Top 5 Legal Issues in Green Real Estate: 2009
What were the top stories in green real estate law during 2009, but why was the most important one of all – the Northland Pines decertification proceeding – largely ignored by commentators?
Category: Miscellaneous Legal Issues
Case Study: A Practical Look at the Risks of Green Roofs
Recently, there have been a number of articles suggesting that the risks associated with green roofs have been overblown. Over the past few days, I’ve spent some time looking for more concrete examples of green roof-related risks in practice. I started by looking for case law where a plaintiff alleged an attractive nuisance claim against the owner of a building arising out of a green roof or other rooftop landscaping. Westlaw did not return any results entirely on point, but I did find a number of interesting attractive nuisance decisions which I may present in a subsequent post here at GRELJ. The much more practical research that I turned up was the following except from an article by Kelly Luckett, the self-proclaimed “Green Roof Guy” who writes a column for greenroofs.com. In a column from the very end of 2008, Mr. Luckett describes how uneducated project teams may unwittingly expose themselves to unanticipated risks stemming from the maintenance requirements of green roof installations. His remarks also reflect a number of key points we’ve made consistently both here at GRELJ and over at gbNYC with respect to the additional risk management strategies demanded by new green building technologies and third-party certification programs.
Jul 23, 2009 | 7 comments | View Post
Green Building Basics for the Healthcare Industry: A Legal Perspective
Green building design, construction and operation practices have gained widespread popularity in the healthcare industry in recent years, even considering the current challenging economic climate. This trend is likely to continue because green building practices result in both decreased overall life cycle costs and healthier building occupants. This article will briefly examine the background of building green in the healthcare sector, discuss the unique needs of healthcare facilities in relation to green building practices, and finally examine the choices and challenges faced by healthcare facilities in determining whether to design, construct and/or operate a green building facility, with a specific emphasis on the legal issues therein.
Jul 15, 2009 | 0 comments | View Post
Labor Law Issues May Begin to Impact Green Construction
There have been a couple of interesting articles recently that suggest the pending intersection of labor law and green building. First, you probably read about a complaint that was recently filed with the NLRB by workers who attempted to unionize while installing a green roof on the Target Center in Minneapolis. In addition to alleging a number of safety violations, the workers claimed that the contractor paid them the prevailing wage for landscapers- not for roofers, who earn $20 more per hour. The $5.3 million installation was a city project, and officials, along with OSHA, investigated the workers’ safety concerns earlier in the spring, finding that “the contractors lived up to the specifications of the contract to ensure safety.” From a prevailing wage rate perspective, is the installation of a green roof more akin to landscaping than roofing? This was the contractor’s argument and, I think, a neat example of how green construction practices continue to introduce legal wrinkles into even the most traditional of practice areas. However, what got me thinking a bit more seriously about the intersection of green building and labor law was an article (link after the jump) discussing the California Labor Federation’s two-day conference held earlier this month in San Francisco.
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
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
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
Understanding the Business of Green: Special Focus Issue from the Counselors of Real Estate
It is with great pleasure that, in connection with the launch of the Green Real Estate Law Journal, the Counselors of Real Estate and the DePaul University Real Estate Center have allowed me to upload a .pdf copy of the most recent issue of Real Estate Issues, titled Understanding the Business of Green, into this GRELJ post for your review. Many of these articles grew out of presentations at last February’s Managing Risk in Sustainable Building conference in Chicago, which was the first conference in the country exclusively devoted to a detailed discussion of the intersection of risk and green construction. I encourage you to download a copy of the issue (available after the jump) and review it at your leisure. Many thanks to Carol Scherf, the DePaul University Real Estate Center, and the Counselors of Real Estate for allowing me to upload this important work into GRELJ.
Dec 10, 2008 | 0 comments | View Post
Green Building Liability Pictorial
I am consistently amazed at the disparities in how green building projects are promoted. Some projects make it very clear that they are simply “aiming for” or “registered” in pursuit of LEED certification, while others brand themselves as “green” without any real discussion with respect to what (if any) those sustainable design features might be. You can see a good example of how these inconsistencies may wind up exposing green construction project stakeholders to unanticipated liability in this photo that I took over the summer. It shows sidewalk bridging at one of Manhattan’s highest profile green construction projects. The building in question is seeking a LEED Gold rating from USGBC (it is pre-certified under LEED for Core and Shell, but by no means is it “LEED Gold Certified” yet as claimed by the bridging). What happens if the ultimate rating that is conferred by USGBC is not Gold but Silver?
Dec 09, 2008 | 0 comments | View Post
What is Green Real Estate Law?
Over the past six months, the number of attorneys that have become active in the green building space has increased exponentially. But what, exactly, is a green building, construction, or real estate lawyer? How do we define green real estate as a practice area? Over the past two years at gbNYC, I believe that we started to define the parameters of this space, and my aim here at GRELJ is to continue expanding my analysis of the emerging opportunities (and corresponding risks) that green real estate presents to industry stakeholders. To this end, perhaps our most important article at gbNYC was our “Top 5 Legal Issues to Consider on Green Construction Projects,” which we presented a little over a year ago. Two of these issues were at the very heart of the Shaw Development case, and all five are absolutely imperative for stakeholders to consider, particularly given how the current state of the economy is driving so many projects towards litigation.
Dec 08, 2008 | 0 comments | View Post
