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Advisory Opinions

ADVISORY OPINION 1987-8

FACTS
A landowner who desires to build and or to renovate a structure for a health club applies to the Buildings Department for a building permit. The Buildings Department denies the building permit application because the proposed health club would be in violation of the zoning law applicable to the site where the proposed health club is to be built. The landowner then retains an attorney to represent him or her before the Board of Standards and Appeals in a proceeding for a zoning variance and for a special permit, which would allow the construction of the health club.

ISSUE
(1) Is the representation of a client in an application for a zoning variance before the Board of Standards and Appeals, "lobbying" or "lobbying activity" under N. Y. C. Ad. Code Section 3-211?

(2) Is the representation of a client, in an application for a special permit before the Board of Standards and Appeals, "lobbying" or "lobbying activity" under 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." The term "lobbying" or "lobbying activities" shall mean "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)(1)(vii), 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. Ad. Code Sec. 3-213, et. seq.

To determine whether a proceeding is adjudicatory under the provisions of Local Law 14 of 1985, certain key 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?

(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 is, or is not, adjudicatory?

In applying the above criteria to applicants for zoning variances and special permits issued by the Board of Standards and Appeals (BSA), pursuant to the Zoning Resolution, the first factor to be considered is that the Zoning Resolution sets forth general findings required for granting each variance or permit. Zoning Resolution Sections 72-21, 73-03. Conditions and safeguards may also be imposed. Zoning Resolution Sections 72-22, 73-11. However, significantly, the Zoning Resolution does not appear to contemplate any broad planning authority for the BSA involving "special consideration or major planning factors." (The City Planning Commission is given jurisdiction over land use matters involving special consideration and major planning factors.) The more far-reaching land uses which might require such consideration are not directed to the BSA by the terms of Article VII of the Resolution.

Second, a proposal or application for a variance or special permit at the BSA is submitted by an individual site owner.

Third, a public hearing is held by the BSA pursuant to Section 668(b) of the City Charter and Section 72-01 of the Zoning Resolution, but the Board limits participation to those within a certain geographic radius, namely, those within 400 feet from the property which is the subject of the application, using a rationale analogous to the doctrine of "standing." While this limitation has not been litigated, it does reflect the more narrow impact of BSA decisions on special permit applications, as recognized by the BSA itself.

Fourth, the legal standards for review of BSA decisions in this area are relevant. As with special permits at the City Planning Commission, the Zoning Resolution requires that variances and special permits at the BSA be supported by "substantial evidence or other data considered by the Board …" Zoning Resolution [2] Sections 72-21, 73-02. But, the Charter then provides for Board of Estimate review of variances and special permits using a substantial evidence standard, upon appeal by "an applicant or other interested party, community board or borough board."  Charter Sec. 668(c); 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 (1979). The City Charter does not limit Board of Estimate action of City Planning Commission decisions on special permits. Charter Sec. 197-c. Courts have reviewed BSA decisions on both "arbitrary and capricious" and "substantial evidence" grounds.   Kemp v. Fosella, 80 A.D.2d 897 (2nd Dept. 1981); Herman v. Fosella, 73 A.D.2d 502 (1st Dept. 1979); Application of New York City Housing and Redevelopment Board, 23 A.D. 2d 84 (1st Dept. 1965), aff'd 16 N.Y. 2d 1071.

CONCLUSION
Therefore, it is the opinion of the City Clerk that special permit and zoning variance application proceedings at the Board of Standards and Appeals are adjudicatory in nature and thus, those who represent applicants in these proceedings are not required to 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 date May 6, 1987 by David Goldenberg, Esq. and Spencer Fisher, Esq., Division of Legal Counsel.


Editor's Note:

[1]  "determinations of boards and commissions" in original.

[2]  "Zoning Resolution" missing in original. 

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