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Affordable housing: timing, enforceability, and ACORN compromises

So, how can we be sure all the affordable housing at Atlantic Yards would be built? A politician is trying, but he's getting pushback from ACORN.

From the Courier-Life chain this week:
Assemblymember Jim Brennan has written to city and state economic development officials asking for assurances that the 2,250 affordable housing units would indeed be built.
“Currently there is no guarantee that 2,250 affordable housing units will be built,” said Brennan, noting that only 404 of such units are scheduled to be built as Phase 1 of the project.
The remaining 1,846 affordable units are scheduled to be built beginning in 2010, but there is no express contractual commitment at this time between city and state governments and FCRC, said Brennan.
“The affordable housing development should come first and be guaranteed,” said Brennan, adding that the public is being asked to support the project on the basis of that promise.
The affordable housing component of the proposed development came about as per a Community Benefits Agreement (CBA) between New York ACORN and FCRC.
“First things first, Mr. Brennan,” said New York Acorn Executive Director Bertha Lewis.
“The ESDC has to approve the plan and once they do, the state Public Authorities Commission approves the plan, and the 2,250 affordable units are part of that plan,” she added.


But Lewis didn't address the issue; just because they'd be part of the plan doesn't mean they'd be delivered, since the second phase of the project would depend on the success of the first phase--as well as other changes in the economy.

It seems that the Atlantic Yards plan doesn't meet the standard set in the Greenpoint-Williamsburg rezoning, in which affordable housing would have to be built simultaneously.

And still unmentioned is the total amount of public subsidies needed for the housing.

Is it enforceable?

How enforceable is the housing agreement? An 8/29/06 article in Metro NY stated:
Should FCR not meet its housing obligations, it has agreed to pay $500,000 to a fund for community groups backing the plan.

That didn't ring true, since the only monetary clause in CBA involves a $500,000 payment if Forest City Ratner doesn't fulfill its job training obligations. While that sum could fund job training, it certainly couldn't pay for housing.

I couldn't get Forest City Ratner to confirm or deny the statement, though they apparently haven't asked for a correction. I asked ACORN, and was told no such clause existed.

Going to court

But what could happen? The CBA provides for binding arbitration, as well as the opportunity to go to court to enforce the agreement. It states:
[T]he court shall have the power to order affirmative equitable and/or affirmative injunctive relief, temporary or permanent, requiring Developer to comply with this Agreement or monetary damages; it being acknowledged that monetary damages may not be an adequate remedy for defaults under this Agreement by Developer.

ACORN spokesman Jonathan Rosen added:
After reviewing your question with ACORN's pro-bono counsel, I can safely say that if the MOU were not fulfilled ACORN could seek injunctive relief. The legal standard for obtaining this kind of relief is (a) likelihood of success on the merits and (b) irreparable injury if FCR were to proceed without compliance which cannot be satisfied with monetary damages. While courts tend to favor monetary damage remedies, we believe we have a strong legal argument for injunctive relief since the goal of the parties to the CBA is community benefit rather than financial gain and it would be difficult to quantify the damages arising from the breach in financial terms. The language of the CBA supports this although this language alone would not be definitive.

In order to bring an action, there is a 60-day cure period. The coalition or the member that controls the particular chapter of the CBA (ACORN, in the case of housing) can elect to bring an arbitration or court proceeding. That party can go directly to legal action if irreparable injury would result from delay.


Political pressure

Also, of course, ACORN could bring political pressure, such as by picketing. Would ACORN, for example, accept some compromises in the final number of units? Perhaps not, but ACORN has already accepted compromises in other ways:
--not protesting when Forest City Ratner turned the 50/50 housing pledge into a 50/50 rental agreement
--describing the project in the Brooklyn Standard as a 50/50 project, even though it's not
--not objecting when the developer decided to shift 450 of the affordable units to a higher income band, meaning fewer units for moderate-income people
--not objecting when FCR characterizes the subsidized apartments as 50% two- and three-bedroom, even though that refers to floor area rather than number of units
--not criticizing the construction schedule, as noted above.

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