Kaskel v. Impellitteri

Desmond, J.

The nature of this suit and its procedural history, as well as the constitutional and statutory provisions which authorize slum, clearance and redevelopment by cities, are so carefully described in the dissenting opinion as to make repetition unnecessary. The position is this: plaintiff, as a taxpayer, disputes the conclusion of various qualified public bodies and officers that the area, in' Manhattan, bounded by Columbus Circle, Broadway, Eighth Avenue, Ninth Avenue, West 58th and West 59th Street, is “ substandard and insanitary ”. Plaintiff says it is not, and demands that the courts hold a trial to settle this allegedly justiciable issue of fact. But there is no dispute as to the physical facts. In rounded figures, 20% of the land proposed to be taken is occupied by dwellings all but one of which are more than sixty years old, 7 % of the site is covered by hotels and rooming houses, 34% is in parking lots where once there were outmoded buildings, and 39% is occupied by nonresidential structures. Of course, none of the buildings are as noisome or dilapidated as those described in Dickens’ novels or Thomas Burke’s “ Limehouse ” stories of the London slums of other days, but there is ample in this record to justify the determination of the city planning commission that a substantial part of the area is “ substandard and insanitary ” by modern tests, and that the whole 6.32 acres, taken together, may reasonably be considered a single ‘ ‘ area ’ ’ for clearance and redevelopment purposes. Power to make that determination has been lodged by the Constitution (N. Y. Const., XVIII, § 1) and the statute (General Municipal Law, § 72-k) in the city planning commission and the board of estimate, and when those bodies have made their finding, not corruptly or irrationally or baselessly, there is nothing for the courts to do about it, unless every act and decision of other departments of government is subject to revision by the courts (see Matter of Cruger, 84 N. Y. 619, 622; Ziegler v. Chapin, 126 N. Y. 342, 348).

The opinion of Judge Van Voobhis disposes of all plaintiff’s contentions, except that stated in clause (D) of paragraph Twenty-Fourth of the complaint, “ That the project area is not a substandard and insanitary area, and that any finding, consent or report by the defendants to the effect that such area is a substandard and insanitary area is unreasonable, arbitrary, *79 capricious and illegal ”. That part of the complaint apparently attempts to state a taxpayer’s action under section 51 of the General Municipal Law. However, since no corruption or fraud is charged, plaintiff Kaskel, as a taxpayer, cannot succeed in such a suit, unless there is a total lack of power in defendants, under the law, to do the acts complained of (Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Altschul v. Ludwig, 216 N. Y. 459). The decisions under section 51 make it entirely clear that redress may be had only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes. Although the plaintiff here complains of the choice of this site for clearing and redevelopment as being ‘ ‘ arbitrary and capricious ”, we must keep in mind that this is not an “article 78” proceeding dealing with a situation wherein it might be claimed that public officials, although acting within their powers, are doing so in a way that is arbitrary or capricious. The substance of plaintiff’s contention in this respect is simply that this whole project is illegal because, according to him, the chosen site or area is not in fact substandard or insanitary.

There is no real question of fact here since the details as to age, condition and present use of the properties involved are undisputed and indisputable, as shown by the exhibits. Plaintiff does not dispute with defendants as to the condition of these properties or of the whole area. He is simply opposing his opinion and his judgment to that of public officials, on a matter z= which must necessarily be one of opinion or judgment, that is, | as to whether a specified area is so substandard or insanitary, I or both, as to justify clearance and redevelopment under the" law. It is not seriously contended by anyone that, for an area to be subject to those laws, every single building therein must be below civilized standards. The statute (and the Constitution), like other similar laws, contemplates that clearing and redevelopment will be of an entire area, not of a separate parcel, and, surely, such statutes would not be very useful if limited to areas where every single building is substandard. A glance at the photographs, attached to the city’s affidavit on these motions, shows that a considerable number of buildings in this *80 area are, on a mere external inspection, below modern standards because of their age, obsolescence and decay. The other exhibits confirm this. Therefore, the question here is not whether certain public officials have acted arbitrarily or unwisely in coming to a certain conclusion. Here we have a naked question of legality, that is, of power, and the particular power to make a determination on this matter of judgment has been conferred by statute on these defendants. Four different public bodies have, after adequate investigation and consideration which appears in the record, determined that this area may properly be considered substandard and insanitary (five such bodies if we include the Triborough Authority, and seven if we include the Special Term and the Appellate Division). One can conceive of a hypothetical case where the physical conditions of an area might be such that it would be irrational and baseless to call it substandard or insanitary, in which case, probably, the conditions for the exercise of the power would not be present. However, the situation here actually displayed is one of those as to which the Legislature has authorized the city officials, including elected officials, to make a determination, and so the making thereof is simply an act of government, that is, an exercise of governmental power, legislative in fundamental character, which, whether wise or unwise, cannot be overhauled by the courts. If there were to be a trial here and the courts below should decide in favor of plaintiff, there would be effected a transfer of power from the appropriate public officials to the courts. The question is simply not a justiciable one.

A persuasive authority quite closely in point is Stockus v. Boston Housing Authority (304 Mass. 507, see beginning, p. 509). There a complaint was held insufficient in law which, much like our pleading here, said that the buildings in a certain area were in fact in such physical condition that the area could not be dubbed “ substandard ”. The Supreme Judicial Court of Massachusetts said: “ The extent that these various elements enter into and form the predominating and distinctive traits of a neighborhood is largely a matter of opinion ” and a matter of “ practical judgment, common sense and sound discretion ”. The Supreme Judicial Court of Massachusetts pointed out that *81 men of training and experience might honestly differ as to whether a certain district was a slum area, but that in such cases the Legislature had undoubtedly given the local authorities power to make the determination; at page 510 of the opinion, the court pointed out that ‘ ‘ The allegation that the dwellings in this area are in good repair and condition is not an allegation that the defendants may not reasonably adjudge otherwise ”. The court stated, as is obviously correct, that the test is as to the area as a unit, and not as to any one or more particular structures, and that the allegations of the complaint stated no more than a mere opinion of the plaintiff on a perhaps debatable question which had been left by the Legislature to certain specified public officials (see, also, Schenck v. Pittsburg, 364 Pa. 31, 36; 11 McQuillin on Municipal Corporations [3d ed.], § 32.61, and decisions cited in notes to that section).

Another pertinent case is Davidson v. City of Elmira (180 Misc. 1052, affd. 267 App. Div. 797, motion for leave to appeal denied 292 N. Y. 723); the Special Term opinion, particularly at pages 1056 et seq. of Volume 180 Miscellaneous, is instructive and persuasive. Our decision in Denihan Enterprises v. O’Dwyer (302 N. Y. 451) is not pertinent here; among the differences between that case and this, is that, in Denihan, we had before us the complaint only, and that pleading stated a triable issue of fact as to whether the dominant purpose of that proposed taking was public or private.

It is not necessary, nor would it be useful, for us to measure the full possible reach of section 1 of article XVIII of the State Constitution, or section 72-k of the General Municipal Law. It is not to be assumed that responsible public officers will, in some future instance, label as “ substandard or insanitary ” an area in which there are no buildings at all, or fine, modern buildings only, or that they will attempt to condemn a number of such buildings by stretching the concept of “ area ”. Such attempts can be dealt with if and when they are made.

In addition to the appeals from the final judgment, plaintiff has appealed upon a certified question, pursuant to permission of the Appellate Division, from the order of the Appellate Division insofar as it affirms Special Term’s denial of an injunction *82 pendente lite. This appeal must be dismissed (Civ. Prac. Act, § 589, subd. 4, par. [b]; § 603; Langan v. First Trust & Deposit Co., 296 N. Y. 60; Evadan Realty Corp. v. Patterson, 297 N. Y. 732).

The judgment should be affirmed, with costs.