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At an IAS Term, Part z9 of the Supreme
Court of the state of New York, held in and
for the County of Kings, at the Courthouse,
at Civic Center, Brooklyn, New York, on the
z4thday of October, 2oL7.

PRESENT:
T1Y*'-llillli:-{T-T:: --------x rndex No.:r835/zor6
ALICIA BOYD, PAMEIA. YARD ANd JANINE NICHOLS,
DECISION and ORDER
Petitioners,
v.

BROOKLYN COMMUNITY BOARD 9, TERRY WITHERSPOON,

In her official capacity as Community Assistant of Brooklyn's
Community Board 9, DEMRTRIUS IAWRENCE, in his official
Capacity as Chairman of Community Board 9, MICHAEL LIBURD,
in his official capacity as Chairman of ULURP Committee of the
Community Board 9, TIM THOMAS, in his official capacity as
member of Community Board 9, WARREN BERKE, in his official
capacity as Chairman of Economic Development Committee of
Community Board 9, and NEW YORK CITY DEPARTMENT OF
CITY PIANNING BROOKLYN Residents,

Respondents.

Petitioners ALICIA BOYD, PAMEI/. YARD and JANINE NICHOLS, (hereinafter:

"Petitioners"), nlove this Court pursuant to CFI,R Article 78 for relief against tire

Respondents.

Upon reading the Notice of Amended Petition by ALICIA BOYD, pro se

Petitioner, dated Ntlarch c1st. 2016 and all exhibits annexed thereto; Notice Of Motion by

ALICIA BOYD, dated Alrril 14, 2at6, together with the Affidavii of Motion by ALICfA

BOYD, dated April t4, zat6 and all exhibits annexed thereto; the Notice of Cross-

Motion to Dismiss the Arnended Petition by l(ate McMahcln, EsQ., Attorney for'

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Respondents, dated May 4,1', zot6; the Memorandum of Law in Support of

Respondents'Cross-Motion to Disrniss the Amended Petition by Kate McMahon, EsQ.,

dated May 4th, 2c16, and all exhibits annexed thereto; the Memorandum of Law in

Opposition to Respondents' Cross Motion to Dismiss the Arnended Petition byALICIA

BOYD, pro se Petitioner, dated May t9th, zot6; and after argument of counsel and due

deliberation thereon, Respondents motion to dismiss is granted for the reasons set forth

below.

FACTS

Petitioners bring this action by amended petition pursuant to Article 78 of the

CPLR seeking various forms of relief as well as a declaratory judgment related to actions

undertaken by Community Board 9, (.CB9" or "the Board"), and its members. The

Board's jurisdiction covers South Crown Heights, Prospect, Lefferts Gardens, Wingate

and portions of North Flatbush.

At the heart of this petition is the Petitioners' concerns that CB9 is failing to

permit community input and participation in decisions related to a possible rezoning of

part of their community. Petitioners allege that the act of requesting a zoning study wili

trigger an unstoppable process that will result in the approval of rezoning of the

community.

Petitioners aliege that they represent a position in the community that opposes a

zoning change that would permit increased, high density and high rise development,

which they state would negatively impact the residents in the community. They argue

that their voice is being intentionally silenced by the Petitioners' actions.

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 They allege that while the City Charter and the Uniform Land Use Review

Procedure set forth procedures as to how land use decisions in NewYork City are made,

in reality, the critical deliberations and decisions are made prior to the commencement

of the ULURP process. They further allege that the ULURP process, which was

supposed to ensure transparency and community participation as to land use decisions,

has become a mere procedural pipeline for approval once a zoning request is made of

the Department of City Planning. Therefore, while the request for the zoning study is

not one of the enumerated actions which are subject to the ULURP procedures,

Petitioners argue that once the zoning request is made, the community will have lost its

only meaningful opportunity to oppose the redevelopment their community.

Petitioners seek an order declaring a June 15, 2ols letter to the zoning board

requesting a study be declared nuil and void, they seek removal of members from CB9,

and they seek that the Court void certain sections of CBg's by-laws.

Petitioners allege that Respondents engaged in a number of tactics intended to

prevent their participation in meetings and to prevent their input in drafting the letter to

request the zoning study. They allege that the Board engaged in harassment and

intimidation, as well as committing violations of various procedures intencled to ensure

meaningful public participation in community board meetings.

Respondents contend that Petitioners have acted unreasonably and violently,

repeatedly interfering with the Community Board's activities, disrupting their ability to

conduct their activities and mandates.

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 Respondents fiied a pre-answer motion to dismiss the Petitioners'amended

petition on the grounds that (r) they lack standing, (e) they have failed to state a claim

under article ZB, (g) they are estopped from raising many of their claims as they have

already litigated them unsuccessfully in the Court, (+) they have failed to state a claim

under FOIL, (S) they have failed to state a claim under the Open Meetings Law, the City

Chafter, or CB9 Bylaws, and (6) that the Petitioners are not entitled to an award of

sanctions or attorneys' fees.

DISCUSSION

The request for a zoning study

Petitioners ask the Court to declare the June 15, 2ol5letter to the Department of

City Planning null and void. The June 15, 2015 letter refers to a letter dated June 1, 2o1S

that was prepared by the ULURP committee of CB9 and then voted on by the Board to

be presented to the Department of City Planning, (DCP), which requested that DCP

begin a study of a portion of the geographic area covered by CB9. The Petitioners allege

that this letter was prepared in violation of the law, and that it will start an irreversible

approval process of a change in zoning restrictions which the Petitioners oppose.

Petitioners allege Respondents violated the City Charter by drafting the June 15,

zor5 letter "in secret".

Section rqr(bxS) of the City Charter, entitled "City Planning", provides that the

director of city planning shall "fp]rovide community boards with such staff assistance

and other professional and technical assistance as may be necessary to permit such

boards to perform their planning duties and responsibilities under this chapter".

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 Section z8oo(e) of the City Charter provides that "[e]ach agency shall furnish

promptly to each community board on request any information or assistance necessary

for the board's work. Each agency shall also report periodically to each board on its

service activities programs and operations within the community district".

Thus, CB9 is authorized to request a study from DCP. The decision of whether or

not to request such a study is a political matter and not for the Courts to second guess.

That decision is properly within the discretion of the community board, even if many

community members disagree.

City Charter zSoo (d) provides that each communityboard shall at its discretion

hold public or private hearings or investigations with respect to any matter relating to

the welfare of its residents, but the board shall take action only at a meeting open to the

public.

Petitioners provide a copy of the minutes of the May r9, 2o1S meeting of the

ULURP Committee at which Chairman Ben Edwards made a motion to recommend that

CB9 send the letter requesting a study of portions of Community District 9 to DCP. The

motion was seconded and the motion was carried. It is not contested that the full Board

voted to send the letter requesting the zoning study to DCP at the May e6, zor5 meeting.

Therefore, drafting the letter "in secret", that is, not in an open meeting, is not

improper so long as the letter is discussed and voted upon by the Board at a public

meeting of the Board.

The reason for the Petitioners' opposition to the,Iune 15, 2cl15 letter is better

understood upon reading the affidavit of Tom Angotti, which they append to the

petition. Angotti is a Professor of Urban Affairs and Planning at Hunter College and the

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Graduate Center of the City University of New York. Angotti has over 4o years of

teaching and working in the field of urban planning and that he is familiar with the

manner in which zoning changes are approved.

Angotti states that the Department of City Planning's zoning proposals submitted

under ULURP are virtually assured of passage. He states that by the time the DCP

completes its study and makes its proposal, it's a "done deal". He further states that

requests fcrr zoning studies are basically invitations to create a zoning proposal and

therefore he states, "it is perfectly logical and practical for a community board or its

constituents to oppose a zoning study even before DCP begins the study".

While it is logical for community members to oppose a zoning study before DCP

begins the study, they have an opportunity to do so at the public meeting at which the

Board considers the motion to request the study.

Angotti may be correct in his assessment that once the DCP conducts a zoning study,

the ULURP process no longer provides for meaningful opportunity to oppose the DCP

proposal; however, the structure and timetabie of the ULURP process is dictated by the

City Charter. Any deficiencies inherent in the ULURP process that hamper the

community's ability to meaningftrlly participate in land use decisions are properly

addressed by the legislature, not by the Courts.

Petitioners'claims seeking that the June 15, 2o1S letter from CBg to DCP be

deciared null and void must be denied.

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 Petitioners allege that the Borough President selected tB new board members for

CB9 who were not nominated by one of the community's council members, which they

claim violated the City Charter. They also allege that information obtained through

FOIL requests show that the Borough President ignored council members'nominations

of board members.

The process by which members are placed on community boards is governeci by

the City Charter. Section z8oo(a) of the city charter provides "[flor each community

district created pursuant to chapter sixty-nine there shall be a communityboard which

shall consist of (r) not more than fifty persons appointed by the borough president for

staggered terms of two years, at least one-half of whom shall be appointed from

nominees of the council members elected from council districts which include any part

of the community district..".

Petitioners have not provided a complete list of all board members, or indicated

which board members were nominated by city council members and which board

members appointed by ihe Borough President were not nominated by any city council

member. Without that information, it cannot be determined whether the Borough

President appointed at least half the board from nominees of city council members as

required by the Charter.

Additionally, as noted by the Respondents, the Borough President would be a

necessary pafty for a claim that he exceeded his authority and since he is not a party to

this action, claims against him cannot lie in this petition.

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ehaqggs "to the- by:laws-

Petitioners seek to void portions of the by-laws of CB9 which relate to the

procedure of appointing non board members to CB9 committees. They specifically cite

the second sentences of two sections of the by-laws which they claim are inconsistent

with the City Charter.

Section B.z of the by-laws provides "[n]on-Board members shall be appointed to

committees by the Chairperson clf the Board and/or the committee chairperson".

Section B.3c of the by-laws provides that "ln]on*Board members shall be appointed to a

committee by the Board Chairmanfwoman and/or the committee chairman/woman".

Petitioners allege that these portions of the by-laws are inconsistent with section

B.7c of the by-laws which states that CB9 shall encourzrge the participation of non-board

members on committees, as they restrict community participation on committees

because they put the power of appointment to a committee in the l'rands of the

Chairperson of the Board.

However, sections of B.z and 8.3c of the by-laws are not in conflict with section 8.7c

of the by-laws or the City Charter, which provides

" [e]ach communityboard may create committees on matters relating to

its duties and responsibilities. It may include on such committees persons
with a residence or significant interest in the community who are not
members of the board, but each such committee shall have a member of
the board as its chairperson. Except as otherwise provided by law,
meetings of such committees shall be open to the public." Section z8oo(i)
of the City Charter.

Petitioners argue that the two provisions of the by-laws they seek to void should be

redrafted so as to encourage the participation of non-board members on cornmittees.

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However, they only set forth the procedures for how non board members are appointed.

They do not irnpede non board member participation, they merely require that any non-

board members appointed to committees of the Board be appointment by the Chair of

the Board, or the committee chair.

Finally, Petitioners acknowledge that non-board members have been placed on

ceftain CB9 committees. Nothing in either the by-laws or the City Charter require that

any individual who wants to, be allowed to join Board committees. Sections B.z and

8.3c do not violate the Charter or any applicable statute, thus there is no basis for the

Court to invalidate them.

EQIL reques""ts

Petitioners allege that Respondents have failed to respond to FOIL requests made

by Petitioner BOYD dated December Lc,2ot4, February 3, 2015, June tt, zot5 and

December 16, 2015.

Respondents argued that the challenges to these FOIL requests have been

determined by Judge Baily Schiffman in a short form order on March 26, zot.5. The

short foi'm order annexed a chart created by responclents in that action. The chart listed

19 FOIL requests and how they were resolved, including the requests dated December

to,2ot4 and February 3, 2or;, which Petitioners allege in this petition remain

outstanding. That action was also against CB9, as well as Pearl Miles, in her official

capacity as district rnanager of CB9.

In a subsequent decision and order in that action dated November 25,2oLS,

Judge Baily Schiffman found that "all of the FOIL requests to which response is required

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have been complied with by Respondents". As Petitioner BOYD was a party in the

previous action before Judge Baily Schiffman, she is bound by the determination in that

case that all the FOIL requests had been complied with. Petitioner BOYD is precluded

by the doctrine of res judicata from re-litigating her requests of December Lo, zor4 and

February g, 2015 in this proceeding.

Petitioners allege that Respondent BERKE reftrsed to respond to a FOIL request

asking for proposed changes to by-laws which wele discussed at the by-law committee

meeting on June 10, 2o1S.

Petitioners also allege that a FOIL request to Respondent WITHERSPOON

seeking the rninutes for the May 26, zotg meeting, together with a letter requesting the

DCP zoning study of a portion of CB9, have not been complied with. Respondents

allege these documents have been provided to Petitioners. Further, Petitioners neither

allege nor demonstrate that they have taken an administrative appeal of the responses

to these requests.

Public Officers Law section 8g(+Xa)(b) provides that "fe]xcept as provided

in subdivision five of this section, any person denied access to a record
may within thirty days appeal in writing such denial to the head, chief
executive or governing body of the entity, or the person therefor
designated by such head, chief executive, or governing body, who shall
within ten business days of the receipt of such appeal fully explain in
writing to the person requesting the record the reasons for further denial,
or provide access to the record sought. Except as provided in subdivision
five of this section, a person denied access to a record in an appeal
determination under the provisions of paragraph (a) of this subdivision
may bring a proceeding for review of such denial pursuant to article
seventy-eight of the civil practice law and rules."

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 Since Petitioners have not exhausted their available administrative remedies,

their claims under article 78 for Respondents'failure to respond to FOIL requests must

be denied.

Publ i c p arti cip ati o-n:fsqpnunity b oard m eetings-

Petitioners assert that they are improperly deniecl the opportunity to participate

during community board meetings.

The City Charter, the by-laws and the Open Meetings Law each govern the

manner in which public meetings are conducted.

The City Charter addresses both public board meetings and committee meetings.

As regards board meetings, it provides "[a]t each pubiic meeting, the board shail set

aside time to hear from the public". New York City Charter $ z8oo(h). As to committee

meetings, Section 28oo (i) of the City Charter provides that "each communityboard

may create committees on matters relating to its duties and responsibilities. ... Except

as otherwise provided by law, meetings of such committees shall be open to the public".

The by-laws provide that "[a]t each [monthlyl meeting, the board shall set aside

time to hear from the public". The by-laws provide that ccornmittee meetings "shall be

conducted in accordance with the Open Meetings Law".

The Open Meetings Law provides that the public has the right "to observe the

performance of public officials and attend and listen to the deliberations and decisions

that go into the making of public policy" (see Open Meetings Law, $too). The Law does

not require public participation be allowed. The Open Meetings Law also permits that

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pubiic officials can make rules as to how they permit participation in meetings, so long

as the rules are not discriminatory.

Both the City Charter and the by-laws provide fol the public to speak at monthly

public meetings. While the City Charter provides that the public may attend committee

meetings, there is no requirement for public participation.

Therefore, public participation is required only at monthly meetings'

In support of their claims, Petitioners submit three affidavits which allege when

commnnity members were not permitted to speak at meetings.

Petitioner ALICIA BOYD clairns she was not permitted to speak at a May rB, zor5

meeting, a September L6, zor5 meeting, and an October 15, 2015. Each of these

meetings appears to have been an Executive Committee Meeting. Meetings of the

Executive Committee, as provided for in section 8.6 of the by-laws, are to be held by the

members who are the officers of the Board. l'hey are not public monthly meetings and

therefore neither the Charter nor the by-laws provide for the public to speak at the

Executive Committee meetings.

Elizabeth Mackin, a non-party, submits an affidavit in which she claims that

residents could not speak at a by-law Cornmittee tneeting which was ireld on January zt,

2o1b. By-law committee meetings are not public monthly meetings and therefore

neither the Charter nor the by-laws provide for the public to speak at them.

Finally, Petitioner PAMELA YARD claims that the public was not allowed to

speak at "various meetings". YARD fails to provide any dates or a description of the

nature of the meetings.

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 Petitioners are only entitled to participate
in monthly public board meetings and
therefore their claims of being denied an
opportunityto speak at comnrittee nreetings
and other unspecified rneetings must be
denied.
The Court finds the Petitioners remaining
claims to be withogt merit.
WHEREFORE, by reasor of the foregoing,
the cross-motion is granted, and it is
hereby

ORDERED that the petition is dismissed.

This shall constitute the decision and order

of this courr.

EIVTER,

JS C llot{.WAlilEnsrnn
,.Lc

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