Atlantic Yards now a prime example of a failed Community Benefits Agreement. No comment from arena, or CBA signatories. Spin from new developer.

When Developers Promise Community Benefits, Who Holds Them Accountable?, Neil deMause wrote in City Limits 6/17/22, assessing unfulfilled promises regarding the Community Benefits Agreements (CBAs) Atlantic Yards, Yankee Stadium, Columbia University. and the Bronx Terminal Market.

The first half of the article focuses on Atlantic Yards, detailing how it's fallen short (and relying significantly on my reporting). And it quotes me:

The poor results, Oder says now, should come as no surprise. “The rollout was deceptive and over-hyped, the structure fundamentally flawed, and the oversight—by the (absent) Independent Compliance Monitor and local officials/press, as well as the under-equipped signatories—inadequate,” he writes in an email. (Editor’s note: Oder is a freelance contributor to City Limits).

About housing

From the article:

Start with the housing provision of that agreement: While roughly half of the housing completed to date has been designated as affordable to low- or moderate income families, as promised, construction has lagged: About half of the project’s proposed buildings have not even broken ground yet. And the vast majority of the “affordable” units that have been built are moderate-income apartments that are allowed to cost upwards of $3,000 a month.

It's even generous to say that half the housing has been designated as "affordable" as promised--it's disproportionately middle-income, not even moderate-income. 

That's at significant odds with the (non-binding) Affordable Housing Memorandum of Understanding (MOU) incorporated in the CBA, which said there should be just as many low-income units as middle-income ones.

Moreover, the passage of time means that a rent level that once qualified as moderate-income housing--in between low- and middle-income--is now low-income, given rising Area Median Income (AMI). But AMI, which incorporates affluent suburban counties, has risen faster than income in Brooklyn, especially that of lower-income households.

Arena issues

While the arena does regularly give out free tickets--unmentioned in the article--via the Downtown Brooklyn Neighborhood Alliance (DBNA)--it never followed through with the promised community use of the arena, at low cost, for ten events a year. 

The DBNA now does allow organizations to hold fundraising events in the DBNA's suite at the arena--but that's not quite the same as the arena or its larger spaces.

"City Limits’ calls and emails to Barclays Center went unanswered," the article states. (The arena is more focused on promoting the Social Justice Fund of the Joe and Clara Tsai Foundation, the arena company's owners.)

Monitoring questions

Moreover, as the article notes, the CBA promising that a monitor would be put in place “as soon as reasonably practicable,” one never appeared.

As I wrote yesterday, Greenland USA, through a spokesman, somehow claimed that  "in terms of accountability this project continues to report to the public through a bi-monthly ‘quality of life’ meeting" held by Empire State Development (ESD), the state authority that oversee/shepherds the project.

Those meetings aren't very accountable.

Greenland cites benefits

From the article:

[Greenland] replied to City Limits’ questions with a laundry list of benefits it says have been provided as part of the massive development. They include a project labor agreement, “more than 1300 units of affordable housing built or completed,” a new health care center and a new school, and such in-progress measures as new parks and renting retail space to female- and people-of-color-owned businesses. 

Hmm... a project labor agreement is a not-uncommon business practice on large projects involving union labor.

Not only does the income-targeted housing fall short in terms of affordability, it seems inevitable that the developer won't be able to meet the 2025 deadline of 2250 units.

The new school is very much delayed, once supposed to arrive in 2018--as per ESD--and now is due in 2025, seven years later.

New health care center? As I wrote in 2019, no one could explain how the facility helped low-income households and otherwise fulfill the CBA.

New parks? The minimal publicly-accessible open space outside the 535 Carlton (B14) and 550 Vanderbilt (B11) buildings has been compromised by adjacent construction, and even when the two buildings (B12 & B13) are completed, adding to the total open space, it will mainly serve... the residents of those buildings.

Renting retail space to female- and POC-owned businesses? That's hardly what was touted in 2005. 

Enforceability questions

From the article:

Yet despite those “substantial legally enforceable penalties,” baked into the CBA, neither Ratner, Greenland, nor the Barclays Center—which Ratner sold, along with the Brooklyn Nets, to Russian nickel baron Mikhail Prokhorov in 2009 and to Alibaba co-founder Joseph Tsai in 2019—has been at risk of any consequences for failing to meet the CBA’s requirements. That’s because, in an absurdist twist, the only person who would have been in a position to penalize any of the project’s developers is the compliance monitor they never hired. 

(To be clear, Prokhorov sold the arena company to Tsai after buying it from Ratner.)

I'm not sure that only the Independent Compliance Monitor (ICM) could penalize the developer.

The document sets out a "Sixty-Day Right to Cure" an alleged defect; "after review of the ICM report by the Executive Committee," a Coalition Representative can provide written notice to the developer of the alleged default.

Then would come mediation, with the ICM picking an appropriate, independent mediator, paid for by the developer, though each party would  bear its own fees and other costs.

Alternatively, Coalition members could also pursue judicial remedies, at least after exhausting the other processes. So, if there's no ICM, there's no process, and the signatories could, at least theoretically, go to court.

That said, few of the signatories have/had the budget--or the imprudence--to pursue enforcement. All were said--by a Forest City executive in 2009--to have received funding from the developer.

A few remain, essentially, business partners. For example, ACORN successor MHANY (Mutual Housing Association of New York), is contracted with the developer to manage affordable housing intake. That doesn't leave much leeway to speak critically, much less go to court.

No successor clause

The article notes:

And that’s if it were even clear who counts as the responsible developer: The Atlantic Yards CBA lacks a successor clause indicating who would take on responsibility if the project was sold, making it nearly impossible to hold the current owners responsible even if someone tried to enforce the CBA’s provisions.

That's a structural flaw. 

However, as I wrote in April 2017, the Greenland-Forest City deal did include various transfers of agreements, including the CBA, a separate agreement with the DBNA, and consulting agreements with the group Public Housing Communities and (the late) James Caldwell, leader of the job-training group BUILD. 

It's unclear how long those other agreements lasted, but Caldwell's agreement, surely, did not survive the settlement of the lawsuit regarding BUILD's pre-apprenticeship training program.

Who's left?

As the article notes, several of the signatories have vanished, not filing any tax reports for years.

Of the remaining active signatories, well, they're not talking:

Neither DBNA nor MHANY director Ismene Speliotis, who helped design the housing provisions of the CBA while at ACORN, replied to calls and emails seeking comment.

Paths to oversight

As the article notes, the best path to oversight is to involve municipal agencies, and communities that maintain good organizing.

I'd say there are two other factors. One is a reasonably curious press--but press coverage has vastly diminished.

Another is the role of elected officials. Even though they can't officially weigh in on an agreement outside the governmental system, they could use their bully pulpit or otherwise apply pressure on a developer as it seeks other approvals or favors. They haven't.

In West Harlem, more transparency

The article notes:

Other CBAs in New York City have faced similar implementation hurdles. After Columbia University agreed to give $10 million to the West Harlem Development Corporation to build affordable housing as part of the CBA for its city-authorized takeover of multiple blocks of Manhattanville for a campus expansion, only $100,000 of that total was spent in the first six years.

That's a significant flaw--and a setback for those expecting such housing. 

That said, Columbia is light-years ahead of Atlantic Yards regarding transparency, though you can't quite tell from this paragraph: 

As the only signatory to the Manhattanville CBA, it’s been largely up to WHDC to monitor follow-through on the agreement’s provisions. Community Board 9 vice-chair Victor Edwards, who heads a committee that has been looking into the CBA’s provisions, says the board has taken it upon itself to send questions to Columbia or dig through its regular reports to the state to ferret out what commitments the university has made and whether it has met them.

Those regular reports don't necessarily confirm that Columbia has met all its promises--I haven't studied the issue enough. 

But they offer copious documentation on those commitments, as indicated in the screenshot at right. That's an 82-page implementation report. Nothing of the sort has been provided publicly regarding Atlantic Yards/Pacific Park