13. OPENING REMARKS ON FIRE SAFETY
Building codes play a prominent role in this discussion of fire safety. At the outset, I want to emphasize two things: first, that such codes are political documents and do not derive their minimum standards directly from fire science, but rather balance the benefits of adopting potentially more rigorous fire safety strategies against the economic costs of doing so; and second, that following requirements embedded in model building codes, however flawed they might be, is still the only reasonable alternative to literally "following the science"—something beyond the expertise of most architects and building code officials. Moreover, building according to legally-mandated prescriptions in codes will reduce the risk of death, injury, and property damage due to fire. So when I refer to various code provisions, I take them to be both necessary and sufficient to reduce fire risk, even if the political and economic reality is more nuanced. The one exception is a uniquely bad provision found only in the 2002 iteration of the New York State Building Code—Appendix K—which, by radically deviating from the provisions found in all other codes, seriously upset this balance between safety and economics.
There are no national building codes in the U.S. Rather, each state is free to adopt its own code. This is because the U.S. constitution gives various powers to congress—to collect taxes, to establish post offices, to declare war, and so on—and creating a national building code is not one of them. Moreover, the tenth amendment to the constitution makes it clear that "powers not delegated to the United States by the Constitution … are reserved to the States, or to the people."1 As a result, U.S. codes have historically been largely regional, with three private model code organizations creating the standards that were then turned into legal documents by individual states (and sometimes by individual cities). The earthquake-oriented Uniform Building Code was adopted by western states, the hurricane-oriented Standard Building Code was adopted by southeastern states, and the wind/snow-oriented Basic National Building Code was adopted by northeastern states.2 This situation only changed with the consolidation of these model code organizations into the International Code Council (ICC), which issued its first version of the model International Building Code (IBC) in 2000. Accounting for the inevitable legislative time lag, this model code became the basis for the 2002 New York State Building Code, under which Milstein Hall was permitted.
Strictly speaking, Milstein Hall is an addition to two existing buildings on the Cornell University campus in Ithaca, New York—Rand Hall and Sibley Hall. Under all current and previous New York State building codes—i.e., for all New York State codes except for the 2002 iteration under which Milstein Hall was permitted—a fire wall is required between Milstein Hall and the adjacent buildings (Sibley and Rand Halls) since otherwise the combined floor area would exceed limits specified under code sections specifying "Allowable Height and Building Areas."
However, Milstein Hall obtained a building permit under the 2002 New York State Building Code which regulates additions to existing buildings, not by standard provisions based on the International Building Code (IBC), but by a unique appendix promulgated only in New York State, and only for this particular iteration of the New York State code.
Since Milstein Hall does not satisfy current code requirements, it is a nonconforming building, and quite possibly a noncompliant building, not only with respect to fire safety codes currently in effect, but also with respect to fire safety codes in effect when its construction began. As such, it is less safe than it would have been, and could have been, had it been built according to prevalent fire safety standards codified by the International Code Council (ICC) and embodied in their IBC and International Existing Building Code (IEBC).
Under former Governor Pataki, New York State created its own code language for existing buildings (rather than using the language contained in the inaugural version of the 2000 IBC). This was done by deleting most of the IBC chapter governing existing buildings (chapter 34) and replacing it with an appendix unique to New York State: Appendix K. The idea was to make it easier for developers to renovate or add to existing—often abandoned—buildings, and thus to spur redevelopment, especially of historic structures, where the costs of doing so would otherwise be prohibitive. In a compromise between economically viable redevelopment of old building stock and modern standards of fire safety, modern standards of fire safety were sacrificed to some extent, in order to reduce the costs of, and thereby to encourage, such redevelopment.
Not surprisingly, Appendix K had the support of both development and preservation interests in New York State. A New York State publication explained it this way:
The new rehabilitation provisions of New York's Uniform Fire Prevention and Building Code are changing the way developers and investors look at existing buildings across the State. Known as Appendix K, this new and progressive approach to building rehabilitation is providing much needed flexibility to allow for the safe and cost effective revitalization of our existing buildings.3
The Preservation League of New York was also enthusiastic about the new code provisions embedded in Appendix K:
The League is committed to a New York State Building Code that meets public safety goals while eliminating barriers to the redevelopment of existing and historic commercial buildings. In 2002, a new interim building code went into effect in New York State, one in which the League played a key role in reviewing and proposing enhancements to "Appendix K," which guides the rehabilitation of existing buildings. This interim code will be in use until the state adopts the International Building Code, a new national model code. … The League is advocating for further evaluation of the draft IEBC in 2003. The League's efforts have Governor Pataki's support, as code reform is an integral element of the state's Quality Communities initiative. Adoption of an effective code is critical to providing communities across New York State with a renewed opportunity for investment and growth, while helping to curb sprawl.4
This type of compromise between development and fire safety was already being discussed for a yet-to-be-issued International Existing Building Code (IEBC) being developed by the ICC, so the development of Appendix K in New York State can be seen as a temporary measure to bring the New York building codes in line with anticipated developments in the national model code. Unfortunately, in at least one key section of Appendix K, the language and intentions of the soon-to-be-issued IEBC were—for unknown reasons—altered, and the carefully-contrived balance between redevelopment and fire safety implicit in the model code was seriously upset.
A building permit was applied for and granted to Milstein Hall just before the 2007 New York State Building Code became effective. This rush to secure a building permit under the old, soon to expire, 2002 code appears to have been motivated by the existence of Appendix K in the old code—an appendix whose development-friendly provisions were no longer entirely sanctioned by the 2007 code. However, the permit drawings originally submitted for Milstein Hall were grossly noncompliant, even considering the reduced fire safety standards permitted under the 2002 code. It seems therefore entirely inappropriate for a building permit to have been issued based on the submitted drawings.
Nonconforming buildings are quite common and are not improper per se. They come into existence as building codes become more stringent over time. Virtually all codes permit existing buildings that were compliant when they were built to remain as they are (were), even when they no longer conform to the more rigorous standards of newer codes. The rationale for allowing nonconforming buildings is not that the old buildings are just as safe as newer ones that comply with more stringent code provisions. Rather, the rationale is entirely pragmatic: economic and practical constraints make it virtually impossible to constantly upgrade buildings with every 3-year code cycle. That being said, there are exceptional circumstances when nonconforming buildings are forced to make changes in order to meet current standards. For example, the Americans with Disabilities Act (ADA) requires most existing buildings to become accessible, even when there was no accessibility requirement in place at the time the building was constructed. The new elevators in Sibley and Rand Halls at Cornell are examples of this mandate being implemented (even if it took Cornell 20 years after passage of the ADA to get around to it). Another example is a judicial ruling that prevented Cornell from continuing use of lecture rooms (so-called assembly occupancies with more than 49 occupants, including a lecture room in East Sibley Hall) where only one means of egress was present—even though the lecture rooms may have been legal when they were built.5 A third example is the required strengthening of existing unreinforced masonry (URM) buildings in California for increased seismic resistance, even when those buildings were constructed according to seismic codes in place when they were built.
In the first two examples of required retrofitting of nonconforming buildings, both applicable to the architecture facilities at Cornell, Cornell's response was to either delay implementation (20 years in the case of Sibley and Rand Hall ADA-mandated elevators), or to challenge in court the legal basis of the code interpretation whose intent was to make buildings safer by requiring conformance with current lecture hall egress standards. In each case, Cornell was acting within its rights—yes, one could interpret the ADA regulations governing conformance with accessibility requirements as applying to the campus as a whole rather than to individual buildings and in that way claim to have satisfied the letter, if not the spirit, of the ADA; and yes, one could challenge the legal basis of the code interpretation in order to maintain a nonconforming condition in which several large lecture halls had only one means of egress (Cornell lost this legal challenge)—but the question remains why an institution committed to access and safety6 would adopt ad hoc policies that actually reduce access and safety. That this institutional attitude is not limited to the two instances cited above can be seen by examining the design decisions leading to the construction of Milstein Hall.
The initial schematic design for Milstein Hall, unveiled with much fanfare at a public lecture by OMA/Rem Koolhaas in Bailey Hall at Cornell in September 2006, was fundamentally flawed from a fire-safety standpoint, and should not have been approved for design development. These problems do not derive from obscure or "academic" fire safety principles that could easily be overcome with money or advanced technology. Rather, the problems go to the very heart of fire safety regulations: the requirement that combustible material that might fuel a fire must be limited in quantity so as to preserve life safety and limit property damage in the event of a fire; the compartmentation of buildings into smaller units separated by continuous or protected assemblies; and the provision of adequate means of egress.
2 Rossberg and Leon, "Evolution of Codes in the USA."
6 "Cornell University is committed to diversity and inclusiveness with the goal of providing an accessible, usable and welcoming environment for faculty, staff, students and visitors with disabilities." See "Accessibility Information," Cornell University, accessed June 4, 2023, here. "The University Fire Marshal works with the Campus Community and Stakeholders by providing education and helpful tips for Fire Code Compliance and individual Safe Work Practices. This provides an additional layer to ensure that campus facilities are as safe as possible." See "Fire and Life Safety," Environment, Health and Safety (Cornell University), accessed June 4, 2023, here.