The community benefits agreement : a contract through deliberation.

(1)

The

Community

Benefits

Agreement:

A contract

through

deliberation

13 July 2014

Author: Joost Sonsma Master Urban & Regional Planning Faculty of Social Sciences University of Amsterdam

j.s.sonsma@gmail.com

Supervisor: Menno van der Veen

Teacher Urban & Regional planning University of Amsterdam

m.vanderveen@uva.nl

An explorative research to the role of a Community Benefits Agreement in the context of public acceptability and practicability in the Netherlands by using a case study and by interviewing 13 Dutch participation experts.

(2)

Abstract

Due to decentralization and budget cuts in the Netherlands, there is a search for new participation initiatives because the municipality cannot fulfill to their previous roles anymore. Therefore, in this explorative research the role of a Community Benefits Agreement (CBA) in the Dutch paragraph of public acceptability and practicability will be assessed. By using a case study in which the first CBA in the Netherlands is being implemented in a dike improvement project and by interviewing 13 participation experts about contemporary participation structures and the paragraph of public acceptability and practicability, the potential role of the CBA is assessed. It seems to be that the process of getting to a signed CBA is more important than the outcome of a CBA. A CBA will bring community empowerment, an area-specific approach and will bring ‘hidden issues’ in the action area together. At the same time participation experts underline the shortcomings of contemporary participation and state that the public acceptability and practicability paragraph, which is a justification of the effort for organizing participation by the developer, has not enough strength and enforceability. In this thesis, it seems that the CBA can be added to this paragraph in order to give participation a stronger and more legal basis.

(3)

‘’Wanneer mensen zelf vorm geven aan hun toekomst, voegen zij niet alleen

waarde toe aan hun eigen leven, maar ook aan de samenleving als geheel’’

Koning Willem Alexander

Troonrede september 2013

‘’If people create the future themselves, they do not only add value to their

own life, but to the society as a whole’’

King Willem Alexander

(4)

Preface

After an intense pre-phase of my master program at the University of Amsterdam the most important phase started: the master thesis. I wanted this research to be challenging and of added value to the existing research. The discourse of the Community Benefits Agreement fulfilled to both of these variables and opened a new interesting perspective for me to the field of urban and regional planning.

The changing planning debate has arrived in a new context: that of changing cash flows and that of the change of power. The decreasing cash flows from the governmental authorities and the diminishing power of these governmental authorities leaves space for experiments in the search for new power relations. Especially on the local level these changing power relations are obvious. One clear benefit of this changing context is the increasing role of the citizens. An American planning tool, the Community Benefits Agreement, gives this redistribution of roles a legal character and connects with the contemporary modernity of the area-specific approach, empowerment of the citizens and the legal enforceability in a specific contract. The CBA approach is different from the contemporary participation approaches, due to the fact that the CBA is applied on the front of a plan process.

A proactive approach instead of the contemporary reactive one, in which visions, objections and appeal are central as participation tools.

The search for new participation experiments has arrived in the shape of area specific-contracts. That is where the focus of this thesis will be.

I want to thank my interviewees for taking time and effort to answer my questions and for giving suggestions for different approaches in my research. Without their knowledge the quality of this thesis would be different. Second, I want to thank my supervisor Menno van der Veen for his help, knowledge of research, supervision and being an advocate of the CBA movement. I also want to thank Jesse Stammers for being a critical sparring partner during my research. I am also thankful to the other partners of Tertium, Michiel Hulshof and Natasja van den Berg.

I hope this thesis will add sufficient knowledge to the debate of participatory planning and will create a stepping stone for further research. The CBA is a very promising tool if executed properly and can be very effective and useful for developers, the governmental authorities and the most important: the community.

Joost Sonsma July 2014 j.s.sonsma@gmail.com

(5)

Chapter 1 Introduction

1.1 Motivation

The Nieuwe Omgevingswet (new environmental code) will be introduced in the Netherlands in the upcoming years. It is one of the biggest planning interventions since the Second World War in the Netherlands (Binnenlands Bestuur, 2013) and has high implications for spatial policy in the Netherlands. The core of the Omgevingswet is the integration of 15 different spatial laws, into one big spatial law: de Omgevingswet. A new procedure for planning, which main goals are to make the planning process and implementation procedure less bureaucratic, less time consuming and as a result less expensive. Though not yet implemented in Dutch spatial law (expected to be fully operative in the end of 2016, depending on the progress in the government), municipalities, provinces and the central government are already anticipating their policy to this Omgevingswet (Hans Koning, exploratory interview). How this is going to take shape is still unclear due to the fact that the law is not yet operative, but it is clear that the philosophy behind this new spatial law will acknowledge the importance of participation in planning processes. Shortly, this instrument addresses the necessity to have public support in the early stage of a planning process and could therefore succeed better. The idea of this instrument fits in the goal of the

Omgevingswet and the findings of the Elverding Committee (Commissie Elverding, 2008),

which did an investigation to the causes of the delay in projects: it will be less time consuming due to the fact that if public support is gained for a project in the early planning phase, resistance will be less in later stages of the project (Onderdeel Projectbesluit van de nieuwe omgevingswet, 2013). Not only does this idea of public participation in planning processes takes form at the national level, the European Commission mandates its member states to involve public participation (Van der Heijden, 2013) in planning practices as well. Especially in water and environmental policy, the European Commission sees public participation as an important factor for genuine representation. The EC makes it mandatory for more member states to have the public involved in projects in order to get those projects a more democratic and legitimate character. At the same time, at the lowest spatial scale, the municipality is emphasizing the importance of public participation the most. The level of scale where physical interventions are most visible and most felt, public participation will gain more importance. Especially since municipalities are getting more responsibility and tasks transferred from the central government, known as the decentralization process. At the same time, due to the economical crisis since 2008, budget cuts are resulting in less power for the municipality. The outcome of the formula of a local government with more responsibilities, less manpower and budget cuts seems to generate an outcome of more power for the local community.

Legal participation in the Netherland is based on inspraak (participation) and overleg (consultation) in the paragraph acceptability and practicability, which is part of a ruimtelijke

onderbouwing (spatial justification) to get a permit for realizing a project. This may be called

participation, but in fact it is reactive towards projects and does not use the potential of the public for realizing projects in earlier phases.

The recent spatial planning law Wet ruimtelijke ordening (Wro) from 2008 was mainly focusing on decentralizing responsibilities and spatial tasks: the municipality became central. Therefore it is not surprising that public participation will become more important in order to get that public support at a local level.

(8)

But, the public acceptability and practicability does not say anything yet about the way to use and fill in public participation. It just wants general public participation to gain public support in order to speed up the process. The way it has to be filled in remains unknown, and without a clear tool to generate public support these are just other words without any content in the Dutch planning history. Recent research of Van der Heijden (2013) mentioned that mandatory public participation creates problems and does not always lead to the most representative and participatory process, and its success depends on the institutional context of the country it addresses. It seems that there is a struggle of adjusting a right planning tool to have public participation in planning processes. But, there are some successful tools which are being developed outside the Dutch planning domain, focused on empowering communities (the public): the Community Benefits Agreement.

The Community Benefits Agreement is one of the newest tools in the domain of participatory planning. It finds its origins in California in the United States, where the agreement on the first CBA about the Los Angeles Staples Center was signed in 2001 (Been, 2010). Since then, the CBA’s have spread across the United States and even to other countries such as Canada, England and Scotland (CBAs here and elsewhere, 2012).

A CBA is in fact a private agreement between a developer and a community coalition consisting of a consortium of community organizations, where approval for a project will be given by the community coalition in exchange for community benefits. These community benefits can for example be social (the construction of additional low-income housing), economic (creation of jobs) or environmental, for example the creation of parks (Baxamusa, 2008). According to Baxamusa (2008), the concept of the CBA is different from other private agreements, because here it is about an agreement between a developer and multiple communities with plural interests. Regular private agreements are negotiated through the city staff by the community, while the CBA is a direct negotiation between the community coalition and the developer. The circumvention of the local government in these agreements fits in the contemporary Dutch planning field in which at one hand decentralization and at the other hand a lack of power of this municipality is currently occurring. The name of the latest Dutch spatial law (Wet ruimtelijke ordening) was focusing more on decentralization and the central thought of this document was centraal wat moet, decentraal wat kan (only vital tasks remain in the domain of the central government, other tasks will be decentralized). Been (2010) summarizes the advantages for each member of the triangle (city, developer and community coalition) into the following.

For communities, the role of the neighborhood in the participation process will be bigger than it will be with the regulatory planning process. Also, CBA’s give neighborhoods the opportunity to address issues that are not normally inherited in the normal land use process. But the biggest advantage for communities is to control the distribution of the benefits to their own neighborhood. For developers, the CBA can give a higher certainty about the realization of a certain project because they will have community support. Besides, the CBA is also a more cost-effective agreement than the regular agreements. Finally, for the city, CBA’s might be very useful for local politicians to distance themselves from politically unpopular community demands or developer demands. But the CBA is not the Holy Grail for planning, it has some negative aspects as well. First of all, the fact that the developer has the knowledge, money and the expertise indicates that there is an imbalance of power in the negotiations. Community groups might be organized, but lack the corporate attitude of bargaining and have most of the time different interests instead of shared

(9)

interests. Also, they address the aspect of legality. Is this private agreement a legal agreement? Can you sign away your rights of opposing?

One of the main critiques though is the aspect of representation (Been, 2010) (Salkin and Lavine, 2009). Been (2010) states that for the realization of the mega-project of the Atlantic Yards, the people who were negotiating the Community Benefit Agreements were not the representatives chosen by the democratic process and had different interests. Therefore there is a chance that the community whom the project really concerns have no say at all and are not included in the decision making process, but signed their rights of objection away by community groups who are not democratically chosen. According to Freeman (2007), there is no certainty that the community who signed the contract are also the people who the project it concerns. The importance of representation in planning processes should not be underestimated. The practice of some companies and the state agencies of engaging with community members who appear sympathetic to development, or who are easier to engage because of their gender or language skills, can militate against effective and legitimate community representation. On the other hand, company efforts to facilitate broadly based representation can yield dividends in terms of the utility of agreements (ERM, 2010).

Another clear example of the aspect of representation and democratic legitimacy in the field of CBA’s is being shown in the case of New Haven in Connecticut (Simmons and Luce, 2009). The project of building a new cancer center in New Haven was more democratic organized than it was the case of Atlantic Yards. Gathering public support for making a CBA was better organized (door-to-door meetings, focus groups) in terms of representation. The set-up of the CBA was therefore also more time consuming and focused more on the inclusion of the local residents in the zone. Although this CBA project is neither including, it was more aware of the factor of inclusion. Democratic legitimacy is missing in the CBA and the question can be raised to what extent the Community Benefit Agreement incorporates the concept of representation and participation.

It seems that there is a shift in the philosophy of decision-making and planning processes when it comes to participation. The importance of public participation is underlined at all three levels of scale (European, national and local level), but is most visible at the scale where it directly hits citizens: the local level. While in the Netherlands municipalities are experimenting with public participation, there is not yet an unanimous idea of how to fill this in (Hans Koning, exploratory interview). Municipalities in the Netherlands have several initiatives and seem to be in a national transformation towards an answer of adjusting public participation. Due to decentralization and a retreating local government and due to budget cuts, institutions are looking for their new role.

A fundamental change is upcoming. But how to fill in this participation remains unclear and the Holy Grail has not yet been discovered. In this thesis, I will explore the promising CBAs and the implementation of it in a case description during the implementation of the first CBA in the Netherlands and I will use the interview output of 13 experts in the field of Dutch planning to find out more.

(10)

1.2 Aim

The research design I will use in this thesis will be the exploratory research design. The reason for choosing this exploratory research design lies in the fact that the concept of a CBA in the Netherlands is new. The case I will describe later on in my thesis will conducts a pilot study in which the process is being followed and described. Although there is elaborate empirical research from previous CBA cases in the United States and to some extent to the United Kingdom, there is another institutional setting in the Netherlands compared with the United States. The idea of binding agreements might fit better in the United States and might demand a different approach in the Netherlands.

Also, the paragraph public acceptability and practicability is rather unknown in literature research. There are some limitations to the research design though. Because of the small set of samples, in my research the interviewees, it is hard to generalize for the population. A second main limitation of the research design is the fact that it is hard to make definitive conclusions, because the topic of research is new in the Netherlands. It will be nearly impossible to investigate the implications of a CBA in the Netherlands in general, because there are no previous stepping stones yet. The output of the interviews and the case description should be a stepping stone for further research.

For this new instrument it is therefore the best to maintain the exploratory research design. This research will have the aim to get to new insights and ideas of the implementation of the Community Benefits Agreement in the Netherlands. The aim is not to generalize the results, but to provide insights and set a stepping stone for further research in the Netherlands for the application of CBAs, with a focus on the aspect of representation. The in depth interviews and the literature research used in this research have the aim to lead to new insights and ideas about the aspect of representation, participation in Dutch planning and the implementation of a Community Benefits Agreement. The ultimate aim is to give some recommendations on how a CBA can be adjusted in the Netherlands to give it a more representative character.

1.3 Problem definition

As mentioned in the introduction, the CBA can be a very promising tool, but there are some main critiques. Community organizations who are signing the agreement are not always representative for the people whom the physical intervention it concerns. While the importance of participation becomes higher as well, and municipalities in the Netherlands are looking for new participation initiatives, there might be a chance for the CBA. But it must overcome its main hurdle, which is the lack of representation. Therefore, the central question in this research will be:

What is the role of a CBA in a new context of public acceptability and practicability in the Netherlands?

The role mentioned in this research question will mainly focus on the aspect of representation. This is one of the key issues in the CBA, but also in the public acceptability and practicability. The field of tension between on one hand focusing on as many people as possible to guarantee representation and on the other hand focusing on the idea of delegates as a reflection of the public.

(11)

The problem addressed in this research will focus also on the paragraph of public acceptability and practicability. This paragraph describes the spatial justification of a project and which effort the developer has done to get public support. The importance of this paragraph differs for every municipality. Therefore it is important to investigate how a CBA could be used in the paragraph of public acceptability and practicability.

1.4 Research questions

To answer my main research question there are four sub-questions in this research to get to an answer and a conclusion.

1. What is the role and necessity of participatory planning in the contemporary Dutch planning system?

2. What is the importance of public acceptability and practicability and how does this apply in the Dutch planning context?

3. What are the advantages and the disadvantages of a Community Benefits Agreement?

4. How is the concept of the Community Benefits Agreements being received in a Dutch pilot study?

These four questions will be answered throughout the thesis. In the theoretical framework I will focus on the existing literature regarding those four sub-questions. In the methodology part I will elaborate on these sub-questions and introduce the strategy I am using to come to my answers.

1.5 Hypothesis

In the devoted literature about the CBAs it is clear that the CBA is a very promising planning tool in terms of realizing project development. Various projects in the United States have been realized by using a CBA. Since its first introduction in 2001 in Los Angeles, over 30 projects in the United States have been realized in 2011 (Nadler). Also, certain development projects outside the United States are experimenting with the CBA, such as certain projects in the United Kingdom and Canada (MacFarlane and Cook, 2002).

Now, the first pilot study in the Netherlands is being performed as well. Because an American tool will be implemented in a different institutional context, the implementation of a CBA will lead to certain issues. As mentioned in the motivation, one of these exactions will be the aspect of representation. In the Netherlands every stakeholder has the right to object to certain decisions in project developments. Therefore, the aspect of representation might be even more important from a legal point of view in the Netherlands than it will be in the United States. The crux of the agreement is in the communities who are signing the contract. Because they are not democratically chosen by elections, by politicians or do have any other legitimate mandate, these community organizations might not be representative. But as certain literature (Salkin and Lavine, 2009) is mentioning, the process of forming a CBA can be legitimized by using certain rules (Camacho, 2005). Due to the fact that I am using two methods in my research I chose to maintain two hypotheses. The first hypothesis, notified as H1, can be linked to the case and is focusing more on the process of a CBA. The second hypothesis, notified as H2, can be linked to the semi-structured interviews with participation experts and is focusing on the aspect of representation of a CBA.

(12)

H1 will be defined as followed:

I expect in the case study that the process is more important than the signing of the agreement itself. The CBA will therefore have a role of getting actors together and to see if area-specific issues can be resolved, that the attitude of a mediating actor can be important and that the idea of supporting the idea is more important than the eventual signature.

I will test H1 by using case study. Several hearings in the area, interviews with actors in the area and being involved in the process will give possibilities to test this hypothesis.

H2 will be defined as followed:

I expect as an outcome of the interviews with 13 participation experts that the process in the CBAs is more important than the eventual agreement. I expect from the contemporary literature about CBAs and private agreements that the representation problem cannot be solved by setting a certain threshold of the amount of people as a representation index, but expect that the frame of the process determines the aspect of representation.

By using desk literature and interviews with experts in the field of participation I want to test my hypothesis. In the general conclusion I will elaborate on whether to reject or accept my hypothesis.

1.6 Public and boundaries of the research

This research is directed to planners, policy-makers and professionals experimenting with participation in spatial planning. Because the role of planners and policy-makers is not anymore solely about sector-based topics, but has shifted to a more integral approach of problems (e.g. the contemporary trend of the gebiedsgerichte aanpak/ area-specific

approach, wherein not only the sectoral problem is the central issue, but the entire area),

participation does not anymore only contain the spatial domain.

Therefore the public this thesis is addressing consists of professionals who see the added value of participation and are looking for new tools to give participation more legal meaning. The contemporary societal debate about participation makes it a very present topic and might give this debate a certain direction towards contracted agreements.

1.7 Method

Due to the exploratory design of this research it is considerable to use the literature review combined with interviews and a case study.

The literature review is of high importance for this research. Because the CBA concept is rather new in the planning field, especially outside the United States, literature review will get this thesis to a certain entry level. Literature about CBAs, projects which used the CBA, literature about participation and literature about the Dutch planning context are all necessary to get to a certain level. Although all research starts with using literature, the importance of studying the available literature is probably of a higher importance for an

(13)

exploratory research design. I also used two exploratory interviews with two officials of the municipality of Breda to get to an entry level of the contemporary participation debate. Once this entry level has been reached, the second method of research will come to light. In this research I have chosen to use the methodology of a case study and the use of interviews. The reason for the case study is that the first CBA was applied in a Dutch pilot study. Due to the exploratory character it makes sense to use the contemporary experimental case about the CBAs. Because of the fact that I am involved in this process it will give me an unique perspective to write about this case.

The other method, the use of interviews, will be more about the broad participation topics and will mainly focus on the representation part by interviewing experts. These experts are defined as experts in the field of participation, experts in spatial policy and spatial planners. The definition of this group of experts is not very stringent. The reason for this broad definition of experts is that the contemporary transformation in the Dutch planning field, the novel character of a CBA and the unfamiliar definition of public acceptability and practicability needs interviewees with transcending knowledge. This connects with the contemporary idea of spatial planning as a transcending profession. A group of 13 experts will be face-to-face interviewed, according to a semi structured interview. The input for the semi-structured interviews will come partly from the output of two exploratory interviews. These interviews were needed to gain a certain idea of the contemporary status of the variables used in this research. There are some limitations and drawbacks to this methodology, but the advantages overrule the disadvantages.

In the methodology chapter of this research I will focus more on these limitations and drawbacks of the interviews and the case study.

1.8 Set up

First, I will introduce the contemporary context of participation. Different trends in the Dutch context show that planning in the Netherlands needs new forms of participation. Second I will go deeper in the concept of public acceptability and practicability and what this means for planning and what changes this will have in the field of planning. The necessity of public support will be bigger in the next years when the central government is continuing the process of decentralization and outsourcing more tasks to the level of the municipality. Third I will elaborate on the concept of the Community Benefit Agreements and its implications. I will try to answer what the advantages are and what the disadvantages are of a community benefit agreement and in what way do they differ with conventional planning tools. After this, I will focus on the paragraph of public acceptability and practicability. After discussed this, I will focus on the aspect of representation and I will introduce here the concept of collaborative planning by Booher (2005) to state that collaborative planning within CBA’s is necessary to be sure that the community is being represented. I will conclude the theoretical framework with the framework developed by Camacho (2005) which consists of five characteristics which will make land use planning more collaborative and more representative

Fourth, I will analyze the expert interviews and I will relate them to the sub-questions one, two and three. Fifth, I will highlight a case in which a pilot study to CBA’s is being performed in a Dutch village which encompasses two provinces, two municipalities and a wide set of actors in a community. In the case-analysis I will go deeper into the concept CBA and in the case-conclusion I will answer my fourth sub-question. In my conclusion I want to

(14)

get to an answer to my research question and I want to see whether my hypothesis are accepted or rejected.

(15)

Chapter 2 The window of opportunity

2.1 The essence for public participation in spatial planning

The importance of participation in planning and decision making processes becomes more clear now than it was in the past. A well known characteristic of development projects is that they most of the time face major delay and cost overrun. Although this has many reasons, such as unexpected external complexities in the project, there is another important factor as well: the lack of public participation in the planning process. Although the Western World is renowned for taking care of public participation in comparison with developing countries, such as economic ‘tigers’ Thailand and China (Ng & Skitmore, 2012), this lack of public participation is still a main reason of project delay (e.g. infrastructural projects, construction development projects or projects with public amenities). In case of project execution without public participation, the existence of the project lacks democratic legitimization and the relation between the developer of the project and the public will be disturbed for many years. These imposed projects are forced through by powerful actors and lack any democratic legitimacy. Hall (1980) mentions in his famous book Great Planning Disasters a set of causations why complex planning projects have failed. One of the reasons he is mentioning as a reason of project delay, is that there was a lack of public reaction for the planning part. This meant that the project did not take for example demographic changes into account. So once the complex project was realized after a long period of time, it did not have any legitimacy anymore because the demographics were changed. This example sketches that there was no feedback with the public during the project, and led to inertia: a project realized in the wrong context.

Organized opposition from the public influenced by the project will lead to legal procedures in court, which are time- and money-consuming and will create opposition and stalemates in the project. In the Netherlands there is almost a ‘tradition’ of deadlock projects, which are the result of endless legal procedures by different actors. These projects do not only have a NIMBY-character, but can be the result of not acknowledging the importance of public participation. The times of forcing a project, as an initiator, are done. Planning paradigms are shifting towards another rationale in which the acknowledgement of public participation becomes more important.

But the importance of participation is not only acknowledged from the developer’s point of view, it is also essential for the public by stating that participation is a fundamental right of the citizens. Although the fact that there is no homogeneity for the group citizens (Grensverleggend participeren: handboek voor procesregisseurs , 2010), Sheng (1990) mentions in his research that public participation is a democratic right for all the citizens. Eventually, citizens do have the right to be involved in physical interventions which will influence their daily life. Public participation is therefore, according to Sheng, a form of grassroots democracy: the democratic principle should be applied to where the project is executed. By this idea it will be the communities who are living in the relevant region who need to be involved and empowered in the participation and involvement part of the project.

Third, public participation is especially now important for governmental authorities. It can function as a replacement of their decreasing power, due to administrative and societal changes which will be elaborated later on in this chapter. Especially at the local scale

(16)

public participation can be a clear benefit for the municipality. It will save the municipalities manpower and time if the process of public participation is well executed to certain norms.

Public participation can be very beneficial for all parties involved in the planning arena, but there are of course a lot of problems with it. The first problem has already been made in the part above, the simplified distinction between developer, municipality and the public. In practice, these roles are not always clear and are changing in our network society (Van Stokkom et al., 2012). The initiator in projects can differ from a developer or a municipality, but nowadays even from public organizations or citizens themselves.

In this thesis I distinguish three main reasons why public participation is especially now of high importance in planning. But first of all, it is important to make some clear definitions about participation and the public. Participation and involvement is in this thesis defined as ‘’the belief that those who are affected by a decision in the spatial domain have the right to be involved in the decision-making process’’ (International Association for Public Participation, 2008). Participation and involvement varies per domain, and can for example also be seen in other fields such as management of public facilities, healthcare (mantelzorg) and in many other fields. All participation and involvement in this thesis are dedicated to the spatial domain.

The first reason of the importance of public participation is that public participation is a basic human right and not a side issue. For too long planning has been seen as an imposed activity in which the governmental authorities had the monopoly on knowledge, money and regulative power. The need of participation from the community results in the establishment of grassroots democracy. Community participation is a form of grassroots democracy, which underlines the importance of the community (Sheng, 1990), and therefore planning should have a more participative character.

The second reason derives from the change of views in the planning philosophy. The former planning ideas were beliefs in a technical rationale view, in which certainty, control and efficiency were central key. Since the ‘70s of the previous century the common beliefs are slowly shifting towards the other side of the spectrum, the communicative rationale. The contemporary general idea about planning is elaborating the other side of the spectrum, the communicative rationale side, in which the recognition of uncertainty and complexity is resulting in a pluralistic approach to spatial problems. The recognition of communities and the public in planning is being more elaborated. This is also known as the communicative theory.

The third cause for more participation comes from administrative changes in the Netherlands. This is the main causation of the actuality of public participation in planning in the Netherlands. The decentralizing character of the central government, the implications of the economic crisis and the societal changes are asking for more power for the public. These three reasons will be elaborated in the next paragraph.

2.2 The need for participation

Participation as a prerequisite of the democratic process

As mentioned by Sheng (1990) before, participation is a basic right. People should be able to participate in actions that are directly affecting their living conditions. In his research, Sheng already mentions that participation is being recognized by the United Nations in the form of the United Nations Centre for Human Settlements (UNCHS) as a basic human right. The Participation and Inclusion principle is being seen as a human right and policy making

(17)

decisions require a high degree of participation by communities and civil societies, according to the website of the UNCHS. Sheng also mentions that participation therefore should be a form of grassroots democracy, in which local decision making is being formed by community dialogue and negotiation by including all the interested actors: local problems are being solved by the community (Grassroots democracy, 2011).

In an explorative report of the Wetenschappelijke Raad voor het Regeringsbeleid (WRR) Verhoeven (2004) debates the question to what extent citizens in the Netherlands are active participants. Verhoeven makes a distinction, based on the categorization of Ferree et al. (2002), of four types of democracy in which the influence of citizens is different. The first theory is the classical-liberal idea of representative democracy. Key to this theory is that citizens can influence policy by electing politicians. The role of the citizens is solely being seen as a voter, and political involvement and participation is rather low. The only influence the citizens have is based on the election cycle. Politicians and policy-makers can be judged by their performance only during elections.

The second theory has a more liberal character and gives the citizen not only voting as an opportunity to influence the political system, but also by being involved in unions and political parties. This theory is more participatory, but still indirect.

The third theory is the deliberative democracy wherein participation and involvement are being seen as useful to influence politics and policy-making. This participation and involvement is being organized in grassroots organizations. Ferree et al. (2002) state that the deliberative democracy theory is not solely based on participation and involvement, but requires certain quality requirements to meaningful participation. Central key to those requirements are argumentation and consensus.

The fourth theory is the most democratic theory and emphasizes communication as the most important means to reach consensus. According to Ferree et al. (2002) this communication should be free of restrictions, based on inclusion, equity and justice. This spectrum of democratic views highlights that participation is not simply connected to democracy, but the extent of participation and the possibility to participate depends on the view of democracy.

The liberal-representative and the liberal-participative democracy are the dominating views for policy-makers in terms of meaningful citizenship. A main critic to these dominating views is coming from De Beus (2002). He states that the Dutch democratic system is a spectator-democracy in which the citizen is a spectator who watches politics and policy-making from a distance. This is according to De Beus a result of the behavior of politicians, whose main goal it is to win the electorate and not to let citizens participate. This does not benefit the idea of active participation and involvement in policy-making. Verhoeven clearly doubts these dominant discourses of democracy and states that these discourses are not connected to a changing society. He comes up with a typology of four different citizenship styles and roles as can be seen in figure 1. The active, dependent, wait-and-see and impartial style are all on the spectrum of participation and involvement. These four styles show similarities with the four types of democracy which Ferree et al. are describing. For a representative democracy, the typology of the citizen is impartial. This can be distinguished by the spectator attitude of the citizen. The participative democracy is remarkable for the Wait-and-see citizens, in which partial participation is organized. The deliberative democracy expects more of citizens, and can be sketched as a dependent citizen. While the constructivist democracy asks the most of citizens, and the role can be drawn as active.

(18)

So what can be concluded is that the view on the democratic system relates to the typology of citizenship. A participatory democracy does not challenge citizens to participate and involve in policy-making. Because the power in policy and decision making is only available for the electorate, participation is not useful for citizens. There is a remark to make here though. In a participatory democracy, participation and involvement is high if projects or policy decisions are negatively influencing people their lives. This opposition, which has similar features as NIMBY-ism (Not In My Backyard), is the only way of involvement. But as long as citizens do not have or get the power to participate, participation initiatives do not make a lot of sense. In order to have solid participation and involvement, the democratic attitude should move towards a more deliberative democracy.

Figure 1. A typology of four different citizenship styles and roles. Source: Verhoeven (2004)

Arnstein (1969) was one of the most influential scholars who mentioned participation as an important prerequisite of citizen power. Arnstein states that the cornerstone of democracy is the participation of the governed in the government. Without this prerequisite there is no democracy. Arnstein also mentions that the prerequisite of participation is that there is no participation as long as power is not being redistributed between the citizens and the state. De Roo (2007) also mentions this as hollow and non-participation. These views reinforce the philosophy of a more deliberative democracy in order to have more and better participation. Both scholars state that there is an order in participation, as is being seen in figure 2, which ranges between the categories of non-participation towards solid participation. De Roo states that most participation initiatives are symbolic (mentioned by Arnstein as tokenism). Arnstein makes a distinction in a planning process between the ‘haves’ (governmental authorities) and the ‘have-nots’ (the citizens). The higher in the ladder, the more power is distributed between the haves and the have-nots. The first category, non-participation, consists of practical outcomes in where the ‘haves’ are curing and educating the public. The second category, degrees of tokenism, are just a show of participation. According to De Roo most of the planning initiatives can be assigned to this category. Some symbolic public hearings can be a clear example of this. Despite the fact that the have-nots can be heard at these public hearings , they lack the power to ensure that their views are being taken serious and are being involved in the plan (Arnstein, 1969). The upper category, degrees of citizen power, is the most democratic and interesting category. The redistribution of power in the partnership is in some projects already visible. Public-private partnerships (PPS) for example, are mostly trade-offs between interests of public and private actors, while the upper two rungs show that the redistribution of power is tending

(19)

more towards the citizens. The ultimate example, according to Arnstein, of citizen participation is the citizen control.

Figure 2. Eight rungs on the ladder of participation. Source: Arnstein, 1969.

Although this ladder of participation categorizes participation in certain degrees, there are some main critiques to this. First, Arnstein even mentions herself that this is just a simplification of participation, and that the main hurdles are in the simplified categorization of the haves and the have-nots. Both actors are not homogenous and a simplified distinction between two parties results in the invisibility of the real problem. Different interests between members of the have-nots, the poor community’s socio-economic infrastructure and the difficulties of organizing a representative group to bargain with the haves are reasons to believe that this ladder of participation is adjustable to the recent society. The main critique to Arnstein’s ladder of participation comes from Sheng. Sheng mentions that for the degrees of tokenism and the category of non-participation the locus of power remains in the hands of the authorities. Sheng therefore mentions two variables which determine what kind of participation is organized: the locus of power and partnership.

Figure 3. Participation defined by the presence of a partnership and the locus of power. Source: Sheng (1990)

(20)

This more recent and better defined model of participation and involvement states that in order to have solid participation, there should be power sharing between the governmental authorities and the community. The criteria of participation is defined according to Sheng by citizens control, delegated power and community representation. Citizen control means that the citizen is holding the decision-making power. Delegated power means that the authorities are delegating responsibilities towards the community . With community representation Sheng mentions either that representatives of a community form an important part in a decision-making board and that all members have the same rights and responsibilities.

Summarized, the importance of participation as a necessary prerequisite for democratic decisions in the public domain becomes clear. Different models of participation have been developed by several scholars throughout the years. One thing that is clear is that participation is often rhetorical and can be characterized as non-participation. It is important that the community is not only been seen as an actor which needs to be taken into account, but as an actor which needs a share of power in order to get a project supported. This philosophy relates to the CBA, because in the process of signing the agreement it is of high importance to share interests, share problems and to share power between the initiator and the community. In order to come to shared interests, deliberation is of high importance. This genuine deliberation can only be achieved if power and interests are shared.

Towards the Communicative rationale approach

Another important shift makes participation such a contemporary topic. The importance of participation of the public comes from a rather new narrative in the planning debate, which is called the communicative theory. Martens (2001) mentions that the communicative theory has developed as one of the leading planning approaches during the past decade and emphasizes its importance in the planning methods. Communicative theory includes a political arena in which a shared problem is being defined and resolved by the people whom it concerns. The communicative rationale approach, at one end of the spectrum, is opposing the technical rationale approach on the other end of the spectrum, which is based on scientific considerations. De Roo (2005) goes further into this debate and makes a clear distinction in the philosophy of planning practices between a technical rationale approach and a communicative rationale approach. While at one end of the spectrum, the technical rationale approach which was dominant for the past century, tends to lose its importance in contemporary development projects. The main characteristic of the technical rationale approach is its scientific approach towards the reality, which is based on two elements: certainty and control. These two terms are not relevant anymore, due to the pluralistic character of the society. The other side of the spectrum is remarked by the communicative approach, which is more characteristic due to its participatory character and pluralistic view of reality. This approach sees the reality as complex and uncertain. In the last 30 years ,there tends to be a move from a technical rationale approach, which is based on control and certainty, towards a communicative rationale approach, which is based on complexity and uncertainty in planning.

Healey (1995) describes in her research the shift towards the communicative approach from a technocratic approach. Healey derives this shift as an opposition to the previous modernist approach to planning, which was based on rationalism and certainty, and mentions that we are now in a postmodern stage which is characterized by complexity and uncertainty. This modernist approach which was dominant in the second half of the last

(21)

century, was based on rationalism, in which efficiency was a central key. A striking example of this rational planning perspective were the blueprint plans, which were dominant during the heydays of the technical rationale planning. Blueprint plans were based on scientific and rationale considerations and were seen as the best plans because it was scientifically optimized. Faludi even defines blueprint plans as ‘an approach whereby a planning agency operates a programmed thought to attain its objectives with certainty’. These blueprint plans did not take account to changing contexts and had a very autopoietic attitude, which can lead to inertia: the risk to lose contact with reality (Teisman, 2008). This means, as Hall mentioned as well, that a realized project can exist in the physical landscape without any democratic legitimization. At the heart of blueprint planning was the idea of science as all seeing and the role of the planner was omnipotent (Lane, 2006). These blueprint plans were symbolic for the technical rationale planning perspective, because it highlights the scientific considerations that were leading the decision of a plan. A plan was top-down constructed and was being defined as a ‘plan that is the best option for the community’. The governmental authorities made choices for the public.

The declining trust in scientific-rationalism became visible and the society was forced to rethink about a new planning paradigm. Healey (1992) summarized the communicative theory as another conception of reason. While the technical rationale approach saw reason as individualized and subject-oriented, the communicative rationale approach sees reason as inter-subjective communication. This new concept of reason emphasizes the pluralistic character of the contemporary society. This pluralistic character means that other actors, such as the public, the influence of market-driven parties and other organizations are being acknowledged. While at the heydays of the technical rationale approach the society was seen as unilateral and planning was for the unitary public interest (Lane, 2006). The contemporary view emphasizes the pluralistic character of society.

Postmodernists, which are advocating a more communicative approach, state that the world is becoming more complex. Technological developments made the world smaller in terms of time-space convergence, which makes local problems of global problems (De Roo, 2007). The complexity theory underlines the fact that due to more interrelated communication and connectivity, small changes from outside the system can have a major influence on other systems. This complexity makes spatial problems not anymore solely approachable by a spatial planning approach, but becomes also approachable from other perspectives such as societal and governance factors. In other words, the approach towards spatial problems from a postmodernist view is changing from a reductionist approach during the modernist times, in where only parts of a problem were investigated, towards a holistic approach where the emphasis is on the whole problem. This pluralistic view on the world, in which there are a lot of actors operating, where power is asymmetrically divided and complexity has increased, resulted in the communicative rationale approach.

The communicative rationale approach has some distinguishing characteristics. As mentioned before, it believes that the world is too complex and uncertain to only use the scientific rationale. Also, the approach is emphasizing the pluralistic character of the contemporary world.

Lane (2006) describes the communicative paradigm in relation with participation as followed. First, the recognition of planning as a political activity underlines the political character of planning. This demands an active role for public participation in planning. Second, the assumption of the pluralistic society is dominant, while the previous thought of a society was based on an unitary society. This resulted in the recognition of competing,

(22)

varied and contradictory interests of individual citizens. Third and finally, the contemporary era sees the function of participation as a crucial element of planning and decision-making.

Summarized, the importance of public participation in planning activities from a philosophical point of view is clear. While the paradigm of planning shifted from a technical rationale approach until the ´70s, which was mainly based on control and certainty, the contemporary paradigm communicative rationality is based on complexity, uncertainty and has a view on society which emphasizes plurality.

Administrative and societal changes in the Netherlands

Besides the two theoretical reasons of participation, the necessity of participation as a democratic process and the paradigm shift in planning towards the communicative rationale, there is another practical reason of the actuality of participation in the Netherlands. As mentioned by an annotation of the Dutch government (Wetenschappelijke Raad voor

Regeringsbeleid, 2013) there are mainly practical reasons for the actuality of participation.

These practical reasons can be divided in societal and administrative reasons. It seems to be that both reasons have quite a big practical influence on the actuality of participation. It is also necessary to state that both reasons are complementary: societal changes are influencing administrative changes and vice versa.

Societal context

From a societal point of view, the Dutch society has changed in the last decades. But there are three important societal changes which are central to the current actuality of participation: The increase of empowerment, the decrease of the Welfare State and a fragmented society. The first one is the increase of empowerment. According to the WRR, the expertise and knowledge of the modern civil servants is not anymore better than the expertise and knowledge of the society. The education level of the Dutch society has increased enormously since the Second World War, making citizens more capable of solving issues which were previous solved by civil servants. The modern citizen does not simply believe the civil servant anymore and does not take public decisions made by governmental authorities for granted. This shift of knowledge of expertise becomes clear in the concept of the ‘civil society’. Concepts such as these show that the empowerment of citizens have increased with increasing organizing capabilities. Also the access to social media and other virtual forums show that the ties between the governmental authorities and the citizens become smaller. From physical communities to virtual communities (WRR, 2013).

The second reason in the societal context is the decrease of the expenditures to the Welfare State. Due to the existence of the Welfare State, the expenditures of governmental authorities were gigantic. The Dutch translation Verzorgingsstaat, which can be translated as the ‘take-care-of-state’, also shows better that the governmental authorities will take care of the citizen, which creates a certain attitude of expectations from the governmental authorities (e.g. the spectator democracy). The contemporary retrenchment of the Welfare State leads to less budgetary maneuverability (De verzorgingsstaat heroverwogen, 2014) and will rely therefore more on participation of citizens. The gap which is existing has to be filled in by another actor. In a sense this can be compared with the famous article of Kisby (2010),

The big society: power to the people?, in which Kisby criticizes the concept ‘Big Society’ in the

United Kingdom. Kisby states that the government should not put core responsibilities of public tasks to communities, because some tasks cannot be adequately picked up by communities due to their lack of monetary resources. Kisby addresses here an ethical core of

(23)

participation. He shows that the Welfare State has reached its limits and is redistributing tasks under the name of participation. As mentioned before, Sheng (2010) states the locus of power determines if there is solid participation and involvement. If the governmental authorities are decreasing their expenditures to public tasks, it is not a fair game to outsource public tasks to a monetary less able actor, such as the citizen. Organized support for empowering communities to take over public tasks should therefore be a priority in public participation.

Also the fact that the individualization of the society produces more marginal groups, will reinforce the necessity of participation and involvement.

Administrative context

Kisby stated that participation can sometimes be a result of the outsourcing of public tasks from governmental authorities towards the citizens. This is not only the case for the United Kingdom but also to some extent to the Netherlands, due to recent administrative changes in the Dutch politics. These administrative changes will be elaborated here. It has to be noted that these administrative changes all relate and reinforce another, they are not stand-alone administrative changes. Decentralization influences the process of scaling due to the fact that municipalities will get more tasks and responsibilities with less manpower and expertise. This will result in merging municipalities, a process also known as scaling.

Decentralization , scaling and budget cuts

The decentralization process in the Netherlands is a result of the centralizing welfare state process. For years, the Dutch government had the philosophy of taking control of anything. The central state became, especially in the ‘70s of the previous century, the caretaker and the responsible actor of all public tasks. This resulted in extraordinary costs and made the welfare state too expensive. Unemployment and national debts became a clear result of the extraordinary costs. The Lubbers administration (1982-1994) was the first administration which took care of this uncontrolled growth of costs. One of the main approaches of bringing these costs in control was by decentralizing public tasks to lower governmental levels. Several subsequent administrations used decentralization as an effective retrenchment. As mentioned already at the societal context, budget problems were the base for the out of control growth of the welfare state. But, not only budgetary measures were taken. Also a delegation of tasks was downscaled from a central government level towards a municipal level. This process is called decentralization.

The decentralization of the past decade has caused major changes in the administrative landscape on a local level. One of the most visible administrative changes which followed in the Netherlands was that a lot of municipalities were merging due to the fact that municipalities were getting more tasks and more responsibilities from the central government. A study can be dedicated to this phenomenon, but De Roo (2007) mentions that there are two major problems with the decentralization. He states that the key to success of decentralization is in the relation between knowledge, attitude and behavior. Without these variables, it will be hard to succeed the decentralization process. This proportion is also often the problem in decentralization processes (Hut, 1999). Decentralizing tendencies are top-down processes from the central government towards the municipalities. But one of the major problems of decentralization is the fact that the public tasks the central government is outsourcing to the municipality, is the inability of municipalities to take over these tasks. De Roo (2007) goes further into detail by stating that

(24)

two variables define the earlier mentioned relation between knowledge, attitude and behavior. These two variables are known as competency and preparedness and define the success of decentralization processes. Competency can be defined as the ability to have sufficient resources, while preparedness can be defined as the ability of sufficient knowledge and skills.

Most of the municipalities are not competent and prepared for more tasks and responsibilities. A report written by the union of Dutch municipalities raised concerns over the newest round of decentralization (Drie decentralisaties, 2013). Budgetary problems, the lack of expertise and manpower are clear arguments which draw concerns about the effectiveness of decentralization.

Concluding, it is acceptable to state that a certain paradox is emerging at the local administrative scale. At one hand the municipalities are getting more responsibilities and more public tasks at their turf while at the other hand their operational possibilities are less, due to less budget, less manpower and less expertise for issues which are asking for competence and capability. This paradox will ask for other parties to assist, consult or adopt in spatial issues. In the spatial administrative domain this means that participation will become a prerequisite in order to execute proper administration.

Summarized, participation has become more important than it was before. Participation is not a new thing, but a new approach to spatial issues.

As discussed, participation and involvement is a democratic right. Arnstein set the scene in academic writing about participation. She created the well-known participation ladder, and distinguishes participation by real participation, non-participation and symbolic participation. Sheng expands this model by the locus of power. According to Sheng, real participation only occurs when

Now that participation and involvement are elaborated, it becomes clear that there is room for new participation initiatives. Transcending spatial issues are not satisfied anymore by only governmental authorities. A government with less power but more responsibilities will result in more space for participation. Also the willingness for citizens to participate in projects which are influencing their daily lives is important as well. Participation can therefore been seen in the context of necessity by municipalities and willingness by citizens. These two pillars are the prerequisite for solid participation, and nowadays these two pillars have increased. This is expressed by the frequency of participation and involvement initiatives in the Netherlands by municipalities throughout the Netherlands.

Participation and involvement initiatives in the Netherlands

As summarized in the previous paragraph, the contemporary importance of participation and involvement in development projects is being supported by three main tendencies which are central in the contemporary society. The window of opportunity for participation initiatives has never been so wide as it is now, but might be closing again when monetary issues are resolved. In the search for the ‘holy grail of participation’, participation and involvement initiatives are being started at all scales throughout the Netherlands. A clear outcome of the exploratory interviews highlighted the ‘experimenting tendency’ which is now playing in a majority of the Dutch municipalities.

One of these experiments is the Do-it-yourself democracy. A recent official report from the Dutch central government (Kabinetsnota doe-democratie) acknowledged the importance the central government is giving to participation. The government wants to catch this importance in the definition of the Do-it-Yourself democracy. This official report

(25)

focuses on the role of the government in the process of societal initiatives and social entrepreneurialism. According to this official report, the role of the government should change from ‘taking care of’ towards ‘taking care to’. It should only create and set certain conditions and let the market and the civil society create solutions. It embraces especially the ascending role of the local government, because most participatory initiatives derive from local initiatives. The conditions the local government should create are twofold. First, it should take care of the bureaucratic rules which could block bottom-up initiatives. Second, the government should connect more to local initiatives and create governance space for it (De Doe Democratie, 2013).

This view embraces the idea of the government as a partner instead of its previous role as an director and creates space and opportunities for new participatory initiatives. Another experiment is co-production. This is the philosophy in which governmental authorities are partnering with the civil society. The civil society is not only consulting the governmental authorities, but is also prioritizing the agenda. The idea of co-production followed after the lack of trust in the local government. Prioritizing agenda setting and listening to the society is the key of this approach. The acknowledgement of horizontal relations between the market, the governmental authorities and the civil society are resulting in these kind of partnerships. In practice, co-production is mainly between governmental authorities and the civil society.

Summary

Although the framework for participation and involvement is widening due to the previously mentioned tendencies in the Dutch society, and participation initiatives are being implemented at all governmental scales, it lacks the contractual commitment. As being elaborated later on in the results chapter, interviewees indicated that one of the hardest parts of participation is that it lacks a legal commitment of the participants. Participation is mainly localized in a ‘grey area’ in which commitments of both parties are not legally binding and open-ended. Manifests and covenants with good intentions can be seen as contracts, but lack legal commitment. Commitment from citizens is mainly based on trust and symbolic promises, instead of being legally agreed in a sort of agreement. Housing associations for example are having a hard time to get to a mutual, trust-based, agreement in which actions from both parties are described. The non-committed character of these trust based agreements can therefore be a major problem. Also, due to experiences in previous projects in the Netherlands, the participants in development projects are mainly the ‘usual suspects’ who are always participating in projects and are therefore not representative for the citizens who are confronted with the development project.

It is therefore of high importance that in a time where the power of the government decreases, in which it has less manpower and monetary options and where societal changes are demanding a more participatory attitude from citizens, that a participation initiative gets a legal meaning. A very promising tool which can address these problems, is the Community Benefits Agreement. This contract can give agreements a legal position and makes participation and involvement therefore not a non-committed issue, but it will reason from agreements which are included in a contract. This legally enforceable agreement, agreed through a deliberative negotiation process, forces the developer as well as the coalition of community organizations to stick to its promises (Van der Veen, 2014). In the next chapter the concept of the CBA will be elaborated.