Virginia Real Estate, Land Use & Construction Law : Virginia Construction Lawyers & Attorneys : Bean Kinney & Korman Law Firm : VA Real Estate, Land Use & Zoning

I wanted to share the materials I have available thus far from our October 1 seminar, Benefits, Costs and Risks of Green Building that we put on for the American Institute of Architects Northern Virginia Chapter.  A quick but very hearty thank you is due to Debbie Burns of the AIA who did a tremendous job organizing the seminar.

We were very fortunate to have great speakers. Hope Lane of Aronson spoke on federal green building initiatives and their interplay with government contracting.  Maral Nakashian presented on federal energy tax credits available for high performing buildings and the related process to qualify for those credits.  Aronson provided copies of their presentation for attendees and others who may be interested in that information.

I spoke on green building legal risks and practical tips to minimize those risks.  I am happy to share my presentation as well, although be forewarned that I have been drinking the TED Talks Kool-Aid and thus the presentation is heavier on the visuals and lighter on the bullet points.

We were very pleased to have Bob Kobet share a truly dynamic presentation on green building risks, costs, and values that was extremely thought provoking as well.  A big thanks for our good friend Chris Cheatham for not only attending the event, but more importantly for connecting us to Bob who is a tremendous resource on all things LEED and indeed non-LEED for sustainable building.  We look forward eagerly to when Bob and Chris' remarks hit the more public airwaves and we can share more regarding that information.

On a final quick update, attendees should check out my recent post regarding the changes to the LEED challenge process.  It is good news that GBCI is paying attention to some of our concerns and responding accordingly.

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The GBCI has quietly changed the rules associated with the LEED challenge process.  Few people were even aware of the challenge process and its implications until the Northland Pines High School challenge became a topic of discussion and even controversy.  The original LEED challenge process permitted literally anyone to bring a challenge to a LEED certification at any time.  Chris Cheatham covered the Northland Pines challenge and its aftermath in a series of great posts.

I went to write a quick note on this for the Washingon Business Journal yesterday and was adding a link to the policy manual.  Broken link.  Digging revealed a new policy manual dated September 17, 2010.  The new policy manual contains some interesting tweaks that will hopefully stop the truck sized holes pointed out during the Northland Pines fallout:

1. Rather than the unlimited timeline in the original process, "GBCI shall not open a formal investigation related to any project beyond two (2) years after the date the project is awarded LEED certification." 
2. "Parties sheeking to submit a complaint ... must have personal knowledge of any event or condition that would prevent a project from satisfying a particular credit, prerequisite, or MPR".  Not a standing requirement per se, but at least some attempt to rein this process in.

I know there had been rumblings of intended patches to fix the process.  I did not expect to find a new policy manual.  I ran some searches and found no press releases, announcements, or analysis to date. In any event, it appears the GBCI has heeded the very reasonable concerns raised regarding the complete free for all the original procedure invited.  It remains to be seen how the newly defined challenge process will play out in the future.

Image by Anthony Gattine

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Land use policy is the fulcrum in the tug of war between the property rights of individual owners and the regulatory interest of communities in establishing and enforcing a vision of their own community.  Three separate conversation and analysis threads bring home the reality that the cookie cutter approach to development and even to the ordinances and interpretations that govern development are not the best approach.  Indeed, inflexibility of approach and failing to encourage a more diverse and vibrant style of development are exactly the failings that the new schools of thought of "urbanism" are seeking to replace.

On the first topic, Chris Cheatham reported last week on some criticism of the Tyson's Corner proposal to allow density bonuses to developers for reaching green certification levels.  A multi-family residential developer raised what I regard as legitimate questions about whether LEED should be the only standard used.  If jurisdictions are turning to third party voluntary programs and means of certification, they should develop the means to evaluate and understand these tools and avoid getting handcuffed to a single green standard fits all approach.  While the LEED standards have certainly evolved and continue to evolve, there are some who believe they still reflect their roots flowing primarily from the commercial design and construction environment.

The second thread was covered by my colleague Tad Lunger last week in reporting the results of the recent Arlington Retail Task Force.  Much of Arlington's success has been pinned to the concept of mixed-use development, but many developers have expressed heartburn over filling first floor retail space in areas that do not appear to support such uses.  Many retailers have expressed heartburn that this land use policy creates a glut of too much retail and too much competition.  It appears that the task force has reached similar conclusions.  This is another thread towards the same conclusion that a cookie cutter approach of requiring the same thing in the same way on every project does not achieve the intended results.

Against this backdrop, I ran across a brilliant presentation by James Howard Kunstler posted at Aribra entitled The Tragedy of Suburbia, a video from a TEDTalks conference.  Mr. Kunstler may be somewhat of a lightning rod for the vehemence of his critiques of suburbia, but he makes a lot of great points regarding architecture, community, the challenges we face regarding fossil fuels, and how to build a sense of lasting community through urbanism.  I know this may be a lot to ask, but trust me: watch this video.  It is worth the 20 minutes for sure.  It is thought provoking, and will honestly give you multiple gut busting laughs to boot if your sense of humor is anything like mine.

Pulling this all together, developing vibrant communities certainly requires a regulatory and legislative framework that permits local government to plan areas of density, areas of commercial and residential development, and to encourage the creation of appropriate infrastructure to support those efforts.  That framework should not be reduced to a cookie cutter, one-size fits all approach.  That type of approach is arguably what helped foster the suburban sprawl that most planners are seeking to undo now, most notably in Tyson's Corner locally.  In encouraging a more transit oriented style of development, localities should be mindful of not not crippling the development of true urban commercial cores through excessive restrictive and repetitive requirements, but instead should like to foster organic growth a much as possible. 

Image: Alice and Lorina Liddell on See-saw, from Lewis Carroll photobooks

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There are a number of important construction law and economic developments that I want to pass along to our readers.  Given timing and the plethora of topics to address, I wanted to share these developments in a more rapid fire format so these updates remained timely.

You should be on the lookout for more information on these topics in the future.  We may expand on some of these threads in the future here as well:

• The Supreme Court of Virginia will hear the appeal in AMEC Civil LLC v. VDOT.  This case is a very important case involving what is required for notice of claims on construction projects; any person or entity involved in Virginia construction needs to keep an eye on this case as it could have a major impact on future Virginia construction litigation
• As reported by our friend Chris Cheatham, the District of Columbia has attempted to fix their green building ordinance by no longer requiring a "performance bond" guaranteeing verification of green construction ... they will instead just require a "bond" guaranteeing verification of green construction.  Count me as a skeptic that this editorial change is meaningful or will fix the problem of lack of available bonds in the markets to cover this risk.
• The economy is sending some mixed messages.  Overall unemployment dropped from 10.0% to 9.7% in January according to the latest Bureau of Labor Statistics report
• Unfortunately, that improvement did not translate to the construction industry.  ENR reports a significant continued rise in construction unemployment, jumping from 22.7% in December to 24.7% in January.  The Bureau of Labor Statistics indicates that the construction sector lost 75,000 jobs in January bringing the total to 1.9 million since December 2007
• Associated Builders and Contractors released their latest Construction Economic Update.  The skinny: private non-residential construction spending rose 0.2% in December, but was down almost 18% year over year.

The continuing sluggish economy continues to place significant bidding pressure on the construction industry.  I still stand by my post last October that this bidding pressure will translate to serious claims issues over the next couple years.  Put on your seat belts, it will be a rocky ride here for a while.

Image by Ian Britton courtesy of Freefoto.com

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The legal blogosphere has been active the last two weeks with discussion of the recent article in the New York Times critical of LEED. The article in essence uses the example project of the Federal Building in Youngstown, Ohio as a sample for LEED projects that fail to be "green". The Times in particular attacks the actual energy performance of a specific project as an example of why the LEED certified project is not in fact green. Reaction has been varied, from Shari Shapiro pointing out these discussions have been in the mix for some time  to an impassioned, relatively emotional, reaction from Rob Watson, a board member of USGBC and significant national player in the green movement.  Chris Cheatham has pointed out for discussion the interplay between green building success on the one hand and risk associated with projects receiving funding under the American Recovery and Reinvestment Act.  Before we move on to the bigger picture, the article deserves the specific focus on the example project, called by the Times the "Federal Building", but more properly known as the Nathaniel R. Jones Federal Building and US Courthouse (Youngstown, OH).  

After first glance, the Times article raises more questions than it purports to answer. The article states, "[T]he building is hardly a model of energy efficiency. According to an environmental assessment last year, it did not score high enough to qualify for the Energy Star Label[.]"  A review of the GSA study on its website reveals a few interesting facts that the Times left out of the article:

• The GSA study was of 14 first wave green GSA buildings ; 8 were LEED certified, 2 were LEED registered, one used Green Building Challenge, and three were designed with an emphasis on energy efficiency
• The Federal Building project did not seek any credits for energy efficiency under EA Credit 1. Similarly, the project did not seek points for additional commissioning, measurement and verification, or green power 
• While the Federal Building project did not receive the 75 score required to qualify for Energy Star, it did in fact reach a 58 despite the fact the building did not even try for the energy efficiency credits. Every other GSA project contained in the study qualified for Energy Star

So how did a project that is alleged by the Times to have a "major gas guzzler" of a cooling system reach LEED certification in 2002? A review of the GSA's webpage describing the project, and further discussion at BuildingGreen.com, reveals that the site is a downtown redevelopment of a previously paved site. The project included restoration and planting with native and adapted vegetation and reduction of impervious area by a whopping 58%. The project reduced ozone depletion by use of HFC refrigerants and the fire suppression system includes no halons. Over 72% of project waste was recycled and the project used structural steel with 90% post-consumer recycled content. Over 62% of the project's building materials were manufactured locally.

The New York Times' focus on the Federal Building project does bring a couple of key themes into focus.  First, "green" is not the same to everyone.  Indeed, Build2Sustain has had a fascinating discussion on-going on its blog and also on its various members blogs and twitter accounts comparing use of "green" and use of "sustainable" terminology. The use of loose labels where everyone does not agree on a shared meaning can create misunderstandings. Green does not necessarily mean energy efficient as there are plenty of areas allowing points under LEED that can in fact inhibit energy efficiency.

Second, the project used as the centerpiece of the article was completed in September 2002. LEED has come a long way since then and trying to extrapolate structures that were designed roughly ten years ago and apply that to current conditions may be suspect.

Finally, the USGBC has in fact already taken steps to address these issues. The new LEED 2009 standards incorporate a shift in greater emphasis towards energy efficiency in particular. Further, USGBC is taking steps to require on-going reporting and has indeed discussed using decertification as a means to require on-going compliance. (Please visit Matt Devries' blog for an excellent recap of the commentary that erupted when the decertification discussion first broke several months ago). 

In summation, it appears like the NYT dug and found an example of an old project to raise objections that the USGBC has already been addressing with LEED ... in short, they are perhaps trying to resurrect the Ghost of LEED Past.  In a few days, we will visit with the Ghosts of LEED Present and Future and try to extrapolate where LEED may be heading and what that means in terms of future risk management, contract exposure, and potential economic pitfalls associated with these trends.

Image (Courthouse): by OZinOH

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