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Private Green Building Mandate Debate Surfaces in Palo Alto

There’s a great article in the latest issue of Building Design + Construction that provides some insight into the carrot versus stick debate with respect to municipal green building mandates. Palo Alto’s City Council is currently considering how, and if, it should institute green building requirements for private projects. (Currently, Palo Alto requires public projects of greater than 10,000 square feet to meet LEED Certification.) However, City Attorney Gary Baum told Palo Alto’s Architectural Review Board that “attorneys for cities with environmentally-friendly building mandates admit there is ‘no legal basis’ for their policies on private construction. Cities can only require green measures for public projects.”

I’m not quite sure what context this comment was taken from, and I’m definitely unaware of any legal challenges that have been mounted against municipal green mandates applying to private development.  It seems to me that if a city chooses to incorporate a green building standard applying to private projects into its building code, it would be a constitutional exercise of the municipality’s police power. Now, whether it’s a good idea to interfere with private property rights as such is an entirely different question, and the remainder of the Palo Alto City Council meeting was devoted to discussing potential green mechanisms that the city might employ in order to adequately balance the competing interests of developers and the public at large. Mr. Baum told the Council that providing incentives is in Palo Alto’s best interest, and Michael Closson, the executive director of Palo Alto-based environmental non-profit firm Acterra, said that the ideal solution would be to provide a “combination of carrots and sticks.”

These types of debates are appearing more frequently all across the country. As I’ve written before, I believe that private developers required to comply with green building codes will be a major factor in determining how the carrot versus stick debate is ultimately resolved. Mr. Closson’s proposal- a carrot/stick hybrid- seems like a reasonable compromise, though it remains to be seen if other municipalities- Palo Alto or otherwise- follow his suggestion and implement such a regime.

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