Critique of Milstein Hall: Fire Safety

Jonathan Ochshorn


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Fire safety contents: 1. introduction | 2. floor area limit | 3. fire barrier | 4. crit room egress | 5. Sibley egress | 6. mezzanine | 7. Rand occupancy | 8. conclusions | 9. summary and appeal | 10. variance application

1. Introduction

Milstein Hall is an addition to two existing buildings on the Cornell University campus in Ithaca, New York—Rand Hall and Sibley Hall—that was constructed between 2009 and 2012 (Figure 1).1 Under current and previous (2010 and 2007) New York State building codes, a fire wall would be required between E. Sibley Hall and Milstein Hall since otherwise the combined floor area would exceed limits specified in Table 503 (Allowable Height and Building Areas) of those codes.

view of Milstein Hall at Cornell

Figure 1. Milstein Hall at Cornell University, an addition to Sibley Hall (to the left) and Rand Hall (to the right). Photo by Jonathan Ochshorn, July 19, 2012.

However, Milstein Hall obtained a 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 applicable only in New York State, and only for this particular iteration of the New York State Code.

Milstein Hall is a nonconforming building, and quite possibly a noncompliant building, with respect to fire safety codes currently in effect, and 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], embodied in their IBC and International Existing Building Code [IEBC], and adopted through legislative processes by virtually all states in the U.S.

For the last decade or so, New York State has adopted the IBC as the basis for its Building Code of New York State. Individual states naturally can modify these "model" codes to suit local conditions or, more commonly, political and economic interests. 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 efficient redevelopment of old building stock and modern standards of fire safety, modern standards of fire safety were sacrificed somewhat in order to reduce the costs of, and thereby to encourage, such redevelopment.2

This type of compromise 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. The peculiar history and rationale of Appendix K will be discussed in the following section.

A building permit was applied for, and granted to, Milstein Hall just before the 2007 Building Code of New York State 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. Even so, the permit drawings originally submitted for Milstein Hall were grossly noncompliant—i.e., illegal—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 certain buildings to become accessible, even when there was no such requirement 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 25 years after passage of the ADA to get around to it). Another example is a recent judicial ruling that prevented Cornell from continuing use of lecture rooms (so-called assembly occupancies with 51 or more occupants, including Room 157 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.3 In this case, the ruling didn't preclude continued use of the rooms, but such use would only be possible if occupancy were reduced below 51 persons, or if a second exit were added. 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.4

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 (25 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 safety5 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.

Six instances of fire-safety Code noncompliance are discussed in the following sections.

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Fire safety contents: 1. introduction | 2. floor area limit | 3. fire barrier | 4. crit room egress | 5. Sibley egress | 6. mezzanine | 7. Rand occupancy | 8. conclusions | 9. summary and appeal


1 Much of this material on fire safety problems in Milstein Hall is based on formal complaints that I filed with the City of Ithaca Building Department and the New York State Department of Code Enforcement and Administration (DCEA). The City of Ithaca response to my complaint—written by Commissioner Phyllis Radke (dated March 16, 2012)—includes the following concluding statements: "Though I respect your position and efforts as a Professor of Architecture at Cornell University, the Building Department's relationship is with Cornell as the Owner and their agents including Gary Wilhelm, the architect overseeing the project for Cornell, and with the Architects of record, Kendall Heaton and Holt Architects. Certainly the liability for compliance lies with Kendall-Heaton and Holt Architects. I understand all of these people have made considerable efforts to review your concerns and to explain how the issues in your letter meet NYS Building Codes. Furthermore, The City of Ithaca's Building Department also concurs with the Architects of record that their application of the Building Code is the correct reading and implementation of the Building Code… I know this is not what you want to hear, but because your complaints have already been received and reviewed by the Architects of record and that Deputy Building Commissioner, Michael Niechwiadowicz, our Code Enforcement Officer in charge of overseeing compliance for Milstein, Rand, and Sibley agrees that their code determinations have been explained to you, I believe I have no further obligation to investigate the merits of your allegations." As of this writing, the New York State DCEA has not responded to my complaint.

[Update, May 28, 2013] On May 10, 2013, it was suggested by DCEA officials that, "due to the complexity of your complaint, the best resolution would be for you to file an appeal with the Board of Review." I submitted this appeal on May 28, 2013; the appeal and the Hearing Board's findings are linked from my summary and appeal page.

I have also drawn upon blog posts that I have written over the years concerning Milstein, Rand, and Sibley Halls. An index of all such posts can be found here (accessed July 19, 2012).

2 Appendix K had the support of both development and preservation interests in New York State:

"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.

"With the shift of focus by some businesses from cities to suburban and rural areas, many large buildings once used for manufacturing have fallen into dormancy. The City of Syracuse, however, is effectively using the progressive provisions Appendix K to convert a former factory into a condominium complex. Since Appendix K evaluates the past use of a building and compares the previous fire and life safety hazards to the proposed occupancies, the developer is offered options on how to make the project comply. In this case, the manufacturing building is far larger than the code would allow for a new residential complex. Appendix K evaluates existing construction methods to determine equivalency with the safety intent of the code without requiring overly strict conformance to new construction requirements." Quality Communities, Fall 2005, Vol IV Issue 1, p.3 (George E. Pataki Governor) online here (PDF accessed July 20, 2012; no longer accessible at its original site here)

"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 was appointed by the Department of State (DOS) as a voting member of the New York State Code Council's International Existing Building Code (IEBC) Technical Subcommittee.

"Throughout the year, this technical subcommittee evaluated the impacts of the draft IEBC on various building types in New York State. The League hired architects and code consultants Marilyn Kaplan and Elise Johnson-Schmidt to conduct a code comparison of the former and interim building codes, as well as the draft IEBC code, on a typical three-story "Main Street"-type building. The League's review was the most thorough code analysis submitted to the committee. The study concluded that, though the draft IEBC is an improvement over the former codes, it still requires additional modification to make it friendlier to existing buildings.

"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." Preservation League of New York 2002 Annual Report, p. 7, online here (PDF accessed Sept. 12, 2011).

3 My blog post on this subject from June 2009 is here. See New York State's "Code Interpretation 2008-01" here (accessed July 19, 2012).

4 California's 1986 unreinforced masonry (URM) law required local governments in high-risk zones to inventory URM buildings, create "loss reduction" programs, and report back to the relevant state agency. See "Status of the Unreinforced Masonry Building Law," here (accessed Sept. 7, 2011).

5 "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." This statement can be found on Cornell's Disability Information web site here (accessed Sept. 7, 2011). "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." This statement can be found on Cornell's Environmental Health and Safety web site here (accessed Sept. 7, 2011).