ADVISORY OPINION 1987-5
1.) Does the representation of clients, who favor or oppose the issuance by the Landmark Preservation Commission, (LPC), of post-designation permits, (i.e. a certificate of appropriateness, a certificate of no effect, and or a permit for minor work), constitute "lobbying" or "lobbying activities" as defined by N.Y.C. Ad. Code Sec. 3-211?
2.) (a) Does the representation of an owner of a landmarked building who requests application by the LPC to the City Planning Commission for a special permit to modify use and bulk regulations, constitute "lobbying" or "lobbying activities" as defined by N.Y.C. Ad. Code Sec. 3-211?
(b) Does the representation of a client who requests the LPC to issue a report to the City Planning Commission for an application for a special permit for transfer of development rights, constitute "lobbying" or "lobbying activity" under N.Y.C. Ad. Code Sec. 3-211?
Subchapter 2 of Chapter 2 of Title 3 of New York City Administration Code Section 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 Secs. 3-211(c),3-211(c)(2)(iv). Thus, those persons who attempt to influence the determination of a board orcommission are engaged in lobbying with 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 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 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 their decision.
(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?
If a property owner desires to make a physical change in property designated as a landmark or located in a historic district, the owner is required to obtain the appropriated post-designation permit from the Landmark Preservation Commission . The LPC authorizes changes with little or no effect by a certificate of no effect or a permit for minor work. More substantial changes require a certificate of appropriateness, for which a public hearing is held.
Generally, the criteria for approval of post-designation permits issued by the LPC are broad, but the inquiry by the LPC is narrow, since the landmark has already been designated and the issue now before the LPC is a proposed change. The Board of Estimate has no power of review over the issuance of post-designation permit by the LPC.
The first permit to be considered is the certificate of appropriateness. A certificate of appropriateness must be obtained for work which requires a permit by the Department of Buildings and which affects architectural and other features protected by the Landmark Law. The criteria considered for this permit are broad, reflecting the architectural, historical, and aesthetic concerns of the Landmark Law, Ad. Code Sec. 25-307 and therefore, it could be argued that the issuance of these permits should be treated as non-adjudicatory. However, the process of granting a certificate of appropriateness is better characterized as adjudicatory since it determines the rights of an individual applicant, is usually site-specific for landmarked building, and in general addresses narrower questions than those presented in the initial designation process.
Another type of certificate of appropriateness provided for in the Landmark Law is a "certificate of appropriateness authorizing demolition, alterations or reconstruction on the ground of insufficient return." Ad. Code Sec. 25-309. A determination by the LPC to grant this certificate, (or an equivalent notice to proceed), is made on a specific factual issue of whether the property is capable of earning a reasonable return without consideration of aesthetic features. A public hearing is held on the application for this certificate, and on any LPC plan for preserving an improvement while providing for a reasonable return. However, decisions regarding certificates of appropriateness on the ground of insufficient return, involve a precise factual inquiry and the procedures for issuance of this certificate are detailed, reflecting a constitutional concern that a taking without compensation not result. Thus, for these reasons, determinations by the LPC regarding certificates of appropriateness on the ground of insufficient returns are adjudicatory.
The other post-designation permits include the "certificate of no effect" and the "permit for minor work." These, by definition, do not generally involve matters of interest to the public. They do not require a public hearing, and must be decided within thirty days in case of a certificate of no effect and twenty in the case of the permit for minor work. If a proposed change does have a significant effect, the owner must instead apply for a certificate of appropriateness. Ad. Code Secs. 25-306, 25-310.
Therefore, determinations by the LPC regarding all post designation permits are adjudicatory and attempts to influence these determinations are not "lobbying" or "lobbying activity" under Ad. Code Sec. 3-211.
Finally, under the Zoning Resolution, the LPC performs two important functions. First, it may apply to the City Planning Commission for special permits for modification of the use and bulk regulations on behalf of a property-owner of a landmarked building who applies to the LPC. Zoning Resolution 74-711. Second, the LPC issues a report to the City Planning Commission with respect to an application for a special permit for transfer of development rights, and in certain other cases. Zoning Resolution 74-712, 74-79.
While the LPC’s role in the special permit process is individualized, and requires no public participation, it is also unfettered in the sense that it apparently proceeds here without reference to any specific criteria.
It is the opinion of the City Clerk that all post designation permit proceedings before the LPC are adjudicatory and attempts to influence these proceedings are not "lobbying" or "lobbying activity" under Ad. Code Sec. 3-211.
It is the opinion of the City Clerk that the LPC's role in the special permit process is non-adjudicatory. Thus, those who seek the LPC's participation in the special permit process are engaged in "lobbying" or "lobbying activities" under Ad. Code Sec. 3-211, and must therefore register as lobbyists with this office.