Beyond the limits to planning for equity: the emergence of community benefits agreements as empowerment models in participatory processes

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BEYOND THE LIMITS TO PLANNING FOR EQUITY:
THE EMERGENCE OF COMMUNITY BENEFITS AGREEMENTS AS
EMPOWERMENT MODELS IN PARTICIPATORY PROCESSES

by

Murtaza Hatim Baxamusa

A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(PLANNING)

May 2008

Copyright 2008 Murtaza Hatim Baxamusa
ii
Acknowledgements

The author would like to thank the Partnership for Working Families
(www.communitybenefits.org) for conceptual work on “community benefits”. In
addition, the Center on Policy Initiatives in San Diego and the Los Angeles Alliance
for a New Economy provided background information on the case studies. The
author received advise at different stages from Harry Richardson, Dr. Niraj Verma,
Dr. Tridib Banerjee, Dr. Daniel Mazmanian, Dr. Jennifer Wolch and Dr. Leland
Saito.

At a personal level, there are a few people that played a significant role in the seven
years that this research took. Donald Cohen provided active encouragement and
support, as well as inspiration for some of the key themes in this dissertation. Harry
Richardson provided a persistent impetus in helping the author hit the finish line at
the same time as juggling other responsibilities. And finally, special thanks to the
author’s mother and wife for their support and well-wishes.
iii
Table of Contents
Acknowledgements ii
List of Tables iv
List of Figures v
Abstract vi
Introduction 1
Chapter 1: Theoretical Framework to Define Planning for Equity 12
Power-Process Tensions 13
Public Interest and Community Benefits 23
Chapter 2: Development Agreements 41
Developer Benefits 45
Public Benefits 48
Procedural Issues 50
Substantive Issues 57
Chapter 3: Community Benefits Agreements 65
Community Coalitions 65
Defining the Community Benefits Agreement 69
Chapter 4: Case Studies 77
LAX Expansion, Los Angeles 79
Ballpark Villages, San Diego 96
Chapter 5: Analysis of a CBA 113
Conditions for a CBA 114
The Role of the Community Coalition 117
Description of the CBA Process 129
Empowerment and Deliberation 148
Conclusion: Implications for Planning Practice 159
Epilogue: Redistribution as a Condition of Sustainability 167
Bibliography and References 180
Appendix: Community and Economic Benefits Assessment (CEBA) 207
iv
List of Tables

Table 1. From Public Interest to Community Benefits 36
Table 2: A Framework for Community-Labor Coalitions 68
Table 3: Examples of Community Benefits Agreements 73
Table 4: Socio-Economic Profile of LAX neighbors 81
Table 5: Timeline of Key Events After Approval of the CBA 93
Table 6. Comparison of Market Rents 97
Table 7: Affordable Family Housing Built in Downtown (Including Units in
Pipeline) 98
Table 8: Bedroom Mix of the Affordable Housing in Downtown 99
Table 9: Agenda for Initial CBA Negotiation Meeting (8/25/2007) 104
Table 10: Comparison of Development Proposals for Ballpark Villages: With and
Without a CBA. 112
v
List of Figures

Figure 1: A Conceptual Framework on Planning for Equity 12
Figure 2: A Comparison of the Development Process With or Without a CBA 72
Figure 3: Community Benefits at Work – Signs Displaying the Air Quality
Monitoring at Work During LAX Construction 95
Figure 4: Schematic Structure of San Diego ACCORD Negotiations 105
Figure 5: CCDC letter protesting the CBA prior to City Council approval 111
Figure 6: Matrix Showing Process Uncertainty Versus Outcome Uncertainty 163
Figure 7. A Conceptual Framework on the Social Dynamic within Planning for
Sustainability 173
vi
Abstract

The limits of planning for equity emerge from institutional emphases on certainty,
which are often antithetical to the social and economic variables that surround land-
use. This is evident in plans and processes that operate within the status quo of
existing power structures. The result is a fundamental disagreement in planning on
what it is that is equitable – outcomes, processes, or power? On the one hand,
communicative theorists prescribe participatory processes that allow diverse interests
to compete equally using rational deliberation. On the other hand, Foucauldians
question whether any process is meaningful under the dominating power of the
growth coalition.

Given the deep tension between the primacy of process and the primacy of power,
the theoretical question raised is - do participatory processes balance the power of
the growth coalition in planning for equity? The associated question for advocacy
planning practice is - what is the appropriate role for participatory processes in
planning for equity? These questions lead us the extent to which plans should
address the equity impacts of large-scale development, and the limits of plans and
planning processes.

vii
The solution presented in this dissertation is to allow the disempowered objects of
planning to become the subjects of a power-process within a social movement. The
power wielded by the dominant growth coalition is balanced by uncertainty in the
plural planning processes. Thus the role of planning is to explicitly determine the
limits of a plan within outcomes that are determinable with relative degree of
certainty, and beyond these limits, to subject outcome uncertainty to proportional
process uncertainty.

The “Community Benefits Agreement” is a development agreement between a
public or private developer and a community coalition. Two case studies, the
expansion of LAX in Los Angeles, and the Ballpark Villages in San Diego, are
models of participatory deliberation that is empowering to stakeholder groups.
Unlike individual and discursive forms of empowerment that dissipate when a
project is approved, the community coalition approach aims at long-term
redistribution of power.

1
Introduction

Norman Krumholz has set a model for the proper behavior of a city planning
director. However, a look at conditions in Cleveland reveals that no matter
how strong a planning director may be, additional power must be brought to
the political and economic areas, if social equity is to be achieved. We must
both plan and organize.

Even greater than to plan for equity would be to be a part of a powerful
political movement working to both plan and implement the equity goals
sought by Krumholz. Planners in a city have an important role to play in
establishing equity goals and in demonstrating effective means for achieving
them; but unless they work in coordination with a political movement aimed
at obtaining equity goals, the planners victories will be sporadic.

(Davidoff 1982, 180: in response to Norman Krumholz’s article on equity
planning in Cleveland, OH)

The founding father of advocacy planning, Paul Davidoff, postulated that
redistribution is a basic criteria for judging the worth of any public policy (Davidoff
1975). He considered large sections of planning to be unjust from the standards of
redistributive justice. However, redistribution in planning operates under institutional
constraints of power forces (Forester 1989), which may explain the difficulty of
planners from translating equitable planning processes into equitable outcomes
(Krumholtz and Clavel 1994, 151; Metzger 1996).

2
The question of equity in planning thus leads us to a deeper question of what it is that
is equitable
1
. Although equity refers to fairness in distribution as opposed to the
sameness in distribution, positive intervention in practice refers to reducing
inequality. Inequality could be conceptualized in three orders: the first order of
inequality is that of the material state of individuals (such as income
2
or other
resources
3
). The second order of inequality is that of process (such as communicative
or rational). The third order of inequality is that of power (such as uncertainty
4
,
identity formation
5
and governance
6
).

In fact, it can be deduced that the third order of inequality determines the question of
equity itself: for those with greatest power determine the variables that will be
measured, the outcomes that will be prioritized and the process of both measuring
and addressing equity. The third order also determines the system of justice, so that
an unequal distribution in one set of variables may be deemed just, even if there is
little equity in other variables. For example, in Marris (1996), there is a natural
tendency for people to institutionalize the transfer of uncertainties onto others
weaker than themselves, so that the social order in a natural state would be a
Darwinian hierarchy of diminishing uncertainty. The third order determines not only

1
Sen (1992) similarly asks the question “Equality of What?”
2
See Atkinson (1970).
3
See Dworkin (1981).
4
See Marris (1996) who argues that the transfer of uncertainties onto other weaker than oneself
defines the power structure in society.
5
See Taylor (1994).
6
See Dahl (1989). See also Nozick (1974) who conceives of “protective associations” that people
choose to subscribe to in a state of nature.

3
the extent of modern democracy, but also the relative ordering of goods through
socio-psychological manipulation of modern institutions.
7

The first and second orders of inequalities are more the symptoms than the malaise
itself. As Davidoff recognized, the chief causes of inequality are rooted in social and
political interactions (see Rousseu 1754[1992]). The third order cultivates and
nurtures inequalities through institutionalizing power either explicitly (e.g. Scott
1998; Foucault1995[1975]) or implicitly (e.g. Appaih 1994; Said 1994).

Institutions of planning and governance are constantly changing, but social reform
must begin with recruiting a “coalition of power” (Marris and Rein 2006, 7). For
example, even as decentralization of planning may be seen as beneficial for under-
represented communities (Fainstein and Fainstein 1974), the question of whether
decentralization actually results in redistribution is still unanswered.

The twenty-first century version of governance emphasizes civic engagement such as
the formation of neighborhood planning groups in Los Angeles (Cooper 2005).
However, planning theory treats civic engagement merely in the context of dispute
resolution (Eckstein and Throgmorton 2003; Forester 2006; Lowry et al 1997;

7
For example, Habermas (1998[1962]): “The communicative network of a public made up of
rationally debating private citizens has collapsed; the public opinion once emergent from it has partly
decomposed into the informal opinions of private citizens without a public and has partly become
concentrated into formal opinions of publicistically effective institutions” (p. 247)

4
Susskind and Field 1996). With some exceptions (Sandercock 2003), there is limited
theoretical treatment of the relationship between equity and participatory processes.

The missing link between participatory processes and equity planning is the notion
of community empowerment. Although planning theory recognizes the role of power
that could distort the civic engagement process (Forester 1989; Hoch 1994; Hillier
2002; Flyvberg 1998; Yiftachel 1998), there is no resolution on whether civic
engagement can lead to equitable outcomes in the presence of unbalanced power.
This is due to a deeper tension between the primacy of process versus the primacy of
power. This issue becomes critical to advocacy planning, in contrast to planning in
general, because the power forces of an organized “growth coalition” strive for
value-free growth (Logan and Molotch 1987).

The theoretical question this dissertation addresses is: In what way do participatory
processes balance the power of the growth coalition in planning for equity? This
dissertation formulates a conceptual framework that defines the relationship between
equity and civic engagement.

This dissertation does not attempt to resolve the power-process tension in all aspects
of planning, but presents a model to make participation more meaningful in the
context of equity. The solution presented is to empower the community in a dynamic

5
uncertain process in which the community could itself be a part of process design
through rational deliberation. This self-determination of both the process and the
outcomes is a critical component of community empowerment
8
that is the driving
force for redistribution.

Since empowerment, by definition addresses those demographics that have been
disempowered by society (Rappaport 1990; Benhabib 2002), this dissertation
illustrates that community empowerment is a driver of social transformation (see
Maton 2000). It is thus inextricably linked to community organizing (Alinsky 1989;
Dreier 1996), which is facilitated by coalition building among grassroots
organizations (Mizrahi and Rosenthal 1993). The community coalition does not exist
in a power vacuum, but in most cases where deeply entrenched interests have created
a paradigm of value-free growth (Logan and Molotch 1987, 60). This “growth
coalition” has driven planning processes to emphasize the need for certainty, and
with it, disempowered participation in the planning process.

Given that participatory processes increase uncertainty, this dissertation poses the
following question for planning practice: What is the appropriate role for
participatory processes in planning for equity? A subset of this question is the extent

8
Fung and Wright (2003) describe this potential power of normally weak and disadvantaged groups
as “countervailing power”.

6
to which plans should address the impacts of development, and the limits of
technical intervention in projects.

This dissertation formally separates the three concepts of engagement, empowerment
and equity, in order to examine the linkages between them in theory and practice. In
this dissertation, the Community Benefits Agreement (CBA) is presented as an
empowerment model that combines substantive deliberation, coalition building and
grassroots organizing.

Chapter 1 presents a theoretical framework on the social dynamic within planning
for equity. It links the literature on participatory processes, community
empowerment and public interest. There are two parts to this chapter. In the first part
there is a theoretical discussion on the power-process tensions. Specifically, the
tension between the power of the growth machine and participatory processes would
suggest that engagement contributes to equity only when it is empowering. The key
issue for equity planning is not whether either power or process is more significant.
Rather the key issue is the conflict between objects and subjects of power-processes.
Viewed in this manner, the common struggle in both Habermasians as well as the
Foucauldians is not so much against the institutions of power as it is against the
“objectivizing” of subjects. Thus when communities are organized to become actors

7
rather than subjects, they are able to participate more meaningfully in a power-
process.

In the second part of Chapter 1, the concept of “public interest” is discussed. This
concept has evolved from a monolithic (or rational) form to a more fragmented one
of aggregative self-interest. The chapter argues that a dynamic, pluralistic form of
public interest is more pertinent to participatory planning because it allows a
balancing of interests to crystallize uniquely in different contexts. Nevertheless,
“public interest” is difficult to implement in planning, especially since the “public”
itself is undefined. In reality, it is not the public that determines the planning process,
but the planning process that determines the public. Thus a “community benefits”
framework is preferred alternative to “public interest” in achieving redistribution.

In Chapter 2, the procedural and substantive limitations of development agreements
are discussed. Development agreements (and other negotiated agreements in general)
are isolated opportunities for incremental policy interventions on a project-by-project
basis. In particular, development agreements have significant procedural limitations
that inhibit long-term comprehensive planning. These include an ambiguity about
public sector representation, confidentiality requirements that serve the private
sector, lack of systematic public input into negotiations, and the difficulty of
implementation monitoring. At the same time, there are substantive advantages to

8
using the development agreements that include flexibility in both the level and type
of exaction. Negotiated agreements can thus be seen as legal instruments to
implement comprehensive plans when expected commitments from these agreements
are pooled as part of comprehensive planning, and are synchronous with the planning
process.

In Chapter 3, the CBA is described as essentially a development agreement with a
community coalition. Community coalitions have been discussed in detail in the
context of healthcare services and emphasize multiplicity of sectors and issues. In
land-use planning, the emergence of community coalitions can be situated as part of
a reactionary social movement. As procedural certainty for developers grows,
communities perceive substantive uncertainty in the outcomes, leading to
organizations of grassroots coalitions.

The CBA can be more specifically defined as a private agreement between a
community coalition and the developer on multiple issues that may or may not be
included in the regular planning process. Instead of the public agency negotiating on
behalf of interest groups, a community coalition organizes and negotiates directly
with the developer. One of the first CBAs for a mega-project was executed in 2001
for what is now called the LA Live project in downtown Los Angeles. This
agreement was hailed as a new movement using a civic participation model that was

9
being replicated across the country. CBA benefits included more than a million
dollars for parks, self-sufficiency wage jobs for those displaced or living near the
arena, job training programs through local community groups and construction of
over a hundred affordable housing units. There are at least a dozen CBAs of this kind
across the country today.

Chapter 4 presents case studies of two CBAs: the expansion of the Los Angeles
International Airport (LAX) and the Ballpark Villages Project in San Diego. Each of
these are large projects with a CBA, have undergone a public approval process, but
are yet to be built. Since they have not been implemented, it is premature to do a
quantitative cost-benefit analysis on the outcomes of these projects.

The expansion of LAX had considerable unmitigated impacts (especially noise) on
surrounding neighborhoods and schools. After almost ten years of studying the
expansion, and spending $147 million on studies, the deadlock with neighboring
communities was making no headway. Finally, at the prodding of the Mayor, the Los
Angeles World Airports negotiated a half-billion dollar CBA with a local coalition of
environmental, neighborhood, labor, social and religious groups and two school
districts. This agreement will provide a wide variety of community benefits
including soundproofing for schools, parks and local hiring standards.

10
In San Diego downtown, the Ballpark has been a catalyst for redevelopment and
gentrification. However, this has also led to a housing affordability crisis, especially
for low-income families. The residential market downtown has grown dramatically,
with 14,670 housing units in the area (including 6,707 units in the pipeline) in 2005.
Of these 2,924 of these units were “affordable”, 19% of which were for families, and
4% of which were for low-income families. Thus when the Ballpark Villages project
(which uses some of the entitlements from the Padres Ballpark) proposed 80
moderate-income units (with about 1,400 condominium units) to meet the City’s
inclusionary housing requirements, affordable housing advocates rebelled against the
traditional planning process. Allied with environmental and labor groups, they
created their own process of negotiations, and came up with creative solutions that
would almost double the supply of low-income family housing in downtown.

Chapter 5 presents the CBA power-process model and analyses the replicability of
this model in planning. It presents the appropriate conditions under which a CBA
could be negotiated, the role of the community coalition, the typical components of a
CBA process, and the mechanisms by which power is redistributed through this
process. The analysis illustrates the methods of empowerment in the CBA process,
particularly at an organizational and community level.

11
The concluding chapter discusses implications for planning practice. It challenges
the traditional role planners have played in reducing uncertainty. In this context,
project-level critical impact thresholds should be included in plans, beyond which
increased uncertainty is beneficial for equitable outcomes. The dissertation
concludes by calling planners to explicitly address the inequitable distribution of
power in any planning process. The CBA prepared by a community coalition
presents one answer to Paul Davidoff’s questions:

A practice that has discouraged full participation by citizens in plan making
in the past has been based on what might be called the “unitary plan”. This is
the idea that only one agency in the community should prepare a
comprehensive plan; that agency is the city planning commission or
department. Why is it that no other organization within a community prepares
a plan? Why is only one agency concerned with establishing both general and
specific goals for community development, and with proposing the strategies
and costs required to effect the goals? Why are there not plural plans?
(Davidoff 1965)

12
Chapter 1: Theoretical Framework to Define Planning for Equity

Paul Davidoff recognized a clear need for planning to expand beyond its focus of
physical planning, into social and economic concerns that surround land-use. There
is a clear dynamic that occurs between approval of individual projects, socio-
economic policies and evaluation of the impacts of new development on the
community (see Figure 1). This chapter presents a conceptual framework that links
the theoretical literature on power, participatory processes and public interest.
Figure 1: A Conceptual Framework on Planning for Equity

Evaluation of
community
impacts
Community
Benefits in Projects
(micro)
Redistributive
plans and policies
(macro)
Empowering Participatory
Process
Community
Benefits
framework
Community
Organizing

13

In the first part of this chapter, the role of civic engagement is discussed. The
conflicting struggle between the power of the growth machine and participatory
processes would suggest that engagement contributes to equity only when it is
empowering. When a community is empowered, it is faced with the quandary of
what to advocate for. In the second part of this chapter, an argument is made for
advocating community benefits, as opposed to other notions of planning goals such
as public interest. The former captures the place-based, multicultural and pluralist
nature of planning better than the latter. It serves in recognizing and empowering the
“community” as legitimate stakeholders.

Power-Process Tensions

Within planning theory, there is an unresolved tension between the primacy of power
and the primacy of process. On the one hand, communicative theorists emphasize the
role of participatory processes in transforming power relations (see Forester 1989;
Fischer 2006; Booher and Innes 2002; Stein and Harper 2003). On the other hand,
Foucauldians suggest that power corrupts any process (Flyvbjerg 1998). This would
suggest an ambiguous role of public participation and engagement in planning.

14
The communicative theory paradigm championed by John Forester and Pasty Healey
was that a Habermasian dialogue amongst key stakeholders itself redistributed power
(Forester 1989; Healey 1997). In Habermas’ model of modern society, the
“bourgeois public sphere” is the organizing institution of political order (Habermas
1999). In this sense it is an indispensable part of modernist democracy. Proponents
of the model claim that the contingency of power on different contexts should not
lead us to disillusion about the role of planning, but that through a constant process
of evaluation and accommodation, planning can have a “liberating effect on both
process and product” (Stein and Harper 2003, 134; Rorty 1982, 203).

The application of Foucauldian theories to planning may suggest that since
knowledge is a construct of power
9
there can be no rational planning. The
“vocabulary of science” seems to conflict with the “vocabulary of power” since truth
is a mere rhetorical instrument of power (Stein and Harper 2003). Given his ethical
relativism and an oppressive conceptualization of power, the subservience of all
rationality to Foucault’s "agonism"
10
between power relations is unsettling. An
illustration is Jeremy Bentham’s panopticon, a prison which through its design,
lighting and arrangement of cells, allowed the guards to watch the prisoners, but not
the other way around (Foucault 1979). Therefore the power of surveillance and other

9
For example, Stein and Harper (2003, 127): “Thus, the contingency of truth, knowledge, reality,
reason, and freedom must be expressed in terms of the ‘universalist’ presence and operation of
power.”
10
Foucault. 1982. "The Subject and Power" in Michel Foucault: Beyond Structuralism and
Hermeneutics University of chicago, p208.

15
controls in modern society makes obedience to the instrument of power, the only
“rational” recourse:
Power has a rationality that rationality does not know. (Flyvbjerg 1998, 225)

However, Foucault is not just exposing the contingencies of knowledge on medieval
institutions of power, but the deeper interactions between subject and object. In this
sense, neither is independent, and Foucault is not questioning the epistemological
existence of knowledge per se but the ontological assumption of value-neutrality in
rational knowledge (see Foucault 1980). There is a fundamental difference between
the two. The application of the former would lead us to believe that rational
planning, itself powerless, is an instrument for those in power. The application of the
latter would lead us to explore the linkages between planning power, and their inter-
dependencies. Therefore at a deeper level, planning discourses, theory and
institutions have been shaped by power, and are themselves perpetuating that power
through planning theory and practice. In Flyvbjerg’s case of an urban conservation
project in Aalborg, in which the “rationalities” of two powers (the Chamber of
Commerce and planners) conflicted in regard to traffic mitigation, he seeks to
demonstrate that the rationality that prevails would be the more dominant one
(Flyvbjerg 2002). However, the whole episode is about power of a planning at a
deeper level: how the planner (Flyvbjerg) utilized media, surveys, studies and
planning councils to complement his rationality with power. If his rationality was
“better”, then his hypothesis that the relationship between power and rationality is

16
asymmetric is incorrect. Rationality in this instance was actually a generator of
power. In the words of Foucault (1980, 93): “We are subject to the production of
truth through power and we cannot exercise power except through the production of
truth.”

Forester is cognizant of the power structures that planners operate within. In his
progressive analysis of power (1989, 32-33), the planner understands the power of
information and sees misinformation as a systemic problem of powerful economic
and political forces. The similarity in approach with Foucault is quite striking if we
remove the information-misinformation dichotomy and the accompanying
judgmental rhetoric. At once, (mis)information has the power of influencing actions.
The difference in approach with Foucault is that Forester is not resigned to let power
continue its manipulative spell. Rather, he says: “To be rational, be political”
(Forester 1989). Communicative planners see value in prescriptive tools such as
mediation, selective information gathering and agenda-setting to influence the extant
power structures. The limitation of such an approach is that the planner is viewed as
an external agent conducting a social science experiment and controlling selected
inputs. The Habermasian paradigm breaks down when the power structure is so
skewed that there is no incentive for the party wielding power to enter into a
communicative planning process.

17
Thus the key issue for planning is not whether either power or process is more
significant. Both are inextricably linked. In fact, planning itself is considered a
political activity aimed at redistribution of power (Douglass and Friedmann 1998).
For example, the Habermasian approach encourages the use of deliberative rituals
amongst the objects of the deliberation as a form of generating power (Forester
1999). Similarly, the Foucauldian approach studies the mechanisms of power
wielded by its subjects (Flyvberg 2002).

Thus the key issue for planning is the conflict between objects and subjects of
power-processes. Theoretically, Habermasians view civil society as subjects or
actors in a decision-making process. Forester mentions “excluded groups” competing
on equal footing with developers in a liberal-advocacy framework (Forester 1989,
30). The act of effective participation makes these groups actors or subjects of the
power-processes. Foucauldians, on the other hand, view civil society as objects that
are acted on by a political power relation. Flyvberg describes the powerful role of the
Aalborg Chamber of Industry and Commerce in determining the constitution and
execution of the working groups advising on transportation solutions for downtown
Aalborg (Flyvbjerg 1998, 59-61). The participants and outcomes of these processes
are thus objects of a predetermined power structure. The deeper question is then
whether participants can be empowered through deliberation, transforming them
from Foucauldian objects into Habermasian subjects of planning. Friedmann had

18
been aware of this struggle when he had emphasized the “non-technocratic dialectic
approach to planning as a method of recovering political community” (Friedmann
1987, 343).

However, effective means of involving stakeholders into project-specific decisions is
generally missing from U.S. planning system (Blackburn 2000, 182). According to
Kent Portney, civic participation must leading to community building that goes well
beyond physical planning:
Locally organized public involvement efforts, whether focused on local,
statewide, or national issues, not only provide mechanisms for residents to
have their voices heard, and for government to respond on specific issues,
they also provide mechanisms of civil society that actually change the people
who participate in them.
(Portney 2003, 146)

The common struggle is not so much against the institutions of power as it is against
the “objectivizing” of subjects (see Foucault 1994, 326-348). Reason, through the
process of rationalization in the Habermasian sense, is therefore an instrument of
power in the Foucauldian sense.

Scholarship on “deliberative democracy” (see Cohen 1989; Fishkin and Laslett
2003; Fung 2004; Fung and Wright 2001; Gutmann and Thompson 2004; Macedo
1999; Macedo et al 2005; Elster 1998; Nino 1996; Bessett 1994) describes a
dynamic, pluralistic form of participatory planning that calls for an interactive
engagement absent in aggregative processes (such as ballot-box planning). Once of

19
the key contributions of this process is in emphasizing the quality of civic
engagement lacking in aggregative participatory methods:
The most valuable forms of civic engagement address important issues on
which people of goodwill disagree, finding points of common agreement,
while seeking ways to deal productively with enduring conflicts. Quality
civic engagement maintains bonds of political community even after the
votes have been counted and the majority has spoken.
(Macedo et al. 2005, 9)

Its notion of rational communication is tempered by its recognition of identity or
interest groups, and the need for dialogue between the groups. This rationality is also
influenced by a constantly changing notion of “public interest” (a la Dewey) that has
to be reconstructed over time, so that subjects will be constantly engaged. Relevant
to the role of coalitions in deliberation is the disagreement between the
discursiveness at the individual level (Dryzek 2002), and the need for dialogue
between groups (Mansbridge 1983).

However communicative theorists, particularly in the U.S., are facing an uphill battle
in empowering civil society. This is because of the declining participation of
Americans in most aspects of civic life, and especially in politics (Putnam 2000;
Macedo 2005). This has led to a declining effectiveness of democratic institutions,
and in turn has weakened the justification of an affirmative state (Fung and Wright
2001). Recent experiments in direct citizen participation seek to reverse this trend by
actively soliciting participation, and empowering the civil deliberators with some

20
action-making authority (Fung 2001; Roberts 2004). In the site planning for the
World Trade Center called “Listening to the City” over four thousand New Yorkers
came to a high-tech meeting to create alternative visions to what had been proposed.

There are at three limitations of the Habermasian approach in empowering civil
society. The first is that it operates within core structures of constitutionally
organized democracy (Gutmann and Thompson 2004, 32). This makes any ad hoc
project-specific substantive deliberation subordinate to proceduralism. Some
scholars have demonstrated that the power dynamic in mega-projects makes any pure
proceduralism meaningless (see Flyvbjerg et al 2003). The second limitation is that it
assumes “private persons” are acting autonomously in the process.
11
This underplays
the significance of community organizing and interest-group participation, often
based on the portrayal that the community is the “radical Other” to the public interest
(see Sandercock 1999). Nonetheless, communities even with their lack of formal
organizations and absence of political boundaries, continue to be formed as people in
contiguous territories form new organizations, networks and associations (Carr 1992;
Lyon 1999; Putnam and Feldstein 2003).
12
This is fertile ground for empowering

11
The bourgeois were private persons, and as such did not rule. Their power was thus derived from
publicity, and their reasoning was guided by the subjectivity of the family’s intimate domain.
(Habermas [1962] 1998, 28)
12
Community is often confused with society and other forms of communal association. For example,
Ferdinand Tonnies’ work Gemeinschaft and Gesellschaft (community and society) has been the basis
for Weber’s usage of Vergemeinschaftung and Vergesellschaftung. However, there is no satisfactory
translation of these terms. (Weber :136) According to Sennett, “Gemeinschaft” originally meant the
full disclosure of feelings to others and has historically come to mean a community of people. This

21
civil society. The final limitation is that it fails to address what Foucault called
“dividing practices” of subjects in the participatory process that could be a function
of the production of power:
The subject is either divided inside himself or divided from others. This
process objectivizes him. Examples are the mad and the sane, the sick and the
healthy, the criminals and the ‘good boys’.
Foucault (1983, 208)

In the context of empowerment, scholarship in psychology focuses on individual
behavioral outcomes, and often sidesteps the societal context (Sampson 1983, 12).
Not surprisingly, therefore, most theoretical and empirical literature on
empowerment is reduced to the individual level (Peterson and Zimmerman 2004).
This individual empowerment however, may be illusionary if the macro-level
political and historical context is ignored (Riger 1993). There is some evidence that
individuals within a group may develop a sense of control, even if the group’s power
does not change over time (Chavis and Wandersman 1990). In such an instance of a
zero-sum game, empowerment of under-represented or needy subsets of groups
merely increases competition for the same resources (Riger 1993). Thus for
deliberative empowerment, the participatory project (in this case, the CBA) needs to
have a higher-level political support (Fischer 2006), and the accompanying
redistribution of power.

makes gemeinschaft a special social group in which open emotional relations are possible (Sennett
311).

22
If planning is community-centric, organizing and territoriality form the bedrock of a
community. The first essential characteristic the Chicago school identified in a
community was a “population territorially organized” (Park 1936). Territoriality is
significant for planners, since planning processes and power struggles are place-
based (see Lofland 1973). Organizing is also significant because it is the primary
method of linking individuals into communities and encouraging participation
(Dalton et al 2000). To illustrate, in 1997, the population across seven cities and part
of the county in Los Angeles along the 20-mile Alameda Corridor began organizing
themselves with the help of environmental and labor groups.
13
They were united as a
single community by the $2.4 billion dollar rail trench, and the environmental
impacts and employment associated with it.

13
The community organizing drive led to the formation of the Alameda Corridor Jobs Coalition
which received technical assistance from the Center for Community Change (Washington DC) and
the Employment Law Project (San Francisco, CA).

23
Public Interest and Community Benefits

Determinations of what serves the public interest, in a society containing
many diverse interest groups, are almost always of a highly contentious
nature. In performing its role of prescribing courses of action leading to
future desired states, the planning profession must engage itself thoroughly
and openly in the contention surrounding political determination. Moreover,
planners should be able to engage in the political process as advocates of the
interests both of government and of such other groups, organizations, or
individuals who are concerned with proposing policies for the future
development of the community.
(Davidoff 1965)

In their pursuit of equity, planners confront what Briassoulis (1999, 892) calls a
“constellation of interests” many of which conflict with one another. Professionally
though, it is commonly recognized that the paramount interest to which a planner is
to serve is the public interest.
14

A. Public Interest
The concept of “public interest” in political philosophy is very closely to the concept
of “common good”. However the crucial difference is the political role of the public
and the benefits derived by that public, which may not be common to everyone
(Douglass 1980). A shifting usage of the term can be traced back to Plato’s concept
of the Republic (Niemeyer 1966). In modern philosophy, Thomas Hobbes mentions

14
See for example the Code of Ethics for the American Institute of Certified Planners: “Our primary
obligation is to serve the public interest…”

24
that in the context of prosperity, if the public interest were to conflict with the private
interest, it was common for the passion of people to be more potent than their reason
(Hobbes 1651, 124). Therefore, it was only when the public and private interest
united that the public is most advanced. David Hume disagreed with Hobbes and
argued that our social sympathy cannot be reduced to our self-interest. It is therefore
possible for private interest to conflict with the public interest. Where the public
interest was in concurrence with self-interest, there was a passionate increase in this
sympathy. Although self-interest is the original motive for the establishment of
justice, sympathy with public interest is the source of the morality. Further,
according to Hume: “Government is a mere human intervention for the interest of
society” (Hume, Treatise, 3:9) from which it follows that public interest is the only
moral principle which justifies obedience to a government.

Early concepts of public interest had a moral (or rational) monolithic form separate
from self-interest. In the sense that it was a liberal and democratic revolt against the
royalties of the age, it was clearly not an aggregation of private interests (Douglass
1980). Public interest framed in this unitary manner could not conflict with
individual interest (Saks 1995) for it was built on passion. Passion was elicited
because of its ability to control other passions (Hirschman 1997). For example, for
Rousseau, so long as several men assembled together consider themselves a single

25
body, they have only one will, which is directed towards their common preservation
and general well-being (Rousseau 1968, 149).

In the classical turn of the twentieth century, the concept of public interest merged
with self-interest (see Flathman 1975). For Marx, the real interest of both individuals
and the public as a whole coalesced. In a capitalist society, Marxists are skeptical of
the concept of public interest, since they see it mainly as representative of the
interests of the ruling class. On the other hand, public interest was fragmented and
redundant for Adam Smith, since the private interest accomplished the most
desirable outcome: “Without any intervention of law, therefore the private interests
and passions of men naturally lead them to divide and distribute the stock of every
society, among all the different employments carried on it, as nearly as possible in
the proportion which is most agreeable to the interest of the whole society.” (Smith
1991). Since passions and interests merged within the realm of material welfare,
there was no political passion left in the public interest (Hirschman 1997). It is this
interpretation of utilitarian “interest” (see Pitkin, 1967) that makes Campbell and
Marshall (2002) wonder whether it has any use in planning.

However, there are several studies that suggest that public interest is not a Trojan
horse for utilitarian self-interest. The exposition of Albert Hirschman demonstrates
that there is an oscillation between public and private interests, and too much of one

26
or the other sends the pendulum swinging in the other direction (Hirschman, 2002).
This implies that there is a continuum between the public and the private interest,
rather than a distinct and at times conflicting dualism. Even when there is a conflict,
Lief Lewin’s study of Western democracies questions whether self-interest
dominates over public interest (Lewin, 1991). Although individuals are guided by
economic motives, their interests were determined as much by their assessment of
the government’s ability to manage the economy of the country as by their private
economic advantage.

A dynamic, pluralistic form of public interest that comprehensive planning would
find useful, has not received as much attention in planning. One thread of this genre
of public interest can be traced to the work of John Dewey who argued that the
public interest was to be continuously constructed through the process of unbridled
deliberation for the shared good in a democratic setting. Just as the public itself was
in a flux, always adapting and learning, public interest too was dynamic, changing
with time and place. Another thread can be traced to Bentham, who held that the
right decision was to maximize the interests (Plant 1991). As such, there would not
be a static “public interest” but that which emerged from the benefits-cost analysis of
interests. Schubert describes the "Balance of Interests" theory that assumes that the
outcome of negotiations between the various interests will produce an outcome,
which over time will be the best and most democratic representation of the public

27
interest (Schubert 1966). The dynamic form of public interest would allow this
balance to form uniquely in different contexts. The advantage of this concept is this
it allows multiple public interests to be acceptable in different contexts, but a unitary
public interest to emerge in each instance.

However, within pluralism there are two conflicting visions of public interest:
egalitarian and multicultural. The former, drawing on the political pluralism of David
Truman and Arthur Bentley embraces a concept of public interest that individuals
adopt by virtue of being part of the public (Barry 1964). Public interest is therefore
akin to other interests that make people organize into interest groups (see Truman).
This organization could be spontaneous, but also institutional (such as in class,
gender, race). The egalitarian vision actively seeks to establish procedural norms of
public interest that transcend group boundaries (Barry 2002).

The multicultural vision of public interest is embedded within group identities. Thus,
identity and interest become intertwined. To illustrate, individuals with group
affinity organize around mutual identification rather than self-interest (Gutmann
2003). Organized identity groups become a subset of interest groups, but are not
reducible to pursuing interests alone. At the same time, elected officials cannot be
trusted to be transformed from representing special interests to being trustees of the

28
public interest (Gutmann and Thompson 2004). Thus the interest of all can only be
met through a process of public deliberation (Benhabib 2002).

This theoretical analysis shows that there are deep philosophical reasons for the
tensions in the “public interest” similar to the competing ideals of the “public” (see
Roy 2001). This leads to significant problems in writing and implementing plans,
approving projects, and using governmental tools like development agreements that
involve conflicting interests.

B. Legal issues around “Public”
The layman’s interpretation of the adjective “public” such as public spaces, public
restrooms, public uses and public meetings implies openness (unrestricted) as well as
commonness (non-exclusivity). However, each of these clauses is defined and
governed by a public entity that determines the legal structure of the responsibilities
and rights associated with the spaces, the meetings, the uses and the restrooms. A
“public purpose” served by a marine training exercise may be off—limits to the
“public”. Therefore what determines openness or commonness is not the label
“public” but the governance associated with it. By corollary, the political and legal
structure of governance determines the structure of the “public”. Ironically therefore,

29
it is not the public that determines the planning process, but the planning process that
determines the public.

An example is the US Supreme Court ruling in the Reno vs The City of New London
(2005) case on eminent domain. This case revolved around the definition of “public
use”. In ruling in favor of the City of New London, the Court embraced a broader
definition of public use, interpreted as “public purpose”. The majority of the judges
in this case opined that the redevelopment plan served a public purpose because it
would provide appreciable benefits to the public such as new jobs and added
revenue. The “public” was thus determined from economic development studies of
the impact of the development in surrounding areas and the city, rather than
restricted to those whose houses were being demolished. The public was also defined
through the record of testimonies in the planning process.

There are at least three major implications of this ruling for planning educators and
practitioners. The first is the significance of economic development within the
comprehensive planning process. The central role played in this decision involved
the economic development plan, which would provide “appreciable benefits to the
community” (545 US: 04-108, 13). The Supreme Court rejected the argument that
economic development does not qualify as public purpose. It cited the Euclid vs
Amber (1926) case in the hope that comprehensive planning would create a “whole

30
greater than the sum of its parts". In doing so it put a greater onus on planners in
determining community benefits, even when they encompass issues that are not
merely situated within the domain of physical land-use planning.

The second is the role of public participation in constructing the public interest. The
court acknowledged that there could be a clash between public and private interests,
and amongst private interests. However, in his concurring opinion with the majority,
Justice Kennedy notes that the identity of most private beneficiaries were unknown
at the time that the city formulated its plans (545 US: 04-108). The Court ruled that
due to the plan’s comprehensiveness and public participation in the process that a
public purpose became established. By corollary, had a private interest initiated the
planning process and curtailed public participation, the public purpose would not
have been established.

The third is the implication that there is no unitary public purpose that over-rides
what is legitimately constructed at the lowest level of governance, in this case the
City of New London. The court refused to second-guess what was in public interest,
instead deferring to the judgment of local government. In doing so, the court
affirmed that the public purpose should be determined at the smallest level of
governance by the public.

31
C. Towards Community
Planning has often been interpreted as being about creating community:
To a substantial extent, such as by helping create a more vibrant public realm,
planners can help create community and literally bring people together.
(Wheeler 2004, 240)

The concept of the “community” has often been lost in translation
15
. In its current
usage, however it is closely connected with modern planning. In fact there is hardly
any discussion of “community” in sociological literature, till Dr. Galpin, a pioneer in
rural social surveys in the early 20th century defined it in terms of the trade area of a
village (Harper and Dunham 1959). With the advent of the automobile, the garden
city concept and other suburban enclaves began shaping the physical vision of
“community”. By the mid-twentieth century, the term “community” was widely used
in sociology carrying as many as ninety-four different meanings (Hillery 1955).
Thomas Brenden (1978:5) described a consensual definition of a community as “an
aggregate of people who share a common interest in a locality”. The literature is not
precise about the size of this locality, which can range from a neighborhood to the

15
Community is often confused with society and other forms of communal association. For example,
Ferdinand Tonnies’ work Gemeinschaft and Gesellschaft (community and society) has been the basis
for Weber’s usage of Vergemeinschaftung and Vergesellschaftung. However, there is no satisfactory
translation of these terms. (Weber :136) According to Sennett, “Gemeinschaft” originally meant the
full disclosure of feelings to others and has historically come to mean a community of people. This
makes gemeinschaft a special social group in which open emotional relations are possible (Sennett
311).

32
city/suburb. However, Brenden cautions us that the community is more than the
locality: it is the experience that is more important than the place (Brenden, 1978).

Simultaneously, during the mid-twentieth century a plethora of community
organizations, community development corporations, and community service
projects sprung up across the country. This led to the acceptance of the term
“community” in public policy such as the Community Redevelopment Act in
California and Community Development Block Grants in the Federal Government.

However, the definition of community continues to evolve. More recently, in
participatory public health, scholars have attempted to arrive at a consensual
operational definition of the “community”. Through in-depth interviews with
different treatment groups, they were able to arrive at a common definition as a
“group of people with diverse characteristics who are linked by social ties, share
common perspectives, and engage in joint action in geographical locations or
settings.” (MacQueen et al 2001). This definition embodies five core elements of
community — locus, sharing, joint action,

social ties, and diversity. Firstly, the most
commonly agreed element was “locus” (a sense of place), which proves that the
concept continues to be associated with physical anchors such as the corner grocery
store or church. Secondly, sharing referred to both the intangible social bonds such
as shared values, interests and ideology, as well as physical attributes such as race or

33
gender. Either locus or sharing were included in 93% of the responses in reference to
community. Thirdly, joint action was a conscious attempt to create a community
through activities that were of voluntary nature. This is the metaphorical bowling
community of Putnam. Fourth, social ties refereed to relationships that people
belonged and trusted such as siblings, neighbors and co-workers. And finally,
diversity referred to the social complexities within groups, but was rarely referred to
as an essential element of community.

A key definition of “community” in the context of development was provided by the
U.S. Environmental Protection Agency. Whilst defining “community-based
environmental protection” which emphasizes community participation in
environmental decision-making (John and Mlay 1999; Mazmanian and Kraft 1999;
Press and Balch 2002) the agency stated:
The definition of “community”…includes places and people that are
associated with an environmental issue(s).The community may be organized
around a neighborhood, a town, a city, or a region (such as a watershed,
valley, or coastal area). It may be defined by either natural geographic or
political boundaries. The key factor is that the people involved have a
common interest in protecting an identifiable, shared environment and quality
of life. Any “community” will include a variety of differing values,
perceptions, priorities, and complex interrelationships around environmental
protection, as well as other issues.”
(U.S. Environmental Protection Agency 1999, 5)

34
This leads us to some observations of “community” that are relevant to planning:
(1) Community is usually associated with place, though it may not be bounded
by it. This implies that place serves as an organizing force amongst
individuals by bundling interests, conveniences or circumstances.
(2) Communities are being developed along other forms of association, which
include political, social, cultural, and economic. These associations straddle
the gap between the crowd and the congregation (see Putnam et al 2003).
(3) As individual identities transform, there is a greater prevalence of placeless
communities. As new communication systems and pace of development
transforms space and time, localities become uprooted from their roles as
permanent anchors with a unique identity-forming meaning. According to
Castells (2000, 406) a “space of flows” now substitutes for a “space of
places”. The organizing force of the community is thus shifting from locality
to interest flows.

Where as planners consider community building as a core component of their
curriculum, they are also playing a balancing act between the interests of a
community and that of the larger public. On the one hand, individuals in the
“community” may become absorbed in territorial and communitarian rigidity that
makes them insular, both physically as well as socially (Sennett 1992). On the other
hand, participating in public discourses develops new leaders who are most

35
intimately connected with those who will benefit from the urban development and
opportunities across the city (Appleby 2003). Due to the significance of the
community in being the building block for a larger public, it is important for planners
to confront the myth that the community is the “radical Other” to the public interest
(Sandercock 1999).

36
Table 1. From Public Interest to Community Benefits

Position Description of
“Public Interest”
Problem Definition of
“Community”
The “Community
Benefits”
paradigm
Unitary Egalitarian Objective morals-
based interest
common to all
(Hume)
No political
consensus on
interests
Expansive and
inclusive
Political consensus
on benefits to
communities
organized by
political jurisdiction
Utilitarian Material interests
dictated by
market forces
(Smith)
Public interest
reducible to
private interests
Taxing
jurisdictions
Techniques such as
benefits-cost
analysis can be
used
Plural Egalitarian Objective moral
and material
interests common
between groups
(Dewey)
Groups and
interests
constantly
changing
Groups form
communities and
communities
form groups
Procedures for
determining
community
preferences on
“benefits”
Plural
Multicultural
Interests are part
of identity which
is unique to
different groups
(Taylor)
Insular,
fractious
groups; smaller
groups with no
political
influence
Identity groups Deliberation
amongst
community groups
about common
benefits

37

D. Community Benefits vs Public Interests

Public interest planning adapting to any of the theoretical positions on “public
interest” runs into irreconcilable problems at the implementation stage. Table 1
summarizes some of the theoretical positions we discussed before. We have grouped
them under four categories: (1) Unitary Egalitarian; (2) Utilitarian; (3) Pluralist
Egalitarian and (4) Pluralist Multicultural. The utilitarian interpretation of “interest”
is quite straight-forward and has been the subject of several scholarly studies. The
other categories need some explanation as different authors have used conflicting
categories. In this paper, unitary and pluralist egalitarians merge in their ideals for a
transcendental public interest, except that the pluralists allow “public interest” to
change with time and group configurations. In this sense there are multiple or plural
“public interests” that can form for pluralists. Multiculturalists see these multiple
public interests as so entrenched in group identity that they cannot be separated from
the groups themselves.

These categories are a sample of prominent theoretical positions and are not
exhaustive of the literature. However, they serve as useful examples of the contrasts

38
between the current framework of “public interest” and the proposed framework of
“community benefits”.

In the context of equity planning, some of the characteristics of the community
benefits framework that score over the public interest framework are:
(1) The “community” is usually place-based. It is therefore a more appropriate
platform for advocacy than the “public”.
(2) Development projects are geared towards specific outcomes (such as profit
margin, FAR, number of units, gross leasable space). “Public interest”
without the backing of mandatory policies can never be imposed ministerially
on a project. Although some regulatory principles (such as prevailing wages)
are pursued in some cases, the deeper equity requirements are not.
“Community benefits” on the other hand, requires a discretionary deliberative
process, which can generate specific outcomes.
(3) “Interest” pre-supposes a stake in the outcome of a project. This precludes the
possibility of interest-formation during the process. It is common for planners
to call stakeholder meetings after mailed or posted public notices. These
stakeholders are also dubbed as “interest groups”. And the disadvantaged
who do not have the resources to fight the stronger interest groups lose out
(Etzioni 1994). However “benefits” makes no assumption of participant
intent, except that the participants want to convert “costs” to “benefits” for a

39
group larger than themselves. This is appropriate for long-term benefits, in
which the stakeholders are not just bargaining for themselves, or their narrow
“interests”.
(4) “Public interest” is a deceptive term for either unscrupulously serving elected
officials, fanning personal ideals on other people, or playing broker between
the developer and opposition groups (see for example Schubert 1960).
“Community benefits” is an empowerment mantra for place-based issues to
be identified and addressed in an explicit manner.
(5) “Public interest” is passive. Politicians have no way to gage the interest in a
project, unless there is an organized constituency. Common terms used by
developers to describe this organized resistance are NIMBY, LULU,
BANANA and CAVE. Then the decision becomes a zero-sum political game.
With all the communicative action, it is difficult to generate passion on
projects of public interest. The frame of “community benefits” involves
active intervention and mutual benefits. It entails negotiations, commitments,
and sincere assessments of all impacts on a community.

The above argument demonstrates that the phrase “community benefits” is more than
a euphemism for “public interest”. Most significantly, although “public” attempts to
be a neutral qualifier, “community” makes no such pretense. It is the Other to the
developer, which includes everyone from the elected officials to the bystanders. In

40
fact, community and politics are inextricably linked (Frazier 1999). It has the
potential to overcome some of the hurdles that the practicing planner faces in
seriously redistributing power for equity.

The big question is how equity objectives are to be advanced in the face of a
society whose electorate and political and economic leadership tends to be
uninterested in them…
(Wheeler 2004, 64-5)

41

Chapter 2: Development Agreements

In inner-cities and dense urban settings, there is little luxury of large swaths of
undeveloped land, in which the traditional sustainable principles can be applied.
However, one opening for comprehensive planning in the urban setting is through
development agreements, which are discretionary, and could encompass a variety of
planning goals (see Blackburn 2000):

Unlike earlier periods in which planners in their regulatory roles devised
universal formulas for development in downtown, now each project is
unique, tailored to the time, place, and specificities of development.
(Loukaitou-Sideris and Banerjee 1998)

The proliferation of community redevelopment agencies in urban areas, allows these
deals to benefit from public incentives such as land banking and tax abatement
(Barnekov, Boyle and Rich 1989). It is an alternative to the regulatory approach of
linkage, where developers are required finance impacts on the community such as
child-care centers, low-income housing, parks and social services (see Alterman
1988, Callies and Grant 1991, Dreier and Ehrlich 1991). These mechanisms are
increasingly common, since public agencies are commonly constrained by general
taxation limits (Galles and Sexton 1998, Reid 1988).

42
As a result of the building industry’s efforts to vest development rights in properties
(Holliman 1981), in 1979 California became the first state in the nation to establish
development agreements (Fulton 1989), and since then, fourteen other states have
followed.
16
At the most basic level, a development agreement guarantees
development rights in return for public benefit exactions (Callies and Grant 1991;
Goldwich 1989). Although developments agreements are not illegal contracts that
bargain away the city’s planning authority,
17
in practice, they do limit the future
ability to plan
18
over the duration of the agreement.
19
For public planners, this raises
as issue whether development agreements advance the equity goals of planning.

Negotiated land use tools (such as development agreements) are incremental policy
interventions on a project-by-project basis. They give planners a flexible tool that

16
The fourteen states (besides California) are: Arizona, Colorado, Florida, Hawaii, Idaho, Louisiana,
Maryland, Minnesota, Nevada, New Jersey, Oregon, South Carolina, Virginia and Washington.
Courts in Nebraska and Wisconsin have also upheld the use of development agreements even without
enabling statutes. Texas has not enacted legislation expressly authorizing development agreements,
however there are a number of statutes that provide authority for certain types of development
agreements (or at least specific topics often included in development agreements) (Camacho 2005).
Depending on the local custom or the specific subject matter involved, agreements between the
landowner/developer and the development authority may be referred to by a number of names such as
Private Development Contract, Public Improvement Development Agreement, Community Facilities
Agreement or Participation Contract (Haywood and Hartman 2001).
17
The “reserved powers doctrine” holds that “the legislature cannot bargain away the police power of
the State”. Stone v. Mississippi, 101 U.S. 814, 817 (1880). The trend has been to allow development
agreements unless they constitute an abandonment of the municipality's zoning authority. Several
statutes also require provisions in the agreements that pertain to the duration of the agreement and the
conditions upon which the agreement may be terminated, that is, to protect the health, safety, or
welfare of the public (Green 2004).
18
See, e.g., City of West Hollywood v. Beverly Towers, 805 P.2d 329, 334 n.6 (Cal. 1991)
(“Development agreements ... limit the power of that government to apply newly enacted ordinances
to ongoing developments.").
19
These agreements can be long-term or have no explicit duration, which can constrain a
community’s ability to plan (See Cowart 1989).

43
can fine-tune requirements and distribute the planning gains proportionally among
projects (Healy et al 1995). When used to promote sustainability, they can
meaningfully integrate the community and stakeholders in a project that directly
impacts them (Blackburn 2000). They can be useful in negotiating large projects
with multiple stakeholders (Kessler 1985), especially since uncertainty in
conventional planning is quite pronounced (Kramer 1981).

Development agreements can be seen as a legal instrument to implement
comprehensive plans.
20
In this construct, it does not compete with the comprehensive
planning process but supplements it, introducing socio-economic issues that go
beyond physical planning. Many statutes authorizing development agreements
specify that these agreements must conform to underlying land-use plans (Wegner
1987, 326; Camacho 2005, 229). The conformity requirement brings with it an
element of planning (through plan amendments or new master plans) when the
development is not completely envisioned by an existing plan (Porter 1989). Thus
conceptually, the planning, public benefit exactions and development approvals can
be consolidated into a single process (see Sigg 1985, 708).

At the same time, development agreements could arguably be antithetical to
comprehensive planning (Camacho 2005, 53-56). There are several reasons. Firstly,

20
Development agreements “encourage private participation in comprehensive planning”. Cal. Gov't
Code § 65864(b) (see West 1997).

44
these agreements, grant unequal development rights among similarly located parcels
(Mandelker 2003). By freezing development rights in certain parcels over a long
period of time, they may have a “localized calcifying effect”(Camacho 2005, 60).
Secondly, project-specific planning and the accompanying “quick fix” (Porter 1989,
149) land-use plan amendments encourage a piecemeal approach to land-use (Rose
1983). This is problematic since it provides an escape valve from the pressure of
advocacy planners. Thirdly, most non-land-use components (including social and
economic policies) are often ignored. This is because they are broad policy
guidelines (Juergensmeyer and Roberts

1998) in planning documents without any
site-specific force. Fourthly, courts have been reluctant to evaluate subjective and
often conflicting values and objectives of comprehensive plans to determine
consistency (Camacho 2005, 67-68), particularly where the adoption of the
agreement is a legislative act. Courts would rather defer to the intent of the
legislature in interpreting these values. And finally, a lot of states do not require
conformity with the underlying comprehensive plans.
21
Thus communities get
frustrated when they participate in myriad workshops, charettes, and visioning
exercises to draft community plans, only later to see something entirely different get
built.

21
These states include Colorado, Louisiana and Minnesota. (See Camacho 2005, fn 239).

45
The concept of public interest has traditionally been the normative basis for
comprehensive planning (Meyerson and Banfield 1955; Altshuler 1965). This
interest aligns itself with the maximization of public benefits
22
over a long-term
basis. At the same time, long-term focus increases procedural uncertainty for
developers (Abbott 2005). Developers are usually interested in minimizing
uncertainty with minimal cost. Although the two interests need not be antithetical,
the public-private agreement occurs in a spectrum of tenuous balance between
cooperation and hostility. The following section reviews legal, planning and public
administration literature to establish the procedural and substantive strengths and
weaknesses of development agreements in promoting equitable development.

Developer Benefits

The doctrine of constitutionally protected vested rights arises from the Fifth and
Fourteenth Amendments to the Constitution that hold that property cannot be taken
for public use by the state without just compensation (Knight and Schoettle 1993).
Thus, changes to existing zoning to land for which a developer has gained vested
rights to develop could be a regulatory taking. However, a developer’s right to

22
See Bruce Douglass, The Common Good and the Public Interest, 8 Pol. Theory, 103-117 (1980).

46
develop their property does not automatically vest with certain planning approvals.
23

They risk losing significant investments in land acquisition, design and planning
approvals if subsequent planning or zoning changes render the proposed
development impermissible (Schwartz 2001).
24
While some states require issuance
of a building permit and action on the permit, others decide vesting issues using
subjective formulae and criteria (Delaney 2000; Delaney 1993).

As a vested right, development agreements convey discrete property interests that
increase the value of the real estate used as collateral in the land acquisition
financing process (Hammes 1993). In this sense, the development agreement
becomes a component for paying the mortgage on the land. The agreement enhances
the creditworthiness of the proposed development in the land development
(construction) financing process as well. The lender is able to ensure, that in the
event of borrower default, it can obtain any land use approvals and permits that have
been issued to the developer.

The developer interest in early vesting rights as the sole motivation for development
agreements is suspect at best. This is because several states provide alternative

23
County of Kauai v. Pacific Standard Life Insurance Co., 653 P.2d 766 (Haw. 1982); Avco
Community Developers Inc. v. South Coast Regional Comm’n , 553 P.2d 546 (Cal. 1976); County
Council for Montgomery County v. District Land Corporation, 337 A.2d 712 (Md. 1975).
24
In Avco Community Developers Inc. v. South Coast Regional Comm’n , 553 P.2d 546 (Cal. 1976)
the plaintiff spent $2-$3 million grading a seventy-four acre site. However, a newly establish Coastal
Commission then asserted its right to review the project and the California Supreme Court agreed.
This started the vesting rights war (see Fulton 1989).

47
vesting tools (such as vesting tentative subdivision maps
25
and specific plans
26
) that
perform similar functions as development agreements. More often, development
agreements are bundled with the following:
(a) Economic Development Agreements to incentivize the location of firms with
capital investment and employment (see Williamson et al 2002);
27

(b) Disposition Agreements to sell or lease public land at or below fair market
value; and
(c) Redevelopment Agreements that include tools such as the use of eminent
domain or tax-exempt bond financing (see Froelich 1994).
Although each of these agreements may have its own policy goals and legal
limitations, they have the potential to be used by developers as vehicles for rent-
seeking.

25
See e.g., Cal. Gov't Code 66498.
26
“Concessions regarding timing and capital improvements could be obtained through other
regulatory agreements – particularly California’s ‘specific plans’ a hybrid zoning and planning tool
applied at a district level.” (Fulton 1989, 6)
27
Common location incentives offered by state governments include property tax abatements,
corporate income tax exemptions, low-interest loans, research and development tax exemptions, and
sales tax exemptions or refunds. Several local redevelopment authorities also use “TIF refunds” which
are refunds on any incremental property tax collected from the base year.

48
Public Benefits

Historically, public benefits
28
in a comprehensive plan were provided by federal
grants
29
and local taxes (see Silva and Barbour 1999). With the shrinking role of the
federal government in urban development (O’Connor 1999) coupled with sweeping
anti-tax measures
30
in the 1970s and 1980s, local governments became short-
changed on revenue sources (see Summerell 2003). This dilemma is illustrated in the
lose-lose situation for planners in California. Propositions 62 (1986) and 218 (1996)
required a super-majority (two-third) voter approval to impose any property-related
(“special”) fee or tax to fund a specific project.
31
Thus, public benefits identified in
comprehensive plans had to overcome higher political thresholds and expensive
elections if the public was required to pay for them. This led to privatization of
governance (Reynolds 2004) where private exactions, dedications and fees were used
to fund public facilities (Callies and Suarez 2005). Even then, none of California’s
cities or counties found it politically feasible to charge developers the total cost of
financing off-site improvements. In a statewide survey in the late 1980s (Cervero
1988), nearly half of the respondents estimated that less than one-quarter of the cost

28
“Public benefits” is used in the comprehensive sense, including the provision of physical
infrastructure, municipal services (such as police and fire) as well as social infrastructure. Social
infrastructure includes affordable housing units, child-care facilities, mass transit systems, and
cultural centers. (See Janutis, 1994).
29
For example, see Raymond (2003).
30
For example, Proposition 13 in California (1978) reduced local property tax revenues by
approximately $6.1 billion (53 percent) virtually overnight by capping property tax rates at one
percent and rolling back property values for tax purposes to the 1975-76 level (California Budget
Project 1997).
31
Cal. Const., Art. XIII C & D; see also Legislative Analyst’s Office (1996).

49
of highway improvements necessitated by new developments was being collected
under the private funding mechanisms.

If public financing of comprehensive plans received a setback from anti-tax
measures, the worst was yet to come. The two companion doctrines of “essential
nexus” in Nollan v. California Coastal Commission 483 U.S. 825 (1987) and “rough
proportionality” in Dolan v. City of Tigard 114 S. Ct. 2309 (1994) set the boundaries
for when development exactions became unconstitutional takings (Stroud and
Trevarthen 1996; Lawrence 1988; Kayden 1991; Crane 1996). Thus provision for
public benefits became subject to a heightened scrutiny, such that fees collected or
spent on general public purposes were invalid (see Calles and Suarez 2005, 486). In
response to these doctrines, the California legislature enacted the Mitigation Fee Act
(1996)
32
that prohibited municipalities from requiring developers to pay for any
public benefits that were beyond the quantified mitigation of impacts caused by their
own project.

Given the combined effect of these forces, the provision of public benefits has
become narrower and more privatized, as governments need to enhance their revenue
in ways they would not need to if they had ability to either tax or levy categorical
fees (Reynolds and Ball 2005). Planners are now forced to look at development

32
Cal. Govt. Code, 66000 et seq.

50
projects as isolated opportunities, rather than a component of a broader public
resource in a comprehensive scheme of community development.

The reliance on “innovative” financing methods
33
, particularly in older urban
communities in California, has added new disjointed layers of public-private
bargaining. For example, redevelopment bodies have their own property tax
resources that they could spend on infrastructure, housing authorities may have
access to state and federal housing and community development grants, and other
economic development bodies may have tax incentives for capital and labor.
Procedural Issues

The procedures are commonly laid out in enabling legislation. The development
agreement process typically follows the following steps:
1. Initiation of the agreement by the developer. The developer requests a
development agreement from the public agency. Alternatively, the agency
could solicit statements of interest to develop from current land-owners.
2. Negotiation of the agreement. This occurs in a confidential setting between
the two selected teams.
3. Public hearings and approvals. These vary by jurisdiction but could include
Planning Commission and City Council hearings.

33
See Governor’s Office of Planning and Research, State of California, A Planner’s Guide to
Financing Public Improvements (1997).

51
4. (Optional) referendum. If the state (e.g. California) considers the agreement
to be a legislative act, and allows such acts to be petitioned by voters.
The strength and weaknesses are not unique to development agreements, and are
common among other public-private deals as well. However, we examine the issues
from a comprehensive planning perspective.
A. Negotiation Teams

The public benefits negotiation team usually consists of staff and consultants for the
public agency approving the development agreement
34
. The team may have limited
representation from agency governing bodies (such as the City Council or Mayor) as
long as open meeting laws are not violated. Some states may allow these bodies to be
briefed on the status of the negotiations in closed session meetings.
35
The developer
constructs a parallel negotiating team consisting of expertise in real estate finance,
project design and land-use law. During the negotiation process the developer may
involve the lender (Hammes 1993, 170-177) and any other entity with equity in the
project.

34
Institute for Local Self Government, Development Agreement Manual: Collaboration In Pursuit Of
Community Interests 43-44 (2002). The staff includes the city manager (or representative), the
agency’s planning director (or representative) and city attorney.
35
See e.g. Cal. Govt. Code, 54956.8.

52
With some exceptions
36
, other jurisdictions are not party to development agreements,
even if they have regulatory authority over the development.
37
Other stakeholders,
even though they may be impacted by the agreement, are usually not involved in
negotiations (Camacho 2005, 48). Even if affected parties have access to the
negotiation table, they may be systematically under-represented and have prisoner’s
dilemma problems.

There is some empirical evidence of the public sector’s inability to “cut a good
enough deal” in negotiated agreements (Cervero 1988, 540; Cowart 1989, 35; Weber
2002). In most instances, the justification is the lack of expertise on the bargaining
table due to limited resources of the public sector (Camacho 2005, 49). This is even
more so in communities with undeveloped areas (Rhoads 1994) vulnerable to sprawl.
Furthermore, the public sector is easily conflicted in legally representing the “public
interest” of the entire community, yet claiming politically to represent the multiple
and at times conflicting “private interests” of those directly impacted by the
agreement (such as surrounding neighbors or displaced residents). It is thus clear that
public benefits negotiation team does not have express authority to negotiate on
behalf of all the interests it seeks to represent.

36
Hawaii allows other agencies to be a party to the agreement. Haw. Rev. Stat. Ann. 46-121 to 46-132
37
For example, California statute does not establish any role for state or federal agencies. Cal. Gov't
Code 65864-65869.5. Ironically, the statute was written in response to Avco where a state agency, the
California Coastal Commission was involved.

53
B. Confidentiality During Negotiations
There are four reasons for confidentiality during the negotiation process.

Firstly, each negotiating team has pre-determined its parameters and bottom-lines.
These parameters are kept confidential so that the other side does not know the
leeway the negotiators have.
38
However, this confidentiality works against the public
negotiators, due to asymmetric information. This occurs when some people are privy
to information that others are not. The developer team has access to all planning
documents and legislators that will determine the negotiating positions of the public
benefits team. However, the public benefits team does not have access to all the
design alternatives, financing options and consultants that inform the developer
team. This is like playing poker with all cards of the public players exposed.

The second reason for confidentiality would be the exposure of intermediary
negotiating positions, preliminary proposals, or an incomplete deal to the public.
This is usually done to maintain a best faith effort at negotiating a smooth
compromise without political complications. This kind of information is usually
shielded from public records requests (Camacho 1995, 40).
39

38
Institute for Local Self Government, Development Agreement Manual: Collaboration In Pursuit Of
Community Interests 26 (2002).
39
Based on California Government Code 6254(a) that protects “preliminary drafts”.

54
The third and most significant reason for confidentiality during negotiations is to
enable the public agency to examine and discuss proprietary information submitted
by the developer (including financial records, proposed development performas and
trade secrets). Developers are especially sensitive to the potential for public access to
their financials statements and marketing information (Froelich 1994, 981).
40
These
documents are usually not subject to Freedom of Information Act or other related
public records requests.
41
However they are necessary, within the constraints of
asymmetric information, for the public benefits negotiators to understand the extent
to which exactions will be reasonable.

Finally, when there is disposition of real property, both sides would want to keep
confidential valuations. The parties may be contemplating the use of eminent
domain/condemnation and the public record of the discussion could imperil the
process. Further, if the transaction exposes one or both parties to legal action, there
could be confidential conference to discuss legal strategy. Thus, there are mixed
benefits to confidentiality of the development agreements process.
C. Public Input
Negotiated development processes offered an alternative to “zoning wars,” where
developers employ a variety of tactics and maneuvers in an attempt to bypass or

40
See Carbondale Convention Ctr., Inc. v. City of Carbondale, 614 N.E.2d 539 (Ill. App. Ct. 1993).
41
FOIA Exemptions (b)(4)-(b)(6). Cal. Govt. Code 6254.

55
defeat local opposition (Paterson 1999). It gives opportunity for developers to solicit
public input earlier in the planning approval process (Healy et al 1995). Both
California and Hawaii require a public hearing prior to the adoption of the agreement
(Callies and Tappendorf 2001). Thus, even though the processes may proceed
simultaneously, the development agreement process has its own requirements, in
addition to the requirements and standards also applicable to related rezoning and
other planning approvals (Wegner 1987, 1008). For example, the development
agreement process does not void the normal noticing requirement to affected
property owners that occurs in the traditional rezoning process. This ensures that due
process obligations will be satisfied.

Due to the confidential nature of the negotiations, there has been some concern if
development agreements receive the level of public input in traditional
comprehensive planning.
42
In the comprehensive planning process, hearings are held
early in the process and public input is used to shape the plan. In contrast, in the
development agreement process, there is room only for brief public comment in a
last-minute hearing on a project that is substantially negotiated in secret. At this
point, both the planners as well as legislators are so much invested in the project that
they serve as project advocates, and do not want to see changes made to the
agreement. Thus a development agreement process can only align itself with

42
Camacho (2005, 37): “…prenegotiate the extensive and intricate terms of their agreements outside
of public forums”); Fulton (1989, 6): “negotiations between the city and developer unfairly lock out
citizen groups”.

56
comprehensive planning if there are windows in the confidential negotiation process
that allow for public input.
D. Implementation and Performance
It is questionable if municipalities continue to monitor the implementation of the
agreement, particularly since some states do not require periodic compliance reviews
(Camacho 2005, 52). Public agencies have to rely on their own staff for enforcement,
since they did not make any other stakeholder a party to the agreement. The process
could also be complaint-driven, but it would be quite inefficient since third parties
may not be intimately familiar with the agreement. Therefore, a lot of them find it
expedient to ask for developer self-reporting, which could only work if the developer
is actively engaged in drawing building permits from the municipality.

The difficulties faced in monitoring development agreements are illustrated by the
study of the City of San Diego, California. This is a rapidly growing beach city with
constrained land. The legislature (City Council) adopted guidelines for negotiation of
development agreements in 1982. Since then over 60 development agreements have
been negotiated. At the same time, the responsibilities for monitoring the agreements
rested with the individual department that was interested in the benefits. For
example, if the developer were to pay $1 million for parks on issuance of two-thirds
of his building permits, the Parks and Recreation Department would need to track the
park payments. However, the Parks and Recreation Department would have to

57
coordinate with the Development Services Department to know when the two-thirds
building permits had been issued. To complicate matters, the Parks and Recreation
Department was not responsible for ensuring that the developer had paid, and could
lose track of payments, if they were based on intricate performance schedules that
changed either formally (through plan amendments) or informally.

According to an application submitted to the League of California Cities, the staff of
two departments Development Services and Facilities Financing (Planning)
organized all information from existing development agreements to chart developer
commitments at various stages of development. Using tailor-made software, they
were able to create an efficient inter-departmental system, which would inform the
relevant departments about performance on the agreement. To use our previous
example, the developer would be automatically billed when the two-third permits
were drawn, and the Park and Recreation Department would be alerted of the $1
million anticipated for parks. The system would also track letters of credit, bonds,
and tentative map conditions.
Substantive Issues

A typical agreement consists of five sections:
1. Subject of the agreement. Includes site description, parties to agreement,
terms of the agreement, assignments and transfers.

58
2. Development of the Site. Includes scope of development, basic concept and
schematic drawings, all permits and plans, on-site and off-site improvements,
fees and taxes, recovery of costs, schedule of performance and rights and
responsibilities of the agency and developer.
3. Uses of the Site: Permitted uses and maximum density. Expects some
performance in terms of maintenance and non-discrimination.
4. Default, Remedies and Termination: Addresses default, recovery of damages,
and termination of the agreement.
5. General Provisions: Communication between parties, inspection of books,
conflicts of interests, and limiting liability of board members.
The strengths and weaknesses in implementing comprehensive plans will be
addressed from three angles: level of exactions, types of exactions and remedies.
A. Level of Exactions
There is a body of opinion that states that exactions in a development agreement
have to meet the Nollan and Dolan tests (see Crew 1990; Staritt and McClanahan
1995). This is because development agreements have both contractual as well as
regulatory components that are difficult to separate (Wegner 1987, 1000).
43
From a
regulatory standpoint, an exaction can never be “voluntary”: they are always
conditions to obtaining development permits (Berger 1988). The only permitted

43
See also Crew (1990, 28) in footnote 33, demonstrating the interplay between the regulatory and
contractual characteristics of development agreements.

59
exactions would be those that meet the essential nexus test and are roughly
proportional to the impact caused by the project:
Other exactions imposed to obtain additional revenue or unrelated
public facilities are forms of grand theft and are unconstitutional.
(Crew 1990, 53)
44

On the other hand, the inclusion of optional provisions beyond the approval of the
development suggests a voluntary contract with adequate consideration by both
parties (Wegner 1987, 1023; Knight and Schoettle 1993). The municipality is
offering not to enforce any subsequent land use regulation, a governmental benefit
45
,
which the developer may choose not to avail, in order to develop one’s property
(Callies and Tappendorf 2001, 695). In return, exactions that are part of the
contractual agreement could go beyond the boundaries set by Nollan and Dolan (see
Curtin and Edelstein 1993). An agreement with a condition that did not meet the
Nollan test has been upheld by the Court of Appeals for the Ninth Circuit Court.
46

Thus, if adequate trade-offs are provided, a takings challenge should not succeed.
It is possible to show a relationship between burden and benefit, or between
obligation and opportunity, by demonstrating that the added cost of including
the day care facility constituted a factor in determining what offsetting height
or density or length of freeze to provide.
(Wegner 1987, 1025)

44
See Collis v. City of Bloomington, 246 N.W.2d 19, 26 (Minn. 1976) (“A municipality could use . . .
regulations to exact land or fees from a subdivider far out of proportion to the needs created by his
subdivision in order to avoid imposing the burden of paying for additional services on all citizens via
taxation. To tolerate this situation would be to allow an otherwise acceptable exercise of police power
to become grand theft.”)
45
This is a governmental benefit since "it is well established that there is no federal Constitutional
right to be free from changes in land use laws." Lakeview Dev. Corp. v. City of South Lake Tahoe,
915 F.2d 1290, 1295 (9th Cir. 1990).
46
Leroy Land Development v. Tahoe Regional Planning Agency, 939 F.2d 696 (9th Cir. 1991).

60

In light of this, comprehensive plans could include “development agreements
financing” components that would pool exactions from projects across the
community, and would be a part of a long-term vision.
B. Types of Exactions
Besides paying for physical infrastructure, development agreements have yielded a
wide variety of public benefits such as job training programs, public golf courses and
clubhouse dedications (Porter 1989, 148-152).

There is no limitation on the type of exaction, as long as the agreement does not
impair the power of the government in promoting public interest.
47
However, the
types of exactions can be limited by the enabling legislation. Most enabling statutes
are broad enough to give enough leeway to local governments in providing public
benefits. At the same time, they may emphasize certain benefits over others. For
example, the California statute finds the lack of public facilities and infrastructure to
be serious impediments to development, and calls for “wherever possible”
mechanisms to finance these facilities.
48

47
See, e.g., Bollech v. Charles County, 166 F. Supp 2d 443, 452-54 (D. Md. 2001), aff'd, 2003 WL
21546001 (4th Cir.) (Agreement is "for the public good").
48
California Government Code Section 65864.

61
Thus, comprehensive plans should develop actionable “boiler-plate” language that
would cover a wide range of physical and social issues addressed in the plans, and
which could be incorporated into the development agreements.
C. Remedies
Remedies for non-compliance depend on whether it is the developer or the public
agency that is not complaint with the agreement.

Developer Non-Compliance

If the developer does not utilize the approvals, the public agency cannot take any
action (Delaney 1993, 60) except termination of the agreement. In River Vale
Planning Board v. E&R Office Interiors, Inc. 575 A.2d 55 (N.J. Super. Ct. App. Div.
1990), the developer did not perform site improvements under a development
agreement. The court held that those improvements were required only if the
developer proceeded with the project (Knight and Schoettle 1993, 791). Certain
remedies such as mandamus or mandatory injunction to compel the developer to
construct a building are very unlikely to be enforced (Froelich 1994, 985).

Furthermore, if the developer defaults on the mortgage, development agreements
could contain a subordination clause that would subordinate the property to the
financing interest (Hammes 1993). If the property is foreclosed, the lender gets the
rights to the property title, free and clear. At the same time, assignment rights may

62
allow the lender to select another developer, (depending on the agreement) with or
without the consent of the agency. These clauses make development agreements
creditworthy by transferring some of the risk burden to the public agency.

In order for the public agency to alleviate some of the risks associated with
performance of a single development agreement, commitments from multiple
development agreements should be pooled in a comprehensive manner.

Municipal Non-Compliance

Any subsequent planning, that would impair the development agreement, would not
only violate common law of contracts, but would also violate the Contract clause
49
in
the US Constitution (Wegner 1987, 1030-1035; Schwartz 2001, 735-738). The
agreement may limit the damages that can be claimed from the constitutional
violation. The developer would seek “interim damages” under the contract clause
(Schwartz 2001, 752).

Therefore, development agreements should expire within a cycle of the
comprehensive planning process, with reasonable duration for completion of all
phases of the proposed development. This way the parcels can be integrated within
the comprehensive plan for the entire area.

49
US Const. Art. 1 Sec. 10 (“No State shall…pass any…Law impairing the obligation of Contracts’)

63
Some lessons for planning from legal literature
Development agreements are incremental tools that can be both useful as well as
deterrent to the implementation of comprehensive plans. There are significant
procedural limitations of development agreements that inhibit the maximization of
public benefits. These include and ambiguity about public sector representation,
confidentiality requirements that serve the private sector, lack of systematic public
input into negotiations, and the difficulty of implementation monitoring. They work
well within the confines of bounded rationality
50
with incomplete information and
limited capacity. However, they are not useful in correcting structural distortions
arising from unequal distribution of power:
In the face of structural imbalances of power and life-chances, active
interventions seeking social justice are required, interventions that go beyond
liberal-pluralist bargaining and incrementalist strategies.
(Forester 1989, 62)

At the same time, there are substantive advantages to using the development
agreement that include flexibility in both the level and type of exaction. Finally,
expected commitments from various development agreements should be pooled as
part of comprehensive planning, and these agreements should expire in cycles that
are synchronous with the planning process.

50
see Simon (1958).

64
Some ways in which comprehensive planning can be reconciled with development
agreements include:
Development agreement process can align itself with comprehensive
planning if there are windows in the confidential negotiation process that
allow for public input.
Comprehensive plans could include “development agreements financing”
components that would pool exactions from projects across the community,
and would be a part of a long-term vision.
Comprehensive plans should develop actionable “boiler-plate” language that
would cover a wide range of physical and social issues addressed in the
plans, and which could be incorporated into the development agreements.
Commitments from multiple development agreements should be pooled in a
comprehensive manner.
Development agreements should expire within a cycle of the comprehensive
planning process, with reasonable duration for completion of all phases of the
proposed development.

65
Chapter 3: Community Benefits Agreements

This chapter describes the concept of a “community benefits agreements” which are
essentially development agreements with community coalitions.

Community Coalitions

There has been a steady increase in the academic interest in community coalitions
over the past two decades particularly in the fields of psychology, healthcare and
human services (Berkowitz 2001; Butterfoss et al 1993; Wandersman and Florin
2003). They have been represented as popular structures for creating “community
benefits” (Berkowitz 2001). In the Sprit of the Coalition, lamenting the loss of civil
participation in public health issues, Berkowitz and Wolff (2000, 2) defined a
community coalition as a “group involving multiple sectors of the community,
coming together to address community needs and solve community problems.” The
emphasis was on multiple sectors and multiple issues.

There are two explanations for emergence of community coalitions in the land-use
planning arena. The first is that of devolution. Traditionally, citizens relied on public
officials and administrators to make informed decisions about public policy and its
implementation (Roberts 2004). Following the larger trend of withdrawal of

66
government at all levels in solving social and economic problems (Wolff 2001a), the
non-governmental community coalition is providing a service for the public sector.
However, this explanation of government failure seems inadequate (see Bryce 2006)
particularly since coalitions are not efficient in service delivery (Norris 2001)
51
.

However this explanation of market and government failure seems inadequate (see
Bryce 2006) particularly when the agreement is viewed through prism of power, and
the coalition is viewed as a key player in the public policy process
52
.

The second explanation is that of a reactionary social movement. As the market for
land-use development is becoming largely unregulated, and local governments are
giving constitutionally protected rights to developers,
53
local coalitions are emerging
as a balancing power. Individuals with group affinity organize around a mutual
identification (Gutmann 2003; Putnam 2003) and offer a collective vision for
progressive social change (see Mizrahi and Rosenthal 1993, 12). It is therefore not

51
Community coalitions, in general, have not been successful in delivering services (Chavis 2001).
52
Most social change projects can be viewed as icebergs, with 10% of the iceberg visible above the
water which consist of direct services such as mediation. Hidden from view is empowerment
(Wahrhaftig 2004).
53
The doctrine of constitutionally protected vested rights arises from the Fifth and Fourteenth
Amendments to the Constitution that hold that property cannot be taken for public use by the state
without just compensation (Knight 1993). Thus, changes to existing zoning to land for which a
developer has gained vested rights to develop could be a regulatory taking. In the case of development
agreements, they limit the ability of cities to plan. See, e.g., City of West Hollywood v. Beverly
Towers, 805 P.2d 329, 334 n.6 (Cal. 1991) (“Development agreements ... limit the power of that
government to apply newly enacted ordinances to ongoing developments.").

67
surprising that coalitions based on similar ideologies
54
are more successful than those
based on similar interests (Jones-Correa 2001). However, deliberation on substantive
matters converts ideological positions into interests (Carpenter and Kennedy 1988;
Gray 1989; Fisher and Ury 1983; Susskind and Persico 1983). These interests can be
negotiated through a process of deliberation (see Benhabib 2002; Healy 1997).

In the context of a social movement, it is important to recruit a “coalition of power”
(Marris and Rein 2006, 7) to be able to transform the prevailing paradigm of
development (Table 2). This transformative power of a coalition is likely enhanced
when stakeholders have a deeper connection to each other’s objectives (Tattersall
2005).

54
Coalition formation can be explained through game theory (Riker 1962). In the language of game
theory, to ensure that the expected winning policy is closest to their own preferred policy,
organizations will attempt to maximize “policy coherence” (which is the deviation of the
organization’s preferred policies from the coalition’s proposals) (De Swaan 1973). In contentious
land-use battles, organizations need to have common values, otherwise the coalition will break down
at the critical point when action is needed (Lejano and Wessells 2006). Thus at a “value-based” level
of partnership, which is often the preferred mode of partnership (Nelson et al 2001), ideological
diversity is consciously minimized.

68
Table 2: A Framework for Community-Labor Coalitions
Ad hoc coalition Support coalition Mutual coalition Deep coalition
Common concern Specific group’s
agenda/issue/event
Can be initiated by
union or community
organization

Specific group’s
agenda/issue/event
Dominated by
initiating organization
(union or community
organization)
Issues are in the
mutual self-interest
participating
organizations
Mutual self-interest
issues, and
Public messages of
coalition are framed as
social vision for
working people
Structure of relationships Episodic engagement
Hasty, reactive
engagement
Based on ad hoc
requests from one
organization, such as
requests to community
organizations to
support union
organizing
Short-term coalition
Some formal shared
decision making
Between organizations
with different or
similar political
practice

Coalition includes org
leaders
Joint decision making
structure
Planning and
strategizing
Standards for
organizational
participation
Broker organizations
Long term strategic
plan to build power
Relational
commitment between
organizations
Organizational
commitment
Instrumental
engagement
Campaign distant from
members
Paper Coalition
Campaign decision
making dominated by
union and community
organization staff
rather than members

Some participation of
union members as
spokespeople

Union actively
engaging rank and file
Significant buy-in,
financial resources
Scale and political
opportunities
Focus on a single layer ……………………………………………………………Build capacity at many levels
……………………………….. Responding to political opportunities …………………………………………..
Source: Tattersall and Reynolds (2007)

69

According to Gross et al (2005), legal problems arise when ascribing responsibilities
and rights of coalitions, especially when they are ad hoc conglomerations of different
entities and individuals:
Most coalitions that enter into CBAs are not incorporated as stand-alone
nonprofits. Rather, they are simply groups of organizations and
individuals working together. Few coalitions have structured systems for
determining who are official members, and who can speak or act on
their behalf. (Such systems would be set out in bylaws or similar
documents.) This uncertainty could cause problems if an unincorporated
coalition were the legal entity that signed a CBA.
(Gross et al 2005, 23)

Julian Gross, who has drafted both the legal agreements in the case studies,
recommends that each organizational member of the coalition sign the CBA on its
own behalf. In this manner, each organization is separately liable for its obligations,
and can assert its rights independent of the other members of the coalition.
Defining the Community Benefits Agreement

The term “community benefits” has been used in some cases to describe benefits of
public projects (e.g. Hall 1971; Stein 1998). Also, variations of the term such as
“common good” and “planning gains” are used frequently in the local planning
context (see Healy et al 1995; Hutchinson and Vidal 2004; Pincetl 1992; Vidal 1997;
Ward 1998). This common good could be economic (employment, financial), social
(mandated hiring of certain groups, affordable housing) or environmental (air
quality, open space and conservation).

70

The Community Benefits Agreement is a private agreement between a community
coalition and the developer on multiple issues that may or may not be included in the
regular planning process (Figure 2). While CBAs represent an opportunity for the
community to get engaged in a project and to achieve social equity --myriad legal
issues are present for all participants involved (Salkin 2007). The first agreement of
this kind was the Hollywood-Highland CBA in Los Angeles, which set a template
for progressive elected officials and community organizations to expand (Meyerson
2006).

One of the first CBA on a mega-project was executed in 2001 for what is now called
the LA Live project in downtown Los Angeles. This four-million square foot project
was seen as vital to the revitalization of downtown Los Angeles and the original
proposal included a 1,200-room publicly subsidized hotel, two residential towers and
a 250,000 square foot expansion of the Staples Arena Convention Center. A coalition
of 28 community groups, five labor unions and several hundred residents came
together in a period of months due to a history of problems with the previous
expansion. In the end, the developer’s offer of a community benefits agreement
caused many activist groups to radically alter their culture, succumbing to corporate-
style negotiations and signing away their right to protest in exchange for the benefits
package:

71
Ana Valenzuela doesn't consider herself an activist. Her form of organizing
has been private: keeping her seven children fed and clothed, tidying the
three-room apartment where they live with Valenzuela's husband--a gardener
and day laborer--and taking on the landlord on everything from roaches to
threatened rent hikes.

But the Guadalajara native, who speaks little English, found herself in a
radically different setting in recent months, across the negotiating table from
Staples Center developers in suits.
(Lee Romney. Los Angeles Times. Los Angeles, Calif.: Jun 2, 2001, C1)

The LA Live CBA benefits included more than a million dollars for parks, self-
sufficiency wage jobs for those displaced or living near the arena, job training
programs through local community groups and construction of over a hundred
affordable housing units. These benefits were lauded by an Los Angeles Times
article as “unprecedented” (Romney 2001), and an article in the Planning magazine
portrayed this agreement as a new movement, using a civic participation model that
was being replicated across the country (Goodno 2004) to serve community interests
(Table 3).
“Negotiations took nine months. The resulting deal, now part of the
development agreement, is believed to be the most comprehensive of its kind
ever achieved in the United States.
(Editorial, Los Angeles Times. Los Angeles, Calif.: Sep 4, 2001, B12)

72
Figure 2: A Comparison of the Development Process With or Without a CBA

CITY
(or redevelopment agency)
DEVELOPER
NEIGHBORHOOD
GROUPS
CHURCH
GROUPS
OTHER
CBOS
CITY
(OR REDEVELOPMENT AGENCY)
DEVELOPER
ENVIRO.
GROUPS
UNIONS
AFF.
HOUSING
DEVELOPMENT AGREEMENT
Information on project &
CBA negotiations
Little or no direct communication between community groups
and developer
All developer commitments go into development agreement –
city and developer draft language
No coordination or shared power among community groups
Community groups cannot enforce developer commitments
Coordinated
Coalition
WITHOUT A CBA
NEIGHBORHOOD
GROUPS
CHURCH
GROUPS
OTHER
CBOS
CITY
(OR REDEVELOPMENT AGENCY)
DEVELOPER
ENVIRO.
GROUPS
AFF.
HOUSING
DEVELOPMENT AGREEMENT
WITH A CBA
Developer commitments regarding community benefits go into CBA.
Coalition and developer draft language together
Community groups can enforce developer commitments (City and
agency can too, if CBA is included in the development agreement)
Community groups share information, have strength in numbers,
and coordinate their advocacy.
UNIONS
Source: Gross, LeRoy and Janis-Aparicio (2005).

73
Table 3: Examples of Community Benefits Agreements
LOCATION, ORGANIZATION & FORM OF
AGREEMENT
EMPLOYMENT-RELATED
BENEFITS
HOUSING & COMMUNITY
SERVICES
ENVIRONMENTAL
City Project Year
Coalition
Name
Leading
Partners
# of
jobs
Hiring
preferences
construction
& permanent
Job training
provisions/
funding
Affordable
housing # and
type
Other benefits
Parks &
open space
Environmental
mitigations &
improvements
Denver, CO
Cherokee
/Gates
Redevelop
2006
Campaign
for
Responsible
Developmen
t
Sierra Club, 9
to 5, Labor
Council.
1,150
First source
hiring, local
hiring for
construction
jobs

200 rental
units (20%),
150 sale units
(10%)
Accessibility for
disabled beyond
federal laws,
responsible
contractor
requirement
Yes
Creation of Voluntary
Clean Up Board
Inglewood,
CA
Inglewood
Mixed
Use
Pending
2006
Coalition for
a Better
Inglewood
Neighborhood
orgs, UFCW,
clergy,
LAANE
Pending
Local
(construction
&
permanent)
Pending Pending

Los
Angeles,
CA
Grand
Avenue
Pending
2006

SAJE,
LAANE,
churches
2,000
Local
(permanent
&
construction)
funds
provided
90 rental
New civic
center park

Los
Angeles,
CA
Hollywoo
d & Vine
2004
PICO,
LAANE,
affordable
housing orgs,
building
trades.
500
Local
(permanent)
$150,000
for on-site
75
$500,000 for
High School;
$30,000 health
care outreach;
arts funding;
neighborhood
retail; non-
discrimination
Open space

74
LOCATION, ORGANIZATION & FORM OF
AGREEMENT
EMPLOYMENT-RELATED
BENEFITS
HOUSING & COMMUNITY
SERVICES
ENVIRONMENTAL
City Project Year
Coalition
Name
Leading
Partners
# of
jobs
Hiring
preferences
construction
& permanent
Job training
provisions/
funding
Affordable
housing # and
type
Other benefits
Parks &
open space
Environmental
mitigations &
improvements
Los
Angeles,
CA
LAX
Moderniz
ation
2004
LAX
Coalition for
Justice
LAANE,
Local School
boards,
Environmenta
l Defense,
community
orgs, NRDC.
5,000
Local, at
risk, women
on welfare
(permanent
&
construction)
$15 million
for 500
residents
per year for
10 years

Contracting
preferences for
local, minority-
owned and
women-owned
businesses

Massive program for
noise and air pollution
mitigation; health
studies & programs
Los
Angeles,
CA
Marlton
Square
2003
LAANE,
AGENDA
200
Local
(construction
&
permanent)
180
Community
Center

Los
Angeles,
CA
NoHo
Mixed
Use
2002
Valley Jobs
Coalition
LAANE,
clergy, Valley
Greens,
Comm.
College
500
Local
(permanent)
HUD-
funded
162
Affordable child
care, $2 million
for public art,
20,000 sq ft
health clinic
open space

Los
Angeles,
CA
Staples
Center
Expansion
(LA Live)
2001
Figueroa
Corridor
Coalition
SAJE,
LAANE,
Coalition LA,
Esperanza
5,000
Local
(permanent)
$100,000 180
Parking for local
residents
$1 million
for parks;
Accessible
park space,
open space,
and
recreational
facilities.
Addresses parking,
traffic, and public
safety issues; Coalition
Advisory Committee
to address on-going
environmental
concerns; green
building principles
Table 3: Examples of Community Benefits Agreements, Continued

75
LOCATION, ORGANIZATION & FORM OF
AGREEMENT
EMPLOYMENT-RELATED
BENEFITS
HOUSING & COMMUNITY
SERVICES
ENVIRONMENTAL
City Project Year
Coalition
Name
Leading
Partners
# of
jobs
Hiring
preferences
construction
& permanent
Job training
provisions/
funding
Affordable
housing # and
type
Other benefits
Parks &
open space
Environmental
mitigations &
improvements

Los
Angeles,
CA
Sunquest
Industrial
Park
2002
Valley Jobs
Coalition
LAANE,
UFCW,
SEIU, clergy,
Valley
Greens,
Comm.
College, total
of 12
500
Local
(permanent)

Youth Center;
Neighborhood
Improvement
Fund; Public Art
Fund; youth
center facilities;
security
Park;
$300,000
neighbrhd
improveme
nt
Traffic management;
limits on truck idling;
community design
review; incorporate
landscaping element;
truck routing;
avoidance of heat
islands; avoidance of
vehicular gas
inhalation
Milwaukee,
WI
Park East
Redevelop
ment
Compact
2005
Good Jobs &
Livable
Neighborhoo
ds Coalition
Sierra Club,
Gamelial,
SEIU,
Building
Trades
Pending
First source
hiring, local
Hiring & at
risk hiring
for
construction
jobs.
Enhanced
apprentices
hip
opportuniti
es
Pending (20%
of total)
Pending Yes
Green building
practices

Brooklyn,
NY
Atlantic
Yards
Pending
2006

ACORN, 7
neighborhood
groups

50% of the
4,500 rental
units
affordable to
low &
moderate
income
families; Half
2&3BR units;
600-1000
affordable
condos.
10% senior
housing; rent
stabilization for
all units.

Table 3: Examples of Community Benefits Agreements, Continued

76
LOCATION, ORGANIZATION & FORM OF
AGREEMENT
EMPLOYMENT-RELATED
BENEFITS
HOUSING & COMMUNITY
SERVICES
ENVIRONMENTAL
City Project Year
Coalition
Name
Leading
Partners
# of
jobs
Hiring
preferences
construction
& permanent
Job training
provisions/
funding
Affordable
housing # and
type
Other benefits
Parks &
open space
Environmental
mitigations &
improvements
San Diego,
CA
Ballpark
Village
2005 ACCORD
Sierra Club,
Housing
Coalition,
SDOP/PICO,
CPI, Building
Trades
500
Local hiring,
first source
and at-risk
hiring for
20% of
construction
jobs.
$1.5
million for
outreach
for
constructio
n jobs
180 units;
developer
contribution
of $1.5
million to
encourage
homeownersh
ip
Protections to
maintain a
working
industrial
waterfront,
redevelopment
impact study,
arts funding.

Leadership in Energy
Efficiency Project
Certification Standards
San Jose,
CA
Coyote
Valley
2006
WP-USA,
Greenbelt
Alliance,
affordable
housing,
health care,
and
transportation
advocates
50,000Pending Pending
5,000 (20% of
total). 30%
for Very Low
Income and
30% for
Extremely
Low Income
Funding for land
and construction
of two health
care clinics
Open space
mitigation
for the
Coyote
Valley
greenbelt
and
hillsides.
Comprehensive transit
system and community
design promoting
walkability and
alternative forms of
transportation;
discourage
development along
freeway and region
periphery.
St. Paul, MI
Jeremiah
Program
2006
Neighborhood
groups, city

Recruitmen
t for St.
Paul
residents

Child-care for
neighborhood
Open space
and limited
building
heights
Program participants
will volunteer time for
community.
Source: Partnership for Working Families, March 2006 (unpublished) with author’s notes and edits.
Table 3: Examples of Community Benefits Agreements, Continued

77
Chapter 4: Case Studies

The first case study of the LAX expansion CBA was based on published documents
(including legal memorandums, agreements, media reports, press releases), archival
public records (minutes of public meetings, staff reports), transcripts of the
negotiations, interviews with coalition members, and artifacts (including campaign
materials, exhibits and presentation materials).

The second case study of the Ballpark Villages CBA was based on the participant-
observer method, the author being given permission to record the private
negotiations. This methodology is especially appropriate in scholarly research on
lesser-known phenomenon where the process occurs hidden from public view
(Jorgensen 1989). Limitations of the participant-observer methodology include bias
of the observer and possible observer effects especially since this case study involves
interactions between a small group of people (Kluckhohn 1940). These records and
transcripts were supplemented with official documents (public agreements, minutes
of public meetings and staff reports). In addition, the author attended most public
meetings related to the project, and conducted follow-up interviews with key
stakeholders.

78
The two case studies are both similar in some ways and different in others. They are
similar in the sense that both have model Community Benefits Agreements in which
a community coalition negotiated an enforceable contract with the developer. In both
cases the project is yet to be built, so it is premature to conclude whether the
outcomes are more equitable. However, in both cases the influence of the coalition is
long-lasting, even after the project is approved.

The two case studies are different in the sense that the projects are substantially
different. One of them is a public structure to be used by millions of people; where as
the other project has residential condominiums selling at millions of dollars with
minimum public space. Moreover, the LAX CBA was negotiated with a public entity
(LAWA) acting as a developer, where as in the Ballpark Villages project, the
coalition was negotiating with private developers, one of which was a publicly traded
corporation. The timelines for negotiation also vary significantly: where as the LAX
negotiations occurred over almost eight months, the Ballpark Villages negotiations
occurred in less than a month. The political circumstances (support of the Mayor)
and media also varies significantly between the two. Where as the LAX negotiations
were embraced by the Mayor and portrayed favorably as community involvement in
the media, the Ballpark Villages negotiations occurred without the active support of
the political leadership in San Diego and were portrayed as a backroom deal in the
media.

79
LAX Expansion, Los Angeles

Although other American cities betray some of these tendencies – that is,
Faustian economic restructuring, social porosity, elite anti-Semitism, central
place competitions, internationalization of class formation, extreme political
fragmentation, and disenfranchisement of the inner city – none (to borrow the
city’s official slogan) ‘brings it all together like Los Angeles’.
(Davis 1992, 104)

According to Mike Davis (1992), the power structures within Los Angeles are
extremely polarized and fragmented. The consequences of this fragmented
metropolis are a grueling struggle by those who are abandoned in the cities inner
neighborhoods (Fulton 2001, 283). Part of the eastern neighborhoods around
Vermont avenue flow into the South Central area of Los Angeles, the flash-point of
the 1992 racial riots. The unrest proved in popular imagination that these
neighborhoods were L.A.’s biggest problem (Fulton 2001).

Furthermore, the area around LAX has been struck by tornadoes 8 times during the
last century, with the square-mile community of Lennox itself sustaining tornado
damage three times (1930, 1966, 1982). According to Mike Davis, the 1966 tornado
made the area around LAX look like a battlefield, with large portions of the
community ripped away in a combination of storm, mudslide and earthquake.
Moreover, a large portion of the African American community around the airport sits
on the active Newport-Inglewood earthquake fault, which caused devastation to the
area in 1933 (Davis 1998).

80

Los Angeles International Airport (LAX) is the world’s fifth largest airport having
handled 54.5 million passengers in 2003. The airport was constructed in 1961 and
two terminals were added prior to the 1984 Olympics. It handles close to three-
quarter of all domestic passengers in the five-county southern California region. The
communities of Westchester, El Segundo, Lennox and Inglewood, some of which are
low-income neighborhoods with high proportions of African-American and Latino
families, surround the airport. A socio-economic profile of LAX neighbors shows
that there is considerable diversity and differences between the areas to the east and
to the west of the I-405 (Table 4). According to public testimony, some areas also
have high poverty, crime and unemployment.

81
Table 4: Socio-Economic Profile of LAX neighbors
Western Communities Eastern Communities

El
Segundo
West-
chester Lennox Inglewood
LAX
Neighbors
(East + West)
LA County
Population 16,03336,855 22,950 112,580 188,418 9,519,338
Children under 18 years 3,639 7,798 8,942 36,437 56,816 2,667,976
Race (Percentage)
Non-Hispanic, white only 77.1 50.2 3.5 4.1 19.3 31.1
Hispanic, of any race 11.0 17.7 89.8 46.0 42.8 44.6
Black or African American only 1.2 18.7 4.1 47.1 32.4 9.8
Asian only 6.4 9.2 0.8 1.1 3.1 11.9
Households
All households 7,060 14,442 5,049 36,805 63,356 3,133,774
Family households with own children under 18 (Percentage) 28.1 27.6 63.9 42.7 39.7 36.8
Renters (Percentage) 58.4 47.5 70.6 63.7 60.0 52.1
Economic
Unemployment Rate (Percentage) 4.08.5 10.510.29.18.2
Median Household Income $61,341 $60,925 $28,273 $34,269 $42,189
Per capita Income $33,996 $27,178 $8,499 $14,776 $18,073 $20,683
Poverty Rate, individuals (Percentage) 4.6 9.2 31.5 22.5 19.3 17.9
Occupations (Percentage)
Management, professional, and related occupations 46.6 47.6 9.5 24.6 31.2 34.3
Service occupations 12.3 11.9 31.2 20.5 18.5 14.7
Sales and office occupations 26.829.1 19.830.728.827.6
Construction, extraction, and maintenance occupations 7.0 4.5 11.6 7.6 7.2 7.8
Production, transportation, and material moving occupations 7.2 7.0 27.4 16.3 14.1 15.5
Source: U.S. Census 2000, SF-1 for demographic data and SF-3 for economic data. The area of Westchester includes Census tracts 2760, 2761,
2764, 2765, 2770, 2771, 2772, 2774, and 2780 in the County of Los Angeles.

82
LAX and other airports in the region are planned, operated and maintained by the
Los Angeles World Airports (LAWA), which is an enterprise department of the City
of Los Angeles governed by an appointed Board of Airport Commissioners.

A study conducted by the airport in 1995 determined that the demand on the airport
would increase to 98 million passengers annually by 2015. Therefore the Mayor and
Council of the City of Los Angeles decided to address the growing needs of the
region on a limited basis. Recognizing the proximity of residential uses in the area,
one of the goals of the plan were to “acknowledge neighborhood context and
promote compatibility between LAX and the surrounding neighborhoods”
55
. In order
to accomplish this, the plan intended to (1) Minimize negative impacts to
surrounding residential areas; (2) Maximize the benefits of airport development
particularly to adjacent land uses; and (3) Provide opportunities for community
participation in the program including adjacent residential and business
communities, airline representatives, airport concessionaires, cargo and freight
handlers, labor representatives, business organizations and neighborhood councils.

In 2001, the draft Environmental Impact Statement (EIS) and draft Master Plan for
the expansion was released. The draft EIS consisted of sixteen volumes, each volume
of which was hundreds of pages thick. There were twenty-six technical reports, and

55
2004 LAX Plan, pg. 3.

83
fourteen supplements to these technical reports. The physical size of these
documents was impressive, enough to fill half a dozen shelves in a cabinet. To
translate and explain these documents to the affected communities was a
monumental task, and an environmental justice organization
56
took a lead in this
endeavor. It organized four workshops, in addition to the three official public
hearings held during an extended public comment period. During that time, Los
Angeles had a new Mayor James Hahn, who sensed public opposition to the
expansion and added six public hearings to address the impacts. One of the most
significant questions that came up during this hearing was the learning effect on
children in schools in the flight-path. A study performed on children at four
elementary schools near LAX exposed to a high-degree of aircraft noise suggested
that the noise impacted motivation and cognitive abilities of children (Sheldon et al
1980). There are 20 schools and 14 pre-schools within one mile of the LAX fence
line. Principals of impacted schools in the area testified that teachers stop speaking
and the boarded-up windows rattle every-time an aircraft flies overhead, almost
every five minutes.

In 2002, Mayor Hahn rejected the proposed alternatives identified in the EIS and
directed LAWA to develop an alternative that did not have an additional run-
way/flight-path but would be able to handle 78 million passengers, with added

56
Environmental Defense

84
federal security regulations. In the new alternative, all passenger and baggage check-
in would be moved to a remote terminal about a mile east of the airport, which would
be connected by a rail system. For this expansion plan, supplemental environmental
documents were prepared and three additional workshops were held in the
surrounding neighborhoods. Almost a dozen public hearings were held region-wide
on the new alternative.

Community groups were not convinced and threatened litigation. Environmental
groups were opposed to the project for its unmitigated noise impacts on almost half a
million people. Labor groups were having trouble with the airport concessionaires.
And a lot of residents were expressing their frustration at being treated as Los
Angeles’s dump-yard for crime, pollution and traffic. After almost ten years of
studying the expansion, spending $147 million on studies and LAWA was still
making no headway.

In April 2004, as LAWA released the final Master Plan and EIS to start the statutory
clock ticking on project approvals, Mayor Hahn directed LAWA to address the
concerns of the community groups by directly negotiating with them. At the same
time, the almost two-dozen hearings and workshops had coalesced the community
groups to a point of trust where they agreed to meet, before negotiating with LAWA
on their separate group interests. They were assisted by planning and legal advice

85
from Environmental Defense and the Los Angeles Alliance for a New Economy,
which served as anchor organizations. This resulted in a series of meetings at the end
of which twenty-four groups agreed to negotiate collectively with LAWA. Thus
formed the LAX Coalition
57
, which included school districts
58
, community
(including social, political and religious) organizations
59
, environmental
organizations
60
, and labor unions
61
. They organized themselves along three interest
groups: school issues, environmental and employment quality. Each interest group
generated a list of demands through a consensual process in which every
organization had a vote (or delegated vote) and every organization agreed to each
demand. Experts tapped from the resources of the anchor organizations provided
technical, planning, logistic and legal assistance. This process generated collectively
a list of about eighty demands that the coalition then submitted to LAWA.

The process of negotiation was extremely professional, with both sides bringing
technical experts to the table. The process started in February 2004 in the presence of
representatives from Mayor and certain City Council offices. At the same time there

57
In some places the LAX Coalition is also called the LAX Coalition for Economic, Environmental
& Educational Justice.
58
Inglewood Unified School District and Lennox School District
59
AGENDA, Clergy and Laity United for Economic Justice, Community Coalition, Inglewood
Coalition for Drug and Violence Protection, Inglewood Democratic Club, Inglewood Area Ministerial
Association, Lennox Coordinating Council, Los Angeles Alliance for a New Economy, Los Angeles
Council of Churches, Nation of Islam, AME Minister’s Alliance
60
California Environmental Rights Alliance, Coalition for Clean Air, Communities for a Better
Environment, Environmental Defense – Environmental Justice Project, Natural Resource Defense
Council and Physicians for Social Responsibility Los Angeles.
61
Hotel Employees and Restaurant Employees Local 11, Service Employees International Union
Local 1877, Service Employees International Union Local 347 and Teamsters Local 911.

86
was initial tension with LAWA being unable to address issues that were within the
domain of federal agencies, such as FAA and the EPA. The following snippet from a
negotiation session in March 2004 gives an insight into the technical-political
swinging occurring in the negotiations:
LAWA rep 1: (Regarding the) jet fuel study, FAA was pretty direct about not wanting
to do. Can we encourage LAWA and airlines to do it? We are not in the fuel
study business.
Coalition Rep 1: Won’t study it?
LAWA Rep 1: Not types of fuels.
Coalition Rep 1: This is about toxicity. (There) should be Jet Fuel Emissions Study.
You recognize and we recognize that we don’t have a sufficient analysis. We
lack good inventory of what emissions are.
LAWA Rep 1: Again, … protocols rest with EPA.
Coalition Rep 2: Put on the floor with enviro groups and go to Washington to
heavily lobby to a) study emissions; b) come up with a plan to get cleaner
burning engines.
Coalition Rep 1: We can get people across the country and cities to support that.

In April 2004, as the words of the negotiations started getting around, other
organizations started joining the coalition. Both sides started drafting detailed
proposals and counter-proposals, as well as studying each in technical detail. Maps
with truck routes were created, technical experts on air pollution were commissioned
to do preliminary studies, and joint delegations made to regional officials in police,
health and education. The purpose of these was to do joint fact-finding and come to
reasonable compromise.

After several rounds of negotiations, political lobbying and overflowing public
meetings, LAWA agreed to consider most of the demands, except some that were

87
technically or legally infeasible. Los Angeles Airport could not spend airport funds
on projects outside the airport’s immediate vicinity (U.S.C. § 47133, “Restriction on
use of revenues”). This federal statute is implement by the Federal Aviation
Administration, which has to approve any disbursement of airport revenues.
Therefore some of the demands of the Coalition regarding mitigation of impacts to
areas under the flight-path, but not in the vicinity of the airport could not be met.

An example of the demands that could not be met was a mobile health clinic for
neighborhood residents. The following snippet from the September 2004
negotiations shows the solemn but cooperative tone of the negotiations that followed.
Coalition Rep 1: … Health Study – lots of TBDs from Air Quality Study. You’ll
have to see this. Under A. None of us know if this should run subsequently
or concurrently with air study. So we think there should be a year window
for LAWA to propose to the FAA a timeline to do it either with or after the
air study.
LAWA Rep 1: This was originally going to be the mobile health lab that we decided
was not going to work. A real health study would be extremely costly,
lengthy, studying epidemiological issues. Here, we’re talking about an
equivalent to what we could have learned from the mobile health lab, but
better. How (to) characterize it?
Coalition Rep 1: We know the FAA will be reluctant and that’s why we think we
need a first year to determine what the scope is going to be, what could be
done. The specific focus is on upper respiratory and hearing loss but need to
work together and with experts to determine how best to go forward.
LAWA Rep 1: Easiest way to do it – fund a study up to a dollar amount, based on a
reasonable amount estimated from what the mobile health study would have
cost. Don’t want to get into a multimillion dollar study.
LAWA Rep 2: We do have a rough estimate for mobile and can translate that cost to a
fixed facility with appropriate equipment, personnel and length of time;
perhaps a 2-3 year period of research. One year not enough; two years better,
three years optimal. We’ll e-mail that out to you.

88
As the coalition negotiators and LAWA agreed on certain proposals, they green-
lighted them. These them became publicized in the community grassroots, and
generated momentum for the support in the end. LAWA and the coalition started
giving joint presentations at Neighborhood Councils in the area, which included
terms of the CBA that they had agreed upon. There was also discussion of the yellow
or red items. The yellow items were those where the parties agreed in concept, but
had to work out the details. The red or purple items were those where the parties
disagreed in concept. A lot of the initial demands that were red-lighted included
issues such as traffic in the surrounding neighborhoods, were those where LAWA
felt the airport revenues could not be used. However, as elected representatives
stepped in, there was more clarity into which demands LAWA was comfortable
funding, and which ones they could not. In the end there was political compromise
on both sides.

As the lists of demands were being memorialized into an agreement, the CBA started
being drafted. It was clear that the negotiated benefits would be impacting the Master
Plan itself, and would require ongoing monitoring and implementation long after the
Master Plan was approved. Some of these benefits were additionally incorporated
into the Mitigation and Monitoring Program in the Environmental Impact Report
required under the California Environmental Quality Act. This gave multiple

89
avenues for implementation and enforcement of the terms of the CBA. The
introduction of the CBA read:
This Community Benefits Agreement sets forth (1) a range of community
benefits and impact mitigations that will be provided by the Los Angeles
World Airports as part of the LAX Master Plan Program, and (2) an ongoing
role for the LAX Coalition in implementation and oversight of these benefits
and mitigations. This Community Benefits Agreement is agreed to by the
LAX Coalition and LAWA in connection with, and as a result of, the
Cooperation Agreement to which it is attached. All requirements set forth
below begin immediately upon the effective date of the Cooperation
Agreement, unless otherwise specified. Notwithstanding any other provision
of this Agreement, LAWA shall have no responsibility to expend funds
where the Federal Aviation Administration has made a determination that the
expenditure violates or would violate either 49U.S.C. § 47133, “Restriction
on use of revenues,” or that statute’s implementing regulations.
(Community Benefits Agreement – LAX Master Plan Program 2004, 1)

On December 6, 2004, the Board of Airport Commissioners voted on a “Community
Benefits Agreement”.
62
This vote was followed by an approval of the LAX Plan by
the Los Angeles City Council on December 7, 2004, and the Federal Aviation
Administration on May 20, 2005. In exchange for their right to bring litigation, the
community groups that were part of the agreement got an estimated $500-million

62
Item 3 (Resolution 22554) of the Board of Airport Commissioners (BOAC) on December 3, 2004
stated: “APPROVE the Cooperation Agreement and the Community Benefits Agreement with the
LAX Coalition for Economic, Environmental and Education Justice, with the term through December
31, 2015 or until the conclusion of the LAX Master Plan Program, whichever comes later, except that
the Agreement shall expire under any circumstance by December 31, 2020; AUTHORIZE the
Executive Director to execute the Agreement upon approval as to form by the City Attorney, and
RECOMMEND that the City Council concur with the action of the BOAC.”

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worth of community benefits, the largest CBA ever negotiated.
63
These benefits
included:
$229 million to the nearby school districts to soundproof schools.
Over 8,200 homes in Westchester, Playa del Rey and South Los Angeles with
a recorded Community Noise Equivalent Level (CNEL) of 65 decibels or
higher will be soundproofed.
$3 million per year for five years to fund job training for airport and aviation-
related jobs and for LAX Master Plan Program Construction pre-
apprenticeship training. The job training program would be administered by
the Los Angeles City Community Development Department and the City
Workforce Investment Board. LAWA would be required to develop work
experience programs for targeted applicants living in the Project Impact Area.
A "First Source Hiring Program" and referral system for airport-related jobs
targeting low-income individuals living in the Project Impact Area,
individuals who have received public assistance within 24 months of
applying for a job or job training, individuals who are homeless, ex-
offenders, chronically unemployed, dislocated airport workers, and low-
income individuals living in the City of Los Angeles.
Small businesses and minority-owned and women-owned businesses in the
Project Impact Area would be sought to increase their participation as LAX

63
This estimate is according to LAWA: “At over $500 million, the Community Benefits Agreement
(CBA) represents the largest and most comprehensive CBA ever negotiated.” (LAWA News Release,
December 7, 2004).

91
contractors in the planning, design, financing, construction and all other
projects of the LAX Master Plan Program.
Funds for air quality, health, and environmental studies conducted by
independent experts.
Electrification of all new and current aircraft boarding gates, cargo operations
areas and hangars; minimization of fugitive dust from Master Plan
construction-related activities; and implementation of a multi-faceted
program aimed at reducing emissions from ground service equipment, trucks,
buses and other heavy-duty vehicles operated by airport-related businesses.
LAWA's use of alternative-fuel and hydrogen-fuel-cell technologies would
be increased.
During construction of the Master Plan, LAWA would minimize construction
traffic impacts to local communities (Figure 3) and consult with the Coalition
about mitigating negative impacts should LAWA participate in construction
of an interchange to the I-405 freeway at Lennox Boulevard.

LAWA intends to pay for this agreement through increased revenues from
concessions, parking, passenger charges, airline landing fees and terminal rents.
Approval of this plan means a significant boost to the local economy. Los Angeles

92
County will also see an additional $3.7 billion in economic activity, and the
modernization is estimated to create 49,000 construction-related jobs.
64

This Community Benefits Agreement is a national model for airport
development and serves to enhance the quality of life of the communities
surrounding LAX as we move forward with our plans to make LAX safer and
more secure for the millions of travelers who pass through the airport every
year," said Mayor Jim Hahn. "I am proud that together we have developed a
comprehensive environmental, economic and educational community
benefits agreement that will directly benefit the communities most impacted
by operations at LAX.
(Los Angeles World Airport, News Release, December 6, 2001)

A Stakeholder Liaison would be continuously updating all stakeholders, providing
notice, holding hearings and soliciting input during and after the construction of the
project. This will ensure ongoing monitoring and live feedback about stakeholder
concerns.

Afterword:
One final obstacle in the expansion of LAX was a lawsuit by the cities of Inglewood,
El Segundo, Culver City, County of LA, and an Alliance for Regional Solutions to
Airport Congestion in January 2005 (Table 5). None of these entities were parties to
the CBA. In the settlement (dated February 17, 2006) LAWA agreed to “green-light”
certain projects, “yellow-light” others for further review, and expand stakeholder
outreach under the CBA to the other parties in the settlement.

64
LAWA News Release, December 7, 2004.

93
Table 5: Timeline of Key Events After Approval of the CBA
December 7, 2004 Approval of the CBA by the Los Angeles City Council
January 2005 State lawsuit filed under CEQA by the Culver City, city of El
Segundo, city of Inglewood, County of Los Angeles and the
Alliance for a Regional Solution to Airport Congestion
(ARSAC).
February 3, 2005 First meeting of the LAX Master Plan stakeholder liaison
February 7, 2005 Contract award for residential soundproofing
March 8, 2005 Meeting in Spanish for residents of Inglewood and Lennox
co-hosted by LAWA and the Lennox School District.
March 21, 2005 Purchase of six large airfield buses with capacity of up to 140
passengers that operate on compressed natural gas (CNG), for
passengers arriving late.
March 21, 2005 $6,482,085 contract to Harris Miller Miller and Hanson, Inc.,
of Burlington, Mass., for noise studies. The noise studies are
required as part of the Federal Aviation Regulation (FAR)
Part 161 process. FAA approval would allow LAWA to
implement the proposed noise and access restrictions on
aircraft operations at LAX. It is anticipated that these studies
will take from three to five years to complete.
May 20, 2005 Record of decision by the FAA.
July 1, 2005 New Los Angeles Mayor Antonio R. Villaraigosa takes
charge; appoints a new LAWA board and key staff.
July 2005 Federal lawsuit under NEPA filed by the same plaintiffs as
the state lawsuit.
July 12, 2005 LAX won the 2005 Airports Council International-North
America Environmental Achievement Award for the
generation and use of hydrogen-fuel.
August 2, 2005 Draft EIR of the South Airfield Improvement Project (SAIP)
released. This controversial project consists of the relocation
of Runway 7R/25L to approximately 55 feet to the south of its
current location and the construction of a new center parallel
taxiway between the two south runways.
September 29,
2005
LA Mayor Villaraigosa commences settlement talks with
surrounding cities that had sued against the runway
configuration.
October 7, 2005 Kim Day, Executive Director of LAWA resigns, and is
replaced by Lydia H. Kennard, who had served in the same
position prior to 2003.
October 27, 2005 Final EIR for the South Airfield Improvement Project (SAIP)
released.

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Table 5: Timeline of Key Events After Approval of the CBA, Continued
November 7,
2005
Participant agreement with Mercedes-Benz USA, Daimler
Chrysler Corporation, and the U.S. Department of Energy to
evaluate the use of a prototype zero-emission passenger vehicle
that utilizes a hydrogen-fuel cell drive system (F-cell vehicle) in
a real-world setting. LAX became the only U.S. airport to
participate in this DoE project.
December 1,
2005
Settlement between Los Angeles Board of Airport
Commissioners; the city councils of Los Angeles, Culver City,
El Segundo and Inglewood; the Los Angeles County Board of
Supervisors; and the board of the Alliance for a Regional
Solution to Airport Congestion. In return for dropping their
lawsuits on the SAIP, the agreement reduced the number of
gates from 163 to 153 by 2015, provides funding to Inglewood,
Los Angeles County, El Segundo and ARSAC totaling $266
million over a 10-year period to include:
(1) accelerated noise mitigation for Inglewood, Los Angeles
County and El Segundo;
(2) job training and increased job opportunities;
(3) traffic mitigation for Inglewood and El Segundo;
(4) street removal and landscaping in the dunes west of
Pershing Avenue; and
(5) Westchester street lighting.
An additional commitment of $60 million will be spent by
LAWA on air quality and environmental justice programs.
December 5,
2005
SAIP EIR certified by the LAWA Board, followed by the
award of a $241 million contract for construction of the runway
starting early 2006.
January 18, 2006 LA City Council approved settlement.
February 2, 2006 Third semi-annual LAX Master Plan stakeholder forum.
March 15/18,
2006
First public outreach meeting for the LAX Specific Plan
Amendment Study, which was required as part of the
settlement. This study will seek alternatives to two
controversial “yellow light” projects such as the Manchester
Square Ground Transportation Center. These meetings will be
held monthly for the next six months.
August 29, 2006 Fourth semi-annual LAX Master Plan stakeholder forum.
September 18,
2006
$575 million contract awarded to Clark/McCarthy for
renovation of the Tom Bradley International Terminal.
September 27,
2006
Public review of North Airfield concept.

95
Figure 3: Community Benefits at Work – Signs Displaying the Air Quality
Monitoring at Work During LAX Construction

Source: Los Angeles World Airports (LAWA)

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Ballpark Villages, San Diego

San Diego has been a conservative bastion that has created a circle of elites from
developers to politicians to sports teams to military brass. According to Mike Davis
(2005), San Diego has a history of corruption marked by a “high moral tone”.
Several past Mayors have been involved in these schemes. It is therefore not
surprising that within the timing of approval of the Ballpark Villages project was
folded the resignation of the Mayor on a major pension scheme involving federal
securities fraud.

The Downtown establishment in San Diego is a small coterie of elite club members.
An example is the organization called Downtown Partnership, which consists of
large businesses that want to promote downtown. The pro-growth agenda is also
pushed by semi-public entities such as Downtown Residents Group, East Village
Association and Little Italy Association. Downtown planning and development is
overseen by a non-profit entity, the Centre City Development Corporation (CCDC),
whose Board members are appointed by the Mayor. This is an entity created under
the then Mayor, Pete Wilson, in the 1970s to allow the private sector to regulate
development in downtown. It has two functions: (1) planning (it acts as an
outsourced land-use planning entity to the City, with power to hold its own hearings
and approve projects); and (2) redevelopment (it recommends to the City

97
Council/Redevelopment Agency actions regarding land acquisition, eminent domain
and the redevelopment plan). The latter allows CCDC to spend Tax Increment
Financing to finance public works projects in downtown, and to subsidize the
externalized costs of growth.

Downtown San Diego has seen a turn-around in the past five years due to
redevelopment following the Padres Ballpark. However, the rapid development and
yuppification of downtown has priced out low-income families. The average rent in
the Centre City area is about 30%-40% higher than comparable units in the rest of
the County (Table 6).
Table 6. Comparison of Market Rents
San Diego County Downtown Number
of
bedrooms
Fair
Market
Rent
Average
Rent
AMI at which
“naturally
affordable”
Average
Rent
AMI at which
“naturally
affordable”
0 $854 $852 71% AMI $1,183 107% AMI
1 $904 $1,010 74% AMI $1,311 103% AMI
2 $1,104 $1,223 79% AMI $1,697 119% AMI
Sources: MarketPoint Real Estate Information Services, 2004 for rental data. AMI-level is
interpolated from the HUD 2004 adjusted income levels calculated by the San Diego Housing
Commission. Fair Market Rents for San Diego County MSA from the US Department of Housing and
Urban Development. (AMI = Area Median Income)

Over 3,000 affordable or “income-restricted” units have been created downtown with
redevelopment agency assistance. However, one of the key problems of “income
restricted” affordable housing downtown is that only 19% built is for families. The
rest is for individuals (43%), seniors (27%) and special needs including transitional
(11%) (see Figure 6). Out of the family housing created, a limited portion is for low

98
income. Overall, only 4% of all the approximately 3,000 affordable units downtown
are for low-income families (see Table 7).

Figure 6: Affordable Housing Created Downtown since 1979
10%
9%
43%
27%
11%
Low & Very-Low Income Family
Moderate Income Family
Individuals
Seniors
Special Needs

Source: Affordable Housing Projects Log, 2004. Courtesy: Dale Royal, CCDC.

Table 7: Affordable Family Housing Built in Downtown (Including Units in
Pipeline)

Income Level Income Range Affordable
Family
Housing
% of all
Affordable
Units
% of all
Housing
Units
Very Low
Income
0-50% AMI 180 units 6% 1.2%
Low Income 51-80% AMI 127 units 4% 0.8%
Source: Affordable Housing Projects Log, 2004. Courtesy: Dale Royal, CCDC. Current housing units
estimated from Community Plan Update (see Priced Out, Center on Policy Initiatives, 2005).

In addition to eligibility restrictions, the bedroom mix of units makes it difficult for
families with children to live in them (Table 8).

99
Table 8: Bedroom Mix of the Affordable Housing in Downtown

Unit Mix Units (including units in pipeline) Percentage
Zero Bedroom 2,443 84%
One Bedroom 232 8%
Two Bedroom 178 6%
Three Bedroom 71 2%
Source: Affordable Housing Projects Log, 2004. Courtesy: Dale Royal, CCDC.

The Ballpark Villages project in downtown overlooking the San Diego Bay, and next
to the Padres Ballpark, was proposed as the largest residential project in San Diego.
It is a 3.2 million square feet development with 1,400 condominiums, 300,000
square feet retail and 500,000 square feet of office space. The project would use
transferred development entitlements (about 2.2 million square feet) from the
Ballpark, and used the Environmental Impact Report done in 1999 for the Ballpark.
The “horizontal developers”
65
for this project were JMI Realty (a subsidiary of JMI
Inc. which owns the San Diego Padres) and Lennar Urban (a subsidiary of Lennar
Corporation). The “vertical developer” was undetermined, however Lennar was
expected to play a role in developing the four residential towers, which could be up
to 500 feet high. The project was originally proposed in December 2004, and public
hearings commenced in February 2005.

The official planning process had almost concluded with a development proposal
being accepted by the downtown planning-agency (CCDC) on May 25, 2005. This

65
The horizontal developers saw their role limited to site planning and concept design approvals.

100
process had involved three public hearings: CCDC Real Estate Committee, CCDC
Board and the Centre City Advisory Committee. The planning agency had negotiated
an Owner Participation Agreement along with the Master Plan that included eighty
for-sale affordable housing units to be located in the same high-rise residential tower
as the market-rate housing affordable to households earning the Area Mean Income
(about $64,000 annually). The only approval that remained was by the City Council.

As the project was going through the standard approval process through the
downtown-planning agency, a recently formed organization, “A Community
Coalition for Responsible Development” (ACCORD) was organizing residents in
surrounding neighborhoods, labor leaders and affordable housing advocates.
However, presentations by ACCORD to the CCDC Board and the advisory
committee were generally ignored. In the meantime there was an FBI investigation
of certain City Council members due to a corruption scandal involving regulation of
strip-clubs. Although this was unrelated to the project, this sent a shiver of
uncertainty among the developers, who were relying on their votes.

Political pressure started mounting on the developers to create more affordable
housing and address broader community impacts. Although the developers were
adhering to the city’s inclusionary housing policy by providing eighty moderate-

101
income units and some in lieu fees
66
, this was not considered to be sufficient by
affordable housing advocates. There were no additional employment commitments
or environmental benefits in the project than those legally required under existing
laws. Further, the San Diego Port and its heavy industrial tenants in close proximity
of the project felt threatened by potential lawsuits from future residents in the
condominium towers. The downtown planning approval process was not perceived
as inclusive and deliberative enough for several interest groups. The last straw was
the indefinite postponement of the approval of the project, originally scheduled for
July 19, 2005, following the resignations of the two council-members in the strip-
club scandal. It did not seem likely that the project would have the political support
at the smaller City Council. Finally, at the insistence of ACCORD, the developers
offered to negotiate a CBA:
Charles Black, JMI’s executive vice president, said his company was warned
by City Council members that unless the developer gave community groups a
chance to really weigh in on Ballpark Village, the City Council - which has
the final say on any development project - would likely not approve the
project, never mind the thumbs-up from CCDC. There were some
environmental concerns- the project was too close to the waterfront -and
worries about the type of affordable housing planned for the site.
(Kelly Davis, San Diego CityBeat, “City Council Showdown Next”, 10/5/05)

The developers’ offer to negotiate a CBA caught everyone by surprise including the
members of ACCORD. However, the developers wanted to stick to the initial
approval schedule, so the coalition moved into action swiftly. They selected an

66
The in lieu fees were expected to be $7/square foot in mid-2006. If the entire inclusionary
obligation was paid in fees, this was expected to generate $15.6 million for the Housing Trust Fund.

102
anchor organization to make strategic decisions as well as scheduling and logistic
support
67
.

ACCORD had twenty-seven organizations of varied sizes, capacities and interests.
68

Therefore the initial stage of the CBA involved several coalition workshops where
the project was explained, concrete issues were identified and a demand list was
prepared. This stage is crucial since coalition members clarify their expectations,
their bottom-lines and their future roles in a confidential setting. In other CBAs,
there have been instances where the council (or ward) representatives send their
staffs to participate in these pre-negotiation meetings.

There were two outcomes of these pre-negotiation meetings: coalition demand list
(Table 9) and negotiating team (Figure 4). All the members of the coalition prepared
the coalition demand list consensually. It was divided into three issue areas
(employment, environment and housing). The coalition also selected issue-based
negotiating teams. To coordinate among the different teams, two lead negotiators
were selected that would be common to all negotiations. In other CBAs, one or both
negotiators could be replaced with a common observer, typically from the staffing
organizations.

67
The anchor organization was the Center on Policy Initiatives which was supported by the San Diego
Organizing Project.
68
The coalition consisted of adjoining community-based organizations, affordable housing advocacy
organizations and labor-based organizations.

103

The process of the deliberation took a lot of people by surprise. There were two
sticking points: (1) secrecy and (2) representation. The fact that the meetings
occurred in closed doors as opposed to a public session left a lot of the process
suspect for those who were opposed to any changes in the CCDC-supported project.
The second issue was whether ACCORD really represented the “community”:
“When you say you represent the community, it’s so diverse, it’s hard to
make that blanket statement,” he said. “Is this just that [these] guys have
brought a group together that thinks like them or wants something from them,
and they’re now the community?”
Ron Gonzalez (Redevelopment Manager for Barrio Logan) In Daniel
Strumpf “It Takes One to Build One” 9/15/05, San Diego CityBeat.

104
Table 9: Agenda for Initial CBA Negotiation Meeting (8/25/2007)
Overview and Introductions
I. MITIGATING AFFECTS ON THE LOCAL ENVIRONMENT
1. Implement the USBGC LEED standards to achieve certification at the “Gold-Level”
2. Passive Infiltration System for Streets in Project Area
3. Implement the Ballpark Settlement Agreement between EHC and the Padres
4. Clean Construction Practices
5. 20% Solar generated electricity for finished project
6. Safer distribution of residential uses
7. Prohibit Architectural Lighting above podium level (first 3 stories)
8. Bird-friendly architecture OR Bird Strike Window Treatments
9. Funding for Street cleaning & maintenance to Maintenance Assessment District

II. MITIGATING SHORT & LONG TERM HOUSING INPACTS
1. Provide up to 450 offsite, truly affordable rental apartments and homes
2. Priority Given to Downtown Workers and Current Residents of the Affected Community
3. No displacement of offsite AH for creation of AH (Net increase only)
4. Provide adequate security to assure the construction and occupancy of the affordable rental
units

III. PRESERVATION OF COMMUNITY CHARACTER
1. Fully Fund an Impact Study of downtown development on surrounding communities
2. $500K to Local Arts, Culture and Youth Services in the affected community

IV. JOB QUALITY
1. Application of Living Wage, Worker Retention and Responsible Contractor Ordinances
2. Card Check Neutrality for all subcontracted work on site
3. Construction of and Card Check Neutrality for a Hotel of at least 104 rooms
4. Consultation with ACCORD Coalition before finalizing Anchor tenants

V. PROTECTION OF CURRENT WORKERS
1. Implementation of Navigation Easements for residents
2. Permanent, reserved, free parking for Petco Park workers during and after construction
3. Full Funding and Political Support for Community Plan Update for Barrio Logan

VI. OUTREACH, LOCAL HIRE AND TRAINING FOR NEW JOBS
1. Project Labor Agreement (PLA) for all Construction Work
2. Fully Fund Outreach Programs and Pre-apprenticeship training for all new jobs
3. First source Hiring Program for a designated % of Construction Jobs
4. Coordination of all Permanent Jobs through the First-Source hiring program
5. Priority for Hard to place applicants, Local residents, and Low-income residents
6. The creation of a space on the project site for a job placement Head Quarters

NEGOTIATIONS LOGISTICS, SCHEDULE OVERVIEW
Source: ACCORD. Please note that all references to individual names have been removed.

105
Figure 4: Schematic Structure of San Diego ACCORD Negotiations

ACCORD TEAM ISSUE AREAS DEVELOPER

Org 1
LN1
Org 2
LN2
Org 3
EN1
Org 4
(n
E
)EN1
HN1
Org 5
(n
H
)LN2
Org 6
EN2
HN2
Org 7
HN3
(n
C
)LN1
Org 8
(n
C
)LN1
Org 9
CN1
Org 10
(n
C
)LN1
Org 11
(n
C
)LN1
Org 12
(n
H
)LN2
Org 13
CN2
CN3
Org 14
(n
E
)EN1
ENVIRONMENTAL
LN 1
LN 2
EN 1
EN 2

HOUSING &
NEIGHBORHOOD
LN1
LN2
HN1
HN2
HN3
EMPLOYMENT &
ECONOMIC
LN1
LN2
CN1
CN2
CN3
Developer 1
Developer 2
Attorney
Consultant
LN = Lead Negotiator;
EN = Environmental Negotiator;
HN = Housing and Neighborhoods Negotiator;
CN = Employment and Economic Negotiator;
n
E
= Nominated negotiator for environmental
issues;
n
H
= Nominated negotiator for housing issues;
n
C
= Nominated negotiator for employment issues.

106
Due to the urgency of time (three weeks) and the number of issues (initial list had 28
issues), the negotiations proceeded rapidly. Each of the issue areas had its
negotiations separately. At times, negotiations proceeded back to back all day long.
During the negotiations, the teams held three debriefing meetings to get feedback
from other coalition members. The final terms of the agreement were presented to
the entire coalition by the negotiating teams. Any trade-offs between issue areas was
discussed and consensually resolved.

The housing deliberation was the most interesting. The coalition originally
demanded 450 low-income units, then 300 units, which they then modified to
300,000 square feet (since family units would be larger). They did not think that they
would get this since land is expensive in downtown, and the best that the planning-
agency got was 80 moderate-income units. This could have been a deal-breaker for
both sides. However, during the deliberations, the developers brought in a non-profit
service provider
69
, who owned land in downtown and wanted to operate apartments.
The end result was a mix of 30 moderate-income on-site units and 209 low-income
off-site units for families with children, and some very-low income single-room
units, which totaled over 300,000 square feet of affordable housing. Developers will
ensure 209 units of rental housing affordable to families for all income ranges
averaging $44,850 (65% AMI). This housing is to be built within the Centre City

69
St. Vincent de Paul/Father Joe’s Villages, a social service provider owns/operates low-income
housing.

107
area and about 75% of the space is intended for low-income families with children.
A possible distribution of units would be transitional (36 units), studio (46 units),
one-BR (24 units), two-BR (55 units) and three-BR (48 units). In order to implement
this program, the following steps will be taken:
Developer will give upfront $17 million to an affordable housing developer.
(this is the equivalent of the in-lieu inclusionary housing fee)
Developer will assist the affordable housing developer in securing $16-$20
million worth of land for three projects in Centre City area: 16
th
and Market,
16
th
and Imperial, and 15
th
and Commercial. These three sites are zoned for
affordable housing, so that land entitlement process is swift.
The affordable housing developer will apply for non-local sources of funding
to finance the projects. Thus, the use of local Housing Trust Fund was not
allowed.
The developer cannot occupy any of the three towers unless the affordable
housing has been completely built and occupied.
Priority of occupancy in these affordable units will be given to residents in
the Neighboring Communities
70
as well as downtown workers.

The arrangement made financial sense for the developers. Firstly, constructing
100,000 square feet of affordable housing in a high-rise (Type I) tower would cost

70
“Neighboring Communities” is the area bounded by Highway 94 on the north, the San Diego Bay
on the south, Interstate 15 on the east, and the project site on the west.

108
$350-$400 per square foot. In the original plan to sell to moderate-income
households (say at $200 per square foot) there would be a net cost of about $20
million. With mid-rise (Type II) construction, they could provide double the units
with the same investment. Secondly, land value in downtown is the primary factor
behind high home prices. In this case, land valued at $16-$20 million was being
provided free by the non-profit, and was already zoned for mid-rise residential.
Lastly, the stand-alone low-income housing project would qualify for a variety of
state and federal housing grants, loans and credits, including the 9% Low Income
Housing Tax Credit.

The CBA was signed on the weekend preceding the vote at the City Council on
September 20, 2005. This hearing had to be continued almost a month since the
Council did not have the time to review the details of the agreement, as well as to
counter the accusations of secret negotiations by allowing the public to review and
comment on the agreement. As the second City Council hearing approached, the
downtown planning-agency embarked on a media and political offensive. The
agency was “extremely dismayed”
71
about a parallel process that created a
development proposal different from that presented to them. They recommended
approval of the old proposal (without the CBA) with the moderate-income housing
(Figure 5). On the other hand, the developers favored the new proposal with the

71
Letter from Hal Sadler (Chair, CCDC) to the Deputy Mayor and City Council, September 21, 2005.

109
CBA, fearing that the old proposal had an organized opposition and would fail to
convince the City Council of its public benefits (Table 10).

With all the uncertainty, the debate on the accompanying development agreement
continued with the City Council. Finally, on October 18, 2005, the day of the hearing
at the City Council, ACCORD backed by over 300 people in the audience made an
impassioned presentation outlining the additional benefits of the CBA. There was
also testimony in opposition by groups that were not included. After the public
testimony, the high-profile drama continued. The downtown-planning agency
requested the Council to approve the project without the CBA. The motion failed 2-
4. The City Council then amended the motion to approve the project with the CBA
provision of off-site rental housing.
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This motion was approved 5-1. A few months
later, the affordable housing component of the project was approved unanimously by
the downtown-planning agency.
We’re encouraged by the cooperation between a developer and social-justice
advocates, and we hope there’s more of it to come. The advocates have
decided to infiltrate a system they’d previously been shut out of. That’s a sign
of progress – or maybe just progressivism.
(San Diego CityBeat, Editorial, “Brave New World”, 9/28/2005)

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There was one last-minute change in the CBA. Council staffers huddled the developer and key
ACCORD negotiators and made a change to the affordable housing commitments in the CBA to
include 35,00 square feet on the site of the project, in return for eliminating LEED standards on one of
the towers.

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Afterword:
The approval of this project politically shook the CCDC. Subsequent Board
resignations and appointments, as well as staffing changes made the agency tolerant
of more diverse issues. Most significantly, it offered to pay the cost ($1.5 million) for
an update of the Barrio Logan community plan, a low-income Latino neighborhood
southeast of downtown. The plan will include analyses of the impact of gentrification
and economic impacts of downtown development.

On the project itself, due to the downturn in the residential real estate market, the site
remains unbuilt for almost two years. One of the developer partners, Lennar wants to
sell the land immediately, due to national profitability problems in this publicly
traded company. In early 2007, JMI Realty (the other partner) in partnership with
Marriott proposed to build a 1,700 room hotel and 170,000 square feet convention
center on Parcel D (the southern parcel), at the same time keeping the entitlements
on the other parcels. It intends to re-negotiate its agreement with the Redevelopment
Agency due to a completely different project performa. Nevertheless, the developer
has had good-faith discussions with ACCORD to communicate their intent of
providing the community benefits agreed to in the CBA, even if their commitments
to the agency change with the amendment of the Owner Participation Agreement.
Moreover, the developer also signed an agreement with the hotel union (an
ACCORD partner) to ensure good quality jobs with health benefits.

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Figure 5: CCDC letter protesting the CBA prior to City Council approval

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Table 10: Comparison of Development Proposals for Ballpark Villages: With and Without a CBA.
WITH CBA WITHOUT CBA
A. Environmental Issues:
1. Green Buildings LEED certified in addition to meeting state standards. Third
Party Commissioner verifies design, construction and execution.
Development Services review.
1. Title 24 (state standards) on energy conservation. California state mechanical,
plumbing and electrical guidelines.
Development Services review.
2. Treatment of Hazardous Substances off-site with notification to surrounding
neighborhoods.
2. Remediation measures per Ballpark EIR and Master Workplan (adopted in
1999) that could involve regulated on-site remediation and no notification if
specific hazards are found.
3. Clean construction practices with use of electric or bio-diesel cranes. Truck
traffic will avoid residential areas, be covered, and their wheels washed.
3. Ballpark EIR prescribes techniques to reduce construction emissions, but has
no requirements. No commitment on trucks.
4. No use of reflective glass; and turning off unnecessary exterior lights at night. 4. No discussion on birds. Lights need to be shielded due to glare on ballpark.
5. High indoor air quality with use of low emissions materials and no residential
openings on potentially polluting industrial side.
5. No discussion of sensitive receptors. The only restriction is that California
Building Code prohibits use of hazardous material like asbestos.
B. Employment Issues:
1. Living wages ($10 per hour with health insurance; $12 per hour without
health insurance) and 10 days paid leave for all service sector workers.
1. No wage and benefit commitments. Only state laws on minimum wage
($6.75).
2. No contractors that have intentionally violated labor laws. 2. Only state laws on Occupational Health and Safety applies.
3. Target 30% of the service jobs to surrounding neighborhoods and ex-
offenders; employers to first post job openings in an on-site referral center.
3. No local employment commitments.
4. Target 30% of construction jobs to surrounding neighborhoods and ex-
offenders, with a commitment to sponsor an integrated outreach, case
management, training and placement program for 180 participants.
4. No local employment commitments.
C. Affordable Housing Issues:
1. 209 units rental housing affordable to families for income up to $38,000. 1. Creation of 80 condos affordable at $76,000 annual income.
2. Payment of $1.5 million upfront towards a project that provides home-
ownership opportunities in the surrounding neighborhoods. Coordinated
fund-raising for this project to leverage this with other sources.
2. Payment of up to $4 million of in lieu fees to the Housing Commission
depending on the number of condos built.
D. Miscellaneous Issues:
1. Developer will pay $100,000 to study the effects of downtown development
on surrounding neighborhoods.
1. No commitment. CCDC has typically rejected gentrification impacts as
beyond the scope of EIRs or project review
2. Funds ($50,000) for arts and culture in surrounding neighborhoods, in
addition to the 1% requirement by the city.
2. 1% of the value of commercial permits should be spent on art.
3. Protection of residents and marine terminal. 3. Potential lawsuits between residents and marine terminal.
4. Commitment to a grocery store that pays living wages and gives healthcare. 4. No commitment on grocery store.

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Chapter 5: Analysis of a CBA

The most unique feature of a community benefits agreement is a community
coalition that defines and advocates for community benefits. When viewed through
the prism of equity, this process ensures both community engagement as well as
plurality of demands. When viewed through the prism of a social movement, the
proof of success of a CBA coalition lies not in its service performance and delivery,
but in its responsiveness to its political base.
73
Community coalitions, in general,
have not been successful in delivering services (Chavis 2001). On the other hand, the
very act of twenty diverse organizations putting their signatures to a piece of paper,
even if it have nothing on it of significance, is a political gesture that has strong
public policy after-shocks. This is even more so in urban planning situations where
place-based coalitions can play an important role in organizing stable geographic
communities (see Mondros and Wilson 1994, 212-215). Communities in turn are
becoming more cognizant of their capacity to impact local issues through the land
use and planning process (Lejano and Wessells 2006). How community coalitions
transform their differences into social change and in doing so increase the power of
the grassroots needs to be further studied (Chavis 2001).

73
Coalitions consisting primarily of non-profit organizations are faced with similar challenges as the
non-profits themselves in evaluating effectiveness. A social constructionist, multiple constituency
evaluation of non-profit effectiveness leads us to measure responsiveness of the organizations to the
needs and expectations of stakeholders (Herman and Renz 1999).

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This chapter explores the replicability of the CBA as a model of equitable
development. It presents the appropriate conditions under which a CBA could be
negotiated, the role of the community coalition, the typical components of a CBA
process, and the mechanisms by which power is redistributed through this process.

Conditions for a CBA

The power to enter into contracts has been granted by the U.S. Constitution.
74
It is
also not unusual for private individuals or organizations to enter into agreements
with developers on project performance. However, the CBA may not be the
appropriate tool for equitable development exactions by all community organizations
for the following reasons:
1. Inadequacy of coalition: If stakeholders impacted by the proposed project
were not organized to form a strong coalition that can politically sway the
path of project approval, then it would be futile to start negotiating. The
force of the “growth coalition” may be too strong, and be either overwhelm
or tear apart the community coalition. The price of community benefits is
political support, which the coalition must have even before it begins a CBA
process. Related to inadequate coalitions are non-representative coalitions
that do not include individuals or groups most impacted by the project.

74
Article 1 Section 10 of the U.S. Constitution bars any state from passing laws “impairing the
Obligation of Contracts”.

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A related issue here is that there will always be people who feel left out
because they did not catch the train as the coalition was doing its outreach
efforts. The only remedies here are to join a moving train, or make sacrifices,
or to wait to the next round. The stakes in a political battle are too high to
have internal personality fights. Furthermore, even when a coalition is
representative of the people impacted, and the stakeholders are organized,
they may still not have the power to sway their elected officials. The scale of
“asks” must be matched with an appropriate scale of “gives”. The price of
non-delivery later on may be too debilitating for the coalition.
2. Inappropriate scale and complexity of project: Grassroots organizing,
coalition formation and sustenance, and the resources spent on negotiations
need to be balanced with the scale of the project. The project-specific
demands of a coalition require a holistic approach that is resource intensive.
A small project with limited impact may not entail a large-scale coalition. In
these instances, project review by community and neighborhood planning
groups is adequate. When there are many such small projects across the city,
a policy response may be preferred. In other instances, where the project is
not very complicated, organized communities are able to insert community
benefits through direct advocacy to their elected officials. An alternative is
for community groups to make single-issue agreements (such as conservation
easements, local hire agreements) before project approval.

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3. Wrong timing: A project that is too far along the approval process is less
amenable to changes proposed during negotiations. Thus, a developer whose
project is already approved in concept (such as a master plan) is unlikely to
offer any significant concessions due to financing costs associated with
changes in design. At the same time a developer who is not in urgent need for
project approval can wait it out a few years. In other instances, developers
may play neighboring cities against one another for tax breaks, for siting a
revenue-generating project. This creates a complicated issue of timing for the
coalition.
4. Wrong project: To advocate against the project itself is the most common
form of community resistance. Often, disapproval of a project in its entirety
is the most sustainable strategy. The premise here is that no compromise is
possible, and any communicative process is anticipated to fail. This stance
may be justified in high-profile environmental projects (dam versus no-dam)
or in political fights where the outcomes are predetermined. CBAs however
assume that compromise or consensus is possible through a deliberative
process. Therefore a CBA would only be possible if the community was
willing to trade some other environmental benefit with allowing limited
development, as in multiple species conservation plans.
5. Negotiation unnecessary: In some instances, especially in projects proposed
by non-profit developers or community development corporations, there is no

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negotiation. This could be because sometimes these organizations are part of
the coalition. In many instances, non-profit developers want to showcase
their community benefits, and a community coalition provides a forum for
presenting these benefits. In other instances, developers want to use a
community agreement as a tool to leverage state or federal grants. In these
cases of voluntary benefits, where the coalition role was peripheral in
procuring community benefits, and where no real negotiation occurred, this
discussion does not apply.

To summarize, CBAs are appropriate for projects of sufficient scale and complexity
that do not lend themselves easily to cookie-cutter policies and processes. They need
a proportionate response from the community in terms of political power through
organizing, as well as resources for negotiating. The deliberative process needs to
begin in a timely manner for a project where the coalition believes a compromise or
consensus is possible. The CBA discussion is not relevant in projects where there is
no need for substantive negotiations.
The Role of the Community Coalition

In order for community benefits agreements to be models for sustainability, there are
several reasons why community coalitions are necessary:

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1. Shifts the balance of power: In co-operative game theory models,
organizations seek to maximize their policy impact (Von Neumann and
Morgenstern 1953, Riker 1962) by aligning with a winning coalition (De
Winter et al. 2002). Even among organizations that have potential
disagreements (e.g. pro-growth versus slow-growth), they agree to cooperate
on a limited basis for strategic reasons. Community organizations realize the
need to balance the thrust of the value-free growth machine.
2. Allows organizations to maintain their core identity and function: Coalitions
maintain the primary focus of member organizations while providing the
necessary infrastructure for advocacy on other issues (Mizrahi and Rosenthal
1993; Mondros and Wilson 1994, 125). This is especially important for
organizations (such as labor unions, tenant-right groups, church-based
groups) whose primary mission is not land-use planning. Being part of a
CBA coalition allows them the opportunity to address land-use issues that
impact their membership without becoming land-use organizations
themselves.
3. Pooling of resources: Collaboration between organizations can lead to
pooling of resources that can add up to more than the sum of the capacities of
individual organizations (Sarason and Lorentz 1997). Advocacy planning is
part of a perpetual social movement that could significantly tax an
organization if it was to take on the sole mantle.

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4. Holistic and comprehensive approach to planning: Diversity of organizations
in the coalition will translate into a breadth of issues that will be examined by
the community. The comprehensive approach is essential to long-term
planning. (McClendon et al. 2003). The problem with one-on-one
stakeholder discussions is that each group advocates for its issue in an insular
fashion, which runs contrary to the pluralist mantra of advocacy planning.
Thus the public agency’s need for information is often distorted by the push
and pull of the multiple stakeholders’ interests in the outcome (Pressman and
Wildavsky 1973).

A. Formation of Coalition and Staffing

The foundation of the CBA coalition is in community-based organizing. Community
organizing is driven by the mobilization of residents to address common problems
(Dreier 1996). Organizers are not only essential to start and build a social change
organization; they are also essential to keep it going (Alinsky 1989[1971]).
Coalitions are more likely to succeed when the motivation for formation or existence
of the coalition comes from within the community (Wolff 2001b). An initial
leadership team is likely to succeed if it inspires the support of the major leaders in
the community, and also has strong grassroots support (Wolff 2001b). Lack of

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community motivation is a key reason for the failure of private foundation-driven
and public agency-led coalitions.

Membership in CBA coalitions in some cases involves signing on to a broad set of
vision statements, and in others is an informal convening of long-time activists who
know each other. Since the impacted community and stakeholders may differ for
different projects, a CBA coalition does not lend itself to a rigid membership. At the
same time, the CBA coalition may be a remnant of a previous or simultaneous
organizing effort in the same impacted community
75
. In this instance, there has to be
some sensitivity to previous failed interventions that may lead to current problems
(Kadushin et al 2005). This “skeletons in the closet” problem seems to be one of the
largest obstacles to formation of local CBA coalitions across the country. Impasse in
previous negotiations could spiral into negative feelings about cooperation and
negotiation processes in general (O’Connor and Arnold 2001).

Research in social movements suggests that central organizations making strategic
and framing decisions, with other organizations mobilizing participants, works more
effectively than other forms of coalitions (Jones et al 2001). In fact, staffing the
coalition is critical in the success or failure of any community coalition (Wolff
2001b). In CBA coalitions, most organizations are non-profits, which leads to a

75
For example, the CBA negotiated for the Staples Arena project in Los Angeles was with the
Figueroa Corridor Coalition, which was also organizing around other projects in the vicinity.

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struggle for resources. Invariably, certain organizations will disperse greater
resources to enhance the capacity of other participating organizations (Chavis 2001).

Staffing organizations play a significant role in organizing, moderating, and
mediating between different grassroots community organizations. In this sense they
serve as an alternate planning institution. They may bring in the technical expertise
necessary to generate alternate plans and policies. At the same time, they constantly
educate the other coalition members in order for them to understand and actively
participate in the negotiation process. This education would potentially lead to long-
term self-determination among the grassroots.

In order to eliminate any appearance of conflicts in interest, staffing organizations in
CBA coalitions actively renounce any financial benefits from the negotiations. In
most cases, they are non-profits formed under the Internal Revenue Code section
501(c)(3) which prohibits political campaign activity for candidates. This code also
requires tax filings (Form 990) that list salaries of key positions to be publicly
available. Funding for these organizations generally comes from large philanthropic
foundations that dissociates them from either the government or private developers.
This imparts legitimacy to the coalition, as the staffing organizations often serve as
community organizers, spokespersons and facilitators.

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B. Values-Based Limits of CBA Coalitions
Coalitions that have been effective in CBA campaigns have been cognizant of
forming long-term relationships with their coalition partners in order to weigh in on a
wide range of planning and policy issues. However, public policies are usually based
on a politically-charged belief systems:
At the highest/broadest level, the deep core of the shared belief system
includes basic ontological and normative beliefs, such as the relative
valuation of individual freedom versus social equality, which operate across
virtually all policy domains.
(Sabatier and Jenkins-Smith 1999, 121)

In the language of game theory, to ensure that the expected winning policy is closest
to their own preferred policy, organizations will attempt to maximize “policy
coherence” (which is the deviation of the organization’s preferred policies from the
coalition’s proposals) (De Swaan 1973). In contentious land-use battles,
organizations need to have common values, otherwise the coalition will break down
at the critical point when action is needed (Lejano and Wessells 2006). Thus at a
“value-based” level of partnership, which is often the preferred mode of partnership
(Nelson et al 2001), ideological diversity is consciously minimized (Leiserson 1966).
The common values-based theme observed in these CBA coalitions is that
development serves not just to improve material lives of low-income communities,
but also to address social, political and psychological powerlessness
76
. These policy

76
See Friedmann (1999). Also see Weissberg (1999) for a counter-argument on whether
empowerment is really effective in solving problems or is just an excuse for government dependency.

123
positions may limit the size of policy-based coalitions (Rider and Ordeshook 1973;
van Deeman 1991). However this limit may benefit the coalition, as smaller set of
groups with focused interests can be more effective in the policy arena (Olsom
1971).

C. Dynamic Tensions Within CBA Coalition

Although cooperation emanating from shared values is the foundation of a CBA
coalition, there is a constant under-current of conflicts. These conflicts are common
in most social change coalitions. According to Mizrahi and Rosenthal (1993), these
conflicts occur at three levels: (1) between the coalition and its organizing target, on
strategies and issues of legitimacy and power; (2) among the coalition participants,
on issues of leadership, decision-making and personality/style; and (3) between the
coalition participants and their member organizations, on issues of shared goals,
division of benefits, commitments and representation.

The following discussion lays out the four dynamic tensions in community coalitions
arising out of the conflict/cooperation impulse described by Mizrahi and Rosenthal
(1993). The focus is on demonstrating examples of how a typical CBA coalition
resolves these tensions.

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1. Coalition versus Organization: Participants in CBA coalitions may at times
be conflicted between their roles as members of the coalition versus their
respective organizations. This could be particularly so if there is an overlap
between the work done by member organizations and the coalition. CBA
coalitions have taken the following steps to ensure that such conflict is
minimized:
(a) Each coalition member represents a unique constituency and
membership-base. CBA coalitions do not have the time or mandate to
resolve larger issues on representation. This simple rule minimizes
internal competition, and keeps participants focused on external targets.
(b) Staffing organizations do not duplicate work done by any member
organization. This eliminates “turf” problems surrounding organizing the
same constituencies, and expands coalition capacity by directing
resources to where they are needed.
(c) Any activity done in the name of the coalition needs to be authorized by
the coalition. This eliminates confusion for participants who could be
acting either on behalf of their organization, or the coalition. Individual
participants may want to testify at public meetings, organize their base for
action, or take a position on a related issue.
2. Autonomy versus Accountability: The coalition participants need to be
autonomous enough to make quick decisions especially in the midst of

125
negotiations. At the same time, they have to be accountable to their member
organization and its grassroots base. In fact national non-profits that have the
most impact on environmental policy frequently employ membership surveys
and various deliberative processes to set policy priorities (Rees 1999). These
steps are commonly followed in the CBA process:
(a) Coalition participants are executive staff or leaders of their respective
organizations with some authority to make tentative decisions. This
ensures that there are not frequent delays in getting direction on every
issue.
(b) Major decisions of the coalition need to be ratified by each member
organization through its appropriate process. Major decisions may include
issues such as agreeing to negotiate as part of CBA coalition and approval
of the CBA. A typical process includes a presentation to the grassroots by
staff of the coalition, and approval by the board of the member
organization. There have been some instances where coalition partners
could not get ratification of their respective member organizations
because of complicated time-consuming procedures in doing so. In such
instances, the participant cannot be a signatory to the CBA. The coalition
operates under the assumption that it is a coalition of organizations rather
than a coalition of individuals. This ensures robust feedback mechanisms

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and representation of a larger grassroots base than just the individuals
sitting at the table.
(c) Coalition participants frequently solicit feedback from their member
organizations. This ensures that the negotiation team is constantly in
touch with the needs of its grassroots, before and during the negotiation
process. It is not uncommon for a member organization to call an
emergency meeting of its board if its issue of concern has reached an
impasse during CBA negotiations. These feedback meetings are subject
to any confidentiality agreement during the negotiation process.
(d) CBA negotiation sessions frequently include observers. Member
organizations invite observers from their grassroots who watch the
negotiations in process. This allows opportunity for live feedback to the
negotiating team. It also creates greater buy-in from the membership
base, once a final deal has been reached.

3. Means versus Models: What happens the day after the CBA is signed? The
CBA can be a means to accomplish certain benefits for stakeholder
organizations, as well as a model for collective power and a comprehensive
approach to equitable development. Experienced organizers prefer a long-
term model approach (Kahn 1982; Delgado 1986).

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The CBA coalition typically takes the following approach:
(a) Every CBA is a model CBA: The language, intent and symbolism of the
CBA is literally taken out to the streets by organizers of community
coalitions. What is often emphasized are not just the gains for a single
project, but the future possibilities in other projects.
(b) CBA coalitions frequently talk about precedent: During internal
discussions among coalition participants, there is a high degree of
awareness of the future implications of winning (or losing) certain
community benefits. Developers in other projects that may not even have
a CBA will be pointing towards this project for offering (or not offering)
parallel community benefits.
(c) CBA supplements (not substitutes) community organizing: The focus of
the community coalition is on achieving community benefits and
grassroots empowerment, with a tacit understanding that a CBA may not
result.

4. Unity versus Diversity: Although organizations in a coalition share values,
their positions on issues may not be identical. Norms to “get along” dominate
many coalitions that camouflage deeper divisions and inequalities (Chavis
2001). They may have differing positions on other projects or policies. They
represent different stakeholders. There may be resentment among coalition

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members if developers during negotiations are meeting one organization’s
needs at the expense of others. These call for some CBA coalition etiquettes:
(a) Coalition members educate themselves about each other: Prior to all CBA
negotiations, there are several internal meetings where organizations
present an overview of their work, their base, their beliefs and their
issues. Internal cohesiveness occurs when each participant appreciates the
entire picture. After each participant is conversant with and has developed
respect for other participants, only then do project specific deliberations
begin. During coalition meetings, participants frequently update each
other on the status of other campaigns that may be of interest.
(b) All expectations are clearly stated: During pre-CBA negotiations, each
organization individually and the coalition collectively defines its bottom-
lines for agreement in the CBA. This is a difficult conversation since
individual and organizational goals vary and are often not clearly defined.
These bottom-lines need to be clearly articulated positions, which if
crossed during CBA negotiations, create the need for an evaluative
discussion and consensual decision by the coalition and the
organization(s) effected.
(c) All decisions are made by consensus: Theories on coalitions emphasize
the need for mutual consent even when bargaining and trade-offs are
involved (Bacharach & Lawler 1980; Strauss 1978). If there is any

129
position of the coalition that an individual member is not comfortable
with, it is withdrawn. Usually leaders within the coalition are able to
resolve potential internal conflicts. In severe instances, if the coalition
takes a position that conflicts with that of a member organization and vice
versa, and this position is central to CBA negotiations, then that
organization may be placed in a tenuous position. Although rare, these
instances, such as the environmental justice organization withdrawing
from ACCORD, test the coherence of the coalition.
(d) All coalition members are regularly updated about the status of
negotiations. This obvious rule may often be overlooked especially when
negotiations get intense, and the status of proposals is in a flux. However,
scheduling of regular CBA update sessions ensures that some members
do not feel left out of crucial negotiation deal-points.

Description of the CBA Process

In a traditional land-use process, there is often an antagonistic relationship between
public and private interests. As a result, efforts to “win” project approval lead
developers and public agency officials into competitive position-taking behaviors
(Dorius 1989, 1993) often leading to inequitable growth. Every public benefit is
considered an “injury” by the developer (Lewisohn-Zamir 1996), and every

130
governmental layer increases uncertainty in the process (Abbott 2005, Christensen
1999). As a result, the regulatory takings doctrine has produced substantial litigation
between developers seeking to maximize benefits from their private property, on the
one hand, and government regulators seeking to promote public goods (Crane 1996).

A CBA does not work on a “thumbs up or thumbs down” approach associated with
regular aggregative processes. The end-game for either the developer or the
community is not to have a signed CBA, but to have political support for the project.
This political support is not just a superficial organizational endorsement, but
grassroots support that would legitimize the advocacy planning activity of a private
coalition in the first place. This is why face-to-face deliberation is central to the
process. If a CBA is indeed successful, the formal planning approvals become
secondary, even though applicable regulations are invoked frequently to bargain for
greater community benefits. The power forces unleashed during the successful CBA
process make the regulatory and inter-governmental hurdles moot.

A necessary ingredient for negotiations is a conflict between interests (Lewicki 2005,
Fisher and Uri 1991; Raiffa 1982; Bazerman et al 1988). The conflicts and tensions
inherent in achieving equity are thriving grounds for a CBA. Obviously there would
be no negotiations if the developer consented to all coalition demands. CBAs involve
complex land-use and environmental issues based on an irreducible plurality of

131
interests. Where a consensus does not emerge, negotiations involve compromise and
accommodation. As a result, negotiations turn into learning processes for all parties,
which could lead to restructuring of preferences and emergence of original solutions
(see Wildavsky 1987, Hove 2006).

The CBA process is thus wrongly characterized as “CBA negotiations”. A more
appropriate term would be “CBA deliberations”. There are several key distinctions,
listed below, but they manifest the deeper discussions about equity, and how
expectations of the concept itself shape our behavior.

Firstly, the purpose of deliberation is not solely to resolve conflicts. In their seminal
book “Why Deliberative Democracy?” Amy Gutmann and Dennis Thompson (2004)
mention the following four purposes of deliberative democracy: (1) to promote the
legitimacy of collective decisions (this is especially so when all citizens do not agree
to the decision); (2) to encourage participants in taking a broader perspective on
questions of common interest; (3) to promote mutually respectful processes for
decision-making even when faced with a conflict of incompatible moral values; and
(4) provide an opportunity for advancing both individual and collective
understanding:
Through the give-and-take of argument, participants can learn from each
other, come to recognize their individual and collective misapprehensions,
and develop new views and policies that can more successfully withstand
critical scrutiny. When citizens bargain and negotiate, they may learn how

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better to get what they want. But when they deliberate, they can expand their
knowledge, including both their self-understanding and their collective
understanding of what will best serve their fellow citizens.
(Gutmann and Thompson 2004, 12)

When participants educate themselves through rational argument, they adjust their
positions. Thus equity is an organic concept, defined in the act of doing. As the
housing solution in the Ballpark Village project demonstrates, the end result of the
deliberation lay neither in the developer’s position (80 affordable units) or the
coalition’s position (300 affordable units). Instead, a third party nonprofit developer
partnered with the developer to provide 300 off-site units.

Secondly, the developer’s impetus of a CBA is not to resolve substantial conflicts,
but political ones. By corollary, the coalition moves away from narrow interests of
stakeholders to the broader umbrella of equitable development. The CBA thus
follows a deliberative model that minimizes parochial obstructionism and encourages
cooperative dialogue (Chambers 1996; Gutmann and Thompson 1996; Cohen 1997;
Dryzek 2000). In contrast to the traditional land-use process, the coalition seeks to
participate at every stage of development, including early research and discovery
stages (see Fischer 1993). This minimizes last-minute community objections by
getting citizens to cooperatively solve policy dilemmas rather than simply vote on
policy options (Chambers 2003).

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Thirdly, there is neither a unified process, nor any legal mandate for deliberation. In
this sense it is inherently open-ended (see Button and Mattson 2000). Procedures for
CBA deliberation are themselves the subject of deliberation, and major process
issues are usually resolved consensually between the developer and the coalition. At
the same time, it is similar to dispute resolution in that a closure has to be made at
some point in order for the project to be approved or denied.

In the end, structured, stakeholder-based consensual processes are more likely to lead
to sustainable outcomes (Wheeler 2000, 142). The following are some common
features of processes in various CBA deliberations.

1. Initiation of a CBA

The sole impetus for developer willingness to negotiate a CBA is political. Although
a community may be organizing around a project for a while, the actual offer to
negotiate a CBA should come from the developer. This is because the community
coalition remains a private third party entity that does not have a recognized role,
unless the developer is serious about making a deal. A public agency’s resolve alone
is not sufficient to force an unwilling developer to negotiate, particularly since there
does not currently exist a legal justification for withholding development approval
unless a CBA is signed.

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There may be some initial tension and reluctance on entering a new process.
Developers may resent being forced to sit side-by-side with their critics and “being
told what to do by nonexperts” (see Susskind and Field, 1996, 40). However, as
success stories about previous CBAs proliferate, developers consider the CBA as a
risk mitigation exercise. The initial skepticism soon evaporates when each side
recognizes the professionalism, expertise and interests of the other side.

2. Selection of negotiating team, leaders and moderators

CBA coalitions usually nominate a smaller negotiation team from different member
organizations, as it would be practically infeasible for all the members to be
negotiating with the developer at the same time. At the same time, CBA coalitions
do not generally nominate a solo negotiator
77
for the following reasons: (a) It would
tilt the balance of power within the coalition towards one organization; (b) The
individual may not represent the plurality of issues within the coalition; and (c) It is
easier to get into an impasse with solo negotiator.

Research in social psychology suggests that there is more cooperation and increased
joint benefit in negotiations if at least one side consists of a team (Peterson et al

77
Nomination of a solo negotiator (or lobbyist) often occurs in advocacy organizations.

135
1996). This is because of greater information exchange that leads to an accurate
understanding of the opponent’s interests. Two solos at a bargaining table often
completely miss readily available opportunities to maximize joint gain. However,
social psychology scholarship emphasizes that groups are more likely than
individuals to defect from the agreement when given the chance (Morgan and
Tindale 2002; Schopler and Insko, 1992).

Negotiation teams are selected based on issue areas to be negotiated. This implies
that several teams of different community coalition members may be negotiating
concurrently with the developer. In many instances, organizations may pool together
to nominate an individual that would negotiate on their behalf. Coalition members
often seek out the “smart negotiator”, one that has the cognitive ability and
emotional intelligence to perform complex negotiations (Fulmer and Bruce 2004).
There is empirical evidence to show that people who make more accurate judgments
about their opponent’s interests receive better outcomes in negotiations (Thompson,
1991; Thompson and DeHarpport, 1994; Thompson and Hastie, 1990).

One or two common person or persons (either as facilitators or as lead negotiators)
is/are selected to be in all negotiations. This ensures continuity and coordination
among the coalition teams. Figure 4 shows a schematic representation of the
negotiating teams in San Diego. In a lot of instances, organizations nominate
individuals from other organizations to negotiate on their behalf, due to their own

136
resource constraints. Regardless of the resources, each organization and its issue
areas are represented at the negotiating table. The lead negotiators or facilitators are
invariably consumed by the amount of work, and at some point become full-time
engaged. The lead negotiators are either paid by the staffing organization(s) or work
voluntarily. They are usually experienced negotiators and control the venue, pace
and terms of the negotiations. Facilitators keep track of issues discussed, record
agreements and keep the issue area discussions moving forward in a coordinated
way. However, the degree of authority afforded to the facilitator may be restricted
(see Elliott 1999).

In some instances, elected officials may appoint moderator for the CBA
deliberations. The intent of the elected officials is to have some political control over
the process that will impact their constituencies. In these instances, the role of the
appointed moderator is to ensure that deliberations run smoothly (Forester 1999),
that each party performs its commitments, and that no organization attempts to co-
opt or derail the negotiations (see Cooke and Kothari 2001). The advantage of
having an appointed moderator is to (a) legitimize the CBA negotiations; (b) act as a
third party referee (or potentially step in as mediator); and (c) create a two-way
political feedback channel.

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3. Proposals and counter-proposals

Policies in virtually any issue area are sufficiently complex – in terms of
understanding the relevant laws and regulations, the magnitude of the problem and
the influence of various causal factors, and the set of concerned organizations and
individuals – so that actors must specialize if they have to have influence (Sabatier
and Jenkins-Smith 1999). Thus in a CBA, issue areas are clearly defined even before
any proposals are made, and relevant advocates participate in issue-based
deliberations.

Initial coalition demand lists are long issue-based laundry lists of typically 75-100
proposals. Indeed, negotiation literature (see Fisher and Ury 1991; Raiffa 1982;
Lewicki, Saunders and Minton 1997; Thompson 2001) suggests that it is
strategically advantageous to have all issues on the table, in order to maximize
opportunity for integration and leading to better outcomes (Naquin 2003). Later
during the negotiation process, it supplies negotiators with strategic options to trade
issues of high value with those that are of low value (Froman and Cohen 1970; Lax
and Sebenius 1986; Pruitt and Rubin 1986; Ury 1993). Successful CBA deliberations
show that it is also important to pay attention to the sequence of issues, timing, and
tactical delays in tabling proposals.

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Each proposal is crafted to be specific and substantive to address an area of concern.
Lose proposals and unenforceable language is avoided. During the negotiations,
developers may ask for greater details or clarifications on the proposals. On some
major issues, it is common to have a chain of written proposals and counter-
proposals between the coalition and the developer. The intention is to converge at
legal commitments that can be memorialized in the CBA.

4. Caucuses and Time-outs
Negotiation teams are monolithic only in that members are presumed to have similar
underlying interests related to the negotiation at hand; however, the manifestation of
interests and members' strategic behavior may differ significantly (Thompson and
Brodt 2001). Caususes thus give the opportunity for greater cohesion among its
members, and eliminate the prisoner’s dilemma problem that could fracture the team
(Insko et al. 1988; Schopler and Insko 1992). During CBA deliberations, either side
typically uses caucuses for the following reasons: (a) disagreement during
negotiations among the team members; (b) unexpected opposition from the opposite
side; (c) to reaffirm or revisit priorities and costs; and (d) to discuss whether to soften
or harden negotiating positions.

Time-outs on specific issues give opportunity for the negotiation team to get
feedback on a negotiation position from the coalition, especially when there is an

139
impasse. During this time, the issue is not deliberated with the developer, until the
team gets clear direction. Members of the coalition with interest in the issue may,
during this time, solicit feedback from the boards and grassroots base of their
respective organizations.
5. Data gathering during negotiations
Technical information concerning the magnitude and facets of a problem, its causes
and the probable impacts of various solutions plays a significant role in advocating
for policy changes (Sabatier and Jenkins-Smith 1999). Each side seeks to bolster its
position by presenting indisputable evidence. Positions taken by either side, on
perceptions without factual basis, are the leading cause of frustrations in CBA
deliberations. Nevertheless, the two sides will invariably stumble upon positions for
which data does not exist or is inconclusive. When experts must make decisions
based on mixed-data sources, with questionable analytical methods, interpretations
become even more convoluted and divergent (Ozawa 1991). In their “mutual gains
approach” for dealing effectively with the angry public, Susskind and Field (1996)
encourage joint-fact finding to generate information that is believable to both sides.
For example, in a certain project, there was contradictory evidence about pollution
caused by construction trucks. In most instances this can be factually resolved
through collection of appropriate data, such as from comparable field sites.

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The depth and richness of data collection during CBA deliberation enables rational-
critical dialogue. In most CBA negotiations, research staff of policy think-tanks or
environmental organizations are frequently employed to constantly search for
information that will be useful in the deliberations. When an environmental impact
report has been prepared, and the coalition perceives it to be incomplete, it can
request specific studies to establish whether certain mitigations will be necessary. In
other instances, there may be proprietary studies done by the developer, which have
not been submitted to the public agency. Developers may share the results of these
studies if they have developed sufficient trust and working relationships with the
negotiating team.

6. Role of Guest experts
One of the most interesting features of CBA deliberations is the role of guest experts.
These experts include planners, city attorneys, and other public officials. They could
also include private consultants and officials of other jurisdictions. These experts
educate both sides about technical details and feasibility of specific proposals. For
example, during the Ballpark Village negotiations, nationally known LEED
consultants were called in by the developer to brainstorm the project. These
consultants were quite optimistic about meeting the coalition’s demand for silver
certification of the residential towers. In other instances, the coalition (which may

141
not have the relevant expertise) may call in financial experts to understand the cost
concerns of developers.

Guest experts in CBA deliberations remain “guests” (i.e. external) to the process. In
general, these experts usually got credibility by maintaining their independence. If
the coalition felt that these experts were advocating rather than communicating, they
would discount the information provided (see Susskind and Field 1996, 116). In this
sense the “knowers” (technocrats) are subordinate to “the people affected” (Beetham
1991), and play a role in the deliberation only to the extent that they are persuasive to
plural interests.

Despite the skepticism, there has not been a major clash between the “tyranny of
experts”
78
and the “tyranny of participation”
79
. This is because genuine deliberations
consisting of rational arguments rather than self-assertions are more likely to be
acceptable by fellow citizens (Gutmann and Thompson 2004, 46-48). What was
evident however, was the emergence of a new kind of rationality, that which
integrated technical perspectives of experts with socio-cultural rationality of the
community (see Fischer 2000).

78
John Dryzek (1990, 114) has taken his skepticism of technocracy even further by positing that
deliberative democracy should demolish what he calls “the tyranny of experts” defined as “any elite-
controlled policy process that overrules or shapes the desires and aspirations of ordinary people.”
79
Based on the title of Cook and Kothari’s (eds) book “Participation: The New Tyranny” (2001)
which shows how participatory processes can be co-opted with forces of power.

142
7. Meetings with planners and elected officials
During the duration of CBA deliberations, developers often meet with public agency
officials, and other governmental entities to ensure that their commitments in the
CBA are deliverable within the regulatory framework. At the same time, coalition
members meet with elected officials to receive feedback and update them on the
status of negotiations.

The interaction between the public agency and the coalition varies project-by-
project. In the LAX example there was considerable cooperation, as LAX did not
want to infringe on local zoning codes. In the San Diego case, there was some
hostility and tension to the developer’s alternative housing proposals. Overall,
planners were quite conscious of including the public, but were also protective of
their “turf” in terms of the methods of soliciting public participation, especially since
this is an uncommon situation where a private group was meeting outside the
traditional planning process.

There is also a larger symbolic meaning to these meetings. Developer meetings with
planning and public agency officials signal to the coalition that the developer is
serious about the CBA process and the ensuing commitments. Coalition meetings
with elected officials signal to the developer that they can deliver the needed political
support for approval of the project.

143

There are no set rules about who meets whom and when. These meetings start
occurring in greater frequency as the CBA deliberations are concluding. Each party
arranges these meetings, often with consultation with the other parties. In order to
ensure mutual trust, they inform each other about the outcomes of these meetings.

8. External communications
Most CBA deliberations have clear rules for external communication. One of which
is the confidentiality of sensitive information. This confidentiality is important for
several reasons. In CBA deliberations, the issue about cost and development
performa inevitably comes up. To encourage honest rational discourse, the developer
may share proprietary financial and other sensitive information, which could be
leaked to its competition. Release of draft proposals, provisional data and incomplete
reports could also undermine trust, and create liabilities.

Both the coalition and the developer need to establish ground rules to guide media
interactions. Unfortunately, media are conventionally viewed as vehicles for
propaganda, a channel for spin rather than information (Susskind and Field 1996,
201-203). Developers will not feel comfortable deliberating in a porous room where
genuine statements made to protect their private interests are spun out of context in

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the media as greed and anti-community. At the same time, the coalition team will
find it difficult to take a strategic stance on many issues, if there is a back-channel of
public talk being stirred up on every move. The CBA being a political tool,
developers and politicians are quite sensitive to what is said in the media and in
public forums. As a result, some parties
80
self-impose a gag-order from talking to the
media. Also, they may nominate media spokespersons that filter media requests.

However, stymieing the media does not serve the public purpose of deliberation. In
ideal communication, publicity is a function of public opinion that integrates the
public and the private spheres:
In the public of private people engaged in rational critical debate, there came
about what in Kant was called ‘public agreement’ and in Hegel ‘public
opinion’.
(Hamerbas 1998[1962], p. 117).

Absent this communication, the public appears simply as a sector of the public
opinion that happens to be opposed to the project. Susskind and Field (1996, 211)
posit, “the media can play a powerful role in promoting civil discourse”. They can
play this role by educating the public, not just about the problems but also about
potential solutions, and even at time brokering consensus. In Dealing With an Angry
Public three ground rules to guide media interactions are proposed:

80
For example, in the case of the San Diego Ballpark Village Project.

145
(1) Participants are free to make statements to the media regarding their own
concerns or reactions to meetings, but they should refrain from attributing the
statements to other participants. Thus, communication on behalf of the
coalition should be approved by the entire coalition. Participants might also
agree not to reveal the content of a likely settlement until everyone involved
has accepted it (Kunde 1999).
(2) If stories appear in which the participant’s remarks are misrepresented or
misinterpreted, that individual should inform the groups as soon as possible.
These instances often occur during CBA deliberations, as journalists may
attempt to sensationalize issues by reporting statements out of context.
(3) Participants will not make derogatory or personally demeaning statements
about others involved in the process. This is a very critical rule, as it is
extremely difficult to maintain a rational discussion within the room, if
participants are attacking each other outside the room. As deliberations
advance, it has been observed that mutual respect grows, and the tone
changes from that of competition, to that of collaboration.
81

Finally, as a condition in the CBA, a developer may request a joint media strategy.
This allows the developer to request for community spokespersons after the CBA is

81
See for example the following quote: "The relationship began as adversaries and is continuing more
as partners," he [Michael Lee] said. "In the big picture, I think they were able to show us that they
were dedicated to hearing what the community was interested in." (Laura Yuen, St. Paul Pioneering
Press, July 26, 2006, Project Coverts Its Critics)

146
signed. Thus, not only is the news media a public organ for negotiation in the
Habermasian sense, it is also the subject of negotiation itself.

9. Performance and length of process
There is an expectation for each side to perform within a reasonable length of time.
There have been instances where one side gets quite frustrated at the delay from the
other side in responding to a proposal. However, neither side has the incentive to
delay if it expects a CBA. Moreover, as negotiations get underway, and each side
feels invested in the outcomes, it is not uncommon for the coalition to call urgent
meetings to respond to issues raised by the negotiating team.

In most CBAs, developers are operating within a certain timeframe for approval of
the project determined by external factors. For the Ballpark Village Project this
duration was one month where as for the LAX project this was ten months. This kind
of time certainty is quite critical in minimizing financial risks, and ensuring greater
funds for community benefits. The community coalition usually respects the
developer’s timeframe, unless it perceives that this rush is being used to minimize
deliberations. In any case, the developer realizes that a CBA will not be signed
unless the deliberative process is complete and each proposal is thoroughly vetted.

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10. Signing and enforcement
During the negotiations, each side marks the proposals that they agree upon, they
partly agree upon, and will visit later. Figuratively and sometimes physically,
proposals are stacked into green, yellow and purple piles. Once the major issues start
getting addressed, the coalition at that point evaluates whether a CBA is feasible and
worthwhile. A litmus test for whether a CBA will result, is the mutual trust between
the developer and the coalition. If the coalition decides in favor of the CBA,
attorneys on both sides start writing (and debating) the legal language.

The CBA is signed by individual member organizations that are part of the coalition.
The signing has to go through the typical ratification process of each organization.
Any of the signatories can enforce the terms of the CBA in court.

In a typical CBA, an oversight committee or an implementation committee is formed
that will oversee the implementation of the CBA. This committee meets with the
developer on a regular basis, and serves as a liaison between the grassroots and the
developer. The committee has the right to ask for explanation of non-performance on
any issue, and can request mediation to settle disputes.

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Empowerment and Deliberation

The success of planning in bringing positive social change depends on its ability to
redistribute power. For example, the sustainable development paradigm to a great
extent depends on the power dynamics within society, and the ability of the process
to generate power:
Sustainability planning will necessarily include efforts to build alternative
forms of political power though grassroots organizing, coalition, urban social
movements, lobbying, occasional litigation, and political leadership. Hard
edged political organizing has always been necessary to bring about
progressive change, whether in civil rights, environmental, women’s or peace
movements.
(Wheeler 2004, 239)

Empowerment has been proposed to be the central focus in the field of community
psychology (Rappaport 1981, 1987). It has been defined as a process by which
people, organizations and communities gain mastery over their affairs (Rappaport
1987; Rappaport 1981, 1985; Rappaport, Swift and Hess 1984). Thus, empowerment
is about self-determination (Himmelmann 1996, 30) and democratic participation of
individuals in the life of their community (Rappaport and Zimmerman 1988; Katz
1984; Rappaport 1981, 1987; Rappaport, Swift, and Hess 1984). This process is not
only multi-dimensional, taking on a different form in different people, contexts and
time; it is also multi-level (Rappaport 1984; Zimmerman 1990, 1995). This section

149
examines the empowerment associated with CBAs from the three levels (individual,
organizational and community) suggested by Julian Rappaport (1984).

Individual Empowerment
Participants in the CBA deliberations range from 10-20 people. The following
discussion is based on interviews with participants on two CBA projects shortly after
the deals, so it is limited in terms of longitudinal comparisons. Participation can be
judged in terms of three effects: instrumental, developmental and intrinsic (Nagel
1987; Fischer 2006). Instrumental effects refer to particular goals or outcomes that
are achieved thought the CBA process, which would not be possible otherwise. Since
most participants were stakeholders, they had much to gain from the outcomes. They
clearly favored the empowerment model, where their issues had the halo of coalition
support around them, than the paternalistic model (see Swift 1984), where they
would otherwise have to either lobby elected officials for charity offerings, bang
their heads against the bureaucracy or file expensive lawsuits.

Developmental effects pertain to long-term educational benefits for the participants
of the CBA. In all instances, a common theme that emerges from CBAs is that the
participants learn a lot about planning and project review than they would otherwise.
For several participants, this was their first time negotiating on a project. In fact one

150
lead negotiator (who was volunteering his time) said that it was worth his time just
because (s)he learnt a lot. Participants expect to continue to use their knowledge to
intervene at different levels in their community. In this sense, empowerment is the
continuing construction of a multi-dimensional participatory competence (Kieffer
1984). CBA deliberations have served as leadership development opportunities in
both San Diego and Los Angeles. Florin and Wandersman (1990) have documented
that participation has been positively associated with increased personal and political
efficacy. One particular negotiator on housing issues has recently proposed his own
regulations for condominium conversions in which low-income residents in his
community are being displaced. The training and knowledge received in the CBA
process helped him take policy-level action on the affordability gap between renters
and buyers.

Intrinsic effects are intangible effects associated with participation, such as a sense of
community (Fischer 2006). These benefits are difficult to measure and evaluate in a
short period of time. However, several researchers have reported that increased
participation is related to increases in activism and involvement, perceived control,
confidence, mental health and other health effects (Ahlbrandt 1984; Carr et al. 1976;
Florin and Wandersmann 1984; Swift and Levin 1987; Zimmerman and Rappaport
1988; McLeroy et al. 1994). In a longitudinal study of 35 community coalitions for
the prevention of alcohol and drug problems, psychological empowerment was most

151
strongly related to individual’s participation levels, sense of community and
perceptions of a positive organizational climate (McMillan et al. 1995). However in
a voluntary system (such as the CBA) rather than a random system, these results
seem cyclical, as people may self-select to participate if they feel empowered.

Organizational Empowerment

The CBA coalition does not exist within a power vacuum. Game theory suggests that
organizations associate with one another to increase power, but the most powerful
coalition gets its way (Ordeshook 1986). In fact one of the most organized powers in
a city is the “growth machine coalition” (Molotch 1974 and 1976). Business people,
particularly those investing in property investment, development and real estate
finance, spearhead this coalition (Molotch 1988). Growth policies are created
through closed decision-making processes involving prestigious businessmen
through a centralized system (Peterson 1981, 132). The city relents, because elected
officials are confronted with the systemic power of organized businesses aligned
with politicians, local media, and utilities. The “business-friendly” mantra echoes in
every aspect of city life, making value-free growth itself a virtue:
Perhaps most important of all, local publics should favor growth and support
the ideology of value-free development. This attitude reassures investors that
the concrete enticements of a locality will be upheld by future politicians.
(Molotch 1974, 60)

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Since the accumulation of power is a primary goal of any social action organization
(Effrat 1974), we examine the methods in which the CBA process empowers either
member organizations or the coalition as a whole. Some of these methods are
exemplified by anecdotal evidence, though quantitative empowerment evaluation
could be done in future projects.

(1) Information as a source of power.

All through the negotiation process, the coalition demands and usually receives early
information on the project. This information could pertain to the design, financing,
approval process or political support. Often the coalition is the first to know about
critical changes in the project (which may irk city planners). The coalition attempts
to institutionalize this information hegemony by creating an oversight or
implementation committee with direct access to the developer.

At the same time, the progressive view recognizes that the current power forces may
systematically misrepresent information, such as risks or costs and benefits
(Forrester 1989, 31). The coalition uses its own experts to organize information so
that this distortion is corrected. It is noteworthy that the duration (and staggered
nature) of the deliberations gives the coalition time to respond to the information
being presented and expose any misinformation: be it ad hoc (unintentional) or

153
structural (deliberate distortions). These kinds of opportunities are not offered in a
winner-takes-all public hearing setting in which decision need to be made during the
hearing itself.

(2) Coalition as Mediating Structure

Initially, before the CBA process begins, the coalition may be considered just one of
the stakeholders and not taken seriously. However, as deliberations proceed, and
people become aware of the range and depth of issues being discussed, the coalition
starts getting a wider range of requests. Coalitions thrive as mediating structures
(Mizrahi and Rosenthal 1993, 15). They channel (and at times filter) issues that arise
at the grassroots to the bargaining table.

In the San Diego project, the requests included inclusion of employment
opportunities for downtown residents (which came from homeless advocates that
were not part of the coalition). In the Los Angeles project, there were several
requests from the Westchester community through public forums organized late
during the CBA deliberations. In both instances, the negotiating team met with the
key advocates of the affected constituencies, and presented addendums to their initial
demand list for developers.

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(3) From issue-based organizing to social movement building

CBAs allow coalition members to organize their respective grassroots on a broad
range of issues rather than single-issue organizing. This allows organizers a colorful
palette of issues to keep touch with their base continuously, even after the CBA is
signed, framed and hung up on the wall. According to Saul Alinsky:
An organization needs action as an individual needs oxygen. With only one
or two issues there will certainly be a lapse of action, and then comes death.
Multiple issues mean constant action and life.
(Alinsky 1989[1972], 77-78)

Group empowerment can be viewed as a component of social transformation (Maton
2000). At the same time, resource mobilization theory suggests that people become
active when they have access to resources they can use to create social change
(McCarthy and Zald 1977). As evidence from the hundreds of people who turned out
at the CBA hearings, there was urgency that something needed to be done. The
organizational leaders understood the thirst for wider land-use based community
benefits and saw this as an opportunity for deepening participation of members (see
Mondros and Wilson 1994). For example, in San Diego, within three months of the
Ballpark Village project approval, ACCORD played a significant role in the
downtown Community Plan Update. The same people, who had mobilized for the
CBA for a specific project in downtown, wanted some of these broader benefits to
apply to all projects in downtown. This was unusual, because some of the

155
organizations that initially participated in the coalition for their own narrow interests
were now playing a broader role in which they had no direct benefit. In this sense,
they begin seeing themselves as part of a larger social movement (see Piven and
Cloward 1977; Fisher 1984).

(4) From Pawns to Power-Brokers

Power reflected in the extra-organizational component of empowerment allows the
organization to exert influence beyond its boundaries (Peterson and Zimmerman
2004). This is a tacit recognition of the external environment responding to the
internal empowerment of the coalition.

Towards the end of the deliberation process, developers in both Los Angeles and San
Diego started seeking assistance from the coalition for overcoming bureaucratic and
political hurdles. This was unique, since the CBA had not been signed, and did not
call for such assistance. CBAs only promise external public support, and the
coalition is not responsible if the project fails on technical reasons. Nevertheless, as
in the San Diego case for affordable housing, coalition representatives were invited
in private negotiations between the public agency staff and the developer. In the Los
Angeles case for soundproofing of schools and homes, the coalition was involved in
the discussions with the Federal Aviation Authority over revenue diversion.

156

Official acknowledgements and actions confirm the hitherto uncrowned status of the
CBA coalition. In the Los Angeles case, a semi-annual meeting of stakeholders is
called by LAWA, which includes primarily the grassroots base of the CBA coalition.
In San Diego, an Implementation Committee for the downtown Community Plan
was formed in which ACCORD was given official representation. Also recently, the
city created a housing stakeholders group to recommend policies that solve the
citywide affordable housing crisis, in which the representatives of the “community”
were primarily the ACCORD housing negotiation team.

However, the crucial test of organizational empowerment of CBA coalitions will be
in their ability to increase capacity and expand self-determination in the long-term.
Himmelmann (1996, 2001) sees this as maturation from a betterment coalition to an
empowerment coalition. A basic activity of the empowerment coalition is to
facilitate external institutions support a process of self-determination for the
community (Himmelmann 2001). Some evidence of this maturation is visible in Los
Angeles, where several CBAs have been signed by similarly constituted coalitions,
and there is increased coordination among the various CBA coalitions
82
. However,
there is some work to be done, before the City of Los Angeles starts advertising the
“CBA Deliberation Process” next to its “Streamlined Approval Process”!

82
Alameda Corridor Jobs Coalition, Figueroa Corridor Coalition, Staples Arena Expansion Coalition,
and LA Expansion Coalition.

157

Community Empowerment

Community empowerment includes not only individual and organizational
empowerment among its members, but has a political action component that aims at
redistribution of resources or decision-making favorable to the community (Rissel
1994). Since empowerment by definition addresses those demographics that have
been excluded by society (Rappaport 1990), community empowerment is about
correcting the power distortion at a societal scale.

It would be premature to judge the societal implications of CBAs. However, it is
appropriate to examine the enabling conditions under which a micro-level (project-
specific) deliberative process can translate into macro-level (societal) transformation.
One of the fundamental differences between the two is that the former incrementally
works with the state, where as the latter strategically takes on the state (Hendriks
2006).

The enabling conditions for a macro-level implementation of a micro-level concept
are scalability and replicability. One of the most common challenges to participatory
democracy is that of governance due to scale and complexity (Fung 2006, 4). At a
basic political level, CBAs symbolize that development does not have to be value-

158
free. From an organizer’s perspective, community benefits gives the language and
tools to activate the community against value-free growth, regardless of where it
occurs within the community. Therefore current plans and processes need to be
amended to incorporate both the substance of the outcomes as well as the process of
deliberation
83
. It is important to note that even though development regulations and
plans may be the object of reform, they are of instrumental value to implementing
societal changes. The real struggle will occur where there are weak or none of the
plans and regulations.

83
Models of such policies and plans are currently being developed in several cities in the U.S.
Examples of these policies include: Community and Environmental Impact Assessment policy (San
Diego) and Community Impact Report (Los Angeles Redevelopment Agency).

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Conclusion: Implications for Planning Practice
Citizen participation often yields more heat than light since conflict yields
little new understanding or dialogue, and even less negotiated agreement on
public action.
(John Forrester 2006)

The future of planning practice will depend on the way these conflicts are resolved
by planners, using a values-based prism (Godschalk 2004). Planning practice is
defined broadly, delving into social and economic aspects, beyond land use planning
(see Myers and Banerjee 2005). This dissertation addresses an important question for
planning practice regarding the ways participation processes contribute towards
equity planning, especially when the value-free growth power forces primarily drive
urban development. This question is especially critical within the larger debate about
the appropriate role of the government, when market forces primarily define an
unsustainable growth pattern (Wolch, Pastor Jr. and Dreier 2004).

There is some empirical evidence in planning literature of communicative processes
translating to rational-decision-making (see for example, Willson et al. 2003), but it
does not address the Foucauldian concern that the communicative process itself is
subservient to the power of the growth coalition. Thus, if communicative processes
seek to inform the social change movement, then they need to be able to repel the
extant power structures.

160
In their quest to incorporate the deliberative process to promote equity, planners may
be tempted to synthesize the most salient features of the CBA model into the next
round of comprehensive planning. However this skirts the ontological significance of
power in the CBA process.
84
Faced with a choice between a traditional planning
process and a CBA power-process, why would a developer, however civic minded
(s)he may be, agree to the latter?

The answer is uncertainty. The distribution of uncertainty determines power relations
(Marris 1996). According to Joshua Cohen and Joel Rogers (2003), uncertainty
encourages deliberation. Therefore, when a project encounters a sufficient quantum
of uncertainty, it merits appropriate political support and resources for deliberation.
On the other hand, if a public agency offers a streamlined development approval
process without accurate assessment and liability of the socio-economic impacts of
new development, it is shifting the uncertainty from the developer to the community.
From the developer’s perspective, there is no reason to deliberate.
85

This poses a deeper question regarding the role of community empowerment in
planning for equity. Since equity planning addresses both current and future impacts

84
The most significant characteristic of CBA is its ability to convert the Foucauldian objects of a
power-process into Habermasian subjects engaged in deliberation.
85
Thomas (2003) illustrates this argument in his analysis of the Endangered Species Act, which
encourages public participation in the preparation of Habitat Conservation Plans. Developers have no
incentive to increase public participation, and would find ways to circumvent deliberation even if
required to do so. However the best incentive would be to change their perceptions of uncertainty, for
example by reducing regulatory assurances and protections from lawsuits if previously unknown
species were found on the property.

161
of development, the level of uncertainty in outcomes is quite high. Although
planners may be tempted to offer deliberation as a way of reducing process
uncertainty (Christensen 1999, 8) one can only reduce uncertainty where there
already exists high internal or external uncertainty in the planning process (Figure 6).
Internal uncertainty refers to the lack (or discursiveness) of the project approval
process; where as external uncertainty refers to organized private power, not
recognized with any official authority over the project approval. In terms of process,
planning has to be more uncertain in order to be effective (see Abbott 2005).

One method of increasing internal uncertainty is to establish a jury-style land-use
review process, so that it is not unnecessarily politicized. During the early 20th
century, Planning Commissions were created for this purpose. However, “experts”
filling these commissions are easily beholden to the powerful growth coalition. Even
when they are neutral, input on large projects gets lost in the power-play at the City
or Town Councils. Consequently, another method of increasing uncertainty is to
require super-majority approval of land-use documents such as plans, plan
amendments and development agreements at the City or Town Council. For example
during the Ballpark Villages project approval in the San Diego City Council, due to
the unique political situation at that time
86
, two ‘no’ votes (out of total nine votes)

86
There were 3 unfilled seats at the Council. During the first half of the year (2005), two Council-
members resigned due to corruption indictments, and the Mayor also resigned due to financial
problems of the City’s pension system. Thus there were only 6 sitting Council members (out of 9),
and any majority decision needed 5 votes.

162
could kill a project. In San Diego, it was clear to the developers that if ACCORD and
its constituent groups actively opposed the project, they weren’t going to get the
project approved.

Finally, a veto power by multiple officials or agencies in the process, forces
consensus and allows opportunities for deliberation. For example, the LAX CBA
would not have been possible without the Los Angeles Mayor stepping in and
pulling the plugs on the old process.

163
Figure 6: Matrix Showing Process Uncertainty Versus Outcome Uncertainty

High Process
Uncertainty
Low Process
Uncertainty
Low
Outcome
Uncertainty
High
Outcome
Uncertainty
Negotiated trade-offs
Common in large urban
redevelopment projects
Higher stakes (risk)
Ideal conditions of CBA
Sustainability – Planners need to
ensure long-term benefits
Found in severe growth control
ordinances
Preserves historical (or agricultural)
character of community
May be suitable for CBA only if
significant community gains.
Sustainability -Planners need to
evaluate extra-jurisdictional impacts
Growth machine – value-free
development
Cost of growth is externalized
Unsustainable - land-use plans and
regulations are not appropriate tools for
addressing potential impacts

Standard planning practice
Incremental approach
Suitable for small and mid-sized
projects
Linkage policies, performance zoning
Sustainable – if plans are addressing
projected impacts

164
Since standard planning process seeks to reduce uncertainty (for both outcome and
process), there are often safeguards against projects that are not planned for. For
example, large projects often need community plan amendments, or development
agreements to secure development entitlements. This is where external uncertainty
gets plugged in.

External uncertainty increases the cost of development. Developers add a risk-
premium to their performa, to account for a changing project profile during the
approval process. Often the risk of lawsuits significantly impedes a developer’s
ability to find financing for the project. External uncertainty makes a public planner
inappropriately appear like a project proponent to the community stakeholders,
especially if the developer has met internal process requirements.

On the other hand, external uncertainty is the only antidote to internal process
certainty, especially when the outcomes are uncertain. Plans often leave open the
door to unlimited entitlements. In the smaller suburban communities, plans may not
accurately anticipate the scale of development projects. In most cases, environmental
impact reports frequently carry a “Statement of Over-riding Considerations” that
testify that the plan is incapable of addressing the impacts of new development. Thus
when projects do get approved, they often fall under this umbrella. Developers, with

165
specialized legal teams and high paying consultants can easily roll over understaffed
city planners.

Thus community empowerment plays a significant role in planning in two ways.
Firstly, this ensures that plans address the impacts of growth (outcome certainty).
Active community organizing would seldom allow cities to adopt growth plans with
a “Statement of Over-Riding Considerations” without a genuine effort to mitigate
impacts. The San Diego downtown community plan adopted by the planning agency
in 2005 had only evaluated only two choices: status quo versus unmitigated growth.
A community organization advocating for transit filed a lawsuit and won against the
agency for failing to evaluate alternative growth proposals.

Secondly, community empowerment allows for project-level intervention when
outcomes are uncertain. There are essentially two ways in which stakeholders can
intervene: legally and politically. Often the methods are pursued simultaneously, and
reinforce each other. A long-term stakeholder group is more likely to be able to
sustain the struggle in generating and retaining power.

Redistributing power over a long-term increases external uncertainty. At the same
time, realizing this power at a deeper level occurs through a power-process of
historic struggle rather than theoretical consensus (Kohn 2000). It builds upon

166
information and organizing around the physical, social and economic risks of
planning decisions. For example, a model “Community and Economic Benefits
Assessment” (CEBA) could be developed, which can be used by the community to
measure and publicize a comprehensive set of impacts of new development on a
dynamic basis (see Appendix). This will trigger meaningful deliberation among
participants that have empowered themselves in the process.

Current planning practice views growth as monolithic – without texture, except in
physical form. This makes plans indifferent to specific projects, except in physical
size, bulk and design criteria. The difference between a 100 unit and a 1,000 unit
residential project becomes that of modeling the façade, street-level uses and height.
In the era of flexible zoning, a 1,00 unit residential project is hardly different from a
1,000 unit hotel project except in architectural details.

Planning practice needs to bifurcate projects with outcome certainty from those with
outcome uncertainty. Besides evaluating and addressing overall growth impacts,
critical impact thresholds (possibly based on the CEBA) should be incorporated in
most land-use plans. These thresholds would imply that the plan makes no pretense
of sustainability over the critical impact threshold. Individual projects that exceed the
critical impact thresholds need to go through an extensive process that includes
deliberation with community stakeholders.

167
Epilogue: Redistribution as a Condition of Sustainability

A significant contribution of the sustainable development paradigm in planning is to
elevate social equity as a normative value of growth. This paradigm comes into
direct conflict with the value-free development promoted by the power of “growth
machine”. Challenging this power structure makes redistribution of power a primary
condition for sustainability. A conceptual framework is presented linking
empowerment, engagement and equity in sustainability.

The Third E
One of the main contributions of the sustainability movement is the formal
embracement of equity as a pillar of development (see for example WCED 1987,
49). Michael Toman (1994, 405) concludes that “sustainability ultimately is
intimately wrapped up with human values and institutions, not just ecological
functions” and underscores the importance of “balance” between all views on
sustainability (Toman 1994). Clark (1995, 242) agrees that “an argument that rejects
equity must be considered as morally reprehensible as an argument that rejects
ecological sustainability”. Therefore although the economy and the ecology have
been the dominant players in the sustainability “contest”, there is a moral imperative
to be equitable (Clark 1995).

168

Sustainability has redefined the reductivist notion of development as growth to
include socio-economic dimensions. This was a paradigm shift from positivist
obsessions with technique and technological innovation (Ellul 1967); and economist
conceptions of utilitarian optimality with respect to exhaustible resources (see
Hotelling 1991). The writings of Paul Hawken, Vandana Shiva, Doreen Massey,
Myron Orfield and David Korten effectively questioned the redistributive effects of
growth. Sustainability has made a significant impact on development theory by
“greening” the agenda (Mestrum 2003), and bringing into its fold as diverse subjects
as transport systems (Newman and Kenworthy 1999), settlement patterns, labor,
population, basic needs and human rights (Satterthwaite 1997; Drakakis-Smith 1995,
1996, 1997).

On the surface, it appears that sustainability has taken the liberal mantle of
distributive justice theories using a cross-section of time limited to the human
species, and has elaborated it to include not only intergenerational redistribution, but
also an inter-species redistribution.

However, there are weak theoretical links between justice and sustainability.
Although Andrew Dobson (1998) found broad compatibility between the theories of
environmental sustainability and social justice, the concerns and objectives are

169
fundamentally different. Cross-sectional theories of distributive justice that range
from the Nozickian distribution of liberties to the Marxian distribution of income
have rarely addressed issues that span across generations or across species. Even
John Rawls’ Theory of Justice, which talks about inter-generational equity, admits
that “how the burden of capital accumulation and of raising the standard of
civilization is to be shared between generations seems to admit of no definite
answer.” (Rawls 1971, 284). Furthermore, according to Scott Campbell, justice and
the environment are not necessarily compatible:
…nature is inherently neither equal nor unequal, and at times can be
downright brutal…To gain a sense of historical legitimacy, we project our
socially constructed sense of equality onto the past, creating revisionist
history in which nature is fair and compassionate…The laws of nature are not
the same thing however, as natural law, nor does ecological equilibrium
necessarily generate normative principles of equity.
(Campbell 1996, 303)

With some notable exceptions (Agyeman & Evans 2002; Agyeman et al 2003), the
equity component of sustainability is either totally left out (see Drakakis-Smith 1995,
Fig. 2), or has been relegated to a subsidiary position (see Daly and Cobb 1989).
Even where there is a discussion, it is done either from an intergenerational
standpoint (such as Krautkaemer & Batina 1999), or solely from the angle of
environmental justice. This has resulted in the lackluster economic justice policies in
serious sustainability programs (see Portney 2003, 174-5). Thus equity remains the
most neglected component of sustainability:

170
Equity is the third and by far the least developed of the Three Es. To be sure,
it has long been a focus of many community activists, labor unions and social
justice organizers. However, these constituencies often have relatively little
power, and equity concerns frequently take a back seat in planning and
political discussions.
(Wheeler 2004, 60)

Often sustainability falls victim to the same economic reductivism it is trying to
challenge (Gunder 2006). On the one hand sustainability is a floating signifier
representing all kinds of “desiderata” – such as freedom, democracy, gender balance,
and equity (Goodland and Daly 1996); on the other hand it implies the addition of a
few green variables within in the current development model with no significant
structural change (Carvalho 2001).

In the United States, a concept that intersects with sustainability is “smart growth”.
One of the first usage of the term in the context of sustainability was published in the
Futurist and defined as “a more balanced type of growth that weighs benefits against
costs to improve the quality of life for all” (Halal 1988). During the 1990s a whole
range of growth-management strategies, transit-oriented developments and inner city
revitalizations started being labeled “smart growth” and often interchangeably with
“sustainability planning”. However, unlike sustainability, smart growth is focused
exclusively on physical planning. Neither Downs (2001) nor Burchel et al (2000) in
their enumeration of the principles of smart growth mention social equity or

171
economic development. Even when it is discussed, distributive justice is a byproduct
rather than a principle condition of smart growth.

Redistribution as a Primary Condition of Sustainability
Although sustainability visions and plans are important, they are unlikely to
come to fruition without pressure from social movements and
nongovernmental organizations, as well as long-term development of a
coalition of interests that provides the necessary political backing.
(Wheeler 2000)

Physical problems are symptoms of deeper malaises of poor schools and chronic
unemployment in “distressed” areas (Pyatok 2000). The deeply entrenched regional
inequities mentioned by Orfield (1997) and Rusk (2003) cannot be solved by
rezoning and design guidelines. Nor will they be affected by comprehensive plans, if
these are policy statements rarely implemented. Downtown redevelopment a la
urban renewal only displaces poverty and homelessness. And a lack of affordable
housing in the core job centers leads to long commutes on overcrowded freeways for
workers (Katz and Liu 2000).

If sustainability is recognized as a “balance” between irreconcilable ideologies
(Verma 1996) or competing interests (Campbell 1996), then there is a need for
Habermasian dialectic without the presumed “economics imperialism” (Fine 2002).
Sustainable development is therefore not just a constant-sum compromise between

172
ecologists and economists, but a societal deliberation, partly political and partly
scientific (Dasgupta et al 2000) that restructures the way we develop . In this vein,
economic productivity is inextricably linked with social welfare (Arrow et al. 2003),
and human health with natural capital such as greenery (de Vries et al. 2003). There
is recognition of feedback loops between the social welfare, natural resource base
and economic development (Dasgupta 2002).

The terms “equity”, “empowerment” and “engagement” are often used without
distinction, as one component of sustainability. However there is a clear dynamic
that occurs between these concepts, each of which has its separate theoretical
foundation (Figure 7).

173

Figure 7. A Conceptual Framework on the Social Dynamic within Planning for
Sustainability

Sustainable development cannot occur without redistribution of power, since it
challenges the dominant power regimes promoting value-free growth. In fact one of
the most organized powers in a city is the “growth machine coalition” (Molotch
1976, 1988). There is considerable business interest, particularly among those
Empowerment
Equity
Engagement
Distributive
justice
Addresses structural
imbalance
Participatory
processes

174
investing in property investment, development and real estate finance, to spearhead
this coalition (Molotch 1988). Moreover, growth policies are created through closed
decision-making processes involving prestigious businessmen through a centralized
system (Peterson 1981, 132). The planner relents, because elected officials are
confronted with the systemic power of organized businesses aligned with politicians,
local media, and utilities. The “business-friendly” mantra of the growth machine
makes value-free growth itself a virtue:
Perhaps most important of all, local publics should favor growth and support
the ideology of value-free development. This attitude reassures investors that
the concrete enticements of a locality will be upheld by future politicians.
(Logan & Molotch 1987, 60)

Empowerment creates a stable state of sustainability by impacting the primary causes
of the imbalance. It has been defined as a process by which people, organizations
and communities gain mastery over their affairs (Rappaport 1987; Rappaport 1981,
1985; Rappaport, Swift and Hess 1984). Thus, empowerment is about self-
determination (Himmelmann 1996, 30) and democratic participation of individuals
in the life of their community (Rappaport 1981, 1987; Rappaport, Swift, and Hess
1984). In the context of sustainability, redistribution of power is not only multi-
dimensional, taking on a different form in different people, contexts and time; it is
also multi-level (see Rappaport & Zimmerman 1988; Zimmerman 1990).

175
Participation as a vehicle of empowerment
In planning practice in the United States, cities with sustainability programs
generally include participatory processes (Portney 2003), and there is general
agreement that these processes are necessary for sustainability (Portney 2005; Kupcu
2005; Wheeler 2000). An analysis of legal frameworks and institutions both
nationally and internationally found environmental management and public
participation to be “inextricably inter-twined” (Mullikin et al 2005). For example, the
World Bank has a “participation and civic engagement group” that states on its
website:
The Participation and Civic Engagement Group of the Social Development
Department promotes the participation of people and their organizations to
influence institutions, policies and processes for equitable and sustainable
development.
(www.worldbank.org/participation/, website accessed 11/15/2007)

However, what is not clear is the type of participatory processes that are effective.
Effective means of involving stakeholders into project-specific decisions is generally
missing from U.S. planning system (Blackburn 2000, 182). According to Kent
Portney, if the sustainability paradigm is to be seriously implemented, civic
participation must leading to community building that goes well beyond physical
planning:
Locally organized public involvement efforts, whether focused on local,
statewide, or national issues, not only provide mechanisms for residents to
have their voices heard, and for government to respond on specific issues,

176
they also provide mechanisms of civil society that actually change the people
who participate in them.
(Portney 2003, 146)

Furthermore, there is empirical evidence of the urban regimes that control urban
policy (Stone 1989), but no evidence of ways in which these existing regimes or new
regimes can become supportive of sustainability. In concluding his book Taking
Sustainable Cities Seriously, Kent Portney asks:
Perhaps more important, are there ways in which such regimes can be built or
created in cities where they do not exist?
(Portney 2003, 240)

The problem in defining the role of participatory processes in sustainability planning
arises from a deeper tension between the primacy of power and the primacy of
process in planning theory. In order to reconcile the conflicting goals of
development, communicative theorists prescribe participatory processes that allow
diverse interests to compete equally using rational deliberation. Where as
participatory processes could transform power relations (see Forester 1989; Fischer
2006; Booher and Innes 2002; Stein and Harper 2003), alternatively, existing power
structures could corrupt any process (Flyvbjerg 1998) making participatory processes
meaningless. In the latter case, planning itself becomes a vehicle for consolidating
current power regimes. The “vocabulary of science” seems to conflict with the

177
“vocabulary of power” since truth becomes a mere rhetorical instrument of power
(Stein and Harper 2003).
Power has a rationality that rationality does not know. (Flyvbjerg 1998, 225)

Forester is cognizant of the power structures that planners operate within. In his
progressive analysis of power he says “To be rational, be political” (1989, 32-33).
In fact, planning itself is considered a political activity aimed at redistribution of
power (Douglass and Friedmann 1998). For example, the Habermasian approach
encourages the use of deliberative rituals amongst the objects of the deliberation as a
form of generating power (Forester 1999).

Thus the key challenge for sustainability planning is to embrace redistribution of
power as both a process as well as an outcome variable. The common struggle is not
so much against the institutions of power as it is against the “objectivizing” of
subjects (see Foucault 1994, 326-348). Reason, through the process of
rationalization in the Habermasian sense, is therefore an instrument of power in the
Foucauldian sense. An illustration of this concept is in the use of sustainable
development indicators. The process of engaging people to select indicators can
itself be empowering to those who participate (Fraser et al 2006). A particularly
recurring characteristic of sustainability indicators is its composition, which includes
weighting and scaling of component metrics. Rankings of nations may be made to
rise or fall by merely controlling the methodology of compiling a component index.

178
When this happens, a mere statistical artifact can garner a lot of attention from media
and politicians (Luchters and Menkhoff 1996). In fact the usefulness of component
indices lies in their eye-catching appeal, never mind that they are mere ideological
statements (Booysen 2002).

Unfortunately communicative practitioners, particularly in the U.S., are facing an
uphill battle in empowering civil society. This is because of the declining
participation of Americans in most aspects of civic life, and especially in politics
(Putnam 2000; Macedo 2005). This has led to a declining effectiveness of
democratic institutions, and in turn has weakened the justification of an affirmative
state (Fung and Wright 2001). Recent experiments in direct citizen participation seek
to reverse this trend by actively soliciting participation, and empowering the civil
deliberators with some action-making authority (Fung 2001; Roberts 2004). In the
site planning for the World Trade Center called “Listening to the City” over four
thousand New Yorkers came to a high-tech meeting to create alternative visions to
what had been proposed.

In the end, the success of the sustainable development paradigm to a great extent
depends on the ability to redistribute power:
Sustainability planning will necessarily include efforts to build alternative
forms of political power though grassroots organizing, coalition, urban social
movements, lobbying, occasional litigation, and political leadership. Hard
edged political organizing has always been necessary to bring about

179
progressive change, whether in civil rights, environmental, women’s or peace
movements.
(Wheeler 2004, 239)

180
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Appendix: Community and Economic Benefits Assessment (CEBA)

1. Goals of the Community and Economic Benefits Assessment (CEBA)

1.1 Access to information: Provide access to information about the project in a
single document. It should be in a format that is easily understandable.
1.2 Co-operative dialogue and civic engagement: Create an opportunity for the
community to review and comment on the impacts in a non-litigious forum
1.3 Transparent decision-making: Provide the staff and public agency officials
with an objective report that helps them in making decisions to promote the
objectives of the General Plan.
1.4 Risk-mitigation: Provide information on potentially controversial projects
much ahead in the process to promote certainty against last-minute ill-
informed opposition. This will help both applicants/developers and the City
by anticipating potential pitfalls before substantial investment is made into
the project.

2. Proposed Projects that will require a CEBA

2.1 All discretionary commercial or industrial development that will include 75,000
square foot of total floor area.
2.2 All Disposition and Development Agreements, Owner Participation Agreements
and similar agreements with either the City or the Redevelopment Agency.
2.3 All projects that require a Community Plan Amendment
2.4 All discretionary residential development projects that include more than 400
units.

3. Procedures for the CEBA

3.1 Initial determination – If the development application requires a CEBA under
Section 2, then the application instructions, pre-application meetings with
DSD and other information meetings shall make it clear to the
applicant/developer that a CEBA is required.
3.2 Preparation of the CEBA – The City staff is responsible for accepting, reviewing
and distributing the CEBA. The staff has the discretion to correct any
inaccuracies in the CEBA, based on reasonable evidence. The CEBA should
be released for public review within 30 days of the development permit
application, and at least 10 days prior to any approval on the project.
3.3 Publication and availability: The CEBA shall be made available upon public
request along with other public documents related to the project and shall be

208
accessible to the public. The staff shall make a best faith effort to notice the
availability of the CEBA in public notices under current processes, for the
project.
3.4 Subsequent Determination and Update of CEBA – If there are minor changes
in information about the project impacts, the City staff shall make a good
faith effort to update the CEBA before any project approval. However, if the
staff determines major changes in the project proposal including substantial
changes in the land-use and scale of the project, then the CEBA will need to
be updated.

4. Content of the CEBA

The CEBA shall consist of seven sections outlined in the following CEBA
questionnaire. The seven sections are:
(1) Project and Community Overview;
(2) Economic Benefits;
(3) Fiscal Benefits;
(4) Employment Benefits;
(5) Housing Benefits;
(6) Community Services Benefits;
(7) Smart Growth and Environmental Health Benefits.

4.1 PROJECT AND COMMUNITY OVERVIEW

4.1.1. Description of the project. The description shall include the following
information:
(a) Current uses and land-ownership
(b) Proposed uses and land-ownership
(c) Details of proposed uses by size (sqft) tenancy, lease or sub-lease
(d) Details of users, operators and tenants (if known)
(e) Process for approval and permits needed
(f) Size of the project, including number of residential units
(g) Project Contacts (including project manager)
(h) Details on the following:
Community Plan Area
Current Zoning Designation
Any Special District
Overlay Zone

4.1.2. Community Overview: The City will attach baseline data similar to SANDAG
community profiles.

209
4.2 ECONOMIC BENEFITS

If the applicant/developer has done a market study, please attach it.

4.3 FISCAL BENEFITS

4.3.1. Has the project received public financing assistance from the City?
If so, provide the terms of any public grants and loans the applicant/developer
has applied for or any public financing that has been approved, including the
projected interest rate, the term of the loan, the method of repayment, the
method of guaranteeing the loan, and the timetable for remaining approvals
needed.

4.3.2. What is the net fiscal return of the project at the end of twenty years?
(Itemize those items that benefits or cost the City. Those items that do not
impact the city should be kept blank).

BENEFITS TO CITY COSTS TO CITY
Sales Tax Sales tax rebate/refund
Use Tax Use tax rebate/refund
Base Property Tax Land-write-down
Tax Increment (for redevelopment) Public Safety (Police and Fire)
Developer Proceeds Support Services
(incl. staffing, legislative services)
Development Impact Fees/Facilities Benefits
Assessments
Other Public Services
(incl. traffic & libraries)
Public improvements on public property (paid
by developer)
Public Improvements specifically for project
(paid by the City)
Other development fees (incl Park fees) Water-sewer fee reductions
Interest on loans (to developer etc)
Transient Occupancy Tax (TOT) TransP/TransNet funds
Below market leases
User fees Park ‘n Ride lease
Owner participation revenues Owner participation payments
Site preparation, remediation and cleanup costs
Other revenues (Please specify ___________) Other City assistance (Please specify
___________)
TOTAL BENEFITS TOTAL COSTS

210
4.4 EMPLOYMENT BENEFITS

4.4.1. Construction Jobs

a. Number of Jobs- Estimate of the total number of construction man-
hours expected at the proposed project.
b. Prevailing Wages- Indicate whether federal, state, or local law or
policy will require payment of prevailing wages for construction
employment at the proposed project. If prevailing wages will not be
required, estimate the projected wages and benefits for the
construction jobs at the proposed project.

4.4.2. Permanent Jobs

a. Specify the number of workers who will be employed in proposed
project by occupation for each tenant and/or anticipated use.
Applicant/Developer should fill out the employment questionnaire in
attachment 2, describing employee compensation and benefit
information for the whole project.
b. All permanent employers and prospective tenants, if known, should
also fill out the questionnaire for employment in their respective
establishments.

4.5 HOUSING BENEFITS

Housing Creation and Rehabilitation

4.5.1. What are the characteristics of the housing units being created?
a. The number of units to be created, the size of the units in number of
bedrooms and square foot area, and the affordability levels of those units
by size;

Distribution by number of units Affordability

single-
family
detached
single-
family
attached
condos apartments
Rent/Price
Distribution
Level
(income
range)
Restriction
(if any)
0 BR
1 BR
2 BR
3 BR
3 BR+

211

b. The terms of any affordability restrictions; payment of in lieu fees
(inclusionary housing).

Housing Displaced
(Fill this section only if there are housing units that will be demolished.)

4.5.2. What is the profile of housing being demolished?

a. Fill out the following table that gives the distribution of the units.

Distribution by number of units Affordability

single-
family
detached
single-
family
attached
condos apartments
Rent/Price
Distribution
Level
(income
range)
Restriction
(if any)
0 BR
1 BR
2 BR
3 BR
3 BR+

b. Specify the nature of the affordability restrictions. Also, mention whether the
owner accepts Section 8 subsidies, or if the project has publicly subsidized
housing.

Financial Impact on Affordable Housing Funds

4.5.3. What is the contribution of the project to pubic affordable housing funds?
a. Calculate the present value of the projected tax increment from the
development project dedicated to affordable housing (for
redevelopment projects).
b. Describe any contributions to affordable housing that the
applicant/developer will make (such as Housing Impact Fees).
c. Enumerate housing-related public funds the project will be given
either loaned or granted. Specify the sources, whether they are from
the Low and Moderate Income Housing Fund, or any other
discretionary funding source such as Housing Trust Fund, Housing
Bond, CDBG etc.

212
4.6 COMMUNITY SERVICES BENEFITS

4.6.1. Is the project providing any of these public facilities on-site?
a. Parks, playgrounds, open space
b. Schools
c. Child-care/day care centers
d. Medical clinics
e. Transit stops, trolley stations
f. Employment agency/job training center
g. Community center/youth center

4.6.2 Is the project applicant/developer going to submit a Facilities Financing Plan
Amendment? If so, describe.

4.6.3 Is the project located in a special Assessment District? Or a Mello Roos
district?

4.7 SMART GROWTH & ENVIRONMENTAL BENEFITS

4.7.1. The applicant/developer should fill out the Smart Growth questionnaire
(Attachment 3).

4.7.2. List the permits that the project applicant/developer has applied for, or
received from the Air Pollution Control District (APCD).

4.7.3. Will the project will apply for LEED certification? If so, describe.

4.7.4. Will the project use renewable energy sources? If so, list the sources.

213

Attachment A: Employment Questionnaire for Applicants/Developers, Prospective
Tenants, and Service Contractors

1. Name of company _______________________

2. At the project site, how many employees will work
a. Part Time (0 to 35 hours per week) __________
b. Full Time (more than 35 hours per week) __________

3. What type of medical insurance do you offer your employees?
______ Individual health benefits only ______ Full family health benefits
______ No medical benefits
______ Other (please explain below)

4. If you provide medical benefits, which employees may receive them?
_____ All employees _____ Management
_____ Full-time _____ Employees who work over 20 hrs/week
_____ Other (please explain below)

5. What will be the cost to the employee for these health benefits?

Individual ________ Full Family _________
Employee contribution (monthly) _________
Co-Payment for doctor’s visit _________
Deductible _________

6. What retirement benefits do you provide for your employees?
401(K) Employer contribution:

7. Hourly pay for employees at the project site:

a. $6.75 - $8.25 How many employees? __________
b. $8.26 - $9.50 How many employees? __________
c. $9.51-$12.50 How many employees? __________
d. More than $12.51 How many employees? __________

8. Describe any employee training programs, local hiring commitments or first-
source hiring agreements for construction and permanent jobs in this project.

214

Attachment B: Smart Growth Questionnaire
87

1. How is the project site accessible and visible to the public? Please describe.

2. Does the project site have existing transit service? Are there multi-modal
transportation options (transit, automobile, bicycle, pedestrian) to access the
site? Please describe.

3. Are there currently employment opportunities within 1/4 mile walking
distance to the proposed project site? Please describe.

4. Are there currently commercial opportunities in close proximity to the
proposed project site? Please describe.

5. Does the project site propose to clean up or reuse a Brownfield or Greyfield?
Please describe.

6. Are there currently cultural and entertainment activities in close proximity to
the proposed project site? Please describe.

7. Is there a school, library, park, or community center in close proximity to the
proposed site? Please describe.

8. Does the proposed location have adequate utility capacity for water, sewer,
streets, and electricity? Please describe.

87
Adopted from the San Diego City of Villages Pilot Village RFP, 2002.

Abstract (if available)

Linked assets

University of Southern California Dissertations and Theses

Conceptually similar

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Resilient and equitable urbanism by design: insights from the collaborative process to reimagine the SF Bay Area

Asset Metadata

Creator Baxamusa, Murtaza Hatim (author)

Core Title Beyond the limits to planning for equity: the emergence of community benefits agreements as empowerment models in participatory processes

School School of Policy, Planning, and Development

Degree Doctor of Philosophy

Degree Program Planning

Publication Date 02/08/2008

Defense Date 11/20/2007

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag advocacy,development agreement,labor coalition,OAI-PMH Harvest,sustainable

Place Name airport features: Los Angeles International Airport (geographic subject), California (states), housing areas: Ballpark Villages (geographic subject), Los Angeles (city or populated place), San Diego (city or populated place), USA (countries)

Language English

Advisor Richardson, Harry W. (committee chair), Banerjee, Tridib (committee member), Saito, Leland T. (committee member)

Creator Email baxamusa@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-m1010

Unique identifier UC1328558

Identifier etd-Baxamusa-20080208 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-43041 (legacy record id),usctheses-m1010 (legacy record id)

Legacy Identifier etd-Baxamusa-20080208.pdf

Dmrecord 43041

Document Type Dissertation

Rights Baxamusa, Murtaza Hatim

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Repository Name Libraries, University of Southern California

Repository Location Los Angeles, California

Repository Email cisadmin@lib.usc.edu