[145 N.Y.S.2d 191] Anthony Curreri, New York City, of counsel (Seymour B. Quel, New York City, with him on the brief, Peter Campbell Brown, Corporation Counsel, New York City), for complainant-appellant.
Eugene J. Morris, New York City, of counsel (Abraham Wilson, New York City, and Matthew J. Domber, New York City, with him on the brief, Demov & Morris, New York City), for defendant-respondent.
Before BREITEL, J. P., and BASTOW, BOTEIN, RABIN and COX, JJ.
This is an appeal by the People from an order of the Court of Special Sessions dismissing two informations filed herein. The dismissal was on the ground that Section 3 of Article II of the Zoning Resolution is invalid in that the resolution was made and promulgated by the City Planning Commission without statutory sanction or authority. The statutes involved are: Section 200 of the New York City Charter which empowers the City Planning Commission, subject to the approval of the Board of Estimate as herein specified, to amend, repeal or add to:
'Any existing resolution or regulation of the board of estimate to regulate and limit the height and bulk of buildings, to regulate and determine the area of yards, courts and other open spaces or to regulate and restrict the locations of trades and industries and the location of buildings designed for specific uses or creating districts for any such purpose, including any such regulation which provides that the board of standards and appeals may determine and vary the application of such resolutions or regulations in harmony with their general purpose and intent and in accordance with general or specific rules contained in such regulations.' (Italics supplied.)
Section 200-2.0 of the Administrative Code of the City of New York grants power to the City Planning Commission to accomplish the objects of the above charter provision in the following language:
' § 200-2.0 City planning commission to regulate location of trades and industries and of buildings designed for specific uses.--The commission, subject to the provisions of sections two hundred and two hundred one of the charter, may regulate [145 N.Y.S.2d 192] and restrict the location of trades and industries and the location of buildings designed for specific uses, and may divide the city into districts of such number, shape and area as it may deem best suited to carry out such purposes. For each such district regulations may be imposed designating the trades and industries that shall be excluded or subjected to special regulations and designating the uses for which buildings may not be erected or altered. Such, regulations shall be designed to promote the public health, safety and general welfare. The
commission shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the direction of building development in accord with a well-considered plan.'
Pursuant to the power given to the City Planning Commission, it enacted acted in Art. 2 thereof the following provisions:
' § 3. Residence districts. In a residence district no building or buildings shall be erected other than a building or buildings arranged, intended or designed exclusively for one or more of the following specific uses:
'(1) Dwellings, which except as hereinafter provided in §§ 14-A, 15-A, 16-B and 16-C [sections dealing with districts where only single family dwellings are permitted] shall include dwellings for one or more families and boarding houses and also hotels ...