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Advisory Opinions

ADVISORY OPINION 1987-4
ISSUE
Does the representation of clients who favor or oppose the designation of a historic district1 or the designation of a landmark structure or site before the Landmarks Preservation Commission, constitute "lobbying" or "lobbying activity" as defined by New York City Administrative Code §3-211?

OPINION*
Subchapter 2 of Chapter 2 of Title 3 of the New York City Administrative Code § 3-211(a) 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 §3-211(c)(1)(vii)§ 3-211(c)(2)(iv). Thus, those persons who attempt to influence the determination 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 prohibition of contingent fees, Ad. Code §3-213 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, in other words, 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 "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 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, the designation of landmarks and historic districts must satisfy the criteria in Ad. Code § 25-302. While criteria vary depending upon the specific designation, they are all quite general, allowing the commission to consider a broad range of data. For example, a landmark is termed as "any improvement, any part of which is thirty years old or older, which has a special historical or aesthetic interest or value as part of the development, heritage, or cultural characteristics of the city, state or nation..." Ad Code § 25-302.

Although a landmark designation proceeding may directly involve the rights of an individual owner, the designation of a single landmark affects the public, indeed, the public purpose underlying the landmark designation process is at all times the predicate for action. Often, several thousand owners may be directly involved, such as in the instance of the designation of an historic district.

Participation in a landmark designation proceeding is not limited to those with a clearly defined legal interest in the property to be designated. In a landmark designation proceeding, there is a public hearing, with mandated notice to persons who own property within described vicinity. Participation at the hearing is unlimited, and the commission is not confined in its decision to testimony or to other evidence presented. Ad. Code § 25-303, 25-315. Furthermore, the Board of Estimate may modify or disapprove the designation after the Community Planning Board is afforded an opportunity to submit a report. Ad. Code § 25-303(g).

Finally, in applying the fourth factor, the courts view the designation process of the Landmark Preservation Commission to be administrative, rather than quasi-judicial. In an administrative proceeding, the rights of an individual, or a small group of persons are determined. Notice to affected parties is afforded as is an opportunity to be heard. However, some of the characteristics of adversarial due process are not present, such as cross-examination of witnesses. The standard of judicial review for designations is the "arbitrary and capricious" test.

In comparison, in a quasi-judicial proceeding, the rights of an individual or a small group of individuals are determined, and notice and an opportunity to be heard is provided. However, the determination in a quasi-judicial proceeding is made exclusively on the evidence adduced at such a hearing, and the standard of judicial review is the "substantial evidence" test and in this respect is markedly different.

In summary, while the Landmarks Preservation Commission designation process appears in some instances to proceed along some statutory guidelines, this alone is not sufficient to conclude that it is adjudicatory, giving the large scope of the guidelines, the provisions, for public participation and the broad powers of review vested in the board of estimate. It must also be noted that the decision to commence the designation process rests entirely within the discretion of Landmarks Preservation Commission and for all of these reasons the process must be viewed as quasi-legislative in nature.

CONCLUSION
Thus, it is the determination of the City Clerk that the landmark designation process, (designation of an historic district and/or a landmark structure or site), before the Landmarks Preservation Commission is non-adjudicatory and effort to influence that process are "lobbying" or "lobbying activity" under Administrative Code §3-211.

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


Editor's note:

1. "an" in original.

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