Still No Compliance Monitor At Brooklyn’s Atlantic Yards
By Zach Campbell
Brooklyn Daily Eagle
ATLANTIC YARDS — Community Benefit Agreements have a rare history here. They are meant to serve as tools for reconciliation between developers and affected communities — developers can give their projects more legitimacy through the incorporation of public input, while the residents themselves have a vehicle through which they can push for changes to benefit the community and preserve a neighborhood in the face of drastic changes.
In Brooklyn, though, things have worked out a bit differently.
Forest City Ratner (FCR) signed the Atlantic Yards Community Benefit Agreement (CBA) in June of 2005. The contract, signed between FCR and eight community groups, was at the time hailed as “historic” by many involved, including by the developer and CEO Bruce Ratner. For a project that was to be half financed by public money, many saw the CBA as a necessary way for the developer to hear out the concerns of the community.
The CBA includes many provisions that seem geared toward the preservation of the surrounding neighborhoods. It requires the developer to designate half of all onsite housing for low- to moderate-income tenants, create a workforce-development program for local jobs, work with minority- and women-owned local small businesses and more.
Each of the eight CBA groups is charged with taking input from the community in their field of expertise. ACORN was to work on housing, BUILD would manage jobs, and the six other groups would each manage community concerns relating to their own fields, including public housing, small businesses, religion, education, and concerns about community amenities and environmental impact. Forest City Ratner and the eight groups together make up what is referred to as the Executive Committee (EC).
The Independent Compliance Monitor
The CBA required the Executive Committee to hire an independent compliance monitor “as soon as reasonably practicable” after its formation, presumably soon after the document’s signing in 2005. The contract holds the position as its primary means of enforcement; it is referred to in almost every section of the CBA.
The compliance monitor is meant to serve as a community enforcement mechanism, and is the only legally binding tool by which the other CBA groups can make sure the developer plays by the rules.
Today, six-and-a-half years after the contract was signed, five years from when the EC began accepting proposals for the job and nearly two years after the site’s groundbreaking, the position of independent compliance monitor for Atlantic Yards is still vacant.
The developer has long disputed its contractual obligations per the CBA. More recently, it has begun to say it will hire the compliance monitor for the second (non-arena) phase of construction.
“They [FCR] are going to retain a compliance monitor per the CBA, but they are going to wait until the housing phase,” said Brian Moriarty, a spokesperson for the developer.
Forest City Ratner was also required to write a manual of the goals and programs described in the contract. This guide, called the Project Implementation Plan, was to be the main tool by which a future compliance monitor would judge the developer’s progress, and, as is explicitly written in the CBA, was to become part of the document itself.
Moriarty acknowledged that FCR has written, negotiated and signed the contract with the other groups, but has declined to release it to the public. “It’s a separate contract between the developer and the CBA signatories, and is not public information,” he said, despite later acknowledging that the CBA itself is a public document.
The community groups that signed the CBA were said at the time to represent those that were displaced by the development through eminent domain and those living in the communities nearby.
In the case of the Atlantic Yards CBA, there are close connections between developer and community groups.
In 2008 a former employee of ACORN, the now-bankrupt organization that was to have spearheaded the housing element of the CBA, leaked a letter from Forest City Ratner to Bertha Lewis, ACORN’s director at the time, outlining $1.4 million in loans and grants to help keep the nearly bankrupt organization afloat.
In 2005 the Daily News reported that the director of BUILD, responsible for the jobs element of the CBA, acknowledged receiving nearly $150,000 from FCR.
The next day, The New York Times reported FCR paying $50,000 to the Downtown Brooklyn Neighborhood Alliance. Soon afterward, The Observer reported a payment of $87,000 to the Downtown Brooklyn Educational Consortium (now Brooklyn Voices for Children). Both groups have signed the CBA.
Julian Gross, a CBA lawyer who has written extensively on the other three major CBA agreements in New York history, says it is usually considered a conflict of interest to have financial agreements between developers and the community groups involved.
“New York CBAs are not written for accountability — many are drafted in such an egregiously one-sided manner that it’s clear that there wasn’t really a back and forth,” Gross said. “They are trying to get the credibility of a real CBA without them being a real enforceable agreement.”
‘I’m Sure They’ll Get to It’
When asked about plans to hire an independent compliance monitor, many members of the Executive Committee reacted with ambivalence.
“They don’t have an ICM at this point — it got delayed because of the lawsuits,” said James Caldwell, director of BUILD. Caldwell went on to explain that the EC members are briefed on the development’s progress by Forest City Ratner, instead of by an independent compliance monitor, as called for by the CBA.
Lennox Britton, executive director of the New York State Association of Minority Contractors (NYSAMC), also a CBA signatory, added that the ICM comes up often at the meetings. “They talk about it all the time,” he said. “I’m sure they’ll get to it.”
Rev. Dr. Herbert Daughtry Sr., founder of the Downtown Brooklyn Neighborhood Alliance, the group responsible for the “Community Facilities and Amenities” aspect of the CBA, said he feels that FCR has already taken care of its obligations under the CBA.
“The point is that I feel, whether they [FCR] have reneged on promises, I’m not concerned about it,” explained Daughtry. “I’m fairly certain that they’ll respond to their negotiated positions.”
Daughtry later described his “close connection” to the Ratner family — Michael Ratner, Bruce’s brother, served as his lawyer in a defamation case in the 1980s.
Bertha Lewis, the former CEO of ACORN, did not respond to requests for comment. According to other EC members, Lewis still attends the CBA meetings, presumably to continue coordinating the housing element of the agreement in the absence of ACORN.
Three of the four remaining CBA signatory groups do not maintain websites, email addresses or phone numbers, and have offices listed as the residences or, in one case, primary workplaces of their directors. Three of the groups have also changed their names since the CBA was signed.
Also per the CBA, seven out of the eight community groups were required to create “councils” in their particular fields. Described as “ongoing mechanism[s] for community input,” the public would presumably be able to voice their opinion of the development and its progress through these entities. Of the four groups reached for this article, none had yet created councils.
Still, all involved seem to have faith in the developer. Last year at a CBA press conference, a reporter asked Bruce Ratner whether or not he thought the CBA is legally binding.
Mayor Michael Bloomberg answered for him: “You have Bruce Ratner’s word. That should be enough for you and everybody else in the community.”
A source close to the CBA negotiations said that the hiring of a compliance monitor was on the agenda of last week’s meeting with Forest City Ratner. “Everybody is in agreement that we now need to move forward with the ICM,” he said.
The source went on to explain why the ICM wasn’t hired back in 2007: “The person they had chosen did not think $100,000 [the yearly pay rate called for by the CBA] was enough money,” he explained, “and through all the litigation and the economic crash, FCR thought it was best to wait — even a lot of us thought the project might not survive.”
The source later conceded that Forest City Ratner wasn’t the only party interested in delaying the hiring of an ICM.
“It wasn’t just FCR. Everybody on the CBA would have to uphold their part of the bargain,” he added. “We all have responsibilities — that’s why it got held up.”
Enforcement mechanisms are essential to any agreement. For the Atlantic Yards Community Benefit Agreement, and in the absence of an independent compliance monitor, the contract can only be enforced by the other signatory groups.
Bruce Ratner, in a March 2007 press release, seemed to agree:
“Atlantic Yards is setting a new standard for inclusion and community involvement for a development, and the ICM will be everyone’s watchdog to ensure we reach all of the goals and benefits we have agreed to in the CBA,” he said.
Norman Oder, author of the Atlantic Yards Report, easily the most extensive watchdog blog on Atlantic Yards since the development’s beginning, opined in an article last November: “If the executive committee hardly meets, hasn’t decided yet [when to hire an ICM], and has members whose groups are financially tied to or dependent on Forest City Ratner, what incentive do they have for an Independent Compliance Monitor?”
Rev. Daughtry, of the Downtown Neighborhood Alliance, put the issue yet another way:
“A lot of steel and stone was saturating the place,” he said of the development, “and I asked myself whether our morals or our values could keep up with the construction.”
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