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Advisory Opinion 2016-1

FACTS
A homeowner wants to add a second story to his single-family home.  Before he can start construction, however, he must obtain work permits from the New York City Department of Buildings (“DOB”).  As a result, the homeowner must hire a NYS licensed architect or engineer (the “applicant”) to prepare the required construction documents and file them with DOB for approval and permit in accordance with Title 28 of the NYC Administrative Code (the “NYC Construction Codes”) and other applicable laws, rules and regulations.  The applicant may also need to file various other required documents for approval with DOB that are relevant to the construction process, both prior to, and after, obtaining the work permit from DOB.  As part of the process, the applicant of record or his/her representative may meet with a plan examiner, Borough Commissioner, or other DOB staff to resolve objections or obtain or appeal determinations.  Upon completion of the project, the applicant is, among other things, responsible for submitting a statement of compliance and for obtaining a letter of completion or a certificate of occupancy, as appropriate in accordance with the NYC Construction Codes. 

ISSUE
Whether an applicant or his or her representative is engaged in “lobbying” or “lobbying activities” pursuant to New York City Administrative Code (“Administrative Code”) §3-211(c) et seq. when such applicant or his or her representative applies for work permits from DOB and communicates with DOB about those permits and other documents that are part of the construction process?

OPINION
DOB issues permits to conduct work on real property including, but not limited to new building permits, various types of alteration permits, demolition permits, foundation and earthwork permits, sign permits, cranes and derricks permits and plumbing permits in accordance with the NYC Construction Codes and other applicable laws, rules and regulations.
See, for example, http://www1.nyc.gov/site/buildings/homeowner/permits.page.     

Pursuant to Section 3-211(c)(1) of the Administrative Code, “lobbying” or “lobbying activities” is defined as any attempt to influence:
(i) any determination made by the city council with respect to the introduction, passage, defeat, or substance of any local legislation or resolution;
(ii) any determination made by the mayor to support, oppose, approve, or disapprove any local legislation or resolution, whether or not such legislation or resolution has been introduced in the city council;
(iii) any determination made by an elected city official or an officer or employee of the city with respect to the procurement of goods, services or construction, including the preparation of contract specifications, or the solicitation, award or administration of a contract, or with respect to the solicitation, award or administration of a grant, loan, or agreement involving the disbursement of public monies;
(iv) any determination made by the mayor, city council, city planning commission, a borough president, or a community board with respect to zoning or the use, development or improvement of real property subject to city regulation;
(v) 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;
(vi) the proposal, adoption, amendment or rejection by an agency of any rule having the force and effect of law;
(vii) the decision to hold, timing or outcome of any rate making proceeding before an agency;
(viii) the agenda or any determination of a board or commission;
(ix) any determination regarding the calendaring or scope of any city council oversight hearing;
(x) the issuance, repeal, modification or substance of a mayoral executive order; or
(xi) any determination to support or oppose any state or federal legislation, rule or regulation, , including any determination made to support or oppose that is contingent on any amendment of such legislation, rule or regulation, whether or not such legislation has been formally introduced and whether or not such rule or regulation has been formally proposed.  See Ad. Code §3-211(c).

The issuance or denial by DOB of construction document approvals, permits, letters of completion and/or certificates of occupancy and related approvals and determinations to an applicant or his or her representative and any related communication between the parties is not  included in the definition of lobbying in subdivision (c) of section 3-211 of the Administrative Code.  Consequently, an applicant or his or her representative who attempts to influence the issuance of a construction document approval, a permit, a letter of completion and/or a certificate of occupancy or other related approval or determination by DOB is not engaged in “lobbying” or “lobbying activities” pursuant to the Administrative Code.
 
CONCLUSION
It is the determination of the City Clerk that an application to DOB for work permits and any ensuing communications with employees of DOB relating to the issuance of permits, approvals or other construction-related documents and determinations by DOB is not “lobbying” or a “lobbying activity” because such issuance or denial is not included within the definition of “lobbying” or “lobbying activity” pursuant to Administrative Code §3-211(c).   


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

 

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