Green Building & Environmental Trends : Green Building & Construction LEED AP Consulting : Rich Cartlidge : Environmental Trends, Urban Development

I consider myself truly fortunate to be a resident of Tampa, Florida particularly during times such as this past week when the North Eastern Seaboard where I grew up is covered in snow. The state of Florida is likely associated by most of my readers with Disney World, golf, and vacation. However, what many people don't know is that Florida is home to a variety of robust and diverse ecosystems ranging from the salt marshes along the coasts to the Everglades. Further, Florida, at least the majority of the state, has a very rich history and is perhaps one of the last true frontiers left in America a place where true cowboys raise cattle and reap the harvest of the land. The Florida Legislature has recognized the need to build sustainably moving into the future and to that end have enacted the following legislation.

255.2575  Energy-efficient and sustainable buildings.--

(1)  The Legislature declares that there is an important state interest in promoting the construction of energy-efficient and sustainable buildings. Government leadership in promoting these standards is vital to demonstrate the state's commitment to energy conservation, saving taxpayers money, and raising public awareness of energy rating systems.

(2)  All county, municipal, school district, water management district, state university, community college, and Florida state court buildings shall be constructed to meet the United States Green Building Council (USGBC) Leadership in Energy and Environmental Design (LEED) rating system, the Green Building Initiative's Green Globes rating system, the Florida Green Building Coalition standards, or a nationally recognized, high-performance green building rating system as approved by the Department of Management Services. This section shall apply to all county, municipal, school district, water management district, state university, community college, and Florida state court buildings the architectural plans of which are commenced after July 1, 2008.

While this legislation may not seem very progressive to those of you who live in some of the more progressive cities such as our nations capitol it is a great step forward for Florida. What I find to be the most interesting piece of this legislation is section 3 which encourages the fostering of green building professionals and a continuing education program which can help guide Florida's builders into the future. For additional information regarding Florida's green building and renewable energy initiatives I encourage you to take a look at the excellent resource assembled by DSIRE which can be found here.

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Back in September a Palm Coast ordinance providing for the fast tracking of building permits, relief from permitting fees and  free certification inspection of green buildings by city inspectors hit a roadblock and was tabled. According the the Flagler County News this ordinance was unanimously passed in a modified form this past week. The major sticking point in the original legislation was not resistance to green building itself but rather the provision for unlimited free inspections by city inspectors. The homebuilders group argued that providing unlimited free inspections was going to hurt the business of independent companies who currently provide such services while the city council argued that free inspections would help builders who are currently wary of building green become comfortable with the process. The ordinance is meant to provide an incentive to builders to go green as city manager Jim Landon says: 

"In essence what this does is attempts to not require builders and developers to include more environmentally friendly design, but gives them incentives to do so,"

"We changed the ordinance so we will do one certification per builder with the idea that hopefully they will see some value in continuing that program,"

Are green building incentives and mandates being held up by the market or rather by interest groups who fail to see the bigger picture? Palm Coast is taking steps in the right direction it is a shame to see good legislation being watered down the interests of a small group of independent building inspectors, individuals who presumably want to see green building expand.

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President Obama'sExecutive Order 13514 set out standards for the federal government's transition to becoming green. While the order focused on emissions reductions and the greening of data centers it also includes the following requirements for green buildings, courtesy ofReuters:

Obama's executive order lays out similar guidelines for the government's buildings, starting with the ambitious goal that, "beginning in 2020 and thereafter ... all new Federal buildings that enter the planning process are designed to achieve zero net-energy by 2030." Section 2 (g) of the order also includes the following details:

(iv) pursuing cost-effective, innovative strategies, such as highly reflective and vegetated roofs, to minimize consumption of energy, water, and materials;

(v) managing existing building systems to reduce the consumption of energy, water, and materials, and identifying alternatives to renovation that reduce existing assets' deferred maintenance costs;

(vi) when adding assets to the agency's real property inventory, identifying opportunities to consolidate and dispose of existing assets, optimize the performance of the agency's real- property portfolio, and reduce associated environmental impacts; and

(vii) ensuring that rehabilitation of federally owned historic buildings utilizes best practices and technologies in retrofitting to promote long- term viability of the buildings.

As my colleague Chris Cheatham pointed out in his article Four Steps To Green Contracting with the Government contractors need to begin navigating the field of green credentials and positioning themselves for bidding on federal projects in the future. So contractors, are you ready?

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When was the last time you looked at a nutrition label? If you are like me there are certain foods that you know are loaded with calories but you ignore the nutrition label so that you can enjoy your meal without the guilt. So what happens if labels indicating air quality and energy efficiency become standard on the buildings of the future? Will individuals pay attention to the labels or ignore them because ignorance is bliss? Please leave your feedback and check in Monday for an article discussing the implications of requiring buildings to sport "nutrition" labels.

Image Credit: Energyemp

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This past week LEED certification and the USGBC were dealt a harsh blow by the New York Times. The New York Times shed light on a fact already widely known within the green building community...some green buildings are not living up to their expectations! LEED certification which originated in 1998 is currently in its third version with each version building on the last and focusing more on actual performance. There was a recent uproar over the new version of LEED, version 3.0 and its Minimum Project Requirements or MPRs and annual reporting of water and energy use. Perhaps the next version of LEED will move beyond MPRs and require minimum PERFORMANCE results.

In their followup article the New York Times addressed what LEED is seeking to do in order to beef up its credentials. I found the article to be very interesting and to raise a great point which many individuals tend to forget, LEED is not meant to be the end point of sustainable design and construction but rather a useful starting point and a means of demonstrating comittment to sustainability.

“LEED is a starting place, a reference point,” said Jim Tinson, the chief executive of Hart Howerton, an architectural and design firm in New York and San Francisco. “But it’s not what we’re all about because it can be very limiting.”

Despite LEED's current place as the preeminent green building certification I question whether it will remain the leader. With the current development of several green building codes the LEED system will be challenged to retain its currently popularity. What do you think? Is LEED going to remain a leader or be gradually phased out by green building codes and performance based certifications moving into the future?

Image: Startswithabang

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Photo via: Injuryboard.com

Here at GBET we have previously discussed the new Federal fuel efficiency standards and the goals they sought to achieve. One of the key issues the new standards addressed was the discrepancy between California emissions standards and the Federal standard. It appeared as though there was finally going to be one unified standard which would allow for auto manufacturers to produce one version of a car for distribution nationwide. However, on June 30th, 2009 the EPA granted California an emissions waiver, clearing the way for them to once again set their own greenhouse gas emissions standards. California has agreed not to toughen the standards until 2017 but this still leaves one wondering what the long term implications of allowing multiple standards will be. Currently, the Waxman-Markey Climate Change Bill is being reviewed by the Senate, the bill will have sweeping implications across the U.S. economy in terms of regulating greenhouse gas emissions and is a laudable achievement if it passes. What will occur if states are allowed to set their own greenhouse gas emissions? Will we see a race to the top, with each state attempting to be the greenest? The potential implications of this waiver loom large and it will be very interesting to see what happens in 8 short years.

The critics to the waiver argue that allowing California to set their own standards will lead to higher costs to consumers as expressed by Scott Segal:

"California already has experience in adopting differential regulations for gasoline and electricity," said Scott Segal, an attorney for Bracewell and Giuliani in Washington, which represents utilities and refiners on climate change policy. "In each case, the results have been high prices for consumers, small businesses, schools, hospitals and industry. The precedent set here for cars could be just as damaging."

Allowing states to regulate their own environment whether through green building mandates or stricter emission standards is helping to spur development of a green collar economy but we must be careful to do so in a manner which does not destroy the backbone of the blue collar economy on which so many individuals rely.

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Chris is a lawyer at the Richmond, VA firm, DurretteBradshaw, PLC, and is a member of Virginia's Legal Elite in Construction Law. Chris specializes in mechanic's liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.

First, I need to say thank you to Rich for the great invitation to post here at GBET. Rich was kind enough to guest post at my Construction Law Musings blog and I am thrilled to return the favor.

As I study for the LEED AP exam and look at the issues surrounding the new construction landscape and “LEEDigation” (thanks to my friend Chris Cheatham for this term. I wish I’d thought of it). I feel the need to expand the discussion beyond what I believe has become too narrow a focus on “green” issues in building and law.

While the issues of the effects of third party verification, bonding, insurance, environmental issues, and contract drafting have rightfully focused on this growing economic and environmental trend, I do not think that we can drop our focus on more basic risk management issues. 

Without a broader view of the inherent legal and insurance risks in any construction project (large or small), the basics may get lost. Regardless of the unique issues relating to a project that seeks to meet a certain “green” benchmark (whether LEED, Green Globes or otherwise), contractors still need to be aware of the underlying legal risks and focus their efforts and contracts accordingly. 

The brave new world of sustainable building only adds an additional layer to the risk management techniques that are as old as construction itself. A contractor still needs liability insurance, still needs to make sure that payment flows well, still needs to be ready to file a mechanic’s lien or Miller Act claim if necessary, and still needs to make sure the scope of work is very well defined in a contract. 

Consulting with an attorney that is well versed in practical, on the ground, risk management from a general perspective will get a contractor 90% of the way toward the goal of sound business and contractual practice. Once this layer is established, a contractor will have a great base on which to “sustainably” build its “green” construction practice.

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In 2005 the United States Supreme Court issued their decision in Kelo v. City of New London 545 U.S. 469 (2005).In a 5-4 decision the Supreme Court approved the taking and transfer of land from one private owner to another for economic redevelopment. The Supreme Court said that the general benefits the public experiences as the result of economic growth make such a taking a valid public use under the fifth amendment.

As a result of Kelo many states passed legislation severely restricting the use of eminent domain and preventing the government from taking private property from one individual and transferring it to another private entity for redevelopment. While the backlash that many expected to come as a result of the Kelo decision never materialized, the Kelo decision and the resulting tidal wave of legislation that was passed in its aftermath could have wide ranging implications for the future development of sustainable communities.

Prior to the legislation passed after Kelo governments were be able to use eminent domain to take private property and transfer it to other private entities such as developers for economic redevelopment projects which would benefit the public through an increased tax basis.In urban areas the vast majority of land is owned by private entities and if one individual resists selling their land to a developer an entire sustainable or mixed use community can be jeopardized.

    There is no doubt that sustainable mixed used communities that allow individuals to work, live, shop, and play in one central location without the need for transportation provide a clear benefit to society by decreasing pollution, increasing physical activity and building a sense of community. Without having the ability to use eminent domain to take property from the "hold outs" developers may be reluctant to invest in acquiring the potentially large tracts of land needed to construct such communities. Does your state restrict the use of eminent domain? If so now may be the time to lobby for exceptions for sustainable community exceptions to the legislation.

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The new fuel efficiency standards released on Tuesday by President Obama achieve several important goals:

1. Resolves inconsistency between Federal standards and California standards bringing consistency to the industry. California will defer to the national standard.
2. Fuel standards will rise by 10 miles per gallon to an average fuel efficiency of 35.5 miles per gallon between 2012-2016. This is a 40% increase over today's federal requirements.
3. Carbon emissions will fall by 900 Million metric tons, a 30% reduction, over the course of the program.
4. Program will save 1.8 Billions barrels of oil

The Government contends that the new measures will only add $600 to the cost of each vehicle sold. The text of the entire article can be found here.

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Photo:zmescience.com

The last several weeks there has been a great deal of discussion centered around the Waxman-Markey Climate Change Legislation and  the EPA's decision to declare Carbon Dioxide a pollutant. However, there has been surprisingly little discussion of what this means for the sustainable construction community.

•  The proposed legislation covers only major polluters. I suggest that major polluters should be issued permits but that any individual or entity which is able to reduce their carbon dioxide emissions beyond a baseline measurement should be able to sell their credits.
• Allowing individuals to sell their reductions to the market achieves several important goals

1. Allowing for the sale of carbon dioxide emission reductions will stimulate the economy by encouraging individuals to make renovations and improvements which make their residence or business more energy efficient.
2. Increasing energy efficiency will in turn reduce the amount of power which must be generated.Since power generating facilities are major polluters this will in turn further reduce carbon dioxide emissions.
3. Allowing the sale of these reductions will put more money into the pockets of individuals who are not covered under the proposed act and will encourage everyone rather than just major polluters to do their part to reduce their reductions.

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Previously we have discussed the use of The Interstate Land Sales Act (ILSA) as an escape mechanism for purchasers trying to walk away from contracts to purchase either homes or condominiums. Today we will examine the Act in greater detail.

In order for the sale of a condominium in Florida to be exempt from the federal act, the contract must unconditionally obligate the developer to complete construction within two years and must not limit the purchaser’s remedies of specific performance or damages. A developer may not claim an exemption under the Act when damages for a violation of a two-year construction provision are limited to the return of the deposit or specific performance.

According to 15A Am. Jur. 2d Condominiums and Cooperative Apartments § 15:

 The Interstate Land Sales Full Disclosure Act is applicable to the sales of condominiums. The Act prohibits a developer from selling or leasing land in a subdivision through the use of means or instruments of interstate commerce or of the mails, unless a statement of record is in effect and the developer has furnished each purchaser with a printed property report. This property report must be provided before the purchaser signs any contract for sale or lease of the property. If such a report is not furnished in advance of the transaction, the purchaser has the option of voiding the contract.

The Department of Housing and Urban Development has stipulated that the condominium will come under the Act if the unit will not be completed within two years, or if the significant recreational or other common facilities are being constructed which will not be completed within two years from the time the first purchaser signs a contract. For a condominium unit sale to be exempted from the reporting requirements of the Act, the construction of the condominium must be completed before it is sold, or it must be sold under a contract obligating the seller to erect the unit within two years from the date the purchaser signs the contract for sale. It is immaterial that a condominium may have actually been completed within two years for determining whether the sale is exempt from the reporting requirement, and if there is no specified date of completion in the purchase contract the sale does not come within the exemption provided under Act, and the purchaser may exercise the statutory right to withdraw from the sale.

Under §1702 the following exemptions from the Interstate Land Sales Act are established:

·         (a)(2) Sale of land on which there is an improvement or a contract obligating seller or lessor to erect a building within 2 years

·         (b)(1) There are fewer than 100 lots

·         (b)(2) If in the 12 month period starting with the sale of the first unit not more than 12 units or lots are sold or leased

§1703 Establishes the Requirements Respecting the Sale or Lease of Lots

·         (a)(1)(B) Property report must be provided in advance of signing contract for purchase

·         (c) When the report is not provided prior to signing the contract for purchase, the contract may be revoked within 2 years from the date of signing

The Interstate Land Sales Full Disclosure Act is a valuable tool in the arsenal of any attorney representing a purchaser seeking to revoke a contract. With the reemergence of the Interstate Land Sales Full Disclosure Act developers must rethink their traditional sales contracts as well as learn about the proper process for registering a project with HUD so that their project is outside the scope of the Act.

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As Goethe said “Knowing is not enough; we must apply!” Simply being aware of the Interstate Land Sales Act is not enough, we must learn what It means and then apply that knowledge to rescind contracts or protect ourselves from law suits in the future. Have you heard of the Interstate Land Sales Act? This is a question that developers may soon be facing in courtrooms and arbitrations across the nation.

The Interstate Land Sales Full Disclosure Act 15 U.S.C. §1701 et seq. is being used by home purchasers across the nation but particularly in Florida, Tennessee, Nevada, and New York City as a grounds on which to escape contracts for the purchase of a condominium.

In West Palm Beach, Florida the Palm Beach Post recently announced three lawsuits were filed against the developers of Two City Plaza, City Place South Tower, and City Palms. To date only 166 of the 1.175 units marketed during the height of the Florida real estate craze have closed. The buyers allege that the developers failed to deliver the units within 2 years and are therefore in violation of the Interstate Land Sales Act. Interestingly, several of the plaintiffs said they would have been able to close on the units if they were delivered when promised but due to the current economic situation are unable to do so now.

In Nevada, the Las Vegas Business Press recently reported that a suit has been brought on behalf of 200 homebuyers for condominiums at the Cosmopolitan a 2,998 unit condo-hotel.  The Cosmopolitan project which has undergone an ownership change and several interior redesigns is now slated to open in June of 2010, approximately a year behind schedule. The attorneys representing the condo purchasers have amended their complain to include a violation of the Interstate Land Sales Act as the purchasers were never provided a property report as required by the Act prior to signing their purchase contracts.

The Press Register of Alabama has also reported that a condominium project in Orange Beach is now scheduled to open 18 months behind schedule. The developers have obtained extensions from 40 of the 69 owners but are potentially facing a law suit based on the Interstate Land Sales Act. The developers are claiming that they will not be liable under the Act as the units experienced delays due to Hurricane Katrina which destroyed a facility manufacturing pilings for the condo project and that Force Majeure clauses in the contract allow for delays due to an act of God such as the Hurricane. The developers are making efforts to work with the purchasers including partial rebates of the purchase price and $10,000 worth of complimentary upgrades. I will continue to monitor the Phoenix West II project and update my readers if any law suits involving the act are filed.

The Nashville Post has reported several Interstate Land Sales Act law suits against the developers of Ashland City’s Braxton and the Gulch’s Terrazzo and Icon condominium projects. The plaintiffs in these cases allege that the buildings were not constructed within 2 years and that the developer’s failure to provide a property report allows for them to walk away from their contracts with their deposits.

Stay tuned this week for a more in depth discussion of the Interstate Land Sales Act and its various provisions.

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While much of the emphasis on green building centers around talk of LEED certification, the best known and most widely accepted certification system, 2009 has introduced several new regulations and codes which are worthy of discussion.

The first of these is the ASHRAE Standard 189. Some of you might remember that ASHRAE attempted to develop their green building standard last year but abandoned their attempt after complaints from several industry groups that their interests were not properly represented. Section 189 is titled "Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings".

On January 27, 2009 the committee was expanded to include 34 voting members and seeks to implement a code which will outline minimum criteria for green building practices, the standard will be applicable to new commercial buildings and major renovation projects. When completed, it will address energy efficiency, a building’s impact on the atmosphere, sustainable sites, water use efficiency, materials and resources, and indoor environmental quality, among other high-performance green building issues.

On January 29, 2009 ICC- 700 was approved as the American National Standard. The new Standard provides guidance for safe and sustainable building practices for residential construction, including both new and renovated single-family to high-rise residential buildings. This is the first and only green standard that is consistent and coordinated with the Code Council’s family of I-Codes and standards. Board President Adolf Zubia said, “this is an enormous step forward in bringing focus to green practices for the built environment. ICC-700 provides a benchmark for green building in the residential market, serving as a new and needed starting point for comprehensive approaches to green residential construction. This is the result of many months of hard work by our members and our partners around the country.”

The standard’s rating system allows builders, designers and communities to choose the levels of high-performance green buildings that best suit their needs. Key provisions include:

• Land conservation
• Rainwater collection
• Construction of smaller homes to conserve resources
• Energy performance starting at 15% above the baseline requirements of the 2006 International Energy Conservation Code
• The use of low VOC (Volatile Organic Compound) materials and detached garages or carports to improve indoor environmental quality
• Homeowner education on proper maintenance and operation to maintain its green status throughout its life cycle

Ultimately the success of these new regulations will come down to how they are implemented. Will ICC-700 or ASHRAE 189 take over from LEED? Highly unlikely, but these two new codes offer guidance and flexibility which will hopefully be incorporated into LEED in the future.

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