Friday, February 26, 2016

Looking back at the fundamental flaws in the Atlantic Yards Community Benefits Agreement

From 2006 brochure
More than a few citizens and journalists are asking about the 2005 Atlantic Yards Community Benefits Agreement (CBA), so let's recall some history about the document long touted as a model but now seen as a "borderline calamity."

First note my update, which describes how four of the extant seven groups (one the eight already closed, as noted below) are essentially inactive, with some initiatives accomplished, others pursued but with question marks, and others vague or ignored.

But it was flawed from the start.

Facade of process

Bettina Damiani, then at Good Jobs New York, submitted this testimony at a May 2005 City Council hearing:
[W]e feel it is important to draw the Council’s attention to several major differences between CBAs as they have been used in other parts of the country and the series of negotiations that FCRC is calling a CBA. Perhaps the most striking is that elsewhere CBAs are negotiated by one broad coalition of groups that would otherwise oppose a project, a coalition that includes labor and community organizations representing a variety of interests.... In the BAY [Brooklyn Atlantic Yards] case, several groups, all of which have publicly supported the project already, have each engaged in what seem to be separate negotiations on particular issues... However, to use the “CBA” model set forth by the landmark STAPLES Center agreement in Los Angeles for a series of non-binding side agreements between already supportive community groups and a developer can only set a low bar for future attempts to negotiate for broad-based benefits from major development projects. Without broad, crosscutting organizing, such “CBAs” can become a mechanism for dividing the community rather than uniting it, and devolve into a mere publicity tool for developers of controversial projects.
Dividing the community

Indeed, the CBA was indeed a publicity tool and did become a mechanism for dividing the community. Prospect Heights activist Gib Veconi wrote in November 2012 on Patch, upon the closure of job-training group BUILD (Brooklyn United for Innovative Local Development):
Forest City was going to use a CBA as a wedge to separate civic leaders residing mostly in outlying neighborhoods from the more affluent residents of the community immediately surrounding Atlantic Yards... Any firm that would be so brazen in manufacturing support as to stage a “community” strategy session in its conference room would certainly have no qualms about disposing of such support as soon as its usefulness had ended.
...Although the CBA may have been in theory “legally binding,” enforceability would only have been possible if BUILD was not dependent upon Forest City for funding. Forest City never even bothered to hire the independent compliance monitor the CBA required. BUILD failed to convert promises of a pre-apprenticeship training program into union jobs for local residents.
Here's my coverage of the BUILD lawsuit and its resolution.

Questions of legitimacy 

Vicki Been, then an NYU Law School professor and now the Commissioner of the New York City Department of Housing Preservation and Development, wrote in a 2010 paper for the New York City Bar Association about the questionable legitimacy of the CBA:
Only eight community organizations signed the Atlantic Yards CBA... Many interested observers have expressed concern that the signatory groups are not representative of the impacted constituencies. Lance Freeman, an Associate Professor of Urban Planning at Columbia University, for example, criticized the Atlantic Yards CBA on the grounds that “there is no mechanism to insure that the ‘community’ in a CBA is representative of the community.”
...The problem of representativeness is compounded by the potential for conflicts of interest. The cooperation of at least one community group that signed the Atlantic Yards CBA, BUILD, followed closely behind Forest City Ratner’s financial contribution to the organization. 
As I wrote in June 2014, a document in the the BUILD lawsuit discussed how Forest City hired a consultant specializing in nonprofit management, Ritchie Tye Consulting, to evaluate the eight groups that signed the CBA.

The consultant essentially validated the widespread critique of the CBA: that most groups had no track record in the community (I'd note that individuals associated with groups did have a record) and were set up to support the project.

The report even said that an effort to find a grant-writer to raise money for the signatories--otherwise funded by Forest City Ratner--was unsuccessful partly because people thought the groups were "fronts" for Forest City.

Questions of oversight

As I've written before, Forest City promised an Independent Compliance Monitor, but never hired one.

"We doing something here that is historic," the developer's then-point man, Jim Stuckey, said at a November 2004 meeting, as shown in the video below. "Never been done in New York City before. And what we’re doing is that we’ve agreed to enter into a legally-binding Community Benefits Agreement that will be monitored by an independent monitoring group not associated with anybody who actually negotiates that agreement."

Video by producers of Battle for Brooklyn

"And we’re doing that because not only do we believe that we should do the things that we say we will do, just as we have in the past"--note Stuckey's somewhat defensive tone--"but we also believe that we should set the bar."

Conflicts of interest

Who could enforce it? Only signatories--unlike in some other cities, where government bodies were also signatories.

And those signatories--even the few with significant records of work in Brooklyn outside Atlantic Yards--are deeply entangled with the developer, which likely tamps down public criticism.

Consider that Bertha Lewis of New York ACORN raised significant money from Forest City Ratner to rescue (briefly) national ACORN, and earlier signed a document requiring her to publicly support the project. While she has called the Atlantic Yards/Pacific Park affordable housing a "model," she has not publicly commented on how the affordability on the next two towers skews away from the agreement New York ACORN signed with Forest City but instead assists, most significantly, households earning six figures.

As to perhaps the most active current CBA signatory, the Downtown Brooklyn Neighborhood Alliance (DBNA)--involved in regular ticket giveaways and a new community foundation--its founder, the Rev. Herbert Daughtry, expressed no concern about whether Forest City didn't follow its overall package of promises. Then again, the DBNA is not only funded by Forest City, it employs two members of the Daughtry family, and assigned project work to another.

As I wrote nearly ten years ago (!), in model CBAs, signatories agree to support the project but don't themselves benefit. “As a matter of principle, groups in our network don’t take money from developers. We want to avoid any appearance of a conflict of interest,” said John Goldstein, National Program Director of The Partnership for Working Families. “We have advocated in CBAs that developers give to the communities they’re developing in."

Lack of disclosure

At a public meeting in July 2009, Forest City executive MaryAnne Gilmartin was asked how much money it had given to its CBA partners.

“I don’t have those numbers,” she responded.

She was asked for an estimate.

“Forest City has funding obligations and commitments to each of the organizations, and they’re reviewed on an annual basis,” Gilmartin said. “We’re happy to provide an accounting, generally, of that, but I don’t have that information with me."

They never provided that accounting (which surely would show that the commitments for several of the groups were short-term).

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