Alejandro E. Camacho, Community Benefit Agreements: A Symptom, Not the Antidote, of Bilateral Land Use Regulation, 78 Brook. L. Rev. 355 (2013).
Community Benefits Agreements (CBAs)—private agreements between land developers and community members exchanging benefits for support or tolerance of a project—have recently emerged as part of a larger movement in American land use regulation away from a unilateral, government-dominated model toward a more negotiated paradigm. Unfortunately, though they arose in part to address issues found in the predominantly bilateral negotiated model, CBAs have been accompanied by significant problems of their own. Most notably, concerns such as whether to engage in a CBA process, the appropriate framework for negotiation, and the relationship of CBAs to the public regulatory-approval process are typically left to the discretion of the developer. As a result, such agreements typically develop in parallel to the public process but largely independent of it—a redundancy that leads to additional costs for both developers and community members. More importantly, the negotiation process results in less-than-optimal agreements that disproportionately reflect the interests of the developer. These weaknesses, however, ultimately point to the continued inadequacy of the underlying public process in advancing legitimate land use decisions.
This symposium essay briefly outlines the modern public land use decision-making process’s transition from a unilateral model to a bilateral-negotiation model; discusses the rise of CBAs as a response to shortcomings of the bilateral process; analyzes CBAs’ benefits and drawbacks; and suggests how elements of the CBA process can be integrated into a more effective negotiating model. In particular, rather than encouraging the creation of CBAs, local governments should seek to integrate the most successful elements of the CBA process into the existing bilateral negotiation framework, creating a more multilateral, community-oriented decision-making process.