Cornell’s latest attempt to preserve its noncompliant fire barrier

Cornell has installed a noncompliant fire barrier between Milstein and Sibley Halls and, in response to a “Code appeal” Hearing Board stipulation, submitted a document that proves that their as-installed fire barrier is noncompliant. They then have asserted that this document, which establishes beyond any shadow of a doubt that what they have done is illegal, actually proves the opposite.

Please read the letter written by Cornell’s Associate University Counsel and then read my full email response (excerpted below), which I sent today to Brian Tollisen at the New York State Division of Code Enforcement and Administration (DCEA):

I received a copy of a letter addressed to you from Shirley Egan of Cornell, dated Oct. 15, 2013 (attached to this email). In it she states that a party must first “request permission from the court or (as in this case) quasi-judicial board, to reopen and reargue a matter” and that therefore “Mr. Ochshorn’s purported re-argument is improper.” Ms. Egan also requests that my email (copied below) “be deemed a motion to the Board of Review requesting its permission to allow him to reargue.”

Perhaps you can sort through the apparent contradictions in Ms. Egan’s attempt to prevent further discussion of Cornell’s noncompliant fire barrier between the Milstein Hall and Sibley Hall portion of the combined Rand-Sibley-Milstein Hall building. On the one hand, she asks you to consider my email as a motion requesting permission to reargue; on the other hand, she claims that this request is improper because I must first request permission to reargue. Go figure.

Ms. Egan further claims that the City of Ithaca’s submittal of the NER-516 document — a document that was already shown to the Hearing Board and referenced by the City of Ithaca in testimony at the July 18, 2013 Hearing (Petition No. 2013-0250) — somehow satisfies the Hearing Board’s requirement for “submittal from the City of Ithaca on the testified approvals from the compliance testing lab.” The “testified approvals from the compliance testing lab” sought by the Hearing Board cannot simply be that Tyco sprinklers, when installed correctly, meet certain fire-rating standards. This fact was never in doubt, and was never the subject of the Petition. The only issue raised by the Petition was whether the sprinklers, as installed, were compliant. The document submitted by the City of Ithaca proves, with absolutely no ambiguity, that these sprinklers, as installed, are noncompliant.

Does the hearing Board really want to accept this document as evidence that the “testified approvals” meet the standards of the testing lab, when this document proves the exact opposite?

Ms. Egan also claims that “the Board of Review heard — fully — from all three parties concerned, including Mr. Ochshorn, and then exercised its independent, considered judgment to reach its own decision on the matter. The fact that the decision does not coincide with Mr. Ochshorn’s position does not mandate further review, no matter how many times he requests it.”

Neither Cornell nor the City of Ithaca provided a copy of NER-516 (the document they presented in testimony at the July 18, 2013 hearing, and the document ultimately submitted per the Review Board’s request) to me before or during the Hearing, so I had no way of challenging its use as “testimony” in support of the City of Ithaca’s claim that the Tyco sprinklers, as installed, were compliant. Therefore, I am not simply rearguing the same point over and over again, as Ms. Egan claims, but am responding to new evidence submitted by the City of Ithaca after the Hearing that I have never before seen, and that I was never able to challenge at the Hearing.

I’m not even sure that a re-opened Hearing is necessary in this case: the City of Ithaca’s submittal did not satisfy the requirements stipulated in the hearing Board’s decision. Therefore, it may be possible for the Hearing Board to simply reject the City of Ithaca’s submittal, since it doesn’t provide any documentation supporting the as-installed compliance of the sprinkler system, and revise its decision accordingly. Either way, letting the City of Ithaca and Cornell University build this dangerous and noncompliant fire barrier in complete disregard for fire safety considerations regulated under the Building Code of New York State would make a mockery of the whole Code Review process.

Jonathan Ochshorn

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