Brooklyn Heights Ass'n v. Macchiarola

OPINION OF THE COURT

COPERTINO, J.

The question before us is whether the New York City Districting Commission violated the requirements of the New York City Charter in promulgating a redistricting plan with respect to Districts 33, 38, and 1, by failing to satisfy the mandate that "[district lines shall keep intact neighborhoods and communities with established ties of common interest and association”. (NY City Charter § 52 [1] [c].) This question must be answered in the affirmative.

In the November 1989 election, the people of the City of New York approved a new City Charter, which provided for an expanded City Council of 51 members (see, NY City Charter § 22). In order to create new City Council districts, the Charter established a Districting Commission (hereinafter the Commission) which was to complete its task before the 1991 general election (see, NY City Charter §§ 50, 51, 1152 [d] [11]). Under New York City Charter § 52, the Commission was given several criteria for creating districts. Those criteria are as follows:

"1. In the preparation of its plan for dividing the city into districts for the election of council members, the commission shall apply the criteria set forth in the following paragraphs to the maximum extent practicable. The following paragraphs shall be applied and given priority in the order in which they are listed.

"a. The difference in population between the least populous and the most populous districts shall not exceed ten percentum (10%) of the average population for all districts, according to figures available from the most recent decennial census. Any such differences in population must be justified by the other criteria set forth in this section.

"b. Such districting plan shall be established in a manner that ensures the fair and effective representation of the racial and language minority groups in New York city which are protected by the United States voting rights act of nineteen hundred sixty-five, as amended.

"c. District lines shall keep intact neighborhoods and communities with established ties of common interest and association, whether historical, racial, economic, ethnic, religious or other.

"d. Each district shall be compact and shall be no more than twice as long as it is wide.

"e. A district shall not cross borough or county boundaries, "f. Districts shall not be drawn for the purpose of separating geographic concentrations of voters enrolled in the same political party into two or more districts in order to diminish the effective representation of such voters.

"g. The districting plan shall be established in a manner that minimizes the sum of the length of the boundaries of all of the districts included in the plan.

"2. Each district shall be contiguous, and whenever a part of a district is separated from the rest of the district by a body of water, there shall be a connection by a bridge, a tunnel, a tramway or by regular ferry service.

"3. If any district includes territory in two boroughs, then no other district may also include territory from the same two boroughs” (NY City Charter § 52; emphasis supplied).

In creating District 38 in Brooklyn, the Commission was desirous of creating a district with a majority of "Latinos” centered in the Red Hook and Sunset Park neighborhoods in order to satisfy New York City Charter § 52 (1) (b), requiring "the fair and effective representation of the racial and language minority groups in New York city”. However, there was an insufficient number of Latinos in the Sunset Park and Red Hook areas to form a majority. There was an additional group of Latinos in a nearby neighborhood, which if annexed to the Sunset Park and Red Hook areas, would make the Latinos a majority, but it was not contiguous with the Sunset Park and Red Hook areas as required by New York City Charter § 52 (2). The Commission therefore created a land bridge between the two communities in order to satisfy both criteria (NY City Charter § 52 [1] [b]; [2]).

The land bridge consisted primarily of census tabulation block 105, which runs along the Brooklyn waterfront from the Brooklyn Battery Tunnel to Old Fulton Street. Following a policy of not splitting census blocks, the Commission annexed all of census tabulation block 105 to District 38.

In addition, there are six Port Authority piers attached to the Brooklyn waterfront in the northern part of census tabulation block 105 (hereinafter Piers 1 to 6). Rather than include these piers in the newly created District 38, or for that matter in any Brooklyn district, the Commission placed them in District 1 in Manhattan. The Commission’s stated reason for placing the piers in Manhattan was a "technical matter”. The Commission stated that it did not discuss the matter of the piers, or consider the option of locating the piers in Brooklyn. The Commission stated that since the piers were actually part of New York County (see, Administrative Code of City of NY § 2-202 [1], [3]), the computer which drew the district lines, absent instructions to do otherwise, simply followed county boundaries.

The petitioners, a group of Brooklyn Heights residents and civic organizations, commenced this CPLR article 78 proceeding challenging the district lines claiming that a portion of census tabulation block 105 and Piers 1 to 6 were part of their neighborhood, and that by failing to include these two areas in District 33, the Commission violated New York City Charter § 52 (1) (c) by failing to keep their neighborhood intact. The Supreme Court found that the Commission’s decision not to split census tabulation block 105 was arbitrary and capricious.

Under New York City Charter § 52 (1), the Commission was required to apply several criteria to the maximum extent possible and give preference according to the order in which those criteria were listed. The third criterion under New York City Charter §52 (1) is to keep neighborhoods intact. The petitioners’ proof clearly established that the relevant portion of census tabulation block 105 has historically been considered a part of the Brooklyn Heights neighborhood. They further demonstrated their present effort to develop the waterfront and piers into useful public space, to which thousands of volunteer hours and dollars have already been devoted. Since the splitting of census tabulation block 105 would not have hampered the Commission’s desire to create a Latino district, or violated any of the other districting criteria, the Commission failed to implement New York City Charter § 52 (1) (c) to the maximum extent possible (see, Broad Channel Civic Assocs. v New York City Districting Commn., Sup Ct, NY County, Aug. 15, 1991, Evans, J., index No. 18756/91).

Our dissenting colleagues, relying on Matter of Wolpoff v Cuomo (80 NY2d 70), urge that we must nevertheless uphold the Commission’s decision because the petitioners failed to establish " 'beyond reasonable doubt’ ” that the subject area was part of the Brooklyn Heights neighborhood in 1990. However, this strict standard of review is not appropriate here. The petitioners are not making a constitutional challenge to a legislatively enacted statutory redistricting scheme, nor do they argue that the plan does not "substantially comply” with the mandates of the Federal or State Constitutions. Nor do they contend that there was anything improper about the Commission’s decision to use census tabulation block 105 to form a contiguous Latino-majority district under the City Charter. They claim only that the incidental determination of the Commission in refusing to split block 105 was unnecessary to the creation or maintenance of any other district, and violated an interest in keeping neighborhoods intact, which interest is recognized in the City Charter.

We also reject as unpersuasive the Commission’s argument that it was not permitted to split census tabulation blocks based on the Charter’s provision that it: "shall utilize the final count results of the [1990] census” (NY City Charter § 1152 [d] [11] [b]). The stated provision makes no mention of census tabulation blocks. Inasmuch as the Charter is clear that the criteria to be followed were those contained in New York City Charter § 52, any interpretation by the Commission of New York City Charter § 1152 (d) (11) (b) must be secondary to interpretation of the former criteria. Further, we disagree with the dissenters’ contention that pursuant to case law, census blocks are inviolate absent further involvement of the Federal Bureau of the Census. Certainly, redistricting must be founded on Federal census figures (Seaman v Fedourich, 16 NY2d 94, 104). We do not dispute the fact that keeping census tabulation blocks intact is preferable when district voting lines are drawn, but that is because they are the smallest geographic unit used by the Federal Bureau of the Census and, as a result, splitting them can result in the use of unacceptable estimates by those charged with drawing district lines (see, Seaman v Fedourich, supra; Chonigman v County of Westchester, 192 AD2d 499). Thus, the underlying mandate is the use of reliable population figures as established by the Federal census, not maintaining the integrity of the blocks qua blocks (see also, Honig v Rensselaer County Legislature, 37 AD2d 658, affd 29 NY2d 630; Thayer v Garraghan, 28 AD2d 584, 29 AD2d 825, affd 21 NY2d 881).

In the present case the 1990 Federal census reported a total of 47 people in census tabulation block 105, which is the only block involved in this proceeding. Consequently, splitting this census tabulation block could result in a deviation of population equality from one district to another of no more than those 47 persons. It has been clearly recognized that minor deviations — defined generally as those under 10% — are permissible if necessary to allow government to pursue other legitimate objectives (Brown v Thomson, 462 US 835, 842). It cannot seriously be argued that a potential variance resulting from splitting census tabulation block 105 will be anything but de minimis, nor can it be asserted that the City Charter mandate of preserving neighborhood integrity is not the sort of "legitimate objective” envisioned by the United States Supreme Court. Accordingly, we conclude that under the facts of this case the decision not to split census tabulation block 105 served no real purpose and did not implicate the concerns underlying the general policy of not splitting census blocks (see also, Abate v Mundt, 25 NY2d 309, affd 403 US 182). This case is thus distinguishable from Chonigman v County of Westchester (supra). There, the County of Westchester estimated population in more than just a single block in drawing legislative districts and, more importantly, the Federal census figures themselves were not advanced as clear proof that the impact of splitting a census block would be absolutely minimal.

We also agree with the Supreme Court that the Commission’s placement of Port Authority Piers 1 to 6 in Manhattan District 1, rather than District 33, was arbitrary and capricious. As mentioned, the Commission’s sole justification for placing the piers in a Manhattan district was simply to follow county boundaries. The petitioners introduced proof that piers jutting into the East River have historically been considered part of the Brooklyn Heights neighborhood. While the record contains some contrary historical evidence regarding the connection of the piers to Manhattan — specifically, that the geographic boundary between New York and Kings County has been defined as the "low-water mark on the shore of Long Island” (Administrative Code § 2-202 [1], [3]; but see, Udall v Trustees of Brooklyn, 19 Johns 175; Stryker v Mayor of City of N. Y., 19 Johns 179) — we find that this proof had little to do with the work of the Commission. As is indicated by the Commission’s statement regarding its reason for placing the piers in District 1, this particular county boundary was accorded no sociological, political, or economic significance in the redistricting process. Thus, in giving more weight to the preservation of county boundaries than to keeping a Brooklyn neighborhood intact, the Commission failed to give the City Charter criteria the proper priority (see, NY City Charter § 52 [1]).

Since the Commission is no longer in existence, we do not believe that remanding this matter to the Commission is warranted (cf., Matter of Association of Secretaries v Office of Ct. Admin., 75 NY2d 460, 475-477; Incorporated Vil. of Great Neck Plaza v Nassau County Rent Guidelines Bd., 60 AD2d 593, 594; Burke’s Auto Body v Ameruso, 113 AD2d 198, 200-201). Moreover, we agree with the Supreme Court that section 5 of the Voting Rights Act of 1965 (42 USC § 1973c) does not require preclearance of the court-ordered changes in the district lines. State courts have the power to decide, as a collateral matter, whether section 5 applies to contemplated changes in election procedures (see, Hathorn v Lovorn, 457 US 255), and we agree with the Supreme Court that since the disputed area is virtually unpopulated, no voting rights would be affected.

In view of the foregoing, the judgment appealed from is affirmed.