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.