Community Benefits Agreements in a Union City: How The Structure of CBAs May Result in Inefficient, Unfair Land Use Decisions

Abstract

Community benefits agreements (CBAs) are hailed by land use reform advocates as an effective, flexible, inclusive tool for making land use decision-making processes more responsive to traditionally underserved communities. Using the power of community organizing to gain leverage over developers as they navigate zoning and other regulatory chokepoints, CBAs allow traditionally disorganized residents and businesses to extract benefits and conditions directly from developers. This value capture process, reformists argue, helps reduce the negative impact of diffuse economic and social externalities that either cannot or will not be mitigated by the traditional land use regulatory apparatus. The reformist narrative, however, fails to account for the overriding strength of one particular subset of participating interest groups—that of organized labor—in leading the charge for community benefits. Those interests, this paper argues, often wield disproportionate power in the informal negotiations underlying the formation of a CBA, and have structured CBAs so as to avoid the preemptive effects of federal labor law. In so doing, labor’s preeminent interests may undermine the very goals of efficiency, inclusion, and equity in distribution of developers’ rents that CBAs purport to advance. This paper evaluates this claim by telling the story of one particular deal in New Haven: a CBA negotiated in advance of a public land sale to an independent charter school management organization. By analyzing the deal against both the historical development of CBAs and the normative criteria against which scholars have evaluated other land use controls, this paper aims to shed light on whether the structural incentives built into CBAs may underserve interests that the existing regulatory regime is designed to protect.