The above-captioned case was scheduled for hearing on January 6, 2009 at 1:00 P.M.  At that time, Chairman Coutu, Vice Chairman Newbrook and Commissioners Dias, Pearson, Walker, Jasparro and Preiss were present.   Commissioner Blackburn recused himself from consideration of this case.  The fire service was represented by Assistant Deputy State Fire Marshal Joseph Michalczyk of the Providence Fire Marshals Office.  A motion was made by Commissioner Preiss and seconded by Vice Chairman Newbrook and Commissioner Dias to grant the Applicant relief as outlined herein.  The motion passed over the opposition vote of Commissioner Walker.

	After the original Decision was issued, the Providence Fire Marshals Office requested that the Decision be amended to better reflect certain points established in the record in this case including the status of the Applicants representative.  After advising the Applicants representative of this request, and ascertaining his status, it was determined that the Findings of Fact portion of the Decision would be modified to more fully reflect the record in accordance with Board Rule 6-2-12. The Conclusions and Variance Requests section of the Decision shall remain unchanged. The Board authorized this amendment of the Decision during its January 27, 2009 hearing. Commissioner Blackburn continued to recuse himself in this matter.    

FINDINGS OF FACT
	During the January 6, 2009 hearing on this matter, the Board had before it a December 9, 2008 position statement of the Providence Fire Marshal's Office relating to the Applicants requested relief from the NFPA 13, 2002 edition requirements for seismic bracing of the sprinkler system within this one hundred year old mixed-use facility.  The Board notes that in the above letter, Assistant Deputy Fire Marshal Joseph Michalczyk stated, While this has become a popular proposal with older buildings, I feel that it would be a mistake for this to be allowed in this building. Accordingly, the Board hereby incorporates the December 9, 2008 position statement in its findings of fact as it relates to the position of the Providence Fire Marshal's Office.

The Board further finds that the Applicant was represented by Code Consultant Peter J. Casale. The Board takes administrative notice of the fact that Mr. Casale was the former Chief of Structures and Zoning for the City of Providence for many years and has previously appeared before the Board in that capacity representing the City of Providence. The Board further finds that the Applicant was also represented by Architect Robert Arp who advised that he had worked with Engineer David Odeh on this project and that Mr. Arp and Mr. Odeh had conducted on-site visit(s) throughout the complex. The Board takes administrative notice that Engineer M. David Odeh, referenced above, is a recognized structural engineering expert who has been relied upon, by both the Fire Service and the Fire Board, in prior cases.  

The Board finds that Code Consultant Casale and Architect Arp both appeared before it in support of the requested relief from the above technical code requirement of providing the sprinkler system with seismic bracing, as cited in a third party analysis by Hughes Engineering. The Board finds that the Providence Fire Marshals Office recommends against the requested relief because the building was built in sections, contains a variety of systems, apparently had several improvements made without oversight, and is located in a flood plain. The Providence Fire Marshal advised the board that, I know that it is very common to omit seismic bracing in older buildings  but (in light of the above factors) I would recommend against it. 

The Board finds that the Applicants Architect has been working on this project for the past three (3) years. The Board further finds that during this period, Architect Arp  and Code Consultant Casale have reviewed the structure of the building and Architect Arp reports that they have a different professional opinion as to whether the building is settling or moving. Specifically, the Board finds that they have not observed any settling or moving. In addition, the Board finds, in light of the uncontested testimony of Architect Arp, that neither Engineer Odeh, nor the three (3) different Providence Building Inspectors, who visited the site, advised of any settling of this building. 

The Board further finds that there has been no documentary evidence presented to it, during the hearing, that would indicate any actual settling of this building. Specifically, such evidence could include prior reports of ruptured water, sewer, gas and similar utility lines serving this structure. Finally, the Applicants Architect advised that, with regard to the fact that the building was built in a flood zone, no scouring action had been observed. Rather, in light of the uncontested testimony of the Applicants Architect, the Board has been advised and finds that the water level simply rises and falls without significant erosion, and the Board further finds that this has been documented by the City of Providence.  Finally, the Board finds that any non-seismic rupture of the sprinkler system would trigger the fire alarm system and allow for immediate evacuation of occupants.

The Board finds that it has previously granted relief from seismic bracing of sprinkler systems, when the converted mill in question would likely not survive a seismic event.  The Board finds in light of the fact that the seismic bracing would be attached to the building and/or its structural components, any seismic bracing would undoubtedly fail in a seismic event where the building itself failed.  Finally, the Board notes that this hundred year old mill building has not been built to withstand earthquake events.	

CONCLUSIONS AND VARIANCE REQUESTS
	1.  The Board hereby grants a variance from the seismic bracing requirements as outlined in NFPA 13, 2002 edition, in order to allow the Applicant not to provide seismic bracing on the sprinkler system of this one hundred year old former mill building which has not itself been designed to withstand a seismic event.


STATUS OF DECISION AND APPEAL RIGHTS
	This Decision represents a comprehensive, integrated plan of fire safety for the above-captioned facility under the above-cited use or occupancy.  Accordingly, every variance granted is conditioned upon the Applicants timely and continued compliance with all of the directives of the Board. Every variance granted is further conditioned upon the continued use or occupancy of this facility under the above-cited classification reviewed by the Board.  (See: Board Rules and Regulations, section 6-2-17).
	Failure of the Applicant to initially comply with the full Decision of the Board, within the stated time frame, shall void all variances granted herein.  (See: Board Rules and Regulations, section 6-2-18.)  In the event of complete, timely and continued compliance with the full Decision of the Board, the above cited variances shall be deemed to have vested in the above-captioned facility.  As long as this facility is in continued compliance with the full Decision of the Board, the above-cited variances shall remain with this facility in the absence of any change in use or occupancy mandating review under a separate classification of the Fire Code or a revision of the above-cited classification.  (See: Board Rules and Regulations, section 6-2-19).  
Such changes in use or occupancy of this facility, or failure to continually comply with the Boards Decision shall void all variances granted under the above-cited use or occupancy.  If such change creates a new use or occupancy as outlined in R.I.G.L. 23-28.1-6, all variances granted under the original use or occupancy are void and this facility shall be reviewed under the newly created use or occupancy.  (See: Board Rules and Regulations, section 6-2-20).
	The Applicant may appeal the Boards Decision, within thirty (30) days of the mailing date of this Decision, by commencing an action against the State Fire Marshal in the Sixth division of the District Court.  Commencement of such an action does not operate as an automatic stay of this Decision [R.I.G.L. 42-35-15(c)].