Sullivan, J. P. (dissenting). As the majority has stated, this appeal follows a proceeding wherein one Justice of the Supreme Court modified the plan of the 15-member, nonpartisan *30Districting Commission insofar as Districts 1, 33 and 38 are concerned. Since I believe that the action of the Supreme Court was unwarranted and based upon an improper analysis of the facts and the law, I dissent.
At the outset, it is important to know exactly what area is involved in these proceedings: it is Furman Street from Atlantic Avenue to the Brooklyn Bridge and west including the upland areas of Piers 1 through 6 and those piers themselves. Furman Street runs along the base of the Brooklyn-Queens Expressway (hereinafter the BQE). In that area, the BQE is layered and on top is the Promenade. This lowland area consists of warehouses, some industrial facilities and the pier sheds of a now defunct shipping industry. This is the area which the petitioners, two associations and several individual residents of up-scale residential communities, claim is an integral part of their "neighborhood” and could not be separated from them pursuant to the mandate of the New York City Charter (NY City Charter § 52 [1] [c]).
There is no question but that the primary obligations of the Districting Commission in establishing a plan for the enlarged number of council districts were to create districts that were substantially equal in population (NY City Charter § 52 [1] [a]) and to ensure fair and effective representation of those racial and language minority groups in New York City which are protected by the United States Voting Rights Act of 1965, as amended (NY City Charter § 52 [1] [b]). In order for the plan to be effective, nine or more Commissioners had to sign a certificate setting forth the manner in which the Commission implemented these requirements as to protected minorities (NY City Charter § 51 [g]; § 1152 [d] [11]). Eleven members of the Districting Commission signed such a certificate on June 7, 1991, and on the same date filed the plan and certificate with the City Clerk.
There is also no question but that the Districting Commission was to base its plan on conditions as they existed in 1990 as revealed in the 1990 Federal census. This is the explicit command of New York City Charter § 1152 (d) (11) (b). The Commission was mandated to prepare a plan, hold hearings, revise the plan, hold hearings on the revised plan, and to adopt a final plan within the two-month period from April to June 7, 1991 (NY City Charter § 1152 [d] [11] [j]). Conditions that existed in earlier years were irrelevant, as was population information from any other source.
*31The composition of the Districting Commission itself was prescribed with great care. Eight of the 15 members were named by the members of the City Council; five by members of the majority party (NY City Charter § 50 [a] [1]), and three by members of the second largest party (NY City Charter § 50 [a] [2]). The remaining seven members were appointed by the Mayor; however, his appointees were not to create a majority in any party (NY City Charter § 50 [a] [4]). In addition, the Commission had to have at least one resident from each borough of the City (NY City Charter § 50 [b] [1] [a]) and most importantly, the Commission had to have members from those racial and language minority groups protected by the Voting Rights Act of 1965, as amended, in proportion to their population in the City (NY City Charter § 50 [b] [1] [b]). In short, this Commission was a far truer microcosm of the City, politically and ethnically, than was the existing City Council or any other legislative body.
At the outset we must examine the standard of judicial review of districting proposals. Recently, the Court of Appeals set forth the standard in Matter of Wolpoff v Cuomo (80 NY2d 70). In Wolpoff the courts were asked to strike down the laws (L 1992, chs 76, 77, 78) enacting a redistricting plan for the Senate and the Assembly. Specifically, it was claimed that the plan for redistricting the Senate violated NY Constitution, article III, § 4 mandating county integrity in devising senatorial districts. It was conceded that the proposed plan did in fact violate that section of the State Constitution. Nonetheless, the Court upheld the redistricting plan, noting that the Legislature, like the Districting Commission in this case, had to draw the lines in conformity with Federal constitutional and statutory requirements. Under such circumstances, the Court stated: "The test is whether the Legislature has 'unduly departed’ from the State Constitution’s requirements regarding contiguity, compactness and integrity of counties (Matter of Schneider v Rockefeller, 31 NY2d 420, 429) in its compliance with Federal mandates. '[I]t is not our function to determine whether a plan can be worked out that is superior to that set up by [the Legislature]. Our duty is, rather, to determine whether the legislative plan substantially complies with the Federal and State Constitutions’ (id., at 427). A strong presumption of constitutionality attaches to the redistricting plan and we will upset the balance struck by the Legislature and declare the plan unconstitutional ' "only when it can be shown beyond reasonable doubt that it conflicts *32with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible” ’ (Matter of Fay, 291 NY 198, 207)” (Matter of Wolpoff v Cuomo, 80 NY2d 70, 78 [emphasis supplied]).
With this standard in mind, I turn now to the analysis of this case. Contrary to the majority and the Supreme Court Justice who decided this matter initially, I do not find that the plan for District 33 violates the requirements of New York City Charter § 52 (1) (c). Simply put, I do not think that the petitioners established beyond reasonable doubt that the remote historical ties between Furman Street and the areas west to the bulkhead line and the neighborhood of Brooklyn Heights were sufficient to outweigh the fact that the two areas have been physically separated for nearly 40 years. While the anecdotal evidence contained in the affidavits of neighborhood residents that George Washington retreated from what is now Furman Street, or that in the 1880s shipowners who lived in Brooklyn Heights had tunnels running down to their piers, are interesting bits of history, they have little relevance to the area today.
There is no question but that the building of the Brooklyn-Queens Expressway, completed in the 1950s, effectively separated the piers and industrial lowlands from the residential area on the bluffs that gave Brooklyn Heights its name. No one today can sleigh ride down Montague Street and the Penny Bridge is long gone. Since the BQE, Brooklyn Heights has ended at the Promenade. In 1965, the New York City Landmarks Commission, recognizing Brooklyn Heights as a residential area of architectural significance, established the Brooklyn Heights Historic District. The western boundary of the district is "the Brooklyn-Queens Connecting Highway”. In short, the contested area, i.e. Furman Street and the land west of it, were not part of Brooklyn Heights in 1990. Clearly the petitioners did not establish a violation of New York City Charter § 52 (1) (c).
Turning to the contention that the Commission was arbitrary and capricious in declining to split census tabulation block 105, I find it to be totally devoid of merit. This is the nub of the decision of the trial court and the majority. I find it lacking in precedential support or logic.
There is no doubt that the Commission had to perform its complex and difficult task of redistricting the City of New *33York on the basis of the Federal census returns. In Seaman v Fedourich (16 NY2d 94, 104), Judge Fuld stated: "as it relates to local apportionment or districting, the declared policy is readily apparent and reason dictates that the most recent official census be employed in this area as well” (emphasis supplied).
The strength of this policy was recognized by the Charter provision setting up the Commission and its mandate. New York City Charter § 1152 (d) (11) (b) required the redistricting plan to be based on the results of the 1990 Federal census as delivered to the Governor by April 1, 1991. This census information for the City of New York was provided in 33,559 census tabulation blocks. As the majority recognizes, these census tabulation blocks are the smallest geographic unit used by the Federal Bureau of the Census and hence the building blocks the Commission had to use in creating its plan.
In other cases involving redistricting of counties and cities, the courts have been steadfast in rejecting plans that disregarded or split geographic units used by the Federal Bureau of the Census (see, Thayer v Garraghan, 28 AD2d 584, 29 AD2d 825, affd 21 NY2d 881; Honig v Rensselaer County Legislature, 37 AD2d 658, affd 29 NY2d 630; Chonigman v County of Westchester, 192 AD2d 499). It is true that in Thayer v Garraghan ([hereinafter Thayer II] 29 AD2d 825, affd 21 NY2d 881, supra), the courts approved a plan redistricting the Common Council of the City of Kingston based upon split enumeration districts where the Bureau of the Census itself adjusted the population figures between the parts of the enumeration districts. Clearly that is not the case here. Furthermore, in Thayer II (supra), it was held that the City could base its plan on any formulation of the 1960 census figures made available by the Bureau of the Census not just those duly certified by the Bureau. In this case, however, the Commission was limited to the census results as delivered to the Governor by April 1, 1991 (NY City Charter § 1152 [d] [11] [b]). Thus, it appears that the option of splitting census enumeration blocks with the assistance of the Bureau of the Census was not legally available to the Commission.
Given the clear line of cases mandating the use of Federal census data as supplied by the Bureau of the Census (in census enumeration blocks) and permitting the splitting of those blocks only when the population estimates have been verified by the Bureau of the Census, and given that the *34entire plan had to be completed in slightly more than two months, how can it be said that the Commission’s decision not to split census enumeration blocks was arbitrary or capricious? Over the span of 25 years, a clear State policy has evolved: in redistricting, a plan must be based on Federal census enumeration blocks and nothing less unless the Bureau of the Census verifies the population in some way. This is the policy the Commission adopted, and which the majority now says is arbitrary and capricious. It is the same policy adopted by this Court (Chonigman v County of Westchester, supra), the Appellate Division, Third Department (Thayer v Garraghan, 28 AD2d 584, supra; Honig v Rensselaer County Legislature, supra) and the Court of Appeals (Seaman v Fedourich, supra; Thayer v Garraghan, 21 NY2d 881, supra; Honig v Rensselaer County Legislature, 29 NY2d 630, supra), yet the majority says it was arbitrary and capricious for the Commission to adopt it. Not only do I find this reasoning less than compelling, I am baffled at its application so as to achieve a dubious result, the unification of a virtually abandoned industrial/shipping area with an upscale residential community that has been physically separated from it for 40 years. The decision of the Commission " 'is to be accepted by the courts "if it has 'warrant in the record’ and a reasonable basis in law” * * *. "The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body” (Rochester Tel. Corp. v U. S., 307 U. S. 125, 146)’ ” (Matter of Howard v Wyman, 28 NY2d 434, 438).
For all of the reasons stated above, I believe the determination of the trial court was in error and the judgment should be reversed and the proceeding dismissed.
O’Brien and Pizzuto, JJ., concur with Copertino, J.; Sullivan, J. P., dissents in a separate opinion in which Balletta, J., concurs.
Ordered that the judgment is affirmed, with costs.