Less than two weeks after City Council member Inez Dickens negotiated an agreement granting her approval of the controversial 125th Street rezoning plan in exchange for more affordable housing and decreased building heights, VOTE People plans to file a lawsuit tomorrow to stop City Council from voting on the plan Wednesday.

VOTE People, which you may remember as the group that tried earlier this month to halt the rezoning process using an obscure section of the City Charter, is now contending that the City has not given area residents ample notification as required by law. More details when the full text of the suit becomes available tomorrow.

According to Director Craig Schley, VOTE People was unsuccessful in collecting the necessary signatures from 20% of property owners in the area to be rezoned. He says the group hit a roadblock when trying to determine exactly which properties were considered part of the rezoning area, and precisely how many signatures would be needed to force an approval by a three-fourths majority of the Council.

But this latest tactic, he said in a phone conversation, is part and parcel of the group’s earlier action.

“It’s all about notice, due process, and transparency,” said Schley.

VOTE People’s attempts to stop the Harlem rezoning plan from passing are especially contentious because the city has made a conspicuous effort to involve “the community” throughout the process; beginning in 2005, Community Boards, local business owners, elected officials, civic groups, and BID members were invited to participate in advisory workshops on the future of Harlem. Notes from one of these workshops, with a list of Advisory Committee members attached, are available here.

This is not to say that VOTE People are the only ones unhappy with the way the proposal turned out; Community Board 10 voted to give its Conditional Disapproval to the plan, saying that the Environmental Impact Statement underestimated the adverse effects of the rezoning on the area. The Board’s Resolution called for “Real Community Benefits,” including income-targeted housing, incentives to support local businesses, an arts bonus, environmental protections, a prohibition on the use of eminent domain, and a number of amendments to the zoning text.

That was in December. Community Boards 9 and 11, also affected by the proposed rezoning, both gave Conditional Approval, citing a number of problems with the plan as it stood. Borough President Scott Stringer joined CB10 in rejecting the plan. None of it made much difference, though; the City Planning Commission ignored all three boards’ input and approved the rezoning in March, to much public outcry. So did the City Council’s Zoning and Franchises Subcommittee. Then, two weeks ago, before the plan could go before the full Council, Inez Dickens forged a compromise promising her approval if the plan were amended to include more affordable housing and more stringent building height limits. The two other Council members representing the area — Robert Jackson and Melissa Mark-Viverito — signed on as well. Now, VOTE People hopes to prevent the City Council from hearing the proposal this Wednesday, as is currently scheduled.

So where did it all go wrong? Schley maintains that the “appointed boards to the community,” as he calls Community Boards, are not representative of the people, because members are appointed by the Borough President. But that explanation isn’t satisfying. The Boards didn’t approve of this rezoning, and neither did Stringer. No one was playing along to try to ensure reappointment. The bigger question here is why, following what by all appearances was a rigorous process of community input, are local City Council members standing with the Bloomberg administration and not with their own constitutents?

Chief Counsel Norman Siegel said that he has found no existing case law interpreting the section of the City Charter that the group seeks to use to block the City’s current 125th Street plans. However, according to General Counsel Erica Razook, the group has consulted several experts from past Charter Revision Commissions who have assured them that the clause — which hasn’t been invoked since the 1940′s — applies to this case.

VOTE People is contending that the City Council cannot vote before April 10, because doing so would encroach on the 30-day window the group has to collect signatures. If the City Council votes before then, Siegel says, his clients will sue.

VOTE People has two chief demands: first, that the city refrain from using eminent domain to conduct the rezoning; and secondly, that the city place a cap on commercial property rent increases, in order to protect “mom-and-pop stores.”

After Siegel finished outlined the legal logistics, a number of speakers came to the podium and fired up the small crowd of activists standing behind the reporters and photographers.

Nellie Bailey of the Harlem Tenants Council said that the current action should inspire all New Yorkers: “The radical makeover of Harlem is just the beginning for working-class neighborhoods,” she said. “This lawsuit will set the tone for resistance to come. Harlem’s fight is your fight!”

Next up was Councilman Charles Barron. “Harlem is not for sale!” he boomed, prompting a rash of applause and cheering. “I am from the People’s Republic of Brooklyn, but Harlem is the Black Mecca…. The city is using development as a new form of Jim Crow-ism,” he said. “Race and class are always at the bottom of this kind of development.”

He then commended Councilman Tony Avella of Queens, who is white, for his opposition to the 125th street rezoning plan: “I’ve decided to make Tony Avella an honorary black,” he joked.

Avella took the cue to come to the mic. “The people have lost power in New York City,” he said. “The only way to have recourse is to sue your own government. How sad is that?” He cited the example of the controversial Columbia decision, saying that the city has already “failed” the people of Harlem once. “I sincerely hope that doesn’t happen here. I gotta tell you, I’m not optimistic,” he said.

When I spoke to VOTE People executive director Craig Schley after the press conference, though, he emphasized that this legal action is only the beginning. He assured me, speaking of the rezoning plan: “This is not going to happen.”

Section 200 of the City Charter, Item #3:

“In case a protest against such a resolution approved by the city planning commission shall have been presented to the city clerk within thirty days from the date of the filing of such resolution with the council, duly signed and acknowledged by the owners of twenty per cent or more of the area of:(1) the land included in changes proposed in such proposed resolution, or (2) the land immediately adjacent extending one hundred feet therefrom, or (3) the land, if any, directly opposite thereto extending one hundred feet from the street frontage of such opposite land, such resolution shall not be effective after the filing of such protest unless approved by the council by a three-fourths vote within one hundred eighty days after the filing of said resolution with the city clerk.”

Who knew? Even Queens Councilmember Avella — chair of the Zoning and Franchises Subcommittee, which will be holding a hearing on the 125th Street rezoning today starting at 9:30 a.m. in the Council Chambers at City Hall — had no idea that this obscure rule existed.

Avella and Councilmember Charles Barron of Brooklyn are speaking in support of VOTE People at the press conference. Contacted by phone yesterday, Avella said the group’s action is unprecedented. “It’s interesting that no one ever noticed [the loophole] before,” he said.

He seemed unsure, however, as to whether the creative legal strategy would successfully prevent the rezoning from going through. “I think it will make it harder, obviously,” for the council to approve the proposal. “It gives the community another opportunity to ensure that their voices are heard.”

According to VOTE People’s position paper, the group “opposes the attempt by New York City agencies, in collaboration with private developers, to exile the community that has lived and worked in Harlem for generations and to replace it with a new culture and class wielding a higher income, thereby forever changing the demographic, through allegedly benign rezoning proposals.”

More to come as the hearing proceeds…

One group that weighed in, Voice Of The Everyday People (VOTE People), disapproves of the plan entirely and urged EDC to go back to the drawing board, with a larger and more inclusive advisory body from the community. But for the most part, Community Boards 9, 10, and 11 have gotten behind the plan, expressing specific reservations but supporting the overall goal of rezoning and revitalizing Harlem. Accordingly, much of the testimony at the hearing centered on ideas for making a rezoned 125th Street work for Harlem and its residents and businesses. Of special concern was the inevitability — acknowledged by the City in its own Environmental Impact Statement — that rezoning will displace existing businesses.

Carlton Berkeley, a retired police officer and longtime Harlem resident, summed up the reason that so many of his neighbors are resistant to development: “Walking along 125th Street…I saw 7 banks in half a block. I never knew Harlem had that much money!” he quipped, eliciting appreciative laughter from the audience.

Many of the morning’s speakers offered concrete suggestions for how City Planning Commission could move the rezoning forward while preventing gentrification and displacement.

David Cuttier of the Homeowners Association of East Harlem encouraged the commission to incorporate a proposal from Community Board 10, which provides explicit protections for local business owners and includes a bonus of greater building sizes for developers who hire Harlem residents for jobs.

Community Board 10 Chairman Frank Perry argued that the best way to preserve Harlem’s commercial character is to keep residential development out of 125th Street: “It is not and should not be a residential enclave.” Perry called for all residential upzoning along 125th Street be removed from the plan, a suggestion that appeared to spark the Commission’s interest. Commissioners Nathan Leventhal, Karen Phillips, and Angela Cavaluzzi questioned Perry at length about possible ways to stimulate arts and commercial development without significant upzoning. Perry insisted that commerce along 125th Street would develop naturally as rising rents below 96th street forced small business owners into Harlem, and that residential upzoning should be limited to 124th and 126th Streets.

125th Street Business Improvement District Chairman Eugene Giscombe pointed to what many residents see as the most serious threat to their neighborhood: national retailers that would follow the rezoning into Harlem. “People do not come from all over the world to see a chain drugstore,” he said. He also encouraged the Commission to build long-term developer accountability into the plan: “You need to manage a lot of these proposals,” he said. “Often, after ten years or five years or two years, it’s something different” from what developers originally promised.