5.This Court has jurisdiction under Section 7801 of the Civil Practice Law and Rules to review administrative decisions of Respondents.

STANDING

 6. Petitioner has standing because it is an association of members of the community served by Respondents; because the homes of its members are affected and threatened by Respondents'  decisions; because its members have attended all pertinent meetings of Respondents;  have requested and sometimes been denied the right to speak and to distribute literature; have been threatened and ordered to leave by police and private security at Respondents'  meetings; and have filed letters and petitions with Respondents opposing rezoning, each signed by eighteen hundred residents of the area or more.

THE FACTS

Background

7.The neighborhoods served by Respondents, and in particular Crown Heights and Lefferts Gardens, have undergone a wave of developer interest and gentrification in the last few years, with more than twenty new luxury residential buildings under construction and a more than one tenth drop in the number of affordable apartments in the last two years alone.

8. On March 17, 2014, Respondents conducted an Informational Forum with the community to gather information and opinions considering a rezoning request, and presented it to the City Planning Commission to study.

9. On March 25, 2014 Respondent Pearl Miles, the author of this document, presented the summarization to Respondent CB9 and it was passed as a resolution (the “Rezoning Resolution”)  but not published to the community,  and was given to City Planning on April 7, 2014.

10. The Rezoning Resolution  contained language that was highly technical but after examination  appeared to support a rezoning effort opposed by the community.

11. There was no community support or involvement in  creation of the Rezoning Resolution; it permitted the building of new high-rise construction  all throughout the community, on every major avenue; it specifically targeted Empire Boulevard where 100 year old two story homes would be jeopardized and sunny blocks placed in shadow; it ignored the fact that this community is the densest area in Brooklyn, where 93% of the population (250,000) lives within one quarter  mile of  the Park, and where the proposed development  would cause increased harm to the existing residents via pollution, lack of services, traffic congestion,  etc. ;  it avoided acknowledging that  a projected 100,000 people could be displaced, from the second most affordable community in Brooklyn;  also, the Rezoning Resolution dodged the issue that the  visual integrity, and plant life of Brooklyn Botanical Garden and Prospect Park would be compromised, due to the creation of high-rise buildings all along Washington Ave, Flatbush Ave and Ocean Ave, from Eastern Parkway to Parkside.

12.Community Boards can have up to fifty appointed members, serving two year terms, staggered so that only half the members can be replaced every year.

13. While most community boards reappoint many of the same individuals for additional terms, in order to retain their expertise and experience. Respondent has undergone an extraordinary change in membership, of 18  new members compared to an average of 6 replacements on the 17 other boards in Brooklyn.

14. 83% of the Executive Board was replaced compared to .07%, for the 17 other boards in Brooklyn, with the result that there are a lot of inexperienced new board members and executive board members, who clearly don’t know how to run a community board, nor understand their role as representatives of the community.

15. Respondent CB9  has been further compromised by the members having close ties to either developers or elected officials via vocation, personal relationship,  family employment, other business relationships or personal ties.

16.This has created an inexperienced and highly politicized Community Board  that in conducting its proceedings has disregarded the  community’s interests and needs,  and the requirements of the Open Meetings Law, the City Charter, The Guide to Parliamentary Procedures for New York City Community Boards, Community Board 9 Bylaws and the First Amendment. 

The Rezoning Resolution

17. Respondents failed to publish the Rezoning Resolution, in violation of the Open Meetings Law requirement that public bodies maintain minutes which include all “matters formally voted upon by the public body and the vote thereon”.

18. Petitioner urges that as a result of the Respondents' failure to publish the Rezoning Resolution, the four month Article 78 statute of limitatioons has not expired,  and the Rezoning Resolution should be held null and void by this Court.

The September 23rd, 2014 Meeting

            19.The September 23rd, 2014 meeting, originally scheduled for a smaller venue, was moved to a much larger one based on public interest; Respondents'  attempts since then to move the meetings back to a smaller auditorium reflect either a misunderstanding of the continued public interest in Respondents' deliberations or an illegal attempt to control and limit access to its deliberations.

            20. A resolution was considered at this meeting to rescind  the Rezoning Resolution  (the “Rescission Resolution”).

            21.  Members of the public and of the press at the meeting understood that the Rescission Resolution had passed on a vote of 18 yes votes to 9 noes and 8 abstentions.

            22.  On information and belief, when Respondents issued the minutes for the September 23, 2014 meeting on October 28, 2014, thirty-five days after the September meeting in violation of the Open Meetings Law, they incorrectly  reported that the Rescission Resolution  had been defeated on a vote of 16 yes votes (disregarding the yes votes of two members), 9 no votes and 8 abstentions, stating that under their bylaws, the resolution failed because “yes” votes did not exceed “no” votes plus abstentions.

            23. Respondents failed to record the individual votes tallied on the Rescission Resolution as required by the Guide to Parliamentary Procedures for New York City's Community Boards and the Open Meetings Law ( as they have repeatedly failed to record such votes on all other matters).

            24.Petitioner has submitted a FOIL request for the record of specific votes tallied in the vote on the Rescission Resolution, but Respondent has not complied.

            25. Petitioner urges this Court to order Respondents to reissue the minutes of the September meeting to reflect the passage of the Rescission Resolution and to perform such other administrative acts as follow from the passage of the Rescission Resolution.

The October 28, 2014 Meeting

26. Under the New York State Open Meetings Law, Respondents are required to hold all their meetings open to the public.

27. On October 28, 2014, the venue in which Respondents scheduled their meeting was too small to accommodate the public which showed up, due to the high interest of the subject under consideration (the rezoning study), despite the fact that respondents had previously had to move the September meeting to a larger venue.

 28. Respondents utilized the New York City police to exclude members of the public from the meeting and to threaten them with arrest, declined to postpone or to move the meeting to a larger venue until forced to do so by the venue, and otherwise acted in violation of applicable law.

            29.This police presence, and the effects of being excluded from a small venue, has had and continues to have a chilling effect on the exercise by the public of their rights under the Open Meetings Law, the City Charter and the First Amendment, discouraging public participation in and the expression of community views at Respondent's meetings.

30. Petitioner urges that, because not all attendees who wished to do so were  allowed to participate in this meeting, the October 28 meeting should be held null and void by this Court, and a new meeting should be scheduled, to be held in compliance with requirements of the Open Meetings Law, the City Charter, The Guide to Parliamentary Procedures for New York City Community Boards and the First Amendment.

The November 3, 2014 Meeting

31. The meeting was eventually rescheduled to another venue, 395 Lenox Road,  on November 3, outside the boundaries of Respondents’ district, at which various members of the public who wished to speak were again refused, and security threatened some attendees with ejection if they did not refrain from speaking quietly to one another and from distributing First Amendment-protected literature.

32. Although Respondents have allowed other groups to distribute literature from tables set up in the meeting room, they have attempted to prevent Petitioner from doing so, and refused again at the November 3 meeting.

33. Respondents also refused to permit videotaping by the public, even though videotaping and photography is permitted by the Open Meetings law and had always previously been allowed at Respondents’ meetings.

34. Respondents refused to set aside time to hear from the community on

November 3, 2014 as is required by the New York City Charter and Open Meetings Law.                          35. In an attempt to circumvent the law, Respondents  added last minute items to the agenda, engaged in purposeful delaying tactics,  and then abruptly concluded the meeting without hearing from the public.

            36.Respondents utilized the New York City police to create an atmosphere of intimidation and anxiety by having over 20 uniformed police officers on site, which has caused community reluctance to participate in future meetings of Respondents because of the police presence.

37.Petitioner urges that, because residents were not allowed to video the proceedings, were not allowed to speak publicly, and were stopped from distributing literature, the  Nov 3 meeting should be held null and void by this Court, and a new meeting scheduled, to be held in compliance with requirements of the Open Meetings Law, the City Charter, The Guide to Parliamentary Procedures for New York City Community Boards and the First Amendment.

The FOIL Requests

 38.Petitioner submitted  FOIL requests to Respondents, which have not been complied with in a timely manner.

Other Matters

  39. On information and belief, Respondents have also held secret meetings with the City Planning Commission in the last few months, where decisions have been made, also in violation of the Open Meetings Law.

                40. The Open Meeting Law requires Respondent to make public the minutes of meetings of all public bodies within two weeks from the date of such meetings, and Respondents have routinely failed to do so.

                 41.  Respondents have scheduled their next meeting on December  16, 2014, again in a venue far too small to accommodate the public.

                 42. Respondents require that members of the public who wish to speak sign up in advance, yet by withholding the agenda of previously scheduled meetings until one business day before, make it difficult for the public to do so.

                  43. Even though the bylaws require at least five meetings of each committee per year, Respondents have failed to arrange for committees to meet on a regular basis, further reducing public participation;  for example, despite (or perhaps because of) huge community  interest in the rezoning issue the land use committee has not met during 2014.

           44.Respondents minutes of meetings are poorly and incompletely drafted, omitting or mischaracterizing significant events, discussions and decisions, and failing to incorporate a vote tally.

           45.Respondents show every sign of being inexperienced with and unaware of the requirements of the Open Meetings Law and would benefit from the training provided for in Section 107 of that law.

           46.Respondents have usually failed to give seven days advance notice of meeting agendas as required by the Open Meetings law.

 


FIRST CAUSE OF ACTION


Article 78


           47. Paragraphs 1 through 46 are repeated as though more fully alleged herein. 
           

           48. Petitioner has exhausted all administrative remedies and has made no prior request to this or any Court for the instant relief.

            49. By reason of the foregoing, Petitioner is entitled to judgment pursuant to Article 78 directing Respondents  to  comply with the Open Meetings Law, New York City Charter, CB9 Bylaws,  The Guide to Parliamentary Procedures for New York City Community Boards, and the First Amendment  by:  holding their meetings in venues sufficient to accommodate the public;  allowing all members of the public who wish to speak to do so regardless of whether they signed up in advance; publishing the complete agenda and the resolutions under consideration in advance of the meeting; permitting the distribution of Petitioner’s literature at the meeting; allowing videotaping of the meetings; refraining from deploying police or security to intervene in and chill peaceful, First Amendment-protected public attendance and behavior; requiring Respondents to publish all resolutions; requiring Respondents to tally all votes by their members; requiring Respondents to make all minutes of meetings available within two weeks afterwards; requiring that all minutes fully and accurately describe the events, procedures followed and votes at such meetings; refraining from holding secret meetings; complying with Petitioner’s FOIL requests; scheduling public meetings at least five times per year of all committees; declaring null and void the Rezoning  Resolution; requiring Respondents to amend their minutes to acknowledge passage of the Rescission Resolution and  to perform any administrative acts following from its passage;  declaring null and void the meetings held on October 28, 2014 and November 4, 2014, and directing that these  be reconvened and conducted in compliance with  the applicable laws and the directives listed in this paragraph;  and ordering Respondents to undergo the training provided in Section 107 of the Open Meetings Law.

 

SECOND CAUSE OF ACTION

Declaratory Judgment

           51. Paragraphs 1 through 50 are hereby repeated and re-alleged.

           52. By reason of the foregoing, Petitioner demands  declaratory judgment  stating  that:  Respondents violated the The Open Meetings Law, New York City Charter, CB9 Bylaws,  The Guide to Parliamentary Procedures for New York City Community Boards, and the First Amendment  by: holding their meetings in venues insufficient to accommodate the public;  refusing to allow all members of the public who wish to speak to do so regardless of whether they signed up in advance; failing to publish the complete agenda and the resolutions under consideration seven days in advance of each meeting; prohibiting the distribution of Petitioner’s literature at the meetings; prohibiting videotaping of the meetings;  deploying police or security to intervene in and chill peaceful, First Amendment-protected public attendance and behavior;  failing to publish all adopted resolutions;  failing to tally all votes by their members;  failing to make all minutes of meetings available within two weeks afterwards;  issuing minutes which do not fully and accurately describe the events, procedures followed and votes at such meetings;  holding secret meetings; failing to comply with Petitioner’s FOIL requests; failing to schedule public meetings at least five times per year of all committees; and also declaring that the Rezoning Resolution is null and void; that Respondents inaccurately  stated in their minutes that the Rescission Resolution was not adopted I’m just a little confused about this comment?;  that the meetings of  October 28, 2014 and November 4, 2014 were held in violation of the requirements of the above-cited laws.

THIRD CAUSE OF ACTION

Permanent  Injunction

                        53. Paragraphs 1 through 52 are hereby repeated and re-alleged.

            54. Respondent's actions threaten and inflict irreparable harm upon Petitioner and the entire community served by Respondents,  by making fateful and fatal decisions about zoning and development while denying Petitioner and the community the right to understand, comment and be involved in the decision-making process about their neighborhoods and homes.

            55. A balancing of the equities favors Petitioner and the community, because Respondents are clearly acting in derogation of the laws and Petitioner and the community have a right of notice and full participation in Respondents' meetings and decision-making process.

56. By reason of the foregoing, Petitioner demands  a permanent injunction requiring  Respondents to comply with the Open Meetings Law, New York City Charter, CB9 Bylaws,  The Guide to Parliamentary Procedures for New York City Community Boards, and the First Amendment  by:  holding their meetings in venues sufficient to accommodate the public;  allowing all members of the public who wish to speak to do so regardless of whether they signed up in advance; publishing the complete agenda and the resolutions under consideration seven days in advance of the meeting; permitting the distribution of Petitioner’s literature at the meeting; allowing videotaping of the meetings; refraining from deploying police or security to intervene in and chill peaceful, First Amendment-protected public attendance and behavior; requiring Respondents to publish all adopted resolutions; requiring Respondents to tally all votes by their members; requiring Respondents to make all minutes of meetings available within two weeks afterwards; requiring that all minutes fully and accurately describe the events, procedures followed and votes at such meetings; refraining from holding secret meetings; complying with Petitioner’s FOIL requests; scheduling public meetings at least five times per year of all committees;    directing that the   October  24 and November 4 meetings  be reconvened and conducted in compliance with  the applicable laws and the directives listed in this paragraph; and directing Respondents to undergo the training provided for in Section 107 of the Open Meetings Law.

57.Petitioner demands an evidentiary hearing at which it can present live witness testimony in further support of the matters alleged and claims raised herein.

WHEREFORE, Petitioner demands judgment on the First Cause of Action pursuant to Article 78, the Second Cause of Action in the form of a Declaratory Judgment, and on the Third Cause of Action granting a permanent injunction, pursuant to the Open Meetings Law, the New York City Charter, The Guide to Parliamentary Procedures for New York City Community Boards, Community Board 9 Bylaws, and the First Amendment, on each cause of action  for the relief  stated in each section;   and awarding petitioner its legal fees and expenses; together with such other and further relief as may be just and proper.

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