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January 18, 2012

Still No Compliance Monitor At Brooklyn’s Atlantic Yards

Brooklyn Daily Eagle
by Zach Campbell

We don't often think of the Eagle when it comes to insightful coverage of Atlantic Yards, but reporter Zach Campbell takes a good, hard look at the utter flimsiness of the project's CBA.

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.

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.

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.”


Related coverage...

Atlantic Yards Report, Where's the Independent Compliance Monitor for the CBA? Brooklyn Eagle article elicits evasive response from CBA signatories

Even though the enormous flaws in the Atlantic Yards Community Benefits Agreement--most glaringly, the failure to hire an Independent Compliance Monitor (ICM)--have been manifest for a while, journalists have pretty much ignored them.

So credit the Brooklyn Daily Eagle's Zach Campbell for following up, in an extensive article, headlined Still No Compliance Monitor At Brooklyn’s Atlantic Yards, which elicits some curiously evasive responses.

It further quotes me as writing, “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?”

So what do the CBA signatories say?

James Caldwell of BUILD blamed lawsuits for delays.

Lennox Britton of the New York State Association of Minority Contractors, said, “I’m sure they’ll get to it.”

The Rev. Herbert Daughtry of the Downtown Brooklyn Neighborhood Alliance doesn't mind: "The point is that I feel, whether they [FCR] have reneged on promises, I’m not concerned about it.

Bertha Lewis, the former CEO of ACORN, did not respond to Campbell's query, while he found three of the other signatories hard to find.

Note that Lewis in May 2006 defended the CBA by noting that it calls for an independent monitoring body that “does not have a dog in this fight” to oversee implementation.

Brownstoner, Where’s the Promised Atlantic Yards Compliance Monitor?

Posted by eric at January 18, 2012 11:14 AM