 8, § 197-a(a). 256 MUN. ART SOC’Y, THE STATE OF 197-A PLANNING IN NEW YORK CITY (1998), available at 257 N.Y.C. CHARTER, ch. 8, § 191(5). 258 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, New York City's “197-a” Community Planning Experience: Power to the People or Less Work for Planners?, 12 PLAN., PRAC. & RES. 59 (1997). 259 MUN. ART SOC’Y, supra note 256, at 2. 260 ▇▇▇▇▇ ▇▇▇▇▇▇, Residents, ▇▇▇▇▇▇ Question 197-a and 197-c Revision Process, COLUMBIA SPECTATOR, Jan. 22, 2008, available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/2008/01/22/residents-▇▇▇▇▇▇-question-197- and-197-c-revision-process. 261 ▇▇▇ ▇▇▇▇▇▇, Replacing Politics with Democracy: A Proposal for Community Planning in New York City and Beyond, 11 ▇.▇. & POL'Y 135, 142 (2002). 2. CBAs give neighborhoods a role in the development process when the City’s typical land use processes are preempted. Communities complain that they have even less input into the land use approval process when the City’s ULURP is pre-empted because the project involves the state or federal government or special authorities such as the Metropolitan Transit Authority, or falls within the jurisdiction of the Empire State Development Corporation (ESDC). Several of the projects in which CBAs have been negotiated have involved the ESDC, and have been approved outside ULURP.262 The Atlantic Yards development, for example, did not have to go through ULURP because it was within the jurisdiction of the ESDC. ESDC’s procedures did not provide a formal role for the community board, and community groups found opportunities for participation unsatisfying.263 Indeed, community groups complained bitterly that the public hearings focused only on a dense and technical environmental impact statement and provided little meaningful opportunity for community members to have an impact on the project.264 Proponents of the Atlantic Yards CBA said it was needed in part to address that gap. More generally, CBA advocates argue that CBAs especially are necessary to ensure that the community’s needs are voiced and addressed when the City’s typical land use processes do not apply.265 3. CBAs give neighborhoods an opportunity to address issues, such as wage rates or employment practices, that the City may not have the authority to address in the normal land use process. Advocates of CBAs believe that CBAs give the residents affected by a development a say regarding all the ways in which a proposal may change the local community, without regard to whether those impacts are related to land use or environmental impacts.266 The normal land use process, because of its focus on traditional land use concerns such as the height and bulk of a project, does not always ensure that those most affected by the development have a voice in shaping all the ways in which the development could affect or benefit the community.267 CBAs allow neighborhoods to negotiate their own mitigation and benefits without having to worry about the ▇▇▇▇▇▇/▇▇▇▇▇ nexus and proportionality requirements, which might apply if the City were involved in the negotiations. Many CBAs, including the Atlantic Yards, Columbia and Bronx Terminal Market CBAs, for example, address the percentage of the development’s construction jobs that will be reserved for minority, women, or local workers.268 Such a requirement might not pass muster under ▇▇▇▇▇▇/▇▇▇▇▇, but proponents of CBAs argue that as private agreements, CBAs are unlikely to trigger with the ▇▇▇▇▇▇/▇▇▇▇▇ nexus or proportionality 262 ▇▇▇▇▇ ▇▇▇▇▇▇▇, Atlantic Yards and the Perils of Community Benefit Agreements, PLANETIZEN, May 7, 2007, ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇/node/24335. 263 Memorandum from the N.Y. Pub. Int. Res. Group, ULURP Should Apply to the Atlantic Yards Project (June 18, 2004), available at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/public/nypirg_ULURP.pdf . 264 Urban Renewal: Up in Arms about the Yards, ECONOMIST, Sept. 23, 2006, at 89. 265 ▇▇▇▇▇▇▇, supra note 87. 266 See Gross, supra note 1, at 5-6. 267 Id. 268 See supra notes 52, 90, 180. requirements. As discussed below in Part IV(D), however, to the extent that CBAs are required by or incorporated into the land use approval processes, they may implicate ▇▇▇▇▇▇/▇▇▇▇▇, so this “advantage” of CBAs may be illusory. 4. CBAs allow neighborhoods to control the distribution of at least some of the benefits of the development. The normal land use process does not necessarily ensure that those most affected by a development proposal will receive an equitable share of the benefits of the development. In many cases, one of the direct benefits of a development is the creation of new jobs. The land use approval process may take into account benefits such as jobs that a development will bring to a community in weighing whether to allow the development. But the land use process generally does not address which community, or group within the community, should get those benefits.269 Proponents of CBAs believe that they can help give community groups “a united voice”270 that can help them secure promises that jobs (and other benefits) will be offered first to the residents of the neighborhoods in which the development is being built.271