The above-captioned case was most recently scheduled for hearing on August 4, 2009 at 1:00 P.M.  At that time, Chairman Coutu, Vice Chairman Newbrook and Commissioners Preiss, Blackburn, Richard, Jackson, Jasparro, Dias and Filippi were present.  The fire service was represented by Assistant Deputy State Fire Marshals Timothy Lutz and Lisa Krapf of the Providence Fire Marshals Office.  A motion was made by Commissioner Dias and seconded by Commissioner Preiss to grant the Applicant relief as outlined herein.  The motion passed with Commissioner Blackburn abstaining from the vote.
FINDINGS OF FACT
	Based on the testimony taken during the August 4, 2009 hearing along with the documentation submitted by the parties, including a June 16, 2009 letter from the Providence Fire Marshal's office and a July 15, 2009 summary and variance request cover letter by the Applicants engineer, the Board makes the following findings of fact.  
	The Board finds that the subject facility is substantially complete and contains an arrangement of single level dwelling units on floors 1, 2, 3, 4 and 5.  The Board further finds that the lowest level is a basement below grade and contains parking.  The Board further finds that the second floor contains some parking, six (6) apartments and retail space.  The Board further finds that the second, third, fourth and fifth floors contain dwelling units.  The Board further finds that the fifth floor contains two (2) level loft style units with the lofts qualifying as mezzanines.  The Board further finds that this facility is fully sprinklered with an NFPA 13 sprinkler system which includes all of the attic space.  The Board further finds that the loft levels of the units are separated by attic spaces from each other.  Specifically, the Board finds that the walls of the lower level of the dwelling units adjacent to each other are separated by at least one-half hour separations in accordance with the code and the second level is separated from the attic space by partitions that are created by installing two (2) layers of 5/8 fire code sheetrock on the interior of the unit attached to engineered wood trusses that support the roof.  The Board finds that this results in the separation of each loft level by two (2) layers of 5/8 fire code sheetrock attached to the wood truss, separated by a fully sprinklered attic space for a distance of between either fifteen (15) or thirty-seven (37) feet, depending on the configuration of the units.
	The Board finds that by letter dated June 16, 2009, the Providence Fire Marshal's office advised the applicant that the UL listing submitted for the loft wall separation did not conform with the construction.  The Providence Fire Marshal's office further advised that Applicant that he could provide a UL listing for the proper fire resistant rating or could apply to the Board of Appeal and Review for an engineering judgment/equivalency for what has already been built.
	The Board further finds that by letter dated July 15, 2009, the Applicant took the advice of the Providence Fire Marshal's office and filed this appeal.  Both parties were present during the August 4, 2009 hearing on this matter and the Board had before it the issue of whether Life Safety Code section 31.3.7.2, which requires separation of dwelling units from each other by fire barriers having fire resistant ratings of not less than  hour in fully sprinklered buildings, was met by equivalency construction in this case.

CONCLUSIONS AND VARIANCE REQUESTS 
	1.  Based upon the facts outlined above along with the opinion letter of the Applicants engineer, the Board has determined that the existing separation between the cited loft-style units is the equivalent of at least  hour separation as is required pursuant to section 30.3.7.2 of the Life Safety Code.  Specifically, the double 5/8 construction of the interior unit walls along with a sprinklered separation of between fifteen (15) to thirty-seven (37) feet and the double 5/8 of the adjoining unit satisfies the code requirement of separation in this case.

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)].