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Advisory Opinions

ADVISORY OPINION 1987-10
ISSUE
Does the representation of clients, who favor or oppose the conversion of commercial and manufacturing loft buildings to residential use before the New York City Loft Board, constitute "lobbying" or "lobbying activity" under Ad. Code Sec. 3-211?

OPINION*
Subchapter 2 of Chapter 2 of Title 3 of the New York City Administrative Code Sec. 3-211(a) defines a lobbyist "as any person or organization retained, employed, or designated by any client to engage in[1] lobbying. "Lobbying" or "lobbying activity" is defined as "any attempt to influence any determination of a board or commission other than a determination in an adjudicatory proceeding."  Ad. Code Secs. 3-211(3), 3-211(c) (2) (iv).  Thus, those persons who attempt to influence the determination of a board or commission[2]  are engaged in lobbying, with the exception of those whose efforts are confined to adjudicatory proceedings, and who are therefore excluded from the Lobbying Law's requirement of registration and prohibition of contingent fees.  Ad. Code Sec. 3-211 et. seq.

Accordingly, to determine whether a proceeding is adjudicatory under the provisions of the Lobbying Law, the following factors must be applied:

(1) Does the board or commission conducting the proceeding have clearly limited discretion in reaching a determination, i.e., is it limited by law to considerations of certain delineated criteria or a few narrow questions?  Legislative bodies, which by more traditional notions are primary "targets" for lobbyists, lawfully may come to their decisions so long as there exists any rational basis for doing so.

(2) Does the proceeding determine the legal rights, duties, or privileges of, at most, a few individuals?

(3) Is participation in the proceeding limited by law to those with a clearly defined interest? This criterion, analogous to standing, constitutes a common-sense distinction between judicial and legislative proceedings.  Any citizen, no matter how removed from an issue from the "standing" perspective, may seek legislative action or otherwise participate in the judicial process.

(4) Does the proceeding have any unique characteristics supporting a final determination that it is or is not adjudicatory?

The Loft Board was created under Article 7-C of the Multiple Dwelling Law (MDL) as part of a statutory scheme designated to address problems arising out of the increasing number of conversions of commercial and manufacturing loft buildings to residential use in New York City which did not comply with the City's Building Code and applicable minimum housing standards. Under Article 7-C, buildings may become legalized, and[3] as a result, certain protections, including rent regulation and the right to sell improvements made to the unit used for residential purposes accrue.  The Loft Board is charged with the responsibility of administering Article 7-C and is comprised of members representing the public, the real estate industry, loft residential tenants, and loft manufacturing interests, as well as a chairperson, all of whom are selected by the Mayor. MDL Section 282.

The Loft Board is authorized to engage in four types of inquiry: (i) determination of which buildings, owners and tenants are covered by the special provisions of Article 7-C; (ii) resolution of all hardship appeals; (iii) determination of rent adjustment claims by owners and tenants; and (iv) determinations of controversies arising over the fair market value of a residential tenant's fixtures or reasonable moving expenses. In the course of engaging in these inquires the Loft Board may "administer oaths, take affidavits, hear testimony, and take proof under oath at public or private hearings." MDL Section 282.

Each of the inquires listed above is explicitly limited by criteria set forth in the Multiple Dwelling Law (or, in the case of value of the fixtures or moving expenses, by the narrow nature of the matter at issue). MDL Sections 281, 285, 286. The issues generally involve an owner and one or a few tenants and are not matters with broad impact on the public. There is no requirement of a public hearing for any of these inquiries. For these reasons, proceedings in connection with all of the determinations listed above should be regarded as adjudicatory. See Anthony v. New York City Loft Board,122 A.D. 2d 725, 726,728 (1st Dept. 1986) (substantial evidence review of a Loft Board determination that a dance studio was not covered by Article 7-C of the Multiple Dwelling Law).

In addition, the Loft Board promulgates rules and regulations necessary for the implementation of Article 7-C. A public hearing is required prior to promulgation. MDL Section 282. This function is non-adjudicatory.

CONCLUSION

It is the opinion of the City Clerk that the representation of clients who favor or oppose the conversion of commercial and manufacturing loft building to residential use before the Loft Board, does not constitute "lobbying or "lobbying activity" under Ad. Code Section 3-211. However, those who attempt to influence the Loft Board to promulgate rules and regulations necessary for the implementation of Article 7-C are "lobbying" under Ad. Code Section 3-211.

CARLOS CUEVAS City Clerk of the City of New York
KATHERINE E. TIMON Counsel
TIMOTHY MCFARLAND Assistant Counsel

*Based upon a Law Department Memorandum date May 6, 1987 by David Goldenberg, Esq. and Spencer Fisher, Esq., Division of Legal Counsel.



Editor’s Note

[1]Word missing in original.

[2]“determinations of boards and commissions” in original.

[3]Word missing in original.

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