Asian Americans for Equality v. Koch (128 A.D.2d 99, 1987)

OPINION OF THE COURT

Ross, J.

In this matter we are presented with the issue of whether the City of New York properly exercised its zoning power in creating the Special Manhattan Bridge District, which is located in the Chinatown area, in view of the allegation that the city did not affirmatively order the construction of dwelling units for low- and moderate-income persons.

Since New York City is a political subdivision of the State of New York, it only possesses those governmental powers delegated to it by the State (NY Const, art IX, §§ 1, 2). Zoning is one of these delegated powers, and the city "must find its source in [an] enabling act of the Legislature” (Matter of Barker v Switzer, 209 App Div 151, 153 [1924], appeal dismissed 238 NY 624 [1924]).

New York State General City Law § 20 (24) and (25), set forth the permissible objectives of the zoning power of cities, outlines the types of regulation which may be promulgated, and imposes some specific limitations on the exercise of the power. Incidentally, "[t]he first zoning ordinance in the United States was the Zoning Resolution of the City of New York adopted in July 1916” (1 Rathkopf, Zoning and Planning § 1.01, at 1-6 [4th ed 1984]). This first zoning ordinance resulted from an intensive six-year study, and was intended to, inter alia, insure the public health and safety by a planned development of the City of New York (1 Metzenbaum, Zoning, at 7 [2d ed 1955]).

Chief Judge Cardozo observed in a concurring opinion in Adler v Deegan (251 NY 467, 485 [1929], remittitur amended 252 NY 615 [1930]), "[a] zoning resolution in many of its features is distinctively a city affair, a concern of the locality, affecting, as it does, the density of population, the growth of city life, and the course of city values”.

A zoning ordinance, like any other legislative enactment, is "invested with an exceedingly strong presumption of constitutionality” (Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, 65 [1979]).

The Court of Appeals held in Rodgers v Village of Tarry-town (302 NY 115, 121 [1951]) that: "[the] decision as to how a community shall be zoned or rezoned, as to how various properties shall be classified or reclassified, rests with the local legislative body; its judgment and determination will be conclusive, beyond interference from the courts, unless shown to be arbitrary, and the burden of establishing such arbitrariness is imposed upon him who asserts it. In that connection, we recently said (Shepard v. Village of Skaneateles, 300 NY 115, 118): 'Upon parties who attack an ordinance * * * rests the burden of showing that the regulation assailed is not justified under the police power of the state by any reasonable interpretation of the facts’ The continuing vitality of the decision in Rodgers v Village of Tarrytown (supra) is evidenced by its citation as authority by a 1984 unanimous opinion of the Court of Appeals (Cummings v Town Bd. (62 NY2d 833, 834 [1984]).

The New York City Planning Commission (Planning Commission), in September 1979, published the Manhattan Bridge Area Study. This study was based upon a detailed examination of the Chinatown area of Manhattan. Due to the specialized character of Chinatown, the study had been conducted from the point of view of land use planning, and it concentrated on the commercial and residential needs of that area.

The Chairman of the Planning Commission and Director of City Planning (Chairman), in an affidavit, dated November 1, 1983, which appears in the record before this court, states, in pertinent part:

"The study found that with a continuing influx of Chinese immigrants, the old tenements of Chinatown were severely overcrowded. Because of the concentration of attached tenement housing, open space in Chinatown was found to be almost nonexistent * * *

"The study also discovered that there was little new construction of housing within Chinatown. A major reason for this lack of new construction was that the existing density of Chinatown tenements was substantially higher than the density permitted under the existing zoning regulations. Consequently, any new construction which would replace obsolete old tenements could not provide an equal number of dwelling units”.

In response to the study’s findings of a critical housing shortage in Chinatown, the Planning Commission proposed zoning amendments, which, if adopted, would result in the creation of a Special District (District) within the Manhattan Bridge area.

Before the Planning Commission made this proposal for the establishment of the District, extensive research and analysis had been undertaken by the Department of City Planning of the City of New York, in conjunction with urban planners, architects, and engineers. We note the amount of expert assisted planning that went into developing the Planning Commission’s proposal, since the use by a planning agency of expert assistance is evidence that a proposed zoning change "was the result of comprehensive planning” (Goodrich v Town of Southampton, 39 NY2d 1008, 1009 [1976]).

This proposed District consisted of an area 14 to 20 blocks in size. In substance, the District was generally bounded west of the Manhattan Bridge by Monroe and Madison Streets, St. James Place, Oliver Street and the Manhattan Bridge, and bounded east of the Manhattan Bridge by Henry, Pike and Canal Streets, and the Manhattan Bridge. However, the area south of Monroe and Madison Streets and west of St. James Place was not included, since that area is presently developed with public or publicly assisted housing. Moreover, the area north of Henry Street and west of the Manhattan Bridge was also not included in the District, in view of the fact that it is an area of commercial development. We note from our examination of the map of the District, which is contained in the record, that Pike and Canal Streets are major avenues and form a natural district boundary.

The Planning Commission’s proposal to establish the District includes regulations for its administration. These District regulations were tailored to accomplish such goals as preserving the residential character of the Chinatown community, permitting new construction within the area which is sensitive to the existing urban design character of the neighborhood, providing an incentive for a mixture of income groups, encouraging development of new community facility space, promoting the rehabilitation of the existing older housing stock in the area, causing minimal residential relocation, and facilitating housing accommodations for residents close to their places of employment in Chinatown.

Furthermore, the Chairman of the Planning Commission, in his affidavit mentioned supra, stated:

"[Significantly, the District regulations are designed to result in a balance of income groups into the Chinatown community * * * In drafting the District regulations, the City Planning Commission believed it important to provide a wide range of housing opportunities within the area, so as to encourage the retention of moderate and upper income residents. The presence of these residents would further economic integration of the neighborhood, and would benefit all sectors of the community * * *

"At the same time, the * * * Planning Commission recognized that the majority of the area residents are low income people, and realized that the wholesale redevelopment of the area’s housing stock would deprive these people of the limited housing opportunities still available to them. Therefore, the District regulations were drafted to provide for development that is infill in nature; that is, limited to vacant or substantially vacant sites, rather than redevelopment-oriented”.

Further, the District regulations particularly insured that housing construction, which involved greater density than was usually allowable, proceeded in a controlled fashion, which would be responsive to community needs. The mechanism in the regulations that provided the required control was the discretionary power to issue special permits, which to become effective needed the approval of the Planning Commission, as well as the Board of Estimate. Pursuant to the terms of the regulations, in order to qualify for a special permit, an applicant had to demonstrate to the Planning Commission that certain specified conditions, which were spelled out in the regulations, and which will be discussed infra, had been satisfied.

Before taking formal action on the District proposal and its regulations, the Planning Commission held a public hearing on June 3, 1981. Representatives of local community groups from the District, among others, participated in that public hearing, and they expressed support for the creation of the District. Incidentally, our review of the record indicates that no one appeared at that public hearing in opposition to the proposal.

Thereafter, on June 22, 1981, the Planning Commission adopted resolutions: (1) to amend the 1961 New York City Zoning Resolution (Zoning Resolution) to establish the District; and (2) to amend the zoning map to reflect the District boundaries, which were discussed supra. Our examination of the subject amendment to the Zoning Resolution indicates the District had been named the Special Manhattan Bridge District (SMBD), and the proposed regulations of the District, discussed supra, were a part of the adopted amendment (note: since the District regulations are part of the amendment, discussed supra, these regulations will henceforth be referred to as District amendments).

Following the Planning Commission’s favorable action, the question of whether to create the District was referred for consideration to the Board of Estimate, pursuant to section 200 (a) (2) of the New York City Charter (Charter), which grants the Board the power to approve, disapprove, or modify the amendments.

After notice of hearing, pursuant to section 197-c of the Charter, a public hearing was conducted by the Board of Estimate, and, on August 20, 1981, the Board of Estimate approved the subject amendments to the Zoning Resolution and to the zoning map.

Several key District zoning amendments permit an increase, within the district, in the basic floor area ratio (F.A.R.) from 3.4 to a maximum of 7.5 (see, SMBD zoning amendments 116-10, 116-11, 116-12, 116-21). The F.A.R. expresses the relationship between the amount of floor area allowed in a building and the area of the lot on which the building stands. Thus, developers, who construct new housing in the District, may be allowed pursuant to special permit, to increase the amount of the permissible F.A.R., if they in turn provide any one, or a combination, of the following three bonus amenities to the community: (1) space for community facilities, which the amendments define as senior citizens centers, day care facilities, educational facilities, or a combination of them; (2) dwelling units for low- and moderate-income families; and (3) rehabilitation of existing substandard housing (see, SMBD zoning amendments 116-01, 116-11, 116-12, 116-20, 116-21).

In order to accommodate the increased floor area permitted by the aforecited provisions, SMBD zoning amendment 116.05 provides, in pertinent part, "the [Planning] Commission may waive the basic height and setback regulations for those developments which comply with [zoning amendment] 116-10 (Special Floor Area Bonus Provisions) and [zoning amendment] 116-20 (Special Floor Area Transfer Provisions), provided that the [Planning] Commission finds that the bulk of the development is distributed in such a way as to minimize any adverse effects of the additional bulk and to reinforce the existing neighborhood scale and character” (emphasis in text). Furthermore, to deal with this increased floor area, SMBD zoning amendment 116-04 provides, in pertinent part: "[T]he [Planning] Commission may [also] modify the basic lot area per room and open space ratio for those developments which comply with [zoning amendments] 116-10 * * * and 116-20 [subject to certain conditions]” (emphasis in text).

We note in passing that the District zoning amendments pertaining to the increased floor area preserve the residential character of Chinatown, while providing an incentive to developers to create new community facilities, low- and moderate-income housing, and the rehabilitation of older housing stock. The Court of Appeals held in Udell v Haas (21 NY2d 463, 469 [1968]) that:

"Underlying the entire concept of zoning is the assumption that zoning can be a vital tool for maintaining a civilized form of existence only if we employ the insights and the learning of the philosopher, the city planner, the economist, and sociologist, the public health expert and all the other professions concerned with urban problems * * *

"The almost universal statutory requirement that zoning conform to a 'well-considered plan’ or 'comprehensive plan’ is a reflection of that view * * * The thought behind the requirement is that consideration must be given to the needs of the community as a whole. In exercising their zoning powers, the local authorities must act for the benefit of the community as a whole following a calm and deliberate consideration of the alternatives, and not because of the whims of either an articulate minority or even majority of the community” (emphasis supplied).

Based upon the standards enunciated in Udell v Haas (supra), we find that these District zoning amendments, pertaining to increased floor area, are evidence that "forethought has been given to the [Chinatown] community’s land use problems” (see, Blumberg v City of Yonkers, 41 AD2d 300, 305 [1973], appeal dismissed 32 NY2d 896 [1973]).

Under SMBD zoning amendment 116-50 (1), a developer’s application for a special permit must "clearly * * * [indicate] that the site is vacant or substantially vacant” as of August 20, 1981, which, as mentioned supra, is the date that the Board of Estimate approved the amendment (emphasis in text). Moreover, SMBD zoning amendment 116-30 (a) and (c) require that, before tenants may be evicted from any building on a substantially vacant site, the applicant shall submit a tenant relocation plan to the New York City Department of Housing Preservation and Development and the affected community board, and such relocation plan shall include an affirmation that "no harassment of tenants has occurred”; and, that provisions have been made to relocate the "tenants in the Special Manhattan Bridge District to the extent possible”.

The Henry Street Partners (HSP) applied to the Planning Commission in December 1981, for a special permit for development and construction of residential units on a site, now used as an open parking lot. The subject site is located at 60 Henry Street, which is within the District. The Planning Commission approved the special permit application of HSP on August 30, 1982, and, thereafter, it was approved by the Board of Estimate on April 14, 1983.

In substance, HSP proposes to construct a 21-story residential building and community facility. When completed, this building will contain approximately 87 condominium units, containing 0 to 4 bedrooms, which will provide housing for upper-middle-income and professional residents of Chinatown, who might otherwise be forced to leave Chinatown, since it appears that there is virtually no housing presently existing in the area, which is available or suitable for their needs. Incidentally, it becomes obvious that the availability of these new apartment units will open up older housing now occupied by upper-middle-income people.

HSP proposes to construct and deed community facility space, including an indoor pool, to the YMCA. The YMCA programs will occupy 15,300 square feet on the ground floor and first cellar level of the building. Membership in the YMCA will be open to all residents of Chinatown or to any other person wishing to join, and the YMCA fees will be based upon the ability to pay. In addition, the project’s plans provide for user access to these facilities by way of a street entrance, and this structural design should facilitate the community’s participation in the YMCA. Further, it is anticipated that the YMCA, inter alia, will provide for adult education seminars, and a day care center, with various preschool programs.

In addition, the ground floor of the HSP apartment building will be partially occupied by private medical offices, which will increase the availability of medical care to the residents of Chinatown.

Moreover, HSP is obligated, if it constructs its project, to contribute $500,000 to subsidize or rehabilitate low-income housing.

Finally, HSP has entered into a restrictive declaration, which runs with the land and binds any subsequent owner of the site. The Chairman of the Planning Commission notes, in his affidavit mentioned supra, that, through the means of this restrictive declaration, "the City [of New York] and the residents of the neighborhood are assured that the Henry Street * * * project as approved will be built under specified restrictions”.

Since 1981, when the District was established, three separate legal actions, including the instant one, have been brought primarily for the purpose of questioning the legality of the District’s creation.

The first such action was commenced approximately four months after the Board of Estimate approved the establishment of the District. The title of and the citation to this action are: Lai Chun Chan Jin v Board of Estimate (115 Misc 2d 774 [Sup Ct, NY County 1982], revd 92 AD2d 218 [1st Dept 1983], affd 62 NY2d 900 [1984]). On December 21, 1981, the Jin petitioners instituted a proceeding, pursuant to CPLR article 78, seeking to annul the amendment to the Zoning Resolution that creates the District, the amendment to the zoning map which reflects the boundaries of the District, and the issuance of a special permit to the Overseas Chinese Development Corporation Inc. (OCD), which allowed OCD to construct a condominium in the District.

In substance, the Jin petitioners alleged in their petition that the Board of Estimate’s approval of the amendment to the Zoning Resolution amendment to the zoning law, and the issuance of a special permit to OCD were void, since the Jin petitioners had allegedly not received adequate notice, in violation of their constitutional rights, of the public hearings held concerning the proposal to create the District. Particularly, the Jin petitioners attacked the notices of the public hearings held by Community Board No. 3 (CB3) and the Planning Commission.

Pursuant to the requirements of section 197-c of the Charter, a proposal of the Department of City Planning to create the District was submitted to the affected local Community Board, which was CB3, and to the Planning Commission for comments and suggestions. Following this submission of the Department of City Planning’s proposal, the Planning Commission drafted amendments to the Zoning Resolution and to the zoning map to implement the proposal.

On January 30, 1981, OCD submitted an application to the Planning Commission for a special permit to construct a project in the proposed District.

Thereafter, on March 30, 1981, as required by the guidelines of the Uniform Land Use Review Procedure (ULURP), this proposed zoning map change and the OCD special permit application were certified as complete, and were forwarded to CB3 for its consideration. After publication of the proposed zoning map change and the OCD application for a special permit in the City Record and the Comprehensive City Planning Calendar, as mandated by the Guidelines of ULURP, CB3 held a public meeting on April 28, 1981. Following discussion of these proposals, CB3 approved the zoning map amendment and the OCD special permit application by substantial margins.

Subsequently, as mentioned supra, on June 3, 1981 the Planning Commission held a public hearing concerning the proposal to create the District and related matters. Exactly as in the case of CB3 public hearing, mentioned supra, prior to the Planning Commission holding its June 3, 1981 public hearing, notice of it was published in the City Record and the Comprehensive City Planning Calendar, as required by the ULURP guidelines. Moreover, as mentioned supra, no one appeared in opposition at that hearing, and the Planning Commission adopted resolutions approving the zoning map change, the amendment to the Zoning Resolution" and the OCD special permit.

In accordance with the statute, on June 26, 1981 the resolutions of the Planning Commission, which had been adopted on June 3, 1981, were filed with the Board of Estimate. Before taking formal action on those resolutions, as mentioned supra, the Board of Estimate held a public hearing, and notice of that hearing was published, as required by law. Finally, as mentioned supra, on August 20, 1981, after that public hearing, the Board of Estimate acted. In pertinent part, the Board of Estimate, on August 20, 1981, by separate resolutions, approved creation of the District, the zoning map change, and the granting of the special permit to OCD.

The city respondents contended that the actions the Jin petitioners sought to have annulled were allegedly legislative in nature, and, therefore, were not subject to review in an article 78 proceeding.

Special Term (115 Misc 2d 774, supra) agreed with the city respondents that the Jin petitioners had erred in using an article 78 proceeding to raise the issues, mentioned supra. However, Special Term held that, since all interested parties were before it, and the sole issue was petitioners’ challenge on constitutional grounds to the alleged legislative action, it was, pursuant to CPLR 103 (c), going to treat the Jin petitioners’ application as one for declaratory relief (see, Matter of Kovarsky v Housing & Dev. Admin., 31 NY2d 184 [1972]). Finally, on the merits, Special Term granted the Jin petition. In its opinion, Special Term held, in substance, the publication of those notices in the English language in the City Record and Comprehensive City Planning Calendar were not reasonably calculated to reach the members of the Chinatown community.

The city respondents appealed, and this court reversed Special Term (Lai Chun Chan Jin v Board of Estimate, 92 AD2d 218 [1st Dept 1983]). In our opinion, we found there was no violation of procedural due process, since the notices were published in publications authorized by statute, and, "[A]s a matter of observation by members of this bench, the general rule [is] that legal notices published in foreign language newspapers are published in the English language. Thus, the publication of a notice in English in a Chinese language newspaper would afford no greater notice than publication in the City Record and in the Comprehensive City Planning Calendar”. (Lai Chun Chan Jin v Board of Estimate, supra, at 224). Further, we noted in our opinion "In respondents’ brief and in the argument, we were informed that the special permit issued to OCD has since been revoked. In these circumstances, we think that a remand to the appropriate city authorities is called for so that they may give the situation such further consideration as they deem proper” (Lai Chun Chan Jin v Board of Estimate, supra, at 224-225). Finally, we declared, in our order reversing Special Term’s judgment, that the creation of the District, and the amendments to the Zoning Resolution, and the zoning map are a constitutional and valid exercise of legislative power.

Thereafter, the Jin petitioners appealed to the Court of Appeals, and that court, unanimously, affirmed our reversal of Special Term, in that it held that the notice of the public hearings in connection with the proposal to create the District complied with the requirements of the law (Lai Chun Chan Jin v Board of Estimate, 62 NY2d 900, .902 [1984]). Furthermore, the Court of Appeals specifically found that the creation of the District resulted from a well-considered plan. In pertinent part, the Court of Appeals stated (Lai Chun Chan Jin v Board of Estimate, supra, at 902-903): "Petitioners also contend on this appeal that the zoning amendment is void because the Special Manhattan Bridge District was not adopted in conformance with a well-considered plan and they seek an evidentiary hearing to prove their contention. There is nothing in the record to establish that petitioners sought such relief in their petition or requested a hearing at Special Term, however, and they have thereby waived any right they may have had to a hearing (see Telaro v Telaro, 25 NY2d 433). Moreover, the Manhattan Bridge Area Study, published by the City Planning Commission in 1979 and included in the record on this appeal, reveals that the proposed revision and the effect it would have upon the health, safety and welfare of the affected community was considered before its adoption and that study fulfilled the requirement that the revision be adopted pursuant to a well-considered plan (see Albright v Town of Manlius, 28 NY2d 108; Udell v Haas, 21 NY2d 463)” (emphasis supplied).

The second major legal action involving the District is Chinese Staff & Workers Assn. v City of New York (NYLJ, Jan. 23, 1985, at 12, col 1 [Sup Ct, NY County 1985], affd 111 AD2d 1081 [1st Dept 1985], revd 68 NY2d 359 [1986]). The Chinese Staff case, which is a combined article 78 proceeding and declaratory judgment action, challenges the issuance by the city respondents, in that action, of the special permit, mentioned supra, to HSP to construct a 21-story residential condominium, upon the grounds that the grant of the permit allegedly violated applicable environmental laws, does not comport with the District amendments, and was approved without adequate notice being given to the affected residents. By order, entered January 15, 1985, Special Term granted the motion of the city respondents-defendants to dismiss the petition and the causes of action.

Subsequently, the Court of Appeals reversed this court in the Chinese Staff case (68 NY2d 359 [1986], supra). Our examination of the majority opinion of the Court of Appeals indicates that this reversal was solely limited to annulling the special permit issued to HSP, mentioned supra, upon the ground that the city defendants in the Chinese Staff case failed to make an environmental analysis that took into consideration "the environmental effects required by the regulations” (Chinese Staff & Workers Assn. v City of New York, supra, at 361) promulgated by the City of New York, pursuant to Executive Order No. 91, dated August 24, 1977, entitled: "City Environmental Quality Review” (CEQR). In other words, nowhere in their opinion did the Court of Appeals discuss the primary issue in the instant case, as to whether the City of New York properly exercised its zoning power in creating the District, in view of the allegation by the plaintiffs in the instant case that the city did not affirmatively order the construction of dwelling units for low- and moderate-income persons, as same was not before it, and therefore not considered by the Court of Appeals in the Chinese Staff case. As we mentioned supra, and it is important that we reiterate, the Court of Appeals, in unanimously affirming the Jin case, specifically stated, that the amendments creating the District were "adopted pursuant to a well-considered plan (see Al-bright v Town of Manlius, 28 NY2d 108; Udell v Haas, 21 NY2d 463)” (Lai Chun Chan Jin v Board of Estimate, supra, 62 NY2d, at 903; emphasis supplied).

In the case at bar, the plaintiffs are Asian Americans For Equality (Asian), Tai Lui Chow (Mrs. Chow), Bo Lan Tom (Mrs. Tom), Karen Chan (Mrs. Chan), Pui Ying Wong (Mrs. Wong), individually and on behalf of all others similarly situated. These plaintiffs seek to maintain a class action constitutional challenge to the zoning amendments which created the District. In their four causes of action complaint, the plaintiffs allege, in substance, that the District amendments fail to provide a realistic opportunity for the creation of low-income housing, a standard enunciated by the New Jersey Supreme Court in Southern Burlington County N.A.A.C.P. v Township of Mount Laurel (92 NJ 158, 456 A2d 390 [1983]) and, therefore, constitutes exclusionary zoning. Furthermore, the plaintiffs also challenge in their complaint the grant of the special permit to HSP, and the potential tax abatement or exemption that might be afforded to HSP for its proposed project.

We find that the Court of Appeals reversal in the Chinese Staff case (supra), on the ground that the city did not correctly carry out the CEQR requirements in approving the HSP special permit, is not applicable to the instant case, in view of the fact that our examination of the allegations in the plaintiffs’ complaint indicates that the plaintiffs do not contend that the zoning amendments creating the District are invalid, due to the alleged failure of the city defendants to consider the impact of the CEQR.

In pertinent part, the relief sought by plaintiffs is for a judgment declaring the amendments to the Zoning Resolution, which established the District, unconstitutional and void; revoking the special permit issued to defendant HSP which has already been accomplished, and, an injunction restraining defendant Tax Commission from approving any tax abatements, credits or other tax benefits to defendant HSP in connection with any development pursuant to the District zoning amendments, which is now moot. In response, the city defendants Board of Estimate, Planning Commission, and Tax Commission et al., moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action.

While Special Term denied the motion of the city defendants to dismiss as to the first, second and third causes of action, which concern the amendment to the Zoning Resolution and the special permit issued to defendant HSP, it granted the motion of the city defendants to dismiss as to the fourth cause of action, which seeks to enjoin the approval of tax benefits to defendant HSP. However, Special Term did not deem the instant action a class action in its order, and plaintiffs have not filed a notice of appeal.

We find that Special Term erred insofar as it denied the city defendants’ motion to dismiss the first and second causes of action, which deal with the creation of the District by the zoning amendments. The motion of the city defendants to dismiss the third cause of action which pertained to the HSP special permit, is moot, in view of the Court of Appeals action invalidating that permit on environmental grounds (see, Chinese Staff & Workers Assn. v City of New York, supra).

Approximately 60 years ago, the United States Supreme Court, in the landmark case of Euclid v Ambler Co. (272 US 365, 387-388 [1926]), stated: "The [zoning] ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions * * * Thus the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality”.

The primary purpose of zoning is to insure the orderly rather than the haphazard development of a community, so as to promote the community "health and the general welfare” (Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brook-ville, 51 NY2d 338, 343 [1980], cert denied 450 US 1042 [1981]).

As discussed supra, considering the exhaustive research and analysis that were expended by the Department of City Planning, in conjunction with the efforts of urban planners, architects, and engineers, to develop the District proposal, and, thereafter, the detailed scrutiny focused on the proposal, which included public hearings held by CB3, the Planning Commission, and the Board of Estimate, we are not being presumptuous, when we conclude that it was hardly surprising that the Court of Appeals unanimously held the District zoning amendments were adopted "pursuant to a well-considered plan” (Lai Chun Chan Jin v Board of Estimate, supra, 62 NY2d, at 903).

We have carefully reviewed the complaint’s allegations, and find that they have been artfully phrased in an effort to overcome the four-month Statute of Limitations contained in CPLR 217, which governs article 78 proceedings brought against a governmental body.

Since plaintiffs did not commence their instant action until September 12, 1983, more than four months had elapsed from the time, as mentioned supra, defendants Planning Commission and Board of Estimate adopted the District zoning amendments in 1981. My learned brother, Justice Carro, writing for a unanimous Bench, in earlier litigation concerning the District, quite properly held: "an action may not be labeled as one for a declaratory judgment merely to avoid the limitation imposed by CPLR 217 (Solnick v Whalen, 49 NY2d 224)” (Lai Chun Chan Jin v Board of Estimate, 101 AD2d 97, 99 [1st Dept 1984]).

Although it appears to us that plaintiffs are attempting to avoid the four-month Statute of Limitations, rather than dismissing the appeal on procedural grounds (which would be appropriate), we will determine this matter on the merits.

Special Term (129 Misc 2d 67) relied heavily on the legal authority of two New Jersey Supreme Court decisions, when it denied the city defendants’ motion to dismiss the first cause of action, which alleges the District was not established as a result of a well-considered plan; and the second cause of action, which alleges the District zoning amendments fails to provide a realistic opportunity for the construction of low-income housing. (Southern Burlington County N.A.A.C.P. v Township of Mount Laurel, 67 NJ 151, 336 A2d 713 [1975], cert denied and appeal dismissed 423 US 808 [1975], which case is popularly referred to as Mount Laurel I; Southern Burlington County N.A.A.C.P. v Township of Mount Laurel, 92 NJ 158, 456 A2d 390 [1983], supra, which case is popularly referred to as Mount Laurel II.) Also, as mentioned supra, plaintiffs specifically cite Mount Laurel II in their complaint, in order to support their contention that the zoning amendments creating the District allegedly do not offer a realistic opportunity for the creation of low-income housing, and, therefore, constitute exclusionary zoning.

Mount Laurel is a developing suburban township, which is located near Camden, New Jersey. It covers an area of 22 square miles, or about 14,000 acres.

In 1975, the New Jersey Supreme Court in Mount Laurel I held the township’s zoning ordinance violated the due process and equal protection guarantees of that State’s Constitution, since the ordinance had the practical effect of excluding low- and moderate-income persons from living in this suburban township. The court found that this exclusion resulted from the fact that most of the township’s land was zoned for either single-family dwellings or for industrial use, which left very little opportunity for the construction of multifamily dwellings such as garden apartments, town or row houses, and mobile park homes. Moreover, the court’s decision required developing New Jersey municipalities and/or townships, like Mount Laurel, to affirmatively use their land use regulations to provide a realistic opportunity for low- and moderate-income housing.

Thereafter, the court’s dissatisfaction with the lack of encouragement given by Mount Laurel and other developing New Jersey municipalities to the construction of low- and moderate-income housing resulted in its 1983 decision in Mount Laurel II. The court in Mount Laurel II determined that, in order for developing New Jersey municipalities and/ or townships to fulfill their obligation to provide low- and moderate-income housing, they must encourage the construction of such housing through affirmative conduct, such as mandatory set asides, density bonuses, zoning for mobile homes, and tax incentives.

Although Special Term uses the holdings in the Mount Laurel cases, discussed supra, to justify its denial of city defendants’ motion to dismiss the first two causes of action contained in the complaint, it concedes in its opinion that Mount Laurel is not the law in New York. We go further. Not by the widest stretch of the imagination, could the fact pattern in Mount Laurel be applicable to New York City’s record for providing for low- and moderate-income housing.

Legal commentators have characterized the holdings in the Mount Laurel cases as "the most extreme treatment of the issue of exclusionary zoning in the country” (Rice, Zoning and Land Use, 37 Syracuse L Rev 747, 750 [1986]; see also, 2 Rathkopf, Zoning and Planning § 17.04, at 17-26, 17-27 [4th ed 1984]).

The Mount Laurel holdings have been specifically rejected at the appellate level in New York. In pertinent part, the Appellate Division, Second Judicial Department, in a unanimous decision, stated in Suffolk Hous. Servs. v Town of Brook-haven (109 AD2d 323, 331 [1985]), that: "[T]hese decisions [Mount Laurel I and II] go far beyond the law as declared by our own Court of Appeals, which has not, to this date, articulated any constitutional obligation on the part of our municipalities to zone for low-to-moderate-income housing”.

Based upon our own review of New York case law, we join the court in Suffolk Hous. Servs. v Town of Brookhaven (supra) in refusing to adopt the Mount Laurel holdings, since we find the Mount Laurel holdings to be essentially a legislative judgment.

We carefully note that the Mount Laurel holdings are solely based upon an interpretation of the provisions of the law and Constitution of the State of New Jersey (Mount Laurel I, supra, 67 NJ, at 174-175; Mount Laurel II, supra, 92 NJ, at 208-209).

Since the 1983 decision in Mount Laurel II (supra), which set forth the New Jersey obligation of municipalities to zone to satisfy the housing needs of low- and moderate-income persons, "every [New Jersey] trial court decision * * * has recognized that the applicable housing region or regions [to which the Mount Laurel obligation applies] was larger than four counties” (Morris County Fair Hous. Council v Boonton Twp., 209 NJ Super 393, 422, 507 A2d 768, 784 [1985]). Obviously, outside of major cities, areas "larger than four counties” usually contain significant areas of vacant land. However, the size of the District herein is not "larger than four counties”, in fact, as conceded by the plaintiffs in their complaint, the District only "encompasses a 14-block area around the Manhattan Bridge on Henry and Market streets” and this 14-block area is one of the most densely populated areas in the country.

In the leading case of Berenson v Town of New Castle (38 NY2d 102, 110 [1975]), the Court of Appeals set forth a two-part test for courts to use to determine the validity of a zoning ordinance challenged as exclusionary, as follows:

"The first branch of the test, then, is simply whether the board has provided a properly balanced and well ordered plan for the community * * * Of course, what may be appropriate for one community may differ substantially from what is appropriate for another * * *

"Secondly, in enacting a zoning ordinance, consideration must be given to regional needs and requirements”.

Also, the Court of Appeals observed in its opinion in Berenson v Town of New Castle (supra, at 111): "Zoning * * * is essentially a legislative act. Thus, it is quite anomalous that a court should be required to perform the tasks of a regional planner. To that end, we look to the Legislature to make appropriate changes in order to foster the development of programs designed to achieve sound regional planning”.

The Town of New Castle, whose zoning ordinance was under scrutiny in the case of Berenson v Town of New Castle (supra), is a suburban town, which was many times larger in area size than the instant District. In fact, plaintiffs concede, at page 19 of their respondents’ memorandum, that the characteristics of Chinatown, which is in the inner-city, "are substantially different than in” suburban communities like Mount Laurel and New Castle. Our review of Berenson v Town of New Castle (supra) clearly indicates that, while the Court of Appeals invalidated a town ordinance for exclusionary zoning, it acknowledged that there is no requirement that every zone in the town "must contain some sort of housing balance. Our concern is not whether the zones, in themselves, are balanced communities, but whether the town itself, as provided for by its zoning ordinances, will be a balanced and integrated community” (Berenson v Town of New Castle, supra, at 109). Applying this standard to the City of New York, we find, while the New York City Zoning Resolution must provide for "a balanced and integrated community”, not every amendment to that Zoning Resolution "must contain some sort of housing balance”. Although the District is not required under the law of New York to contain" a "housing balance”, the amendments creating the District, as mentioned supra, provide incentives to developers, who qualify for special permits, to provide housing for low- and moderate-income persons.

With all due respect to our dissenting brother, he exceeds the bounds of fair discourse in arrogating unto himself a monopoly on compassion and conscience because he would "permit the community its day in court.” He misperceives the judicial role. Our system of government is one based upon a separation of powers—the executive, the legislative, and the judicial. It is not for us—as a court—to substitute our judgment for that of the Legislature in zoning matters (see, Matter of Voelckers v Guelli, 58 NY2d 170, 177 [1983]). Furthermore, as indicated supra, public hearings were held at every stage of the process leading to the adoption of the subject District zoning amendments, and the Court of Appeals has held that these amendments were adopted "pursuant to a well-considered plan” (Lai Chun Chan Jin v Board of Estimate, 62 NY2d 900, 903, supra).

The plaintiffs contend the District zoning amendments are allegedly not consistent with a well-considered plan, since such a plan must provide for the needs of the Chinese-American low-income community. We disagree, based upon our analysis supra, which indicates that the District zoning amendments were the product of a well-considered plan that took many factors into consideration, including the needs of the low-income residents of the area, and such plan was properly adopted.

Our examination of the District zoning amendments indicates that the housing needs of the low- and moderate-income population in the area have been specifically taken into account, since incentives are given to private developers, who create dwelling units for such persons (see, for example, SMBD zoning amendment 116-12, entitled: floor area bonus for THE PROVISIONS OF DWELLING UNITS FOR LOW & MODERATE INCOME FAMILIES).

In the "preliminary statement” to the complaint, the plaintiffs "claim that [the District] fails to provide a realistic opportunity for the construction of low income housing, as required by the State constitutional mandate that the zoning powers delegated by the State be exercised for the general welfare”. We find that contention meritless.

The District herein consists of between 14 and 20 blocks, and the plaintiffs offer no legal authority that holds that every area as small as this District, which is zoned, must contain specific provisions for the construction of low- and moderate-income housing (see in this connection, Berenson v Town of New Castle, supra, at 110, n 2).

Furthermore, we find the applicable zoning district may very well be the entire City of New York, not a 14- to 20-block District, or even a borough, within the entire city. We note the fact that the District zoning amendments were made to the New York City Zoning Resolution. Moreover, we find, as mentioned supra, no requirement under Berenson v Town of New Castle (supra) that each individual district or segment of a zoning jurisdiction provide for a balanced mix of housing.

Justice Carro in his dissent makes a number of references to the "dislocation of families and merchants”. In the case before us, this is not an issue, since the proposed site consists of unimproved land, and, accordingly, there can be no "dislocation of families and merchants”.

In summary, we find that the District zoning amendments are valid under the two-pronged test of Berenson v Town of New Castle (supra); and that the first two causes of action of the complaint fail to state a cause of action.

If the plaintiffs are inclined to continue to seek the relief request herein, they must seek same from the Legislature.

Accordingly, order, Supreme Court, New York County (David B. Saxe, J.), entered September 26, 1985, which, inter alia, denied the motion of the city defendants to dismiss the first and second causes of action of the complaint, should be modified, on the law and on the facts, to the extent of granting city defendants’ motion to dismiss the first and second causes of action, and except as thus modified, otherwise affirmed, without costs.

Carro, J. (dissenting).

The rapidly diminishing supply over the last few years of available low- and moderate-income housing in New York City due to such factors as abandonment, demolition, conversion to other uses and decreases in subsidized housing programs has been well documented. If left unhindered, the consequences of this process, particularly the. potential for a frightening increase in the number of homeless families and the traumatic effects of displacement on families, are a cause for grave alarm to not only the individuals directly injured, but to society at large as the party which ultimately bears the burden of paying the price when the public welfare is endangered. It is no surprise, then, that the parties directly affected by a lack of adequate housing should seek redress of this problem through the State’s exercise of that power which in the name of public welfare regulates the use of land. The State’s use of the zoning power undeniably shapes what and where various types of housing developments will be permitted and promoted, or restricted and discouraged.

The responsibilities laden in this power are in question here. Plaintiffs’ position is that in the face of a severe shortage of decent and affordable housing, and the serious threat this constitutes for the public welfare, and given that undirected free market forces will not, of its own accord, create low- and moderate-income housing, the State, therefore, has an affirmative obligation under its zoning police power to adopt measures which will realistically promote low- and moderate-income housing. The fact of this affirmative obligation is the reason for this dissent from the majority’s views. The nature of the obligation is the substance of the dissent and at the heart of the majority’s error.

The facts surrounding this legal action began approximately 10 years ago when the City of New York, prompted by the tremendous influx of Asian immigrants to its Chinatown area and the simultaneous decline in the city’s supply of decent housing, recognized the need to examine Chinatown’s current and future economic and housing needs. The result of this year-long investigation was the publication in September 1979 by the Department of City Planning of the City of New York of the Manhattan Bridge Area Study (hereinafter the Study). Generally, the Manhattan Bridge Study Area (hereinafter MBSA) encompassed much of the lower East Side. Within that area, the Study’s primary focus was on the smaller Chinatown Study Area, bounded generally by Delancey Street on the north, Allen Street on the east, Monroe and Madison Streets on the south, and Baxter Street and Bowery on the west.

The Study found that with the liberalization of the immigration laws, not only had the number of Chinese immigrants coming to the United States climbed dramatically between 1960 and 1970, but by 1970 New York City, with a Chinese population of 69,343, replaced San Francisco as the American city with the largest Chinese community. It was also projected that by 1980, New York City could be expected to have between 150,000 to 200,000 Chinese residents.

The MBSA, in particular, was expected to be the primary home of these future immigrants. The Study noted that while some diffusion of the “better off and more established Chinese households” had taken place outside MBSA into other boroughs and elsewhere in Manhattan, the MBSA would continue to be the major housing resource for the relatively recent immigrant families, the future immigrant families, those families who came to the United States long ago, but remain at the bottom of the economic ladder, and a small group of middle-income professionals and business persons who have located in the newest housing within the MBSA.

The income data of New York City’s Chinese population reveals that they have a median income lower than that of non-Chinese families in New York State and New York City and lower than that of other Chinese families elsewhere in the United States. The Chinese in the Chinatown Study Area in particular fare the worst economically. In 1970, while 17% of the households in Manhattan were classified as living in poverty, the comparable figures within the MBSA ranged from a low of 20% in census tract 8 to a high of 33% in census tract 18.

In isolating those factors attracting Chinese immigrants to Chinatown, the Study observed that Chinatown offers its residents a cohesive, self-sufficient community, which serves as home, workplace, cultural center, financial center and retail and service hub for its residents. Problems of assimilation for new immigrants are minimized by the absence of language and cultural barriers and the opportunities for employment from Chinese-owned businesses within walking distance from their homes. The Study projected that Chinatown "will continue to be looked to as the area that meets the demand for professional and business services as well as for cultural and ethnic-community oriented activities.”

The Study’s analysis of Chinatown’s housing facilities discloses the serious shortage of and extreme substandard nature of that housing. Of the 675 multifamily structures in the MBSA, 85% are obsolete, deteriorated old law tenements, built prior to 1901. Virtually all the units are rental apartments and are severely overcrowded. The low rents in the MBSA, compared to the rent levels elsewhere in the city, are due to the deteriorated conditions of this housing, which nevertheless remains in high demand due to population growth. The Study also noted that despite the poor conditions of the buildings, there was, as of 1975, already a noticeable upsurge in sales of buildings at amounts far in excess of the assessed valuations. Purchasers were paying three to four times the rent roll, a multiple significantly higher than for the city as a whole, requiring that high commercial rents be charged to offset the low residential rates. This development is indicative of the type of real estate market boom present under gentrification conditions. The Study noted as well the dramatic increase in the number of Chinese-owned buildings, indicating an influx of foreign capital.

The Study concluded that additional and improved housing needed to be supplied for these predominantly low-income residents and for the future immigrants expected to settle in Chinatown. Yet, the Study also projected that the prognosis for future development of residential units was poor, given current zoning regulations. This conclusion was based on an analysis of only the zoning provisions of Old Chinatown, which has substantial commercial development and which area lies primarily outside the special district under review here.

Under New York City zoning provisions, density is controlled by limits on the floor area ratio (FAR), which determines the total floor area permitted in a building based on a multiple of the area of the lot on which the building stands. Zoning in Old Chinatown permits a more generous FAR for commercial buildings than for residential buildings. The Study concluded that these density restrictions, coupled with the more stringent height, setback and yard requirements for residential properties, strongly favored commercial over residential development. The Study then stated in a very conclusory fashion that as regards new development, it was not realistically possible, even with public subsidies, to meet the majority’s needs, as the Old Chinatown land costs were too high. The Study contained no discussion of ways to promote the development of low- and moderate-income housing.

The only mention regarding the rehabilitation of the old law tenements was the observation that such rehabilitation would require increases in rents much beyond the moderate means of Chinese families in the MBSA, unless public subsidies were available.

Finally, the Study noted the lack of open recreational space, nursing homes and other health-related facilities and acknowledged that it had not conducted an analysis of community space needs.

Based on these findings, the Study made a number of proposals but cautioned that further study was necessary prior to any long-range planning.

Subsequently, the Department of City Planning drafted and submitted to the Board of Estimate proposed amendments to the New York City Zoning Ordinance, calling for creation of a special zoning district within the MBSA. The City Planning Commission adopted a resolution approving the amendment on June 22, 1981. The amendment called for new development to take place in the special district on vacant or substantially vacant lots at greater density levels than that permitted under the current density restrictions, in exchange for the provision by the developers of any of the following "amenities”: "new community facility space, subsidized units for low and moderate income families, and selective demolition and rehabilitation' of existing buildings.” It is rather clear from the face of the introductory explanation to the proposed amendment, which noted such "new land use demands * * * as office use and housing for more affluent people” that new development in the Chinatown area would consist of luxury housing, with low-income housing relegated to the status of an "amenity” for the community.

On August 20, 1981, the Board of Estimate adopted the resolution along with a zoning map change, which together create the Special Manhattan Bridge District (SMBD). This special district consists of the area bounded west of the Manhattan Bridge by Monroe and Madison Streets, St. James Place, Oliver Street and the Manhattan Bridge and bounded east of the Manhattan Bridge by Henry Street, Pike Street, Canal Street and the Manhattan Bridge. The stated goals of the creation of the SMBD are:

(a) to preserve the residential character of the community and encourage the development of new housing on sites which require minimal residential relocation;

(b) to promote the opportunities for people to live in close proximity to employment centers in a manner which is consistent with existing community patterns;

(c) to provide an incentive for the creation of new community facility space which is required to meet the unique needs of this community;

(d) to permit new construction within the area which is sensitive to the existing urban design character of the neighborhood;

(e) to provide an incentive for a mixture of income groups in the new development so as to not substantially alter the mixture of income groups presently residing in the neighborhood;

(f) to promote the rehabilitation of the existing older housing stock, and thereby provide a renewed housing resource meeting modern standards at the same time protecting the character and scale of the community;

(g) to promote the most desirable use of the land in the area and thus, to conserve the value of land and buildings and thereby protect the city’s tax revenues.

To accomplish these goals the new zoning regulations permit new development at greater density levels, by means of a special permit, on sites which were vacant or substantially vacant as of August 20, 1981. Developers are to be awarded density bonuses for providing the community with the amenities mentioned ante. Thus, the zoning regulations provide a floor area bonus of seven square feet in any new development for every square foot of space developed as a community facility. For every square foot of rehabilitated housing, the regulations provide the developer with a bonus of up to six square feet. To be entitled to this bonus, the developer must submit a relocation plan which shall provide for relocation of tenants within the SMBD, to the extent possible, and which shall affirm that no harassment of tenants has occurred. However, there is no requirement that rehabilitated units be maintained for low- or moderate-income families. Given the Study’s prediction that, absent public subsidies, such rehabilitated units will be beyond the means of low- and moderate-income families, it is inevitable that this substantial bonus will only generate additional housing for more affluent tenants. For every square foot of low- and moderate-income housing produced in any new development, the zoning regulations grant a floor area bonus of only up to two square feet.

One year after adoption of the zoning amendment, defendant-appellant, Henry Street Partners, applied for a special permit to construct a 21-story condominium building with 87 units. To obtain a total floor area of 122,250 square feet, as opposed to the maximum floor area of 55,420 square feet permitted under the existing zoning, the developer agreed to deed over 15,000 square feet to the YMCA to operate a community facility and agreed to provide $500,000 for the rehabilitation of low- and moderate-income housing within the SMBD. The City Planning Commission approved the special permit on August 30, 1982, and the Board of Estimate granted the permit on April 14,1983.

In September 1983, plaintiffs-respondents instituted this class action suit for a declaratory judgment holding that the zoning ordinance creating the SMBD is unconstitutional under the New York State Constitution, for annulment of the SMBD and a directive to the defendant city agencies to create a new plan which provides a realistic opportunity for the construction of low-income housing, for revocation of any pending permits granted under the SMBD amendment, and for an order enjoining any tax abatement, reduction or credit to any project in the SMBD which does not provide for the construction or significant rehabilitation of low-income housing in Chinatown.

This action is brought by certain plaintiffs, in their individual capacity, who seek decent affordable housing in Chinatown, and Asian Americans for Equality, a nonprofit corporation, made up of residents of Chinatown committed to supporting the rights and goals of Asian Americans with regard to improved, affordable housing, job opportunities and working conditions.

Only the first and second causes of action need be dealt with here as the fourth cause of action was dismissed by Special Term, and plaintiffs have not appealed from that part of the order, and the third cause of action is now moot, as the majority notes, by the Court of Appeals action of annulling the permit granted to defendant Henry Street Partners in