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17. HEARING BOARD APPEAL
As a registered architect and user of Milstein-Sibley-Rand Hall, I was certainly aware of the code issues discussed above, both while Milstein Hall was being designed, and after it was constructed and occupied. Naturally, I brought these code issues to the attention of Cornell's Milstein Hall project director as well as code enforcement officials in the City of Ithaca Building Department. Some of these issues were addressed, but many remained unresolved. Therefore, I filed a formal complaint with the Ithaca Building Department, dated December 13, 2011.1
The response I received from the City of Ithaca Building Department, dated March 16, 2012, did not address any of the specific code irregularities that I itemized in my complaint. Rather, Ithaca Building Commissioner Phyllis Radke expressed confidence that the architects of record, Cornell University, and the Ithaca Building Department were "truly interested in making sure that all life-safety and health imperatives are met…" and that my "concerns had already been responded to by the project Architect Kendall Heaton and Holt Architects." However, because my concerns remained unaddressed and because life-safety issues remained unresolved, I submitted a "Local Code Enforcement Complaint Form" to the New York State Division of Code Enforcement and Administration (DCEA) on April 10, 2012.
After more than a year passed, I was told by Brian Tollisen of the DCEA on April 24, 2013, that "in lieu of the complaint, you could apply for an appeal to our Regional Board of Review." This was confirmed by Charles Bliss of DCEA in an email to me dated May 10, 2013, in which he attached an application and offered to waive the required fee.
In the appeal that I submitted to the Regional Board of Review,2 I identified several code irregularities or violations concerning Milstein Hall, including the fire safety issues discussed above:
- That Milstein-Sibley-Rand Hall exceeded the allowable area for a single (combined) building.
- That the fire barriers constructed between Milstein Hall and its neighbors were noncompliant.
- That the Crit Room in Milstein Hall violated common path of egress travel distance limits, had too few exits, and had inadequate separation between the exits.
- That Milstein Hall's lobby and entry bridge were improperly designated as a mezzanine within the Crit Room.
I also argued that the move of Cornell's Fine Arts library into the third floor of Rand Hall shortly after Milstein Hall was completed, creating a temporary home for the library pending the construction of a more elaborate design, violated height limits for the combined Milstein-Sibley-Rand Hall building.
On the question of whether Milstein-Sibley-Rand Hall exceeded the allowable area for a single (combined) building, the Board upheld the decision of the code enforcement official. The Board's "Findings of Fact" provided very little in the way of explanation, stating only that "Milstein/Sibley/Rand Hall exceeds Table 503 floor area limits based on Appendix K. In Appendix K, there is a statement that additions are allowed to exceed values greater than noted in chapter 5 if a fire barrier is constructed."3 The fact that Appendix K also required the fire barrier to meet chapter 3 floor area limits—in which case the combined areas of Milstein-Sibley-Rand Halls become noncompliant—did not seem to concern the Board. However, on the related question of whether Cornell's Fine Arts Library could remain on the third floor of Rand Hall, where it exceeded the height limit for an A-3 occupancy (library) in a sprinklered building with Type VB construction, the Board ruled in my favor, reversing the determination of the code enforcement official.4
This latter decision made the temporary third-floor Fine Arts Library noncompliant. But rather than addressing the root cause of the problem—lack of a fire wall separating Rand from Milstein Hall—Cornell applied for a series of code variances, each one more outrageous than the one before, that led ultimately to the construction of the Mui Ho Fine Arts Library in Rand Hall. I have written about this elsewhere.5
On the question of noncompliant fire barriers, the Board upheld the decision of the code enforcement official, but with a disclaimer: since the Board's decision was based on "information submitted and testimony given today that adequate code-compliant fire separation does exist, … the Board of Review will expect a submittal from the City of Ithaca on the testified approvals from the compliance testing lab."6 Of course, the City of Ithaca was unable to supply any document that validated the use of Tyco sprinklers to create the equivalent of a 1-hour fire-resistance-rated wall assembly in the context of Milstein Hall's fire barrier openings, because no such document exists. Instead, the document referenced by the City of Ithaca was the same so-called "Legacy Report," NER-216, which specifically cites two of the conditions that make Cornell's use of such sprinklers noncompliant: that "the glazing assembly shall not have intermediate horizontal mullions," and that "all combustible materials shall be kept 2 inches (51 mm) from the face of the glass."7 Ken Dias, an Applications Specialist at Tyco, also argued that Cornell's placement of sprinkler heads between the required fire-resistance-rated glass and an existing window "was not considered in the UL testing nor is it addressed within the evaluation service reports," concluding that "this installation does not appear to be in compliance with the UL Listing per Tyco data sheet TFP620, ESR-2397 or NER-516."8 And the Board did not even consider the argument that—irrespective of whether Tyco sprinklers can create the equivalent of a 1-hour fire-rated wall when deployed in window openings—the fire barrier is noncompliant because it lacks "continuity," i.e., it does not meet the requirement that all structural elements supporting the fire barrier wall must have at least the same fire-resistance rating as wall itself. The fact that I didn't bring up this issue in my appeal may well explain the Board's silence, but doesn't excuse the architects of record, who bear the legal responsibility for designing a safe and code-compliant building.
On the question of inadequate exits from the Crit Room assembly space, the Board ruled in my favor, reversing the determination of the code enforcement official.9 In response to this judgment, Cornell pondered what to do for more than a year, in the meantime posting a sign in the space limiting occupancy to 49 persons. Ultimately, Cornell decided to create an additional exit from the space by opening up a wall between the Crit Room and the auditorium and providing a new means of egress from the Crit Room through the adjacent auditorium. Doing so required extensive modifications to the auditorium itself, including removal of fixed glazing, demolition of concrete surfaces, patching of floors and walls, and the construction of a new concrete wall, glass partition, and glass exit door (fig. 17.1).10
Figure 17.1. Extensive modifications were made to auditorium seating and to the wall separating the Crit Room from the auditorium in Milstein Hall in order to create a new exit from the Crit Room, through the auditorium.
Cornell currently posts an occupancy limit of 655 in the Crit Room, presumably in order to comply with the 700-person occupancy limit for assembly spaces with only three exits. But this violates the code in two ways. First, the code does not permit the Crit Room's posted occupancy load to be smaller than its calculated occupancy load. As I argued earlier, section 1003.2.2 (Design Occupant Load) states that "the number of occupants for whom means of egress facilities shall be provided shall be established by the largest number computed in accordance with sections 1003.2.2.1 through 1003.2.2.3,"11 and that largest number is 901 occupants rather than 655. Second, the code requires four exits, not three exits, for an occupancy load greater than 700. To repeat: even if as much as 1,000 square feet (93 square meters) is excluded from the area designated as "standing space" so that it could be used for tables or displays—and excluding areas on this arbitrary basis is not even permitted by the code, which is designed to protect against "worst case" scenarios—the Crit Room would still have a computed occupancy load greater than 700 and would still require four exits.
On the question of improper mezzanine designation, the Board upheld the decision of the code enforcement official.12 To be fair, I had not made the argument to the Board that the entry-bridge opening must be designed as an atrium, rather than as a mezzanine, because it contains a means of egress. This argument, had I made it, might, or might not, have changed the Board's decision. But it never came up. In retrospect, even though I believe that the Board's decision was incorrect, it could be considered moot. Subsequent iterations of the code, such as the 2020 New York State Building Code, now allow two-story openings to contain a required means of egress (so-called exit access stairs), so the mezzanine can no longer be criticized on that basis. With the mezzanine being part of the Crit Room, the three current exits from the Crit Room meet the code's separation requirements, and with a third exit having been constructed, the common path of egress travel distance limit is now met. But the requirement for four exits is still not met.
Before moving on, consider one final digression about the differences in safety brought about by, on the one hand, designating the opening connecting the Crit Room, entry-bridge, and studio floor as a two-story opening, with the entry-bridge being a mezzanine within the Crit Room; or, on the other hand, considering the opening as an atrium connecting three floors. Assuming, for the sake of argument, that only two exits are needed in the Crit Room, these two alternate designs point out some of the inconsistencies in the code when unusual geometries are encountered. If the opening connecting the three floors was designed as an atrium, with a required smoke control system, then the entry-bridge level would be considered a story, rather than a mezzanine floor within the Crit Room, and—ironically—the separation distance between the two exits in the Crit Room (without a third exit) would be noncompliant.
This is because the exit access point through the entry-bridge level would be at the bottom of the stair so as to remain in the Crit Room (Figure 16.5). But if the entry-bridge floor was considered a mezzanine within the Crit Room, that same exit access point would be moved up the stair to the exit from the lobby, since that more remote location, now part of the mezzanine, would also now be in the Crit Room (Figure 16.4a). Thus the safer option—building an atrium with a smoke control system—would not have met the code standards for exit separation, while the exact same spatial geometry, but minus any smoke control system, would have been considered compliant since the intermediate level, being a mezzanine, would have allowed the exit access point to be "moved" farther away.
Notes
1 My complaint to the City of Ithaca Building Department was filed under Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York (1203.3 Minimum features of a program for administration and enforcement of the Uniform Code), on Dec. 13, 2011.
2 The Code Appeal Hearing that I initiated was held July 18, 2013, at the Hughes State Office Building, 333 E. Washington St., Syracuse, NY, before the Capital Region-Syracuse Board of Review. The Board consisted of: Michael Hrab, George R. Maney (Chair), Mark L. Dedrick, and Richard Lafferty, AIA. Representing Cornell: Gary Wilhelm, Milstein Hall Project Manager; Bob Stundtner, Director of Capital Projects Management; and Shirley Egan, Associate University Counsel. Representing HOLT Architects, who had been hired by Cornell as code consultant, was Thomas Hoard. Representing the City of Ithaca Building Department was Acting Building Commissioner Mike Niechwiadowicz. In this context, I was the petitioner.
3 "Decision. Appealing a determination."
4 "Decision. Appealing a determination."
5 Jonathan Ochshorn, "Appeal regarding building code violations in Cornell's Fine Arts Library," unpublished analysis, last updated March 17, 2021, here.
6 "Decision. Appealing a determination."
7 "ICC ES Legacy Report," Evaluation Report No. NER-516, Division 13-Special Construction, section 13930-Wet-Pipe Fire Suppression Sprinklers, "Tyco Fire Products (TFP)/Central Sprinkler Company (CSC) Window Sprinkler Model WS, 1/2 inch orifice quick response vertical and horizontal sidewall sprinklers SIN TY3388, TY3488, C3388 and C3488," reissued Jan. 1, 2003, here (author's copy).
8 Email from Ken Dias, Applications Specialist at Tyco, to the author (July 24, 2013).
9 "Decision. Appealing a determination."
10 For documentation of the construction of a new Crit Room exit, see Jonathan Ochshorn, "Milstein Hall's New Crit Room Exit" (March 14, 2015), here.
11 ICC, "1003.2.2 Design Occupant Load," New York State Building Code, 2002, 200, (my italics).
12 "Decision. Appealing a determination."
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