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Advisory Opinions

Advisory Opinion: 2012-2

Facts

In December 2010, Applied Sciences NYC, a project of the New York City Economic Development Corporation (“NYCEDC”), was launched.  Top educational institutions from around the world were invited to either build a new applied sciences and engineering campus in New York City (the “City”) or undertake the expansion of a campus already in existence.  As an incentive, the City offered City-owned land and up to $100 million in City capital as a seed investment to the successful applicant. 

After several responses to the City’s request for expressions of interest, followed by seven qualifying responses to the request for proposals (“RFP”) from seventeen (17) institutions, a consortium, Cornell University/Technion-Israel Institute of Technology (“Cornell/Technion”) was selected to build a new applied sciences and engineering campus on Roosevelt Island and was awarded $100 million in City capital to assist with site infrastructure, construction, and related costs. 

Pursuant to the RFP, several agreements collectively referred to as “Project Agreements”, will be entered into between the parties including: (1) pre-development agreement; (2) funding agreement; (3) lease agreement; (4) assignment; and (5) license.  

The first agreement, the pre-development agreement, contains terms that are conditions precedent to executing the remaining Project Agreements including, but not limited to: (1) the City Environmental Quality Review (“CEQR”) by the Mayor’s Office of Environmental Coordination (“MOEC”); (2) approvals by the Department of City Planning (“DCP”) pursuant to City’s Uniform Land Use Review Procedure (“ULURP”); and (3) approval by the City’s Public Design Commission (“PDC”).  If, and when, these and other conditions are fulfilled, the remaining Project Agreements will be executed and Cornell/Technion will receive the City funding and a lease to the City-owned land. 

Issue
Whether Cornell/Technion is engaged in “lobbying” or “lobbying activities” pursuant to Administrative Code §3-211(c) et seq. when engaging in communications with the following:

(1) the MOEC during the CEQR;

(2) the DCP when seeking approvals for:

i. the disposition of City owned property;
ii. zoning map amendment pursuant to ULURP;
iii. zoning text amendment pursuant to ULURP; and

(3) the PDC during its approval process.

Opinion

(1) Communications with MOEC during the CEQR

According to MOEC, the CEQR is not an approval process, but instead is a disclosure process wherein the environmental effects of a proposed action are outlined in an environment impact statement (“EIS”) that is prepared with MOEC’s guidance and submitted to MOEC.  MOEC then submits the EIS to all interested City agencies for their review.  Not only is MOEC a repository for the EIS, but it may also coordinate review of the EIS among the other interested City agencies.  MOEC, however, does not make decisions with regard to the EIS, but rather after its completion, issues a statement of findings that the requirements of the CEQR have been met (so long as it deems the EIS to be a full disclosure of environmental effects of the project).
 
Administrative Code §3-211(c)(1)(v) defines lobbying as any attempt to influence “any determination made by an elected city official or an officer or employee of the city with respect to the terms of the acquisition or disposition by the city of any interest in real property. . . .”  See Ad. Code §3-211(c)(1)(v) (emphasis added).  In this instance, however, MOEC is not making a decision or determination with respect to the EIS, but instead is assisting in completion of the report, accepting the submission of the report and may coordinate review of the EIS among other agencies.  Furthermore, the Director of MOEC does not make a decision or determination during the CEQR but instead provides notice that the environmental review documents have been completed and issues findings required by CEQR. As a result, the submission of the CEQR does not constitute lobbying. 

(2) Communications before the DCP in connection with:

i.  The Disposition of City-owned Property. As stated above, the Administrative Code provides that

any attempt to influence any determination made by an elected city official or an officer or employee of the city with respect to the terms of the acquisition or disposition by the city of any interest in real property, with respect to a license or permit for the use of real property of or by the city, or with respect to a franchise, concession or revocable consent

constitutes lobbying.  See Ad. Code §3-211(c)(1)(v).  In this instance, however, because the City has already offered City-owned property, Cornell/Technion does not have to influence the City with respect to the disposition of the City-owned land.  As a result, any communications between Cornell/Technion and the DCP and/or any City employee with respect to the disposition of City land does not constitute lobbying because Cornell/Technion is not attempting to influence the City.  Id.

ii.  Zoning Map and Text Amendments pursuant to ULURP
The Administrative Code provides that any attempt to influence any determination made by “the mayor, the city council, the city planning commission, a borough president, a borough board or a community board with respect to zoning or the use, development or improvement of real property subject to city regulation” constitutes lobbying.  See Ad. Code §3-211(c)(iv).  Furthermore, Advisory Opinion 1987-14 specifically held that “appearances before or efforts to influence the determination of City Planning in an application to amend the City’s zoning resolution and/or the City map is lobbying.” Advisory Opinion 1987-14.  As a result, any communications between employees or representatives of Cornell/Technion and the DCP with respect to an application to amend the City’s zoning resolution and/or the City map constitutes lobbying.  See Ad. Code §3-211(c)(1)(iv); Advisory Opinion 1987-14.

(3) Communications with the PDC during its approval process. 

Separate and apart from the ULURP application, the PDC must approve the building and landscape designs of the Cornell/Technion project.  Early in the ULURP process Cornell/Technion will submit sketches of the project to the PDC for its review and approval during a public hearing. See http://www.nyc.gov/html/artcom/html/review/review.shtml.

The Administrative Code defines lobbying 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)(viii); 3-211(c)(2).  Furthermore, Advisory Opinion 1987-9 held that because determinations of the PDC (formerly the Art Commission) are non-adjudicatory, attempts to influence the PDC’s determinations constitutes lobbying.  See Advisory Opinion 1987-9.  As a result, communications with the PDC by employees of Cornell/Technion that are attempts to influence its decision with respect to the Cornell/Technion project constitutes lobbying.

Conclusion
It is the determination of the City Clerk that communications by employees or representatives of Cornell/Technion with:

(1) MOEC during the CEQR do not constitute lobbying.

(2) DCP during the ULURP process, including communications with respect to the disposition of City-owned property as set forth above, do not constitute lobbying.  However, communications with respect to amending the zoning map and other text amendments constitute lobbying.

(3) PDC during its approval process constitutes lobbying. 


MICHAEL MCSWEENEY, City Clerk of the City of New York
PATRICK SYNMOIE, Counsel to the City Clerk
JAIME LYNN ECKL, Deputy Counsel to the City Clerk

 

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