Community benefits agreements: A new local government tool or another variation on the exactions theme?

University of Chicago Law Review

Volumn 77, Issue 1, 2010, Pages 5-35

  Been, Vicki ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 76649100948     PISSN: 00419494     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (161)

1. Julian Gross, Greg LeRoy, and Madeline Janis-Aparicio, Community Benefits Agreements: Making Development Projects Accountable 9 (Good Jobs First and the California Partnership for Working Families, May 2005), online at http://www.goodjobsfirst.org/pdf/cba2005final.pdf (visited Nov 9.2009).
2. Id at 9-10.
3. William Ho, Community Benefits Agreements: An Evolution in Public Benefits Negotiation Process, 17 J Affordable Hous & Comm Dev L 7, 9 (2008);
4. Vicki Been, Compensated Siting Proposals: Is It Time to Pay Attention?. 21 Fordham Urban L J 787,794-95 (1994).
5. See text accompanying notes 11-20.
6. See generally Harold Meyerson, No Justice, No Growth: How Los Angeles Is Making Big-Time Developers Create Decent Jobs. 17 Am Prospect 39 (Nov 5, 2006) (noting that CBAs have been negotiated for at least forty-eight development projects).
7. See Been, 21 Fordham Urban L J at 800-22 (cited in note 3).
8. Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 10-11 (cited in note 1).
9. See, for example, Matthew Schuerman, Mr. Bollinger's Battle, NY Observer 48 (Feb 19, 2007).
10. See, for example, Atlantic Yards Development Co, Community Benefits Agreement 54 (Brooklyn United for Innovative Local Development. June 27, 2005), online at http://www.buildbrooklyn.org/pr/cba.pdf (visited Nov 9, 2009) (showing Mayor Michael Bloomberg signing as "witness").
11. See also Julian Gross, Community Benefits Agreements: Definitions, Values, and Legal Enforceability, 17 J Affordable Hous & Comm Dev L 35, 42 (2008) (noting that the Bronx borough president and three members of the city council signed the New York Yankees CBA).
12. See, for example, Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 29 (cited in note 1).
13. Negotiations in 1998 regarding the Hollywood and Highland Center (which hosts the annual Academy Awards in its Kodak Theater) also might qualify as a CBA. However, because those negotiations involved a city council member, the agreement may be more appropriately characterized as an exaction.
14. See Patricia E. Salkin, Understanding Community Benefit Agreements: Opportunities and Traps for Developers, Municipalities and Community Organizations, in Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation 1407, 1412 (ALI-ABA 2007).
15. In any event, the Staples agreement is considered by many to be the first CBA. See Patricia E. Salkin and Amy Lavine, Understanding Community Benefits Agreements: Equitable Development, Social Justice and Other Considerations for Developers, Municipalities and Community Organizations. 26 UCLA J Envir L & Pol 291,301 n 26 (2008).
16. Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 14, 114 (cited in note 1).
17. Id.
18. Ho, 17 J Affordable Hous & Comm Dev L at 20-21 (cited in note 3).
19. Id at 21.
20. Id.
21. Community Benefits Program for the Los Angeles Sports and Entertainment District Project A2-A11 (Strategic Actions for a Just Economy, May 29, 2001), online at http://www.saje.net/atf/cf/%7B493B2790-DD4E-4ED0-8F4E-C78ESF3A7561%7D/ communitybenefits.pdf (visited Nov 9,2009).
22. Greg LeRoy and Anna Purinton, Community Benefits Agreements: Ensuring That Urban Redevelopment Benefits Everyone 8 (Neighborhood Funders Group, Aug 2005), online at http://www.nfg.org/publications/community-benefits-agreements. pdf (visited Nov 9, 2009).
23. For a reprint of the SunQuest Industrial Park Community Benefits Agreement, the NoHo Commons Community Benefits Agreement, and the Marlton Square Community Benefits Agreement, see the Partnership for Working Families website, online at http://www.communitybenefits.org/article.php?list=type&type=155 (visited Nov 9, 2009).
24. See also Community Benefits Agreement: LAX Master Plan Program 6-33 (Los Angeles Alliance for a New Economy, 2004), online at http://communitybenefits. org/downloads/LAX%20Community%20Benefits%20Agreement.pdf (visited Nov 9, 2009). For discussions of the LAX CBA, see Salkin and Lavine. 26 UCLA J Envir L & Pol at 304-06 (cited in note 11);
25. Salkin, Understanding Community Benefit Agreements at 1413-14 (cited in note 11).
26. Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 32 (cited in note 1) (arguing that CBAs are now the "norm for large, subsidized projects in the city").
27. In San Diego, for example, twenty-seven housing, labor, community, environmental, and religious groups formed ACCORD (A Community Coalition for Responsible Development) and entered into a CBA in 2005 with the developer of the new stadium for the San Diego Padres, PETCO Park.
28. Salkin, Understanding Community Benefit Agreements at 1414-15 (cited in note 11). See Ballpark Village Community Benefits Agreement 5-19 (Center on Policy Initiatives, Sept 20, 2005), online at http://www.onlinecpi.org/ downloads/BPV%20CBA%20text.pdf (visited Nov 9, 2009).
29. Amy Lavine, Atlanta Beltline Community Benefits. Community Benefits Agreements Blog (May 19, 2008), online at http://communitybenefits.blogspot.com/ 2008/05/atlanta-beltline-community-benefits.html (visited Nov 9, 2009).
30. Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 5 (cited in note 1).
31. Salkin and Lavine, 26 UCLA J Envir L & Pol at 318 (cited in note 11).
32. A CBA was negotiated in Chicago, contingent on the city being selected as the host for the 2016 Olympic Games. The Chicago negotiations were nullified when Rio de Janeiro was chosen to host the Olympics.
33. See Angela Caputo, Chicago 2016 Benefits Agreement a "Good Start," Progress Illinois Blog (Mar 27, 2009), online at http://www.progressillinois.eom/2009/3/27/benefits-agreement-good-start (visited Nov 9, 2009) (explaining that community activists negotiated the CBA, which would have required the development of affordable housing and jobs for the residents living near the planned 2016 Olympic Games host site).
34. See Ho, 17 J Affordable Hous & Comm Dev L at 21-23 (cited in note 3).
35. See Ann K. Pikus, Wanted: Affordable Housing in Wisconsin, 2007 Wis L Rev 201, 217-18.
36. See also Brenda Parker, This Land Is Our Land: The Battle for a Community Benefits Agreement in Milwaukee *1 (unpublished paper. University of Wisconsin-Madison, May 2005), online at http://www.laborstudies.wayne.edu/power/ downloads/Parkeast.pdf (visited Nov 9, 2009).
37. See Salkin, Understanding Community Benefits Agreements at 1421-22 (cited in note 11) (discussing a CBA related to creating a citywide Wi-Fi network).
38. Oscar Pedro Musibay. Miami Commissioners OK Museum Leases at Bicentennial Park, South Florida Bus J (Dec 19, 2008). online at http://southflorida. bizjournals.com/southflorida/stories/2008/12/22/storyll.html (visited Nov 9, 2009).
39. Amy Lavine, Yale-New Haven CBA, Community Benefits Agreements Blog (Jan 30, 2008), online at http://communitybenefits.blogspot.com/2008/01/yale-new- haven-cba.html (visited Nov 9, 2009).
40. Jaime Guillet, Historic Lincoln Beach Needs City OK for New Era, New Orleans City Business (Jan 15. 2008), online at http://www. neworleanscitybusinesscom/viewFeature.cfm?recid=966 (visited Nov 9, 2009).
41. A CBA was successfully negotiated in Seattle, but the development project was canceled due to deteriorating economic conditions. See Emily Heffter. $300M Project at Seattle Goodwill Site Cancelled, Seattle Times (Apr 24. 2009), online at http://seattletimes.nwsource.com/html/localnews/2009116421- webgoodwill24.html (visited Oct 29, 2009);
42. Stuart Eskenazi, Coalition Talks Reach Deal on Goodwill Site, Seattle Times B1 (Sept 2,2008).
43. Amy Lavine. Washington D.C. Shaw District CBA, Community Benefits Agreements Blog (Jan 30, 2008). online at http://communitybenefits.blogspot.com/ 2008/01/washington-dc-shaw-district-cba.html (visited Nov 10, 2009).
44. Salkin and Lavine. 26 UCLA J Envir L & Pol at 318 (cited in note 11): Gross, LeRoy. and Janis-Aparicio, Community Benefits Agreements at 5, 85-87 (cited in note 1). The best source of information about CBAs currently in force or being negotiated is the excellent blog maintained by Amy Lavine, a staff attorney at the Government Law Center of Albany Law School. See Amy Lavine, Community Benefits Agreements Blog, online at http://communitybenefits.blogspot. com (visited Nov 10, 2009).
45. In Minneapolis, for example, the winner of the bid to develop a citywide wireless Internet service negotiated a CBA with the Digital Inclusion Coalition that commits the developer to contribute to a Digital Inclusion Fund to promote affordable Internet access, low-cost hardware, local content, and training. The Digital Inclusion Coalition, Recommendations for the Wireless Minneapolis Community Benefits Agreement 9-15 (June 2006), online at http://www. digitalaccess.org/pdf/CBA-Two-Sided-6-27.pdf (visited Nov 10,2009).
46. See Lee Anne Fennell, Hard Bargains and Real Steals: Land Use Exactions Revisited, 86 Iowa L Rev 1, 3 (2000);
47. Judith Welch Wegner, Moving toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals, 65 NC L Rev 957, 977-78 (1987);
48. Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 Cal L Rev 837,879 (1983).
49. Rose, 71 Cal L Rev at 894-900,908-10 (cited in note 36).
50. See, for example, Midtown Properties, Inc v Township of Madison. 172 A2d 40. 44 (NJ Super Ct 1961) (recognizing that contract zoning allows the "zoning power ⋯ [to be] prostituted for the special benefit" of the developer), affd. 189 A2d 226.227 (NJ Super Ct 1963); City of Knoxville v Ambrister. 263 SW2d 528, 530 (Tenn 1953) (asserting that contract zoning destroys "that confidence in the integrity and discretion of public action which is essential to the preservation of civilized society"). For more recent expressions of such concerns, see Snyder v Board of County Commissioners. 595 So 2d 65,73 (Fla App 1991) ("[L]ocal governments frequently use governmental authority to make a rezoning decision as leverage in order to negotiate, impose, coerce and compel concessions and conditions on the developer."), revd. 627 So 2d 469,476 (Fla 1993).
51. Wegner, 65 NC L Rev at 982-86 (cited in note 36);
52. Bruce R. Bailey, Comment. The Use and Abuse of Contract Zoning. 12 UCLA L Rev 897,898-900 (1965).
53. Municipal Art Society v City of New York, 522 NYS2d 800.803-04 (NY S Ct 1987) (void ing the city's sale of a site to a developer because the developer was promised a $57 million price reduction if the city did not provide a zoning bonus to allow for increased floor space).
54. Vicki Been, "Exit" As a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 Colum L Rev 473, 478-83 (1991) (providing an overview of exactions).
55. Id.
56. Id.
57. See, for example, Pioneer Trust and Savings Bank v Village of Mount Prospect, 176 NE2d 799, 803 (111 1961) (finding that an ordinance requiring a landowner to dedicate part of his property for the construction of a school in exchange for receiving a permit to construct residential units was "an unreasonable condition" and "purports to take private property for public use without compensation"); Gulest Associates v Town ofNewburgh, 209 NYS2d 729, 733 (NY S Ct 1960), affd. 15 AD2d 815 (NY App 1962) (holding an ordinance requiring that a landowner pay for a park, playground or other recreational space to be built before the town granted permission to build on his property "permits the taking of property without due process of law and ⋯ must therefore be declared illegal, null and void").
58. See Been, 91 Colum L Rev at 475 (cited in note 41).
59. See Nolhm v California Coastal Commission, 483 US 825,837 (1987).
60. Dolan v City ofTigard, 512 US 374,391 (1994) ('"[R]ough proportionality' best encapsulates what we hold to be the requirement of the Fifth Amendment ⋯ the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.").
61. NY Envir Conserv Law § 8-0109 (McKinney) (setting out the procedure for "preparation of environmental impact statements").
62. Consider Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 Colum L Rev 903, 908 (2002) (by redefining a project's impact through backdoor incorporation of mitigation measures).
63. See, for example. Town of Henrietta v Department of Environmental Conservation, 430 NYS2d 440, 445-48 (NY App 1980).
64. CBAs also should be viewed against the doctrines limiting the reach of neighborhood consent provisions in zoning ordinances. Such provisions require developers to secure the consent of some percentage of neighboring property owners before they can develop the property. The requirements have met with considerable skepticism, and the Supreme Court's limited jurisprudence on neighbors' consent provisions suggests that they are unconstitutional if neighbers are able to exercise unbridled discretion, at least if the proposed use is not a noxious one.
65. See Seattle Title Trust Co v Roberge. 278 US 116, 120-22 (1928) (determining that an ordinance which allows for the erection of a philanthropic home for children or the elderly only when two-thirds of the nearby property owners consent violates the Fourteenth Amendment);
66. Eubank v City of Richmond, 226 US 137, 140-44 (1912) (holding that the Fourteenth Amendment is violated by a measure allowing neighboring property owners to impose building restrictions on adjoining lots).
67. But see Thomas Cusaek Co v City of Chicago, 242 US 526, 527-31 (1917) (holding that an ordinance allowing the placement of buildings only when written consent is obtained from the neighboring property owners is constitutional and attempting to distinguish this holding from Eubank).
68. See also A. Dan Tarlock, An Economic Analysis of Direct Voter Participation in Zoning Change. 1 UCLA J Envir L & Pol 31,37-41 (1980).
69. Communities in many cities have turned to 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, for example, Ho. 17 J Affordable Hous & Comm Dev L at 11-19 (cited in note 3).
70. See New York City Charter § 2800(d). See also Community Board Assistance Unit, Handbook for Community Board Members 23-48 (NYC Mayor's Office, 2009), online at http://www.nyc.gov/html/cau/downloads/pdf/handbook-2009.pdf (visited Nov 10.2009).
71. See Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 4 (cited in note 1).
72. See, for example, Frank Lombardi. Back off Bloomy! Rally at City Hall Rips Community Board Cuts, NY Daily News 29 (June 10, 2009) (describing how elected officials and community leaders protested the mayor's proposed 11 percent decrease for community board budgets);
73. Helen Rosenthal, Cutting Back on Democracy, Gotham Gazette (Mar 16, 2009), online at http://www.gothamgazette.com/article/fea/20090316/202/2854 (visited Nov 10, 2009) (quoting a community board chairwoman as saying that "community boards have received no meaningful increases in their budgets since 1980 making it impossible for them to ⋯ keep up with rising costs" and that budget cuts will "diminish the boards' ability to develop zoning and infrastructure plans, [ ] to analyze and conduct public review of development proposals ⋯ [and] reduce the boards' ability to communicate with and involve residents, businesses and institutions");
74. Lincoln Anderson, Stringer Wants Reform, New Blood on Community Boards, The Villager (Feb 22, 2006). online at http://www.thevillager.com/villager-147/ stringerwantsreform.html (visited Nov 10, 2009) ("[Pjroblems with community boards have included vacancies left too long unfilled, as well as a highly politicized appointment process and 'ad-hoc removals' of board members Other problems ⋯ include unreported lobbying and lax oversight and enforcement of conflict-of-interest rulings.")
75. Robin Shulman, Report Finds Disparity in City Aid to Community Boards, NY Times B2 (June 20, 2005) ("A report on Manhattan community boards found that there is a wide disparity in resources and services across the borough, and that poorer districts sometimes receive far less city money than wealthier ones.");
76. Derek Alger, Issue of the Week: Community-Based Planning. Gotham Gazette (Mar 25, 2002). online at http://www.gothamgazette.com/iotw/communityboards (visited Nov 10, 2009) (discussing the problems New York City communities have encountered in trying to develop plans for their own future development).
77. See Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreement at 3-5 (cited in note 1).
78. New York Public Interest Research Group, Memo: ULURP Should Apply to the Atlantic Yards Project (June 18, 2004), online at http://www.developdontdestroy. org/pubfc/nypirg-ULURP.pdf (visited Nov 10, 2009).
79. Urban Renewal: Up in Arms about the Yards. Economist 33 (Sept 23, 2006).
80. See, for example, Tom Angotti, Bronx Terminal Market and the Subverting of the Land Use Review Process, Gotham Gazette (Dec 2005), online at http://www.gothamgazette.com/article/landuse/20051213/12/1680 (visited Nov 10, 2009) (discussing the trend for large-scale development projects to be approved outside of the normal land use process).
81. See Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 5-6 (cited in note 1).
82. See Nollan v California Coastal Commission, 483 US 825, 837 (1987).
83. See Dolan v City of Tigard, 512 US 374, 391 (1994).
84. See text accompanying notes 16-18.
85. See Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 5-6 (cited in note 1).
86. Ho, 17 J Affordable Hous & Comm Dev L at 9 (cited in note 3).
87. 483 US 825 (1987).
88. 512 US 374 (1994).
89. See text accompanying notes 46-47.
90. See text accompanying notes 46-47, 99-105.
91. See Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 10 (cited in note 1).
92. Salkin and Lavine. 26 UCLA J Envir L & Pol at 292 (cited in note 11).
93. NYC Rules, title 62, ch 2. See generally. New York City Department of City Planning. The Uniform Land Use Review Procedure (ULURP), online at http://www.nyc.gov/html/dcp/html/luproc/ulpro.slitml (visited Nov 10, 2009).
94. New York City Charter § 2800(a)(1). The borough president must fill at least half of the seats with nominees from the council members representing the community district.
95. New York City Charter § 192(a).
96. See Gross, LeRoy, and Janis-Aparicio. Community Benefits Agreements at 11 (cited in note 1) ("CBAs are negotiated between leaders of community groups and the developer." but noting that government agencies and staff may play a role in negotiations, especially "[i]n unusual circumstances, [when] a government entity may in fact be the 'developer' of a project ⋯ [and therefore] be central to the negotiations and a party to the CBA.").
97. NYC Rules, title 62, § 2-03(a)(1).
98. NYC Rules, title 62, § 2-06(a).
99. NYC Rules, title 62, § 2-02(a)(2).
100. Some, perhaps most, of the community groups negotiating CBAs, however, have tried to maintain transparency regarding their negotiation process and the substance of those negotiations.
101. See, for example, Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 22 (cited in note 1).
102. Some of the CBAs negotiated in New York City have not been made readily accessible to the public. If they are kept in the files of government agencies as part of the review process, they may be subject to state freedom of information laws. See Washington Post Co v New York State Insurance Department, 463 NE2d 604, 606 (NY 1984) (holding that under the plain text of the state's Freedom of Information Law, the term public records includes any "information kept, held, filed, produced ⋯ by. with or for an agency"). Other states allow access to records only when the records "have some relation to the official duties of the public officer that holds the record." Salt River Pima-Maricopa Indian Community v Rogers, 815 P2d 900,907 (Ariz 1991).
103. Charles V. Bagli, Deal Is Signed for Nets Arena in Brooklyn, NY Times A1 (Mar 4, 2005).
104. Some have criticized members of the community boards who negotiated with FCR, arguing that their participation granted FCR's negotiations an appearance of greater legitimacy.
105. See Hugh Son, Owner Neglecting Nets, Say Critics, NY Daily News 1 (Nov 29, 2004) ("Several community board members have protested their leadership's involvement in talks with Forest City Ratner to secure neighborhood benefits, a move some view as lending support to the controversial project.").
106. Mafruza Khan and Brad Lander, eds, Slam Dunk or Airball? A Preliminary Planning Analysis of the Brooklyn Atlantic Yards Project 14 (Pratt Institute Center for Community and Economic Devel opment, Mar 2005), online at http://dddb.net/documents/whitepapers/PICCED/bay-report.pdf (visited Nov 10, 2009).
107. See id at 16; Develop Don't Destroy Brooklyn. About the Ratner Plan: What is Bruce Ratner's "Atlantic Yards'' Proposal? (June 11, 2009), online at http://www.dddb.net/php/aboutratner.php (visited Nov 10, 2009);
108. Bagli, Deal Is Signed for Nets Arena. NY Times at A1 (cited in note 81) (quoting the leader of the Prospect Heights Action Coalition, who explained the group's view that the "project is too big," would amount "to supersiz[ing] Brooklyn[,]" and would result in "1,000 people [ ] los[ing] their jobs or homes because of the project").
109. See Develop Don't Destroy Brooklyn, Organizations That Are Opposed to or Deeply Concerned about the Proposed Forest City Ratner Nets Arena, 16 Highrise Tower Proposal for Brooklyn (2009), online at http://www.dddb.net/php/ opposition.php (visited Nov 10, 2009)
110. Nicholas Confessore, The People Speak (Shout, Actually) on Brooklyn Area Project, NY Times B1 (Oct 19, 2005).
111. Lance Freeman, Atlantic Yards and the Perils of Community Benefit Agreements, Planetizen Contributor Blog (May 7,2007), online at https://www.planetizen.com/node/24335 (visited Nov 10, 2009) (criticizing the Atlantic Yards CBA).
112. See also New York City Council Committee on Economic Development, Public Hearing on the Proposed Brooklyn Atlantic Yards Project (May 6, 2005) (comments of Bettina Damiani, Project Director, Good Jobs New York) ("Damiani Comments"), online at http://www.goodjobsny.org/testimony-bay-5-05.htm (visited Nov 10, 2009) ("The BAY project has so far demonstrated one of the major weaknesses of CBAs-in terms of 'community' input, they are only as broadly representative as the groups that negotiate them.").
113. Juan Gonzalez, BUILD Admits Ratner Funding, NY Daily News 22 (Oct 18, 2005).
114. Matthew Schuerman, Ratner Sends Gehry to Drawing Board. NY Observer 13 (Dec 5, 2005) (reporting that only two of the eight groups that signed the Atlantic Yards CBA were incorporated prior to the negotiations).
115. Nicholas Confessore. To Build Arena in Brooklyn, Developer First Builds Bridges, NY Times A3 (Oct 14, 2005).
116. Matthew Schuerman, Out of the Woods?. NY Observer (Oct 19, 2005), online at http://www.observer.com/node/33929 (visited Nov 10, 2009).
117. See also Matthew Sehuermann, Ratner's Gift. NY Observer (June 9, 2006), online at http://www.observer.com/node/34828 (visited Nov 10, 2009).
118. Amy Lavine, Atlantic Yards CBA, Community Benefits Agreements Blog (Jan 29, 2008), online at http://communitybenefits.blogspot.com/2008/01/atlantic- yards-cba.html (visited Nov 10, 2009).
119. See also Freeman, Atlantic Yards (cited in note 86);
120. Kenneth Fisher, Complex Policy Choices in Managing Growth, 237 NY L J S8 (Jan 16, 2007).
121. Damiani Comments (cited in note 86); Gross. LeRoy, and Janis-Aparicio, Community Benefits Agreements at 22-23 (cited in note 1). For evidence of how communities fared in similar negotiations over undesirable land uses, see Been, 21 Fordham Urban L J at 811-22 (cited in note 3).
122. See Been, 21 Fordham Urban L J at 825-26 (cited in note 3) (discussing how confidentiality agreements over compensated siting agreements hampered communities bargaining over such agreements).
123. See text accompanying notes 87-90.
124. See, for example, Richard L. Revesz and Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health 55-129 (Oxford 2008) (discussing various theoretical challenges to accurate measurement of benefits);
125. Eduardo M. Peñalver. Land Virtues, 94 Cornell L Rev 821, 846-53 (2009) (discussing cost-benefit analysis in the context of land valuation).
126. Damiani Comments (cited in note 86) ("Community residents who have not been part of the negotiation, but have expressed concerns about [negotiated benefits] ⋯ have not had a way to include these concerns in the negotiation process [Wjithout broad, cross-cutting organizing, such 'CBAs' can become a mechanism tor dividing the community rather than uniting it.").
127. See Atlantic Yards Development Co. Community Benefits Agreement at § VI(B)(2)(b) (cited in note 9) (relying on "governmental contributions tor site development and affordable housing subsidies"); id at exhibit D, annex A: [T]he ACORN/ATLANTIC YARDS 50/50 Program will utilize existing Housing Devel-opment Corporation (HDC) bond programs and Department of Housing Preservation and Development (HPD) programs, with necessary modifications. The program may also utilize existing Housing Finance Agency (HFA). Affordable Housing Corporation (AHC) or Housing and Urban Development (HUD) programs, with necessary modifications.
128. It is telling that those charged with administering New York City's affordable housing programs, such as the Department of Housing, Preservation and Development, were silent about the city's willingness to provide the subsidies that the Atlantic Yards CBA anticipated would enable the developer to provide the affordable housing "promised" in the agreement. See generally New York City Department of Housing Preservation and Development. Mayor Michael R. Bloomberg, Forest City Rattier CEO and President Bruce Ratner and Civic Leaders Sign Community Benefits Agreement (June 27, 2005), online at http://www.nyc.gov/html/hpd/html/pr2005/mayors-release248-05-pr.shtml (visited Nov 18, 2008).
129. For a discussion of whether, and how, Nollan and Dolan apply to takings challenges brought against development impact fees, see Michael B. Kent, Jr, Theoretical Tension and Doctrinal Discord: Analyzing Development Impact Fees as Takings. 51 Wm & Mary L Rev *37-50 (forthcoming 2010), online at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1456371 (visited Oct 29, 2009) (proposing a hybrid test combining Nollan and Dolan with standard non-exaction takings claim analysis and then applying this test to three hypothetical fact patterns).
130. Mark Fenster, Regulating Land Use in a Constitutional Shadow: The Institutional Contexts of Exactions. 58 Hastings L J 729,762-63 (2007).
131. See also Andrea B. Pace, Note, Utah Leads the Way in Regulating Land Use Exactions through Statute but Still Has Room to Improve. 21 BYU J Pub L 209, 221-25 (2007).
132. 483 US at 837 (referring to a requirement that an owner provide an easement across part of his property as a condition of granting a permit to build a house as "an out-and-out plan of extortion").
133. See, for example, Bill Egbert, Coalition Waging Battle with Armory Developer for Kingsbridge Benefits, NY Daily News 72 (Apr 25, 2008).
134. See, for example, Alex Kratz, Diaz Stalls on Amory [sic] Project, Waits for Response on Draft Benefits Agreement from Developer, Bronx News Network (Aug 21, 2009), online at http://www.bronxnewsnetwork.org/2009/08/diaz-stalls-on- amory-project-waits-for.html (visited Nov 10, 2009).
135. See, for example, Timothy Williams and Ray Rivera. $7 Billion Columbia Expansion Gets Green Light. NY Times A1 (Dec 20, 2007);
136. Columbia Office of Communications and Public Affairs, Columbia, Local Development Corporation Reach Long-Term Collaboration Agreement on Enhanced Education, Health Care, Jobs, Affordable Housing and Other Civic Programs (Dec 19, 2007), online at http://www.columbia.edu/cu/news/07/12/agreement.html (visited Nov 10. 2009);
137. Scott M. Stringer, BP Stringer Announces Agreement with Columbia University to Protect and Enhance West Harlem Community as Part of Columbia Expansion Proposal (Sept 26, 2007). online at http://neighbors.columbia.edu/ pages/manplanning/pdf-files/Stringer%20AnncPrposl%20SP.pdf (visited Nov 10, 2009) (announcing the Manhattan borough president's support for Columbia University expansion and that Columbia agrees to provide specific benefits to the neighboring area).
138. See, for example, Seattle Title Trust Co v Roberge. 278 US 116, 120-22 (1928) (holding that an ordinance requiring the consent of neighboring property owners before a building permit would be issued violated the Due Process Clause by delegating authority over permits from the government to local landowners); Thomas Cusack Co v City of Chicago, 242 US 526, 527-31 (1917) (holding to be constitutional an ordinance restricting the erection of billboards but pro-viding for an exception if one-half of the neighboring property owners choose to lift the restriction because the restriction was imposed by the government rather than the neighbors); Eubank v City of Richmond, 226 US 137,140-44 (1912) (holding that an ordinance allowing two-thirds of the property owners on a street to regulate how other owners could use their property on that street, without any standards or government oversight, violated the Equal Protection and Due Process Clauses).
139. See generally, for example, Prin v Council of Municipality of Monroeville. 645 A2d 450 (Pa Commw Ct 1994) (holding that a councilman's appearance before an administrative body to oppose property development plan should have precluded him from participating in the council's vote on the applications).
140. 483 US at 837 n 5.
141. Id.
142. Confessore, The People Speak, NY Times at A1 (cited in note 89).
143. Terry Pristin, In Major Projects, Agreeing Not to Disagree. NY Times C6 (June 14, 2006); BUILD: Bribe Us in Large Denominations, noLandGrab Blog (Sept 29, 2005), online at http://www.nolandgrab.org/archives/2005/09/nolandgrab-comm- 1.html (visited Nov 10, 2009).
144. Salkin, Understanding Community Benefits Agreements at 1423 (cited in note 11).
145. Salkin and Lavine, 26 UCLA J Envir L & Pol at 324 (cited in note 11);
146. Gross, LeRoy, and Janis-Aparicio. Community Benefits Agreements at 69-72 (cited in note 1).
147. Atlantic Yards Development Co, Community Benefits Agreement at 16 (cited in note 9).
148. Id at 17.
149. Id at 13 ("The Developers will use good faith efforts to meet the overall goal⋯"); id at 16 ("Developers ⋯ will work ⋯ to the extent feasible, to have [Minority and women] employees ⋯ "); id at 40 ("Developers will use good faith efforts to meet the overall goal ⋯ be seeking to employ persistently unemployed young people."); id at 41 ("Developers shall ⋯ dedicate such resources as it seems reasonably necessary to fulfill its obligations hereunder.").
150. Id at 27 (describing the agreed upon "Community Amenities and Facilities").
151. Atlantic Yards Development Co, Community Benefits Agreement at 14 (cited in note 9).
152. Gross, Leroy, and Janis-Aparicio, Community Benefits Agreements at 69-72 (cited in note 1).
153. See id at 23.
154. Id at 70-71.
155. Id.
156. See Gross, Leroy, and Janis-Aparicio, Community Benefits Agreements at 70-71 (cited in note 1).
157. Id.
158. Erik Engquist, Developers' Deal-Making Escalates: Community Benefit Agreements Become Costly as Bloomberg Endorses Concept, Grain's NY Bus 1 (Mar 27, 2006).
159. See Nolan M. Kennedy, Jr. Note, Contract and Conditional Zoning: A Tool for Zoning Flexibility. 23 Hastings L J 825, 836-37 (1972). Consider City of Knoxville v Atnbrister, 263 SW2d 528,530-31 (Tenn 1953) (holding that a developer's promise to dedicate land tor use as a park in exchange for an amendment to the city zoning ordinance was illegal and would not be enforced).
160. Gross, LeRoy, and Janis-Aparicio, Community Benefits Agreements at 10 (cited in note 1); Salkin, Understanding Community Benefit Agreements at 1409 (cited in note 11).
161. Gross, LeRoy, and Janis-Aparicio. Community Benefits Agreements at 70-71