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Advisory Opinions

ADVISORY OPINION 1991-1
FACTS
A law firm represented a client when it applied to the City Planning Commission for a special permit. The law firm and client were successful and the City Planning Commission granted the special permit application. The law firm's activities associated with their work on the application for a special permit before the City Planning Commission was declared a "lobbying activity" within the meaning of Local Law 14 of 1986. The law firm now wishes to represent the client again for a renewal of the City Planning Commission special permit that was previously granted.

ISSUE
A law firm inquires whether the renewal of a previously approved City Planning Commission special permit constitutes "lobbying" or "lobbying activities" within the meaning of Local Law 14 of 1986?

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."

Admin. Code §3-211(c)(1)(vii) defines the terms "lobbying" or "lobbying activities" as "any attempt to influence any determination of a board or commission, other than a determination in any adjudicatory proceeding." Admin. Code §3-211(c)(2)(iv).

Thus, those persons who attempt to influence the determinations 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 its prohibition of contingent retainer fees. Ad.Code §3-213 et. seq. Accordingly, the following factors must be applied to determine whether a proceeding is adjudicatory under the provisions of the lobbying law.

(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 has informed the Office of the City Clerk that a renewal of a special permit previously approved by the City Planning Commission is identical to the process for an initial applications.

A full de-novo review of the renewal application is performed and all information on file and any other information that is received by the City Planning Commission from interested individuals and members of the community is considered in determining whether to grant the renewal of a special permit.

The granting of a renewal of a special permit by the City Planning Department is entirely discretionary because all information can be considered by the City Planning Department in light of the present impact on the community if the special permit is in fact renewed.

The City Planning Commission, prior to granting a special permit makes a general finding of benefit to the community that is required, along with specific findings depending upon what type of special permit is applied for. The City Planning Commission must set forth the required findings or identify those which have not been satisfied. Zoning Resolution §74-00 -74-30. (See also Zon. Res. Subsection 74-41).

An examination of the four factors defined in Advisory Opinion 1987-11, establish that the renewal of a special permit is a non-adjudicatory proceeding and is thus subject to the provisions of the lobbying law.

(1) The board or commission conducting the proceeding has discretion in reaching a determination that appropriate safeguards and conditions are being met by the granting of a special permit and the exercise of broad authority by the City Planning Commission is totally within the legal standard of review for the granting and renewal of special permits. Zon. Res.§74-21.

(2) The granting of a special permit and the renewal of a special permit determine the legal rights, duties, and privileges of the applicant, the members of the community, and all those individuals who will be impacted upon heavily in the community, it is in no way limited to a few individuals.

(3) Participation in the renewal process of a special permit is not limited to those with a clearly defined legal interest. The public has a right to be heard on an application for renewal of a special permit and participation by the public is not limited to just those individuals who would have the legal criteria approximating standing. The renewal process of a special permit allows input from any and all taxpayers, no matter how remote their legal nexus is from the site for which the special permit and renewal of the special permit is being sought.

Community Boards and Borough Boards are expressly allowed to participate. City Charter §201 and 197-c.

(4) Special permits and renewal of special permits by the City Planning Commission are subject to approval, denial, or modification and the City Planning Commission can use the same broad criteria available in examining the renewal of a special permit as it does when a special permit is initially applied for. Charter §197-d, Subdivisions f, h.

To[1] summarize, the application process for renewal of special permits considered by the City Planning Commission, is triggered by a property owner. However, this review is a complete "de novo review" and is subject to broad discretion by the City Planning Commission and is open to public participation at all stages of the review.

In practice, negotiation over projects needing special permits or the renewal of a special permit, involve activities commonly associated with lobbying, i.e. attempts to persuade a body of decision makers to grant or deny a benefit. Accordingly, an attempt to influence the renewal of a special permit by the City Planning Commission is considered a non-adjudicatory activity and is considered a "lobbying activity" within the meaning of Local Law 14 of 1986.

CONCLUSION
It is the determination of the City Clerk that the process granting a renewal of a special permit before the City Planning Commission is non-adjudicatory. Thus any effort or attempted efforts to influence the renewal of a special permit are "lobbying" or "lobbying activities" under Ad. Code §3-211, and Local Law 14 of 1986.

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

Editor's Note

[1] "To" not in original

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