Community Benefits Legal Dictionary

Following are working definitions of many terms commonly encountered by community benefits attorneys. Due to varying usage in different states, and the many areas of law covered, these definitions cannot be precise in every instance; we aim instead to provide a useful starting point for understanding the many terms involved in community benefits lawyering, and to promote consistent usage where possible.

Please make suggestions to improve existing definitions, or submit more terms that you would like defined here.

AMI or area median income – a standard measure of household income, frequently used to set eligibility thresholds in laws and policies. AMI levels are set by the U.S. Department of Housing and Urban Development (HUD) in order to measure household income for purposes of qualifying for housing assistance. Published annually by HUD for each county and MSA, the figure typically expresses the median household income of a family of four in the particular geographic area in question. In the affordable housing context, the maximum rent on a government-restricted affordable housing unit might be set at a level that is “affordable” to a family earning no more than “50% of AMI,” meaning (since “affordable” is often defined as “taking up no more than 30% of a household’s income”) that the rent is capped at 30% of 50% of AMI, adjusted for family size. Information on the 2009 AMI calculations from HUD is available here. AMI may also be used to identify individuals eligible for targeting hiring programs or public assistance.

apprenticeship program – an on-the-job training program in the construction sector, generally unique to a particular trade or craft. Construction trade unions operate apprenticeship programs in many jurisdictions, sometimes in conjunction with employers through Joint Apprenticeship Training Councils. Non-union contractors occasionally establish apprenticeship programs as well, though without a clear pipeline to high-quality career opportunities. Under the Fitzgerald Act-National Apprenticeship Act (29 USC §50), the Labor Standards for the Registration of Apprenticeship Programs (29 CFR Part 29), and the Equal Employment Opportunity in Apprenticeship regulations (29 CFR Part 30), the U.S. Department of Labor’s Office of Apprenticeship establishes basic standards for all apprenticeship programs, including provisions regarding recruitment, selection, and training of apprentices. These laws and regulations establish criteria for registering apprenticeship programs with the federal government in order to “safeguard the welfare of apprentices.” (29 USC §50, Sec. 1.) They also determine how State Apprenticeship Councils (SACs) can be created. SACs must be approved by the federal government and meet certain minimum federal standards. (29 CFR Part 29.1; see SAC states and BAT states.) Only apprenticeship programs that formally apply and that satisfy criteria and recordkeeping requirements established by these agencies are formally recognized. On construction projects covered by prevailing wage requirements, apprentices in formally recognized programs are the only workers whom contractors are permitted to pay a lower “apprentice” wage rate, rather than the higher “journeyman” wage rate. Therefore, on prevailing wage projects, contractors have a strong monetary incentive to use apprentices from formally recognized apprenticeship programs.

BAT states – states in which the U.S. Department of Labor’s Bureau of Apprenticeship and Training directly regulates construction apprenticeship programs, under the statute and regulations referred to in the discussion of apprenticeship programs. Contrast with SAC states.

best value contracting – a method for awarding public works construction contracts, under which contractors are rewarded for meeting the best combination of price and technical qualifications. In contrast to the often-employed “lowest responsible bidder” method, best value contracting allows the government to look at factors beyond price in selection of contractors. Best value systems may look at issues like staffing, training, safety history, apprenticeship, pension and health care provisions, and whether the bidder has complied with local, state and federal laws in the past.

Camden case – An important but widely misconstrued U.S. Supreme Court case regarding state and local governments’ local hiring measures. In the case, the court examined a challenge under the U.S. Constitution’s privileges and immunities clause to an ordinance of the city of Camden, New Jersey that required that at least 40% of the employees of contractors and subcontractors working on city-funded construction projects be Camden residents (United Building & Constr. Trades v. City of Camden, 465 U.S. 208 (1984)). The court held that out-of-state residents had a claim under the privileges and immunities clause against a residency-based hiring preference enacted by a local government. (This type of claim against such a preference enacted by a state had been established in previous cases.) This case is often said to prohibit such measures, but the court did not in fact strike down Camden’s program. It instead remanded the case with instructions to lower courts to analyze whether Camden could provide sufficient justification for its program to survive review under the privileges and immunities clause. (“The conclusion that Camden's ordinance discriminates against a protected privilege does not, of course, end the inquiry. We have stressed in prior cases that like many other constitutional provisions, the privileges and immunities clause is not an absolute" [citing Toomer v. Witsell, 334 U.S., at 396]. It does not preclude discrimination against citizens of other States where there is a substantial reason for the difference in treatment” (Camden at 222, internal quotations omitted).) Camden was prepared to argue that the ordinance was necessary “to counteract grave economic and social ills such as unemployment, decline in population, and a reduction in the number of businesses located in the city, each of which resulted in eroded property values and a depleted City tax base”; the court emphasized that “every inquiry under the Privileges and Immunities Clause must be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures. … This caution is particularly appropriate when a government body is merely setting conditions on the expenditure of funds it controls” (Camden at 222-223, internal quotations omitted). The case settled on remand, without a determination of whether the ordinance would have survived privileges and immunities review.

card check – a system by which employees may organize into a labor union when a majority of employees in a bargaining unit sign authorization forms, or "cards," stating that they wish to be represented by the union. This is an alternative to the system in which the signatures of at least 30% of the employees requesting a union is submitted to the National Labor Relations Board (NLRB), which then verifies the signatures and orders an election. Many employers and unions have voluntarily entered into agreements establishing the card check system for the workplace in question, and this approach has been regularly upheld by courts and the NLRB. Card check agreements usually also include “neutrality” provisions, under which the employer agrees to take a neutral position on union organizing within the bargaining unit – i.e., not to argue against unionization in communications with workers.

Cleveland approach – a method by which a municipality may insulate a local hiring measure against a challenge under the privileges and immunities clause by exempting out-of-state workers from the operation of a residence-based hiring preference; this approach is effective because claims under the privileges and immunities clause are available only whether the challenged action affects residents of other states. The City of Cleveland utilized this approach in its Resident Employment Law, which requires that contracts related to construction projects under which the city provides more than $100,000 in assistance contain a provision ensuring that city residents will perform at least twenty percent of all “construction worker hours.” Cleveland’s ordinance simply excludes hours worked by non-Ohio residents from the definition of “construction worker hours.” The text of the law is available here.

CBA or community benefits agreement – a legally binding contract between one or more community-based organizations and a developer relating to a development project and including commitments regarding a range of community benefits. Community-based organizations usually work in coalition and agree to support the project and release claims against the project in exchange for the developer’s community benefits commitments. (The acronym “CBA” is also sometimes used for “collective bargaining agreement.”) Extensive information on community benefits agreements from the Partnership for Working Families is available here.

CEQA or California Environmental Quality Act – a state environmental review law requiring local jurisdictions to disclose the significant environmental impacts of projects (through an EIR), and either explain how environmental impacts will be mitigated, or make a finding that the project should go forward despite the identified environmental impacts. Alternatively, the local jurisdiction can issue a “negative declaration,” indicating its view that the proposed project will have no substantial environmental impacts. (There are other methods of CEQA compliance as well.) For each proposed project, a local government entity is designated the “lead agency,” giving it the responsibility for CEQA compliance. Compliance with CEQA is often a source of litigation around project approvals. More information on CEQA from the State of California is available here.

CIR or community impact report – a public document that a governmental entity release (or requires a developer to release) prior to project approval, describing key positive and negative impacts of the proposed project, in order to assist the public and decisionmakers in evaluating the proposed project. CIRs are valuable because much important information about proposed projects and their many impacts is extremely difficult for the public to assess, when it is compiled at all. CIRs are a new tool in the land use planning process, and several different jurisdictions around the country have tried different approaches. More information on CIRs, including text of CBA policies currently in effect, is available here.

collective bargaining agreement – a contract between an employer and a union representing employees, regarding conditions of employment for a particular bargaining unit; covers wages, hours, benefits, and many other terms and conditions of employment, such as protection from termination of employment without just cause. Collective bargaining agreements usually also establish grievance resolution procedures. Collective bargaining processes are closely regulated by the NLRA.

conditional use permit – a regulatory permit issued to a landowner by a local government entity regulating land use and relating to a particular kind of use of a particular site. Often the jurisdiction’s planning code will permit certain uses (e.g. liquor stores, water parks) only under certain conditions or in certain amounts and, accordingly, enumerate a series of “conditional uses” for requiring a special permit. Conditional use permits provide a clear mechanism for ongoing supervision of activities on the specified site with regard to the terms of the permit.

cooperation agreement – in the community benefits setting, this otherwise generic term has been used for agreements between community-based organizations and local government entities, in which the community-based organizations release claims regarding a proposed development project, and the government entity makes legally binding commitments regarding community benefits within the project. The government entity’s commitments may include both actions that the government entity itself will take (such as construction of affordable housing within the project), and actions that the government entity will require of private developers participating in the project (such as local hiring programs). This type of cooperation agreement is discussed extensively in “CBAs: Definitions, Values, and Legal Enforceability,” by Julian Gross.

Davis-Bacon – The Davis-Bacon Act of 1931 is a federal law requiring that prevailing wages be paid for construction work on federally-funded public works projects. Some states and cities, including California, have “little Davis-Bacon” laws requiring payment of prevailing wages on public works projects funded by the city or state.

DDA or disposition and development agreement – a contract between a government entity and a developer relating to the development of a particular site, and involving a land sale. Typically, these agreements are used in connection with development projects for which the government entity is providing a significant subsidy and/or leasing the parcel to the developer. The DDA is usually the main document setting out the terms of the development and responsibilities of the developer and local government.

development agreement – often used as a generic term for a contract between a government entity and one or more developers establishing the terms of a single development project or series of related development projects, such as a DDA or an OPA. Other portions of this website use the term in this manner. However, in some states “development agreement” is a term of art describing a particular kind of contract between a developer and a local government entity. These states have enacted statutory schemes allowing for, and regulating, contracts under which developers make specified commitments regarding a proposed project, and a local government entity promises not to revise the zoning, impact fees, and required permitting structure for the proposed project (see Cal. Gov’t Code § 65864 et seq.). California courts have held that when a development agreement accords with this statutory scheme, it is not vulnerable to the charge that it constitutes an unconstitutional bargaining away of governmental police powers.

ENA or exclusive negotiating agreement – in the land use development context, a contract between government entity and a developer establishing a framework for negotiation relating to the development of a site owned by the government entity, which may result in the execution of a development agreement. Usually synonymous with ENRA, or exclusive negotiating rights agreement. An ENA is usually entered into after selection of a single developer for a proposed project through an RFP and/or RFQ process. ENAs provide developers with protection during the lengthy period it takes to develop a project through to the development agreement stage. ENAs are often extended if negotiations are not completed during the initial term.

EIR or environmental impact report – a document required under CEQA for projects that will have significant environmental impacts that cannot be mitigated to a level of insignificance. Under CEQA, the EIR must disclose all significant environmental impacts and analyze all feasible measures to mitigate those impacts.

ERISA or Employee Retirement Income Security Act – a federal statute broadly regulating employee benefits (29 USC § 1001 et seq.). ERISA regulates employer-provided health insurance plans, pension plans, certain training programs, and other employee benefits. ERISA’s broadly-worded and inconsistently-interpreted preemption provision has become an issue in many contexts, leading to much litigation. Most prominently, business groups have claimed that ERISA preemption prohibits states from enacting “pay or play” health insurance requirements, under which employers are required to either provide health insurance to workers or to pay into a state fund. These claims have had varying degrees of success. (Compare Retail Industry Leaders Association v. Fielder, 475 F.3d 180, 183 (4th Cir. 2007) (striking down state ordinance) with Golden Gate Restaurant Ass’n v City and County of San Francisco 546 F.3d 639 (9th Cir. 2008) (upholding local ordinance).)

Executive Order 11246 – federal executive order signed by President Johnson in 1965, which “prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” Contractors are also required to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.” The full text of EO 11246 is available here.

first source hiring policy – a policy or program requiring or encouraging the use of a particular source of job applicants such as a job-training organization or agency for hiring on a development project. Note that not every hiring program is a first source program: a city might require that an employer hire a certain percentage of low-income residents, without regard to the source the employer uses to find applicants. The term first source should be used to refer to programs requiring or encouraging employers to interview applicants referred by a particular source, like a specified local job training center, or a local government agency. First source hiring policies are often negotiated into community benefits agreements, adopted by government entities for a range of projects, or negotiated by government entities into development agreements. These policies are most often employed for permanent jobs rather than construction jobs, due to the complexity of hiring practices in the construction industry. Such policies typically require employers to notify a referral service of job openings and necessary qualifications, and to exclusively interview candidates referred by the specified source for a particular period of time.

Garmon preemption - San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) under which state or local regulation may be preempted by the National Labor Relations Act. According to the court, the doctrine “is intended to preclude state interference with the National Labor Relations Board’s interpretation and active enforcement of the 'integrated scheme of regulation' established by the NLRA.” The Garmon preemption doctrine forbids state regulation of activities that the NLRA (a) protects, (b) makes an unfair labor practice, or (c) arguably protects or prohibits. Under Garmon, therefore, a state could not prohibit workers from striking or an employer from locking out workers in a situation where the NLRA permits the strike or lockout; nor could a state impose additional penalties on businesses found to have violated the NLRA by a court or the NLRB.

general plan – under California law, a general plan must be enacted by local jurisdictions in order to provide the overarching regulatory framework for land uses in the jurisdiction. The general plan must contain several elements, including housing, water, and traffic circulation, and others, and may contain many different discretionary elements. The jurisdiction’s specific plans, zoning laws, and indeed all land use actions must be consistent with the general plan. Although there is a private cause of action enabling individuals or organizations to enforce this general plan consistency requirement, California courts are historically quite deferential to local jurisdictions’ determinations that their actions are consistent with their general plans, and are therefore reluctant to enjoin local actions on grounds of general plan inconsistency. Despite these enforcement challenges, general plans are crucial land use planning documents for California cities. California cities may amend their general plans up to four times per year, and often amend general plans to facilitate large development projects.

labor market – a defined geographic area containing a workforce from which area employers draw. The federal Workforce Investment Act of 1998, 29 U.S.C. § 2801, et seq., defines a “labor market area” as “an economically integrated geographic area within which individuals can reside and find employment within a reasonable distance or can readily change employment without changing their place of residence.” The U.S. Department of Labor’s Bureau of Labor Statistics specifies micro- and macro- labor market areas around the country; labor market areas defined as of March 2011 are available here.

local hiring policy or program - a policy or program, often included in a community benefits agreement, or adopted by a government entity, requiring or encouraging the hiring of residents of a particular geographic location for permanent and/or construction jobs associated with a development project. Many such policies rely on a radius distance from the project in question or zip codes or census tracts within relatively close proximity to the project. Local hiring requirements are often combined with income eligibility requirements, so that only low-income residents of specified neighborhoods are eligible; such a policy might better be called a targeted hiring requirement. Such policies also may include first source requirements as a means of meeting the local hiring goals. More information about local hiring for permanent jobs is available here, and about targeted hiring for construction jobs, here.

living wage policy - a policy, often adopted by a local government entity, requiring payment of living wages by businesses awarded service contracts by that entity. The term is not used in the construction context, where prevailing wages are relevant. Some cities have expanded living wage policies to cover employees in development projects benefitting from certain types of public involvement, to cover employers at publicly-owned facilities like airports, and to cover employers in neighborhoods benefitting from heavy public investment like marinas. In addition, some community benefits agreements include living wage commitments for some or all of employers in proposed development projects.

Machinists preemption - a doctrine articulated by the U.S. Supreme Court in International Association of Machinists and Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976), under which state or local regulation may be preempted by the NLRA. The doctrine prohibits state regulation of conduct that Congress intended be unregulated and left to be controlled by the “free play of economic forces.” The doctrine focuses on state and local regulation of economic weapons available to employers and workers. The doctrine is subject to the market participant exception, detailed in many cases, including Boston Harbor.

MSA or Metropolitan Statistical Area – geographic areas used by federal agencies in collecting, tabulating, and publishing federal statistics. There are also “micropolitan” statistical areas. An MSA contains a core urban area of 50,000 or more population, and a “micropolitan” area contains an urban core of at least 10,000 (but less than 50,000) population. According to the Census Bureau, “[e]ach metropolitan or micropolitan area consists of one or more counties and includes the counties containing the core urban area, as well as any adjacent counties that have a high degree of social and economic integration (as measured by commuting to work) with the urban core.” The current list of MSAs is available here.

NEPA or the National Environmental Policy Act of 1969, 42 U.S.C. §4332 et seq., requires all federal government agencies to prepare Environmental Assessments (EAs) and Environmental Impact Statements (EISs) disclosing the environmental effects of proposed federal agency actions. More information about NEPA from the U.S. EPA is available here.

NLRA or the National Labor Relations Act (or Wagner Act), 29 U.S.C. §§ 151 et seq., is a federal law that governs the interactions between labor unions and employers, including the processes of union recognition and collective bargaining. The Act does not govern workers who are covered by the Railway Labor Act, agricultural employees, domestic employees, supervisors, federal state or local government workers, independent contractors and some close relatives of individual employers. The Act also establishes the National Labor Relations Board (NLRB).

owner participation agreement – usually refers to a contract between a redevelopment agency or other public authority and a landowner, under which the landowner makes specific commitments about project development, and the government entity specifies the type of public involvement in the project, such as a subsidy, infrastructure improvements, and so forth. Compare a DDA, under which the public entity generally sells land to the developer.

police power – the broad legal authority of states, and their political subdivisions such as cities, to enact and enforce laws to protect public health, morals, safety and welfare. The power of cities to enact comprehensive land use and zoning laws flow from the police power, as established in the U.S. Supreme Court’s decision in Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Since the zoning power is an expression of the police power, it follows that cities may use zoning law to advance any objective legitimately within the broad police power, such as socioeconomic objectives.

pre-apprenticeship program – typically, a skills and knowledge training program designed to prepare enrollees for entry into a recognized apprenticeship program. Well-run pre-apprenticeship programs, with established relationships with quality apprenticeship programs, are a crucial path into quality construction careers.

preemption – a legal doctrine under which a statute of a superior level of government nullifies or supersedes a regulation or regulatory action of a lower level government. For example, under the Supremacy Clause of the federal constitution, Congress has the power to preempt state law in areas that lie within the authority of Congress. State or federal law may also preempt local laws or regulations. ERISA, the NLRA, and the Federal Aviation Administration Authorization Act (FAAAA) all have a preemptive effect that has become relevant in the community benefits context.

prequalification – a system requiring prospective bidders for public contracts to obtain prequalification to bid, by demonstrating past performance, compliance with relevant laws, etc. The goal of a prequalification system is to ensure a high-quality pool of bidders, likely to actually perform the public contract at the agreed-upon price. Contrast with a traditional lowest-responsible-bidder system.

prevailing wage – a wage standard often applicable to publicly-funded or -assisted construction projects, based on the hourly wage, benefits and overtime, paid in the largest city in each county, to the majority of workers. Prevailing wages are set by the federal and state governments for each trade and occupation. The Davis-Bacon Act requires the payment of prevailing wages on federally funded or assisted construction projects. Some states have similar statutes. A searchable listing of the Labor Department’s prevailing wage determinations is available here.

privileges and immunities clause – The privileges and immunities clause of Article IV of the United States Constitution provides that “the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The clause thus arises as an issue in connection with the adoption of local hiring policies where such policies might be said to interfere with out-of-state workers’ ability to pursue private employment, which the U.S. Supreme Court has held is a fundamental right for purposes of the Clause. However, the privileges and immunities clause only precludes discrimination against non-residents when the government does not have a “substantial reason” for the difference in treatment or the discrimination practiced against the nonresidents does not bear a “substantial relationship” to the government's objectives. See discussion of the Camden case.

PLA or project labor agreement – in the construction industry, a comprehensive agreement ensuring labor peace for a construction project by establishing ahead of time key terms of hiring procedures and working conditions, generally with reference to terms of local collective bargaining agreements in various trades. Contractors and workers do not have to be unionized in order to work on PLA projects. Public and private entities overseeing large construction projects often require PLAs to be in place in order to avoid costly delays due to labor unrest, to facilitate high-road employment practices, and sometimes to facilitate targeted hiring programs. PLAs that include targeted hiring requirements greatly facilitate achievement of targeted hiring objectives. PLAs that include targeted hiring components are sometimes called Community Workforce Agreements (CWAs). PLAs are also sometimes referred to as Project Stabilization Agreements or PSAs.

redevelopment agency – a local government entity established by statute to facilitate economic development, often in low-income communities. Most states have some version of a statute establishing redevelopment agencies, which go by different names in different states. Redevelopment agencies usually possess the power of eminent domain, and often have the ability to utilize tax increment financing to finance projects.

redevelopment plan – in California, a statutorily-required plan for the redevelopment of an established “project area.” All redevelopment activities in the project area must be consistent with the redevelopment plan. Enactment, amendment, or extension of a redevelopment plan is an action subject to referendum by the local electorate – unlike most other redevelopment activities in California.

responsible contracting policy – a policy, often included in community benefits agreements and memorialized in local and state government rules and standards, that ensures that entities with whom public entities contract meet standards of responsibility. Typically, these standards require a demonstration of past and ongoing compliance with applicable health, labor and environmental laws and regulations. See materials about responsible contracting for services here and about construction contracting, here.

RFP or request for proposals – a contracting tool used by public entities seeking bids or other proposals by contractors or prospective developers. These can be of varying levels of detail. In the development context, these are important documents in that they provide early notice to the development community and the public regarding the public entity’s goals and vision for the project. The RFP process also leads to the crucial selection of a developer for entry into an ENA. See discussion of public input into this process here.

RFQ or request for qualifications – a contracting tool used by entities, including governments, seeking to establish a pool of entities eligible to submit bids in response to an RFP.

SAC states – a term referring to states in which the U.S. Department of Labor’s Office of Apprenticeship assists and oversees the “State Apprenticeship Council” which is tasked with regulating construction apprenticeship programs. In these states, apprenticeship programs register with a state agency, rather than the federal government, and the state establishes standards for registered programs in accordance with statute and regulations referred to in the discussion of apprenticeship programs.

Section 3 – Section 3 of the Housing and Urban Development Act, a federal statute that requires, “to the greatest extent feasible,” the provision of employment, contracting and training opportunities to local low-income residents on HUD-funded projects. While there is a private cause of action to enforce this requirement, neither the public nor HUD has been aggressive in enforcement efforts. Enforcement efforts are hindered by regulations that are complex and either ambiguous or weak on key points. More information about section 3 from HUD is available here.

specific plan – in California, planning document governing a particular area of the jurisdiction, and including more specific standards for that area than those of the general plan. The specific plan implements the general plan and must be consistent with it; subsequent land use actions by the local jurisdiction must be consistent with both the specific plan and the general plan.

targeted hiring policy - a policy, often included in a community benefits agreement or adopted or required by a government entity, requiring or encouraging the hiring of individuals meeting certain criteria for permanent and/or construction jobs associated with a development project. These criteria may be geographic, as with a local hiring policy, socioeconomic, or a combination of the two. In addition, targeted hiring policies may advance other goals such as providing employment opportunities for women, minorities, at-risk youth, veterans, people with convictions, public assistance recipients, or other groups facing employment challenges. Targeted hiring programs are often combined with first source requirements, in order to maximize the chance of meeting targeted hiring goals.

ULURP process – a set of measures established in the charter of New York City creating standardized procedures whereby applications affecting the land use of the city are publicly reviewed. An explanation of the ULURP process from the NYC Department of City Planning is available here.

worker retention policy – a policy, often included in a community benefits agreement, or adopted or required by a government entity, requiring that in the event a new employer takes over provisions of services that had been provided by another employer, the successor employer hires the workforce employed by the predecessor employer for a certain period of time. A typical worker retention policy would require that, when a service contractor like a custodial contractor replaces a previous contractor at a public facility like an airport, the new contractor hires and retains the previous contractor’s workers for 90 days.

zoning – a method used by local governments to regulate land use, establishes districts or “zones” within the jurisdiction, and specifying permitted type, intensity, and parameters of uses within each. Zoning power is derived from the police power, and is regulatory rather than proprietary. (See discussion here.) Zoning designations for individual parcels of land, and the systematic zoning rules, are usually set forth in a local government’s planning code.