Critique of Milstein Hall: Response to Cornell's Q and A

Jonathan Ochshorn


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Response to Cornell's Q and A

Cornell posted a Q&A called "Cornell AAP Building Safety and Code Compliance" (access PDF using my link or Cornell's link) on Nov. 19, 2013 in response to a podcast in which I discussed my Critique of Milstein Hall. I have already addressed some of these issues, in response to AAP Dean Kent Kleinman's Feb. 11, 2014 letter to The Architect's Newspaper. In any case, here are Cornell's original eight questions and answers (in red), followed by my responses:

1. Was Milstein Hall designed and built according to all applicable codes?

Milstein Hall was designed and built according to all applicable codes, zoning laws, and preservation regulations as they were understood by the authorized code officials and the building's architects of record. The building was granted a certificate of occupancy on February 24, 2012, after final compliance review by the City of Ithaca's Building Division. Further, the architects employed the services of Accessibility Services of the United Spinal Association to ensure compliance with the Americans with Disability Act and its local compliance practices.

Cornell's answer is either patently false, or incredibly cynical and disingenuous: Of course, Milstein Hall was designed and built according to codes "as they were understood by the authorized code officials and the building's architects of record." The problem was that these code officials and the building's architects of record misunderstood these codes, resulting in the design and construction of a building that violated the building code in numerous ways. Cornell hired various consultants, including one to advise them about ADA requirements. While most of the "protruding object" violations in the original design were corrected (long after a building permit was filed and the project was constructed), some still remain (Figure 1).

Milstein Hall vs Gates Hall cane detection

Figure 1. Cornell's recently completed Gates Hall provides "cane detection" on sloping columns at the edge of egress paths (left); Milstein Hall still has sloping elements at the edge of egress paths with no such protection (right). Photos by J. Ochshorn.

It's also interesting that Cornell puts the blame on the "architect of record" (Kendall/Heaton Associates, Inc. from Houston, Texas) and doesn't even mention the role played by the design architects (OMA with Rem Koolhaas), even though the design architects were intimately involved in all discussions concerning the issues I raised in my fire-safety critique, and even though the schematic design proposal of these same design architects already included most of the major Code problems associated with the building.

2. Do questions ever arise about what a building code section means and a building's compliance with building codes?

Yes, differences of opinion over what a particular section or sections of code mean can and do arise among professionals. Sometimes these differences are between the municipal code official and a building's architect of record or owner, and sometimes they are between interested private individuals and the code official. They can arise before or after the issuance of a Certificate of Occupancy. Such differences are decided by one of the state's regional Boards of Review of the New York Division of Code Enforcement and Administration (DCEA).

The designs of Milstein Hall and, later, of the Fine Arts Library in Rand Hall, were in violation of the NYS Building Code in numerous ways. Implying that these blunders were a matter of "differences of opinion" is, I suppose, one way to spin it. I look at it from a different standpoint: in the case of Milstein Hall, the design architect clearly had no idea about the fire-safety implications of his schematic proposal to join a wood-framed, combustible, Type V-B building to a large addition, itself with no fireproofing on its primary structural elements. Such a plan violates virtually every known building code in the U.S., and was only allowed because Ithaca Code Officials found what they considered to be a "loophole" in Appendix K of the 2002 NYS Code, and advised Cornell and its architects to file for a building permit before that Code expired, more than 2 years before construction actually commenced. The ruling of the Review Board that seemed to uphold this Code interpretation actually validated my contention that the building was noncompliant by acknowledging that the entire Milstein-Sibley-Rand Hall complex must be designed as Type V-B construction. Only when confronted with the unpleasant news that Milstein Hall — even considered alone with its own floor area and occupancy type — still exceeded the floor areas allowed by the Code, did State Officials change their opinion (although never formally) and concoct a specious rationalization for Milstein Hall's Code compliance.

The incredible attempts by Cornell and its architects, supported by City of Ithaca Code Officials, to explain why an assembly space designed for hundreds of occupants (the crit room) was acceptable with only a single exit is another example of incompetence or corruption that cannot be explained away as a mere "difference of opinion." Equally bizarre is the rationale for building noncompliant fire barriers separating Milstein Hall from Rand and Sibley Halls.

3. A number of code-related issues were raised by Professor Ochshorn, suggesting that Milstein Hall is not code compliant. Did he appeal them to the Board of Review?

Yes, in an appeal dated May 28, 2013, Professor Ochshorn raised eight questions related to code compliance in Milstein Hall and the adjacent buildings, Rand Hall and Sibley Hall. On July 18, 2013, these issues were presented by Professor Ochshorn to the Regional Board of Review. At this hearing, the acting building commissioner of the City of Ithaca presented his reasons for granting the building permit and certificate of occupancy. Cornell representatives also spoke at the hearing, as did a representative of one of the architects. Written responses from the architects of record were also presented.

My "Application for Variance or Appeal" along with other documents and commentary can be found in the Summary from Code Appeal section of this Critique.

4. What was the outcome of the appeal?

The board sustained the determination of the City's Acting Building Commissioner on six of the eight issues and reversed the decision of the City's Acting Building Commissioner on two of the eight issues. One of these two issues was related to egress provisions from the Milstein Hall critique dome; the other related to the location of a library in adjacent Rand Hall.

This is incorrect: the Review Board explicitly upheld three, not two, of the eight issues I raised, and implicitly upheld two others. An additional issue that I raised was implicitly validated months later at a Variance Hearing. In other words, six of the eight issues that I raised were either explicitly or implicitly supported by the Review Board or Variance Board. A more detailed explanation can be found on my blog post from Feb. 18, 2014.

5. What has Cornell done in response to the two items that were ruled against the code official and Cornell?

Building owners typically have several alternatives available to achieve code compliance following an adverse ruling. Following the July decision on the Milstein Hall critique dome's egress provisions, for example, Cornell could either add code-compliant exiting or reduce the size of the room so that its occupancy was 49 persons. Either would achieve compliance. Both involve determining feasibility, followed by a design phase and then construction to implement the design. Cornell and its advisors are at the stage of studying feasibility. In the meanwhile, immediately after the Board's decision for a maximum occupancy of 49 persons, Cornell posted signs in the space, not because signage is the code-compliant fix (it would not be), but because it was an appropriate interim response while a permanent solution is studied. In the case of the library in Rand Hall, Cornell is seeking a code variance to permit this use in Rand Hall. Cornell's variance petition is before the board.

Cornell describes two choices for making its Crit Room Code-compliant, but only one of these fixes would actually work. Adding additional exits, as I suggested in addenda to my Appeal (see PDF p.55-59), could work, but reducing the room size to accommodate 49 occupants would not. This is because the interconnected spaces joining the below-grade Crit Room level, the lobby level, and the studio level are Code-compliant only if the lobby level is designated as a mezzanine, and this designation requires that the Crit Room be larger in floor area than would be the case if it had only 49 occupants. On the second issue (placing a noncompliant library in Rand Hall), I have already discussed how and why Cornell's request for a Code variance was granted.

6. Professor Ochshorn has asserted that Milstein Hall is too large to comply with the building code and that it is therefore unsafe. Is this correct?

Milstein Hall was designed and constructed to be compliant with code sections governing its size. Milstein Hall is non-combustible construction and fully sprinklered. It was determined by the authorized city code official to be compliant in terms of size and configuration, and this determination was upheld by the Regional Board of Review.

Milstein-Sibley-Rand Hall has more than double the floor area that would be permitted under any modern building code. I have discussed the questionable "loophole" in Appendix K of the 2002 NYS Building Code that seems to allow this in my Critique of Milstein Hall, in my response to Dean Kleinman's letter to The Architect's Newspaper, and briefly in Item #2 above.

The question of building safety is determined from a probabilistic standpoint and so cannot be answered absolutely. Building Codes establish a baseline intended to promote a certain degree of safety so that, for example, only a small number of structural collapses or fires will occur within a given time period and for a given number of structures. This degree of safety is determined, ultimately, by politicians who vote to approve various Codes and regulations that affect building design and construction. Within the current framework of Codes, the probability of any given building experiencing a damaging fire, for example, is quite small. On the other hand, the probability that there will be many deaths and millions of dollars worth of damage as a result of fires within New York State in any given year is quite high. Politicians weigh the costs and benefits of more stringent fire safety provisions in New York State Codes, and attempt to strike a balance that is intended to promote economic growth by reducing the costs of construction (e.g., by reducing requirements for fire safety) to an extent consistent with the anticipated costs of death, injury, and damage due to inevitable building fires — also accounting for the degree of safety, and costs of construction, in competing states.

Because the probability of experiencing a fire in any given building is small, Cornell is apparently willing to build Milstein Hall with less provision for fire safety than would be required by the 2007 or 2010 NYS Building Codes, or by all model building codes in recent history (e.g, the 2000, 2006, or 2010 International Building Codes). Cornell has not even provided an adequate fire barrier, as required by Appendix K of the 2002 Code (Cornell was ultimately granted a variance so that they need not provide any opening protectives in the wall); and Cornell has exploited a dubious loophole in Appendix K of the 2002 Code that was interpreted (incorrectly, in my view) as allowing a fire barrier to change the construction type of a building addition in a manner not supported by any actual Code language. The variance that Cornell requested and was granted to build a Fine Arts Library in Rand Hall similarly creates a greater risk of fire than would have been the case had Cornell instead upgraded the buildings to conform to the existing Code.

So, one cannot say that Milstein hall is safe or unsafe. All one can say is that it is less safe than it would have been, and could have been, had it been built according to provisions in the 2007 NYS Building Code that were in effect before the "issued for construction" drawings were actually issued, and more than a year before the construction of Milstein Hall actually started.

7. Claims have been made that Milstein Hall has leaks and other construction failures due to its ambitious architectural design. Is this true?

Shortly after occupation, several construction issues were identified and entered on to a list for the contractor to repair since the construction is warranted by the builder. This list—commonly called a "punch list"—is standard in construction projects. One such issue was a roof leak, which was repaired by the contractor along with other punch-list items. There are extended warranties on the waterproofing membranes and curtainwalls. These warranty or punch-list items are not related in any meaningful way to the ambitions of the architectural design.

The correct answer is: "Yes: Milstein Hall has leaks and other construction failures due to the fact that its ambitious architectural design was not supported by rigorous research and competent detailing." The answer provided by Cornell has a few errors: punch list items are generally compiled as part of a "pre-final" inspection and before the architect certifies that the construction is "substantially complete." This typically has important implications for final payment to the contractor, and in some cases may be a prerequisite to a request for a Certificate of Occupancy (depending on the nature of the punch list items). Many of the nonstructural failures that I discuss in my Critique of Milstein Hall are issues that either emerged well after the punch list should have been resolved, or are issues that still haven't been resolved. One more thing: Cornell claims that the "construction is warranted by the builder." Even without having access to the contracts between Cornell and its contractor, it is clear that no such blanket warranty exists. Builders are responsible for carrying out the construction as specified in the contract documents prepared by the architect and the architect's consultants. If those contract documents are flawed—as they appear to be in many respects—then it is the architect who bears responsibility, not the contractor. And where there is a difference of opinion as to who is responsible, litigation is a likely outcome. Perhaps Cornell would agree to release and make public all correspondence relating to the nonstructural failures that have plagued Milstein Hall. Only then could we fully understand the scope of, and remedies proposed for, the various issues I raised.

8. As a faculty member, does Professor Ochshorn represent the university?

Professor Ochshorn does not represent the university. He is an individual faculty member and he represents himself. AAP is proud to have commissioned an architectural work of the highest quality, and was pleased to advocate for special access for Professor Ochshorn to the Milstein Hall construction site so that he could obtain videos and images of the construction process for use in his classes and in his scholarship. After construction, AAP provided use of the architect's construction documents to support his teaching. But this access does not change the status of the public remarks he has made about the building as coming from a private citizen, not as a representative of the college or the university.

I was under the impression that Cornell AAP was interested in having faculty members make proposals to link their academic coursework to the construction of Milstein Hall, and that the builders of Milstein Hall were contractually obligated to engage in such collaborations. Perhaps I'm wrong about this, but it was as a result of this belief that I made a proposal to create construction videos for Milstein Hall. I am grateful for the help provided by AAP and by the contractors, and I believe that the resulting videos have been quite useful. The idea that AAP provided use of construction documents to support my teaching is only half true: a beat-up set of half-size architectural drawings was placed in the Fine Arts Library for a while. However, as the fall 2013 semester was about to begin, these drawings were removed from the library by the Dean's office and destroyed. When I attempted to get access to a new set of drawings for use in my class, I was told on Oct. 7, 2013 by Jim Gibbs, Cornell's Director of Facilities, that "Kyu Whang, the Vice President of Facilities Services, who is the custodian of all drawings of University buildings, regardless of whether they have been archived, declines to provide you the requested documents at this time." Finally, after numerous unsuccessful attempts to obtain access to the drawings, Cornell agreed to bring a set of drawings to the Fine Arts Library for two days each year — the rest of the time, they will be stored in the Facilities office, inaccessible to either me or my students. Such are the limits of academic freedom as practiced here at Cornell.