Before we get started in earnest here at GRELJ in 2012, let’s take a look back at five of the most important legal stories in the green building space from 2011.
No. 1: After both sides submitted a full set of motion papers, the Southern District of New York granted the USGBC’s motion to dismiss Henry Gifford’s false advertising lawsuit.
We followed this story closely here at GRELJ, from Mr. Gifford’s initial amendment of his putative class action suit into a direct set of claims against USGBC, to the papers that each side filed in connection with USGBC’s motion to dismiss the amended complaint and Judge Leonard Sand’s written opinion (which, unfortunately, did not address the merits of the 2008 New Buildings Institute study as many commentators had hoped).
No. 2: Tax-exempt, green bond financing for the Destiny USA mega-mall project in Syracuse was threatened because the project’s developer failed to incorporate certain green design features as promised when it applied for the exemption.
In a comprehensive, well-researched piece, the Syracuse Post-Standard investigated developer Robert Congel’s receipt of $228 million in federal, tax-exempt, “green bonds” for the upstate mega-mall, which was tied to the project implementing certain green design features. Chris Cheatham’s Green Building Law Update also reviewed the saga in a detailed 9-part series of posts. The story triggered an important conversation about green building policy. (Note: Mr. Congel recently paid the Syracuse IDA that administered the green bonds program $1.5 million for a second six-month extension of time to complete the first phase of the Destiny expansion and maintain the exemption.)
No. 3: Although the number of green building-related litigations continued to slowly increase, full-blown “LEEDigation” remained elusive.
In re Hampton Technologies, Inc.(LEED-driven bid protest); Tagliarini v. New Haven Board of Aldermen et al. (zoning amendment approval); In the Matter of Penelope McIver (Toronto zoning variance decision); Bain v. Vertex Architects (failure to obtain LEED certification); CLP Elements LLC v. Benton County Assessor (property tax appeal); and Kinetics Noise Control, Inc. v. ECORE International, Inc. (antitrust); were all cases we noted here at GRELJ in 2011. But other than Bain, none involved allegations that a project had failed to earn the level of LEED certification as anticipated by the owner.
No. 4: Even in the face of a continued soft commercial real estate market, the green lease gained traction as municipalities – including New York City and San Francisco – unveiled initiatives aimed at incorporating model green lease language in public and private office leases.
The law firm WilmerHale’s new lease at the LEED Gold 7 World Trade Center was highly publicized as the first to incorporate green lease language developed by Mayor Bloomberg’s Green Lease Task Force, which New York City intends to incorporate into its own office leases moving forward; San Francisco launched an online green lease toolkit intended as a resource for buildings across the country.
No. 5: As the International Green Construction Code (“IGCC”) continued to gain traction within state- and local-level building codes, commentators continued to question the propriety of LEED-driven legislation.
Florida, North Carolina, and Oregon, and Phoenix, Scottsdale, and Boynton Beach were among the jurisdictions that adopted portions of the IGCC in 2011. The Boston Society of Architects continued to underscore the issues associated with LEED-driven legislation by using Gifford v. USGBC to question whether private, fee-generating non-governmental organizations should “assume what amounts to a regulatory role in the building industry.”