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Advisory Opinions

ADVISORY OPINION 1987-7

FACTS

An attorney represents a client in an application before the City for a zoning change and a special permit in connection with construction of a land development project. Prior to approval by the City, the special permit and rezoning applications must go through the City's Uniform Land Use And Review Procedure (ULURP). As part of the ULURP process, the applicant and its representative will appear before the local community board where the proposed land development project is located, seeking the recommendation and approval of the Community Board for the special permit and rezoning applications.

ISSUE

Do appearances before local community Boards constitute lobbying under N.Y.C. Administrative Code Section 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."  "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." Administrative Code Sections 3-211(c),3-211(c)(2)(iv).  Thus, those persons who attempt to influence the determination of a board or commission[1] 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. Administrative Code Section 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 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?

Before the above adjudicatory test is applied to the determinations of Community Boards, the role of the Community Boards in the decision making process will be discussed. The Community Boards were created as the result of an attempt to partially de-centralize the decision-making process of City government. The role of the Community Boards is to report, advise or recommend; there are no reported cases where their decisions have been reviewed by the courts. However, while Community Boards do not ultimately determine the outcome of the processes in which they participate, their functions constitute an indispensable component of the governmental process.

In fact, they are given a voice in City government decisions on a wide spectrum of issues, and often no final decision can lawfully be made unless the affected Community Boards have had an opportunity to participate. City Charter Sections 197-a, 197-b, 668, 2800 subds. 10-16.

An advisory role of this type requires special consideration. The Boards may be perceived as "political" or "policy" players in an otherwise adjudicatory process for considering application for variances and special permits at the BSA. (City Charter Sections 668, 2800 subd. 15). As such, they might even be viewed as injecting into an adjudicatory process a non-adjudicatory component where lobbyists might well be expected to "ply their trade."

Therefore, in applying the adjudicatory test, Community Boards have unlimited discretion in reaching a determination and need not make finding of any sort to substantiate a recommendation. Although a Community Board hearing may only consider the rights of an individual or an entity, the hearings are often open to any member of the public and may affect large numbers of citizens.

Accordingly, because of the unstructured nature of the Community Board proceedings, appearances before, and other attempts to influence Community Boards are non-adjudicatory.

CONCLUSION

It is the opinion of the City Clerk that all efforts to influence[2] the determinations of Community Boards are "lobbying" or "lobbying activity" under Administrative Code Section 3-211 and those who attempt to influence the determinations of Community Boards must register as lobbyists with the City Clerk. 

CARLOS CUEVAS City Clerk of The City of New York
KATHERINE E. TIMON 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.


Editor’s Note

[1]“determinations of board and commission” in original.

[2] "influences" in the original

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