The process Columbia used to negotiate parts of its Manhattanville campus expansion plan with neighborhood residents and local politicians is deeply flawed, according to the New York City Bar Association.
In a March 8 report on the use of “community benefits agreements” citywide, the Bar Association—an organization that promotes the interests of New York City lawyers, with a focus on social justice issues—criticized the CBA negotiation process and called for city regulation of it.
A CBA is a legally binding document in which a developer promises certain perks to offset the impact of construction on the local neighborhood. The final agreement is the product of negotiations between the developer and an ad hoc group that is intended to represent the full spectrum of community interests. Though this has become an increasingly popular method in recent years, some say that because the process lacks standard criteria, it does not always produce agreements favorable to the affected constituencies.
In 2006, in consultation with local groups representing particular constituencies, such as tenants’ and small business associations, the local Community Board 9 selected 13 individuals to serve on the West Harlem Local Development Corporation. Representatives for seven elected officials were added later.
The LDC met with University officials over a three-year period to negotiate an agreement under which Columbia will provide $150 million for, among other things, affordable housing and a new public school. It has also promised to give priority to West Harlem residents for jobs created by the project. The University designated certain areas up front that would receive funding, but promised $76 million of the total for the LDC to allocate at its discretion.
The Bar Association report raises the concern that the groups negotiating CBAs on behalf of the community are not always fully representative of it. Poorly negotiated CBAs, the report says, may “compromise sound planning and land use regulation” and be difficult to enforce.
“In some cases, the people who negotiate the CBAs are neither elected nor appointed by the community or its elected representatives,” the report states, though this was not so in Manhattanville, where LDC members were appointed through CB9. “Some community members fear that they have no way of holding these groups accountable for the negotiations.”
It continues, “None of the CBAs in the City have been put to a vote of the community as a whole, and some of the CBAs negotiated were not made publicly available until recently.”
The only community-based vote on the Manhattanville CBA was in Community Board 9, but the final decision on the negotiations was up to the LDC, which included two CB9 members. This structure allowed the agreement to pass—the final LDC vote was 15 in favor, two against, with three abstentions—despite a unanimous CB9 executive board vote in opposition to it.
To address such discrepancies, the report recommends that the city not consider CBAs in deciding whether to approve development proposals, that it “give no ‘credit’ to developers for benefits they have provided through CBAs,” and that it “play no role in encouraging, monitoring, or enforcing” the agreements.
Columbia’s “197-c” development proposal had to go through the city’s Uniform Land Use Review Procedure, which involved votes by CB9, the City Planning Commission, and the New York City Council, which granted final approval for the project in December 2007.
The Bar Association report, though, questions whether the CBA process in general might reduce opposition to a project and allow it to pass through ULURP with insufficient consideration of the negative components.
But when the LDC was established in 2006, Jordi Reyes-Montblanc—then the CB9 chairman, who died before the CBA negotiations were completed—directly addressed such concerns, telling Spectator, “There is no possibility of a quid pro quo, that we’ll pass the ULURP if they [the LDC] do this or that.”
Kenneth Fisher, chair of the Bar Association’s Land Use, Planning & Zoning Committee, said in a press release accompanying the report, “The current ad hoc approach [without governmental regulation] is sending mixed signals to both the community and developers.”
University spokesperson Victoria Benitez defended the CBA process in an emailed statement on Tuesday, writing, “We have worked diligently with the West Harlem Local Development Corporation and its broadly representative board to develop a robust community benefits agreement that all stakeholders anticipate will result in a significant, long-term investment in a wide array of local health, education, social and economic needs as determined by members of the community themselves.”
The University would not comment on the specific criticisms and recommendations made in the report. Phone calls and emails to LDC officials—including president Julio Batista and member Donald Notice—were not returned, and two other members, Maritta Dunn and Vicky Gholson, declined to comment because they had not read the report.
“I think it [the CBA process] certainly started out with a well-intentioned concept of trying to get a broad-based spectrum of interests represented,” Tom DeMott, CC ’80 and a member of the local activist group Coalition to Preserve Community, said. “But … the elected officials who were originally not supposed to be on the board essentially invaded the LDC.”
DeMott was initially an LDC member, but he—along with local resident Luisa Henriquez and Tuck-It-Away Self-Storage owner Nick Sprayregen, who currently has a lawsuit pending in the New York State Court of Appeals challenging the use of eminent domain for the project—resigned in 2007, claiming the CBA process was “rigged” in favor of Columbia.
LDC member Susan Russell, chief of operations for City Council member Robert Jackson, who supports Columbia’s expansion plans, countered in an interview with the New York Observer in 2007 that the elected officials were added to “broaden the base of representation.”
Spokespeople for Jackson and State Senator Bill Perkins—who, in contrast to Jackson, continues to oppose Columbia’s plans—could not be reached for comment by press time.
In an interview over the weekend, DeMott cited as one example of an alleged lack of proper representation on the LDC the fact that only one member was Hispanic.
But current CB9 chair and LDC member Pat Jones defended the group’s composition and the CBA process as a whole, noting that the LDC included members representing each area—tenants, business owners, residents, etc.—that would be most affected by the expansion.
On the issue of enforcement, Jones noted that it is hard to judge the strength of enforcement provisions until they are actually needed. “It’s very difficult to predict the future and make suppositions with regard to enforceability when something has not yet been called into question,” she said. “If there’s a claim of non-action or violation of the agreement, then you take the further steps.”
When asked whether he believed, as the report recommended, that the city should establish a uniform CBA process, DeMott said, “You need to have good planning, and if you had that, then you wouldn’t have the need for community benefits agreements.”
Jones countered, “In a perfect world, I’m sure there are alternatives ensuring that a community does indeed join in any benefits, improvements, enhancements [from development] … but they haven’t surfaced yet.”