
    In the Matter of Anthony Piazza et al., Appellants, v. John V. Lindsay, as Mayor of the City of New York, et al., Respondents.
    Argued January 13, 1969;
    decided March 6, 1969.
    
      
      Mario Matthew Cuomo for appellants.
    I. The court at Special Term properly rescinded the Mayor’s purported approval and authorization of September 1, 1967 since it was premature and rendered in contravention of the unambiguous requirements of section 228. The court should also have declared the abortive hearing before the Board of Estimate on September 21, 1967 illegal, since it was conducted in a manner which contravened those requirements. II. The plain language of section '228 should not be distorted to accommodate the city’s so-called practical construction. (Ferraiolo v. O’Dwyer, 302 N. Y. 371; Matter of Hines v. La Guardia, 293 N. Y. 207; Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293; Beck v. Teachers’ Retirement Bd. of City of N. Y., 15 A D 2d 223; Matter of Roosevelt Raceway v. Bedell, 24 Misc 2d 374;
    
      
      Mandel v. Waxman, 35 Misc 2d 1085; Carbonelli v. City of Amsterdam, 197 App. Div. 848; People v. Charbineau, 115 N. Y. 433; Matter of Washington St. Asylum & Park R. R. Co., 115 N. Y. 442; Society of N. Y. Hosp. v. Johnson, 5 N Y 2d 102.) III. 'The courts below erroneously denied the relief requested by the second cause of action in the petition. The uncontradicted proof indicating that the decision by the three designees of the Mayor on the Site Selection Board had been preordained, together with the other evidence in the record, established their bad faith and proved that they had proceeded in excess of their authority. At least, on this record, petitioners should have been granted the opportunity to try the issues. (Matter of Lemir Realty Corp. v. Larkin, 11 N Y 2d 20; Matter of Rothstein v. County Operating Co., 6 N Y 2d 728; Stahl Soap Corp. v. City of New York, 5 N Y 2d 200; Matter of Mastrangelo v. State Council of Parks, 22 A D 2d 947, 16 N Y 2d 540; Sleepy Hollow Val. Committee v. McMorran, 27 A D 2d 665, 20 N Y 2d 190; Cannata v. City of New York, 11 N Y 2d 210; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Diehl v. O’Dwyer, 193 Misc. 1032; Nappi v. La Guardia 184 Misc. 775, 269 App. Div. 693, 295 N. Y. 652; Chelnik v. Wagner, 2 Misc 2d 29, 2 A D 2d 668, 2 N Y 2d 779.)
    
      J. Lee Rankin, Corporation Counsel (John J. Loflin, Frederic S. Nathan and Laurence D. Cherkis of counsel), for respondents.
    I. The procedure followed in this capital project complies with the provisions of Charter and the practice adopted and followed uniformly since the present Charter became effective. (Mandel v. Waxman, 35 Misc 2d 1085; RKO-Keith-Orpheum Theatres v. City of New York, 308 N. Y. 493.) II. The July 24, 1967 decision of the Site Selection Board was proper and not the result of prejudgment or bad faith. The September 21, 1967 hearing before the Board of Estimate was lawful and not the result of any acts of contempt. (Matter of Pelham Bay Taxpayers & Civic Assn. v. Lindsay, 29 A D 2d 843; Matter of Battista v. Board of Estimate of City of N. Y., 51 Misc 2d 962, 27 A D 2d 986.)
   Bergan, J.

Statutory authority to select a site for a capital

project of the City of New York is expressly vested in a Site Selection Board, the members of which are stated by the law itself to be the Director of City Planning, the Director of the Budget, the Commissioner of Real Estate, the Comptroller and the President of the Borough in which the site is located (New York City Charter, § 227).

The petitioners, who are owners of land in Queens which will be acquired as part of a projected new high school, contend that the statutory scheme requires a further approval of the site by the Board of Estimate after the Site Selection Board has acted and before acquisition proceedings may be directed by the Mayor.

The question of statutory construction is thus very narrow in scope. The court at Special Term held such additional approval by the Board of Estimate was needed; the Appellate Division held that the statute had been complied with by approval of the Board of Estimate before the site was selected and the Mayor was authorized to direct acquisition proceedings. A reading of the statute sustains the view taken at Appellate Division.

The Capital Budget for 1966-1967 adopted by the City Council and the Board of Estimate contained an item “ 106a E-1290 New High School Queens, Location Undetermined Including Site”. This was part of a general appropriation for the Board of Education for school projects.

The appropriation was in conformity with the Charter which provides that indebtedness for a capital project may be contracted only where there has been an appropriation in the Capital Budget (Charter, § 225) and this after prescribed public hearings which are not in dispute here (Charter, §§ 216, 217, 219, 221).

Following’ such appropriation, however, the initiation of the project rests solely in the executive judgment of the Mayor (Charter, § 228). This control and initiation of capital projects expresses a central policy of the Charter concentrating executive responsibility in the hands of the Mayor.

The first step in that executive action was taken by the Mayor in this case on June 14, 1966 by requesting the Board of Estimate to conduct a public hearing on the project which was then in the general form stated in the budget “ location undetermined ”. Section 228 provides that “before initiating” such a capital project in the budget by directing the acquisition of the property, the Mayor “ shall cause a public hearing to be held ” by the Board of Estimate.

This direction was followed exactly in the present case. The Board of Estimate held a public hearing on July 8. There was no opposition. Thereafter, on October 10, the Mayor initiated the project by determining and certifying to the Comptroller the amount of obligations to be used in financing.

The project having thus been initiated, the time then became appropriate for the Site Selection Board to function under section 227 of the Charter to select a site. It conducted a public hearing on due notice June 19, 1967 at which petitioners were heard in opposition to the proposed site.

Again following the language of section 228, the Mayor’s direction to acquire, which had now cleared through both the Board of Estimate and the Site Selection Board, went to the Corporation Counsel on September 1, 1967. This direction, says the statute, shall constitute an order to the corporation counsel and such agency to proceed with such capital project ” (Charter, § 228).

"Whatever may be the argument for or against further action by the Board of Estimate on the site itself, it is manifest further approval is not required by the statute after the Site Selection Board has acted. The statute has been followed precisely in this present case.

The time at which the 'Site Selection Board shall act is not stated in relation to sequence with the other steps in the initiation of a project by the Mayor. But it is obvious that no site should be selected under the scheme of the statute before the Mayor’s directive stated in section 228 and the resulting hearing by the Board of Estimate, because until after that hearing there would be no reasonable certainty the project would go ahead.

On the other hand, there is no need or statutory requirement to go back again to the Board of Estimate for its approval after the site is selected because the Site Selection Board, rather than the Board of Estimate, is given express statutory power to select the site under subdivision f of section 227.

This result is consistent, as the city also shows, with administrative construction of the statute by Mayors since the present Charter became effective on January 1, 1963.

The record shows two examinations, not one, of this project by the Board of Estimate. Its consideration did not end with the approval of the capital budget as an appropriation. The initiation of the project by the Mayor, after the appropriation, was directed to the Board of Estimate for its consideration and that board held a hearing and specifically approved this project as initiated by the Mayor. It did not need to approve the site because, as it has been seen, site selection was within the statutory jurisdiction of the Site Selection Board.

The order should be affirmed, without costs.

Keating, J. (dissenting).

The majority, content simply to proffer a truncated analysis of the issue we are called upon to review, places sole reliance on a misplaced emphasis on section 227 of the New York City Charter. The majority has failed to consider the proper sequential relationship between sections 227 and 228 with respect to budget appropriations, initial site selection and final approval of locations.

This article 78 proceeding was instituted by 69' homeowners and several businesses located in the Corona section of Queens. The petitioners’ homes and businesses were to be taken by the city in order to construct a schqol and athletic field. The proposed site for the school was located only two blocks from a large vacant lot which, according to these property owners, would have served the needs of the Board of Education as well as the site selected. The article 78 proceeding, however, was not premised on the illogical choice of the site selected but rather on the failure of the city to comply with the applicable procedure set forth in the City Charter for the purpose of selecting and approving sites for capital projects.

The New York City Charter provides that indebtedness may not be contracted for a capital project unless an appropriation for the project appears in the Capital Budget of the city (Charter, § 225). Before a project becomes part of the budget public hearings are held. The budget is then adopted by April 20 of each year (§§ 216, 217, 219, 221, 222, 223).

The hearing held before the Board of Estimate serves the function of formulating the budget as a fiscal planning device. At the time the budget is proposed it is composed of hundreds of items which the city needs. Many of these projects are only in the planning stage and, therefore, can only be generally described as to project and cost. Of course, no specific site designation can ibe established for the project at this time. Thus, for example, in this case, the high school in dispute was a general budget item with its site location specified as “ location undetermined”. Accordingly, none of the affected residents of this Queens community would have been on notice to protest the school location to the Board of Estimate. The hearings held before the Board of Estimate at this time are to assist the board in reaching a realistic view of the capital improvements needed by the city and establish priorities for these projects in light of the fiscal resources available to the city.

Under the new Charter, the Capital Budget has thus become an appropriating document. The decision of the board to adopt the proposed budget is based primarily on financial considerations. But it is clear that not every project approved and included in the adopted budget will actually be built. Therefore, at the time the budget is adopted, almost no consideration is given to particular site locations for the proposed projects.

The budget, after it is approved, is a framework by which the Mayor, as chief executive of the city, has the sole prerogative to determine which projects should be initiated and when. Thus, until the Mayor’s decision to initiate a project, there is no reason to search for a location to place it. When the Mayor determines that an approved project should go ahead, he notifies the Site Selection Board and directs that body to select a site. This board is made up of three mayoral designees and two elected city officials. The Site Selection Board then holds public hearings to determine where the capital project should be located. Its selection is then sent to the Mayor. The dispute in this case involves what is to transpire from this point.

The petitioners contend that the City Charter provides that the Board of Estimate must hold a public hearing and pass upon the proposed site on which the Mayor intends to initiate construction. The city argues that, after the site is selected, the Mayor need only direct the Corporation Counsel to institute legal proceedings to take the property. We agree with the petitioners.

It is obvious from reviewing the budget and site selection process provided for in the City Charter that the city’s contention, which is sanctioned by the majority, in effect insulates the elected representatives of the City of New York from passing upon sites selected for capital projects. The majority not only deprives these elected officials of a decision which is rightfully theirs but, in addition, deprives the citizens of New York City of the opportunity to petition their representatives about specific site locations. We do not believe that the new Charter provisions were intended, or should be read, to insulate elected officials from one of the attributes of representative government.

It is apparent from reading sections 227 and 228, studying their legislative history and reviewing the historical way in which capital project site locations have been determined in New York City that the majority’s analysis is incorrect.

It is clear, when the budget process is understood, that the term “project initiation ”, referred to in section '228, does not refer to placing a proposed1 project in the budget, as the majority believes, but rather refers to the discretion afforded the Mayor in deciding which projects to start and their presentation to the Board of Estimate as a concrete program of development. It was "never intended that a nebulous conception of a capital project, for which the board was only initially asked to set aside possible funds, should bind them in the future so that, if the Mayor desires to initiate a project, they lose the authority to disapprove the -final plan. We think that the requiremént expressed in section 228 that before any property be taken, the Board of Estimate must pass on the project, is not mere surplusage but reinforces our position. In order to give these sections vitality and consistency, we cannot hold that the initial budget hearing, which was concerned primarily with financial matters, is the hearing contemplated by section 228 to be held by the board before specific property is condemned.

This analysis is consistent with the reviser’s notes for the New York 'City Charter. In the Final Report of the Charter Revision Commission of the City of New York, the revisers entered these remarks with respect to the procedures being scrutinized: “There will be a public hearing of every project in the Capital Budget before the Mayor- may direct that it be initiated. Thus, the Capital Budget will become an appropriating document, but there will also be a ‘ second look ’ at each project before the -City finally.commits itself.”

The law has always provided in New York City that no site selected for condemnation could be actually acquired by the city until first the specific land and property involved has been passed upon by the Board of Estimate. (Ash, Greater New York Charter With Appendixes, Ann. [4th ed., 1918], § 1483; see, also, Levey and Manheimer, Condemnation in New York, 293-294.) This requirement was not changed by the new Charter. The new Charter simply sought to relieve the Board of Estimate from the herculean task of routine site selection.

Under the City Charter in effect prior to January 1, 1963, site selection for capital projects was a regular function of the Board of Estimate. Section 384 (subd. [a]) of the old Charter provided: “No real property and no interest thereon may be acquired by the city, arid no real property of the city may be sold, leased, exchanged or otherwise disposed of except with the approval of the board of estimate ”. Thus, until January 1, 1963, the Board of Estimate not only was required to approve all capital projects for inclusion in the budget, but, in addition, had the task of conducting public hearings to select particular locations for capital projects. The selection of each site was too time -consuming a task for the Board of Estimate. It was clearly evident that a more administratively realistic alternative had to be devised.

Therefore, the Charter Revision Commission proposed this bifurcated approach, whereby routine site selection and narrowing down of locations would be the function of the -Site Selection Board, and the Board of Estimate would then only have to pass upon their recommendation. This procedure was more efficient for the Board of Estimate for oftentimes site locations are noncontroversial and, in those cases where persons seek to be heard, the burden on the board is lighter because, the proposed site is already fixed. Thus, under the new Charter, the Board of Estimate has more, time to fulfill its principal budgetary function while still serving its historical function of holding a last hearing before property is" condemned, disposed of or sold. It is clear, therefore, that the final judgment concerning project location is to be reviewed by the Board of Estimate.

After the budget was approved by the Board of Estimate, but before the Site Selection Board had an opportunity to choose a specific location for the proposed new Queens’ school, a public hearing was held before the ¡board. The majority point to this hearing as the “ second look ” referred to by the revisers. This hearing, however, was held on July 8, 1966 approximately one year before the Site 'Selection Board chose a specific site for the school, for the ostensible purpose of permitting opponents and proponents of the proposed school an opportunity to air their views. No one appeared at the scheduled hearing either in favor of or opposition to the proposal. The obvious reason for this lack of interest was that the published notice only indicated that the board would consider the construction of a new school to be built somewhere in Queens. It is hard to imagine any vocal opposition to a school at an unspecified location from members of a large community which desperately needed more educational facilities.

Section 288 specifically provides that the Mayor may only initiate construction of a project after a public hearing has been held before the Board of Estimate. The City Charter does not permit the reading that the Site Selection Board Is authorized to select a site between the time the Board of Estimate holds its final public hearing and the Mayor directs that construction be started. The meeting held on July 8, 1966 before the Board of Estimate was not the required hearing specified by the City Charter. This meeting, therefore, Is not a valid substitute for the hearing required by section 228 before the Mayor may institute construction of a capital project.

We do not believe that this reading of sections 228 and 227 in any way wipes off the books the provision that the Site Selection Board shall select the particular site for capital projects. The Board of Estimate only has the authority to approve or disapprove of the selection made after its hearing. This analysis places the events specified in the sections under review in their proper sequential order.

Since the city in this case failed to follow the procedures set forth in the City Charter, the petitioners’ properties cannot be condemned. This is not to say that the Mayor cannot cause a public hearing to be held before the Board of Estimate in the future concerning the recommendation of the Site Selection Board that this particular location be used for a school.

Accordingly, the order of the Appellate Division should be reversed.

Chief Judge Fuld and Judges Breitel and Jasen concur with Judge Bergan; Judge Keating dissents and votes to reverse in a separate opinion in which Judges Burke and Soileppi concur.

Order affirmed.  