Lai Chun Chan Jin v. Board of Estimate

92 A.D.2d 218, 460 N.Y.S.2d 28, 1983 N.Y. App. Div. LEXIS 16609
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 10, 1983
StatusPublished
Cited by8 cases

This text of 92 A.D.2d 218 (Lai Chun Chan Jin v. Board of Estimate) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lai Chun Chan Jin v. Board of Estimate, 92 A.D.2d 218, 460 N.Y.S.2d 28, 1983 N.Y. App. Div. LEXIS 16609 (N.Y. Ct. App. 1983).

Opinion

OPINION OF THE COURT

Bloom, J.

This proceeding involves an application by petitioners to invalidate the amendment of the zoning resolution to create a new Special Manhattan Bridge District, the amendment of the zoning map to reflect the change and the issuance of a special permit to Overseas Chinese Development Corporation, Inc. (OCD). Special Term granted the application holding that the regulations adopted by the City Planning Commission (CPC) to implement section 19,7-c of the New York City Charter known as the Uniform Land Use Review Procedure (ULURP) were unconstitutional as violative of the due process clause of the Federal Constitution for two reasons: first, the publication of actions designed to effect the changes in question was published in obscure city publications which failed to provide notice to those entitled thereto; and, secondly, the publication in English to a community which is basically Chinese speaking is inadequate on its face. We disagree. Accordingly, we reverse. For reasons hereinafter stated we remand the matter back to the appropriate city authorities for further consideration of the permit hitherto issued to OCD.

In 1975 the Charter Revision Commission proposed amendment of the New York City Charter to provide greater participation by local communities in the development and use of land. It suggested augmenting the powers of community boards, requiring that they shall be the initial bodies to take action on land use applications affecting their districts, and providing for mandatory hearings before them. Their recommendation, which was adopted by the city electorate at the November, 1975 general election is embodied in section 197-c of the City Charter. Pursuant to the mandate of subdivision g of that section the City Planning Commission adopted guidelines which are here the subject of attack. These provide (§ 4.030) that notice of the time, place and subject of a public hearing before a local board shall be given in the following manner:

[220]*220“(a) for all actions subject to this land use review procedure, by publication in The City Record for 10 days of publication immediately preceding and including the date of hearing;
“(b) for all actions, by publication in an issue of the Comprehensive City Planning Calendar distributed not less than 10 calendar days prior to the hearing”.

With this as background we turn to the fact situation which gave rise to the conflict now before us. In September, 1979 the CPC published a study addressed to the residential and commercial needs of the Chinatown district of Manhattan. It noted the overcrowded conditions of tenements and the lack of open space consequent upon the concentration of attached tenement housing. It also noted the lack of new construction which resulted from the density regulations contained in existing zoning regulations that required that construction to replace existing units would have to contain fewer units than those torn down. In the aftermath of publication of the study OCD, I which owned a plot fronting on Henry and Madison Streets I and lying between Catherine and Market Streets and I which was desirous of erecting a project known as East- I West Towers, applied for a rezoning of the property owned I by it. After study and consideration CPC rejected the I application. I

Following consideration of the study the Department of I City Planning drafted a proposal setting up a Special I Manhattan Bridge District (SMBD). Its intent was to ere- I ate a new special zoning district which would preserve the I residential character of the neighborhood, provide an in- I centive for the creation of new community facilities, en- I courage an income mix among residents of a new project to I be erected and promote the rehabilitation and improve- I ment of existing older housing stock. I

In accordance with the requirements of section 197-c of I the New York City Charter the proposal of the Department I of City Planning was submitted to the affected local com- I munity board, Community Board #3 (CB 3) and to the CPC I for comments and suggestions. Thereupon the CPC drafted I a proposed zoning map change to reflect the changes I [221]*221wrought by the amendment to the zoning resolution suggested by the Department of City Planning.

On January 30, 1981 OCD submitted an application to CPC for a permit under the proposed zoning change creating the SMBD. On March 30, 1981 the zoning map change and the special permit application were certified as complete, as required by ULURP guidelines and forwarded to CB 3. After publication in the City Record and the Comprehensive City Planning Calendar as required by section 4.030 of the ULURP guidelines, CB 3 held a public meeting on April 28,1981. Following consideration of the proposals CB 3 approved the zoning map amendment and the special permit application by substantial margins.

On May 20,1981 CPC scheduled a public hearing on the zoning map change and the special permit application for June 3,1981. In addition, and as required by section 200 of the City Charter, CPC proposed that the zoning resolution be 'amended to provide for the Special Manhattan Bridge District,and scheduled a public hearing on the proposal for June 3,1981, the same day as the scheduled hearing on the proposed map change and the proposed special permit. Notice was published in the City Record and the Comprehensive City Planning Calendar in accordance with section 4.030 of the ULURP guidelines. The public hearing was held on the specified day. OCD and three community organizations appeared and spoke in favor of all proposals. No one appeared in opposition, and the resolutions approving the zoning map changes, the amendment of the zoning resolution and the special permit were adopted. On June 26, 1981 the resolutions and reports of the CPC on the three matters before it were filed with the Board of Estimate.

Initially, the Board of Estimate scheduled a public hearing on the action of CPC for July 23, 1981. Notice of the hearing was published as required by law. However, on that day the matter was laid over to August 20, 1981. On August 20, after a public hearing, the Board of Estimate by separate resolutions, approved creation of the SMBD, the zoning map changes and the granting of the special permit to OCD.

[222]*222On December 21, 1981 petitioners brought an application pursuant to CPLR article 78 seeking annulment of the resolutions of the Board of Estimate. Respondents contended that the action sought to be annulled was legislative in nature and was not subject to review in an article 78 proceeding. It also cross-moved to adjourn the matter on the ground that an inquiry conducted by the Department of I Investigation had unearthed proof that OCD had sue- I ceeded in the removal of tenants in the buildings to be I demolished, some of whom are petitioners in the current I proceeding, by harassment and intimidation and that the I respondents desired to consider further the special permit I theretofore granted to OCD for the purpose of determining I whether it should be withdrawn. Special Term agreed that I an article 78 proceeding was not the proper vehicle for I determination of the issues. However, it concluded that I inasmuch as all the interested parties were before the I court and the sole issue posed by petitioners was a chal- I lenge to the constitutionality of legislative action it was I appropriate, under CPLR 103 (subd [c]) to treat the appli- I cation as one for declaratory relief, citing Matter ofKovar- I sky v Housing & Dev.

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Bluebook (online)
92 A.D.2d 218, 460 N.Y.S.2d 28, 1983 N.Y. App. Div. LEXIS 16609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lai-chun-chan-jin-v-board-of-estimate-nyappdiv-1983.