The Association of the Bar of New York City released a report March 8, 2010 critical of the city's use of Community Benefits Agreements (CBAs) in its land use process.

The 48-page report concluded that "the dangers CBAs pose to communities and to the city are serious, and in many quarters, there is considerable dissatisfaction and unease with the CBAs that have been negotiated in the City thus far."

"On the other hand," it continued, "the rise of CBAs across the country and in New York City reflects the belief of many communities that current land use processes fail to adequately consider or protect their interests."

It recommended that the Deputy Mayor for Economic Development work with various city agencies and officials to "use the lull in development activity caused by the economic downturn to reconsider how the land use approval process and the environmental review process could be refined to provide neighborhoods with a more meaningful and satisfying role in the approval process."

It said that many authors of the report "would prefer to avoid the use of CBAs," but "some members fear that CBAs cannot be banned, either legally or practically, and worry that if the City were to adopt a ban on CBAs, developers would then strike agreements with community groups with even less transparency and accountability than has been the case in the CBAs negotiated thus far."

"The City's ad hoc approach," it maintained, "is sending mixed signals to both developers and communities." "It is our recommendation that the City announce that it will not consider CBAs in making its determinations in the land use process, will give 'no credit' to developers for benefits they have provided through CBAs, and will play no role in encouraging, monitoring or enforcing the agreements. To the extent that the City wishes to consider CBAs outside of the land use process, such as in its decisions to grant subsidies or contracts to developers pursuant to its economic development program, it should set forth clear standards that a CBA must meet in order to be considered."

It also recommended that "consideration of CBAs in the land use process is inappropriate, and that community boards, the Borough Presidents, the Department of City Planning, the City Planning Commission, City Council members and the Mayor are prohibited from suggesting that developers seeking land use approvals enter into CBAs, and from considering the existence of a CBA or the specific terms of a CBA in deciding whether to approve a developer's request for a map or text amendment, special permit, variance, or other discretionary land use approval."

The association's land use committee established a subcommittee to review and write the report and it consisted of Vicki Been, Boxer Family Professor of Law at the New York University School of Law, Ross Moskowitz, Wesley O'Brien, and Ethel Sheffer.

The report said that CBAs "are a relatively recent phenomenon across the United States and that the first major CBA, the Los Angeles Staples agreement [the $4.2 billion Los Angeles Sports and Entertainment District development, which abuts the Staples Center, was signed in 2001. Since then, scores of CBAs have been negotiated across the country. In New York City, developers and community groups began to use CBAs in the last few years."

The first was Forest City Ratner's Atlantic Yards project in Brooklyn, and others have been the "Harlem Park" project on 125th Street, the Gateway Center at the Bronx Terminal Market, and Yankee Stadium.

The report noted that "common promises" used in CBAs include commitments to use local residents or businesses, assurances that a certain number or percentage of housing units will be affordable to low- or moderate-income workers; agreements to pay living wages, stipulations that environmental problems be addressed.