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Advisory Opinions

ADVISORY OPINION 1987-14
FACTS

A law firm writes requesting an advisory opinion on whether appearances before or efforts to influence the determination of the City Planning Commission in an application on behalf of a client, to amend the Zoning Resolution and or the City Map, is lobbying.

ISSUE
Are efforts to influence the determinations, decisions, or recommendations of the City Planning Commission in an application to amend the Zoning Resolution, its maps, and the City Map, lobbying or lobbying activity?

OPINION
Subchapter 2 of Chapter 2 of Title 3 of the New York City Administrative Code Section 3-211(2) defines a lobbyist "as any person or organization retained, employed, or designated by any client to engage in 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 Sec. 3-211(c)(2)(vi). Thus, those persons who attempt to influence a determination of a board or commission 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. 3-213 et seq.

Accordingly, to determine whether a proceeding is adjudicatory under the provisions of the Lobbying Law, the following factors are to 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 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?
The City Planning Commission in conjunction with the Board of Estimate, is empowered to amend the Zoning Resolution and its maps and the City Map. See City Charter Sections 199 & 200, and Section 75-00 of the Zoning Resolution. Upon examination, this CPC function is generally discretionary.

In applying the first part of the adjudicatory test to the C.P.C.'s zoning function, upon analyzing Section 75-00 of the Zoning Resolution, there are no tests or limits analogous even to those that are applied under the special permit provisions of the Zoning Resolution, and the Administrative Code is similarly vague in its treatment of the C.P.C.'s zoning-related activity. See Ad. Code Sec. 25-110 subd. b. Although the Charter does require the C.P.C. to establish minimum standards in the exercise of all its ULURP responsibilities, no substantive standards, only procedural standards govern the C.P.C. in this function. Charter Sec.197-c subd. g.
As to the second adjudicatory factor, amendments to the Zoning Resolution or its maps, or to the City Map pursuant to sec. 198 of the charter, in certain instances, may affect only one property owner; however, they may also directly impact upon a larger community.
In applying the third and fourth adjudicatory factors, the Zoning Amendment process requires a public hearing with participation open to any member of the public, as with special permits. Also of significance is the fact that there is nothing in the process of amending the Resolution, its maps or the City Map which approaches the "substantial evidence or other data" requirement for special permits found in the Zoning Resolution.
In conclusion, the major zoning functions of the C.P.C. are non-adjudicatory.

CONCLUSION
It is determination of the City Clerk that proceedings before the City Planning Commission to amend the Zoning Resolution, its maps, and the City Map, are non-adjudicatory. Therefore, efforts to influence the recommendations, decisions or determinations of the City Planning Commission in proceedings to amend the Zoning Resolution, its maps, and the City Map, are lobbying.

CARLOS CUEVAS City Clerk and Clerk of the Council
KATHERINE E. TIMON Counsel
TIMOTHY J. MCFARLAND Assistant Counsel

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