Lower East Side Joint Planning Council v. New York City Board of Estimate

Murphy, P.J., dissents in a memorandum as follows:

For the following reasons, the judgment should be reversed and the petition should be granted declaring the Board of Estimate’s final vote in this matter to be a nullity. First, the board did not have legislative authority to amend the amended plan approved by the City Planning Commission. Subdivision 3 of section 505 of the General Municipal Law, the controlling statute, does not give the board the right to amend a plan approved by the commission. The board must accept or reject a plan in toto. Second, even if it were assumed that the board had authority to make minor modifications in the amended plan, the amendment under discussion was of major proportions. It should be stressed that petitioner Chong and others with top priority in obtaining low income and moderate housing under the amended plan were divested of those rights by the subject amendment creating housing for the elderly. For Chong and those similarly situated, this amendment by the board was not minor. Third, the board’s resolution approving the amendment to the amended plan was a nullity since the measure was not approved by three fourths of all votes entitled to be cast (New York City Charter, §62, subd c). Fourth, the general public was never given an opportunity to be heard on the amendment because the borough president introduced it after public discussion had been terminated (New York City Charter, § 62, subd c).