FOIL requests for Milstein Hall

[updated below, Oct. 11, 2013 and Oct. 16, 2013] Under the Freedom of Information Law (FOIL), I formally requested information from the City of Ithaca Building Department concerning several Building Code violations in Milstein Hall:

1. I asked to examine an approved document, including egress calculations, showing current exit requirements from the upper level of Milstein Hall, Cornell. This is important because the “issued for construction” documents, upon which a building permit was issued, show only two exits from the upper level, whereas a recently posted occupancy sign (dated June 17, 2013) indicates 530 occupants in the space. A third exit into Rand Hall was created, as would be required for this occupant load, but the exit stair in Rand Hall was never upgraded as would be required.

2. I asked to examine document(s) indicating the current use and occupancy group (including calculations for maximum number of occupants) for the Crit Room under the dome, in the lower level of Milstein Hall. Because the recently posted occupancy sign, limiting the number of persons in the space to 49, has no basis in the Building Code, I want to establish what calculations and assumptions were submitted by Cornell and approved by the City of Ithaca. I can only imagine two explanations, both flawed: either the calculated occupancy is admittedly greater than 49 persons, but the City of Ithaca believes that a single exit in such a space remains acceptable as long as a sign is posted; or the calculated occupancy is actually 49 persons, but based on an erroneous use of a “business” occupancy load of 100 square feet per person. While the occupancy group for a college building is Group B (“Business”), the actual “use” of this space is not what the Code characterizes as “business use” but rather is classroom or assembly use. To design a classroom/critique room/assembly room with an occupancy load of 100 square feet per person is clearly unsafe and inappropriate.

3. I asked to examine document(s) showing why 1-sided sprinklers, designed for exterior walls required to be fire-rated for protection — i.e., designed to protect an adjacent building from a fire in Sibley Hall — have been approved for the ground floor and basement fire-barrier walls between Milstein and Sibley Halls (a single building). Cornell made an error in specifying 3/4-hour fire-resistance rated glazing instead of 1-hour fire-resistance rated glazing for some the required fire barrier openings at the ground floor and basement level of Sibley Hall. Instead of fixing this mistake, they installed a sprinkler system on the inside face of the 3/4-hour windows. Such an application is designed for, and approved for, situations where you must protect an adjacent building from a fire originating in Sibley Hall. This application does nothing to satisfy the requirement for a 1-hour fire barrier wall separating Sibley and Milstein Halls, which constitute a single building (Milstein Hall is an addition to Sibley and Rand Halls, not a separate building).

4. I asked to examine the City of Ithaca Building Department’s submittal to the Capital Region-Syracuse Board of Appeal, required per the Board’s findings in response to petition 2013-0250, “on the testified approvals of the compliance testing lab” concerning Tyco sprinklers used in 2nd-floor fire barrier between Milstein and Sibley Halls. Although the Board of Appeal sustained the City of Ithaca code enforcement official’s ruling on the use of double-sided sprinklers to create a 1-hour fire-resistance rated wall between Milstein and Sibley Halls, their “finding” was contingent upon seeing some documentation representing an official approval of this application. As the sprinkler application violates at least two requirements of the manufacturer (the glazing contains a horizontal mullion, and the glazing is within 2 inches of combustible material), I am curious how the City of Ithaca (via Cornell) will produce any document that validates their contention that the assembly is compliant.

[update 1: Oct. 11, 2013] On Oct. 9, 2013, I met with City of Ithaca Building Commissioner Mike Niechwiadowicz (Mike N.) and asked him about the four FOIL requests I had filed. Following are my notes from this meeting:

1. Egress from upper level of Milstein Hall:
I asked how and when the egress occupant load and number of exits were changed from the “Issued for Construction” drawings (Dec. 5, 2008) to the current situation. Originally, 2 exits were shown; recently, a third exit was added from Milstein into Rand Hall.

Mike N. said that this decision was reached working with the Fire Dept. and Building Dept.; that it was on the punch list for a Certificate of Occupancy, but that otherwise, neither calculations nor other documentation is available to show how this decision was reached.

I asked if it was appropriate for such changes in exits to be implemented without a paper trail; Mike N. said it was appropriate; that no documentation was required.

I asked about the lack of a guard rail on the Rand Hall stair that is now part of the Milstein Hall exit. Mike N. had no comment on this potentially noncompliant stair, neither acknowledging nor denying that the stair had or didn’t have, or needed or didn’t need, such a guard.

2. Occupancy of Crit Room changed to 49 occupant limit:
I asked Mike N. how the original occupancy type and load was changed from the original (i.e., from A-3 Assembly space to Group B Business use).

Mike N. said that there was no documentation, but that the space now complied with the findings of the Capital Region-Syracuse Board of Appeal (Petition No. 2013-0250). He said that as a Group B occupancy, one could assume an occupant density of 100 square feet per person, so that the limit of 49 was therefore appropriate.

I pointed out that a Group B occupancy classification did not mean that the use of the space was “business use” and that therefore the 100 square foot per person number might not be appropriate. He had no comment.

3. Use of 1-sided Tyco sprinklers for Milstein-Sibley fire barriers at basement and ground level:
I asked if there was any documentation that validated the use of 1-sided sprinklers in this application. I pointed out that the Tyco specifications, as well as the NER-516 document, only allow the use of 1-sided sprinklers for exterior walls that are required to be rated for protection, a condition that does not apply to fire barriers in general, and does not apply specifically to the Milstein-Sibley fire barrier.

Mike N. said that there was no documentation on this question, but that he thought the use of such 1-sided sprinklers was appropriate and compliant.

4. Submittal to Capital Region-Syracuse Board of Appeal from City of Ithaca “on the testified approvals of the compliance testing lab”:
I told Mike N. that I had already received a copy from Charles Bliss of the DCEA. I told Mike N. that I was surprised that this document was submitted, as I thought that the Board of Appeal wanted validation of the “testified approvals,” where the testimony referred to the specific application at Cornell — including the use of horizontal mullions and combustible material within 2 inches of the glazing — rather than the generic use of such Tyco sprinklers according to generic specifications.

Mike N. said that the Review Board just wanted to see the NER-516 report. He said that he did not want to engage in further discussion about whether or not the specific Cornell application was compliant (other than by stating that he felt that it was compliant).

In other words, there is not a single piece of documentation in the City of Ithaca Building Department files — in the form of plans, specifications, minutes of meetings, or calculations — that shows how the original drawings submitted for a building permit were revised. Nothing is available for review that might justify (explain) those revisions.

[update 2: Oct. 16, 2013] I received this email from the Ithaca’s Assistant City Attorney on Oct. 15, 2013:

From: FOIL Requests <>
Date: Tuesday, October 15, 2013 3:11 PM
To: Jonathan Ochshorn
Subject: re: FOIL Request for Records

October 15, 2013

Re: FOIL Requests Received in the City Clerk’s  Office on September 24, 2013

Our FOIL Record Nos. 1025, 1026, 1027 & 1046

Dear Mr. Ochshorn:

Please be advised that your FOIL requests wherein you requested “…Submittal to Capital Region-Syracuse Board of Appeal … re: petition 2013-0250… concerning… sprinklers used in fire barrier between Milstein & Sibley Halls…”, “…Document(s) indicating current use and occupancy group… for Crit Room, lower level of Milstein Hall…”, “… Document(s) showing why 1-sided sprinklers…have been approved for the ground floor… between Milstein and Sibley Halls…”, and “…Approved document… showing current exit requirements from the upper level of Milstein Hall…” have been granted to the extent that records exist.

We have been informed by the Building Division that you have reviewed their entire property files and been given any copies you requested.

Krin Flaherty
Assistant City Attorney

As this email was not quite true in a couple of respects, I replied with the following email:

From: Jonathan Ochshorn
Date: Wednesday, October 16, 2013 9:16 AM
To: FOIL Requests <>
Subject: Re: FOIL Request for Records

Hi Krin,

You wrote: “We have been informed by the Building Division that you have reviewed their entire property files and been given any copies you requested.”

This is not true. When I came to the Building Department on Oct. 9, 2013 to meet with Mike Niechwiadowicz (Mike N.) and examine documents related to the four FOIL requests I had submitted, Mike N. produced not a single document*, and claimed that there were, in fact, no documents or records that addressed the four questions I had raised. This is, in itself, shocking, as the questions I raised have to do with fundamental questions of fire safety in the Building Code. Not requiring documentation of such things violates your own requirements: “Permit Rejection: If the information in the application, plans, or specifications is indefinite or incomplete, the Code Enforcement Officer shall decline to issue the permit until the deficiencies have been corrected and re-submitted for review.” (

I must emphasize that the Ithaca Building Department had approved a noncompliant building addition (Milstein Hall), and has continued to permit alterations and changes of occupancy in the combined Rand-Sibley-Milstein Hall without requiring or producing any documentation to justify such alterations and changes, and in complete violation of provisions in the New York State Building Code.

Furthermore, I have not reviewed the entire property file for Milstein-Sibley-Rand Hall, the combined building that includes what were formerly separate buildings (Sibley and Rand Halls). This claim is absolutely false.

*Actually, Mike N. offered me a copy of the publicly available NER-516 report that had been sent to the NYS DCEA per instructions from the Capital Region-Syracuse Board of Review’ (Petition No. 2013-0250). I told him that I already had this copy, and asked him why it was not included in the Building Department Files.

Following are my notes from this Oct. 9, 2013 meeting:
[these notes are reproduced in update 1]

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