Improving the Development Process

The CBLC works with community-based organizations to make the land use approval processes, redevelopment activities and other development-related government processes more transparent, democratic and responsive to community needs. The widespread interest in CBAs and CIRs demonstrates that in important ways, large-scale land use development processes are not meeting the needs of low-income communities. Material below focuses on ways to improve the development process, rather than substantive improvements like living wage requirements for new developments.

Community Impact Reports

Community Impact Reports are a new tool to provide the public and elected officials with timely, pertinent information about both positive and negative impacts of development projects, prior to project approval. Extensive information about CIRs is available at the Partnership’s main website.

Crucial legal issues related to CIRs include:

  • Whether there is a private cause of action to enforce compliance with a CIR policy;
  • Whether the CIR is linked to another tool in the land use process, as several big-box ordinances link assessment of job quality issues with issuance of a conditional-use permit;
  • Whether the legal responsibility for releasing a CIR falls on the developer or the local government entity that is considering approval of the project; (we recommend the latter, as is the case with environmental impact reports);
  • Whether the CIR policy is purely informational, or whether it instead requires a public body to make a finding or determination based on the information in the CIR.
    How the CIR is adopted. Options include: (i) a state, city, or county adopting an ordinance requiring CIRs for certain types of projects; (ii) a redevelopment authority or other local government entity passing by resolution a policy requiring CIRs for certain projects; and (iii) any entity simply choosing to prepare and release a CIR for a particular development project. The form in which a CIR policy is adopted will of course affect the enforceability of the policy, and the amount of flexibility the relevant government entity has to decide whether to release a CIR for a particular project.

Ordinances Requiring CBAs

While there has been interest in several cities in developing ordinances or processes to require CBAs, we do not believe these approaches hold much potential. Excessive governmental involvement in CBA negotiations can become its own problem, as shown in New York City, as discussed at length in "CBAs: Definitions, Values, and Legal Enforceability." Formal attempts by local government to structure or facilitate CBA negotiations generally lead to governmental efforts to control who can participate, and/or predetermine results of negotiations. These possibilities are antithetical to the main values of CBA negotiations. Because of these problems, we encourage local government officials who want to improve the inclusiveness and accountability of the development process to explore community impact reports instead.

Public Input into Choice of Developer

Advocates wanting to weigh in on a government entity’s selection of a developer for a large project are often surprised to find out how little information is made public prior to this important decision. When a government entity issues an RFP and/or RFQ for a large development project, it is usually selecting a developer with which to enter into an ENA.

The public may have strong opinions on this issue, in part because different developers have different reputations with regard to issues the community cares about. More importantly, though, in response to an RFP, different developers may be offering to build completely different projects. If an RFP does not request a specific type of project, one developer might propose to build a grocery store and other local-serving businesses, while another might propose building a server farm that offers no value to neighborhood residents. The public should certainly have the right to weigh in on decisions that will have such long-term ramifications for their communities.

However, a legal impediment often stands in the way of public awareness of development proposals at this crucial stage: developers generally assert that responses to RFPs contain "trade secrets" that insulate their responses from public records requests. Government entities routinely reiterate this assertion in denying requests for public release of RFP responses. While this approach is usually legally defensible (at least in California), and while sensitive information may in fact be included in an RFP, denying the public the most basic information regarding what a developer proposes to build - and perhaps how much public subsidy the developer anticipates needing - is hard to defend.

An easy way out of this dilemma is for the RFP or RFQ to require the developer to put some simple, basic information about the proposed project into an executive summary that respondents are told will be made available to the public. This summary should describe the basics of the proposed development, the public investment the developer anticipates requesting, and perhaps information about the type and quality of jobs in the project.

Oakland’s redevelopment agency took this approach in the RFP for development of the West Oakland Army base. Providing this information publicly enables the public to weigh in on the crucial matter of selection of a developer with whom local government can work.