2013 Theses Master's

Legal Constraints on Neighbors' Use of Community Benefits Agreements in New York City

Greenbaum, Simone

A Community Benefits Agreement (CBA) is an agreement between a real estate developer and a local community in which the developer agrees to mitigate the impacts of a real estate development in exchange for the community’s forbearance from protesting the development project. This thesis focuses on land use CBAs, a subset of CBAs, which are entered into in exchange for a community’s agreement to forbear from protesting the developer’s land use application to the local government. Land use CBAs disrupt the traditional community - local government - developer dynamic by transforming the adversarial relationship between the developer and the community into one of mutual agreement. CBAs provide communities with additional leverage in the land use decision-making process. The thesis aims to provide CBA practitioners with a roadmap for understanding the legal issues inherent in CBAs, and strategies for negotiating a valid and enforceable CBA. This thesis utilizes legal and planning scholarship, case law, interviews with CBA experts and news articles to reach its findings. While courts have not yet ruled on the constitutionality or enforceability of CBAs, as CBAs become more prevalent, legal challenges may soon arise. These challenges will likely focus on the level of local government involvement and whether the local government engaged in impermissible regulatory takings, and therefore, communities should recognize the legal risk presented by including local government in the process. Communities should pursue one of two CBA negotiation strategies: (1) a direct negotiation with the developer, without local government assistance, thereby enabling a wider range of benefits, or (2) a negotiation with the developer with the local government’s assistance, thereby limiting the scope of the range of benefits.