Evaluating the Community Benefits of the CBA

Image Credit: Urban Habitat 

Despite major private investments in economic development initiatives, residents of changing neighborhoods in many cities have experienced only the pitfalls of gentrification, trying to navigate life in newly expensive areas that lack affordable housing. In response to new development's lack of affordable units, cities around the country have entered into community benefits agreements (CBAs) with developers. CBAs, which are legally-binding contracts focused on coalition building, allow communities affected by development to participate in the planning process and ensure that the community's initial residents experience many of the benefits of economic transformation without being pushed out of the neighborhood. See William Ho, Community Benefits Agreements: An Evolution in Public Benefits Negotiation Process, 17 J. Affordable Hous. & Comm. Dev. L. 7 (2008). CBA negotiations, the first of which involved the agreement surrounding the construction of the Staples Center in Los Angeles in 2001, often include promises to pay local workers a living wage in both the redevelopment project, environmentally-friendly construction, and the inclusion of a certain number of low or moderate-income housing units. In return for their agreement to develop in a manner beneficial to the community, developers often get the desired community support for their projects which can expedite the planning and permitting process. CBA advocates have heralded t initiatives such as the Yale-New Haven CBA, Atlanta Beltline CBA, and Columbia-West Harlem Expansion CBA as instrumental to bringing significant improvements to neighborhoods and preserving community interests and identities in the face of ambitious projects driven by wealthy Tulane Public Law Center and Urban Land Institute held a symposium on CBAs entitled "Win-Win-Win: The Advatages of CBA's for the Community, Developers, Government, and You!" during which the CBA was upheld as a model of future legally enforceable protections for affordable housing, green initiatives, and the income inequality in gentrifying communities. 

institutions and developers. The Atlanta Beltline is particularly notable for the City's requirement of CBAs as a condition for developers receiving light rail subsidies. In 2011, the

However, legal and community development scholars have questioned the "win-win" view of CBAs. Criticisms of these agreements include concerns that decisions made by community leaders do accurately reflect the preferences of the community, that CBAs support neighborhood-by-neighborhood decision-making of issues that would be better decided at the broader city or state level, and that CBAs do not adequately address the inherent power imbalance that exists between community organizations and deep-pocketed developers and precludes truly equal negotiations. Additionally, NYU Law Professor Vicki Been considers whether CBAs are actually exactions (condition imposed on a developer by a local government in exchange for the government permitting land use they would otherwise prohibit) that do not meet the SCOTUS nexus requirement of a "legitimate and proportional [government] interest" and thus are violative of the Fourteenth Amendment. See Dolan v. City of Tigard, 512 U.S. 374, 391 (1994); see also Vicki Been, Community Benefits Agreements: A New Local Government Tool or Another Variation on the Exactions Theme?, 77 U. Chi. L. Rev. 5 (201). Thus, proponents of CBAs are faced with simultaneous concerns that these agreements are too weak to achieve their intended purposes and so overbearing as to amount to potentially unconstitutional exactions. 

Where does the CBA as an increasingly popular development tool go from here? Is there a way to ensure that CBAs put community leaders and developers on roughly equal footing while avoiding constitutional challenges? Again, the City of Atlanta's legislative requirement of the formation of  CBAs in order for developers to be eligible for subsidies proves to be a promising example. These legislative requirements provide additional government support behind community agreements and (theoretically) increase developers' accountability. Such provisions could be useful in navigating the landscape of community benefits agreements, which have the potential to provide legally enforceable mechanisms for communities to articulate and promote their interests in time of great physical and socioeconomic change.