ADVISORY OPINION 1987-11ISSUES
A real estate developer desires to construct an office building in connection with a land development project. Before the developer may proceed with construction on the proposed office buildings, the developer must obtain various "special permits" from the City. Therefore, the developer retains an attorney and an architect to represent her in the special permit application process before the City Planning Commission (CPC) and other city agencies.
Does the representation of clients who favor or oppose the grant of a zoning special permit before the City Planning Commission constitute "lobbying" or "lobbying activities" as defined by N.Y.C. Ad. Code Sec. 3-211?
Does the representation of clients who favor or oppose a modification of the zoning resolution constitute "lobbying activities" as defined by N.Y.C. Ad. Code Sec. 3-211?OPINION
Subchapter 2 of Chapter 2 of Title 3 of the New York City Administrative Code Section 3-211(a) defines a "lobbyist" as "any person or organization retained, employed, or designated by any client to engage in lobbying." Ad. Code Sec. 3-211(c)(1)(vii) defines the terms "lobbying" or "lobbying activities" as "any attempt to influence any determination of a board or commission, other than a determination in an adjudicatory proceeding." Ad. Code Sec. 3-211(c)(2)(iv). Thus, those persons who attempt to influence the determinations of boards and commissions 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 its prohibition of contingent retainer fees. Ad. Code Sec. 3-213 et. seq.
Accordingly, the following factors must be applied to determine whether a proceeding is adjudicatory under the provisions of the lobbying law.
(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 consideration of certain delineated criteria or a few narrow questions? Legislative bodies, which, by more traditional notions, are the primary "target" 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 legal 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 a "standing" perspective, may seek legislative action or otherwise participate in the legislative process.
(4) Does the proceeding have any unique characteristics supporting a final determination that it is, or is not, adjudicatory?
In applying the first factor of the adjudicatory test to special permit applications before the CPC, Article VII of the Zoning Resolution provides criteria for decision-making for the granting of most of the special permits for specific uses ("special permit uses"). Prior to granting a special permit use, a general finding of benefit to the community is usually required, along with specific findings which may vary among permit categories. The CPC must set forth the required findings or identify those which have not been satisfied. Zoning Resolution Secs. 74-00 - 74-30. (See also Zon. Res. § 74-41). The CPC has broad authority to impose appropriate conditions and safeguards to minimize any adverse effects of a special permit use. Zon. Res. Sec. 74-21.
Of particular significance is the fact that under the broad scheme of the Zoning Resolution, applications for certain special permit uses are made to the CPC, while others are made to the Board of Standards and Appeals. Section 74 - 01 of the Zoning Resolution allocates decision-making responsibility over certain special permit uses to the CPC where "location or control of these requires special consideration or major planning factors." It has been noted that authority is vested in the CPC "with respect to uses which occupy more ground, attract more persons, and generate more vehicular traffic, and consequently, involve a broader impact on the Community plan." Anderson, New York Zoning Law and Practice § 24.10 (1984). Thus, while the Board of Standards and Appeals is also required to consider community benefit and is authorized to impose conditions and safeguards, administration of the Zoning Resolution calling for exercise of the broadest discretion is explicitly assigned to the CPC. For example, special permits for what are often perceived as "controversial" land uses, such as sewage disposal plants, airports, public parking garages and large stadiums, are directed to the CPC rather than the Board of Standards and Appeals. Zoning Resolution Secs. 22-20 et. seq., 32-30 et. seq., 42-30 et. seq. In conclusion, the first factor of the test favors treatment of CPC special permit uses as non-adjudicatory.
Furthermore, the above analysis applies equally to special permit uses in special purpose districts although these special permit uses are placed outside the explicit scope of Article VII of the Zoning Resolution. (See, for example, Zoning Resolution Secs. 96-107, 112-08). However there is no indication that the policy articulated by the language of Article VII, which grants the CPC broad discretion in community planning matters, is abrogated for these special permits, and each district contains its own broad statement of general purposes.
In applying the second factor, whether the proceeding determines the legal rights of few individuals, special permits generally begin with an applicant under Zoning Resolution Sec. 74-20 and a specific site receives the permit. However, a grant of a permit may in fact, impact heavily upon the community. Moreover, in consideration of the third part of the test, the public has a right to be heard on an application for a special permit and participation in this public hearing is not limited by any criterion approximating standing. This process allows input from any taxpayer, no matter how remote his legal nexus from the site for which the permit is being sought. Community Boards and borough boards are expressly allowed to participate. City Charter Secs. 7(c), 201.
Finally other aspects of special permit uses must be taken into account. Other important consideration is the nature of the review of special permits. The Zoning Resolution requires only that each finding "shall be supported by substantial evidence or other data considered by the Commission in reaching its final decision." Under the Charter, the Board of Estimate's role in the consideration of permits initially under the jurisdiction of the CPC differs significantly from its role with respect to permits under the jurisdiction of the Board of Standards and Appeals. Review under subdivision c of Charter Section 668 of determinations of the Board of Standards and Appeals regarding special permits is appellate in nature and is limited by a substantial evidence standard. Highpoint Enterprises, Inc. v. Board of Estimate of the City of New York, 67 A.D. 2d 914, 916 (2nd Dept. 1979), aff'd 47 N.Y.2d 935 (including special permits as well as variances at the BSA in this narrower review). Special permits at the CPC, on the other hand, are subject to approval, denial or modification by the Board of Estimate (except that the Board may not confer any broader development rights), presumably using the same broad criteria available to the CPC in its initial consideration. Charter Sec. 197-d, Subdivs. f, h. This sharp distinction in the Charter between reviewing functions parallels the distinction between the broad policy role of the CPC and the more narrow role of the Board of Standards and Appeals reflected in Zoning Resolution Sec. 74-01.
To summarize, the application process for special permits considered by the CPC, while triggered by an individual property owner, is subject to the exercise of broad discretion by the CPC and the Board of Estimate, in addition to being open to public participation. Furthermore, in practice, negotiations over projects needing special permits (often in conjunction with other required approvals) involve activities commonly associated with lobbying, i.e. attempts to persuade a body of decision-makers to grant or to deny a benefit. For these reasons, special permit uses considered by the CPC are non-adjudicatory.
The second category of CPC functions described by the Zoning Resolution includes a much smaller group of special permits for modifications of the Zoning Resolution. These special permits do not require general findings, and their required specific findings vary greatly. Zon. Res. 74-54, 74-711. Like all special permits, the modifications permitted under Article VII must be in harmony with the general purpose and intent of the Zoning Resolution and are subject to a general "conditions and safeguards" provision. Zon. Res. Sec. 74-01. The second, third, and fourth considerations for special permit uses discussed above apply equally to special permit modifications. There appears to be little, if any reason, to characterize special permit modifications as differing from special permit uses and so special permit modifications are considered non-adjudicatory as well.
It is the determination of the City Clerk that the process granting special permits for specific uses and special permits for modifications of Zoning Resolution before the City Planning Commission are non-adjudicatory. Thus, efforts to influence these proceedings are "lobbying" or "lobbying activities" under Ad. Code Sec. 3-211.
CARLOS CUEVAS City Clerk of the City of New York
KATHERINE E. TIIMON Counsel
TIMOTHY MCFARLAND Assistant Counsel
*Based upon a Law Department Memorandum dated May 6, 1987 By David Goldenberg, Esq. and Spencer Fisher, Esq., Division of Legal Counsel.
 "of" in Original.