banner ad

Category: Archives

Mitigating Risks When Building Green Roofs

Mitigating Risks When Building Green Roofs

Green roofs have been a part of building for over a thousand years. The current green building movement has, however, had the greatest impact on the growth of the green roofing industry. A green roof is commonly defined as a roof that consists of vegetation and soil, or a growing medium, planted over a waterproofing membrane. There are two basic types of green roofs: (i) an extensive roof, which has a few inches of soil cover; and (ii) an intensive roof that has two feet or more of soil for a variety of grass, trees, bushes and shrubs. Green roofs are used in a multitude of buildings, including industrial facilities, commercial offices, retail properties and residences. The benefits of a green roof include reduced storm-water runoff, absorption of air pollution, reduced heat island effect, protection of underlying roof material from sunlight, reduced noise, and insulation from extreme temperatures. A green roof can thus be a critical design element for a green building. As more properties across the country are attempting to obtain LEED certification, it is worth noting that a green roof can help a property obtain over a dozen LEED credits, including credits for reduced site disturbance, landscape design that reduces urban heat islands, storm water management, water efficient landscaping, innovative wastewater technologies and innovation in design. The increase in green roofs and the green building movement is also resulting in an increase in liability resulting from errors in the design, installation or maintenance of green roofs. As a result, owners, design professionals and contractors should carefully consider ways to mitigate the potential risks involved with building a green roof.

May 11, 2009 | 4 comments | View Post
Initial Legal Thoughts on the LEED 2009 Minimum Program Requirements

Initial Legal Thoughts on the LEED 2009 Minimum Program Requirements

As you may know, USGBC’s LEED v3 program launched this past Monday, April 27. Project teams currently pursuing LEED certification under any of the Version 2 programs can opt into LEED v3 for no additional registration fee through the end of the year. The Version 2 programs will be available to project teams for registration until June 26; after that date, all projects must proceed with registration under LEED v3. LEED v3 is comprised of what USGBC calls “LEED 2009″ revisions to the suite of LEED rating systems (other than Homes and Neighborhood Development, which are not changing under v3), a new online interface for project teams, and a shift in the administration of the LEED certification process to the Green Building Certification Institute (“GBCI”). USGBC calls the LEED 2009 credit revisions “a reorganization of the existing commercial and institutional LEED rating systems along with several key advancements.” The revisions contemplate harmonization (i.e., credits and prerequisites are consistent across all LEED 2009 rating systems), credit weighting (i.e., greater emphasis on energy efficiency), and regionalization (up to four bonus credits for projects that address a local environmental issue of import). Although they are important to review for background purposes, the thrust of this article is not to detail the mechanics of the LEED v3 program. Rather, a number of the new minimum program requirements (“MPRs”) present some novel legal issues for project teams- and their attorneys- to consider in connection with drafting construction agreements or leasing documents in connection with LEED v3 projects.

May 01, 2009 | 2 comments | View Post
Lessons on Predicting Building Performance from New Yankee Stadium

Lessons on Predicting Building Performance from New Yankee Stadium

During the first homestand of the season at $1.6 billion New Yankee Stadium, baseballs flew out of the ballpark at an unprecedented rate; the 20 dingers that were clocked during last weekend’s series against the Cleveland Indians were the most ever in a four-game set to open a new stadium in baseball history. Last season, Old Yankee Stadium saw 160 home runs; the current pace would yield a mind-boggling 351 round-trippers for the entire 2009 season. The Yankees did not anticipate that their new ballpark would turn into a Little League bandbox; dimensions at the new park are the same as they were across the street and engineers performed a wind study in advance of construction that did not suggest any major changes in currents or speeds. So, after witnessing several routine fly balls to right field land halfway into the lower deck last Saturday, it struck me that there are some parallels between what’s been happening thus far at the new ballpark in the Bronx and some of the building performance issues that we frequently discuss here at GRELJ.

Apr 28, 2009 | 2 comments | View Post
USGBC: Legal Risk in Building Green Is "New Wine in Old Bottles"

USGBC: Legal Risk in Building Green Is “New Wine in Old Bottles”

In early March, USGBC released a white paper titled “The Legal Risk in Building Green: New Wine in Old Bottles?” The eight-page paper, which was presented as a panel discussion between four attorneys, concluded that “[p]erhaps surprisingly, in light of the increased attention in seminars and workshops . . . much of the discussion among the attorneys [in the paper] suggests that many of the legal theories advanced in those venues to suggest novel liability associated with building green are, instead, simply new wine in old bottles.” While the paper does not appear on the USGBC’s web site, it was circulated by individual chapters; I accessed a copy through our New York chapter’s weekly email blast and have included a link to download the paper from the USGBC-NY homepage below. I applaud USGBC for taking a critical step towards acknowledging the liability implications of green real estate development and construction, but do think it is important for attorneys practicing in this space to digest the paper’s conclusions. Although the paper does identify and discuss many important legal issues, I think that it ultimately falls short of elevating the analysis of such issues to the level necessary for legislators and stakeholders to make completely informed policy- and project-related decisions. Specifically, by suggesting that “[c]onjecture, anecdote, and even rumor swirl around recent presentations, workshops and discussions circling the question of what legal claims may be based on the design, development, and construction of sustainable buildings,” the paper seems to be an effort to sweep many of the thornier legal issues that may indeed ferment into “new wine” under the rug.

Apr 22, 2009 | 4 comments | View Post
RICS Study: No Premium for LEED-Certified Commercial Office Buildings

RICS Study: No Premium for LEED-Certified Commercial Office Buildings

Last week, the Royal Institution of Chartered Surveyors (“RICS”) released the results of a study authored by Piet Eichholtz and Nils Kok of Maastricht University and John Quigley of Berkeley. Titled “Doing Well By Doing Good? An Analysis of the Financial Performance of Green Office Buildings in the USA,” the purpose of the study was to determine whether investors are currently willing to pay any premium for green (Energy Star- and LEED-certified) commercial office buildings and, if so, what that premium is. The authors identified 1360 buildings- 286 LEED-certified, 1045 Energy Star-certified, and 29 certified under both systems- and were able to obtain complete building characteristics and monthly rents from CoStar for 649 of them, as well as sales data for 199 buildings that swapped hands between 2004 and 2007. To create a pool of peer buildings, the authors used the CoStar database to identify all other office buildings within a quarter mile radius of the subject green building to create a “cluster” of buildings for each of the 893 subject buildings. The study concluded that “the type of label matters. We find consistent and statistically significant effects in the marketplace for the Energy Star-labeled buildings. We find no significant market effects associated with the LEED label. Energy Star concentrates on energy use, while the LEED label is much broader in scope. Our results suggest that tenants and investors are willing to pay more for an energy-efficient building, but not for a building advertised as ’sustainable’ in a broader sense.”

Apr 07, 2009 | 5 comments | View Post
NAIOP Responds to Critics by Making Case for Incentives to Boost Efficiency in Commercial Office Buildings

NAIOP Responds to Critics by Making Case for Incentives to Boost Efficiency in Commercial Office Buildings

I took great interest in a number of the documents that NAIOP released in the aftermath of its controversial energy efficiency study. The organization has compiled both an FAQ and fact sheet detailing the various assumptions it made and conclusions it drew in an effort to clarify some of the unproductive vitriol that has flown around the web over the past month decrying its conclusion that 30 percent energy reductions are not practicable for the majority of commercial office properties. Both the fact sheet and FAQ are available on NAIOP’s web site and point out that the results of the study do not apply to all buildings; “[t]he study analyzes a typical office building that represents more than 50 percent of new Class A construction [that took place] in 2008.” NAIOP also clarifies that the subject building is a real 95,000-square-foot, speculative commercial office property in California, and claims that the results of its study show what’s possible for the “vast majority of new construction without having to redesign a typical office building,” calling the results “impressive.”

Apr 03, 2009 | 0 comments | View Post
Seattle's KING 5 Calls Washington Green School Claims "Oversold"

Seattle’s KING 5 Calls Washington Green School Claims “Oversold”

Washington State’s High-Performance Public Buildings Act requires LEED Silver certification or a design that complies with the state’s Sustainable School Design Protocol for schools larger than 5000 square feet. In a video describing the benefits of green schools that is available on the State Superintendent of Public Schools’ web site, certain claims are made about the promise of “clean, high-performance, money-saving schools” that are “a wise business choice for cost conscious schools. Relatively small increases in design and construction costs, usually less than 2 percent, ultimately bring 10 to 15 percent reductions in long-term operating costs.” The folks at KING 5 television in Seattle caught wind of these claims and decided to do some digging; you can view the station’s full report through the link at the bottom of this article. As you might guess, the station concluded that the state’s claims about green building premiums, decreased operating expenses, and higher student test scores were highly exaggerated.

Mar 26, 2009 | 0 comments | View Post
Real Estate Law Issues for Solar Energy: Introduction to Government Incentives

Real Estate Law Issues for Solar Energy: Introduction to Government Incentives

Once the sole domain of the ecologically minded, the green building movement has gone mainstream. Part of the green building movement has been the increase in solar power use in homes and businesses. The decision by homeowners and businesses to install solar electric systems, which are also known as photovoltaic (“PV”) systems, may be made for a variety of reasons. Some want to preserve fossil fuels and reduce air pollution. Some want to invest in an energy producing improvement to their property. Still others like the independence of a solar system, making them less vulnerable to increases in energy prices. A number of government incentives have helped spur this growth of the solar market. However, the increased interest in solar energy and solar systems has created certain real estate law issues, including: (1) the creation of solar easements, (2) restrictive covenants and homeowner’s association requirements, and (3) compliance with zoning and building codes. This article highlights the current state of the solar market and government incentives, with future articles highlighting each of items (1) through (3) above.

Mar 19, 2009 | 1 comment | View Post
Henry Gifford & USGBC's Brendan Owens Consider Merits of LEED at NESEA Forum

Henry Gifford & USGBC’s Brendan Owens Consider Merits of LEED at NESEA Forum

The Northeast Sustainable Energy Association (“NESEA”) held its annual Building Energy conference last week in Boston and sparks apparently flew during a panel discussion that featured Henry Gifford, whose controversial and well-disseminated “Lies, Damn Lies, and… (Another Look at LEED Energy Efficiency)” paper critiqued both LEED generally and the USGBC-promulgated New Buildings Institute study which concluded that LEED buildings were using 30 percent less energy than non-LEED buildings. The panel was moderated by BuildingGreen.com’s Nadav Malin and also included USGBC vice president for LEED technical development Brendan Owens. Boston-based blogger Michael Prager attended the panel and has authored an extremely insightful summary of the event, including quotes from both panelists and audience members. Many of the quotes in Mr. Prager’s article ring particularly salient in light of the uproar over the recent NAIOP study which I noted here at GRELJ last week in the context of using predicted performance as the basis for making building policy decisions. It’s clear that thus far in 2009 there has been a significant shift in attention towards building performance-related issues with respect to both LEED and green building policy generally. As states and municipalities prepare to receive close to $7 billion in stimulus funds to, in part, craft and implement local green building legislation, I think that the substance of the discussion at the NESEA event should become of increasing utility to both stakeholders and policymakers. Of course, as always, it also suggests the overarching importance of vetted contract language in connection with LEED or any other types of green building projects.

Mar 16, 2009 | 2 comments | View Post
Green Building Industry Apoplectic Over NAIOP Commercial Energy Efficiency Study

Green Building Industry Apoplectic Over NAIOP Commercial Energy Efficiency Study

Ed Mazria said that it was “meant to confuse the public and stall meaningful legislation, insuring that America remains dependent on foreign oil, natural gas and dirty conventional coal.” Lloyd Alter of Treehugger called it “one of the dumbest studies that has crossed our screen in a while.” Danielle Sacks at Fast Company wants to “make sure studies like these don’t make it past their press release.” So what, if anything, are we to make of ConSol’s study, prepared for NAIOP, which concluded that the best possible scenario for energy efficiency improvements to a hypothetical 4-story, 95,000-square-foot office building is 23 percent over the ASHRAE 90.1-2004 Energy Standard? While we continue to wait for more meaningful data about the performance of green buildings, I think the study suggests the danger- for both legislators and stakeholders- of relying on energy modeling of any kind as the basis for policymaking or who agree to assist a green building project in achieving certain energy reductions by the terms of their construction contracts.

Mar 10, 2009 | 5 comments | View Post
Long Island Power Authority to Seek Stimulus Dollars for 50 Megawatts of Green Power

Long Island Power Authority to Seek Stimulus Dollars for 50 Megawatts of Green Power

Governor Paterson last Friday announced the results of an RFP that the state issued in April of 2008 for a solar power project on Long Island. BP Solar will build a 36.9 megawatt facility at Brookhaven National Laboratory and enXco a 13.1 megawatt series of installations across public and private properties in Nassau and Suffolk Counties. 50 megawatts of solar power would triple New York State’s current capacity and serve 6500 residential LIPA customers annually. NYSERDA has already given LIPA $15 million for the project while it negotiates power purchase agreements (“PPAs”) with BP and enXco; these agreements typically run for twenty (20) years and contemplate the PPA provider (here, BP and enXco) selling the electricity generated by the installation to a utility company during the course of the agreement. LIPA will make the terms of these particular PPAs available once executed. According to GlobeSt.com, LIPA is attempting to secure stimulus dollars for the project. Note that the project would be eligible for the federal solar power tax credit (extended under TARP through the end of 2016) provided that it is operational before December 31, 2016; the available credit is equal to 30 percent of the cost of the installation and there is no maximum credit limit.

Mar 05, 2009 | 1 comment | View Post
Introduction to the Stimulus Package: Green Building and the Stimulus (Part I)

Introduction to the Stimulus Package: Green Building and the Stimulus (Part I)

This is the first of a series of articles here at the Green Real Estate Law Journal on the impact that the American Recovery and Reinvestment Act of 2009 will have on green building generally. Future articles will provide greater detail as to the projects utilizing federal funds in a multitude of states, some unique legal risks associated with these projects, and the disputes that may arise in connection with such projects. The American Recovery and Reinvestment Act of 2009 (the “Recovery Act”) offers multiple opportunities for property owners, developers and other stakeholders in the green building arena. There are tens of billions of dollars in funding initiatives for green building in the Recovery Act. Many of the provisions are complex and the specific projects that are to be have yet to be fully provided. That being said, the commitment to green building is clearly apparent throughout the Recovery Act and a quick summary of the critical green building funding proposals are detailed after the jump.

Mar 03, 2009 | 0 comments | View Post
SB 1473: El Dorado County Fighting California Green Building Legislation

SB 1473: El Dorado County Fighting California Green Building Legislation

In the aftermath of last year’s AHRI et al. v. City of Albuquerque litigation, there has been an increased level of discussion with respect to how municipalities and states should craft green building policy and legislation. Although I have not been following what’s been taking place in California all that closely, a recent article in the Sacramento Bee noting one California county’s reaction to a newly enacted piece of state-level green building legislation caught my eye. California’s Senate Bill 1473 took effect on January 1 and requires cities and counties in California to collect, on behalf of California’s Building Standards Commission, a building permit application fee. The fee is based on the building’s valuation as determined by the pertinent local building official and is assessed at $1.00 for every $25,000.00 of value. Cities and counties are entitled to keep up to 10 percent of the fee in order to cover their own administrative and enforcement costs; the rest of the funds are sent to a special revolving fund established by SB 1473 which the Commission will use to “fund development of statewide building standards, with emphasis on green building standards.” Officials in El Dorado County (which is about halfway between Sacramento and Lake Tahoe) believe that the fee is illegal, calling it “a tax without calling it a tax.”

Feb 19, 2009 | 0 comments | View Post
Green Leasing Series: The Legal Risks of a Green Lease

Green Leasing Series: The Legal Risks of a Green Lease

Much like the rest of the green building industry, green leases contain a collection of legal risks that landlords and tenants have not previously had to consider. This article considers a small sample of such problems, specifically in relation to certification requirements, cost issues, insurance provisions and green product issues. Many companies and government agencies require their space to satisfy an applicable LEED for Commercial Interiors certification level. These entities look for a lease to specify that the space will meet such standards. Landlords are not generally in the position to guarantee such certification level. The project architect, general contractor, subcontractor and USGBC all have a much greater impact on whether the space meets the required certification level. The landlord will thus need to make sure it is working with contractors and architects that understand the issues and are able to work towards achieving the necessary certification levels. It will need to protect itself in its applicable project contracts. The landlord and tenant must work together in attempting to craft a lease that adequately protects each of their respective interests and avoids liability outside of either of their control.

Feb 17, 2009 | 1 comment | View Post
CoStar, Owner's Counsel Addressing Liability Aspects of Marketing Green Buildings

CoStar, Owner’s Counsel Addressing Liability Aspects of Marketing Green Buildings

Back in January here at GRELJ, I critiqued Andrew Burr of CoStar’s list of the top ten green building stories from 2008 by noting his lack of any reference to the green building litigation and associated risk management issues that began to emerge during the course of last year. Accordingly, I was pleased to see his recent column acknowledging some of the risks inherent with marketing green buildings, both in project-specific materials as well as securities disclosures. In Mr. Burr’s piece, both Paul D’Arelli of Greenberg Traurig and Brian Anderson of Whyte Hirschboeck Dudek (who describes the securities issue in detail in his Understanding the Business of Green article, available via the links below), among others, note the importance of educating owners about the terminology associated with the LEED certification process and the potential legal dangers of misrepresenting a property’s green design features in terms of ultimate building performance.

Feb 10, 2009 | 5 comments | View Post
Green Leasing Series: Introduction to Green Leasing

Green Leasing Series: Introduction to Green Leasing

Much like the term green building, green lease is a term without a widely accepted definition. (Editor’s note: this is a critical point that we will be exploring in detail in future articles in this series). A green lease can take many forms. However, the key concepts in any green lease are: (i) rent structure and operating expenses; (ii) build out of tenant improvements; (iii) sustainable development principles and regulations (throughout the building or larger development); (iv) the use and disposal of hazardous materials, including cleaning supplies; (v) recycling; and (vi) environmental management plans. A green lease will generally detail environmentally friendly products to be used, water and energy conservation methods and targets, the use of alternative sources of energy on-site, such as solar or wind, indoor air quality standards, and dispute resolution procedures.

Feb 06, 2009 | 0 comments | View Post
« Previous Page — Next Page »