For the last several months, a fight with multi-million dollar implications has quietly been waged over fire safety requirements in San Jose’s tallest buildings.
The clash—featuring a tangled array of alliances between elected officials, developers, lobbyists, a monopolistic breathing device manufacturer, a union spurned and an ambivalent fire department—will come to a head Thursday afternoon, when the Public Safety, Finance & Strategic Support Committee meets to discuss the city’s tri-annual review of its fire and building codes.
In October 2010, former San Jose Fire Chief Willie McDonald signed off on a little-noticed change to the city code regarding fire safety equipment installed in high-rise buildings. McDonald’s memo to Mayor Chuck Reed and the City Council recommended adoption of the 2010 state building standards and amending Chapter 17.12 of the San Jose Municipal Code. It seems not everyone at City Hall and the fire department realized that one amendment would allow high-rise developers to install reinforced elevators in the event firefighters are needed, as an alternative to installing a Firefighter Breathing Air Replenishment System (FBARS).
A FABRS allows firefighters to refill tanks of oxygen in stairwell stations rather than descend back to the ground for supplies, or using a reinforced elevator to send up supplies and even personnel.
The change meant little to most observers, but developers, always watchful of the bottom line, saw the amendment as a way to remove hundreds of thousands of dollars—if not millions—in installation and maintenance expenses for a FABRS. Meanwhile, San Carlos-based Rescue Air, Inc.—the sole manufacturer of the FBARS, which can reportedly run between $350,000 to more than $1 million—was essentially pushed out of the 10th largest market in the country, at a time when the Great Recession was coming to an end and city officials were encouraging developers to build higher and faster in San Jose.
In May of this year, Councilman Sam Liccardo and the mayor pushed to have the FABRS requirement scrapped from city code altogether, sending Rescue Air’s lobbyist team—Forest Consulting LLC, which consists of Rich de la Rosa and Sean Kali Rai—on an information tour through City Hall.
Interesting to note, McDonald’s 2010 memo to allow reinforced elevators as an alternative to FBARS came after city staff met with architects, developers and contractors in series of meetings in August and September of that year. McDonald—who could not be reached for comment—wrote that a report on those meetings and recommended changes would go before the Public Safety committee Oct. 21, 2010. But in a separate memo sent to that committee, signed by McDonald and Planning Director Joe Horwedel, no mention was made of dropping FBARS requirements or reinforced elevators. In fact, McDonald did not give an oral report to the Public Safety committee on amendments to the city’s building code.
It wasn’t until just a few months ago that San Jose’s fire union, Local 230, became aware of the change to the city’s code, according to union President Robert Sapien, who in August urged the Public Safety committee to reconsider the amendment.
“The memo I submitted was based on learning that we’re creating an equivalent from the FBARS system to the elevator system, and in my professional opinion they are not equivalent,” Sapien told San Jose Inside. “My view is they’re very different things, and one does not equal out the other. We don’t trust elevators. We don’t use them. Our system is from stairwells.”
Councilmember Pete Constant echoed those safety concerns while also expressing doubts about the city’s level of transparency in making the change.
“The elevator and air system serve different functions and are not interchangeable,” Constant said. “It’s unfortunate that there was not a full discussion of the potential public safety impacts before making a decision of this magnitude. The staff memo presented to the Public Safety committee was unclear that the system requirement was being changed.”
Councilmember Ash Kalra, who like Constant was approached by Rescue Air’s lobbyist team, which has been paid tens of thousands of dollars to talk to city officials about keeping the air systems as part of city fire and building code, said another look at the city’s high-rise requirements is warranted.
“We should’ve had a full discussion on this, including the technology,” Kalra said. “Instead it was packaged a certain way, and it just doesn’t smell right. At the end of the day, it’s about having the best fire safety infrastructure for our firefighters and our residents.”
Horwedel, the city’s planning director, said the public safety committee does not have a voice in building code changes, but reports have been taken to the committee in the past as a courtesy. The city has the option of implementing a stricter building code than the state—which only requires reinforced elevators—but Horwedel says he and city staff are comfortable with dropping the air rescue system requirement.
“That would be my recommendation to the council,” he said. “(The FBARS requirement) was put in years ago, before we were really doing high rises. A number of jurisdictions have looked and have not implemented it.”
San Jose adopted the required installation of FBARS in all high-rise buildings back in 2006, at the suggestion of then-Councilmember Cindy Chavez, who, now working as a county supervisor, did not return a request for comment.
“When it was approved, it was billed as a non-proprietary system,” Horwedel said.
In fact, Rescue Air has sole control of the market for its breathing systems, selling them directly or licensing our their technology. “It’s not treated as an open source item like a fire stair or exit door,” Horwedel said.
In offering the reinforced elevator alternative three years ago, “[w]e got rid of the monopoly, or at least gave developers another option to meet the fire code,” Horwedel added.
There are currently three high-rise projects underway in San Jose—Samsung’s massive new business park and two residential high-rises downtown. “We would love to have 10 or 15 in the next five years, but it’s really a function on where the economy is two or three years from now,” Horwedel said, noting that City Hall and The 88 high-rise condos downtown both have FBARS installed.
Councilman Liccardo, who represents downtown, defended the city’s efforts to streamline high-rise building requirements in a safe manner. “If we’re truly interested in safety, we’d do far better to listen to the fire marshal than to a company trying to peddle its product and their lobbyists,” he said. “I’ll leave it to the pundits to speculate about the motives of those politicians who would choose the latter.”
Businessmen and city officials aren’t the only ones taking an aggressive approach to the issue. Last week, Roland De Wolk, a former producer for KTVU who was fired in the aftermath of the TV station’s erroneous report on pilot names in the Asiana airplane crash, sidestepped security protocol at City Hall by sneaking on to the council elevator to gain access to the 18th floor, which houses offices for councilmembers and the mayor.
It’s unclear if De Wolk was working as an independent reporter or a private business, but his goal was to interview Liccardo after a closed session council meeting. Sources at City Hall and on the periphery have described the scene in two ways: Liccardo ducked the interview; or De Wolk tried to ambush the councilmember. More certain, Rescue Air’s lobbyist team did help arrange interviews for De Wolk, who did not respond to an email requesting comment.
The group that seems most averse to conflict regarding this issue is the fire department. “Not taking away from any side, labor or management, we’re open to both (reinforced elevators and FBARS),” department spokesman Cleo Doss told San Jose Inside.
In a bit of irony, Doss said that the department does not currently train firefighters how to respond to high-rise fires using reinforced elevators or an air-rescue system.