This continues a discussion that started with my blog entry from 17 December 2008, and then continued with entries on January 15, 16, and 21, 2009. Can Milstein Hall be changed in the future to accommodate library or lecture hall occupancies? City of Ithaca Senior Code Inspector John Shipe responded to my previous email as follows:

• John Shipe wrote (1/22/09):

As you say, Milstein is an addition to Sibley hall separated per NYSBC ’03 Appendix K with a fire barrier per chapter 7 of the same code. And Milstein will be a Unseparated A-3/ B occupancy with the A occupancy being the most restrictive. So the A-3 sets the construction type, height and area for that occupancy and construction type, and all the other requirements for that occupancy such as detection , exiting, etc. throughout the building ( NYSBC 302.3.2 ). All of which are in compliance with the code in which it is permitted under.

As for your argument that you feel the second floor should most likely be a “B” occupancy really falls apart in your own email response:

“a large flexible space for studios that are conducive to improvisational interaction among the AAP programs. A variety of zones within the upper plate supports the college’s physical and programmatic vision for innovative and collaborative learning: AAP Forum, Flexible studio modules, Pin up/Crit, Seminar, Research, Technology bar, Study, Lounge.” [Note that this quote is not mine, but comes from Cornell’s Milstein Hall web site.]

This space is required to be flexible in order to accommodate many programs and situations, and so they permitted it as the most restrictive occupancy so that they would not have to worry about changes in occupancy every time there needs changed for that space . So we have Non Separated use A-3/B (NYSBC 302.4). If you read the entire section you will understand that the A-3 occupancy requirements apply to more than just the structural classification, but also dictates other requirements throughout the building. So even if they changed from a flex space to a library, it would be an equal change of occupancy and based on NYSEBC 812.4.2.2 the existing building would be fine in terms of Height and Area.

Furthermore:

Even if they were to call the second floor area a B occupancy and in the future wanted to change it to an A-3 space it would still be allowed since Milstein is being constructed with a separation of uses and fire areas from Sibley hall by the code required fire barrier so the height and area of Sibley hall does not figure into this equation (NYSEBC 812.4.2.3).

So in my opinion the university is covered by the code in a couple of different ways with the construction of Milstein hall and i know that is not what you want to hear, but those are the facts as i see them.

• I responded (1/26/09):

Thanks for your response. I’m sorry that it took so long for me to reply, but I’ve had a busy week. I agree with many of your statements, but I do have a few comments:

1. I agree that if the 2nd floor of Milstein is permitted as an A-3 occupancy, that future changes within that occupancy group should not present any problems. I do think, however, that at least some of that floor, if not all of it, would fit better under the group B designation, especially since the proposed uses are quite similar to those in Rand Hall, which you agreed in a previous email would be best classified as group B. This especially applies to some of the small spaces, such as seminar rooms, but also, I believe, to the studio classrooms.

2. I think that the Code does require all uses to be individually designated, even in a nonseparated mixed-use building (Section 302.3.1 says: “Nonseparated uses. Each portion of the building shall be individually classified as to use.”). The Code also suggests that these designations must conform to the actual intended use, and not to a generalized use, even if that generalized use is at a higher hazard level (Section 302.1 says: “…Where a structure is proposed for a purpose which is not specifically provided for in this code, such structure shall be classified in the group which the occupancy most nearly resembles…”).

3. It may be that the reason for designating each space by its actual use, and not giving the whole floor a blanket A-3 designation, is that the specific uses still trigger code compliance issues, even in a nonseparated mixed-use building which is governed in some respects by the higher hazard occupancy (Section 302.3.1 says: “…The required type of construction for the building shall be determined by applying the height and area limitations for each of the applicable occupancies to the entire building. The most restrictive type of construction, so determined, shall apply to the entire building.”) So the A-3 occupancy determines height and area limits for the whole building, but the A-3 occupancy does NOT determine all other requirements. The code section continues: “All other code requirements shall apply to each portion of the building based on the use of that space except that the most restrictive applicable provisions of Section 403 and Chapter 9 [exception for high-rise and sprinklers only] shall apply to these nonseparated uses….”. In other words, as an example, all the chapter 10 means of egress tables must still be checked for each separate occupancy, and not just for the highest hazard (A-3) occupancy.

4. I don’t think that the 2nd-floor could be easily modified to include A-3 uses in the future, if it is designated as group B now. The reason is that the code-required fire barrier you refer to is only legal under Appendix K of the old code. Any future change of occupancy to a higher hazard would not be able to claim compliance based on a fire barrier, since that code provision no longer exists (Section 812.4.2.1 says: “When a change of occupancy group is made to a higher hazard category as shown in Table 812.4.2, heights and areas of buildings and structures shall comply with the requirements of Chapter 5 of the Building Code of New York State for the new occupancy group.”). Also note that Section 812.4.2.3, which you refer to, does not apply to a future change from a group B to a group A-3 occupancy within Milstein. It simply says that separated mixed-use buildings need proper fire barriers between the separated uses. But Milstein is not being designed as a “separated mixed-use building,” and, furthermore, the fire-barrier separation between Sibley and Milstein is intended to act as a “fire wall” under Appendix K of the old code so that height and area limits that would have been triggered by Sibley’s construction type do not apply to Milstein under the old code. But with any future changes in Milstein to a higher hazard occupancy, Section 812.4.2.1 requires that current Chapter 5 height and area limits be met, so that the Appendix K fire barrier from the old code would no longer count as a fire wall under the current code, and the proposed changes would be noncompliant.

Those are my main issues. I agree that the architects seek a flexible floor plan, but I think that all the uses that are listed on their plans (and on their web page), such as “forum,” “studio modules,” seminar,” etc. are best designated as group B uses, which would permit Cornell to modify the plan in the future, as long as the modified uses continue to be group B uses.

I received another email today from John Shipe of the City of Ithaca Building Department relating to my concerns about the “flexibility” of Milstein Hall to accommodate future changes. See posts from Jan. 15, 2009 and Jan. 16, 2009 to see how the conversation started.

• John Shipe wrote:

The building is being built as an A-3/ B occupancy with unseparated uses, so  the entire building is being built to comply with the A-3 requirements. Since it is already constructed to the higher hazard standards the change of occupancy issue will not come into play in the future.

• I replied:

Milstein Hall is an addition to Sibley Hall, and will be designed and permitted as a mixed-occupancy building with nonseparated uses. However, as I said before, those nonseparated uses must still be “individually classified as to use,” according to the code. Under the code, because the building is designed with “nonseparated uses,” the entire building must be built according to the most restrictive occupancy, which is A-3. I believe that we are in agreement with all of this, since this is taken directly from the NYS code.

The Existing Building Code also says that any future change in occupancy to a higher hazard (e.g., group B to group A-3) must be consistent with area-height restrictions under the current code. The fact that Milstein is designed with a Construction Type consistent with an A-3 occupancy is not the same thing as saying that the occupancy of Milstein is A-3 throughout. The proposed occupancy is mixed,  with a large area consisting of group B. There is nothing in the building code that permits you to decide that these group B occupancies can be later changed to a group A-3 occupancy without meeting the requirements of the Existing Building Code. In fact, the opposite is true: the Existing Building Code specifically requires that Milstein comply with the current New York State Building Code if any occupancy changes are proposed from group B to group A-3.

I believe that you are confusing Construction Type (which in Milstein is consistent with the most restrictive occupancy, as it must be to satisfy code requirements for nonseparated uses) and Occupancy (which in Milstein is mixed, and consists of both group B and group A-3). The Existing Building Code does have a specific exemption for (1) occupancies and construction types that were legal when they were built; and (2) changes in occupancy that go to a lower hazard from a higher hazard. These exemptions do not apply to the situation were are discussing.  What we are discussing is a proposed change in the future to a higher hazard occupancy. The Existing Building Code specifically requires that changes in occupancy to a higher hazard MUST COMPLY with the current code (Chapter 5, New York State Building Code). It doesn’t matter what the construction type is, or whether the proposed occupancy change would have been legal had it been built under an older code. All that matters, according to the Code, is what the occupancy is now, and what the proposed change of occupancy is.

None of this would matter if Milstein Hall were legal under the current building code. The entire problem arises because Milstein is nonconforming under the current code. As such, it’s current occupancy may be “grandfathered” into the future, but changes to that occupancy must be evaluated under the new (current) code.

I emailed a copy of the Milstein post dated 15 January 2009 to John Shipe, Senior Code Inspector for the City of Ithaca Building Department. Mr. Shipe responded to me (and others) via email today: I reprint his email, followed by my email reply.

• John Shipe wrote:

You are incorrect that you will not be able to do any work after the building receives a Certificate of Occupancy due to height and area concerns. Once a building has a C of O it is in compliance with the Building code under which it was built, after that time you would use the Existing building code of NY, as you mentioned, to do any additional work in an existing building. The Existing Building code only talks about the height and area when there is a change of occupancy within the building and it only becomes an issue if you plan to go to a higher hazard occupancy based on table 812.4.2. In the case of Milstein which is being permitted as an Assembly (A-3) and a Business (B) occupancy the only higher hazard than the A-3 is an Hazardous occupancy (H)  with would not be allowed within this building for many other reasons.All new work in the building would have to be done in compliance to the new code, but height and area will not come into play in this case unless an addition to it is ever proposed.

• I replied:

Thanks for the clarification. However, I still believe that my analysis is correct, for the following reason. The building code allows for mixed occupancies, as you suggest, but each portion of the building must still be individually classified as to use. If portions of Milstein are occupied for educational use (above grade 12), i.e., as a group B, then any change of that occupancy in the future to a library use (group A-3) falls under the Existing Building Code, and the logic of my argument remains valid.

An entire building cannot be classified as both group B and group A3, but rather must be broken down into individual portions, each of which falls under a specific and appropriate occupancy classification. And it is not appropriate to simply call the entire building A3 when, in fact, much of it is planned to be occupied as group B.

• John Shipe then wrote back:

It is an unseperated A-3, B occupancy

• I then responded:

Doesn’t matter: each portion of the building must still be classified as to use. My argument remains valid.

All that the nonseparated status does is make the most restrictive occupancy govern the buiding design; it does not change the fact that there are still separate (mixed) occupancies. The whole point of having this status “grandfathered” is that changes in the specific arrangments of occupancy WILL trigger a re-evaluation under the current code: the grandfathered status does NOT permit Cornell to claim that every potential future occupancy change is covered under an old code.  Occupancy is a different category than is construction type. All you can say is that an A-3 occupancy is permitted under the current permit; if Cornell decides to make new A-3 occupancies in the future in portions of the building that are currently group B, they would need to demonstrate compliance under the current Existing Building Code, as I stated in my initial email.

• John Shipe then wrote back:

you are not correct, but you have refused to hear anyone side of this discussion unless it suits your purpose. The upper level and several other areas are being considered as an A-3 occupancy so there will be no need for a change in occupancy so that section will not apply in the future. If they were to change a B occ. to an A-3 then you would be correct, but it would have to be larger than 750 sq ft and over 50 people to make it an A occ. and i see no place they could do that without large scale modifications and that’s where your argument will come into play and a file note will provide direction for anyone review the file in the future to this situation.

Good luck with your campaign. Please remove me from your email list.

• I then responded:

I wouldn’t have thought that the upper level of Milstein would be classified as an A-3 occupancy. The Building Code requires that structures “be classified in the group which the occupancy most nearly resembles, according to the fire safety and relative hazard involved.”  Given the choice between group B (specifically including “Educational occupancies above the 12th grade”) and group A-3 (“Assembly uses intended for worship, recreation or amusement and other assembly uses not classified elsewhere…”), it seems to me that Group B is a better fit for the proposed occupancy, which consists primarily of open classrooms (design studios) and related educational functions. However, I can see that the choice is not absolutely clear-cut.

If A-3 is the appropriate classification, I would assume that all other large studio spaces at Cornell have similarly been classified as A-3 (e.g., the Landscape Architecture studios in Kennedy-Roberts Hall, and the 2nd- and 3rd-floors spaces in Rand Hall), and not as group B. Could you confirm whether or not this is the case?

I am sending emails to you in your capacity as Senior Code Inspector for the City of Ithaca Building Department. You are not on a “list.” However, if there is another person in you department who would prefer to receive my questions and comments concerning building code issues, please let me know, and I will be happy to make the switch.

• John Shipe then wrote back:

In the case of Milstein Hall the lecture room on the lower floor is being considered an A-3 based on the description in NYSBC 303.1 as is the upper floor area (libraries)  by the same section of the code. I cannot comment on the rooms at Kennedy- Roberts since that is under the jurisdiction of the State, nor can i comment on the designers intent for the spaces in Rand , but if was to do an evaluation of Rand i would say that the spaces in the upper floors are more of a B occupancy due to the fact that they are more “lab” spaces than an assembly space. That is my read on this. Code is a lot of interpretation and a person will typically interpret it in the way that best suits there needs , yours is to see to it that it does not get built, mine is to see to it that a proposed set of plans is in compliance with the applicable codes of the time and that  i have nothing to gain from it.  Your many point on it have been noted and in some case have caused the designs to be modified so that they are in compliance when or if this building gets built, so credit to you. But, at the same time I am the AHJ and i have a few things to say about it and i am the one who has to approve or not approve  the design based on the codes in front of me and its clear that we are interpreting the code a little differently in some respects.

As far as the emails, I have no problem with receiving them, but your constant refusal to hear my (or anyone else’s)  point on any matter concerning Milstein Hall gets a little hard to deal with. I am the point of contact for all Cornell buildings within the city of Ithaca and will continue to be.

• I then responded:

I listen very closely to other’s viewpoints, including yours: I just sometimes disagree.

I understand that the Milstein auditorium is unambiguously an A-3 space, but where on the upper floor areas of Milstein is there any mention of a library? Cornell’s own Milstein Hall website describes the upper-level floor as being “a large flexible space for studios that are conducive to improvisational interaction among the AAP programs. A variety of zones within the upper plate supports the college’s physical and programmatic vision for innovative and collaborative learning: AAP Forum, Flexible studio modules, Pin up/Crit, Seminar, Research, Technology bar, Study, Lounge.” (https://milsteinhall.cornell.edu/content/view/building-design.html ) This sounds very much like Rand Hall’s studio floors, which you stated in your email are perhaps more consistent with a Group B classification. If Cornell were really putting a library in Milstein, I would withdraw my complaint, but if they are simply calling the upper level a “library” in order to circumvent the intention of the Building Code, then I think that would be problemmatic.

Also, for the record, I am not opposed to Milstein Hall being built: I would prefer if a more rational and less extravagent revision was proposed, but I agree with many others here that the added space for our department is sorely needed. On the other hand, I do have a problem with Cornell proposing a building when they knew from the start that it was nonconforming with model building codes, as well as with the soon-to-be-adopted 2007 NYS Buidling Code, and I feel that if they wish to continue down this path (which seems to be their legal right), they should at least meet Code standards in a rigorous manner.

[Update: the discussion continues here]

Once Milstein Hall gets a certificate of occupancy, it becomes an “existing building” and therefore becomes subject to the current building code (the Existing Buiding Code of New York State) when and if any future alterations are proposed.

I believe that certain ideas for future alterations, for example, putting some or all of the Fine Arts Library in Milstein, or even making certain alterations in E. Sibley Hall, would not be possible, since any such alterations involving a change of occupancy group to a higher hazard category would need to comply with the height and area requirements of the current code — specifically chapter 5 of the Building Code of New York State — under which Milstein-Sibley is nonconforming.

It has always puzzled me why the University would choose to construct a building that is nonconforming with respect to current fire safety codes; the probability that such nonconformance would make the building relatively inflexible with respect to future alterations adds a new and important concern. In light of this, I have again suggested to various University administrators that they put this project on hold, so that this issue, and many others, can be more carefully considered and evaluated.