BSA (Board of Standards and Appeals – NYC) and the NSA (National Security Agency – USA)

July 26, 2010

The NSA is often called “No Such Agency” – since its operations are cloaked in secrecy – while the BSA has been called, by the Times, “a (powerful, but) relatively obscure agency”. See the similarity?

Now, we can’t say that the Nation’s security hangs in the balance at the BSA – but, it does carry out a vital – and often misunderstood – role in City government and zoning law. It is a powerful and quietly effective and efficient organization. Like the NSA, it manages to avoid the spotlight, all the while subject to the (exclusive) control of the executive branch. (NSA’s chief is, of course, appointed by POTUS – code for President of the United States; the BSA is controlled by Hizzoner, the Mayor).

The “Members” of the BSA are known as Commissioners. The agency has 5 Commissioners, each serving 6 year terms; not more than 2 can come from any one Borough, with a minimum of one architect, one engineer, one planner and two “lay persons”. The Mayor appoints each Commissioner, then selects a Chair and Vice-Chair. Interestingly, the Director of the NSA also has a term – and he/she must either be an Admiral in the Navy or at the minimum a Lieutenant General in the Army.

It is not well known that a BSA Commissioner’s salary cannot be reduced during her/his term in office; and, a BSA Member cannot be fired. Of course, this provides a measure of independence for a Commissioner to express their views – without fear of reprisal.

The BSA’s power comes from its unfettered ability to issue a variance from the Zoning Resolution – and to decide when a “unique condition” truly presents a “hardship” in meeting the requirements of the Resolution – such that relief from Zoning should be granted. Unlike the NSA, our Commissioners do not wire-tap or perform sophisticated electronic eavesdropping. But, the BSA inspects sites that are the subject of Variance applications – often showing up unannounced. Where appropriate, a quiet neighborhood observation is conducted — all to determine whether the proposed Variance is compatible with the “neighborhood character”. While the BSA does not engage in cryptography (which is the NSA’s central function), they do speak a certain, sometimes cryptic language — like, “FAR/OSR”, “reasonable return”, “sky exposure plane” and “common law vested rights”.

The BSA operates without a daily (or weekly or monthly) check on its power by the Executive – just like the NSA. Both agencies are subject to limited over-sight by the legislature. The BSA Commissioners must be vetted by the City Council (NYC’s legislature) while the NSA Director is confirmed by the Senate. Of course, background checks are done for each. The POTUS does not check in at the NSA’s secluded location at Fort Meade, Maryland and the Director (Lieutenant General Keith Alexander) needn’t worry about daily meddling by the WH (White House). Similarly, it is believed that Chair Meenakshi Srinivasan doesn’t hear regularly from CH and Mayor Mike has never been to the hearing chambers at 40 Rector Street, the BSA’s slightly out-of-the-way (and reasonably secure) locale in lower Manhattan. Chair Srinivasan has a handsome gold shield in a heavy leather wallet; Director Alexander likely has a rather special ID. (We are pretty sure that the Chair is unarmed, less sure about the Director.)

Legally, the Courts have concluded that Zoning passes muster Constitutionally only if there is an appeal process – to provide an exception for circumstances where generic zoning would be inequitable. Hence, the BSA plays a key role in securing NYC’s ability to have a functioning zoning regime. This Blog will leave it to others to discuss the NSA’s legal and (some have alleged) extra-legal activities.

Among the BSA’s less-well-known powers is the authority to review (to hear appeals on) decisions made by the Department of Buildings. Anyone aggrieved by a DOB decision (say the issuance of a building permit based on an interpretation of the zoning rules) can file an application at the BSA, after first obtaining a “final determination” on the matter from DOB.

The BSA also issues several Special Permits – for matters not seen as sufficiently broad in Scope as to require a ULURP application at the City Planning Commission.

The BSA’s sessions are fully open to the public – and neighbors are encouraged to attend. Indeed, all property owners within the area of a Variance are notified and have an opportunity to comment. (Of course, this is a major departure from the NSA’s activities, which are behind (several) closed doors and not open to neighbors or anyone else.)

The NSA and the BSA are key organs of government – known for their quiet deliberations and ‘under-the-radar’ operations. They operate with independent authority and power – seemingly unchecked by anyone. But, in this democratic system of ours, the leaders of both agencies are ultimately accountable to the electorate – through the chief executive that appoints them.